exv10w5



 





Exhibit 10.5




FIRST AMENDMENT TO THE AMENDED AND RESTATED

SERVICES AGREEMENT




     THIS FIRST AMENDMENT TO THE AMENDED AND RESTATED SERVICES AGREEMENT is made and entered into
as of the 1st day of November, 2007 (this “First Amendment”) by and between US BioEnergy
Corporation, a corporation organized under the laws of the State of South Dakota with its executive
office at 5500 Cenex Drive, Inver Grove Heights, Minnesota 55077 (the “Company”), and Capitaline
Advisors, LLC, a limited liability company organized under the laws of the State of South Dakota
with an office at 111 Main Avenue, Brookings, South Dakota 57006 (“Capitaline”).



RECITALS




     A. The Company and Capitaline entered into that certain Amended and Restated Services
Agreement dated May 1, 2007 (the “Services Agreement”) pursuant to which the Company and Capitaline
each agreed to provide certain services related to the operation of their respective businesses
(collectively the “Services”).



     B. The Company and Capitaline have discussed the scope of services historically provided, the
types of services each is likely to require in the future, changes in the Company’s and
Capitaline’s staffing and the number of hours the Company and Capitaline employees have and are, in
the future, expected to provide.



     C. The Company and Capitaline have agreed to amend certain provisions of the Amended and
Restated Services Agreement as described in this First Amendment.



     NOW, THEREFORE, in consideration of the mutual benefits to the parties hereto and the
promises, terms and conditions hereinafter set forth, intending to be legally bound, the parties do
hereby mutually agree as follows:



     Section 1. Defined Terms. Unless otherwise defined in this First Amendment, each
capitalized term used in this First Amendment which is defined in the Services Agreement has the
meaning assigned to such term in the Services Agreement.



     Section 2. Amendments to Services Agreement. The Services Agreement is amended as
follows:



          A. Compensation. Sections 5(a) and (b) of the Services Agreement is hereby deleted in
its entirety and replaced by the following:





(a) By the Company. During the term of this Agreement, the Company will pay
Capitaline (i) a fixed monthly fee of $3,250.00 for all executive assistant and
administrative assistant services, and (ii) a fixed monthly fee of $4,250.00 for all office
Services.




(b) By Capitaline. During the term of this Agreement, Capitaline will pay the
Company a fixed monthly fee of $2,720 for all IT Services provided by the Company for
Capitaline, as described in Exhibit A1. Any efforts beyond basic operational support shall
be separately negotiated between the Company and Capitaline.



          B. Exhibit A to Services Agreement. Exhibit A to Services Agreement is hereby deleted
in its entirety and replaced by the Exhibit A1 attached to this First Amendment to the Services
Agreement.




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     Section 3. Governance. This First Amendment and the rights and obligations of the
parties hereunder shall be construed in accordance with and be governed by the laws of the State of
South Dakota.



     Section 4. Descriptive Headings, etc. The descriptive headings of the several
sections of this First Amendment are inserted for convenience only and shall not be deemed to
affect the meaning or construction of any of the provisions hereof.



     Section 5. Counterparts; Facsimiles. This First Amendment may be executed in several
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This First Amendment may be executed by facsimile signatures.



     Section 6. Further Assurances. Each party shall, from time to time, at the request of
the other party and without further consideration, execute and deliver, or cause to be executed and
delivered, such other documents and instruments as may be reasonably requested by such other party
to evidence or more effectively consummate the transactions contemplated by this First Amendment.



     Section 7. Supremacy; Entire Agreement. The parties each acknowledge and agree that
this First Amendment is intended to supercede certain provisions of the Services Agreement. If
there is a conflict between this First Amendment and the Services Agreement, the relevant term or
condition of this First Amendment shall govern.



     IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Services
Agreement the day and year first above written.



COMPANY:

US BIOENERGY CORPORATION




	 	 	 	 
	By:  	/s/ Gregory S. Schlicht
 	 
	Name: 	Gregory S. Schlicht 	 
	Title:	Vice President and General Counsel 	 	 



CAPITALINE:




CAPITALINE ADVISORS, LLC




	 	 	 	 
	By:  	/s/ Jill L. Wilts
 	 
	Name: 	Jill L. Wilts 	 	 
	Title:	Vice President 	 	 




 


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EXHIBIT A1 TO FIRST AMENDMENT TO THE

AMENDED AND RESTATED SERVICES AGREEMENT




CAPITALINE SERVICES




Executive Assistant and Administrative Assistant Services




Angie Burns (Executive Assistant)





	 	•	 	Act as executive assistant to Chad Hatch, Virg Garbers, and Kristi Lee.
	 
	 	•	 	Assist with preparation and production of presentations and related materials for Chad
Hatch, Virg Garbers, and Kristi Lee.
	 
	 	•	 	Assist with event and meeting planning.
	 
	 	•	 	Travel reservations for Chad Hatch, Virg Garbers, Kristi Lee, and Nate Anderson.
	 
	 	•	 	Backup receptionist, including various administrative duties.





Deanna Wilson (Administrative Assistant)





	 	•	 	Act as administrative assistant to Chad Hatch, Virg Garbers, and Kristi Lee.
	 
	 	•	 	Office receptionist.
	 
	 	•	 	Various administrative duties, such as filing and mail distribution.
	 
	 	•	 	Reconcile VISA account statements for Chad Hatch, Virg Garbers, Kristi Lee, and Nate
Anderson.





Office Services



Capitaline will provide the Company with approximately 1,500 square feet of fully furnished office
space and related office services for use by Chad Hatch, Virg Garbers, Kristi Lee, and Nate
Anderson, including:





	 	•	 	Unlimited use of standard office equipment (copiers, fax machines, projectors);
	 
	 	•	 	Office supplies and postage;
	 
	 	•	 	Utilities and janitorial services;
	 
	 	•	 	The use of a board room, a conference room, a lobby, restrooms, a work area, and a
storage area; and
	 
	 	•	 	Parking





US BIOENERGY SERVICES



IT Services



The following Company employee will provide to Capitaline the services listed beneath his name:




Nate Anderson (IT)





	 	•	 	Archive tape back-up and management.
	 
	 	•	 	Server maintenance and application of necessary updates.
	 
	 	•	 	PC maintenance and application of necessary updates.
	 
	 	•	 	Software installation and licensing.
	 
	 	•	 	Hardware and software purchasing.
	 
	 	•	 	Printer maintenance.
	 
	 	•	 	Email maintenance and spam filtering.
	 
	 	•	 	Virus protection and licensing.
	 
	 	•	 	ABRA maintenance and backups.
	 
	 	•	 	Domain / website maintenance
	 
	 	•	 	Miscellaneous support and trouble shooting.
	 
	 	•	 	Phone system maintenance.
	 
	 	•	 	Disaster recovery planning.