EXHIBIT 4.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is made this ___ day of December
2004, by and between East Kansas Agri-Energy, L.L.C. a Kansas limited liability
company ("EKAE") and Home Federal Savings Bank as escrow agent (the "Escrow
Agent").
W I T N E S S E T H:
WHEREAS, EKAE proposes to offer a minimum 1,819 and a maximum of 9,091 of
its Membership Units (the "Units") at a price of $1,100 per Unit, in minimum
blocks of ten (10) Units in an offering in the States of Kansas and Missouri,
and possibly other states pursuant to state securities registration exemptions
and under the provisions of the Securities Act of 1933, as amended (the
"Offering");
WHEREAS, EKAE will file a registration statement to register the Units with
the Securities and Exchange Commission, the States of Kansas and Missouri, and
possibly other states;
WHEREAS, EKAE will allow investors in the Offering to deliver the purchase
price of the subscribed Units in installments; and
WHEREAS, EKAE 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.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the parties agree as follows:
1. ACCEPTANCE OF APPOINTMENT. Home Federal Savings Bank 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
EKAE shall not become the property of EKAE or be subject to the debts of EKAE 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.
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4. DEPOSIT OF PROCEEDS. All proceeds from sales of Units in the Offering
shall be delivered by EKAE 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 name,
address and social security number of each person 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, EKAE 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".
5. INVESTMENT OF ESCROW ACCOUNT. 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
Repurchase Agreement at Home Federal Savings Bank, to yield a variable interest
rate equal to the Federal Reserve Discount rate for the Kansas City Region minus
1/4%, variable daily as the Federal Reserve Discount rate changes. Escrow Agent
shall pledge bank investments guaranteed by the U.S. Government or its agencies
to secure the Repurchase Agreement. Any interest received by Escrow Agent with
respect to the Escrow Funds shall be paid to EKAE on the termination of the
escrow.
6. TERMINATION OF ESCROW. This Agreement and the Escrow created hereunder
shall be terminated as provided in paragraph 7 hereof or as of the date (the
"Termination Date") one year following the date upon which the Securities and
Exchange Commission authorizes the Offering (the "Offering's Effective Date").
EKAE shall notify Escrow Agent of the Offering's Effective Date within thirty
(30) days of its receipt of same from the Securities and Exchange Commission.
7. 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 EKAE. The Escrow Agent shall give
EKAE prompt written notice when the Deposited Funds total $500,000, $900,000,
$1,400,000 and $1,600,000.
B. At the time (and in the event) that: (a) the Deposited Funds shall,
during the term of this Agreement, equal $2,000,900 in subscription proceeds
(exclusive of interest) (the "Minimum Escrow Deposit"), (b) EKAE has
affirmatively elected, in writing, to terminate this Agreement, (c) the Escrow
Agent has provided the Office of the Securities Commissioner of Kansas and the
Missouri Securities Division with written notification of the occurrence of
items (a), (b), and (c) of this paragraph 7B, and (d) the Office of the
Securities Commissioner of Kansas and the Missouri Securities Division have
provided the Escrow Agent and EKAE with written consent to release the Deposited
Funds, then this Agreement shall terminate, and the Escrow Agent shall promptly
disburse the funds on deposit, including interest, to EKAE to be used in
accordance with the provisions set out in the Registration Statement (as may be
amended) which will be used in Offering the Units. EKAE 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
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Registration Statement with regard to the Escrow Account or otherwise. Upon the
making of such disbursement, the Escrow Agent shall be completely discharged and
released of any and all further responsibilities hereunder.
C. In the event the Deposited Funds do not equal or exceed the Minimum
Escrow Deposit on or before the Termination Date, the Escrow Agent shall return
to each of the purchasers of the Units in the Offering by the close of the next
business day immediately following the Termination Date or 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) subject to paragraph
10 hereof, each purchaser's portion of the total interest earned on the Escrow
Account as of the Termination Date, (c) reduced by a processing fee paid to
Escrow Agent of Twenty Dollars ($20.00) per purchaser. 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 EKAE 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 4) shall be released from such reservation.
8. AGREEMENT WITH ESCROW AGENT. To induce Escrow Agent to act hereunder,
it is agreed by EKAE that:
A. The sole duty of the Escrow Agent, other than as herein specified,
shall be to receive the Escrow Funds and hold them subject to release, in
accordance herewith, and the Escrow Agent shall be under no duty to determine
whether EKAE is complying with the requirements of this Agreement in tendering
to the Escrow Agent said proceeds of the sale of said Units. The Escrow Agent
may conclusively rely upon and shall be protected in acting upon any statement,
certificate, notice, request, consent, order or other document believed by it to
be genuine and to have been signed or presented by the proper party or parties.
