exv4w3



 





Exhibit 4.3




IMPOUNDMENT AGREEMENT




THIS
IMPOUNDMENT AGREEMENT, made and entered into July 16, 2007, by and between Agassiz Energy,
LLC, a Minnesota limited liability company (hereinafter called the
“Issuer”) and Bremer Trust, N.A.
(a national banking association) with principal offices in Crookston, Minnesota (hereinafter called
the “Impoundment Agent”);



WITNESSETH:




WHEREAS, Issuer has applied to the Commissioner of Commerce for the State of Minnesota (hereinafter
called the “Commissioner”), as well as with the U.S. Securities and Exchange Commission and other
states, for registration of 78,000,000 membership units for sale to the residents of the State of
Minnesota; and



WHEREAS, as a condition of registration of such offering under the Securities Laws of the State of
Minnesota, the Commissioner requires that the Issuer provide for the impoundment of the proceeds to
be received from such offering of securities; and



WHEREAS, the Issuer and the Impoundment Agent desire to enter into an agreement with respect to the
same impoundment of proceeds.



NOW, THEREFORE, in consideration of the premises and agreements set forth herein, the parties
hereto agree as follows:




	1.	 	PROCEEDS TO BE PLACED IN ESCROW: All proceeds received from the sale of the securities
subject to this Impoundment Agreement on or after the date hereof shall be paid to the
Impoundment Agent within two (2) business days from the date of sale, and deposited by
Impoundment Agent in an escrow account. During the term of this Impoundment Agreement, the
Issuer shall cause all checks received by it in payment for such securities to be either
payable to the Impoundment Agent or endorsed forthwith to the Impoundment Agent.
	 
	2.	 	IDENTITY OF SUBSCRIBERS: The Issuer shall cause to be delivered to the Impoundment Agent two
(2) signed counterparts of each Subscription Agreement which shall contain, among other
things, the name and address of each subscriber thereto, the date and amount subscribed, and
the amount paid, or, in the alternative, shall furnish to the Impoundment Agent with each
deposit of funds in the impoundment a list of the persons who have subscribed the money,
showing the name, address, date and amount of subscription, and amount of money paid. All
proceeds so deposited shall remain the property of the subscriber and shall not be subject to
any liens or charges by the Impoundment Agent, or judgments or creditors’ claims against the
Issuer until released to the Issuer as hereinafter provided.
	 
	3.	 	DISBURSEMENT OF FUNDS: The disbursements of funds is conditioned upon the receipt by the
Impoundment Agent of:




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	(a)	 	cash proceeds from unit sales deposited in the escrow account from received and
accepted subscriptions for a minimum of $50,000,000 in equity capital in the offering
or any subsequent offering;
	 
	(b)	 	a signed commitment letter for the debt financing from reputable lender(s) with
demonstrated ability to fulfill their obligations under the commitment letter(s) in an
amount which, when added to the amount of equity proceeds and commitments having been
received and all grant proceeds having been received or awarded will yield at least
$126,408,000;
	 
	(c)	 	an executed definitive design-build agreement with a reputable design builder
with demonstrated ability to fulfill its obligations under the design-build agreement
to construct the proposed ethanol plant; and
	 
	(d)	 	written verification that the Company has received all permits necessary to
begin construction of its proposed ethanol plant.





The disbursement of funds is further conditioned that, upon the receipt by the Impoundment
Agent of a through d, above, the Impoundment Agent notifying the Commissioner in writing of
a) the impoundment of such cash proceeds, b) the receipt of the signed commitment letter for
the debt financing and c) written verification that the Company has received all permits
necessary to begin construction. The Company must also not be subject to any legal orders
prohibiting the offering or the construction or operation of the proposed ethanol plan or
orders from the Minnesota Department of Commerce, Securities Division, revoking the
effectiveness of the registration of the units being offered in the offering. The
Commissioner must also be provided either by the Company or the Impoundment Agent with a
copy of the executed construction agreement and the written debt financing commitment
agreement.



Upon receipt of these items, the Commissioner will determine whether the minimum
requirements of impoundment have been met subject to the escrow assets verification of cash
proceeds in escrow. The Commissioner will direct the release of fund or return of the
proceeds according.



Upon receipt by the Impoundment Agent of written authorization from the Commissioner, then
the Impoundment Agent, on demand of the Issuer, shall pay over to the Issuer all impounded
funds.



If the specified minimum amount of proceeds have not been impounded during the term of
impoundment or any of the other conditions have not been satisfied, then, within three (3)
business days after the last day of the term of impoundment, the Impoundment Agent shall
notify the Commissioner in writing that the conditions of impoundment have not been
satisfied. The Impoundment Agent shall, within a reasonable time, but in no event not more
than thirty (30) days after the last day of the term of impoundment, refund to each
subscriber at the address appearing on the Subscription Agreement or list of subscribers, or
at such other address as shall be furnished to the Impoundment Agent by



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the subscriber in writing, all sums paid pursuant to the subscription, and shall then notify
the Commissioner in writing of such refund.




