Exhibit 4.3
ESCROW AGREEMENT
This Escrow Agreement is made this 31st day of August, 2002, by and between
Oregon Trail Ethanol Coalition, L.L.C., a Nebraska limited liability company
("OTEC"), and Midwest Bank N.A., a Nebraska chartered banking corporation, with
an office located in Deshler, Nebraska ("Escrow Agent").
R E C I T A L S :
WHEREAS, OTEC was formed for the purpose of constructing and operating an
ethanol plant near Xxxxxxxxx, in Xxxxxx County, Nebraska;
WHEREAS, OTEC is, or will be, conducting a public offering of its
membership units and pursuant to the terms and conditions of its prospectus,
OTEC has committed to escrow the proceeds of the membership units sold to
investors;
WHEREAS, OTEC wishes to establish an escrow account to hold the proceeds of
subscriptions for the membership units for a minimum of 20,000 membership units
and a maximum of 24,000 membership units, until written instructions from OTEC
have been received;
WHEREAS, Midwest Bank N.A. 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. OTEC 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. OTEC
shall deliver to Escrow Agent for deposit in the Escrow Account all funds,
checks, bank money orders, etc., received by OTEC 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 Oregon Trail Ethanol Coalition, L.L.C.". OTEC
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 $20
million is not subscribed by February 15, 2003, 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 OTEC unless and until released to OTEC
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 OTEC.
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 $20,000,000. Any investment of deposited funds must be
made in recognition that offering proceeds must be able to be transmitted
promptly to OTEC 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. OTEC shall not withdraw funds from the
Escrow Account for use by OTEC prior to the time that the following conditions
are met (the "Release Conditions"): (a) OTEC closes the offering and has
obtained signed Subscription Agreements for sales of membership units totaling
at least $20,000,000; (b) OTEC 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 OTEC has met the Release
Conditions, which shall be completed by February 15, 2003, OTEC'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 OTEC. In the event that OTEC has not met the Release Conditions by
February 15, 2003, then OTEC 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. OTEC 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 OTEC 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. OTEC 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 OTEC 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.
OREGON TRAIL ETHANOL COALITION, L.L.C. MIDWEST BANK, N.A.,
a Nebraska limited liability company a Nebraska chartered banking
corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxx 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 February 15,
2003, 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.
