EXHIBIT 10.12
FINANCIAL SERVICES AGREEMENT
This Financial Services Agreement (this "Agreement") is entered into
this 30/th/ day of December, 2002, by and between Oregon Trail Ethanol
Coalition, L.L.C., a Nebraska limited liability company ("The Company"), and
U.S. Bancorp Xxxxx Xxxxxxx Inc., a Minnesota corporation ("U.S. Bancorp Xxxxx
Xxxxxxx").
RECITALS:
Whereas, The Company is desirous of developing, constructing and
operating a minimum 40 million gallon ethanol production facility in Davenport,
Nebraska (the "Project");
Whereas, U.S. Bancorp Xxxxx Xxxxxxx has experience with and can provide
advice on financial matters and assistance regarding project financing; and
Whereas, The Company is desirous of obtaining the services of U.S.
Bancorp Xxxxx Xxxxxxx to provide such advice on financial matters and assistance
regarding project financing in connection with the Project.
Now, Therefore, in consideration of the mutual covenants and
stipulations hereafter, the parties agree as follows:
Section 1. (A) Services. U.S. Bancorp Xxxxx Xxxxxxx shall provide to
The Company the following services (the "Services") in connection with the
Project:
(1) Assist and advise The Company in developing and
implementing a strategy for the financing needs for the Project and The
Company, including equity and debt;
(2) Assist and advise The Company in evaluating financial
options, including associated costs and technical aspects of any U.S.
Department of Agriculture guarantee program, tax increment financing
revenue bonds, subordinated debt, and state and federal grants;
(3) Assist and advise The Company in sourcing and evaluating
negotiations of debt financing for the Project, including construction
financing and long-term debt financing;
(4) Assist and advise The Company in the preparation of a
development business plan (the "Business Plan") with five years of
operation projections;
(5) Assist and advise The Company in credit analyses,
submissions, and presentations; and
(6) Services rendered in connection with the Private Debt
Placement, as described below.
In addition, U.S. Bancorp Xxxxx Xxxxxxx agrees to act as The Company's
exclusive selling agent to solicit purchases of equity and debt on a "best
efforts" basis. The equity offering and the compensation of U.S. Bancorp Xxxxx
Xxxxxxx related to such equity offering shall be pursuant to an agency agreement
to be entered into by The Company and U.S. Bancorp Xxxxx Xxxxxxx (the "Agency
Agreement").
(B) Private Debt Placement. The offering of debt will be made by a
private placement memorandum (including any amendments thereto, the
"Memorandum") to be prepared by The Company in connection with a syndicated
commercial transaction or otherwise. Any offers and sales of debt securities
will be made in accordance with the exemptions from registration under the
Securities Act of 1933, as amended (the "Act"), as provided by Section 4(2)
and/or Regulation D, Rule 506 under the Act, and other available exemptions
under the Act and applicable State or other jurisdictions securities laws (the
"Private Debt Placement").
U.S. Bancorp Xxxxx Xxxxxxx will consult with The Company in planning
the Private Debt Placement and review with The Company and its counsel all
preliminary and final revisions of the Memorandum, the subscription documents
(including investor questionnaires) related thereto, and such local securities
laws' compliance as may be required as a result of the Private Debt Placement.
All documents to be used in the Private Debt Placement are to be reviewed by
U.S. Bancorp Xxxxx Xxxxxxx prior to use by The Company in making offers or
sales.
It is understood that The Company may in its discretion postpone,
modify, abandon or terminate the Private Debt Placement at any time prior to its
consummation. U.S. Bancorp Xxxxx Xxxxxxx may decline to participate in the
Private Debt Placement if it reasonably determines that the offering has become
impracticable or undesirable. Subject to prior approval by The Company, U.S.
Bancorp Xxxxx Xxxxxxx reserves the right to retain other NASD broker/dealers to
act as subagents on its behalf and to retain foreign representatives to act on
its behalf for offers to non-U.S. persons (as defined under the Act), subject to
their agreement to the terms hereof.
Section 2. Compensation.
