Exhibit 4.3
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") is entered into as of
February 22, 2002 (the "Effective Date"), by and among Northwest Ethanol, LLC,
an Ohio limited liability company (the "Company") and National City Bank, a
national banking association, as escrow agent ("Escrow Agent").
RECITALS
A. WHEREAS, the Form SB-2 Registration Statement of the Company, as amended
from time to time by the Company (the "Registration Statement"), contemplates
that an escrow account be established to hold the gross proceeds from
subscriptions for units of the Company sold in the offering (the "Units") until
April 30, 2002, subject to extension but in no event beyond September 30, 2002
(the "Offering Termination Date"), or until the Minimum amount sought in the
offering (the "Minimum") is fully subscribed and the other closing conditions
are satisfied prior to the Offering Termination Date. Capitalized terms used in
this Escrow Agreement without definition shall have the respective meanings
given to them in the prospectus which is a part of the Registration Statement,
as amended from time to time (the "Prospectus");
B. WHEREAS, the Prospectus contemplates that if the Minimum is fully
subscribed and the other closing conditions are satisfied prior to the Offering
Termination Date, the Escrow Agent shall disburse the entire Escrow Amount in
immediately available funds to the Company. If subscriptions for the Minimum
have not been received or if one or more of the other conditions to the initial
closing has not been satisfied on or before the Offering Termination Date, funds
deposited in the escrow account, together with interest earned thereon, as
determined by Escrow Agent, will be promptly released to the subscribers as
their interests may appear; and
C. WHEREAS, the parties hereto desire to establish the terms and conditions
pursuant to which such escrow account will be established and maintained;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. ESTABLISHMENT OF ESCROW
(a) Beginning on the Effective Date, subscribers for Units will be
depositing gross subscription proceeds with Escrow Agent, and Escrow Agent
acknowledges that any such proceeds actually received by it, together with any
interest, dividends or increase earned thereon ("Interest"), shall be referred
to herein as the "Escrow Amount."
(b) Escrow Agent hereby agrees to act as escrow agent and to hold,
safeguard and disburse the Escrow Amount pursuant to the terms and conditions of
this Escrow Agreement and the Prospectus.
2. INVESTMENT OF FUNDS
Escrow Agent shall invest or reinvest the Escrow Amount in accordance with
the written instructions of the Company from time to time, until disbursement of
the entire Escrow Amount.
Absent written instructions from the Company to the contrary, Escrow Agent shall
invest and reinvest the Escrow Amount in the Armada Money Market Fund. The
Company acknowledges receipt of disclosure that Escrow Agent or an affiliate of
Escrow Agent serves as investment advisor to the Armada Money Market Fund and in
such capacity receives a fee. Escrow Agent is authorized to liquidate in
accordance with its customary procedures any portion of the Escrow Amount
consisting of investments to provide for payments required to be made under this
Escrow Agreement.
3. TERMINATION OF ESCROW
(a) On or before the Offering Termination Date, the Company may give
notice (a "Notice") to Escrow Agent specifying that the Minimum is fully
subscribed and all other conditions to closing set forth in the Prospectus have
been satisfied, whereupon Escrow Agent shall promptly disburse the entire Escrow
Amount in immediately available funds to the Company or in accordance with such
other written instructions as the Company may deliver to Escrow Agent.
(b) On or before the Offering Termination Date, the Company may notify
Escrow Agent if the Minimum is not fully subscribed or if any of the other
conditions to closing set forth the Prospectus have not or will not be satisfied
by the Offering Termination Date, whereupon Escrow Agent shall promptly disburse
the entire Escrow Amount to the subscribers for Units as their interests may
appear.
(c) If Escrow Agent shall not have received a notice under either
Section 3(a) or 3(b) by the close of business on September 30, 2002, then Escrow
Agent shall promptly disburse the entire Escrow Amount in accordance with
Section 3(b).
4. DUTIES OF ESCROW AGENT
(a) Escrow Agent shall have the duty to give the Escrow Amount held by
it hereunder no lesser degree of care than it gives its own similar property,
but shall not be required to invest any funds held hereunder except as directed
in this Escrow Agreement, or in written instructions from The Company.
