EXHIBIT 10(A)
ESCROW AGREEMENT
ATLAS AMERICA PUBLIC #15-2005(A) L.P.
ATLAS AMERICA PUBLIC #15-2005(A) L.P.
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, 2005, by
and among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing
General Partner"), Anthem Securities, Inc., a Pennsylvania corporation
("Anthem"), the "Dealer-Manager," Atlas America Public #15-2005(A) L.P., a
Delaware limited partnership (the "Partnership") and National City Bank of
Pennsylvania, Pittsburgh, Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Managing General Partner intends to offer publicly for
sale to qualified investors (the "Investors") up to __________ investor general
partner interests and up to __________ limited partner interests in the
Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (the "Subscription Proceeds").
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts
of up to10.5% ($1,050 per Unit) for sales to the Managing General Partner, its
officers, directors and affiliates, registered investment advisors and their
clients, Selling Agents and their registered representatives and principals, and
investors who buy Units through the officers and directors of the Managing
General Partner. Also, the Managing General Partner, in its discretion, may
accept one-half Unit ($5,000) subscriptions, with larger subscriptions permitted
in $1,000 increments.
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") under which Anthem will solicit
subscriptions for Units in all states on a "best efforts" "all or none" basis
for Subscription Proceeds of $2,000,000 and on a "best efforts" basis for the
remaining Units on behalf of the Managing General Partner and the Partnership
and under which Anthem has been authorized to select certain members in good
standing of the National Association of Securities Dealers, Inc. ("NASD") to
participate in the offering of the Units ("Selling Agents").
WHEREAS, the Anthem Dealer-Manager Agreement, the "Dealer-Manager
Agreement," provides for compensation to the Dealer-Manager to participate in
the offering of the Units, subject to the discounts set forth above for certain
Investors, which compensation includes, but is not limited to, for each Unit
sold:
o a 2.5% Dealer-Manager fee;
o a 7% sales commission;
o a .5% accountable Reimbursement for Permissible Non-Cash
Compensation; and
o an up to .5% reimbursement of the Selling Agents' bona fide
due diligence expenses;
all or a portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the receipt
and acceptance by the Managing General Partner of the minimum Subscription
Proceeds of $2,000,000, excluding any optional subscription by the Managing
General Partner, its officers, directors, and Affiliates.
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WHEREAS, the Units may also be offered and sold by the officers and
directors of the Managing General Partner without receiving a sales commission
or other compensation on their sales.
WHEREAS, no subscriptions to the Partnership will be accepted after the
"Offering Termination Date," which is the first to occur of either:
o receipt of the maximum Subscription Proceeds of $200,000,000;
or
o December 31, 2005.
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement and Rule 15c2-4 adopted under the Securities Exchange Act of 1934, the
Managing General Partner and the Dealer-Manager desire to have the Subscription
Proceeds deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Managing General Partner, the
Partnership, and the Dealer-Manager appoint the Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with the Escrow Agent by the Dealer-Manager and the Managing General
Partner under this Agreement, and the Escrow Agent agrees to serve in
this capacity during the term and based on the provisions of this
Agreement.
2. DEPOSIT OF SUBSCRIPTION PROCEEDS. Pending receipt of the minimum
Subscription Proceeds of $2,000,000, the Dealer-Manager and the
Managing General Partner shall deposit the Subscription Proceeds of
each Investor to whom they sell Units with the Escrow Agent and shall
deliver to the Escrow Agent a copy of the "Subscription Agreement,"
which is the execution and subscription instrument signed by the
Investor to evidence his agreement to purchase Units in the
Partnership. Payment for each subscription for Units shall be in the
form of a check or wire made payable to "Atlas America Public
#15-2005(A) L.P., Escrow Agent, National City Bank of Pennsylvania."
3. INVESTMENT OF SUBSCRIPTION PROCEEDS. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General Partner. This may be a savings
account, bank money market account, short-term certificates of deposit
issued by a bank, or short-term certificates of deposit issued or
guaranteed by the United States government. The interest earned shall
be added to the Subscription Proceeds and disbursed in accordance with
the provisions of Paragraph 4 or 5 of this Agreement, as the case may
be.
4. DISTRIBUTION OF SUBSCRIPTION PROCEEDS. If the Escrow Agent:
(a) receives proper written notice from an authorized officer of
the Managing General Partner that at least the minimum
Subscription Proceeds of $2,000,000 have been received and
accepted by the Managing General Partner; and
(b) determines that Subscription Proceeds for at least $2,000,000
are Distributable Subscription Proceeds;
then the Escrow Agent shall promptly release and distribute to the
Managing General Partner the Distributable Subscription Proceeds plus
any interest paid and investment income earned on the Subscription
Proceeds while held by the Escrow Agent in the escrow account. For
purposes of the Agreement, "Distributable Subscription Proceeds" are
Subscription Proceeds which have been deposited in the escrow account
(1) by wire transfer; and (2) by check, but in the case of checks only
at the time that the Escrow Agent believes an amount of time has passed
which would usually be sufficient for Subscription Proceeds paid by
check to have returned unpaid by the bank on which the check was drawn
and after a 10 day period from the date of deposit.
