EXHIBIT 10.3
AMENDMENT
TO
FINANCIAL SERVICES AGREEMENT
This Amendment to the Financial Services Agreement ("Amendment") is
dated December 3, 2002, by and between Illinois River Energy, LLC ("Illinois
River"), a Delaware limited liability company, and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
Inc. ("U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇"), a Minnesota corporation.
The parties have previously entered into a Financial Services Agreement
dated July 23, 2002 ("Financial Services Agreement"). In consideration of the
foregoing and the mutual covenants herein contained, the parties agree to amend
the Financial Services Agreement as follows:
1. Section 3 of the Financial Services Agreement is hereby amended and
restated in its entirety, as follows:
"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)
$10,000,000 in equity has not been raised by Illinois River by June 30,
2003, or (2) the Financial Close has not occurred by August 31, 2003.
All expenses incurred through the date of termination of this
Agreement shall be paid to the appropriate party. In the event Illinois
River terminates this Agreement prior to Financial Close but after raising
$10,000,000 in equity, Illinois River shall pay U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
a termination fee pursuant to the terms set forth in Section 2(A).
2. Except to the extent specifically amended as set forth above, all other
terms of the Financial Services Agreement remain in full force and effect.
IN WITNESS WHEREOF, this Amendment to the Financial Services Agreement is
effective as of the date first set forth above.
ILLINOIS RIVER ENERGY, LLC: U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------- -----------------------------------
Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------- ---------------------------
Title: President Title: Managing Director
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FINANCIAL SERVICES AGREEMENT
This Financial Services Agreement (this "AGREEMENT") is entered into
this 23rd day of July, 2002, by and between Illinois River Energy, LLC, a
Delaware limited liability company ("ILLINOIS RIVER"), and U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc., a Minnesota corporation ("U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇").
RECITALS:
WHEREAS, Illinois River is desirous of developing, constructing and
operating a minimum 40 million gallon ethanol production facility in northern
Illinois (the "PROJECT");
WHEREAS, U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ has experience with and can provide
advice on financial matters and assistance regarding project financing; and
WHEREAS, Illinois River is desirous of obtaining the services of U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall provide to
Illinois River the following services (the "SERVICES") in connection with the
Project:
(1) Assist and advise Illinois River in developing and
implementing a strategy for the financing needs for the Project and
Illinois River, including seed capital, equity, and debt;
(2) Assist and advise Illinois River 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 Illinois River in sourcing and
evaluating negotiations of debt financing for the Project, including
construction financing and long-term debt financing;
(4) Assist and advise Illinois River in the preparation of a
development business plan (the "BUSINESS PLAN") with five years of
operation projections;
(5) Assist and advise Illinois River 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to act as Illinois
River'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
▇▇▇▇▇ ▇▇▇▇▇▇▇ related to such equity offering shall be pursuant to an agency
agreement to be entered into by Illinois River and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇
(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 Illinois River. 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ will consult with Illinois River in planning
the Private Debt Placement and review with Illinois River 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ prior to use by Illinois River in making offers or
sales.
It is understood that Illinois River may in its discretion postpone,
modify, abandon or terminate the Private Debt Placement at any time prior to its
consummation. U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ may decline to participate in the
Private Debt Placement if it reasonably determines that the offering has become
impractical or undesirable. Subject to prior approval by Illinois River, U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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, Illinois River will pay to
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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.
PAYMENT
FEE TERMS
--- -----
1.75% of Total Project Capitalization Due in full at time of Financial Close
0.25% of Total Project Capitalization Prorated over 9 months after Successful
Commissioning
The fees described in this Section 2(A) are in addition to any fees or
commissions payable to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ by Illinois River 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 Illinois River.
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 Illinois River and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇.
PROJECT FINANCING: Total 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 Seed
Capital Equity or proceeds raised as a result of any equity offering.
SEED CAPITAL EQUITY: At risk capital for project development.
(C) EXPENSES. Illinois River has paid U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ a
non-refundable expense retainer of $40,000 (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 ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 (excluding costs of issuance) exceeding $5,000 per
month are required, U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall seek pre-approval therefor
from Illinois River. Strict compliance with the foregoing pre-approval provision
is required. U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall submit monthly updated expense
reports to Illinois River for reimbursement analysis.
Illinois River 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)
$10,000,000 in equity has not been raised by Illinois River by September 1,
2002, or (2) the Financial Close has not occurred by January 2, 2003.
All expenses incurred through the date of termination of this Agreement
shall be paid to the appropriate party. In the event Illinois River terminates
this Agreement prior to Financial Close but after raising $10,000,000 in equity,
Illinois River shall pay U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ a termination fee pursuant
to the terms set forth in Section 2(A).
