EXHIBIT 10.1
31
ESCROW DEPOSIT AGREEMENT
between
FRANKLIN BANK, N.A.
as Bank-Escrowee,
and
WOLVERINE ENERGY 1998-1999( ) DEVELOPMENT COMPANY, L.L.C.
, 1998
W I T N E S S E T H:
WHEREAS, WOLVERINE ENERGY 98-99( ) DEVELOPMENT COMPANY, L.L.C., a limited
liability company to be formed pursuant to the laws of Michigan (the "Company"),
with Wolverine Energy, L.L.C., a Michigan limited liability company (the
"Manager") as managing member, desires to offer and sell, in a public offering
pursuant to registration under the Securities Act of 1933, as amended (the
"Securities Act") pursuant to Section 5 thereof up to 10,000 membership
interests in the Company (the "Interests") at a price of $1,000 per Interest;
and
WHEREAS, in connection with the offering and sale of the Interests, certain
selected member firms of the National Association of Securities Dealers, Inc.
(collectively, the "Soliciting Dealers"), will serve as the agents of the Trust
for the solicitation of offers to purchase the Interests; and
WHEREAS, the Soliciting Dealers propose to offer the Interests on a
"reasonable efforts" basis; and
WHEREAS, in compliance with the provisions of the descriptions of such
matters contained in the Prospectus of the Company, dated as of
, 1998, as supplemented to the date hereof with respect to the Company (the
Prospectus, as supplemented, the "Prospectus"), and Rule 15c2-4 under the
Securities Exchange Act of 1934, the Manager proposes to establish an escrow
account (the "Account") for the benefit of subscribers for Interests with
Franklin Bank, N.A., (the "Bank-Escrowee") at its office at Franklin Bank
Center, 00000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000; and
WHEREAS, the Bank-Escrowee desires to act as escrow agent in connection
with the escrow account and according to the terms thereof described herein;
NOW, WHEREFORE, it is agreed as follow:
The Bank-Escrowee agrees to act as escrow agent in receiving and disbursing
the proceeds from the sale of the Interests in accordance with the following
conditions:
(1) The Company will direct the Soliciting Dealers to promptly deposit all
amounts received from time to time in payment of subscriptions for Interests in
connection with the solicitation of offers to purchase Interests hereinabove
referred to (the "Subscription Proceeds") in the escrow account to be
established for that purpose by the Bank-Escrowee. The Company will, at the
time of each such deposit, supply the Bank-Escrowee with the name, address,
either social security or tax identification number of each subscriber with a
certification thereof on Internal Revenue Service Form W-9, the number of
Interests subscribed for by each such subscriber and the Subscription Proceeds
in payment of such subscription which were deposited for the benefit of each
such subscriber.
(2) The Bank-Escrowee shall invest the Subscription Proceeds from time to
time based on instructions from the Manager in any fixed rate investment, which
may consist of money market or other bank deposit accounts, obligations issued
or guaranteed as to principal or interest by the United States or by a person
controlled or supervised
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by and acting as an instrumentality of the United States, or short-term
certificates of deposit issued by national or state banking associations, or, to
the extent such funds cannot be practically invested in such accounts, such
funds shall be deposited in an interest-bearing account maintained by the
Bank-Escrowee. Unless the Manager expressly directs the Bank-Escrowee to invest
the Subscription Proceeds, the Bank-Escrowee is under no obligation to place
such Subscription Proceeds in interest-bearing accounts.
(3) In the event that, with respect to the Company, at least 300 Interests
shall have been subscribed-for prior to the termination of the Offering Period
as defined in the Soliciting Dealer Agreement (the "Offering Period"), and
Subscription Proceeds in the amount of $1,000 per Share subscribed-for shall
have been deposited in the Account, then, after receipt and collection by the
Bank-Escrowee of the amount of Subscription Proceeds so deposited and the
information described in paragraph (1) hereof with respect to each such
subscriber, the Manager shall arrange for a closing of the transfer of Interests
in accordance with the Soliciting Dealer Agreement (the "Closing Time").