(b) Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct and, except with respect to claims based upon
such gross negligence or willful misconduct that are successfully asserted
against Escrow Agent, the Company shall indemnify and hold harmless Escrow Agent
(and any successor Escrow Agent) from and against any and all losses,
liabilities, claims, actions, damages and expenses, including reasonable
attorneys' fees and disbursements arising out of and in connection with this
Escrow Agreement. Without limiting the foregoing, Escrow Agent shall in no event
be liable in connection with its investment or reinvestment of the Escrow Amount
in good faith, in accordance with the terms hereof.
(c) Escrow Agent shall be entitled to rely upon any order, judgment,
certification, demand, notice, instrument or other writing delivered to it
hereunder without being required to determine the authenticity or the
correctness of any fact stated therein or the propriety or validity of the
service thereof. Escrow Agent may act in reliance upon any instrument or
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signature believed by it to be genuine and may assume that the person purporting
to give receipt or advice or make any statement or execute any document on
behalf of the Company in connection with the provisions hereof has been duly
authorized to do so. Escrow Agent may conclusively presume that the undersigned
representative of the Company has full power and authority to instruct Escrow
Agent on behalf of the Company unless written notice to the contrary is
delivered to Escrow Agent.
(d) Escrow Agent may act pursuant to the advice of counsel of its own
choosing with respect to any matter relating to this Escrow Agreement and shall
not be liable for any action taken or omitted by it in good faith in accordance
with such advice.
(e) Escrow Agent does not have any interest in the Escrow Amount
deposited hereunder but is serving as escrow holder only and having only
possession thereof. The Company or each subscriber for Units shall be
responsible for the payment of taxes related to Interest earned on the Escrow
Amount. Any payments of Interest to the Company from the Escrow Amount shall be
subject to any applicable withholding regulations then in force with respect to
United States taxes. The Company will provide Escrow Agent with an appropriate
Internal Revenue Service Form W-9 for tax identification number certification.
Escrow Agent will provide 1099 reporting. This Section 4(e) and Section 4(b)
shall survive notwithstanding any termination of this Escrow Agreement or the
resignation of Escrow Agent.
(f) Escrow Agent makes no representation as to the validity, value,
genuineness or collectability of any security or other document or instrument
held by or delivered to it hereunder.
(g) Escrow Agent shall not be called upon to advise anyone as to the
advisability of selling or retaining or taking or refraining from any action
with respect to any securities or other property deposited hereunder.
(h) Escrow Agent (and any successor Escrow Agent) may at any time
resign as such by delivering the Escrow Amount to any successor Escrow Agent
designated by the Company in writing, or to any court of competent jurisdiction,
whereupon Escrow Agent shall be discharged of and from any and all further
obligations arising in connection with this Escrow Agreement. The resignation of
Escrow Agent will take effect on the earlier of (a) the appointment of a
successor (including a court of competent jurisdiction) or (b) the day which is
30 days after the date of delivery of its written notice of resignation to the
other parties hereto. If at that time Escrow Agent has not received a
designation of a successor Escrow Agent, Escrow Agent's sole responsibility
after that time shall be to retain and safeguard the Escrow Amount until receipt
of a designation of successor Escrow Agent or a written disposition instruction
by the Company or a final non-appealable order of a court of competent
jurisdiction.
(i) In the event that the Escrow Agent merges or consolidates with
another bank or sells or transfers all or substantially all of its assets or
trust business, then the successor or resulting bank shall be Escrow Agent
hereunder without the necessity of further action or the execution of any
document, so long as such successor or resulting bank meets the requirements of
a successor escrow agent hereunder.
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(j) In consideration for its services hereunder, the Company agrees to
pay all of the fees, costs, charges and expenses of Escrow Agent, including
reasonable attorneys' fees, which are incurred in connection with the
performance of its duties and obligations hereunder. Escrow Agent's fees
hereunder shall be as follows:
Administrative Fee to 9/30/02 $2,000
Thereafter, $300.00 per month or any part thereof
Armada Fund Automatic Cash Management Fee 50 basis points of daily
balance calculated daily
Purchase or sale of assets other than Armada Funds $50.00
Escrow Agent shall submit written information (including copies of
receipts) to the Company with respect to the nature and amount of all expenses
which it may incur prior to payment of the same. Amounts payable to Escrow Agent
by the Company hereunder shall not be paid out of the Escrow Amount except that
Escrow Agent may deduct all fees and expenses due if the Escrow Amount is
released pursuant to Section 3(a) hereof.
