June 1, 2007
June
1,
0000
Xxxx
Xxxxxx
Xxxxxxxx
Xxxx BioEnergy LLC
000
X.
Xxxxxx Xxxxxx
Xxxxxx,
Xxxx 00000
Subject: Southern
Iowa BioEnergy Engagement Agreement
Dear
Xxxx:
This
Letter Agreement (“Agreement”) will confirm the engagement of Ascendant
Financial Partners, LLC. (“AFP”) by Southern Iowa BioEnergy LLC (the “Company”)
as a financial advisor to the Company in connection with the various financial
advisory services described below (the “Services”). In its capacity as
consultant AFP shall provide each of the Services described below, together
with
such additional services as may be requested by the Company and agreed to by
AFP
in the future. The Company understands and agrees that in the performance of
its
Services AFP will not be recommending that a specific or even general course
of
action be undertaken by the Company, the intent being that AFP may present
options from which the Company is free to pursue or not, according to its own
business judgment and that of its own professional advisors.
ENGAGEMENT
AGREEMENT
|
Engagement
Letter Date:
|
June
1, 2007
|
|
Project
Number:
|
070601
|
|
Project
Description:
|
Financial
Advisory Services
|
|
AFP
Contact:
|
Xxxxx
Xxxx
|
|
0000
XXX Xxxxxxx; Xxx. X-0000
|
|
|
Xxxxxxxxx
Xxxxxxx, XX 00000
|
|
|
303.221.4700
(office)
|
|
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303.88207311
(cell)
|
|
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xxxxx@xxxxxxxxxxx.xxx
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Section
1.
|
a.
|
Services
to be Rendered.
AFP agrees to provide financial advisory services to the Company
as the
Company raises its debt capital for its biodiesel project. AFP shall
use
its best efforts to place debt capital for the project, including
identifying debt capital sources, discussing the project with debt
capital
sources, assisting with structuring and negotiating the debt and
closing
the debt transaction. AFP shall serve as debt placement agent for
SIBE and
shall be paid for any debt received by SIBE regardless of source
or
identifying party and shall be paid according to Section 2 below
except as
hereinafter specifically described. SIBE has a pre-existing relationship
with Great Western Bank of Omaha and has had discussions with Great
Western Bank regarding debt financing, and notwithstanding anything
to the
contrary in this Agreement, AFP shall not be paid for any debt financing
received by SIBE from Great Western
Bank.
|
|
b.
|
Estimated
Delivery Schedule.
Engagement
and start dates are subject to receipt of the approved Engagement
Agreement. AFP agrees to begin the services under this engagement
upon the
execution of the engagement letter. The term of the engagement shall
be
six months and shall be automatically renewed each month unless cancelled
by either party with 30 days advance
notice.
|
Section
2. Fees.
The
Company shall pay AFP 1.5% of the amount of debt capital raised by SIBE or
its
successors or assigns, regardless of the source, amount or type of debt capital
received by SIBE or whether the debt is sourced by AFP or any other party.
The
Fees shall be paid upon the financial close of the project and wired to AFP
as
of such closing date from the debt proceeds. In addition if SIBE completes
a
transaction with any party introduced by AFP within 12 months of the termination
of this agreement, AFP shall be due the aforementioned Fees.
Section
3. Expenses.
In
addition to any fees payable to AFP hereunder and regardless of whether the
Company takes any action with respect to the Services provided, the Company
shall reimburse AFP for reasonable out-of-pocket expenses incurred in connection
with AFP’s engagement hereunder. Travel expenses will be invoiced with the
invoice time period in which they were incurred. Invoice payments are due within
thirty (30) days after receipt of the invoice.
Section
4. Indemnification.
|
a.
|
The
Company shall defend, indemnify and hold harmless AFP, and its affiliates,
officers, directors, members/shareholders, employees and agents from
and
against any and all claims, suits, demands, losses, liabilities,
costs,
damages and expenses, including attorneys’ fees and court costs, suffered
or incurred by any such party arising from or relating to: (i) the
material breach of any warranty, representation, term, covenant or
condition by Consultant under this Agreement; and (ii) Consultant’s fraud,
negligence, willful misconduct, or knowing violation of the law in
the
performance of its obligations under this
Agreement.
|
|
b.
|
AFP
shall defend, indemnify and hold harmless Company, and its affiliates,
officers, directors, members, employees and agents from and against
any
and all claims, suits, demands, losses, liabilities, costs, damages
and
expenses, including attorneys’ fees and court costs, suffered or incurred
by any such party arising from or relating to: (i) the material breach
of
any warranty, representation, term, covenant or condition by Consultant
under this Agreement; and (ii) Consultant’s fraud, negligence, willful
misconduct, or knowing violation of the law in the performance of
its
obligations under this Agreement.