	4.	 	TERM OF IMPOUNDMENT: This impoundment shall terminate on the three hundred sixty-fifth
(365th) day following the effective date of the registration of the Issuer’s securities in the
State of Minnesota, unless extended by the consent in writing of the parties hereto and all
subscribers to the securities subscribed to date and the Commissioner. Upon termination
hereof, whether after extension or otherwise, the Impoundment Agent shall disburse the funds
in the impoundment account in the manner and upon the terms directed in paragraph 3 hereof.
The Issuer may abandon the sale of securities any time prior to the date above. Upon the
receipt of a copy of the Resolution authorizing said abandonment, duly attested to by the
Secretary of the Issuer, accompanied by the written consent of the Commissioner, Impoundment
Agent shall be authorized to refund the moneys received from the subscribers.






	5.	 	TERMINATION BY REVOCATION OR SUSPENSION: If at any time prior to the termination under
paragraph 4 of this Impoundment Agreement, said Impoundment Agent is advised by the
Commissioner that the registration to sell securities has been revoked or suspended, said
Impoundment Agent shall thereupon return all funds to the respective subscribers.






	6.	 	CONSENT OF COMMISSIONER TO RELEASE FUNDS: No funds shall be released to the Issuer hereunder
except upon the express written authorization of the Commissioner. If the Commissioner finds
that any conditions of this Impoundment Agreement have not been satisfied, or that any
provisions of the Minnesota Securities Laws or regulations have not been complied with, then
the Commissioner may withhold such authorization for release of funds by the Impoundment Agent
to the Issuer and may direct the Impoundment Agent to return the funds to the subscribers. In
making a determination hereunder, the Commissioner may require from the Issuer a statement of
all expenses and/or all amounts paid into the escrow, certified by an independent certified
public accountant or an officer of the Issuer and any further financial or other information
as the Commissioner may deem appropriate or helpful in making such determination.






	7.	 	INSPECTION OF RECORDS: The Commissioner may, at any time, inspect the records of the
Impoundment Agent, insofar as they relate to this Impoundment Agreement, for the purpose of
determining compliance with and conformance to the provisions of this Impoundment Agreement.






	8.	 	DUTY AND LIABILITY OF THE IMPOUNDMENT AGENT: The sole duty of the Impoundment Agent, other
than as herein specified, shall be to receive said funds and hold them subject to release, in
accordance with the written instructions of the Commissioner, and the Impoundment Agent shall
be under no duty to determine whether the Issuer is complying with requirements of the
Commissioner in tendering to the Impoundment Agent said proceeds of the sale of said
securities.





The Impoundment Agent may conclusively rely upon and shall be protected in acting upon any
statement, certificate, notice, request, consent, order or other document believed



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	 	 	by it to be genuine and to have been signed or presented by the proper party or parties.
The Impoundment 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 Impoundment Agreement. The Impoundment
Agent shall be under no obligation to institute or defend any action, suit or proceeding in
connection with this Impoundment Agreement unless first indemnified to its satisfaction.
The Impoundment Agent may consult counsel in respect of any question arising under this
Impoundment Agreement and the Impoundment Agent shall not be liable for any action taken or
omitted in good faith upon advice of such counsel. All funds held by Impoundment Agent
pursuant to this Impoundment Agreement shall constitute trust property for the purposes for
which they are held and the Impoundment Agent shall not be liable for any interest thereon.







	9.	 	IMPOUNDMENT AGENT’S FEE: The Impoundment Agent shall be entitled to reasonable compensation
for its services. The fee agreed upon for services rendered hereunder is intended as full
compensation for the Impoundment Agent’s services as contemplated by this Impoundment
Agreement; provided, however, in the event that the conditions of this Impoundment Agreement
are not fulfilled, or the Impoundment Agent renders any material service not contemplated in
this Impoundment Agreement, or there is any assignment of interest in the subject matter of
this Impoundment Agreement, or any material modification hereof, or if any material
controversy arises hereunder, or the Impoundment Agent is made a party to or justifiably
intervenes in any litigation pertaining to this Impoundment Agreement, or the subject matter
hereof, the Impoundment 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 the same may be recoverable from the Issuer
only.






	10.	 	BINDING AGREEMENT AND SUBSTITUTION OF IMPOUNDMENT AGENT: The terms and conditions of this
Impoundment Agreement shall be binding on the heirs, executors and assigns, creditors or
transferees, or successors in interest, whether by operation of law or otherwise, of the
parties hereto. If, for any reason, the Impoundment Agent named herein should be unable or
unwilling to continue as such Impoundment Agent, then the other parties to this Impoundment
Agreement may substitute, with the consent of the Commissioner, another Impoundment Agent.
Any apportionment of the fees provided for in paragraph 9 will be subject to agreement of the
parties.






	11.	 	ISSUANCE OF CERTIFICATES: Until the terms of this Impoundment Agreement have been met and
the funds hereunder released to the Issuer, the Issuer may not issue any certificates or other
evidences of securities, except subscription agreements.




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IN WITNESS WHEREOF, the parties hereto have executed this Impoundment Agreement on the date first
above written.



	 	 	 
	ISSUER:	 	
IMPOUNDMENT AGENT:
	AGASSIZ ENERGY, LLC	 	
BREMER TRUST, N.A.
	By:  /s/ Donald Sargeant	 	By: /s/ C. B. Hiller
	 

Its:  President	 	 

Its: Senior Vice President
	Accepted for filing:	 	 
	 

Commissioner of Commerce	 	 






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