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After the occurrence of 4(a) and (b) above, Escrow Agent will provide a
letter to the Managing General Partner confirming receipt of checks
and/or wires representing Subscription Proceeds totaling at least
$2,000,000 have been received and the anticipated date the funds will
be considered Distributable Subscription Proceeds.
After the initial distribution, any remaining Subscription Proceeds,
plus any interest paid and investment income earned on the Subscription
Proceeds while held by the Escrow Agent in the escrow account, shall be
promptly released and distributed to the Managing General Partner by
the Escrow Agent as the Subscription Proceeds become Distributable
Subscription Proceeds after a 10 day period from the date of deposit.
The Managing General Partner shall immediately return to the Escrow
Agent any Subscription Proceeds distributed to the Managing General
Partner or refunded to an Investor to the extent that such Subscription
Proceeds were paid by a check which is returned or otherwise not
collected for any reason prior or subsequent to termination of this
Agreement.
5. SEPARATE PARTNERSHIP ACCOUNT. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of
at least $2,000,000 and the Escrow Agent receives the notice described
in Paragraph 4 of this Agreement, and before the Offering Termination
Date, any additional Subscription Proceeds may be deposited by the
Dealer-Manager and the Managing General Partner directly in a separate
Partnership account which shall not be subject to the terms of this
Agreement.
6. DISTRIBUTIONS TO SUBSCRIBERS.
(a) If the Partnership is not funded as contemplated because less
than the minimum Subscription Proceeds of $2,000,000 have been
received and accepted by the Managing General Partner by
twelve (12:00) p.m. (noon), local time, EASTERN STANDARD TIME
on the Offering Termination Date, or for any other reason,
then the Managing General Partner shall notify the Escrow
Agent, and the Escrow Agent promptly shall distribute to each
Investor, for which Escrow Agent has a copy of the
subscription agreement, a refund check made payable to the
Investor in an amount equal to the Subscription Proceeds of
the Investor, plus any interest paid or investment income
earned on the Investor's Subscription Proceeds while held by
the Escrow Agent in the escrow account.
(b) If a subscription for Units submitted by an Investor is
rejected by the Managing General Partner for any reason after
the Subscription Proceeds relating to the subscription have
been deposited with the Escrow Agent, then the Managing
General Partner promptly shall notify in writing, the Escrow
Agent of the rejection, and the Escrow Agent shall promptly
distribute to the Investor for which Escrow Agent has a copy
of a Subscription Agreement, a refund check made payable to
the Investor in an amount equal to the Subscription Proceeds
of the Investor, plus any interest paid or investment income
earned on the Investor's Subscription Proceeds while held by
the Escrow Agent in the escrow account.
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7. COMPENSATION AND EXPENSES OF ESCROW AGENT. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services under this Agreement, as provided in
Appendix 1 to this Agreement and made a part of this Agreement, and the
charges, expenses (including any reasonable attorneys' fees), and other
out-of-pocket expenses incurred by the Escrow Agent in connection with
the administration of the provisions of this Agreement. The Escrow
Agent shall have no lien on the Subscription Proceeds deposited in the
escrow account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $2,000,000 and the Escrow Agent
receives the proper written notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is granted, a
prior lien on any property, cash, or assets held under this Agreement,
with respect to its unpaid compensation and nonreimbursed expenses,
superior to the interests of any other persons or entities.
8. DUTIES OF ESCROW AGENT. The Escrow Agent shall not be obligated to
accept any notice, make any delivery, or take any other action under
this Agreement unless the notice or request or demand for delivery or
other action is in writing and given or made by the Managing General
Partner or an authorized officer of the Managing General Partner. In no
event shall the Escrow Agent be obligated to accept any notice,
request, or demand from anyone other than the Managing General Partner.
9. LIABILITY OF ESCROW AGENT. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed in
this Agreement in carrying out or executing the purposes and intent of
this Agreement. However, nothing in this Agreement shall relieve the
Escrow Agent from liability arising out of its own willful misconduct
or gross negligence. The Escrow Agent's duties and obligations under
this Agreement shall be entirely administrative and not discretionary.
