EXHIBIT 10.1
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the _____ day of
________, 200__, by and among BANK ONE, NATIONAL ASSOCIATION, a national
banking association (the "Bank"); REEF PARTNERS LLC, a Nevada limited
liability company (the "Managing General Partner"), and the Managing General
Partner of Reef Global Energy __, L.P., a limited partnership to be formed
under the laws of Nevada (the "Partnership"); and WESTERN AMERICAN SECURITIES
CORPORATION, a Texas corporation and the dealer manager ("the Dealer
Manager") of the proposed securities offering of units of the Partnership.
I. RECITALS
1.1. THE AGREEMENT. The Managing General Partner has prepared an
Offering Prospectus ("Prospectus") on behalf of the Partnership pertaining to
the offer and subscription for partnership interests in the Partnership
("Interests") aggregating $10,000,000, upon the terms and subject to the
conditions set forth in the Prospectus which, among other things, provides
that each person desiring to subscribe for Interests will be required to
forward to the Dealer Manager a check payable to the order of "Bank One,
Escrow Agent for Reef Global Energy __, L.P.," in an amount equal to his
subscription to the Partnership.
1.2 PURPOSE HEREOF. The Bank, the Managing General Partner (for
itself and the Partnership) and the Dealer Manager hereby enter into this
Escrow Agreement.
II. ESCROW PROVISIONS
2.1 APPOINTMENT OF BANK. The Bank is hereby appointed Escrow Agent
to hold and dispose of all funds paid by subscribers for Interests or
reservations for such Interests, as hereinafter provided.
2.2 DEPOSIT AND RECEIPT OF FUNDS.
(a) The Dealer Manager shall deposit promptly all checks received by
it in payment of subscriptions in an escrow account entitled "Bank One,
Escrow Agent for Reef Global Energy __, L.P.," established at the Bank, for
the purpose of this Escrow Agreement. Concurrently with the delivery of such
deposits to the Bank, the Dealer Manager shall supply the Bank and the
Managing General Partner with the name, mailing address and a completed Form
W9/W8 for each subscriber. The Bank shall hold the proceeds of said checks
(the "Escrow Funds") in escrow until disbursements therefrom are directed as
set forth in Paragraph 2.4.
(b) The Managing General Partner and Dealer Manager shall each
execute and deliver to the Escrow Agent a certificate of incumbency
substantially in the form of Exhibit A hereto for the purpose of establishing
the identity of the representatives of the Managing General Partner and
Dealer Manager entitled to issue instructions or directions to the Escrow
Agent on behalf of each such party. In the event of any change in the
identity of such representatives, a new certificate of incumbency shall be
executed and delivered to the Escrow Agent by the appropriate party. Until
such time as the Escrow Agent shall receive a new incumbency certificate, the
Escrow Agent shall be fully protected in relying without inquiry on any then
current incumbency certificate on file with the Escrow Agent.
(c) The Managing General Partner, Partnership and Dealer Manager
shall each furnish the Escrow Agent with a completed Form W-8 or Form W-9, as
applicable.
2.3 INVESTMENT OF FUNDS. The Escrow Funds shall be invested only in
short term institutional investments including bank accounts, insured bank
money market accounts or certificates of
ESCROW AGREEMENT - Page 1
deposit issued by a bank. The interest earned shall be added to the Escrow
funds and disbursed in accordance with the provisions of Paragraph 2.4 or
2.10, as the case may be. Unless directed otherwise by the Managing General
Partner, the Escrow Funds shall be invested in the Bank One Trust Company
Money Market Deposit Account.
2.4 DISBURSEMENT OF ESCROW FUNDS. At such time as (i) checks
representing subscriptions for at least 50 units ($1,000,000) shall have been
deposited with the Bank and (ii) funds for at least $1,000,000 shall have
been collected by the Bank, upon receipt by the Bank of written instructions
from the Managing General Partner and the Dealer Manager informing the Bank
of the date of closing with respect to the Partnership, the Bank will deliver
to the Managing General Partner certified, or official bank or trust checks
drawn on the Escrow Funds to the orders and in the amounts set forth in the
aforementioned instructions. The Bank shall not disburse any Escrow Funds to
the Partnership until at least $1,000,000 in collected funds have been
deposited in the Escrow Account. All such disbursement instructions shall be
unconditional and shall not impose any duties upon the Bank other than that
of disbursing Escrow Funds in a designated amount to a particular party. In
the event that any funds, including cleared funds, deposited in the Escrow
Account prove uncollectible after the funds represented thereby have been
released by the Escrow Agent pursuant to this Agreement, the Managing General
Partner shall immediately reimburse the Escrow Agent upon request for the
face amount of such check or checks, together with reasonable and customary
charges and expenses related thereto, and the Escrow Agent shall deliver the
returned checks or other instruments to the Managing General Partner. The
Managing General Partner acknowledges that its obligation in the preceding
sentence shall survive the termination of this Agreement and the resignation
or removal of the Escrow Agent.
