AMENDED AND RESTATED ESCROW AGREEMENT
Exhibit 4.5
AMENDED AND RESTATED ESCROW AGREEMENT
THIS AMENDED AND RESTATED ESCROW AGREEMENT (this “Agreement”) is made this 13th day of
March, 2008, by and between MinnErgy, LLC a Minnesota limited liability company (“MinnErgy”) and
Winona National Bank as escrow agent (the “Escrow Agent”).
W I T N E S S E T H:
WHEREAS, the parties previously entered into an Escrow Agreement dated May 9, 2007, and an
Amended and Restated Escrow Agreement dated November 7, 2007 (collectively, the “Escrow Agreement”)
in connection with Minnergy’s offering made pursuant to a federal registration under the provision
of the Securities Act of 1933 as amended (the “Offering”);
WHEREAS, Minnergy has amended its federal registration statement related to the Offering and
the parties desire to amend and restate the Escrow Agreement;
WHEREAS, MinnErgy proposes to offer a minimum of 58,000,000 and a maximum of 89,000,000 of its
Membership Units (the “Units”) at a price of $1.00 per Unit, in minimum blocks of twenty thousand
(20,000) Units in an offering registered with the Securities and Exchange Commission and in the
states of Iowa, Minnesota, Wisconsin and possibly offered in other states pursuant to state
securities registration exemptions and under the provisions of the Securities Act of 1933, as
amended (the “Offering”);
WHEREAS, MinnErgy has filed a registration statement to register the Units with the Securities
and Exchange Commission, the states of Iowa, Minnesota, Wisconsin, and possibly other states;
WHEREAS, MinnErgy will allow investors in the Offering to deliver the purchase price of the
subscribed Units in installments; and
WHEREAS, MinnErgy desires to comply with the requirements of federal and state securities laws
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. Winona National 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 MinnErgy shall not become the property of MinnErgy or
be subject to the debts of MinnErgy 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 until the
Deposited Funds are released by the Commissioner of the Minnesota Department of Commerce.
4. Deposit of Proceeds. All proceeds from sales of Units in the Offering shall be
delivered by MinnErgy to the Escrow Agent, within forty-eight hours of the receipt thereof from
investors, endorsed (if appropriate) to the order of the
1
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, MinnErgy 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 the 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 those investments directed, in writing by MinnErgy. The Escrow Agent is
hereby authorized to invest Escrow Funds in the Federated Treasury Cash Series (CUSIP 147551-402)
for temporary investment without written direction. Any interest received by the Escrow Agent with
respect to the Escrow Funds shall be paid to MinnErgy, or the investors, as indicated elsewhere in
this Agreement.
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 in calendar year 2009 (the
“Termination Date”), which is one year and one day following the date in calendar year 2008 upon
which the Securities and Exchange Commission authorizes the Offering (the “Offering’s Effective
Date”). MinnErgy shall notify Escrow Agent of the Offering’s Effective Date within thirty (30)
days of the receipt of notice of the Offering’s Effective Date from the Securities and Exchange
Commission. Notwithstanding the foregoing, if at anytime prior to termination as described above,
the Escrow Agent is advised by the securities commissioners of Minnesota, Iowa or Wisconsin that
the registration to sell securities in the respective state has been revoked, terminated or
suspended, the Escrow Agent shall return all funds received by the subscribers in the respective
state which has revoked or suspended registration.
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 MinnErgy.
B. The Escrow Agent shall give MinnErgy prompt written notice when the Deposited Funds
equal $5,800,000 (exclusive of interest). Following receipt of such notice, MinnErgy will
advise the purchasers of Units to remit to the Escrow Agent the balance of the purchase
price within twenty (20) days. Thereafter, Escrow Agent shall give MinnErgy written notice
acknowledging the receipt of the Deposited Funds every seven days. The Escrow Agent shall
give MinnErgy prompt written notice when the Deposited Funds total $58,000,000 (exclusive of
interest).
C. At the time (and in the event) that: (i) the Deposited Funds shall, during the term
of this Agreement, equal $58,000,000 in subscription proceeds (exclusive of interest) (the
“Minimum Escrow Deposit”); (ii) the Escrow Agent shall have received written confirmation
from MinnErgy that MinnErgy has obtained a written debt financing commitment for debt
financing ranging from a minimum of $41,800,000 to a maximum of $72,800,000 depending on the
amount necessary to fully capitalize the project; (iii) MinnErgy has affirmatively elected
in writing to terminate this Agreement; (iv) MinnErgy has signed a definitive design build
agreement with Xxxxx, Inc.; (v) MinnErgy has been issued the environmental permits necessary
to construct the ethanol plant (vi) the Escrow Agent shall have provided to each state
securities department in which MinnErgy has registered its securities for sale, as
communicated to the Escrow Agent by MinnErgy, an affidavit stating that the foregoing
requirements (i), (ii), (iii), (iv) and (v) of this subsection 7C have been satisfied and
shall have provided to the Commissioner of the Minnesota Department of Commerce
documentation that the foregoing conditions have been met; and (vii) in each state in which
consent is required, the state securities commissioners have consented to release of the
funds on deposit. However, none of the Deposited Funds, regardless of the state of
residence of the investor contributing such funds, shall be released until the Commissioner
of the Minnesota Department of Commerce has provided written express authorized the release
of the Deposited Funds, then this
2
Agreement shall terminate, and the Escrow Agent shall promptly disburse the funds on
deposit, including interest, to MinnErgy to be used in accordance with the provisions set
out in MinnErgy’s registration statement. MinnErgy will deliver a copy of its 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 and the registration statement shall contain a provision to such effect. Upon the
making of such disbursement, the Escrow Agent shall be completely discharged and released of
any and all further responsibilities hereunder.
