EXHIBIT 4.3
ESCROW AGREEMENT
This Escrow Agreement is made this 10th day of July, 2001, by and between
Husker Ag Processing LLC, a Nebraska limited liability company ("Husker Ag"),
and Midwest Bank N.A. d/b/a Plainview National Bank, a Nebraska chartered
banking corporation, with an office located in Plainview, Nebraska ("Escrow
Agent").
R E C I T A L S :
WHEREAS, Husker Ag was formed for the purpose of constructing and operating
an ethanol plant near Plainview, in Xxxxxx County, Nebraska;
WHEREAS, Husker Ag is, or will be, conducting a public offering of its
membership units and pursuant to the terms and conditions of its prospectus,
Husker Ag has committed to escrow the proceeds of the membership units sold to
investors;
WHEREAS, Husker Ag wishes to establish an escrow account to hold the
proceeds of subscriptions for the membership units for a minimum of 13,000
membership units and a maximum of 15,000 membership units, until written
instructions from Husker Ag have been received;
WHEREAS, Midwest Bank N.A. d/b/a Plainview National Bank is willing to hold
the escrow account and serve as Escrow Agent, in accordance with the terms and
conditions provided in this Escrow Agreement.
NOW, THEREFORE, the parties agree as follows:
1. ESTABLISHMENT OF ESCROW ACCOUNT. Husker Ag shall open and maintain an
escrow account with Escrow Agent which shall be an interest bearing account, and
shall earn interest at the rate offered from time to time by Escrow Agent (the
"Escrow Account").
2. ESCROW ACCOUNT AUTHORIZATIONS. Only officers of the Escrow Agent shall
be entitled to withdraw funds from the Escrow Account as provided herein. Husker
Ag shall deliver to Escrow Agent for deposit in the Escrow Account all funds,
checks, bank money orders, etc., received by Husker Ag from the sale of
membership units. All checks, bank money orders, etc. shall be made payable to
"Midwest Bank N.A. as Escrow Agent for Husker Ag Processing, LLC". Husker Ag
shall deliver to Escrow Agent with each investor's funds, the investor's name,
address, amount of investment and date of deposit. Escrow Agent shall maintain
this information in its records for the purpose of returning to each investor
the investor's funds in the event that the minimum equity offering of $13
million is not subscribed by December 1, 2001, as provided in Paragraph 4 of
this Agreement. All proceeds so deposited shall remain the property of the
subscriber and shall not be subject to any liens or charges by the Escrow Agent
or judgments or creditors' claims against Husker Ag unless and until released to
Husker Ag as hereinafter provided. The pro rata amount of interest to be
allocated to each subscriber in the event the funds are returned to the
subscribers will be based on the date of the deposit of the respective
subscriber's funds into the Escrow Account by Husker Ag.
3. INVESTMENT OF DEPOSITED FUNDS. The Escrow Agent shall invest all funds
received and deposited in the Escrow Account in United States government or
government agency securities, or certificates of deposit issued by banks with a
net worth of at least $13,000,000. Any investment of deposited funds must be
made in recognition that offering proceeds must be able to be transmitted
promptly to Husker Ag or the investors if the stated
conditions are met. The following securities are not permissible as investments:
(1) money market funds; (2) corporate equity or debt securities; (3) repurchase
agreements; (4) bankers acceptances; (5) commercial paper; and (6) municipal
securities.
4. WITHDRAWALS FROM ESCROW ACCOUNT. Husker Ag shall not withdraw funds from
the Escrow Account for use by Husker Ag prior to the time that the following
conditions are met (the "Release Conditions"): (a) Husker Ag closes the offering
and has obtained signed Subscription Agreements for sales of membership units
totaling at least $13,000,000; (b) Husker Ag has obtained a commitment letter
for financing construction of the ethanol plant; (c) there shall not be any
legal orders prohibiting the offering or release of funds from escrow, or orders
from the United States Securities and Exchange Commission revoking the
effectiveness of the Registration Statement related to the offering, and (d) the
Escrow Agent has contacted the Securities Bureau of the Nebraska Department of
Banking and Finance (the "Bureau") and the Bureau has indicated that the funds
may be released from the Escrow Account.