(A) Fees. In consideration of the Services, The Company will pay to
U.S. Bancorp Xxxxx Xxxxxxx a fee as a percentage of Total Project Capitalization
as set forth in the following table. All capitalized terms in this Section 2(A)
are defined in Section 2(B) below.
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Payment
Fee Terms
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1.5833% of Total Project Capitalization Due in full at time of
less all equity capitalization, Lurgi/PSI Financial Close
debt or equity investment and any and all
grants or seed capital investment granted
or received as of the date of the signing
of this agreement.
0.25% of Total Project Capitalization less Prorated over 9 months
all equity capitalization, Lurgi/PSI debt after Successful
or equity investment and any and all Commissioning
grants or seed capital investment granted
or received as of the date of the signing
of this agreement.
The fees described in this Section 2(A) are in addition to any fees or
commissions payable to U.S. Bancorp Xxxxx Xxxxxxx by The Company under the
Agency Agreement.
(B) Definitions:
Financial Close: Closing on all Project Financing; provided, however,
that "Project Financing" shall not include financing related to any equity
offering by The Company.
Successful Commissioning: Production of ethanol meeting design
specifications on a daily basis of nameplate production and all production meets
the guarantees provided by the general contractor and engineer, each as agreed
upon by The Company and U.S. Bancorp Xxxxx Xxxxxxx.
Project Financing: Total debt financing of the Project.
Total Project Capitalization: The total source of funds including, but
not limited to, grants, subordinated debt, senior debts, the equity portion of
Working Capital, and revolving line of credit all as established as of Financial
Close; provided, however, "Total Project Capitalization" does not include any
proceeds raised as a result of any private or public equity offering, Seed
Capital Equity, Lurgi/PSI debt or equity investment, any and all grants received
before or after the date of the signing of this agreement (unless U.S. Bancorp
Xxxxx Xxxxxxx substantially participated in obtaining the grant), and any and
all seed capital investment received by The Company as of the date of the
signing of this agreement.
Seed Capital Equity: At risk capital for project development.
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(C) Expenses. The Company has paid U.S. Bancorp Xxxxx Xxxxxxx a
non-refundable expense retainer of $50,000 (the "Expense Retainer"). Any unused
portion of the Expense Retainer at Financial Close will be an offset against the
fees set forth above.
U.S. Bancorp Xxxxx Xxxxxxx'x out-of-pocket expenses, including travel,
lodging, meals, communication, costs of outside financial analysis and reports
prepared in connection with providing the Services shall be deductions from the
Expense Retainer. If expenses exceeding $5,000 per month are required, U.S.
Bancorp Xxxxx Xxxxxxx shall seek pre-approval by The Company, which shall not be
unreasonably withheld. U.S. Bancorp Xxxxx Xxxxxxx shall submit monthly updated
expense reports to The Company for reimbursement.
The Company will be responsible for the payment of all costs of
issuance, fees and expenses, including, but not limited to, publication
expenses, legal counsel, bond counsel, ratings, credit enhancement, all travel,
printing of bonds, printing and distribution of required disclosure documents,
trustee fees, agent fees and CUSIP numbers.
Section 3. Term of Agreement; Termination Payment. Except as set
forth in Paragraph 5 of Exhibit A hereto, the term of this Agreement shall begin
on the date of execution set forth above and shall have an expiration date 9
months after Successful Commissioning (as such term in defined in Section 2(A)).
Either party may terminate this Agreement immediately if (1) by May 1,
2003, The Company has not raised its minimum subscription amount as set forth in
The Company's Registration Statement, as amended, filed with the U.S. Securities
and Exchange Commission, or (2) the Financial Close has not occurred by June 30,
2003.
All expenses incurred through the date of termination of this Agreement
shall be paid to the appropriate party.
Section 4. Independent Contractor. U.S. Bancorp Xxxxx Xxxxxxx is an
independent contractor and nothing in this Agreement shall constitute or
designate U.S. Bancorp Xxxxx Xxxxxxx or any of its employees or agents as
employees or agents of The Company.
Section 5. (A) Representations and Warranties of The Company. The
Company represents and warrants to U.S. Bancorp Xxxxx Xxxxxxx that it has
obtained all necessary corporate authority, permits, consents and orders
required to enter into this Agreement. This Agreement has been duly authorized
by The Company. The Company further represents and warrants that the Memorandum,
when prepared by The Company, will not contain an untrue statement of a material
fact or omit to state a material fact required to be made or necessary in order
to make the statements in the Memorandum not misleading.
(B) Representations and Warranties of U.S. Bancorp Xxxxx Xxxxxxx. U.S.
Bancorp Jaffray represents it has obtained all necessary corporate authority,
licenses, permits, consents and registration required to enter into this
Agreement and to perform and carry out the Services.
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Section 6. Arbitration. If any dispute arises out of or in connection
with this Agreement (except for any dispute arising out of or in connection with
the confidentiality provisions set forth on Exhibit A hereto), the obligations
arising under this Agreement (except for any obligations arising under the
confidentiality provisions set forth on Exhibit A hereto) or the interpretation
of this Agreement's terms (except for the interpretation of the terms of the
confidentiality provisions set forth on Exhibit A hereto), the matter shall be
referred to arbitration pursuant to the commercial rules of the American
Arbitration Association and according to the following terms:
(A) Either party may initiate arbitration by giving written
notice requesting arbitration to the other party.
(B) The parties shall select a single arbitrator by mutual
agreement, but if they fail to select an arbitrator within 10 calendar
days of the receipt of notice of arbitration, then each party shall
within seven business days thereafter, appoint their respective
arbitrator and the two arbitrators thus chosen shall together, within
seven business days of their appointment, select a third arbitrator and
that three member panel shall arbitrate the dispute. In the event that
the two arbitrators shall fail within seven business days of their
appointment to select a third arbitrator, then upon written request of
either party, the third arbitrator shall be appointed by the American
Arbitration Association. If a party shall fail to appoint an arbitrator
as required the arbitrator appointed by the other party shall be the
sole arbitrator. The arbitration shall be conducted in Omaha, Nebraska.
(C) Within 15 business days of the appointment of the
arbitrator or panel, as the case may be, each party shall state in
writing its position concerning the dispute, supported by the reasons
therefore, and deliver its position to the arbitrator(s) and the other
party. If either party fails to submit its position in a timely manner,
the position submitted by the other party shall be deemed correct, and
the arbitration shall be deemed concluded. The parties shall then have
10 calendar days to respond to the position of the other party and
deliver that response to the arbitrator(s). The arbitrator(s) shall,
within 30 calendar days thereafter, meet to consider the documents
presented in order to make a determination by majority on the issues in
dispute. Within 15 business days of the end of their meeting the
arbitrator(s) shall present their award. The arbitrator(s) may award a
party the right to terminate this Agreement if termination is a remedy
specified herein for the claim which is the subject of the arbitration.
(D) Each party in such arbitration shall bear one-half each
of the expenses of the arbitrator(s), including their fees and costs,
but each party shall bear their own expenses, including attorney's
fees.
Section 7. Indemnification and Contribution. In consideration of the
agreement of U.S. Bancorp Xxxxx Xxxxxxx to act on behalf of The Company pursuant
to this Agreement, The Company agrees to indemnify and hold harmless U.S.
Bancorp Xxxxx Xxxxxxx, its affiliates (within the meaning of the Act), and each
of their respective partners, directors, officers, agents, consultants,
employees and controlling persons (within the meaning of the Act) (U.S. Bancorp
Xxxxx Xxxxxxx and each such other person or entity are hereinafter referred to
as an "Indemnified
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Person"), from and against any losses, damages, expenses and liabilities
(collectively "Liabilities") or actions, investigations, inquiries,
arbitrations, claims or other proceedings in respect thereof, including
enforcement of this agreement (collectively "Actions") (Liabilities and Actions
are herein collectively referred to as "Losses"), as they may be incurred
(including all reasonable legal fees and other expenses incurred in connection
with investigating, preparing, defending, paying, settling or compromising any
Losses, whether or not in connection with any pending or threatened Action, and
notwithstanding the absence of a final determination as set forth below as to
The Company's obligation to reimburse an Indemnified Person for such Losses and
the possibility that such payments might later be held to have been improper) to
which any of them may become subject and which are related to or arise out of
any act, omission, transaction or event contemplated by this Agreement. The
Company will not, however, be responsible under the foregoing provisions with
respect to any Losses to the extent that it shall have been finally determined
by arbitration in accordance with the terms of this Agreement that such Losses
resulted primarily from actions taken or omitted to be taken by an Indemnified
Person due to its gross negligence or willful misconduct. To the extent that any
prior payment has been made by The Company to such Indemnified Person is so
determined to have been improper by reason of such Indemnified Person's gross
negligence or willful misconduct, such Indemnified Person shall promptly pay
such amount to The Company, together with interest, at the prime rate announced
from time to time by U.S. Bank, X.X.