The Escrow Agent shall not be liable to any party to this Agreement or
to any third-party as a result of any action or omission taken or made
by the Escrow Agent in good faith. The parties to this Agreement will
jointly and severally indemnify the Escrow Agent, hold the Escrow Agent
harmless, and reimburse the Escrow Agent from, against and for, any and
all liabilities, costs, fees and expenses (including reasonable
attorney's fees) the Escrow Agent may suffer or incur by reason of its
execution and performance of this Agreement. If any legal questions
arise concerning the Escrow Agent's duties and obligations under this
Agreement, then the Escrow Agent may consult with its counsel and rely
without liability on written opinions given to it by its counsel.
The Escrow Agent shall be protected in acting on any written notice,
request, waiver, consent, authorization, or other paper or document
which the Escrow Agent, in good faith, believes to be genuine and what
it purports to be.
If there is any disagreement between any of the parties to this
Agreement, or between them or any other person, resulting in adverse
claims or demands being made in connection with this Agreement, or if
the Escrow Agent, in good faith, is in doubt as to what action it
should take under this Agreement, then the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it or refuse to
take any other action under this Agreement, so long as the disagreement
continues or the doubt exists. In any such event, the Escrow Agent
shall not be or become liable in any way or to any person for its
failure or refusal to act and the Escrow Agent shall be entitled to
continue to so refrain from acting until the dispute is resolved by the
parties involved.
National City Bank of Pennsylvania is acting solely as the Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement or
matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the authority
of the individuals executing this Agreement to be so authorized on
behalf of the party or parties involved.
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10. RESIGNATION OR REMOVAL OF ESCROW AGENT. The Escrow Agent may resign as
such after giving thirty days' prior written notice to the other
parties to this Agreement. Similarly, the Escrow Agent may be removed
and replaced after receiving thirty days' prior written notice from the
other parties to this Agreement. In either event, the duties of the
Escrow Agent shall terminate thirty days after the date of the notice
(or as of an earlier date as may be mutually agreeable); and the Escrow
Agent shall then deliver the balance of the Subscription Proceeds (and
any interest paid or investment income earned thereon while held by the
Escrow Agent in the escrow account) in its possession to a successor
escrow agent appointed by the other parties to this Agreement as
evidenced by a written notice filed with the Escrow Agent.
If the other parties to this Agreement are unable to agree on a
successor escrow agent or fail to appoint a successor escrow agent
before the expiration of thirty days following the date of the notice
of the Escrow Agent's resignation or removal, then the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a
successor escrow agent or other appropriate relief. Any resulting
appointment shall be binding on all of the parties to this Agreement.
On acknowledgment by any successor escrow agent of the receipt of the
then remaining balance of the Subscription Proceeds (and any interest
paid or investment income earned thereon while held by the Escrow Agent
in the escrow account), the Escrow Agent shall be fully released and
relieved of all duties, responsibilities, and obligations under this
Agreement.
11. TERMINATION. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect to this Agreement after the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account) as contemplated by this Agreement or on the written
consent of all the parties to this Agreement.
12. NOTICE. Any notices or instructions, or both, to be given under this
Agreement shall be validly given if set forth in writing and mailed by
certified mail, return receipt requested, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
c/o Allegiant Institutional Services
200 Public Square, 5th Floor
Cleveland, Ohio 44114
Attention: Dawn DeWerth LOC 01-86PS-01
Phone:(216) 222-9225
Facsimile: (216) 222-7044
If to the Managing General Partner:
Atlas Resources, Inc.
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: Karen A. Black
Phone: (412) 262-2830
Facsimile: (412) 262-2820
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If to Anthem:
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Moon Township, Pennsylvania 15108
Attention: Justin T. Atkinson
Phone: (412) 262-1680
Facsimile: (412) 262-7430
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance with this
Agreement.
13. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding on and shall inure to the
benefit of the undersigned and their respective successors and
assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
By: -----------------------------------------------
James Schultz, Vice President
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By: -----------------------------------------------
Karen A. Black, Vice President - Partnership
Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By: -----------------------------------------------
Justin T. Atkinson, President
ATLAS AMERICA PUBLIC #15-2005(A) L.P.
By: ATLAS RESOURCES, INC.
Managing General Partner
By: -----------------------------------------------
Karen A. Black, Vice President - Partnership
Administration
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APPENDIX I TO ESCROW AGREEMENT
COMPENSATION FOR SERVICES OF ESCROW AGENT
REVIEW AND ACCEPTANCE FEE: $ WAIVED
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance
(or any portion thereof) $3000.00
II. Remittance of checks returned to subscribers (set out
in section 6 of the governing agreement) 20.00
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings
account, or certificates of deposit) such products offered by any
National City Bank retail branch)- fees are subject to the type of
account the Managing General Partner directs the Escrow Agent to open
and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT
THERETO.
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