If the Minnesota Department of Commerce (the “Department) finds that any conditions of
this Agreement have not been satisfied, or that any provisions of the Minnesota securities
laws or regulations have not been complied with, the Department may withhold such
authorization for release of the Deposited Funds and may direct the Escrow Agent to return
the funds to the subscribers. In making the determination for release of the audited funds
the Department may require MinnErgy to provide a statement of all expenses and all amounts
paid into escrow, certified by an independent certified public accountant or an officer of
MinnErgy and any further financial or other information as the Department deems appropriate
or helpful in making the determination. The Department, may, at any time, inspect the
records of the Escrow Agent, insofar as they relate to this Agreement, for the purpose of
determining compliance with and conformance to the provisions of the Agreement.
D. In the event the Deposited Funds do not equal or exceed the Minimum Escrow Deposit
on or before the Termination Date or if MinnErgy has not received a written debt financing
commitment as described herein on or before the Termination Date, the Escrow Agent shall
return to each of the purchasers of the Units in the Offering, as promptly as possible after
such Termination Date and on the basis of its records pertaining to the Escrow Account: (i)
the sum which each purchaser initially paid in on account of purchases of the Units in the
Offering and (ii) each purchaser’s portion of the total interest earned on the Escrow
Account as of the Termination Date. 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 MinnErgy 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, except that Escrow Agent shall be required to
prepare and issue a single IRS Form 1099 to each investor in the event that funds are
returned to investors.
8. Agreement with Escrow Agent. To induce Escrow Agent to act hereunder, it is agreed
by MinnErgy 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 MinnErgy 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.
3
B. MinnErgy 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
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 MinnErgy. 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. MinnErgy agrees to pay the Escrow Agent the
fees specified in the Escrow Agent’s fee schedule attached hereto as Exhibit A, in the manner set
forth therein, unless otherwise agreed to by the parties in writing. The parties further agree
that MinnErgy shall be solely responsible for the payment of such fees and the Escrow Agent shall
not seek payment of the fees from investors or apply any principal deposited by investors in the
escrow account or interest on the escrow account against such fees. The fee agreed upon 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 MinnErgy, 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 Winona, 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:
Winona National Bank
000 Xxxx Xxxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Senior Vice President
Fax: (000) 000-0000
Phone: (000 ) 000-0000
000 Xxxx Xxxxxx, X.X. Xxx 000
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx, Senior Vice President
Fax: (000) 000-0000
Phone: (000 ) 000-0000
If to MinnErgy:
MinnErgy, LLC
0 Xxxxx Xxxxx Xxxxxx XX, X.X. Xxx 00
Xxxxx, Xxxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx, President/CEO
Fax: (000) 000-0000
0 Xxxxx Xxxxx Xxxxxx XX, X.X. Xxx 00
Xxxxx, Xxxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx, President/CEO
Fax: (000) 000-0000
with a required copy to:
4
Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Xxxxxxxxxxx, P.L.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
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 Minnesota, 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,
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.
| MINNERGY: | ESCROW AGENT | |||||||||
| MINNERGY, LLC | WINONA NATIONAL BANK | |||||||||
By:
|
/s/ Xxxxxx X. Xxxxxx | By: | /s/ Xxxx X. Xxxx | |||||||
| Xxxxxx X. Xxxxxx | ||||||||||
| Chairman | ||||||||||
Authorized by:
Minnesota Department of Commerce
By:
5
Exhibit A
Winona National Bank
Escrow Agent Fee Schedule
Escrow Agent Fee Schedule
Escrow Agreement Review and Adoption Fee |
$ | 300 | * | |||
Weekly Escrow Sub-Accounting Fee @ $75/hour |
weekly maximum | $ | 450 | * | ||
| one year Escrow maximum | $ | 22,500 | * | |||
Escrow Asset Custody Fee |
waived | |||||
| Investment Return Disbursement Fee (per disbursement generated) | $ | 25 | ||||
| * | These fees will be waived if the balance is over $10,000,000.00 |
Revenue Sharing Arrangement between Winona National Bank & PrimeVest:
| Revenue sharing is pursuant to the PrimeVest addendum attached hereto | No fee | |||||
| Note: | This Revenue Sharing arrangement does not decrease the stated money market fund return to the client or increase the internal fees charged against the money market fund. See Fund Prospectus for complete fee disclosure. | |||||
6
PrimeVest PrimeSweep Addendum
Federated Money Market Funds
Financial Institution shall earn the following basis points:
Financial Institution shall earn the following basis points:
| Total Aggregate | ||||
| Customer Balances | ||||
| in Retail Federated Funds | Basis Points | |||
$ 0-$ 999,999.99 |
.20 | |||
$1,000,000.00-$ 4,999,999.99 |
.25 | |||
$5,000,000.00-$19,999,999.99 |
.30 | |||
$20,000,000.00-Over |
.35 | |||
| Total
Aggregated Average Daily Customer Balances in the following: |
Basis Points | |
• Auto Cash Management Trust |
.10 | |
• Tax Free Instruments Trust |
.10 | |
• Auto Government Money Trust |
.10 | |
• Government Obligations |
.10 | |
• PrimeCash Obligations |
.10 | |
• Treasury Obligations |
.10 |
PrimeVest shall calculate and pay applicable basis points to Financial Institution on a quarterly
basis (in arrears), based on the average daily balances in Federated funds during the prior
calendar quarter.
7