X.X. Bancorp Xxxxx Xxxxxxx shall indemnify and hold harmless The
Company from and against any and all Losses based primarily on or arising
proximately from any acts of gross negligence, willful misconduct, fraud or
misrepresentations by U.S. Bancorp Xxxxx Xxxxxxx. U.S. Bancorp Xxxxx Xxxxxxx
shall follow the same procedure for indemnification of The Company as set forth
in this Section 7 as if The Company was the "Indemnified Person".
If the indemnity provided for in this Section 7 should be, for any
reason whatsoever, unenforceable, unavailable or otherwise insufficient to hold
each Indemnified Person harmless, The Company shall pay to or on behalf of each
Indemnified Person contributions for Losses so that each Indemnified Person
ultimately bears only a portion of such Losses as is appropriate (i) to reflect
the relative benefits received by each such Indemnified Person, respectively, on
the one hand and The Company on the other hand in connection with the
transaction or (ii) if the allocation on that basis is not permitted by
applicable law, to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of each such Indemnified Person,
respectively, and The Company as well as any other relevant equitable
considerations; provided, however, that in no event shall the aggregate
contribution of all Indemnified Persons to all Losses in connection with any
transaction exceed the amount of the compensation actually received by U.S.
Bancorp Xxxxx Xxxxxxx pursuant to this Agreement. The respective relative
benefits received by U.S. Bancorp Xxxxx Xxxxxxx and The Company in connection
with any transaction shall be deemed to be in the same proportion as the
aggregate fee paid to U.S. Bancorp Xxxxx Xxxxxxx in connection with the
transaction bears to the total consideration of the transaction. The relative
fault of each Indemnified Person and The Company shall be determined by
reference to, among other things, whether the actions or omissions to act were
by such Indemnified Person or The Company and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action or omission to act.
The Company also agrees that no Indemnified Person shall have any
liability to The Company or its affiliates, directors, officers, employees,
agents or shareholders, directly or indirectly, related to or arising out of
this Agreement, except Losses incurred by The Company which it shall have been
finally determined by arbitration in accordance with the terms of this Agreement
to have resulted primarily from actions taken or omitted to be taken by such
Indemnified Person due to its gross negligence or willful misconduct. In no
event, regardless of
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the legal theory advanced, shall any Indemnified Person be liable for any
consequential, indirect, incidental or special damages of any nature. The
Company agrees that without U.S. Bancorp Xxxxx Xxxxxxx'x prior written consent
it shall not settle any pending or threatened claim, action, suit or proceeding
related to this Agreement unless the settlement also includes an express
unconditional release of all Indemnified Persons from all liability and
obligations arising therefrom, or The Company reaffirms its obligations to
indemnify for or contribute to Losses incurred by any unreleased Indemnified
Person as herein provided.
Promptly after its receipt of notice of the commencement of any action,
any Indemnified Person will, if a claim in respect thereof is to be made against
The Company hereunder, notify in writing The Company of the commencement
thereof; but omission so to notify The Company will not relieve The Company from
any liability hereunder which it may have to any Indemnified Person. If The
Company so elects, The Company may assume the defense of such Action in a timely
manner, including the employment of counsel (reasonably satisfactory to U.S.
