EXHIBIT 4.3
AMENDED AND RESTATED ESCROW AGREEMENT
This Amended and Restated Escrow Agreement (the "Agreement") dated as of June
30, 2005 is by and between, Siouxland Ethanol, LLC, a Nebraska limited liability
company (the "Company") and U.S. Bank National Association, a national banking
association (the "Escrow Agent"), (the "Escrow Agent" and the "Company" may also
be hereinafter referred to as the "Parties").
RECITALS
WHEREAS, the Parties previously entered into an Escrow Agreement dated
March 17, 2005 (the "Escrow Agreement") in connection with the Company's
offering of a minimum of 1,900 and a maximum of 4,600 of its Membership units
(the "Units") at a price of $10,000 per Unit, in minimum blocks of one (1) Unit
with a two (2) Unit minimum purchase requirement, in an offering in the States
of Nebraska, Iowa, South Dakota and possibly other states, made pursuant to a
federal registration under the provisions of the Securities Act of 1933, as
amended (the "Offering");;
WHEREAS, the Company has amended its federal registration statement
relating to the Offering for the purpose of amending the minimum number of Units
being offered from a minimum of 1,900 Units to a minimum of 1,500 Units;
WHEREAS, the Parties desire to amend and restate the Escrow Agreement to
reflect the revised minimum number of Units being offered in the Offering;
WHEREAS, the Company will file a registration statement (as may be
amended) (the "Registration Statement") to register the Units with the
Securities and Exchange Commission, the States of Nebraska, Iowa and South
Dakota, and possibly other states;
WHEREAS, the Company will allow investors in the Offering to deliver the
purchase price of the subscribed Units in installments;
WHEREAS, the Company desires to comply with the requirements of the
Securities Act of 1933 and of the various state regulatory statutes and
regulations, and desires to protect the investors in the Offering by providing,
under the terms and conditions herein set forth, for the return to subscribers
of the money which they may pay on account of purchases of Units in the Offering
if the Minimum Escrow Deposit (hereinafter defined) is not deposited with the
Escrow Agent;
WHEREAS, the Parties also desire to amend and restated the Escrow
Agreement for the purpose of requiring an affidavit from the Escrow Agent to be
delivered to each state securities department through which the Company has
registered its securities for sale, prior to the release of
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funds from escrow, in accordance with the policies and procedures of the state
securities departments; and
NOW, THEREFORE, in consideration of the premises the Parties agree as
follows:
1. ACCEPTANCE OF APPOINTMENT: U.S. Bank National Association hereby agrees to
act as escrow agent under this Agreement. The Escrow Agent shall have no duty to
enforce any provision hereof requiring performance by any other party hereunder.
2. ESTABLISHMENT OF ESCROW ACCOUNT: An escrow account (the "Escrow Account") is
hereby established with the Escrow Agent for the benefit of the investors in the
Offering. Except as specifically provided in this Agreement, the Escrow Account
shall be created and maintained subject to the customary rules and regulations
of the Escrow Agent pertaining to such accounts.
3. OWNERSHIP OF ESCROW ACCOUNT: Until such time as the funds deposited in the
Escrow Account (the "Deposited Funds") shall equal the Minimum Escrow Deposit
(as hereinafter defined), all funds deposited in the Escrow Account by the
Company shall not become the property of the Company or be subject to the debts
of the Company or any other person but shall be held by the Escrow Agent solely
for the benefit of the investors who have purchased Units in the Offering.
4. ESCROW FEES: The Company hereby agrees to pay the Escrow Agent an advance
payment for ordinary services rendered hereunder in the amount of $2,000.00
annually (the "Escrow Fee").
5. DEPOSIT OF PROCEEDS: All proceeds from sales of Units in the Offering shall
be delivered by the Company to the Escrow Agent, within forty-eight hours of the
receipt thereof from investors, endorsed (if appropriate) to the order of the
Escrow Agent, together with an appropriate written statement setting forth the
name, address and social security number/taxpayer identification number of each
person or entity purchasing Units, the number of Units purchased, and the amount
paid by each such purchaser. Any such proceeds deposited with the Escrow Agent
in the form of uncollected checks shall be promptly presented by the Escrow
Agent for collection through customary banking and clearing house facilities. As
the proceeds of each sale are deposited with the Escrow Agent, the Company shall
reserve the number of Units confirmed to the purchaser thereof in connection
with such sale. All such deposited proceeds are referred to herein as the
"Escrow Funds."