(4) At the Closing Time, pursuant to written directions of the Manager
giving notice of the prior or contemporaneous occurrence of the events described
in paragraph (3) hereof, the Bank-Escrowee shall pay to the Company the amount
set forth in written directions from the Manager consistent with the Memorandum
and the Soliciting Dealer Agreement, and as soon thereafter as practicable, the
Bank-Escrowee shall mail or otherwise deliver to the subscriber at the address
provided by the Manager a check in the amount of interest accrued, if any, on
the Subscription Proceeds deposited by such subscriber at least 5 business days
prior to the Closing Time, from and after the date such Subscription Proceeds
are collected by the Bank-Escrowee (i.e., the date on which such Subscription
Proceeds clear the drawee bank), net of amounts required to be withheld under
federal income tax provisions governing backup withholding (the "Net Interest").
The Bank-Escrowee shall pay the Net Interest to the subscriber as soon as
practicable, but not later than 60 days after the Closing Time. The Manager
will pay all allocable charges, expenses and fees of the Bank-Escrowee related
thereto.
(5) In the event that a subscriber is rejected by the Manager, or prior to
Closing Time it is determined that a subscriber whose subscription payments have
not been returned pursuant to the provisions of paragraph (8) hereof does not
meet the suitability standards required for investments in the Company, the
Bank-Escrowee shall, upon the written direction of the Manager, return the
subscription funds, with Net Interest accrued, if any, on the Subscription
Proceeds deposited by such subscriber at least 5 business days prior to the
Closing Time. All allocable charges of the Bank-Escrowee related thereto, as
provided in paragraph (4), shall be paid by the Manager.
(6) In the event that either (a) the closing contemplated by paragraphs
(3) and (4) above shall not have been consummated or (b) 300 Interests have not
been subscribed for, prior to the termination of the Offering Period, the
Manager shall promptly so advise the Bank-Escrowee and authorize the
Bank-Escrowee to return as promptly as practicable to the subscribers as named,
the Subscription Proceeds theretofore received, and the Bank-Escrowee shall
return such funds, as provided herein. There shall be paid to the subscriber
the Net Interest earned on his subscription funds in proportion to the amount of
his subscription funds and, beginning on the date such funds are collected, the
length of time his subscription funds were held by the Bank-Escrowee after
collection. Such return of funds and payment of Net Interest, if any, shall
occur not later than 60 days after notice to the Bank-Escrowee. The Manager
shall pay all allocable charges, expenses and fees of the Bank-Escrowee related
thereto.
(7) In the event that either (a) the closing in accordance with paragraphs
(3) and (4) above shall have been consummated or (b) the Subscription Proceeds
deposited with the Bank-Escrowee are repaid to subscribers as provided in
paragraph (6) above, the Bank-Escrowee shall thereafter be relieved of all
liabilities in connection with the escrow accounts provided for herein.
(8) Any subscription payment which is received which corresponds to a
subscription which is not accepted by the Manager shall be promptly returned by
the Bank-Escrowee to the subscriber upon notice from the Manager as provided for
herein. Notwithstanding the provisions of this paragraph, if at any time the
Manager or the Company shall notify the Bank-Escrowee that any subscription for
Interests as to which the subscription payment has already been deposited with
the Bank-Escrowee cannot be lawfully accepted in whole or in part, the
Bank-Escrowee shall promptly
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deliver to the subscriber submitting such document, with Net Interest accrued,
if any, on the Subscription Proceeds deposited by such subscriber at least 5
business days prior to the date of such delivery, the subscription payment (or
portion thereof) which has been rejected.
(9) For performing its obligations under this Escrow Deposit Agreement,
the Bank-Escrowee shall be entitled to receive (i) an annual fee, determined in
conformity with the attached Schedule A, payable upon the execution of this
Agreement and the receipt and sufficiency of which is hereby acknowledged, as
well as (ii) a subscriber fee, determined in conformity with the attached
Schedule A, and all reasonable out-of-pocket expenses of the Bank-Escrowee,
including postage, checks, mailings and counsel fees, such fees to be paid
monthly by the deduction and payment to the Bank-Escrowee of such amounts from
funds of the Company on deposit with the Bank-Escrowee in such accounts, other
than the escrow account created and governed hereby, as the Company and the
Bank-Escrowee may hereafter mutually determine (or, if the Company and the
Bank-Escrowee do not mutually determine the account from which such amounts
shall be deducted, from such account as the Bank-Escrowee shall, in its sole
discretion, designate), but not, in any case, by deducting such fees, costs and
expense from the Subscription Proceeds prior to payment to the Company pursuant
to paragraph 4 hereof.