Bancorp Xxxxx Xxxxxxx) and payment of expenses, provided The Company
acknowledges in writing its unconditional obligation pursuant to this agreement
to indemnify U.S. Bancorp Xxxxx Xxxxxxx in respect of such Action and provides
to U.S. Bancorp Xxxxx Xxxxxxx evidence reasonably satisfactory to U.S. Bancorp
Xxxxx Xxxxxxx that The Company will have the financial resources to conduct such
defense actively and diligently and permits U .S. Bancorp Xxxxx Xxxxxxx and
counsel retained by U.S. Bancorp Xxxxx Xxxxxxx at its expense to participate in
such defense. Notwithstanding the foregoing, in the event U.S. Bancorp Xxxxx
Xxxxxxx determines in its sole discretion that it is advisable for the
Indemnified Persons to be represented by separate counsel, then U.S. Bancorp
Xxxxx Xxxxxxx may employ on behalf of the Indemnified Persons a single separate
counsel to represent or defend such Indemnified Persons in such action, claim,
proceeding or investigation and The Company will pay the fees and disbursements
of such separate counsel as incurred.
In the event of any fundamental change involving the corporate
structure of The Company, such as by merger, plan of exchange or sale of all or
substantially all of its assets, any executory obligations of The Company in
this engagement letter shall, if not assumed by operation of law, be assumed by
contract by the acquiring entity or arrangements made to protect the interests
of U.S. Bancorp Xxxxx Xxxxxxx reasonably satisfactory to U.S. Bancorp Xxxxx
Xxxxxxx.
If multiple claims are brought against U.S. Bancorp Xxxxx Xxxxxxx in
any Action with respect to at least one of which indemnification is permitted
under applicable law and provided for under this agreement, The Company agrees
that any judgment, arbitration award or other monetary award shall be
conclusively deemed to be based on claims as to which indemnification is
permitted and provided for.
The obligations of The Company referred to above shall be in addition
to any rights that any Indemnified Person may otherwise have.
Section 8. Entire Agreement/Amendments. This Agreement constitutes
the entire Agreement between the parties hereto and sets forth the rights,
duties, and obligations of each to the other as of this date. Any prior
agreements, promises, negotiations, or representations not
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expressly set forth in this Agreement are of no force and effect. This Agreement
shall not be modified except in writing and executed by both parties.
Section 9. Governing Law. This Agreement and the rights of the
parties hereunder will be governed by, interpreted, and enforced in accordance
with the laws of the State of Minnesota.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any of the remaining
provisions.
Section 10. Notices. Any written notice or communication required by
this Agreement, or by law, to be served on, given to, or delivered to either
party by the other party, shall be in writing and shall be deemed duly served,
given, or delivered when personally delivered to the party to whom it is
addressed, or in lieu of such personal service, when deposited in the U.S. mail,
first class, postage pre-paid addressed as follows:
Oregon Trail Ethanol Coalition, L.L.C. with a copy to:
ATTN: Xxxx Xxxxxx Xxxxx Xxxx Law Firm, LLP
000 Xxxx 0xx Xxxxxx ATTN: Xxxxxxxx X. Xxxxxx
Xxx 000 0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxx, Xxxxxxxx 00000
U.S. Bancorp Xxxxx Xxxxxxx Inc.
ATTN: Xxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Section 11. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereunder as well as their respective
representatives, distributees, successors, and assigns. No assignment of this
Agreement shall be allowed to any third party without the other party's prior
written consent.
Section 12. Confidentiality. The Company agrees to provide documents
and other information related to the Project, as U.S. Bancorp Xxxxx Xxxxxxx may
reasonably request. U.S. Bancorp Xxxxx Xxxxxxx agrees to provide documentation
related to its provision of the Services, as The Company may reasonably request.
All such information will be held in confidence pursuant to the terms and
conditions set forth on Exhibit A hereto, which Exhibit A is hereby incorporated
by reference herein and made part of this Agreement; provided, however, that
information may be disclosed pursuant to subpoena or other judicial or
administrative order or process or as may be appropriate in connection with the
Private Debt Placement to prospective investors.