6. INVESTMENT OF ESCROW FUNDS: The Escrow Funds shall be credited by Escrow
Agent and recorded in the Escrow Account. The Escrow Agent shall be permitted,
and is hereby authorized to deposit transfer, hold and invest all funds received
under this Agreement, including principal and interest, in a First American
Government Obligation Money Market Fund Class Y. Any interest received by Escrow
Agent with respect to the Escrow Funds shall be paid to the Company on the
termination of the escrow.
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7. TERMINATION OF ESCROW: This Agreement and the Escrow created hereunder shall
be terminated as provided in paragraph 8 hereof or as of the date in calendar
year 2006 (the "Termination Date") one year and one day following the date in
calendar year 2005 upon which the Securities and Exchange Commission authorizes
the Offering (the "Offering's Effective Date"), provided; however, that if prior
to Termination Date, the Company has sold membership units equal to the minimum
offering amount and the Company has advised the purchasers of those membership
units to remit to the Escrow Agent the balance of the purchase price, then the
Escrow may continue beyond the Termination Date until all Funds have been paid
and the conditions for releasing the Funds have been satisfied. In no event
shall this date be later than three (3) months following the Termination Date.
The Company shall notify Escrow Agent of the Offering's Effective Date within
thirty (30) days of the receipt of notice of the Offering's Effective Date from
the Securities and Exchange Commission.
8. DISPOSITION OF ESCROW FUNDS: The Escrow Agent shall have the following duties
and obligations under this Agreement:
A. The Escrow Agent shall send a written notice acknowledging the receipt
of the Deposited Funds every seven days to the Company.
B. The Escrow Agent shall give the Company prompt written notice when the
Deposited Funds equal $1,500,000 (exclusive of interest). Following receipt of
such notice, the Company will advise the purchasers of Units to remit to the
Escrow Agent the balance of the purchase price within twenty (20) days.
Thereafter, Escrow Agent shall give the Company written notice acknowledging the
receipt of the Deposited Funds every seven days. The Escrow Agent shall give the
Company prompt written notice when the Deposited Funds total $1,500,000
(exclusive of interest).
C. At the time (and in the event) that: (a) the Deposited Funds shall,
during the term of this Agreement, equal $1,500,000 in subscription proceeds
(exclusive of interest) (the "Minimum Escrow Deposit"); (b) the Escrow Agent
shall have received written confirmation from the Company that the Company has
obtained a written debt financing commitment for debt financing ranging from a
minimum of $34,500,000 to a maximum of $65,500,000; (c) the Company has
affirmatively elected in writing to terminate this Agreement; (d) the Escrow
Agent shall have provided to each state securities department in which the
Company has registered its securities for sale an affidavit stating that the
foregoing requirements (a), (b) and (c) of this subsection 8C have been
satisfied; and (e) the state securities commissioners have consented to release
of the funds on deposit, then this Agreement shall terminate, and the Escrow
Agent shall promptly disburse the funds on deposit, including interest, to the
Company to be used in accordance with the provisions set out in the Registration
Statement. The Company will deliver a copy of the Registration Statement to the
Escrow Agent upon execution of this Agreement. The Escrow Agent will have no
responsibility to examine the Registration Statement with regard to the Escrow
Account or
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otherwise. Upon the making of such disbursement, the Escrow Agent shall be
completely discharged and released of any and all further responsibilities
hereunder.
D. In the event the Deposited Funds do not equal or exceed the Minimum
Escrow Deposit on or before the Termination Date or if the Company has not
received a written debt financing commitment as described herein on or before
the Termination Date, the Escrow Agent shall return to each of the purchasers of
the Units in the Offering, as promptly as possible after such Termination Date
and on the basis of its records pertaining to the Escrow Account: (a) the sum
which each purchaser initially paid in on account of purchases of the Units in
the Offering and (b) each purchaser's portion of the total interest earned on
the Escrow Account as of the Termination Date, (c) reduced by the transaction
fees provided in paragraph 10 hereof. Computation of any purchaser's share of
the net interest earned will be a weighted average based on the proportion of
such purchaser's deposit in the Escrow Account from the Offering to all such
purchasers' deposits held by the Escrow Agent and upon the length of time in
days such deposit was held in the Escrow Account as compared to all such
deposits. All computations with respect to each purchaser's allocable share of
net interest shall be made by the Escrow Agent, which determinations shall be
final and conclusive. Any amount paid or payable to a purchaser pursuant to this
paragraph shall be deemed to be the property of such purchaser, free and clear
of any and all claims of the Company or its agents or creditors; and the
respective purchases of the Units made and entered into in the Offering shall
thereupon be deemed, ipso facto, to be cancelled without any further liability
of the purchasers or any of them to pay for the Units purchased. At such time as
the Escrow Agent shall have made all the payments called for in this paragraph,
the Escrow Agent shall be completely discharged and released of any and all
further responsibilities hereunder, and the Units reserved (as provided in
paragraph 5) shall be released from such reservation, except that Escrow Agent
shall be required to prepare and issue a single IRS Form 1099 to each investor
in the event that funds are returned to investors.