The Escrow Agent shall have no duty or liability to verify any such statement,
certificate, notice, request, consent, order or other document, and its sole
responsibility shall be to act only as expressly set forth in this Agreement.
The Escrow Agent shall be under no obligation to institute or defend any action,
suit or proceeding in connection with this Agreement unless first indemnified to
its satisfaction. The Escrow Agent may consult counsel in respect of any
question arising under this Agreement and the Escrow Agent shall not be liable
for any action taken or omitted in good faith upon advice of such counsel.
B. EKAE hereby indemnifies and holds harmless the Escrow Agent from and
against any and all loss, liability, cost, damage and expense, including,
without limitation, reasonable counsel fees, which the Escrow Agent may suffer
or incur by reason of any action, claim or proceeding brought against the Escrow
Agent arising out of or relating in any way to this Agreement or any transaction
to which this Agreement relates unless such action, claim or
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proceeding is the result of the gross negligence or willful misconduct of the
Escrow Agent.
9. RESIGNATION AND REMOVAL OF ESCROW AGENT SUCCESSORS. The Escrow Agent
may resign upon thirty (30) days advance written notice to EKAE. If a successor
Escrow Agent is not appointed within the 30-day period following such notice,
Escrow Agent may petition any court of competent jurisdiction to name a
successor Escrow Agent. Any commercial banking institution or trust company with
which Escrow Agent may merge or consolidate, and any commercial banking
institution or trust company to which Escrow Agent transfers all or
substantially all of its corporate trust business shall be the successor Escrow
Agent without further act.
10. FEES AND EXPENSES OF ESCROW AGENT. In the event the Deposited Funds do
not equal or exceed the Minimum Escrow Deposit before the Termination Date the
Escrow Agent shall be entitled to a fee of Twenty Dollars ($20.00) per
purchaser, which fees shall be paid from interest on the escrow account only and
not from principal. The fee agreed upon in the event of termination of the
escrow without the required Minimum Escrow Deposit and the continued deposit of
said escrow in the Repurchase Agreement as set forth in paragraph 5 herein is
intended as full consideration for the Escrow Agent's services as contemplated
by this Agreement; PROVIDED, HOWEVER, that in the event the Escrow Agent renders
any material service not contemplated in this Agreement or there is any
assignment of interest in the subject matter of this Agreement, or any material
modification hereof; or if any material controversy arises hereunder, or the
Escrow Agent is made a party to any litigation pertaining to this Agreement, or
the subject matter hereof, then the Escrow Agent shall be reasonably compensated
for such extraordinary services and reimbursed for all costs and expenses,
including reasonable attorney's fees, occasioned by any delay, controversy,
litigation or event, and the same shall be recoverable from EKAE, but not from
the escrow account.
11. NOTICES. All notices, requests, demands, and other communications
under this Agreement 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 obtained promptly after completion of transmission, (c) on the next
day on which such deliveries are made in Rochester, Minnesota, 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 Escrow Agent:
Home Federal Savings Bank
Attention: Xxxx Xxxxxxxx
Post Office Box 6947
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0000 Xxxxx Xxxxxx Xxxxx X.X.
Xxxxxxxxx, Xxxxxxxxx 00000-0000
If to EKAE:
East Kansas Agri-Energy, L.L.C.
Attn: Xx. Xxxxxxx X. Xxxxxx, President
X.X. Xxx 000
0000/0Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
with a required copy to:
Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Schoenebaum, P.L.C.
Suite 2000, Ruan Center
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Fax: (000) 000-0000
12. GOVERNING LAW. This Agreement shall be construed, performed, and
enforced in accordance with, and governed by, the internal laws of the State of
Kansas, without giving effect to the principles of conflict of laws thereof.
13. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this
Agreement, no party hereto shall assign this Agreement or any rights or
obligations hereunder without the prior written consent to the other parties
hereto and any such attempted assignment without such prior written consent
shall be void and of no force and effect. This Agreement shall inure to the
benefit of and shall be binding upon the successors and permitted assigns of the
parties hereto.
14. SEVERABILITY. In the event that any part of this Agreement is declared
by any court or other judicial or administrative body to be null, void, or
unenforceable, said provision shall survive to the extent it is not so declared,
and all of the other provisions of this Agreement shall remain in full force and
effect.
15. FURTHER ASSURANCES. Each of the parties shall execute such documents
and other papers and take such further actions, as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby.
16. 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,
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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.
17. 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.
18. SECTION HEADINGS. The section headings in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
19. COUNTERPARTS. 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.
IN WITNESS WHEREOF, the parties hereto have hereunto affixed their
signatures as of the day and year first written above.
EKAE:
EAST KANSAS AGRI-ENERGY, L.L.C.
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Xxxxxxx X. Xxxxxx, President
ESCROW AGENT:
HOME FEDERAL SAVINGS BANK
By:
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Name:
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Title:
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