1
EXHIBIT 10.2
ESCROW AGREEMENT
This Escrow Agreement (herein so called), dated March 18, 1998, made by and
between Xxxxxxxxx Development Corporation, a Delaware corporation ("MD"), and
NationsBank of Texas, N.A. ("Escrow Agent");
WHEREAS, MD will serve as the Managing Partner of Xxxxxxxxx Energy Partners
98-A L.P. (the "Partnership") in which general and limited partnership interests
(collectively, the "Interests") are to be offered and sold in an offering
pursuant to the Securities Act of 1933 as amended;
WHEREAS, the Partnership will participate with MD and Xxxxxxxxx Oil Company
("MOC"), in a program for the purpose of developing oil and gas prospects
through drilling and producing oil and gas thereon (the "Program");
WHEREAS, the Form S-1 Registration Statement (the "Statement") dated
February 24, 1998 relating to the interests to be sold provides that
subscription proceeds for such Interests ("Subscription Proceeds") from
investors who are initially approved by MD will be deposited in an escrow
account with Escrow Agent and may not be contributed to the capital of the
Partnership unless at the end of the subscription period the aggregate
Subscription Proceeds of over $1,000,000 have been received and accepted for the
Partnership and certain other conditions have been met;
WHEREAS, the Statement relating to the Interests to be sold provides that
investors desiring to purchase Interests in the Partnership shall provide MD
with certain information concerning their suitability for investment in the
Partnership by completing the Subscription Agreement (the "Subscription
Agreement"); and
WHEREAS, MD desires that Escrow Agent provide procedures for the deposit
and safekeeping of the Subscription Proceeds and delivery of the Subscription
Agreement to MD subject to the terms of this Escrow Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein set forth,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties thereto covenant and agree as
follows:
1. Escrow Period. The term of this Escrow Agreement shall begin on the
effective date of the Statement and shall terminate in accordance with Section 7
below.
2. Escrow Account and Deposit of Escrow Funds. For the Partnership, Escrow
Agent shall open a special trust account (the "Account") at NationsBank of
Texas, N.A. for and in the name of NationsBank of Texas, N.A. as Escrow Agent
under this Escrow Agreement. Following receipt by Escrow Agent of the
Subscription Agreement and Subscription Proceeds for the purchase of Interests
in the Partnership, the Subscription Agreement shall be promptly delivered to MD
and the instruments representing the Subscription Proceeds shall be deposited
and maintained by Escrow Agent in accordance with the terms of this Escrow
Agreement. The Subscription Proceeds so deposited, together with any and all
interest earned thereon, are referred to as the "Escrow Funds."
2
3. Duties of Escrow Agent. The Escrow Agent shall have the following
general duties (a) to promptly deliver the Subscription Agreement to MD; (b) to
deposit and safely maintain the Escrow Funds in the Account, guarding at all
times against the commingling thereof with any funds of MD or its affiliates
during the term of this Escrow Agreement; (c) at the direction of MD, to invest
the Escrow Funds in investments that are permissible under rule 15c2-4
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, including, without limitation (if
permissible), time deposits, short-term bank certificates of deposit, short-term
governmental obligations and bank money market accounts to be held by Escrow
Agent; (d) to prepare and maintain true and complete records with respect to the
Escrow Funds, including the name of each subscriber and the portion of the
Escrow Funds from time to time attributable to him; and (e) to disburse the
Escrow Funds in accordance with the terms of this Escrow Agreement.