9. LIABILITY OF ESCROW AGENT: In performing any duties under the Escrow
Agreement, the Escrow Agent shall not be liable to the Company, any
subscriber/purchaser or any Party for damages, losses, or expenses, except for
gross negligence or willful misconduct on the part of the Escrow Agent. The
Escrow Agent shall not incur any such liability for (I) any act or failure to
act made or omitted in good faith, or (II) any action taken or omitted in
reliance upon any instrument, including any written statement or affidavit
provided for in this Agreement that the Escrow Agent shall in good faith believe
to be genuine, nor will the Escrow Agent be liable or responsible for forgeries,
fraud, impersonations, or determining the scope of any representative's
authority. In addition, the Escrow Agent may consult with legal counsel in
connection with the Escrow Agent's duties under this Agreement and shall be
fully protected in any action taken, suffered, or permitted by it in good faith
in accordance with the advice of counsel. The Escrow Agent is not responsible
for determining and verifying the authority of any person acting or purporting
to act on behalf of any party to this Agreement.
10. FEES AND EXPENSES: In the event the Deposited Funds do not equal or exceed
the Minimum Escrow Deposit before the Termination Date or the Company does not
receive a
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written debt financing commitment as described herein before the Termination
Date, the Escrow Agent shall be entitled to a fee of $10.00 per purchaser, which
fees shall be paid from the interest on the Escrow Account only and not from
principal. In the event the Escrow Agent renders any service not provided for in
this Agreement, or if the Company requests a substantial modification of its
terms, or if any controversy arises, or if the Escrow Agent is made a party to,
or intervenes in, any litigation pertaining to this escrow or its subject
matter, the Escrow Agent shall be reasonably compensated for such extraordinary
services and reimbursed for all costs, attorney's fees, including allocated
costs of in-house counsel, and expenses occasioned by such default, delay,
controversy or litigation and the Escrow Agent shall have the right to retain
all documents and/or other things of value at any time held by the Escrow Agent
in this escrow until such compensation, fees, costs and expenses are paid. The
Company promises to pay these sums upon demand. Unless otherwise provided, the
Company will pay all of the Escrow Agent's usual charges and the Escrow Agent
may deduct such sums from the funds deposited.
11. CONTROVERSIES: If any controversy arises between the Parties to this
Agreement, or with any other Party, concerning the subject matter of this
Agreement, its terms or conditions, the Escrow Agent will not be required to
determine the controversy or to take any action regarding it. The Escrow Agent
may hold all documents and funds and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in the
Escrow Agent's discretion, the Escrow Agent may require, despite what may be set
forth elsewhere in this Agreement. In such event, the Escrow Agent will not be
liable for interest or damage. Furthermore, the Escrow Agent may at its option
file an action of interpleader requiring the Parties to answer and litigate any
claims and rights among themselves. The Escrow Agent is authorized to deposit
with the clerk of the court all documents and funds held in escrow, except all
costs, expenses, charges and reasonable attorney fees incurred by the Escrow
Agent due to the interpleader action and which the Company agrees to pay. Upon
initiating such action, the Escrow Agent shall be fully released and discharged
of and from all obligations and liability imposed by the terms of this
Agreement.
12. INDEMNIFICATION OF ESCROW AGENT: The Company and its successors and assigns
agree jointly and severally to indemnify and hold the Escrow Agent harmless
against any and all losses, claims, damages, liabilities, and expenses,
including reasonable costs of investigation, counsel fees, including allocated
costs of in-house counsel and disbursements that may be imposed on the Escrow
Agent or incurred by the Escrow Agent in connection with the performance of its
duties under this Agreement, including but not limited to any litigation arising
from this Agreement or involving its subject matter. The Escrow Agent shall have
a first lien on the property and papers held under this Agreement for such
compensation and expenses.
