EXHIBIT 4.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of the ___
day of _______, 2002, among ▇▇▇▇▇▇ Investment Corporation, a Minnesota
corporation (the "Company"), ▇▇▇▇▇▇▇▇▇ & Company LLC, a Minnesota limited
liability company ("Managing Agent"), and [M&I BANK], a [MINNESOTA] banking
corporation (the "Escrow Agent").
WHEREAS, the Company intends to publicly offer (the
"Offering") a minimum of $1,500,000 and a maximum of $6,000,000 of its Senior
Subordinated Adjustable Rate Notes (the "Notes"); and
WHEREAS, it has been determined that the proceeds to be
received from the Offering should be placed in escrow until such time as the
conditions precedent for release of such funds (as set forth below) have been
met; and
WHEREAS, the Escrow Agent is willing to accept appointment as
escrow agent for only the expressed duties, terms and conditions outlined
herein.
NOW, THEREFORE, in consideration of the premises and
agreements set forth herein, the parties hereto agree as follows:
1. PROCEEDS TO BE ESCROWED. All funds received from investors
prior to the closing of the Offering in payment for the Notes will be deposited
with or wired to the Escrow Agent and shall be retained in an escrow account by
the Escrow Agent and invested as stated herein. During the term of this
Agreement, the Company shall cause all checks received by and made payable to it
in payment for the Notes to be endorsed in favor of the ▇▇▇▇▇▇ Investment
Corporation Escrow Account.
In the event that any checks deposited in the escrow account
prove uncollectible after the funds represented thereby have been released by
the Escrow Agent to the Company, then the Company shall promptly reimburse the
Escrow Agent for the face amount of any such checks and all costs incurred in
connection with such checks, and the Escrow Agent shall deliver the returned
checks to the Company.
2. IDENTITY OF INVESTORS. The Managing Agent shall furnish to
the Escrow Agent with each delivery of funds, as provided in Section 1 hereof, a
list of the persons who have paid money for the purchase of the Notes showing
the name, address, amount of Notes subscribed for and the amount of money paid.
All proceeds so deposited shall remain the property of the investors and shall
not be subject to any liens or charges by the Company, the Escrow Agent, or
judgments or creditors' claims against the Company, until released to the
Company as hereinafter provided. The Escrow Agent will not use the information
provided to it by the Company for any purpose other than to fulfill its
obligations as Escrow Agent. Regardless, the Escrow Agent will treat this
information as confidential.
3. DISBURSEMENT OF FUNDS. From time to time, and at the end of
the third business day following the Termination Date (as defined in Section 4
hereof), the Escrow Agent shall notify the Company of the amount of investors'
funds received hereunder. Provided that the Company and the Managing Agent
deliver a written notice, signed by their duly authorized officers, stating that
the Company and the Managing Agent are otherwise prepared for a closing of the
Offering, then the Escrow Agent shall pay out the escrowed funds and all
earnings thereon when and as directed by the Company and the Managing Agent. If
the Offering has not been sold prior to the Termination Date, the Escrow Agent
shall, within a reasonable time following the Termination Date, but in no event
more than 30 days thereafter, refund to each of the investors at the address
appearing on the list of investors, or at such other address as shall be
furnished to the Escrow Agent by an investor in writing, all sums paid by the
investors for the Notes, including accrued interest, and shall then notify the
Company and the Managing Agent in writing of such refunds.
4. TERM OF ESCROW. The "Termination Date" shall be the earlier
of _______, 2002 (subject to extension as agreed to by the Company and the
Managing Agent); or (ii) the date the Escrow Agent receives written notice from
the Company and the Managing Agent that they are abandoning the sale of the
Notes, subject to Section 3. In all events this Agreement shall terminate upon
the one-year anniversary from the date hereof.
5. DUTY AND LIABILITY OF THE ESCROW AGENT. The sole duty of
the Escrow Agent, other than as herein specified, shall be to receive escrowed
funds and hold them subject to release, in accordance herewith, and the Escrow
Agent shall be under no duty to determine whether the Company is complying with
requirements of this Agreement in tendering to the Escrow Agent said proceeds of
the sale of the Notes. 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 by the Company 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.
6. ESCROW AGENT'S FEE. The Escrow Agent shall be entitled to
_____________ Dollars ($______) as total compensation for its services rendered
pursuant to the terms hereof, which compensation shall be paid by the Company.
The fee agreed upon for the services rendered hereunder is intended as full
compensation for the Escrow Agent's services as contemplated by this Agreement;
provided, however, that in the event that the conditions for the disbursement of
2
funds under this Agreement are not fulfilled, or 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 attorneys' fees, occasioned by any delay, controversy,
litigation or event, and all of the foregoing shall be recoverable from the
Company.
7. INVESTMENT OF PROCEEDS. All funds held by the Escrow Agent
pursuant to this Agreement shall constitute trust property for the purposes for
which they are held. The Escrow Agent shall invest all funds received from
investors in an interest bearing account, with all such interest being payable
to the investors who have tendered subscriptions for Notes, which payment shall
be made simultaneously with any disbursement of the escrowed funds referenced in
Section 3 above.
8. ISSUANCE OF CERTIFICATES. Until the terms of this Agreement
with respect to the Notes have been met and the funds hereunder received from
subscriptions for the Notes have been released to the Company, the Company may
not issue any certificates or other evidence of the Notes.
9. 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 day after delivery 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 THE COMPANY:
▇▇▇▇▇▇ Investment Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone (▇▇▇) ▇▇▇-▇▇▇▇
Attn. Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
3
IF TO THE MANAGING AGENT:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & Company LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE ESCROW AGENT:
[NAME]
[ADDRESS]
[ADDRESS]
Minneapolis, Minnesota [ZIP]
Phone (612) [PHONE NUMBER]
Wires to the Escrow Agent should be directed to the following:
________________________
Minneapolis, Minnesota
ABA No. ___________________
For further credit to _______________________
For credit to: ▇▇▇▇▇▇ Investment Corporation, account no. ___________.
Any party may change its address for purposes of this Section by giving the
other party written notice of the new address in the manner set forth above.
10. INDEMNIFICATION OF ESCROW AGENT: The Company 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
willful misconduct of the Escrow Agent. The Escrow Agent may consult counsel in
respect of any question arising under this Agreement and Escrow Agent shall not
be liable for any action taken or omitted in good faith upon advice of such
counsel.
11. 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.
12. GOVERNING LAW; JURISDICTION. 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 conflicts of laws thereof. Each party hereby consents to the personal
jurisdiction and venue of any United States District Court for the District of
Minnesota located in Hennepin County, Minnesota.
4
13. 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.
14. AMENDMENTS; WAIVERS. 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 this Agreement, in any one or
more instances, shall not be deemed to be nor construed as further or continuing
waiver of any such condition, or of the breach of any other provision, term,
covenant, representation, or warranty of this Agreement.
15. 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.
16. SECTION HEADINGS. The Section headings in this Agreement
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute the same instrument.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. RESIGNATION. The Escrow Agent may resign upon 30 days
advance written notice to the Company and the Managing Agent. If a successor
escrow agent is not appointed within the 30-day period following such notice,
the Escrow Agent may petition any court of competent jurisdiction to name a
successor escrow agent.
5
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed the day and year first set forth above.
▇▇▇▇▇▇ INVESTMENT CORPORATION
By:
-------------------------------------
Its:
-------------------------------------
▇▇▇▇▇▇▇▇▇ & COMPANY LLC
By:
-------------------------------------
Its:
-------------------------------------
[M&I BANK]
By:
-------------------------------------
Its:
-------------------------------------
6