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In Witness Hereof, the parties have executed this Agreement on the day
and year first above written. By the signature of its representative(s) below,
each party affirms that it has taken all necessary action to authorize said
representative(s) to execute this Agreement.
Each Party agrees it has read and understands all the terms of this
Agreement.
Oregon Trail Ethanol Coalition, L.L.C.
By: /s/ Xxxx Xxxxxx (signature)
------------------------------------------
Xxxx Xxxxxx (printed)
---------------------------------
Its Chairman
-----------------------------
U.S. BANCORP XXXXX XXXXXXX INC.
By: /s/ Xxxx X. Xxxxxx (signature)
------------------------------------------
Xxxx X. Xxxxxx (printed)
---------------------------------
Its Managing Director
-------------------------------
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EXHIBIT A
TO FINANCIAL SERVICES AGREEMENT
CONFIDENTIALITY PROVISIONS
This is Exhibit A to the Financial Services Agreement (the "Financial
Services Agreement"), dated ___________________, by and between Oregon Trail
Ethanol Coalition, L.L.C., a Nebraska limited liability company ("The Company"),
and U.S. Bancorp Xxxxx Xxxxxxx Inc., a Minnesota corporation ("U.S. Bancorp
Xxxxx Xxxxxxx").
PREAMBLE
The Company and U.S. Bancorp Xxxxx Xxxxxxx are currently involved in
discussions concerning the development and financing of an ethanol processing
facility by the Company (the "Transaction"). As a result of such discussions,
each party may have access to certain confidential information of the other
party. The parties desire to be bound by the terms of this Exhibit A to the
Financial Services Agreement in order to allow disclosure to the party receiving
such information (the "Receiving Party") and prohibit disclosure of such
information to any other party. Therefore, in consideration of the Receiving
Party being given access to certain confidential information of the party
providing such information (the "Disclosing Party") and in exchange for the
mutual covenant and promises contained in this Exhibit A to Financial Services
Agreement, with the intent to be legally bound, The Company and U.S. Bancorp
Xxxxx Xxxxxxx agree as follows:
AGREEMENT
1. Confidential Information. (a) As used in this Exhibit A to
Financial Services Agreement, the "Confidential Information" of the Disclosing
Party shall mean all information concerning or related to the business,
operations, financial condition or prospects of the Disclosing Party or any of
their respective Affiliates, regardless of the form in which such information
appears and whether or not such information has been reduced to a tangible form,
and shall specifically include (1) all information regarding the officers,
directors, employees, equity holders, customers, suppliers, distributors,
insurers, reinsurers, brokers, independent contractors, sales representatives
and licensees of the Disclosing Party and their respective Affiliates, in each
case whether present or prospective, (2) all inventions, discoveries, trade
secrets, processes, techniques, methods, formulae, ideas and know-how of the
Disclosing Party and their respective Affiliates, (3) all financial statements,
audit reports, budgets and business plans or forecasts of the Disclosing Party
and their respective Affiliates and (4) all information concerning or
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related to the Transaction; provided, that the Confidential Information of the
Disclosing Party shall not include (x) information which is or becomes generally
known to the public through no act or omission of the Receiving Party and (y)
information which has been or hereafter is lawfully obtained by the Receiving
Party from a source other than the Disclosing Party (or any of their respective
Affiliates or their respective officers, directors, employees, equity holders or
agents) so long as, in the case of information obtained from a third party, such
third party was or is not, directly or indirectly, subject to an obligation of
confidentiality owed to the Disclosing Party or any of their Affiliates at the
time such Confidential Information was or is disclosed to the Receiving Party.
As used in this Paragraph, an "Affiliate" of a Disclosing Party shall mean an
entity which controls, is controlled by or is under common control of a
Disclosing Party, and the term "control" shall mean, with respect to any entity,
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such entity, whether through
ownership of voting securities, by contract or otherwise.
2. Nondisclosure of Confidential Information. Except as otherwise
permitted by Section 3 of this Exhibit A to Financial Services Agreement, the
Receiving Party agrees that it will not, without the prior written consent of
the Disclosing Party, disclose or use for its own benefit, or that of any third
party, any Confidential Information.