(k) No printed or other matter in any language (including, without
limitation, prospectuses, notices, reports and promotional material) that
mentions Escrow Agent's name or the rights, powers, or duties of Escrow Agent
shall be issued by the Company or on the Company's behalf unless Escrow Agent
shall first have given its specific written consent thereto, provided, however,
that Escrow Agent hereby consents to the Prospectus.
(l) The Company authorizes Escrow Agent, for any securities held
hereunder, to use the services of any United States central securities
depository it reasonably deems appropriate, including, without limitation, the
Depositary Trust Company and the Federal Reserve Book Entry System.
5. LIMITED RESPONSIBILITY
This Escrow Agreement expressly sets forth all the duties of Escrow
Agent with respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Escrow Agreement against Escrow Agent.
Escrow Agent shall not be bound by the provisions of any agreement with the
Company except this Escrow Agreement.
6. NOTICES
All notices, consents, waivers and other communications under this
Escrow Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
telecopier (with written confirmation of receipt), provided that a copy is
mailed by certified or registered mail, return receipt requested, or (c) when
received at the address set forth below, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case to the appropriate
addresses and telecopier
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numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other party):
If to Company:
Northwest Ethanol, LLC:
Attn: Mr. Ted Penner
101 Clinton Street, Suite 1500
Defiance, Ohio 43512
Bus: (419) 784-9982
Bus: (419) 899-2376
Fax: (419) 784-9991
e-Mail: tpenner@defnet.com
with a copy to:
Paul N. Edwards, Esq.
McDonald, Hopkins, Burke & Haber Co., L.P.A.
2100 Bank One Center
600 Superior Avenue, E.
Cleveland, Ohio 44114-2653
Telephone: (216) 348-5432
Facsimile: (216) 348-5474
E-Mail: pedwards@mhbh.com
If to Escrow Agent:
National City Bank
One National City Center, Suite 655S
Indianapolis, Indiana 46255
Attention: Charles L. Mariner
Telephone: (317) 267-7260
Facsimile: (317) 267-7605
E-Mail: charles.mariner@nationalcity.com
7. JURISDICTION SERVICE OF PROCESS
Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Escrow Agreement shall be brought in the
federal or state courts of the State of Ohio, and each of the parties consents
to the jurisdiction of such courts (and of the appropriate appellate courts) in
any such action or proceeding, and waives any objection to venue laid therein.
As long as service of process is effected as required by such court, process in
any action or proceeding so commenced may be served on any party anywhere in the
world.
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8. COUNTERPARTS
This Escrow Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original and all of which, when taken
together, will be deemed to constitute one and the same original.
9. SECTION HEADINGS
The headings of sections in this Escrow Agreement are provided for
convenience only and will not affect its construction or interpretation.
10. WAIVER
The rights and remedies of the parties to this Escrow Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power or privilege under this Escrow Agreement or the
documents referred to in this Escrow Agreement will operate as a waiver of such
right, power or privilege, and no single or partial exercise of any right, power
or privilege will preclude any other or further exercise of such right, power or
privilege or any other right, power or privilege. To the maximum extent
permitted by applicable law, (a) no claim or right arising out of this Escrow
Agreement or the documents referred to in this Escrow Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Escrow Agreement or the documents referred to in this Escrow
Agreement.
11. EXCLUSIVE AGREEMENT AND MODIFICATION
This Escrow Agreement supersedes all prior agreements between the
parties with respect to its subject matter and constitutes (along with the
documents referred to in this Escrow Agreement) a complete and exclusive
statement of the agreement between the parties with respect to its subject
matter. This Escrow Agreement may not be amended except by a written agreement
executed by the Company and Escrow Agent.
12. GOVERNING LAW
This Escrow Agreement shall be governed by the laws of the State of
Ohio without regard to conflicts of law principles.
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IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement as of the Effective Date.
THE COMPANY:
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NORTHWEST ETHANOL, LLC
By: /s/ Ted W. Penner
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Its: Sec/Treas
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ESCROW AGENT:
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NATIONAL CITY BANK
By: /s/ Karen Franklin
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Its: Assistant Vice President
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