4. Payment of Escrow Funds. The Escrow Funds, or portions thereof, shall be
paid out by Escrow Agent in accordance with written instructions from MD as
follows: (a) to each subscriber, if any, whose subscription has been rejected by
MD within five business days after the clearance of those Escrow Funds, that
portion of the Escrow Funds attributable to that subscriber as shown on Escrow
Agent's records, including any interest earned thereon; (b) to each subscriber,
if any, whose Subscription Proceeds have not been contributed to the Partnership
prior to the termination of the offering period for Interests in the
Partnership, and any subscriber who may be rejected as an Investor Partner
subsequent to the period described in Subsection (a) of this Section 4, that
portion of the Escrow Funds attributable to the rejected subscriber as shown on
Escrow Agent's records together with any interest attributable thereto (as
calculated by MD); (c) to each subscriber, if any, whose subscription has been
reduced, that portion of the Escrow Funds equal to the amount of such reduction
attributable thereto as shown on Escrow Agent's records; (d) to MD for
distribution to each subscriber within 60 days of closing of the Partnership,
that portion of accrued and unpaid interest on the Escrow Funds relating to the
Partnership, which Escrow Funds were deposited no fewer than five business days
prior to the termination of the offering of Interests in the Partnership,
attributable to that subscriber as shown on Escrow Agent's records; and (e) to
an account for the Partnership all remaining Escrow Funds attributable to the
Partnership. Notwithstanding the foregoing, no portion of the Escrow Funds may
be paid to the Partnership unless the Escrow Agent shall have the excess of
$1,000,000 in Escrow Funds with respect to the Partnership and MD informs the
Escrow Agent in writing that aggregate Subscription Proceeds for Interests in
the Partnership of $1,000,000 or more have been received and cleared from
subscribers that MD initially approves as suitable to be Investor Partners (as
such term is defined in the Statement) in the Partnership. Notwithstanding the
provisions of this Section 4, or any other provision of this Escrow Agreement,
after the Escrow Agent shall have in excess of $1,000,000 in Escrow Funds with
respect to the Partnership and MD informs the Escrow Agent in writing that
aggregate Subscription Proceeds for Interests in the Partnership of $1,000,000
or more have been received and cleared by Escrow Agent, upon the written request
of MD, Escrow Agent shall disburse all or any portion of the Escrow Funds to an
account established by MD for the Partnership.
Notwithstanding anything contained herein to the contrary, it is expressly
contemplated by MD and the Escrow Agent that MD shall be solely responsible for
all computations and disbursements of interest and the preparation and mailing
of all forms with respect thereto, including without limitation Form 1099 as is
contemplated in Subsections (b), (c), and (d) of this Section 4. The Escrow
Agent shall deliver to MD from time to time such records and information which
are
2
3
available to Escrow Agent and are necessary to make the computations of interest
contemplated herein.
5. Expenses and Compensation. All expenses incurred by Escrow Agent in
connection with this Escrow Agreement and the compensation of Escrow Agent set
forth in Exhibit 1 hereto shall be charged to MD and MD agrees to pay promptly
all such expenses and compensation following receipt of an invoice therefor.
6. Escrow Agent. MD and Escrow Agent agree that the following provisions
shall control with respect to the rights, duties, liabilities, privileges and
immunities of Escrow Agent: (a) Escrow Agent is not a party to, and is not bound
by, any agreement or other document out of which this Escrow Agreement may rise;
(b) Escrow Agent is not responsible or liable in any manner whatsoever for the
sufficiency, correctness, genuineness, or validity of the subject matter of this
Escrow Agreement; (c) Escrow Agent shall be protected in acting upon any written
notice, request, waiver, consent, certificate, receipt, authorization,
agreement, power of attorney, or other instrument that Escrow Agent in good
faith believes to be genuine and what it purports to be.
As between MD and the Escrow Agent, MD agrees to indemnify the Escrow Agent
and its officers, directors, employees, agents and attorneys (collectively, the
"Indemnified Parties") against and hold the Indemnified Parties harmless from
any and all losses, costs, damages, expenses, claims, and attorney's fees
suffered or incurred by the Indemnified Parties as a result of, in connection
with or arising from or out of the acts of omissions of any Indemnified Party in
performance of or pursuant to this Escrow Agreement, except such acts or
omissions as may result from such Indemnified Party's willful misconduct or
gross negligence.
All protections and indemnitees benefitting the Escrow Agent (and any other
Indemnified Party) are cumulative of any other rights it (or they) may have by
law or otherwise, and shall survive the termination of the Escrow Agreement or
the resignation or removal of the Escrow Agent.
7. Termination. This Escrow Agreement shall terminate upon the first to
occur of any one of the following: December 31, 1998; (a) the full disbursement
of the Escrow Funds with respect to the final Partnership; (b) the written
agreement of termination by MD and Escrow Agent; or (c) the dissolution,
insolvency, or involuntary bankruptcy of MD or an affiliate thereof.
