Exhibit 99.1.1
AMENDMENT TO ESCROW AGREEMENT
THIS AMENDMENT to the Escrow Agreement referred to below is made and
entered into as of this 31st day of January, 1997, by and among ALLIANCE FARMS
COOPERATIVE ASSOCIATION (the "Issuer"), DOUG BROWN (the "Brown"),
INTERSTATE/JOHNSON LANE CORPORATION (the "Outside Agent") and BOATMEN'S NATIONAL
BANK F/K/A BOATMEN'S FIRST NATIONAL BANK OF KANSAS CITY (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Issuer, Brown, the Outside Agent and the Escrow Agent
entered into an Escrow Agreement, dated as of February 17, 1995 (the "Escrow
Agreement"), pursuant to which an interest-bearing escrow account was
established with the Escrow Agent into which funds received from the sale of
shares of the Issuer's capital stock, $0.01 par value may be deposited pending
completion of the escrow period and compliance with the terms of the offering of
such shares and for the purpose of, among others, complying with the securities
laws and regulations of various States; and
WHEREAS, the Issuer, Brown, the Outside Agent and the Escrow Agent
desire to amend certain provisions of the Escrow Agreement on and subject to the
terms hereof;
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Issuer, Brown, the Outside Agent and the Escrow Agent do
hereby promise and agree as follows:
1. The Escrow Agreement is hereby amended by modifying all
references therein to the term "Inside Agent" to refer to Brown and such other
persons selected by the Issuer from time to time who are not affiliated with the
Escrow Agent and who shall execute and deliver to the Issuer, the Outside Agent
and the Escrow Agent a written instrument in which each such person covenants
and agrees to perform the obligations applicable to an Inside Agent (or a
Selected Dealer) under the Escrow Agreement, and to be bound by and subject to
the related terms and conditions of the Escrow Agreement insofar as they apply
to an Inside Agent (or a Selected Dealer).
2. The first recital to the Escrow Agreement is deleted in its
entirety and the following new recital is substituted in lieu thereof:
WHEREAS, the Issuer proposes to offer for sale to investors in one or
more offerings (each, an "Offering") through one or more registered
broker/dealers and, in those jurisdictions where permitted by applicable
law, through one or more officers and employees of the Issuer, shares of
its capital stock, $0.01 par value (the "Shares"), at an offering price
specified in the prospectus prepared in connection with the applicable
Offering;
3. The first sentence of Section 2, including clauses (a), (b) and
(c), of the Escrow Agreement is deleted in its entirety and the following new
first sentence of Section 2, including clauses (a), (b) and (c), is substituted
in lieu thereof:
The period of the escrow established hereunder with respect to any Offering
(the "Escrow Period") shall begin with the commencement of such Offering
(the effective date of the Registration Statement filed by the Issuer with
the Securities and Exchange Commission with respect to such Offering) and
shall terminate upon the earlier to occur of the following dates:
(a) The date upon which the Escrow Agent (i) has received
collected funds (as defined below) from the sale of all Shares offered
by the Issuer in such Offering equal to the product of the number of
Shares offered in such Offering multiplied by the offering price per
Share specified in the prospectus prepared in connection with such
Offering <F1>, and (ii) has caused such funds to be disbursed and
delivered to the Issuer in accordance with the terms and conditions of
this Agreement;
[FN]
For example, if 51 Shares are offered in an Offering at an offering price
specified in the related prospectus of $82,000 per Share, the Escrow Agent would
need to receive collected funds of $4,182,000 in order to satisfy Section
2(a)(i).
(b) The expiration of 550 days from the date of the commencement
of such Offering (unless the Issuer has given written notice to the
Escrow Agent of the Issuer's extension of such Offering for up to an
additional 180 days as contemplated by the prospectus prepared in
connection with such Offering, in which event, the expiration of such
additional period of up to 180 days); or
(c) The date upon which the Issuer has given written notice to
the Escrow Agent that the Issuer has terminated such Offering.
4. Section 4(a)(i) of the Escrow Agreement is deleted in its
entirety and the following new Section 4(a)(i) is substituted in lieu thereof:
(i) such disbursement and delivery of funds with respect to an
Offering shall be made only in an amount equal to the product of 17 Shares
(or such other number of Shares constituting a "minimum block" as specified
in the prospectus prepared in connection with such Offering) multiplied by
the offering price per Share specified in the prospectus prepared in
connection with such Offering (the "Minimum"), or an integral multiple of
such product, together with any interest earned to date thereon and
remaining after deduction for fees and reimbursement of costs and expenses
due the Escrow Agent as provided herein;
5. Section 4(a)(ii) of the Escrow Agreement is deleted in its
entirety and the following new Section 4(a)(ii) is substituted in lieu thereof:
(ii) the Escrow Agent must be given written confirmation by the
Issuer that the Issuer has obtained a commitment for not less than
$2,720,000 of debt financing or borrowings with respect to the disbursement
and delivery of each Minimum in an Offering (unless a lesser amount of debt
financing or borrowings with respect to each Minimum is specified in the
prospectus prepared in connection with such Offering, in which event the
Escrow Agent must be given written confirmation by the Issuer that the
Issuer has obtained a commitment for such lesser amount of debt financing
or borrowings);
6. Section 12 of the Escrow Agreement is deleted in its entirety and
the following new Section 12 is substituted in lieu thereof:
After disbursement and delivery of all funds and documents with respect to
an Offering deposited in the Escrow Account pursuant to this Agreement in
accordance with the terms and conditions hereof, the duties and
responsibilities of the Escrow Agent under this Agreement shall cease and
terminate with respect to such Offering.
7. Except as expressly amended hereby, all of the terms, conditions
and provisions of the Escrow Agreement shall remain unamended and in full force
and effect in accordance with its terms, and the Escrow Agreement, as amended
hereby, is hereby ratified and confirmed. The amendments provided herein shall
be limited precisely as drafted and shall not constitute an amendment of any
other term, condition or provision of the Escrow Agreement.
8. References in the Escrow Agreement to "Agreement", "hereof",
"herein" and words of similar impact shall be deemed to be a reference to the
Escrow Agreement as amended by this Amendment.
9. If for any reason any one or more of the provisions contained in
the Escrow Agreement or this Amendment shall be determined to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained therein and herein shall
not be affected in any way or impaired thereby and shall be enforceable in
accordance with their respective terms.
10. This Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which shall
constitute one agreement which is binding upon all of the parties hereto,
notwithstanding that all parties are not signatories to the same counterpart.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment and affixed their signatures hereto and as of the date first above
written.
ALLIANCE FARMS COOPERATIVE INTERSTATE/JOHNSON LANE
ASSOCIATION CORPORATION
By: By:
Name:
Name: Title:
Title:
BOATMEN'S NATIONAL BANK
F/K/A BOATMEN'S FIRST NATIONAL
DOUG BROWN BANK OF KANSAS CITY
By:
Name:
Title: