EXHIBIT 4.3
NEDAK ETHANOL, LLC
PUBLIC OFFERING OF UNITS
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Agreement") is made and entered into as of this
___ day of June, 2006, by and among NEDAK Ethanol, LLC, a Nebraska limited
liability company ("Company"), and First Dakota National Bank, a Nebraska state
banking association ("Escrow Agent").
RECITALS
WHEREAS, the Company desires to effect a public offering ("Offering") of
up to 6,000 Units ("Units") for cash; and
WHEREAS, the Company wishes to make provision to deposit the
subscription proceeds received by the Company from the subscriptions for Units
in the Offering into an interest-bearing escrow account ("Escrow Account")
established with the Escrow Agent, which proceeds (including interest accrued
thereon) are to be delivered and paid to the Company only in the circumstances
hereinafter defined; and
WHEREAS, the Company and the Escrow Agent desire to enter into an
agreement with respect to the above-described escrow arrangements.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, the parties hereby agree as follows:
I. Delivery of Proceeds to Escrow Agent.
(a) Subscription Proceeds. The Company agrees that it shall
deliver to the Escrow Agent via insured overnight mail, courier or by
similar acceptable means, immediately upon receipt thereof, all
subscription proceeds from the subscription for Units in the Offering,
together with a copy of each such subscriber's completed and executed
Subscription Agreement. The Company will instruct subscribers to make
checks for Unit subscriptions payable to the order of the Escrow Agent.
Any checks received by the Escrow Agent that are made payable to a party
other than as set forth above shall be returned to the Company for
restrictive endorsement by the payee to the Escrow Agent. Upon approval
of each subscription by the Company (but not prior thereto), the Escrow
Agent is authorized to forward each subscription check received for
collection and, upon collection of such check, to immediately deposit
the collected proceeds in the Escrow Account.
2. Escrow Account
(a) Deposits. Upon approval of each subscription by the Company,
all subscription amounts delivered to the Escrow Agent pursuant hereto
shall be deposited immediately by the Escrow Agent into the Escrow
Account, subject to the investment thereof as set forth in Section 2(c)
below. The Escrow Agent shall not forward subscription checks for
collection or otherwise deposit subscription proceeds into the Escrow
Account until receiving written confirmation from the Company or its
legal counsel that the subscriber has been approved by the Company.
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(b) Deposit Record. The Escrow Account shall be created and
maintained subject to the customary rules and regulations of the Escrow
Agent pertaining to such accounts. The Escrow Agent shall at all times
maintain a record ("Deposit Record") of the names and addresses of
subscribers, the amount of Units subscribed thereby and the aggregate
amount of funds paid therefor as deposited with the Escrow Agent. Copies
of such Deposit Record shall be made available upon the Company's
request during the Escrow Period.
(c) Investment of Funds. All deposits held in the Escrow Account
by the Escrow Agent shall be invested thereby in any of the following
investment vehicles, at the discretion of the Escrow Agent: (i) money
market mutual funds; or (ii) short-term United States Government
Treasury securities, notes or bills; or (iii) short-term certificates of
deposit issued by a bank.
3. Escrow Period. The escrow period ("Escrow Period") shall begin on the
date hereof and shall terminate on the earlier of:
(a) Prior to Offering Completion. The release and return of all
deposited subscription proceeds (including accrued interest thereon) to
subscribers, in the event the Company decides, in its sole discretion,
to terminate the Offering prior to, or if the Company has not certified
to the Escrow Agent that it has raised at least Thirty Five Million
Dollars ($35,000,000) by, the Offering Completion Date (October 31,
2006);
(b) Upon Expiration Date. The release and return of all deposited
subscription proceeds (including accrued interest thereon) to
subscribers, upon the failure of the Company to certify to the Escrow
Agent that it has received a commitment from a lender (the "Loan
Commitment") sufficient to permit the Company to proceed to build its
proposed ethanol plant, by November 30, 2006 (the "Expiration Date"); or
(c) Closing. The completion of the Offering upon the subscription
for at least Thirty Five Million Dollars ($35,000,000) of Units on or
before the Offering Completion Date and receipt of the Loan Commitment
on or before the Expiration Date (the "Closing").
4. Payment of Escrowed Funds to the Company. The closing may not occur
until at least five business days after the Company has provided an affidavit to
the Director of the Bureau of Securities of Nebraska (the "Director") pursuant
to Chapter 25, Section 3.01C of the Regulations under the Securities Act of
Nebraska (the "Nebraska Regulations"). At the Closing, the Escrow Agent shall
remit by certified check, or wire transfer to the Company, the proceeds
received, collected and deposited in the Escrow Account from the subscription
for Units delivered by the Company to the Escrow Agent, including all interest
accrued thereon. At least three (3) business days prior to the Closing, the
Company shall deliver to the Escrow Agent directions regarding the amount of
proceeds to be paid to it. At such time as the Escrow Agent shall have made all
the payments, deliveries and remittances provided for in this Section 4, if any,
the Escrow Agent shall be completely discharged and released of any and all
further liabilities and responsibilities hereunder. The date on which the
Closing shall occur pursuant to this Section 4 shall sometimes be referred to as
the "Escrow Closing Date."
5. When Funds Repaid to Subscribers. In the event the Escrow Period
terminates because Thirty Five Million Dollars ($35,000,000) of offered Units
have not been subscribed for or the Loan Commitment is not received on or before
the Expiration Date or the Company terminates the Offering prior to the Offering
Completion Date then the Escrow Agent as promptly as practicable, but not more
than one (1) month thereafter, and on the basis of its Deposit Record, shall
return directly to each of the subscribers the respective amounts paid in by
them as their subscription for Units, including all respective interest accrued
thereon pursuant to the investment of such funds by the Escrow Agent under
Section 2(c) without any deductions therefrom. Each amount paid or payable to
each subscriber pursuant to this Section 5 shall be deemed to be the property of
each subscriber, free and clear of any and all claims of the Company, or of any
of their respective creditors, and the respective Subscription Agreements
evidencing subscriptions for Units made and entered into by such subscribers in
the Offering shall thereupon be automatically deemed, without further deed or
action, to be cancelled without any further liability of such subscribers to pay
for the Units subscribed. At such time as the Escrow Agent shall have made all
the payments, deliveries and remittances provided for in this Section 5, if any,
the Escrow Agent shall be completely discharged and released of any and all
further liabilities and responsibilities hereunder.
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6. Escrowed Funds Not Property of the Company. During the Escrow Period,
all amounts deposited (or accrued) in the Escrow Account shall not become the
property of the Company or obligations of the Company, shall not be subject to
the claims of creditors of the Company, and the Escrow Agent shall make or
permit no disbursements or other transfers from the Escrow Account, except as
expressly provided herein.
7. Notice to Escrow Agent. The Company agrees to give to the Escrow
Agent appropriate written notice of the date upon which the Offering is
commenced, as soon as practicable thereafter, and appropriate written notice of
the Offering Completion Date, or the date on which the Company terminates the
Offering, as the case may be.
8. Rejection of Subscription. In the event that a subscriber is rejected
by the Company for any reason, the Escrow Agent shall, upon written direction
received from the Company, return all subscription funds received from such
subscriber with respect to any subscription by such rejected subscriber, without
deduction (but without interest), directly to such subscriber.
9. Miscellaneous. The Escrow Agent shall:
(a) No Other Duty. Be under no duty to enforce payment of any
subscription which is to be paid to, and held by, it hereunder other
than submitting checks received for collection as herein provided;
(b) Discrepancies.Promptly notify the Company of any discrepancy
between the amounts set forth on any information delivered to it by
Company and the subscription sum or sums delivered to it therewith;
(c) Accepting Funds. Be under no duty to accept funds, checks,
drafts or instruments for the payment of money from anyone other than
the Company;
(d) Reliance. Be protected in acting upon any notice, request,
certificate, approval, consent or other paper believed by it to be
genuine and to be signed by the proper party or parties;
(e) Giving of Notice. Be deemed conclusively to have given and
delivered any notice required to be given or delivered hereunder if the
same is in writing, signed by any one of its authorized officers and
mailed, by registered or certified mail, return receipt requested,
postage prepaid, addressed to the Company at the respective addresses
set forth above (or otherwise mailed by overnight courier, telecopied,
telefaxed or personally delivered thereto);
(f) Counsel. Be permitted to consult with legal counsel of its
choice, including in-house counsel, and shall not be liable for any
action taken, suffered or omitted by it in accordance with the
reasonable advice of such counsel; provided, however, that nothing
contained in this Section 9(f), or omitted by it in accordance with the
reasonable advice of any counsel, shall relieve the Escrow Agent from
liability for any claims which are occasioned by its bad faith, gross
negligence or willful misconduct.
(g) Modifications.Not be bound by any modification, amendment,
termination or cancellation of this Agreement, unless the same shall be
in writing and signed by all of the parties hereto;
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(h) Refrain from Action. If the Escrow Agent shall be uncertain
as to its duties or rights hereunder or shall have received
instructions, claims or demands from any of the other parties hereto
which, in its opinion, are in conflict with any of the provisions of
this Agreement or with instructions given by another party, it shall be
entitled to refrain from taking any action other than to keep all
property held by it in the Escrow Account until it shall be directed
otherwise in writing by all of the other parties hereto or by a final
judgment by a court of competent jurisdiction;
(i) Investing Funds. Have no liability for investing any funds
under Section 2(c) or for following the instructions contained or
expressly provided for herein or pursuant to written instructions given
by the Company to the Escrow Agent; and
(j) Resignation. Have the right, at any time, to resign hereunder
by giving written notice of its resignation to all the parties hereto at
their addresses set forth above at least fifteen (15) business days
prior to the date specified for such resignation to take effect and,
upon the effective date of such resignation, all cash, accrued interest
and other payments and all other property then held by the Escrow Agent
hereunder shall be delivered by it to such person as may be designated
in writing by the other parties executing this Agreement, whereupon the
Escrow Agents obligations hereunder shall cease and terminate. If no
such person has been designated by such date, all obligations of the
Escrow Agent hereunder shall, nevertheless, cease and terminate. The
Escrow Agents sole responsibility thereafter shall be to keep safe all
property then held by it and to deliver the same to a person designated
in writing by the other parties executing this Agreement or in
accordance with the directions of a final order or judgment of a court
of competent jurisdiction.
10. Fees and Expenses. The Company shall be responsible for the payment
of all reasonable fees and expenses of the Escrow Agents for its actions
hereunder and the reasonable expenses incurred for handling and investing the
Escrow Account, whether or not Thirty Five Million Dollars ($35,000,000) of
Units are sold in the Offering or the Loan Commitment is received. The Escrow
Agent's fees for services hereunder shall be ______________________ Dollars
($_________).
11. No Escrow Agent Certificates. The Escrow Agent shall not issue any
certificates of deposit, Unit certificates or any other instruments or documents
representing any interest in the deposited funds, except as otherwise required
herein.
12. Indemnification. The Company hereby agrees to indemnify and hold
harmless the Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and
counsel fees and disbursements, which may be imposed upon the Escrow Agent or
incurred by the Escrow Agent hereunder, for the performance of its duties
hereunder, including any liability for any material misstatements or omissions
of material facts set forth in the Offering Memorandum and/or any litigation
arising from this Agreement or involving the subject matter hereof.
13. No Rights Created for Other Parties. Nothing in this Agreement is
intended to or shall confer upon anyone other than the parties hereto any legal
or equitable right, remedy or claim.
14. Governing Law. This Agreement shall be governed by and its
provisions construed in accordance with the internal laws of the State of South
Dakota.
15. Counterparts. This Agreement may be executed in separate written
counterparts, all of which together shall constitute one and the same Agreement.
16. Successors and Assigns. This Agreement is binding on the parties
hereto and their respective heirs, legal representatives, successors and
assigns.
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17. Inspection of Records. The records of the Escrow Agent with respect
to the Escrow Account shall be subject to inspection by the Director pursuant to
Chapter 25, Section 3.01B of the Regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day, month and year first above written.
NEDAK ETHANOL, LLC
("Company")
By:
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Its President
FIRST DAKOTA NATIONAL BANK
("Escrow Agent")
By:
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Its Authorized Representative
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