2.5 RETURN OF ESCROW FUNDS TO SUBSCRIBERS. Before, at or following
the closing, the Managing General Partner may separately instruct the Bank in
writing to return to any subscriber so specified by the Managing General
Partner an amount equal to the full amount of each Interest subscribed for,
together with interest attributable thereto, if any, as calculated by the
Managing General Partner.
2.6 BANK'S RESPONSIBILITY. The Bank's sole responsibility shall be
for the safekeeping of the Escrow Funds, the deposit of the Escrow Funds
pursuant to Paragraph 2.3 and the disbursement thereof in accordance with
Paragraph 2.4, 2.5 or 2.10, and the Bank shall not be required to take any
other action with reference to any matters which might arise in connection
with the Escrow Funds or this Escrow Agreement. The Bank may act upon any
written instruction or other instrument which the Bank in good faith believes
to be genuine and what it purports to be. THE BANK SHALL NOT BE LIABLE FOR
ANY ACTION TAKEN BY IT IN GOOD FAITH AND BELIEVED TO BE AUTHORIZED OR WITHIN
THE RIGHTS OR POWERS CONFERRED UPON IT BY THIS ESCROW AGREEMENT OR FOR
ANYTHING WHICH THE BANK MAY DO OR REFRAIN FROM DOING IN CONNECTION HEREWITH
UNLESS THE BANK IS GUILTY OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN NO
EVENT SHALL THE ESCROW AGENT BE LIABLE TO THE MANAGING GENERAL PARTNER,
PARTNERSHIP OR THE DEALER MANAGER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT,
OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR LOSS OF BUSINESS ARISING UNDER
OR IN CONNECTION WITH THIS AGREEMENT. The Bank may consult with counsel of
its own choice and shall have full and complete authorization and protection
for any action taken or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel, except actions of gross
negligence or willful misconduct. The Bank is not a party to, nor is it
bound by, nor need it give consideration to the terms or provisions of, even
though it may have knowledge of, (i) any agreement or undertaking between the
Managing General Partner and any other party or parties, except for this
Escrow Agreement, (ii) any agreement or undertaking which may be evidenced or
disclosed by this Escrow Agreement or the Prospectus, or (iii) any other
agreement that may now or in the future be deposited with the Bank in
connection with this Escrow Agreement. The Bank has no duty to determine or
inquire into any happening or occurrence or any performance or failure of
performance of the Managing General Partner or any other party with respect
to agreements or arrangements with each other or with any other party or
parties. The Bank shall have no responsibility or liability for any
diminution in value of any
ESCROW AGREEMENT - Page 2
assets held hereunder which may result from any investments or reinvestment
made in accordance with any provision which may be contained herein. The
Bank shall be under no obligation to invest the deposited funds or the income
generated thereby until it has received a Form W-9 or W-8, as applicable,
from the Managing General Partner, Partnership, Dealer Manager and
subscribers, regardless of whether such party is exempt from reporting or
withholding requirements under the Internal Revenue Code of 1986, as amended.
2.7 POSSIBLE DISAGREEMENTS. If any disagreement should arise
between the parties hereto or with any other party with respect to the Escrow
Funds or this Escrow Agreement or if the Bank in good faith is in doubt as to
what action should be taken hereunder, the Bank shall have the absolute right
at its election to do either or both of the following: (i) withhold or stop
all further performance under this Escrow Agreement and all instructions
received in connection herewith until the Bank is satisfied that such
disagreement has been resolved, or (ii) file a suit in interpleader and
obtain an order from a court of appropriate jurisdiction requiring all
persons involved to litigate in such court their respective claims arising
out of or in connection with the Escrow Funds.
