ESCROW AGREEMENT FOR ESCROWED DOCUMENT
ESCROW
AGREEMENT FOR ESCROWED DOCUMENT
This
ESCROW
AGREEMENT
(this
“Escrow
Agreement”),
dated
June 13, 2008, is by and among Allegro
Biodiesel Corporation,
a
Delaware corporation (“Allegro”),
the
former members of Vanguard Synfuels, L.L.C.,
a
Louisiana limited liability company (hereinafter referred to as the
“Members”),
represented herein by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in his capacity as Member Representative
under that certain Escrow Agreement dated as of September 20, 2006 among
Allegro, the Members and JPMorgan Chase Bank, N.A. (in such capacity,
hereinafter referred to as the “Member
Representative”),
Consolidated
Energy Holdings, LLC, a
Louisiana limited liability company (“Consolidated”),
and
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ of
▇▇▇▇▇▇
▇▇▇▇▇▇, LLP (in its capacity as escrow agent hereunder, the “Escrow
Agent”).
Capitalized terms used but not defined herein shall have the meanings given
to
them in that certain Interest Purchase Agreement or the Agreement to Settle
Certain Claims (collectively referred to herein as the “Agreements”),
dated
as of June 13, 2008. The Parties acknowledge that Escrow Agent is not a party
to
and will not be responsible for the Agreements.
WITNESSETH:
WHEREAS,
pursuant to the Agreements, Allegro, Consolidated and the Members (the
“Parties”)
have
agreed to certain terms and conditions to settling various outstanding issues
as
set forth in the Agreements;
WHEREAS,
pursuant to the terms of Section 5.8 of the Interest Purchase Agreement, Allegro
and Consolidated agreed to deposit into escrow the Joint Escrow Instructions
signed by both Allegro and the Member Representative on June 13, 2008, to be
held and distributed by the Escrow Agent in accordance with the terms and
conditions of Section 5.8 of the Interest Purchase Agreement and this Escrow
Agreement;
NOW,
THEREFORE,
for and
in consideration of the mutual agreements and covenants contained herein and
in
the Agreements, the parties hereto hereby agree as follows:
Section
1. Appointment
of Escrow Agent.
The
Parties hereby appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇▇▇, LLP as Escrow Agent
for
the purposes set forth herein, and Escrow Agent hereby accepts such
appointment.
Section
2. Deposit
of Escrowed Document.
Concurrently
with the execution and delivery of this Escrow Agreement, in accordance with
Section 5.8 of the Interest Purchase Agreement, Allegro and the Members have
deposited with the Escrow Agent, which hereby acknowledges receipt of same,
the
Joint Escrow Instructions executed on June 13, 2008 (the “Escrowed
Document”)
to be
held and delivered by the Escrow Agent in accordance with the terms and
conditions set forth in this Escrow Agreement.
Section
3. Disbursements
From the Escrow Account; Closing.
The
Escrow Agent shall deliver the Escrowed Document to JPMorgan Chase Bank, N.A.
at
the address set forth in the Escrowed Document by overnight delivery service
upon receipt of written confirmation signed by Allegro that Allegro has mailed
to Allegro’s stockholders a definitive Information Statement, as defined in the
Interest Purchase Agreement, together with a copy of such definitive Information
Statement.
Section
4. Concerning
the Escrow Agent.
