EXHIBIT 10.16
FINANCIAL SERVICES AGREEMENT
This Financial Services Agreement (this "Agreement") is entered into
this 25th day of March, 2003, by and between Oregon Trail Ethanol Coalition,
L.L.C., a Nebraska limited liability company ("The Company"), and Northland
Securities, Inc., a Minnesota corporation ("Northland Securities").
RECITALS:
WHEREAS, The Company is desirous of developing, constructing and
operating a minimum 40 million gallon ethanol production facility in Xxxxxxxxx,
Nebraska (the "Project");
WHEREAS, Northland Securities 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 Northland
Securities 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. Northland Securities 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, Northland Securities 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 Northland Securities
related to such equity offering shall be pursuant to an agency agreement to be
entered into by The Company and Northland Securities (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").
Northland Securities 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
Northland Securities 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. Northland Securities 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,
Northland Securities 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
Northland Securities 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, Financial Close
Lurgi/PSI 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 Prorated over 9 months
less all equity capitalization, after Successful
Lurgi/PSI debt or equity investment and Commissioning
any and all 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 Northland Securities 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 Northland Securities.
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 Northland
Securities 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 Northland Securities a
non-refundable expense retainer of $25,000 (the "Expense Retainer"). Any
unused portion of the Expense Retainer at Financial Close will be an offset
against the fees set forth above.
Northland Securities' 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, Northland
Securities shall seek pre-approval by The Company, which shall not be
unreasonably withheld. Northland Securities 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. Northland Securities is an
independent contractor and nothing in this Agreement shall constitute or
designate Northland Securities 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 Northland Securities 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 Northland Securities.
Northland Securities 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 Northland Securities to act on behalf of The Company pursuant to
this Agreement, The Company agrees to indemnify and hold harmless Northland
Securities, 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) (Northland Securities and
each such other person or entity are hereinafter referred to as an "Indemnified
Person"), from
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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, N.A.
Northland Securities 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
Northland Securities. Northland Securities 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 Northland
Securities pursuant to this Agreement. The respective relative benefits received
by Northland Securities and The Company in connection with any transaction shall
be deemed to be in the same proportion as the aggregate fee paid to Northland
Securities 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.
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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 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 Northland Securities' 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
Northland Securities) and payment of expenses, provided The Company acknowledges
in writing its unconditional obligation pursuant to this agreement to indemnify
Northland Securities in respect of such Action and provides to Northland
Securities evidence reasonably satisfactory to Northland Securities that The
Company will have the financial resources to conduct such defense actively and
diligently and permits Northland Securities and counsel retained by Northland
Securities at its expense to participate in such defense. Notwithstanding the
foregoing, in the event Northland Securities determines in its sole discretion
that it is advisable for the Indemnified Persons to be represented by separate
counsel, then Northland Securities 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 Northland Securities reasonably satisfactory to Northland Securities.
If multiple claims are brought against Northland Securities 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.
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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 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
Northland Securities Inc. with a copy to:
ATTN: Xxxx Xxxxxx Xxxxxxxx & Xxxxxx, P.A.
00 Xxxxx 0xx Xxxxxx 0000 Xxxxx Xxxxxx Towers
25th Floor 000 Xx. Xxxxx Xx.
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
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 Northland Securities may reasonably
request. Northland Securities 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 X. Xxxxxx (signature)
-----------------------------------
Xxxx Xxxxxx (printed)
Its: Chairman
NORTHLAND SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxxxx (signature)
-----------------------------------
Xxxxx X. Xxxxxxxx (printed)
-----------------------------------
Its Chief Operating Officer
-----------------------------------
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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 March 25, 2003, by and between Oregon Trail Ethanol
Coalition, L.L.C., a Nebraska limited liability company ("The Company"), and
Northland Securities, Inc., a Minnesota corporation ("Northland Securities").
PREAMBLE
The Company and Northland Securities 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 Northland
Securities 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 related to
the Transaction; provided, that the Confidential Information of the Disclosing
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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 Northland Securities:
Northland Securities, Inc.
00 Xxxxx 0xx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxx, XX 00000
with a copy to: Xxxxxxxx & Xxxxxx, P.A.
0000 Xxxxx Xxxxxx Towers
000 Xx. Xxxxx Xx.
Xxxxxxxxxxx, Xxxxxxxxx 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. DOCS/543961.2
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