2.8 INDEMNITY TO BANK. THE MANAGING GENERAL PARTNER AND DEALER
MANAGER JOINTLY AND SEVERALLY AGREE TO INDEMNIFY AND HOLD THE BANK HARMLESS
AGAINST AND FROM ANY AND ALL COSTS, EXPENSES, CLAIMS, LOSSES, LIABILITIES AND
DAMAGES (INCLUDING REASONABLE ATTORNEY'S FEES) THAT MAY ARISE OUT OF OR IN
CONNECTION WITH THE BANK'S ACTING AS ESCROW AGENT UNDER THE TERMS OF THIS
ESCROW AGREEMENT, EXCEPT IN THOSE INSTANCES WHERE THE BANK HAS BEEN GUILTY OF
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND INDEMNIFICATION SHALL SURVIVE THE
BANK'S RESIGNATION OR REMOVAL, OR THE TERMINATION OF THE AGREEMENT. AT THE
REQUEST OF THE BANK, THE MANAGING GENERAL PARTNER SHALL CAUSE THE
PARTNERSHIP, ONCE IT IS FORMED, TO ENTER INTO THIS COVENANT TO INDEMNIFY THE
BANK.
2.9 COMPENSATION. The Bank shall be entitled to compensation for
its services hereunder as per Exhibit B attached hereto, which is made a part
hereof, and for reimbursement of its out-of-pocket expenses including, but
not by way of limitation, the fees and costs of attorneys or agents which it
may find necessary to engage in performance of its duties hereunder, all to
be paid by the Managing General Partner. At such time as the required
minimum of 50 Units ($1,000,000) shall have been collected and be disbursable
to the Managing General Partner, the Escrow Agent shall have, and is hereby
granted, a prior lien upon any property, cash, or assets of the Escrow
Account, with respect to its unpaid fees and nonreimbursed expenses, superior
to the interests of any other persons or entities. At such time as the
required minimum of 50 Units ($1,000,000) shall have been collected and be
disbursable to the Managing General Partner, the Bank shall be entitled to
and is hereby granted the right to set off and deduct any unpaid fees and/or
nonreimbursed expenses from amounts on deposit in the Escrow Funds.
2.10 RETURN OF ESCROW FUNDS. If the required minimum of 50 units
($1,000,000) are not subscribed for and accepted by the Managing General
Partner prior to December 31, [2001, 2002, 2003 or 2004, as appropriate] the
Bank will promptly return to subscribers from the Escrow Funds an amount equal
to the principal amount of Interests subscribed for together with interest
attributable thereto where appropriate.
2.11 EFFECTIVE DATE AND TERMINATION. This Escrow Agreement shall
become effective on the date of this agreement. All of the provisions of
this Escrow Agreement shall be fully performed and this Escrow Agreement
shall terminate by the disbursement of all Escrow Funds as herein set out.
2.12 STATEMENTS. During the term of this Agreement, the Escrow Agent
shall provide the Dealer Manager with monthly statements containing the
beginning balance in the escrow account as well as all principal and income
transactions for the statements period. Dealer Manager shall be responsible
for reconciling these statements. The Escrow Agent shall be forever released
and discharged from all liability
ESCROW AGREEMENT - Page 3
with respect to the accuracy of such statements and the transactions listed
therein, except with respect to any such act or transaction as to which the
Dealer Manager shall within 90 days after the furnishing of the statement
file written objections with the Escrow Agent.
2.13 NOTICES AND COMMUNICATIONS. All notices and communications
hereunder shall be in writing and shall be deemed to be duly given if sent by
registered mail, return receipt requested, as follows:
BANK ONE, NATIONAL ASSOCIATION
0000 Xxxx Xxxxxx
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn.: Xxx X. Xxxxxxx
Telephone: 000.000.0000
Facsimile: 214.290.3624
Reef Partners LLC
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Telephone: 000.000.0000
Facsimile: 972.994.0369
Western American Securities Corporation
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
Telephone: 000.000.0000
Facsimile: 972.994.0369
2.14 RESIGNATION. The Bank may resign and be discharged from its
duties or obligations hereunder by giving notice in writing of such
resignation specifying a date when such resignation shall take place.
2.15 ENTIRE AGREEMENT. This instrument evidences the entire
agreement between the Bank and the Partnership and the Managing General
Partner, and the Dealer Manager.
2.16 APPLICABLE LAW. This agreement shall be construed and enforced
according to the laws of the State of Texas, and the provisions herein
administered in accordance with such laws.
2.17 APPROVAL OF OFFERING. The Bank is acting solely as Escrow Agent
and has not reviewed or approved the offering, nor is it required to review
or approve the offering or the economic viability of the Partnership, nor any
other matters relating to the sale of the Interests other than this
Agreement.
2.18 TAX MATTERS.
(a) PREPARATION AND FILING OF TAX RETURNS. The Managing General
Partner is required to prepare and file any and all income or other tax
returns applicable to the Escrow Funds with the Internal Revenue Service and
all required state and local departments of revenue in all years income is
earned in any particular tax year as and to the extent required under the
provisions of the Code.