(i) Notwithstanding
any provision contained herein to the contrary, the Escrow Agent, including
▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP’s officers, directors, employees and agents,
will:
(i) not
be
liable for any action taken or omitted under this Escrow Agreement so long
as he
has acted in good faith and without gross negligence or willful
misconduct;
(ii) have
no
responsibility to inquire into or determine the genuineness, authenticity,
or
sufficiency of any securities, checks, or other documents or instruments
submitted to it in connection with its duties hereunder;
(iii) be
entitled to deem the signatories of any documents or instruments submitted
to it
hereunder as being those purported to be authorized to sign such documents
or
instruments on behalf of the parties hereto, and will be entitled to rely upon
the genuineness of the signatures of such signatories without inquiry and
without requiring substantiating evidence of any kind;
(iv) [Reserved];
(v) be
indemnified and saved harmless by the Parties from any and all losses,
liabilities, claims, proceedings, suits, demands, penalties, costs and expenses,
including without limitation reasonable fees and expenses of outside counsel
and
experts and their staffs and all reasonable expenses of document location,
duplication and shipment and of preparation to defend any of the foregoing
(“Losses”),
which
may be incurred by it as a result of its execution, delivery or performance
of
this Escrow Agreement, unless such Losses are caused by the bad faith, gross
negligence or willful misconduct of the Escrow Agent, and the provisions of
this
Section 4(a)(v) will survive the resignation or removal of the Escrow Agent
and
the termination of this Escrow Agreement;
(vi) have
only
those duties as are specifically provided herein, which will be deemed purely
ministerial in nature, and will under no circumstance be deemed a fiduciary
for
any of the other Parties. The Escrow Agent will neither be responsible for,
nor
chargeable with, knowledge of the terms and conditions of any other agreement,
instrument or document between the other parties hereto, in connection herewith,
including without limitation the Agreements. This Escrow Agreement sets forth
all matters pertinent to the Escrowed Document contemplated hereunder, and
no
additional obligations of the Escrow Agent will be inferred from the terms
of
this Escrow Agreement or any other Agreement. IN NO EVENT WILL THE ESCROW AGENT
BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL
LOSSES OR DAMAGES OF ANY KIND WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST
PROFITS), EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES AND REGARDLESS OF THE FORM OF ACTION;
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(vii) have
the
right, but not the obligation, to consult with and retain counsel of its choice
with respect to matters (including but not limited to litigation) arising out
of
this Escrow Agreement and will not be liable for action taken or omitted to
be
taken by Escrow Agent in good faith in accordance with the advice of such
counsel; and
(viii) have
the
right to perform any of its duties hereunder through agents, attorneys,
custodians or nominees.
Section
5. Resignation
or Removal of Escrow Agent.
The
Escrow Agent may resign as such following the giving of thirty (30) days prior
notice to the Parties. Similarly, the Escrow Agent may be removed and replaced
following the giving of thirty (30) days prior notice to the Escrow Agent by
the
Parties. In either event, the duties of the Escrow Agent will terminate thirty
(30) days after receipt of such notice (or as of such earlier date as may be
mutually agreeable); and the Escrow Agent will then deliver the balance of
the
documents then in its possession to a successor escrow agent as will be
appointed by the Parties as evidenced by notice to the Escrow
Agent.
If
the
Parties hereto have failed to appoint a successor to the Escrow Agent prior
to
the expiration of thirty days following receipt of the notice of resignation
or
removal, the Escrow Agent may appoint a successor or petition any court of
competent jurisdiction in Louisiana for the appointment of a successor escrow
agent or for other appropriate relief, and any such resulting appointment shall
be binding upon all of the parties hereto.
Section
6. Termination
This
Escrow Agreement shall automatically terminate on the date on which the Escrowed
Document has been duly disbursed in accordance with Section 3
hereof.
Section
7. Notices
Any
notice or other communication required or permitted by this Escrow Agreement
shall be in writing and shall be deemed given to a Party when (i) delivered
by
hand or by nationally recognized overnight courier service (costs prepaid);
or
(ii) received or rejected by the addressee, if sent by certified mail, return
receipt requested, in each case to such Party at the address or facsimile number
and marked to the attention of the person (by name or title) designated for
such
party below (or to such other address, facsimile number or person as such party
may designate by notice to the other parties):
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If
to Allegro, addressed as follows:
Allegro
Biodiesel Corporation
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
W. ▇▇▇▇▇ ▇▇▇▇▇ III
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to:
Sidley
Austin LLP
▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
If
to the Member Representative:
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
#▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn
: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
City
Plaza
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
23rd
Floor, One American Place
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn:
B. ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
|
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If
to Consolidated, addressed as follows.
