PROPOSED FORM OF ESCROW AGREEMENT
EXHIBIT 10(a)
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
ESCROW AGREEMENT
THIS AGREEMENT, made to be effective as of the _____ day of _________,
1999, by and between Atlas Resources, Inc., a Pennsylvania corporation (the
"Managing General Partner"), Anthem Securities, Inc., a Pennsylvania corporation
("Anthem"), Bryan Funding, Inc., a Pennsylvania corporation ("Bryan Funding"),
collectively Anthem and Bryan Funding are referred to as the "Dealer-Manager",
Atlas-Energy for the Nineties-Public #8 Ltd., a Pennsylvania limited partnership
(the "Partnership") and National City Bank of Pennsylvania, Pittsburgh,
Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Partnership intends to offer publicly for sale to qualified
investors (the "Investors") up to 1,800 limited partnership interests in the
Partnership (the "Units"); and
WHEREAS, each Investor will be required to pay his subscription in full
upon subscribing ($10,000 per Unit, however, the Managing General Partner, in
its discretion, may accept one-half Unit [$5,000] subscriptions, with larger
subscriptions permitted in $1,000 increments), by check, draft or money order
except that the broker-dealers and the Managing General Partner, its officers
and directors and Affiliates, may purchase Units net of the Dealer-Manager fee,
the commissions and reimbursement of marketing expenses and bona fide
accountable due diligence expenses set forth below, and registered investment
advisors and their clients may purchase Units subject to the Dealer-Manager fee
but net of the commissions and reimbursement of marketing expenses and bona fide
accountable due diligence expenses set forth below (the "Subscription
Proceeds"); and
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") pursuant to which Anthem will
solicit subscriptions for Units in all states other than Minnesota and New
Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on a "best
efforts" basis for the remaining Units on behalf of the Managing General Partner
and the Partnership and pursuant to 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"); and
WHEREAS, the Managing General Partner and Bryan Funding have executed an
agreement ("Bryan Funding Dealer-Manager Agreement") pursuant to which Bryan
Funding will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for $1,000,000 and on a "best
efforts" basis for the remaining Units on behalf of the Managing General Partner
and the Partnership and pursuant to which Bryan Funding has been authorized to
select certain members in good standing of the NASD to participate in the
offering of the Units ("Selling Agents"); and
WHEREAS, the Anthem Dealer-Manager Agreement and the Bryan Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement", provide for compensation to the Dealer-Manager which includes, but
is not limited to: (i) a 2.5% Dealer-Manager fee; (ii) a 7.0% sales commission;
(iii) a .5% reimbursement of marketing expenses; and (iv) reimbursement of the
Selling Agents' bona fide accountable due diligence expenses of .5% per Unit to
participate in the offering of the Units, all or a portion of which compensation
will be reallowed to the Selling Agents and wholesalers; and
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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
$1,000,000, excluding any optional subscription by the Managing General Partner,
its officers, directors and Affiliates; and
WHEREAS, no subscriptions to the Partnership will be accepted after
receipt of the maximum Subscription Proceeds of $18,000,000 or December 31,
1999, whichever event occurs first (the "Offering Termination Date"); and
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement, the Managing General Partner and the Dealer-Manager desire to have
the Subscription Proceeds deposited with the Escrow Agent and the Escrow Agent
desires to hold the Subscription Proceeds pursuant to the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Managing General Partner, the
Partnership and the Dealer-Manager hereby appoint Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with Escrow Agent by the Dealer-Manager and the Selling Agents pursuant
hereto and Escrow Agent hereby agrees to serve in such capacity during
the term and based upon the provisions hereof.
2. DEPOSIT OF SUBSCRIPTION PROCEEDS. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager shall deposit the
Subscription Proceeds of each Investor with the Escrow Agent and shall
deliver to the Escrow Agent a copy of the Subscription Agreement of such
Investor. Payment for each subscription for Units shall be in the form of
a check made payable to "Atlas Public #8 Ltd., Escrow Agent, National
City Bank of PA". The Escrow Agent shall deliver a receipt to Anthem and
the Managing General Partner for each deposit of Subscription Proceeds
made pursuant hereto by Anthem, and to Bryan Funding and the Managing
General Partner for each deposit of subscription proceeds made pursuant
hereto by Bryan Funding.