(b) UNRELATED TRANSACTIONS. The Escrow Agent shall have no
responsibility for the preparation of and/or filing of any tax or information
return with respect to any transaction, whether or not related to this
Agreement or a related agreement, that occurs outside the Escrow Funds.
ESCROW AGREEMENT - Page 4
WITNESS THE EXECUTION OF THIS ESCROW AGREEMENT, as of the date first above
written.
BANK ONE, NATIONAL ASSOCIATION
By:
------------------------------------
Name:
-----------------------------
Title:
----------------------------
REEF PARTNERS LLC
individually and as Managing General
Partner of Reef Global Energy __, L.P.
By:
------------------------------------
Name:
-----------------------------
Title:
----------------------------
WESTERN AMERICAN SECURITIES CORPORATION
By:
------------------------------------
Name:
-----------------------------
Title:
----------------------------
ESCROW AGREEMENT - Page 5
EXHIBIT A
CERTIFICATE OF INCUMBENCY
The undersigned, ___________________________, of _______________________,
hereby certifies that the following named officers are duly appointed,
qualified and acting in the capacity set forth opposite his/her name, and the
following signature is the true and genuine signature of said officer.
Name Title Signature
_____________________ _________________ __________________
_____________________ _________________ __________________
Such officers are hereby authorized to furnish the Escrow Agent with
directions relating to any matter concerning this Escrow Agreement and the
funds and/or property held pursuant thereto.
IN WITNESS WHEREOF, __________________________ has caused this
Certificate of Incumbency to be executed by its officer duly authorized this
________ day of ______________, 2001.
[NAME OF PARTY]
By
-------------------------------
Name
Title
ESCROW AGREEMENT - Page 6
EXHIBIT B
SCHEDULE OF ESCROW AGENT FEES
Acceptance Fee $1,500.00
Annual Administration Fee (FOR UP TO 20 DEPOSITS) $1,500.00
(FOR 21 TO 50 DEPOSITS) $2,000.00
(FOR 51 TO 150 DEPOSITS) $3,500.00
(FOR 150 + DEPOSITS) $4,000.00
Allocation of Interest Report - $5.00 PER INVESTOR OR MINIMUM $100.00
NSF Checks from Investors (each check) $25.00
Wire Transfers or Checks Issued $15.00
Tax Reporting $500.00
Out-of-pocket Expenses:
A CHARGE OF 8% OF THE TOTAL FEES WILL BE ADDED TO COVER ORDINARY BUSINESS
EXPENSES FOR POSTAGE, CHECKS, STATIONERY, PRINTING, MESSENGER DELIVERIES, AND
TELEPHONE. EXPENSES FOR EXTRAORDINARY SERVICES, SUCH AS, BUT NOT LIMITED TO,
TRAVEL, LEGAL, SECURITIES DELIVERY, AND LEGAL NOTICE PUBLICATION WILL BE
BILLED ADDITIONALLY.
Extraordinary Time Charges $200 per hour (see below)
Additional Terms and Conditions:
SERVICES IN ADDITION TO AND NOT CONTEMPLATED IN THE AGREEMENT, INCLUDING BUT
NOT LIMITED TO DOCUMENT AMENDMENTS AND REVISIONS, NONSTANDARD CASH AND/OR
INVESTMENT TRANSACTIONS, CALCULATIONS, NOTICES, REPORTS, AND DEFAULT
ADMINISTRATION MAY BE BILLED AS EXTRAORDINARY TIME CHARGES.
UNLESS OTHERWISE INDICATED, THE ABOVE FEES PROVIDE FOR THE ESTABLISHMENT OF
ONE ACCOUNT. ADDITIONAL SUB-ACCOUNTS GOVERNED BY THE SAME ESCROW AGREEMENT
MAY BE ESTABLISHED AT AN ADDITIONAL CHARGE OF $250 PER ACCOUNT.
THE ACCEPTANCE FEE AND THE FIRST YEAR MINIMUM ANNUAL ADMINISTRATION FEE ARE
PAYABLE UPON EXECUTION OF THE ESCROW DOCUMENTS. IN THE EVENT THE ESCROW IS
NOT FUNDED, THE ACCEPTANCE FEE AND ALL RELATED EXPENSES WILL NOT BE REFUNDED.
ANNUAL ADMINISTRATION FEES COVER A FULL YEAR IN ADVANCE, OR ANY PART
THEREOF, AND THUS ARE NOT PRO-RATED IN THE YEAR OF TERMINATION.
ESCROW AGREEMENT - Page 7
