September 17, 2009 Hawkeye Energy Holdings, LLC Ames, IA 50010 Attention: Timothy B. Callahan Re: Amendment to August 21, 2009 Side Letter Ladies and Gentlemen: Reference is hereby made (i) to that certain Side Letter Agreement dated August 21, 2009...
Exhibit
7
September
17, 2009
Hawkeye
Energy Holdings, LLC
000 X.
Xxxx Xxx.
Xxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxxx
Re: Amendment to August 21, 2009
Side Letter
Ladies
and Gentlemen:
Reference
is hereby made (i) to that certain Side Letter Agreement dated August 21, 2009
(the “Side
Letter”) entered into in connection with a Subscription Agreement dated
as of August 21, 2009 (the “Previous Subscription
Agreement”) by and between Hawkeye Energy Holdings, LLC (“Hawkeye”) and
Advanced BioEnergy, LLC (“Advanced BioEnergy”);
and (ii) to that certain Subscription Agreement dated as of the date hereof (the
“Subscription
Agreement”), pursuant to which Hawkeye will purchase and be entitled to
receive 1,133,333 limited liability company membership units of Advanced
BioEnergy (the “Units”). Certain
capitalized terms used in this agreement but not otherwise defined herein are
used herein as defined in the Subscription Agreement.
This
letter agreement, which serves to amend the Side Letter, is being delivered to
Hawkeye as an inducement to Hawkeye for it to enter into the Subscription
Agreement, and Advanced BioEnergy acknowledges and agrees that Hawkeye would not
be willing to enter into the Subscription Agreement in the absence of this
letter agreement. Advanced BioEnergy and Hawkeye agree that except as
specifically set forth herein, all other terms and provisions of the Side Letter
shall remain in full force and effect without change.
For good
and sufficient consideration, the sufficiency of which is hereby acknowledged,
Advanced BioEnergy and Hawkeye agree as follows:
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1.
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Amendment of Side
Letter. In accordance with Section 9 of the Side Letter
requiring a written instrument making specific reference to the Side
Letter and signed by each of the parties thereto, the Side Letter shall be
amended such that Section 8(k) is deleted and replaced in its entirety as
follows:
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k. “Total
Hawkeye Purchase Price” means that aggregate purchase price paid for: (i)
any Units purchased by Hawkeye pursuant to any subscription agreement
(including, but not limited to, the Previous Subscription Agreement and the
Subscription Agreement) entered into by Hawkeye pursuant to the current Advanced
BioEnergy offering; and (ii) the Units purchased by Hawkeye pursuant to Section 2 of this
letter agreement.
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2.
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Miscellaneous
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a.
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Counterparts. This
letter agreement may be executed in multiple counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same
instrument.
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b.
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Entire Agreement;
Conflicts. The Side Letter, as amended by this letter
agreement, the Subscription Agreement, the Previous Subscription Agreement
and other documents related to the Subscription Agreement or Previous
Subscription Agreement (collectively, the “Subscription
Documents”) constitute the entire agreement of the parties hereto
in respect of the subject matter of the Subscription Documents, and
supersede all prior agreements or understandings, among the parties hereto
in respect of the subject matter of the Subscription
Documents. In the event there is a conflict between the Side
Letter, as amended by this letter agreement and the Subscription Agreement
or Previous Subscription Agreement, the terms of the Side Letter, as
amended by this letter agreement shall prevail and such conflict shall be
resolved in accordance with the terms of the Side Letter, as amended by
this letter agreement.
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c.
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Governing
Law. This letter agreement and any matters arising out
of, or related to, this letter agreement shall be enforced, governed, and
construed in all respects in accordance with the laws of the State of
Delaware applicable to contracts executed and performable solely in such
state, without regard to such conflicts of laws principals as may result
in the application of the substantive laws of any other state or
jurisdiction.
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[remainder
of Page Intentionally Left Blank – Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto
have executed this letter agreement as of the date first above
written.
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ADVANCED
BIOENERGY, LLC
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By:
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Xxxxxxx
X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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CEO
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Acknowledged
and agreed as of
the date
first above written:
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HAWKEYE
ENERGY HOLDINGS, LLC
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By:
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/s/ Xxxxxxx
X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Chief
Financial Officer
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[SIGNATURE
PAGE TO SIDE LETTER AMENDING AUGUST 21, 2009 SIDE
LETTER]