3. INVESTMENT OF SUBSCRIPTION PROCEEDS. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
entitled "Armada Government Fund." Subscription Proceeds may be
temporarily invested by the Escrow Agent only in income producing
short-term, highly liquid investments secured by the United States
government where there is appropriate safety of principal, such as U.S.
Treasury Bills. The interest earned shall be added to the Subscription
Proceeds and disbursed in accordance with the provisions of paragraph 4
or 5, as the case may be.
4. DISTRIBUTION OF SUBSCRIPTION PROCEEDS. If the Escrow Agent:
(a) receives written notice from an authorized officer of the
Managing General Partner that at least the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
the Managing General Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000 as
determined by the Managing General Partner have cleared the
banking system and are good;
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the Escrow Agent shall promptly release and distribute to the Managing
General Partner such escrowed Subscription Proceeds which have cleared
the banking system and are good plus any interest paid and investment
income earned on such Subscription Proceeds while held by the Escrow
Agent in an escrow account.
Any remaining Subscription Proceeds, plus any interest paid and
investment income earned on such Subscription Proceeds while held by the
Escrow Agent in an escrow account shall be promptly released and
distributed to the Managing General Partner by the Escrow Agent as such
Subscription Proceeds clear the banking system and become good.
5. SEPARATE PARTNERSHIP ACCOUNT. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of at
least $1,000,000 and the Escrow Agent receives the notice described in
Paragraph 4 of this Agreement, and prior to the Offering Termination
Date, any additional Subscription Proceeds may be deposited by the
Dealer-Manager directly in a separate Partnership account which shall not
be subject to the terms of this Agreement.
6. DISTRIBUTIONS TO SUBSCRIBERS.
(a) In the event that the Partnership will not be funded as
contemplated because less than the minimum aggregate
subscriptions of $1,000,000 have been received and accepted by
the Managing General Partner by twelve p.m. (noon), local time,
on December 31, 1999, or for any other reason, the Managing
General Partner shall so notify the Escrow Agent, whereupon the
Escrow Agent promptly shall distribute to each Investor a refund
check made payable to such Investor in an amount equal to the
Subscription Proceeds of such Investor, plus any interest paid or
investment income earned thereon while held by the Escrow Agent
in an escrow account as calculated by the Managing General
Partner.
(b) In the event that a subscription for Units submitted by an
Investor is rejected by the Managing General Partner for any
reason after the Subscription Proceeds relating to such
subscription have been deposited with the Escrow Agent, then the
Managing General Partner promptly shall notify the Escrow Agent
of such rejection, and the Escrow Agent shall promptly distribute
to such Investor a refund check made payable to such Investor in
an amount equal to the Subscription Proceeds of such Investor,
plus any interest paid or investment income earned thereon while
held by the Escrow Agent in an escrow account as calculated by
the Managing General Partner.
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 hereunder, as provided in Appendix 1 to
this Agreement and made a part hereof, 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 an escrow
account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $1,000,000 and the Escrow Agent
receives the notice described in Paragraph 4 of this Agreement, at which
time the Escrow Agent shall have, and is hereby granted, a prior lien
upon any property, cash, or assets held hereunder, 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 Escrow
Agreement unless the notice or request or demand for delivery or other
action is in writing and given or made by the party given the right or
charged
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with the obligation under this Escrow Agreement to give the notice or
to make the request or demand. In no event shall the Escrow Agent be
obligated to accept any notice, request, or demand from anyone other
than the Managing General Partner or the Dealer-Manager.
9. LIABILITY OF ESCROW AGENT. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed herein
in carrying out or executing the purposes and intent of this Escrow
Agreement; provided, however, that nothing herein contained shall relieve
the Escrow Agent from liability arising out of its own willful misconduct
or gross negligence. Escrow Agent's duties and obligations under this
Agreement shall be entirely administrative and not discretionary. Escrow
Agent shall not be liable to any party hereto or to any third party as a
result of any action or omission taken or made by Escrow Agent in good
faith. The parties to this Agreement will indemnify Escrow Agent, hold
Escrow Agent harmless, and reimburse Escrow Agent from, against and for,
any and all liabilities, costs, fees and expenses (including reasonable
attorney's fees) Escrow Agent may suffer or incur by reason of its
execution and performance of this Agreement. In the event any legal
questions arise concerning Escrow Agent's duties and obligations
hereunder, Escrow Agent may consult with its counsel and rely without
liability upon written opinions given to it by such counsel.
The Escrow Agent shall be protected in acting upon 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.