SECTION 4. INDEPENDENT CONTRACTOR. U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ is an
independent contractor and nothing in this Agreement shall constitute or
designate U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of its employees or agents as
employees or agents of Illinois River.
SECTION 5. (A) REPRESENTATIONS AND WARRANTIES OF ILLINOIS RIVER.
Illinois River represents and warrants to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 Illinois River. Illinois River further represents and warrants
that the Memorandum, when prepared by Illinois River, 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇. U.S.
Bancorp Jaffray represents it has the necessary licenses, permits and
registration to perform and carry out the Services.
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 requested 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 Minneapolis,
Minnesota.
(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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ to act on behalf of Illinois River
pursuant to this Agreement, Illinois River agrees to indemnify and hold harmless
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇, 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
▇▇▇▇▇ ▇▇▇▇▇▇▇ and each such other person or entity are hereinafter referred to
as an "INDEMNIFIED 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 Illinois River'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. Illinois River 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 Illinois River 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 Illinois
River, together with interest, at the prime rate announced from time to time by
U.S. Bank, N.A.
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, Illinois River 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 Illinois River 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 Illinois River 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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to this Agreement. The respective relative
benefits received by U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Illinois River in connection
with any transaction shall be deemed to be in the same proportion as the
aggregate fee paid to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection with the
transaction bears to the total consideration of the transaction. The relative
fault of each Indemnified Person and Illinois River shall be determined by
reference to, among other things, whether the actions or omissions to act were
by such Indemnified Person or Illinois River and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action or omission to act.
Illinois River also agrees that no Indemnified Person shall have any
liability to Illinois River or its affiliates, directors, officers, employees,
agents or shareholders, directly or indirectly, related to or arising out of
this Agreement, except Losses incurred by Illinois River 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. Illinois River agrees that without U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇'▇ 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 Illinois River 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
Illinois River hereunder, notify in writing Illinois River of the commencement
thereof; but omission so to notify Illinois River will not relieve Illinois
River
from any liability hereunder which it may have to any Indemnified Person. If
Illinois River so elects, Illinois River may assume the defense of such Action
in a timely manner, including the employment of counsel (reasonably satisfactory
to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇) and payment of expenses, provided Illinois River
acknowledges in writing its unconditional obligation pursuant to this agreement
to indemnify U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ in respect of such Action and provides
to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ evidence reasonably satisfactory to U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ that Illinois River will have the financial resources to conduct
such defense actively and diligently and permits U .S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ and
counsel retained by U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ at its expense to participate in
such defense. Notwithstanding the foregoing, in the event U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ determines in its sole discretion that it is advisable for the
Indemnified Persons to be represented by separate counsel, then U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ 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 Illinois River will pay the fees and
disbursements of such separate counsel as incurred.
In the event of any fundamental change involving the corporate
structure of Illinois River, such as by merger, plan of exchange or sale of all
or substantially all of its assets, any executory obligations of Illinois River
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 ▇▇▇▇▇ ▇▇▇▇▇▇▇ reasonably satisfactory to U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇.
If multiple claims are brought against U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ in
any Action with respect to at least one of which indemnification is permitted
under applicable law and provided for under this agreement, Illinois River
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 Illinois River 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 expressly set forth
in this Agreement, including the Financial Services and Equity Placement
Agreement, dated as of July 8, 2002, between U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. and
Illinois River Energy, LLC, 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:
Illinois River Energy, LLC
ATTN: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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. Illinois River agrees to provide
documents and other information related to the Project, as U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ may reasonably request. U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ agrees to provide
documentation related to its provision of the Services, as Illinois River 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.
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.
ILLINOIS RIVER ENERGY, LLC
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ (signature)
------------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇ (printed)
Its VICE PRESIDENT
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U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ (signature)
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ (printed)
Its MANAGING DIRECTOR
------------------------------------
EXHIBIT A
TO FINANCIAL SERVICES AGREEMENT
CONFIDENTIALITY PROVISIONS
This is Exhibit A to the Financial Services Agreement (the "FINANCIAL
SERVICES AGREEMENT"), dated July 23, 2002, by and between Illinois River Energy,
a Delaware limited liability company ("ILLINOIS RIVER"), and U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc., a Minnesota corporation ("U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇").
PREAMBLE
Illinois River and U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ are currently involved in
discussions concerning the development and financing of an ethanol processing
facility by Illinois River Energy (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, Illinois River and U.S.
Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ 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
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).
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.
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 Illinois River: Illinois River Energy LLC
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇: U.S Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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.