Consolidated
Energy Holdings, LLC
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
#▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn
: ▇▇▇▇ ▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
City
Plaza
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
If
to Escrow Agent:
▇▇▇▇▇▇
▇▇▇▇▇▇ LLP
City
Plaza
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Notwithstanding
the above, in the case of communications delivered to the Escrow Agent such
communications shall be deemed to have been given on the date received by the
Escrow Agent. In the event that the Escrow Agent, in its sole discretion, shall
determine that an emergency exists, the Escrow Agent may use such other means
of
communication as the Escrow Agent deems appropriate. “Business Day” shall mean
any
day
other than a Saturday, Sunday or any other day on which the Escrow Agent located
at the notice address set forth above is authorized or required by law or
executive order to remain closed.
Section
8. Governing
Law; Counterparts.
This
Escrow Agreement shall be construed in accordance with the laws of the State
of
Louisiana without regard to the conflicts of law principles thereof. Each Party
hereto irrevocably waives any objection on the grounds of venue, forum
non-conveniens or any similar grounds and irrevocably consents to service of
process by mail or in any other manner permitted by applicable law and consents
to the jurisdiction of the courts located in the State of Louisiana. The Parties
further hereby waive any right to a trial by jury with respect to any lawsuit
or
judicial proceeding arising or relating to this Escrow Agreement. This Escrow
Agreement may be executed in multiple counterparts, each which shall constitute
an original and all of which taken together shall constitute one and the same
instrument. All signatures of the Parties to this Escrow Agreement may be
transmitted by facsimile, and such facsimile will, for all purposes, be deemed
to be the original signature of such party whose signature it reproduces, and
will be binding upon such party.
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Section
9. Amendment,
Modification or Waiver.
This
Escrow Agreement may be amended or modified, and any term of this Escrow
Agreement may be waived, only if such amendment, modification or waiver is
in
writing and signed by the Parties and the Escrow Agent.
Section
10. Assignment.
This
Escrow Agreement shall be binding upon and inure to the benefit of the
successors, heirs and permitted assigns of the Parties.
Section
11. Force
Majeure
Notwithstanding
any other provision of this Escrow Agreement, the Escrow Agent shall not be
obligated to perform any obligation hereunder and will not incur any liability
for the nonperformance or breach of any obligation hereunder to the extent
that
the Escrow Agent is delayed in performing, unable to perform or breaches such
obligation because of acts of God, war, terrorism, fire, floods, strikes,
electrical outages, equipment or transmission failures, or other causes
reasonably beyond its control.
Section
12 Severability
and Operation of Law.
If
any
provision of this Escrow Agreement is prohibited by the laws of any jurisdiction
as those laws apply to this Escrow Agreement, that provision shall be
ineffective to the extent of such prohibition and/or shall be modified to
conform with such laws, without invalidating the remaining provisions
hereto.
Section
13. Extension;
Waiver.
The
failure of any party to this Escrow Agreement to assert any of its rights under
this Escrow Agreement or otherwise shall not constitute a waiver of such rights.
Further, no waiver by either party of any term, condition, default, or breach
shall constitute or be construed as a waiver of any other term, condition,
default, or breach of this Escrow Agreement.
Section
14. Entire
Agreement, No Third Party Beneficiaries.
This
Escrow Agreement, constitutes the entire Escrow Agreement among the parties
hereto and supersedes any and all other prior Escrow Agreements and
undertakings, both written and oral, among the parties hereto, or any of them,
with respect to the subject matter hereof and, except as otherwise expressly
provided herein, is not intended to confer upon any person other than the
Parties any rights or remedies hereunder.
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IN
WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the
day
and year first above written.
| ALLEGRO BIODIESEL CORPORATION | ||
| |
|
|
| By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇, III | ||
| Name: W. ▇▇▇▇▇ ▇▇▇▇▇, III | ||
| Title: Chief Executive Officer | ||
| MEMBERS: | ||
| |
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Member Representative | ||
| CONSOLIDATED ENERGY HOLDINGS, LLC | ||
| |
|
|
| By: /s/ ▇▇▇▇ ▇▇▇▇▇ | ||
| Name: ▇▇▇▇ ▇▇▇▇▇ | ||
| Title: Member authorized by the Manager | ||
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, escrow agent | ||
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