In the event that there shall be any disagreement between any of the
parties to this Agreement, or between them or any of them and any other
person, resulting in adverse claims or demands being made in connection
with this Agreement, or in the event that Escrow Agent, in good faith,
shall be in doubt as to what action it should take hereunder, Escrow
Agent may, at its option, refuse to comply with any claims or demands on
it or refuse to take any other action hereunder, so long as such
disagreement continues or such doubt exists. In any such event, Escrow
Agent shall not be or become liable in any way or to any person for its
failure or refusal to act and 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 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.
10. RESIGNATION OR REMOVAL OF ESCROW AGENT. The Escrow Agent may resign as
such following the giving of thirty days' prior written notice to the
other parties hereto. Similarly, the Escrow Agent may be removed and
replaced following the giving of thirty days' prior written notice to the
Escrow Agent by the other parties hereto.
In either event, the duties of the Escrow Agent shall terminate thirty
days after the date of such notice (or as of such 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 an escrow account) in
its possession to a successor escrow agent as shall be appointed by the
other parties hereto as evidenced by a written notice filed with the
Escrow Agent. If the other parties hereto are unable to agree upon a
successor or shall have failed to appoint a successor prior to the
expiration of thirty days following the date of the notice of resignation
or removal, the then acting Escrow Agent may petition any court of
competent jurisdiction for the appointment of a successor escrow agent or
other appropriate relief; and any such resulting appointment shall be
binding upon all of the parties hereto.
Upon 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 an escrow account), the then acting Escrow Agent shall be fully
released and relieved of all duties, responsibilities, and obligations
under this Agreement.
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11. TERMINATION. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect hereto upon the occurrence of the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in an
escrow account) as contemplated hereby or upon the written consent of all
the parties hereto.
12. NOTICE. Any notices or instructions, or both, to be given hereunder shall
be validly given if set forth in writing and mailed by certified mail,
return receipt requested, as follows:
IF TO THE ESCROW AGENT:
National City Bank of Pennsylvania
Attention: Mr. Robert Mialki, Vice President
Corporate Trust Department
300 Fourth Avenue
Pittsburgh, Pennsylvania 15278-2331
Phone: (412) 644-8401
Facsimile: (412) 644-7971
IF TO THE MANAGING GENERAL PARTNER:
Atlas Resources, Inc.
311 Rouser Road
P.O. Box 611
Moon Township, Pennsylvania 15108
Attention: Tony C. Banks
Phone: (412) 262-2830
Facsimile: (412) 262-2820
IF TO ANTHEM:
Anthem Securities, Inc.
311 Rouser Road
P.O. Box 926
Coraopolis, Pennsylvania 15108
Attention: Eric D. Koval
Phone: (412) 262-1680
Facsimile: (412) 262-7430
IF TO BRYAN FUNDING:
Bryan Funding, Inc.
393 Vanadium Road
Pittsburgh, Pennsylvania 15243
Attention: Richard G. Bryan, Jr.
Phone: (412) 276-9393
Facsimile: (412) 276-9396
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Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance herewith.
13. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement is binding upon and shall inure to the benefit of
the undersigned and their respective heirs, successors and
assigns.
(c) This Agreement may be executed in multiple copies, each executed
copy to serve as an original.
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
ATTEST: As Escrow Agent
By: _________________________ By: ________________________________
(Authorized Officer) (Authorized Officer)
ATLAS RESOURCES, INC.
ATTEST: A Pennsylvania corporation
By:__________________________ By:__________________________________
Secretary Tony C. Banks, Senior Vice President and
Chief Financial Officer
ANTHEM SECURITIES, INC.
ATTEST: A Pennsylvania corporation
By:___________________________ By:___________________________________
Secretary Eric D. Koval, President
BRYAN FUNDING, INC.
ATTEST: A Pennsylvania corporation
By:___________________________ By:____________________________________
Secretary Richard G. Bryan, Jr., President
ATLAS-ENERGY FOR THE NINETIES-PUBLIC #8 LTD.
By: ATLAS RESOURCES, INC.
ATTEST: Managing General Partner
By:___________________________ By: ___________________________________
Secretary Tony C. Banks, Senior Vice President
Chief Financial Officer
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APPENDIX I TO ESCROW AGREEMENT
COMPENSATION FOR SERVICES OF ESCROW AGENT
Escrow Agent annual fee per year or any part thereof $3,000.00
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