AMENDED AND RESTATED ESCROW AGREEMENT
Exhibit 4.3
AMENDED AND RESTATED
ESCROW AGREEMENT
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this “Agreement”) is made this 19th day of
September, 2006, by and between the One Earth Energy, LLC, an Illinois limited liability
company (the “Company”) and First Busey Trust as escrow agent (the “Escrow Agent”).
WHEREAS, the Company proposes to offer certain of its Membership Units (the “Units”) at a
price of Five Thousand Dollars ($5,000) per Unit, with a minimum purchase of Five (5) Units, in an
offering (the “Offering”) conducted pursuant to a registration statement (the “Registration
Statement”) filed or to be filed with the Securities and Exchange Commission and various states,
including, without limitation, the States of Illinois and Indiana, and pursuant to exemptions in
other states;
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A. The Escrow Agent shall send to the Company every seven (7) days a written itemized
notice acknowledging the receipt and amount of the Escrow Funds.
B. The Escrow Agent shall give the Company prompt written notice when the Escrow Funds,
exclusive of interest, equal or exceed ten percent (10%) of the Minimum Escrow Deposit.
Following receipt of such notice, the Company will advise the subscribers for Units to remit
to the Escrow Agent the balance of the purchase price within thirty (30) days. The Escrow
Agent shall give the Company prompt written notice when the Escrow Funds, exclusive of
interest, equal or exceed the Minimum Escrow Deposit.
C. At the time (and in the event) that: (a) the Escrow Funds, exclusive of interest,
equal or exceed $30,100,000.00 (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 $68,955,000.00 to a
maximum of $98,955,000.00; (c) the Company has
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affirmatively elected in writing to terminate this Agreement; and (d) the Escrow Agent
shall have provided to each state securities department in which the Company has registered
its securities for sale, as communicated to the Escrow Agent by the Company, an affidavit
stating that the requirements of this Subsection 7.C have been satisfied, then this
Agreement shall terminate, and the Escrow Agent shall promptly disburse the Escrow Funds,
including interest, to the Company to be used in accordance with the provisions set out in
the Registration Statement. Upon completing such disbursement, the Escrow Agent shall be
completely discharged and released of any and all further responsibilities hereunder.
D. In the event the Escrow 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 in Subsection 7.C above on or before the Termination Date, the
Escrow Agent shall return to each of the subscribers in the Offering as promptly as possible
after the Termination Date and on the basis of its records pertaining to the Escrow Account:
(a) the sum which each subscriber initially paid on account of such subscriber’s
subscription for Units, and (b) each subscriber’s portion of the total interest earned on
the Escrow Account as of the Termination Date, (c) reduced by the transaction fees provided
in Section 10 below. Computation of any subscriber’s share of the net interest earned on
the Escrow Account will be a weighted average based on the ratio of such subscriber’s
deposit in the Escrow Account to all such subscribers’ deposits therein, and upon the length
of time that such deposit was held in the Escrow Account as compared to all such deposits.
All computations with respect to each subscriber’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 subscriber pursuant to this Section shall be deemed to be the property
of such subscriber, free and clear of any and all claims of the Company or its agents or
creditors; and any further purchase obligation of such subscriber in connection with the
Offering shall thereupon be deemed, ipso facto, to be cancelled without any further
liability. At such time as the Escrow Agent shall have made all of the payments called for
in this Section, the Escrow Agent shall be completely discharged and released of any and all
further responsibilities hereunder, except that the Escrow Agent shall be required to
prepare and issue an IRS Form 1099 to each subscriber.
E. The agency responsible for securities regulation in each state in which the Company
has registered its securities, as communicated to Escrow Agent by the Company, shall have
the right to inspect and make copies of records maintained by Escrow Agent relating to the
Offering at any reasonable time wherever such records are located.
A. 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 otherwise.
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B. The sole duty of the Escrow Agent, other than as herein specified, shall be to
receive the Escrow Funds and hold them subject to disbursement in accordance herewith. The
Escrow Agent shall be under no duty to determine whether the Company is complying with the
requirements of this Agreement in tendering to the Escrow Agent proceeds from sales of or
subscriptions for Units. The Escrow Agent may conclusively rely upon and shall be protected
in acting in reliance 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.
C. The Company 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 to this
Agreement or any transaction to which this Agreement relates, unless such action, claim or
proceeding is the result of the gross negligence or willful misconduct of the Escrow Agent.
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and expenses, including reasonable attorney’s fees, occasioned by any delay, controversy,
litigation or event, and the same shall be recoverable from the Company, 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 Xxxxxx City, Illinois, 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:
First Busey Trust
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx XxxXxxx, President
Fax: (000) 000-0000
Phone: (000) 000-0000
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attn: Xxxxx XxxXxxx, President
Fax: (000) 000-0000
Phone: (000) 000-0000
If to the Company:
One Earth Energy, LLC
0000 Xxxx 0xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Fax: (000) 000-0000
Phone: (000) 000-0000
0000 Xxxx 0xx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Fax: (000) 000-0000
Phone: (000) 000-0000
with a required copy to:
Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Schoenebaum, P.L.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Phone: (000) 000-0000
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Phone: (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 Illinois, without giving effect
to the conflicts of laws provisions.
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consent to the other parties hereto, and any 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.
17. Entire Agreement. This Agreement contains the entire understanding among the
parties hereto with respect to the transactions contemplated hereby and supersedes and replaces all
prior and contemporaneous agreements and understandings, oral or written, with regard to such
escrow, including without limitation that certain Escrow Agreement, dated July 10, 2006.
THE COMPANY: | ESCROW AGENT | |||||||
ONE EARTH ENERGY, LLC | FIRST BUSEY TRUST | |||||||
By:
|
/s/ Xxxxxx Xxxxx | By: | /s/ Xxxxx XxxXxxx | |||||
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EXHIBIT A
[Attach Escrow Agent’s Fee Schedule]
Set up Fee |
$ | 1,000 |
Monthly fee based on the average collected monthly balance of an annualized rate of 25 basis
points.
Example: $1,000,000 x .25% = $2,500 per year divided by 12 months = $208.33/month
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