3. Permitted Disclosures. Notwithstanding Section 2 of this Exhibit A
to Financial Services Agreement, Receiving Party shall be permitted to:
(a) disclose Confidential Information to its officers,
employees and counsel, but only to the extent reasonably necessary in
order for such party to prepare, conduct and execute and deliver
definitive documents for the Transaction; provided that Receiving Party
shall take all such action as shall be necessary or desirable in order
to ensure that each of such persons maintains the confidentiality of
any Confidential Information that is so disclosed; and
(b) disclose Confidential Information to the extent, but only
to the extent, required by law; provided, that prior to making any
disclosure pursuant to this subsection, the Receiving Party shall
notify the Disclosing Party of the same, and the Disclosing Party shall
have the right to participate with the Receiving Party in determining
the amount and type of Confidential Information of the Disclosing
Party, if any, which must be disclosed in order to comply with
applicable law.
4. Return of Confidential Information. If activity in respect of the
Transaction shall cease without the Transaction being consummated, then,
promptly after the written request of the Disclosing Party, the Receiving Party
shall return to the Disclosing Party all Confidential Information which is in
tangible form and which is then in its possession (or in the possession of any
of its officers, directors or employees).
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5. Term. The parties' rights and obligations under this Exhibit A to
Financial Services Agreement shall continue indefinitely.
6. Equitable Relief. The Receiving Party acknowledges and agrees that
the Disclosing Party would be irreparably damaged in the event that any of the
provisions of this Exhibit A to Financial Services Agreement are not performed
by the Receiving Party in accordance with their specific terms or are otherwise
breached. Accordingly, it is agreed that the Disclosing Party shall be entitled
to an injunction or injunctions to prevent breaches of this Exhibit A to
Financial Services Agreement by the Receiving Party and shall have the right to
specifically enforce the terms of this Exhibit A to Financial Services Agreement
and the terms and provisions hereof against the Receiving Party in addition to
any other remedy to which the Disclosing Party may be entitled in law or equity.
7. Governing Law. This Exhibit A to Financial Services Agreement shall
be a contract under the State of Minnesota and for all purposes shall be
governed by and construed and enforced in accordance with the laws of Minnesota,
excluding any choice of law provisions.
8. Successors and Assigns. The terms of this Exhibit A to Financial
Services Agreement shall be binding upon and inure to the benefit of each of the
Parties and their respective successors and permitted assigns.
9. No Assignment or Delegation. Any assignment, delegation or
attempted assignment or delegation of the rights or responsibilities established
under this Exhibit A to Financial Services Agreement shall be null and void
without the prior written duly executed consent by the Party charged.
10. Severability of Provisions. If any provision of this Exhibit A to
Financial Services Agreement shall be held invalid in a court of law, the
remaining provisions shall be construed as if the invalid provision were not
included in this Exhibit A to Financial Services Agreement.
11. Amendment of Exhibit A to Financial Services Agreement. This
Exhibit A to Financial Services Agreement may only be amended or modified
through a written duly executed instrument by the Parties hereto. Any attempted
oral amendment or modification is ineffective and therefore null and void.
12. No Implied Waiver of Provisions. Either Parties' failure to insist
in any one or more instances upon strict performance by the other party of any
of the terms of this Exhibit A to Financial Services Agreement shall not be
construed as a waiver of any continuing or subsequent failure to perform or a
delay in performance of any term hereof.
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13. Notices. Any notice required by this Exhibit A to Financial
Services Agreement or given in connection with this Exhibit A to Financial
Services Agreement, shall be in writing, hand delivered or sent via registered
or certified mail, and shall be given to the appropriate party:
If to The Company:
Oregon Trail Ethanol Coalition, L.L.C.
000 Xxxx 0xx Xxxxxx
Xxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
with a copy to: Xxxxx Xxxx Law Firm, LLP
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx
If to U.S. Bancorp Xxxxx Xxxxxxx:
U.S. Bancorp Xxxxx Xxxxxxx Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
14. Headings. Headings used in this Exhibit A to Financial Services
Agreement are provided for convenience only and shall not be used to construe
meaning or intent.
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