13. RESIGNATION OF ESCROW AGENT: The Escrow Agent may resign at any time upon
giving at least (30) days written notice to the Company provided, however, that
no such resignation shall become effective until the appointment of a successor
escrow agent which shall be accomplished as follows: The Company shall use its
best efforts to obtain a successor escrow agent within thirty (30) days after
receiving such notice. If the Company fails to agree upon a
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successor escrow agent within such time, the Escrow Agent shall have the right
to appoint a successor escrow agent authorized to do business in the state of
Nebraska. The successor escrow agent shall execute and deliver an instrument
accepting such appointment and it shall without further acts, be vested with all
the estates, properties, rights, powers, and duties of the predecessor escrow
agent as if originally named as escrow agent. The Escrow Agent shall thereupon
be discharged from any further duties and liability under this Agreement.
14. AUTOMATIC SUCCESSION: Any company into which the Escrow Agent may be merged
or with which it may be consolidated, or any company to whom the Escrow Agent
may transfer a substantial amount of its global escrow business, shall be the
Successor to the Agent without the execution or filing of any paper or any
further act on the part of any of the Parties, anything herein to the contrary
notwithstanding.
15. MISCELLANEOUS:
(a) GOVERNING LAWS: This Agreement is to be construed and interpreted
according to Minnesota law.
(b) COUNTERPART: This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The exchange of copies of
this Agreement and of signature pages by facsimile transmission shall constitute
effective execution and delivery of this Agreement as to the parties and may be
used in lieu of the original Agreement for all purposes. Signatures of the
parties transmitted by facsimile shall be deemed to be their original signatures
for all purposes.
(c) NOTICES: All instructions, notices and demands herein provided for
shall be in writing and shall be deemed to have been duly given (a) on the date
of service if served personally on the party to whom notice is to be given; (b)
on the day of transmission if sent by facsimile transmission to the facsimile
number given below and telephonic confirmation of receipt is promptly obtained
after completion of transmission; (c) on the next day on which such deliveries
are made in Jackson, Nebraska, when delivery is to Federal Express or similar
overnight courier or the Express Mail service maintained by the United States
Postal Service; or (d) on the fifth day after mailing if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid and properly addressed, return receipt requested, to the party
as follows:
If to the Company: If to the Escrow Agent:
Siouxland Ethanol, LLC U.S. Bank National Association
Attn: Xxx Xxxxx, President Attn: Xxxxxx X. Xxxxxx
000 Xxxx Xxx Xxxxxx 00 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000 Xx. Xxxx, XX 00000
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Fax: (000) 000-0000 Fax: (000) 000-0000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
With a required copy to:
Brown, Winick, Graves, Gross, Xxxxxxxxxxx
and Xxxxxxxxxxx, P.L.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
Telephone: (000) 000-0000
(d) AMENDMENTS: This Agreement may be amended or modified and any of the
terms, covenants, representations, warranties or conditions hereof may be
waived, only by a written instrument executed by the parties hereto, or in the
case of a waiver, by the party waiving compliance. Any waiver by any party of
any condition or of the breach of any provision, term, covenant, representation
or warranty contained in the Agreement, in any one or more instances, shall not
be deemed to be nor construed as further or continuing waiver of any such
conditions or of the breach of any other provision, term, covenant,
representation or warranty of this Agreement.
(e) ENTIRE AGREEMENT: This Agreement contains the entire understanding
among the parties hereto with respect to the escrow contemplated hereby and
supersedes and replaces all prior and contemporaneous agreements and
understandings, oral or written, with regard to such escrow.
(f) NON-ENDORSEMENT: The Company represents and agrees that it has not
made nor will it in the future make any representation that states or implies
that the Escrow Agent has endorsed, recommended or guaranteed the purchase,
value, or repayment of the Securities offered for sale by the Company. The
Company further agrees that it will insert in any prospectus, offering circular,
advertisement, subscription agreement or other document made available to
prospective purchasers of the Securities the following statement in bold face
type: " U.S. Bank National Association is acting only as an escrow agent in
connection with the Offering described herein, and has not endorsed, recommended
or guaranteed the purchase, value or repayment of such Securities", and will
furnish to the Escrow Agent a copy of each such prospectus, offering circular,
advertisement, subscription agreement or other document at least 5 business days
prior to its distribution to prospective Subscribers.
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THE UNDERSIGNED ACKNOWLEDGES THAT U.S. BANK NATIONAL ASSOCIATION IS ACTING ONLY
AS AN ESCROW AGENT IN CONNECTION WITH THE OFFERING OF THE SECURITIES DESCRIBED
HEREIN, AND HAS NOT ENDORSED, RECOMMENDED OR GUARANTEED THE PURCHASE, VALUE OR
REPAYMENT OF SUCH SECURITIES.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
signatures as of the day and year first above written.
The Company Escrow Agent
Siouxland Ethanol, LLC U.S. Bank National Association
By: By:
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Xxx Xxxxx
Its: President Its: Vice President
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