(10) It is understood and agreed, further, that:
(a) The Bank-Escrowee shall not be liable for any error of judgment
or for any act done or omitted by it in good faith, or for anything which
it may in good faith do or refrain from doing in connection herewith. No
liability shall be incurred by the Bank-Escrowee if, in the event of any
dispute or question arising as to the construction of the Agreement, it
acts in accordance with the opinion of its legal counsel. The
Bank-Escrowee shall be protected in acting upon any certificate, statement,
request, agreement or other instrument whatsoever, not only as to its due
execution and the validity and effectiveness of its provisions, but also as
to the truth and acceptability of any information therein contained, which
it shall in good faith believe to be valid and to have been signed,
presented or transmitted by a proper person or persons.
(b) In the event of a disagreement or the presentation of adverse
claims or demands in connection with or for any item affected hereby, the
Bank-Escrowee shall at its option be entitled to refuse to comply with any
such claims or demands during the continuance of such disagreement and may
refrain from delivering any item or making any disbursement affected
hereby, and in so doing, the Bank-Escrowee shall not become liable to the
undersigned, or any of them, or to any other person, due to its failure to
comply with such adverse claim or demand. The Bank-Escrowee shall be
entitled to continue, without liability, to refrain and refuse to act:
(i) Until all the rights of the adverse claimants have been
finally adjudicated by a court having jurisdiction of the parties and
the items affected thereby, after which time the Bank-Escrowee shall
be entitled to act in conformity with such adjudication; or
(ii) Until all differences shall have been adjusted by agreement
and the Bank-Escrowee shall have been notified thereof and shall have
been directed in a writing signed jointly or in counterpart by the
undersigned and by all persons making adverse claims or demands, at
which time the Bank-Escrowee shall be protected in acting in
compliance therewith.
(c) The Manager and the Company hereby agree to indemnify and hold
harmless the Bank-Escrowee from all reasonable expenses, loss, damages,
and/or liabilities, including legal fees, which arise or may arise out of
the performance of its duties hereunder, other than the non-payment of
interest as required by paragraph (4) and such claims and losses that are
occasioned by its bad faith, gross negligence, or misconduct. The Manager
and the Company jointly and severally agree to reimburse the Bank-Escrowee
for any such costs or expenses incurred by it.
(d) The Bank-Escrowee shall be under no duty to enforce collection or
payment of any
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subscription that is to be paid to and held by it hereunder.
(e) The Bank-Escrowee shall promptly notify the Manager of any
discrepancy between the amounts set forth on any statement delivered by the
Manager and the sum delivered to it therewith.
(f) The Bank-Escrowee shall be under no duty to accept funds, checks,
drafts or instruments for the payment of money from anyone other than the
Manager or to give any receipt therefor except to the Manager.
(g) The Bank-Escrowee shall be protected in acting upon any notice,
request, certificate, approval, consent or other paper believed by it to be
genuine and to be signed by the proper party or parties.
(h) The Bank-Escrowee shall be deemed conclusively to have given and
delivered any notice required to be given or delivered hereunder if the
same is in writing, signed by any one of its authorized officers, sent by
certified or registered mail, return receipt requested or delivered by
hand, addressed to the Manager as follows:
Wolverine Energy 98-99 ( ) Development Company, L.L.C.
c/o Wolverine Energy, L.L.C.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Xx.
(i) The Bank-Escrowee shall be deemed conclusively to have received
any notice required to be given or delivered hereunder if the same is in
writing, signed by the Manager, sent by certified or registered mail,
return receipt requested, or delivered by hand or telecopied, addressed to
the Bank-Escrowee as follows:
Franklin Bank, X.X.