5. TERMINATION OF ESCROW ACCOUNT. At such time as Husker Ag has met the
Release Conditions, which shall be completed by December 1, 2001, Husker Ag's
Board of Directors shall adopt a resolution instructing the Escrow Agent to
terminate the Escrow Account and transfer all funds, including interest, to
other accounts maintained by Husker Ag. In the event that Husker Ag has not met
the Release Conditions by December 1, 2001, then Husker Ag shall instruct the
Escrow Agent to return to the investors all funds from the sale of membership
units held in the Escrow Account with interest. Husker Ag may, in its sole
discretion, abandon the sale of the membership units at any time prior to the
termination of the offering period. Upon the receipt of written instructions
from the Chairman of the Board or President of the Company that the offering is
being abandoned, the Escrow Agent shall refund the monies on deposit to the
subscribers thereof as provided in this Paragraph 5.
6. ESCROW AGENT'S RELIANCE. Escrow Agent shall be under no duty or
responsibility to make any inquiry or investigation as to the accuracy,
adequacy, and shall be entitled to assume conclusively, correctness and
completeness of any and all information given in any affidavit, statement, or
other paper received by Escrow Agent under this Escrow Agreement, including, but
not limited to the prospectus. Escrow Agent shall be entitled to rely upon any
notice, request, affidavit, approval, statement, consent or other paper believed
by Escrow Agent to be genuine and to have been signed by the proper party or
parties.
7. HOLD HARMLESS. Escrow Agent shall not be liable to Husker Ag and/or any
investor for any error of judgment, or for any act done or step taken or omitted
by it in good faith, or for any mistake of fact or law, or for anything which it
may do or refrain from doing in connection herewith, excepting only its own
intentional and deliberate misconduct.
8. INDEMNIFICATION. Husker Ag agrees to defend, indemnify and hold Escrow
Agent harmless from and against any and all claims, actions, judgments, losses,
liabilities, obligations, damages, charges, costs, and expenses of any nature
whatsoever, including, without limitation, reasonable attorneys' fees and
expenses incurred by Escrow Agent (including such fees and expenses incurred in
any litigation by or against any of the parties to this Escrow Agreement under
this Paragraph 8, arising directly or indirectly from, out of or incident to
this Escrow Agreement, excepting only those accruing as a result of Escrow
Agent's own intentional and deliberate misconduct.
9. ESCROW AGENT'S FEES. Escrow Agent shall be entitled to charge Husker Ag
a fee for providing services hereunder in accordance with the terms of Exhibit A
attached hereto and incorporated herein by reference.
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10. TIME. Time is of the essence of this Agreement.
11. APPLICABLE LAW. The interpretation and enforcement of this Agreement
shall be governed by the laws of the State of Nebraska.
12. BINDING EFFECT. This Agreement shall be binding upon the parties and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto signed this Agreement.
HUSKER AG PROCESSING LLC, MIDWEST BANK, N.A. d/b/a PLAINVIEW
a Nebraska limited liability company NATIONAL BANK, a Nebraska chartered
banking corporation
By: /s/ XXXX XXXXXXX By: /s/ XXXXX XXXXXXX
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Its: Chairman of the Board Its: President
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EXHIBIT A
FEE AGREEMENT
Regardless of whether the Release Conditions are met by December 1, 2001,
the Escrow Agent shall be paid a fee of $500 plus the aggregate of the Daily
Escrow Charges (as defined below) for each day funds are held in the Escrow
Account. The "Daily Escrow Charge" shall equal the balance of the funds held in
the Escrow Account on each day multiplied by .005 and then divided by 365.