|
|
c.
|
In
any instance where either party is entitled to claim indemnity under
the
provisions of this Section, such party shall provide reasonable notice
to
the indemnifying party a claim has been made or a lawsuit has been
filed
and of its demand to defend. If the indemnifying party fails to provide
a
reasonable and timely defense as contemplated herein, the party entitled
to indemnification may undertake its own defense and hold the indemnifying
party responsible for the costs and results
thereof.
|
2
Section
5. Termination
of Engagement, Etc.
AFP
engagement hereunder may be terminated by either the Company or AFP at any
time,
with or without cause, upon 30 days written notice to the other party;
provided
however,
that
AFP will be entitled to all of its fees and expenses accrued to date under
Sections 2 and 3 hereof in the event that AFP’s engagement hereunder is
terminated prior to the completion of the Services. The provisions of Sections
4
and 6 hereof shall survive such termination.
Section
6. Confidentiality;
Nonexclusivity.
Neither
the Company nor any of its shareholders/members, directors, officers or
employees nor AFP nor any of its shareholders/members, directors, officers
or
employees shall make any disclosures or statements to third parties with respect
to information disclosed by the Company (or at the request of the Company)
to
AFP in connection with the performance of the Services unless (i) the Company
and AFP have consulted with each other and approved such public disclosures
or
statements, (ii) such disclosures or statements are required by applicable
law,
regulation or legal process, or (iii) the information disclosed is publicly
available.
AFP
and
its shareholders, directors, officers and employees shall keep confidential
all
information concerning the Company obtained by it in connection with the
performance of its Services hereunder, except (i) to AFP agents, legal counsel
or to other consultants to the extent disclosure of such information is
necessary to AFP’s performance of the Services on behalf of the Company, (ii) as
required by applicable law, regulation or legal process, or (iii) to the extent
such information is or becomes public knowledge otherwise than through the
actions or effects of AFP (the “Confidential Information”).
The
Company acknowledges and agrees that its engagement of AFP hereunder is not
exclusive and that AFP may, at its option, provide similar Services to third
parties. AFP shall take reasonable steps and use its best efforts to insure
that
no conversations or exchange of documents or other information related to the
Services occurs between employees or agents of AFP providing Services to the
Company and those who may be providing similar Services to such third
parties.
Section
7. Notices.
Any
notice required or permitted to be given under this Agreement shall be in
writing, and shall be deemed to have been sufficiently given when directly
presented or sent prepaid, first class United States Mail, addressed as
follows:
Xx.
Xxxx
Xxxxxx
000
X.
Xxxxxx Xxxxxx
Xxxxxx,
Xxxx 00000
Xx.
Xxxxx
Xxxx
Ascendant
Financial Partners, LLC
0000
XXX
Xxxxxxx; Xxxxx X-0000
Xxxxxxxxx
Xxxxxxx, XX 00000
Section
8. Miscellaneous.
This
Agreement (i) shall be governed by and construed in accordance with the laws
of
the State of Iowa, (ii) shall not be amended or otherwise modified except by
an
instrument in writing signed by both AFP and the Company, and (iii) may be
signed in counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument. This Agreement shall
inure to the benefit of and be binding upon the respective parties, their
successors and assigns. This instrument contains the entire agreement of the
parties, and all prior or contemporaneous negotiations, understandings, and
agreements are incorporated herein. The signatories to this Agreement represent
that he or she has the proper corporate authority to execute this document
on
behalf of his or her respective entity. In any action to enforce this Agreement,
the prevailing party shall be entitled to reasonable attorneys’
fees.
3
AFP
is
looking forward to working with you on this important assignment.
Please
confirm that this Agreement is in accordance with your understanding and
agreement with AFP by signing and returning to AFP the duplicate of this letter
enclosed herewith.
Very
truly yours,
Ascendant
Partners, Inc
ACCEPTED
AND AGREED AS OF THE DATE FIRST ABOVE WRITTEN:
Effective
Start Date:
| By: | /s/ Xxxxx Xxxx | By: | /s/ Xxxxxxx X. Xxxxxx | |
|
(Signature)
Name: Xxxxx
Xxxx
|
(Signature)
Name: Xxxxxxx
X. Xxxxxx
|
|||
|
Title: President
Date: June
11, 2007
|
Title: President
Date: June
11, 2007
|
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