FORM OF ESCROW AGREEMENT
EXHIBIT
10.1
FORM
OF
THIS
ESCROW AGREEMENT is made and entered into as of the day of ___________, 20__, by
and among FIRST SECURITY BANK, N.A., a national banking association (the “Bank”); Crown
Exploration Partners, Ltd., a Texas limited partnership (the “Managing General
Partner”), and the Managing General Partner of Crown Exploration Fund I,
L.P., a limited partnership to be formed under the laws of Texas (the “Partnership”); and
TEXAS SECURITIES, INC., a Texas corporation and the broker dealer (the “Broker Dealer”) 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 interest in the Partnership (“Units”) aggregating
$8,400,000, 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 Units will be required to forward to the Broker Dealer a check
payable to the order of “First Security Bank, N.A., Escrow Agent for Crown
Exploration Fund I, 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
Broker Dealer 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 (“Escrow Funds “) for
Units or reservations for such Units, as hereinafter provided.
2.2 Deposit
and Receipt of Funds.
(a) The
Broker Dealer shall deposit all checks received by it in payment of
subscriptions in an escrow account entitled “First Security Bank, N.A., Escrow
Agent for Crown Exploration Fund I, L.P.,” established at the Bank, for the
purpose of this Escrow Agreement. The Broker Dealer shall deposit
each check received by it in payment of subscriptions in the escrow account no
later than noon of the business day following the receipt of the
check. Concurrently with the delivery of such deposits to the Bank,
the Broker Dealer 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 Broker Dealer 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 Broker Dealer 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 Broker Dealer 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 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.
2.4
Disbursement of Escrow
Funds. At such time as (i) checks representing subscriptions
for at least 40 Units ($1,000,000) shall have been deposited with the Bank,
without regard to Units subscribed for by the Managing General Partner or its
affiliates, 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 Broker Dealer 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 but
excluding funds that are part of the initial $1,000,000 necessary for
disbursement, 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 total amount of Units 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 BROKER DEALER 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 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, Broker Dealer 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 BROKER DEALER 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
ATTORNEYS’ 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 that 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 40 Units ($1,000,000), without regard to
Units subscribed for by the Managing General Partner or its affiliates, 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 40 Units
($1,000,000), without regard to Units subscribed for by the Managing General
Partner or its affiliates, 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 40 Units ($1,000,000),
without regard to Units subscribed for by the Managing General Partner or its
affiliates, are not subscribed for and accepted by the Managing General Partner
prior to ____________ the Bank will promptly return to subscribers from the
Escrow Funds an amount equal to the principal amount of Units 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 Broker Dealer
with monthly statements containing the beginning balance in the escrow account
as well as all principal and income transactions for the statements
period. Broker Dealer shall be responsible for reconciling these
statements. The Escrow Agent shall be forever released and discharged
from all liability 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 Broker Dealer 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:
First
Security Bank, N.A.
_________________
_________________
Attn.:
____________
Telephone:
_______
Facsimile:
________
Crown
Exploration Partners, Ltd.
0000
Xxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Telephone:
000.000.0000
Facsimile:
__________
Texas
Securities, Inc.
0000
Xxxxxxxx Xxxxx
Xxxxxxxxxx,
Xxxxx 00000
Telephone:
000.000.0000
Facsimile:
___________
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, the
Partnership, the Managing General Partner and the Broker Dealer.
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 of the Units, nor is it required to review
or approve the offering of the Units or the economic viability of the
Partnership, nor any other matters relating to the sale of the Units 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.
WITNESS
THE EXECUTION OF THIS ESCROW AGREEMENT, as of the date first above
written.
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FIRST
SECURITY BANK, N.A.
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By:
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Name:
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Title:
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CROWN
EXPLORATION PARTNERS, LTD.
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individually
and as Managing General Partner of Crown Exploration Fund I,
L.P.
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By:
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Petro
Share Management, LLC,
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Its
general partner
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By:
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Name:
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Title:
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TEXAS
SECURITIES, INC.
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By:
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Name:
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Title:
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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.
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Name
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Title
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Signature
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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 ____________,
200___.
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[Name
of Party]
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By:
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Name:
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Title:
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EXHIBIT
B
SCHEDULE
OF ESCROW AGENT FEES
Annual
Administration Fee:
Out-of-pocket Expenses
:
Expenses
for extraordinary services, such as, but not limited to, travel, legal,
securities delivery and legal notice publication will be billed
additionally.
Additional
Terms and Conditions:
In
the event the escrow is not funded, the Annual Administration Fee and all
related expenses will not be refunded. The flat fee covers a full
year in advance, or any part thereof, and is not pro-rated in the year of
termination.