8. Miscellaneous.
(a) All notices, demands, requests, and other communications required
or permitted hereunder shall be in writing and shall be deemed to be delivered
when actually received at the address of the addressee set forth below its name
on the signature page of this Escrow Agreement. The rights and obligations under
this Escrow Agreement may not be assigned or delegated by any party hereto
without the prior written consent of the other party hereto. This Escrow
Agreement constitutes the entire agreement and supersedes all other prior
agreements and understandings, whether oral or written, between the parties
hereto with respect to the subject matter hereof;
(b) The Escrow Agent may consult with and rely on the advice of counsel
satisfactory to it at any time in respect to any question relating to its duties
and responsibilities
3
4
hereunder or otherwise in connection herewith, and shall not be liable for any
action taken suffered, or omitted by the Escrow Agent in good faith upon the
advice of such counsel, and shall be fully protected in doing so, and shall be
fully compensated for all costs and expenses in doing so. The Escrow Agent may
act through its officers, employees, agents and attorneys;
(c) Any check included in the Escrow Funds shall be collected by the
Escrow Agent and the proceeds held as part of the Escrow Funds. No monies shall
be disbursed by the Escrow Agent until it has collected funds. The Escrow Agent
may pay out monies held in escrow by its check. The Escrow Agent shall not be
obligated to take any legal action to enforce payment of any item deposited with
it in escrow;
(d) The Escrow Agent shall not be liable for any action that it may do or
refrain from doing in connection herewith, except on account of its own gross
negligence or willful misconduct;
(e) The Escrow Agent's only duty, liability and responsibility shall be
to deliver the Subscription Agreements to MD and to hold the property as herein
directed and to pay and deliver the same to such persons and under such
conditions as are herein set forth;
(f) Should any controversy arise between any party with respect to this
agreement, the Escrow Agreement shall have the right to institute a xxxx of
interpleader in any court of competent jurisdiction to determine the rights of
the parties. Should a xxxx of interpleader be instituted, or should the Escrow
Agent become involved in litigation in any manner whatsoever on account of this
Agreement or the escrow deposit made hereunder, the obligor, its successors and
assigns shall pay the Escrow Agent reasonable attorneys' fees incurred by the
Escrow Agent and shall indemnify and save the Escrow Agent harmless from any
other disbursements, expenses, losses, costs and damages in connection with and
resulting from such litigation, except such amounts as shall have been caused by
the Escrow Agent's gross negligence or willful misconduct;
(g) The Escrow Agent shall be obligated to perform only such duties as
are expressly set forth herein, and no implied covenants or obligations shall be
inferred from this Agreement;
(h) The Escrow Agent, or any successor to it hereafter appointed, may at
any time resign by giving prior written notice in writing to the other parties
hereto and shall be discharged from its duties hereunder upon the appointment of
a successor Escrow Agent as hereinafter provided. In the event of any such
resignation, a successor Escrow Agent shall be appointed by the written consent
of the parties hereto. In the event that the parties hereto fail to appoint a
successor Escrow Agent within 30 days of the Escrow Agent's resignation, the
Escrow Agent shall have the right to petition a court of competent jurisdiction
to appoint a successor Escrow Agent. Any successor Escrow Agent shall deliver to
the parties hereto a written instrument accepting the appointment hereunder, and
thereupon it shall succeed to all the rights and duties of the Escrow Agent
hereunder and shall be entitled to receive all of the Escrow Funds then held by
the predecessor Escrow Agent hereunder;
(i) THIS ESCROW AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT
4
5
THAT THE PORTIONS OF THE TEXAS TRUST CODE, SECTION 111.001, ET SEQ. OF THE
PROPERTY CODE, V.A.T.S. CONCERNING FIDUCIARY DUTIES AND LIABILITIES OF TRUSTEES
SHALL NOT APPLY TO THIS AGREEMENT. THE PARTIES EXPRESSLY WAIVE SUCH DUTIES AND
LIABILITIES, IT BEING THEIR INTENT TO CREATE SOLELY AN AGENCY RELATIONSHIP AND
HOLD ESCROW AGENT LIABLE ONLY IN THE EVENT OF ITS GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT IN ORDER TO OBTAIN THE LOWER FEE SCHEDULE RATES AS SPECIFICALLY
NEGOTIATED WITH ESCROW AGENT. ANY LITIGATION CONCERNING THE SUBJECT MATTER OF
THIS AGREEMENT SHALL BE EXCLUSIVELY PROSECUTED IN THE COURTS OF DALLAS COUNTY,
TEXAS, AND ALL PARTIES CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THOSE
COURTS.
IN WITNESS WHEREOF, the undersigned parties have caused this Escrow
Agreement to be signed and attested to by its duly authorized officers, all as
of the date first written above.
ESCROW AGENT:
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxx X. Xxxxxx
----------------------------------------
Senior Vice President
Address: Attn: NationsBank Trust
0000 Xxxxxx Xxxx
Xxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
XXXXXXXXX DEVELOPMENT CORPORATION
By: /s/ Xxxx Xxx Xxxxxxx
----------------------------------------
Xxxx Xxx Xxxxxxx, Treasurer
Address: 0000 Xxxxx Xxxxxxxx
Xxxxx, Xxxxx 00000
Fax No.: (000) 000-0000
5