Xxxxxxxx Bank Center
00000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
(j) The Bank-Escrowee shall be permitted to consult with counsel of
its choice, including in-house counsel, and shall not be liable for any
action taken, suffered or omitted by it in accordance with the advice of
such counsel; provided, however, that nothing in this subsection (j), nor
any action taken by the Bank-Escrowee, or suffered or omitted by it in
accordance with the advice of any counsel, shall relieve the Bank-Escrowee
from liability for any claims that are occasioned by its bad faith, gross
negligence, or misconduct, all as provided in subsection (c) above.
(k) The Bank-Escrowee shall not be bound by any modification,
amendment, termination, cancellation, rescission or supersession of this
Agreement, unless the same shall be in writing and signed by all parties
hereto.
(l) The Bank-Escrowee shall have no liability for following the
instructions herein expressly provided for, or written instructions given
in accordance with the provisions of this Agreement.
(m) The Bank-Escrowee shall have the right, at any time, to resign
hereunder by giving written notice of its resignation to all other parties
hereto at their addresses set forth in subsection (h) above, at least 10
business days prior to the date specified for such resignation to take
effect, and upon the effective date of such resignation, all Subscription
Proceeds, together with interest earned thereon, if any, then held by the
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Bank-Escrowee hereunder shall be delivered by it to such person as may be
designated in writing by the other parties executing this Agreement;
provided, however, that the other parties may require that any interest
accrued shall be distributed in accordance with paragraph (4), whereupon
the Bank-Escrowee's obligations hereunder shall cease and terminate. If no
such person has been designated by such date, all obligations of the
Bank-Escrowee hereunder shall, nevertheless, cease and terminate. The
Bank-Escrowee's sole responsibility thereafter shall be to keep safely all
property then held by it and to deliver the same to a person designated by
the other parties executing this Agreement or in accordance with the
directions of a final order or judgment of a court of competent
jurisdiction together with any interest accrued in accordance with
paragraph (4).
(11) Notwithstanding anything herein to the contrary, the Bank-Escrowee
shall be obligated to disburse amounts deposited in any escrow account and
interest thereon only to the extent funds have been actually collected, and the
Bank-Escrowee shall not have any obligation to make any advance of its own funds
for amounts not collected.
(12) Nothing in this Agreement is intended to or shall confer upon any
person other than the parties hereto any legal or equitable right, remedy or
claim. This Agreement shall be governed by, and its provisions construed in
accordance with, the laws of Michigan, and may be modified only by a writing
executed by all the parties hereto.
(13) This Agreement may be executed in one or more counterparts, but in
such event, each counterpart shall constitute an original and all of such
counterparts shall constitute one Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Deposit
Agreement and caused their respective representatives to affix their signatures
thereto to signify such agreement as of the date first above written.
FRANKLIN BANK, N.A.
By:
---------------------------------------
Its:
--------------------------------------
WOLVERINE ENERGY, L.L.C.
By:
---------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Its: President
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SCHEDULE A
ANNUAL FEE - The Annual Fee will be based upon the actual amount of
Subscription Proceeds deposited into the Escrow Account determined according to
the schedule provided below; the Annual Fee will be computed and paid upon
execution of the Escrow Deposit Agreement and opening of the escrow based upon
the anticipated amount of the total Subscription Proceeds, i.e., the maximum
amount of the offering as determined in accordance with the Memorandum; the
amount, if any, by which the amount of the anticipated Annual Fee paid at
opening of the escrow exceeds the actual amount of the Annual Fee based upon the
amount of Subscription Proceeds actually deposited shall be rebated by the
Bank-Escrowee to the Company upon the close of escrow; the Annual Fee will not
be pro-rated if the escrow is open for any part of a year less than twelve
months.
Subscription Proceeds Percentage
--------------------- ----------
$0 - 3 million $ 500.00
$3 - 6 million 1,000.00
$6 - 9 million 1,500.00
Over 9 million 2,000.00
SUBSCRIBER FEE - $12.50 per subscriber, accrued upon subscription and
payable in accordance with paragraph 9 of the Escrow Deposit Agreement, to
defray Bank-Escrowee's costs of check processing, preparation and mailing of
I.R.S. Form 1099's and fax confirmations.
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