Exhibit 4.7
ESCROW AGREEMENT
This Escrow Agreement is made this 15th day of January, 2001, by and
between Great Plains Ethanol, LLC, a South Dakota limited liability company
("Great Plains Ethanol"), and Dakota Heritage State Bank, a South Dakota
chartered banking corporation, with an office located in Chancellor, South
Dakota ("Escrow Agent").
R E C I T A L S:
A. Great Plains Ethanol was formed for the purpose of
investing funds in an ethanol plant to be located near Chancellor in Xxxxxx
County, South Dakota.
B. Great Plains Ethanol intends to sell Class A, B and C
capital units in accordance with the terms and conditions of a Prospectus.
C. Pursuant to the terms and conditions of the Prospectus,
Great Plains Ethanol has committed to escrow the proceeds of the Class A, B
and C capital units sold to investors.
D. Dakota Heritage State 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. Great Plains Ethanol shall open
and maintain an escrow account with Escrow Agent. The escrow account shall be
an interest bearing account, and shall earn interest at the rate offered from
time to time by Escrow Agent.
2. Escrow Account Authorizations. Only officers of the Escrow Agent
shall be entitled to withdraw funds from the escrow account as provided
herein. Great Plains Ethanol shall deliver to Escrow Agent for deposit in the
escrow account all funds, checks, bank money orders, etc., received by Great
Plains Ethanol from the sale of Class A, B and C capital units. All checks,
bank money orders, etc. shall be made payable to "Great Plains Ethanol Escrow
Account". Great Plains Ethanol shall deliver to Escrow Agent with each
investor's funds, the investor's name, address and amount of investment.
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 $12.75 million is not subscribed by March 15,
2002, as provided in Paragraph 4 of this Agreement.
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, certificates of deposit issued by
banks with a net worth of at least $10,000,000. Any investment of deposited
funds must be made in recognition that offering proceeds must be able to be
transmitted promptly to Great Plains Ethanol 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. Great Plains Ethanol shall not
withdraw funds from the Escrow Account for use by Great Plains Ethanol prior
to the time that the following conditions are met (the "Release Conditions"):
(a) Great Plains Ethanol closes the offering and has obtained signed
Subscription Agreements for sales of Class A, B and C capital units totaling
at least $12,750,00.00; (b) Great Plains Ethanol has obtained a commitment
letter for financing construction and operation of the ethanol plant; (c)
Broin Investments, LLC, must have subscribed for 200 Class B units; (d) Broin
Management, LLC, must have subscribed for 40 Class C units and not have
resigned or been terminated as the Managing Member of Great Plains Ethanol;
(e) Broin and Associates shall not have withdrawn from its obligation to
build the ethanol plant; and (f) there shall not be any legal orders
prohibiting the offering, or orders from the United States Securities and
Exchange Commission revoking the effectiveness of the Registration Statement
related to the offering.
5. Termination of Escrow Account. At such time as Great Plains
Ethanol has met the Release Conditions, which shall be completed by March 15,
2002, Great Plains Ethanol's Board of Managers shall adopt a resolution
instructing the Escrow Agent to terminate the Escrow Account and transfer all
funds to other accounts maintained by Great Plains Ethanol. In the event that
Great Plains Ethanol has not met the Release Conditions by March 15, 2002,
then Great Plains Ethanol shall instruct the Escrow Agent to return to the
investors all funds from the sale of Class A, B and C capital units held in
the Escrow Account. Escrow Agent shall return to Great Plains Ethanol all
interest earned on funds deposited in the Escrow Account, less any fees and
expenses owed Escrow Agent by Great Plans Ethanol hereunder.
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 Great Plains
Ethanol 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. Great Plains Ethanol 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
Great Plains Ethanol a fee for providing services hereunder in accordance
with the terms of Exhibit A attached hereto and incorporated herein by
reference.
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 South Dakota.
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.
GREAT PLAINS ETHANOL, LLC DAKOTA HERITAGE STATE BANK
By /s/ Xxxxxx Xxxxx By /s/ Xxxxxx Xxxxxxxxxx
--------------------------- --------------------------
Its Pres. Its Pres
EXHIBIT A
Fee Agreement
1. If the Release Conditions are met by March 15, 2002, the Escrow
Agent shall be paid a fee equal to one-half of one percent of the average
daily balance of the funds held in the Escrow Account.
2. If the Release Conditions are not met by March 15, 2002, the
Escrow Agent shall be paid a fee of $500.00 and one-half of one percent of
the average daily balance of the funds held in the Escrow Account.
