This Consulting Agreement (the “Agreement”) is made this 22nd day of December, 2006 (the “Effective Date”), by and between Above Zero Media, LLC, a North Dakota limited liability company, with an address of 3049 24th Avenue SW Fargo, North Dakota 58103, (Above Zero Media), and Highwater Ethanol, LLC, (“Client”).
WHEREAS, Client intends to develop, finance and construct a 50 million gallon dry mill ethanol plant in or near Lamberton, MN (the “Project”); and
WHEREAS, Client wishes to engage Above Zero Media to provide certain services related to the Project.
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, Client engages Above Zero Media, and Above Zero Media accepts engagement, upon the terms and conditions hereinafter set forth.
1. Term: Termination. Above Zero Media’s engagement with Client shall commence as of the Effective Date and shall continue, unless extended by mutual agreement of the parties or sooner terminated as provided herein, until the actual closing (execution and delivery of all required documents) by Client with its project lender(s) for debt financing, including senior and subordinated debt and any other Project financing characterized by debt obligations and repayable as debt which is required by the Project lender(s) or which is deemed necessary or prudent in the sole discretion of Client’s board of directors (“Financial Close”). Notwithstanding the foregoing, either party may terminate the Agreement, at anytime with or without cause, upon thirty (30) days prior written or oral notice to the other party.
2. Services. Above Zero Media shall serve as Client’s Project consultant. Above Zero Media’s service providers (described in section 9 of this Agreement) shall perform the following duties incident to that service subject to Client’s approval (“Services”):
a. Assist negotiations of contracts with various service and product providers;
b. Assist the planning of the Clients’ equity marketing effort, including, without limitation, preparation of written and visual equity marketing materials (including, but not limited to, a power point presentation and informational video), and training Client’s officers and directors to conduct Client’s equity marketing effort;
c. Assist in graphic design of the Client’s marketing materials;
d. Assist in placement of print and electronic media;
e. Assist in planning of the Client’s local marketing efforts;
f. Assist in recommendation of equipment needs for presentation.
g. Perform such other services as Client may from time to time reasonably request and are reasonably within the scope of the services the parties anticipate will be provided. Notwithstanding the foregoing, neither Above Zero Media, its members, managers, officers, employees nor agents shall be asked to, nor will actually solicit an offer to buy, or accept an offer to sell, and equity security to be issued by Client.
Subject to Client’s approval, and unless otherwise provide by this agreement, Above Zero Media shall determine the manner in which the Services are to be performed and the specific hours to be worked by Above Zero Media. Above Zero Media acknowledges and agrees to work as many hours as may be reasonably necessary to fulfill Above Zero Media’s commitments under this Agreement, in the sole discretion of Client.