exv10w18



 





Exhibit 10.18




     PROJECT DEVELOPMENT FEE AGREEMENT


THIS PROJECT DEVELOPMENT FEE AGREEMENT (“Agreement”) is entered into as of this
13th day of December, 2006 (“Effective Date”), by and between Spiceland
Wood Products, Inc., a corporation (“SWP”), and Cardinal Ethanol, LLC (“Company”), an Indiana
limited liability company.




     WHEREAS, the Company was organized for the purpose of developing, owning and operating a 100
million gallon dry mill ethanol plant in east central Indiana (the “Project” or “Ethanol Plant”);



     WHEREAS, SWP through its principal, Rob Davis, has provided project development services to
the Company in the past and intends to provide such services in the future;



     WHEREAS, the Company has agreed to pay a development fee to SWP in exchange for its efforts
to organize the Company and assist in development of the Ethanol Plant; and



     WHEREAS, the Company’s Board of Directors (the “Board”) desires to memorialize that agreement
and set forth the manner in which the development fee shall be distributed.



     NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:


1.      DEVELOPMENT SERVICES. Company hereby retains SWP for the purpose of providing
organizational and developmental services with respect to the Project (“Development Services”).
Development Services shall include all services performed on behalf of the Company by SWP to date
and all services performed on behalf of and at the reasonable request of the Company through the
termination of this Agreement. SWP’s duties shall include, but not be limited to, supervision of
site planning and preparation for construction of the Project. SWP shall apprise the Board of the
status of the Project and of any material events, and shall perform its duties at the direction of
the Board. However, SWP shall retain the sole right to control and direct the manner in which the
Developmental Services are to be performed. Development Services shall not include effecting or
attempting to effect purchases or sales of the Company’s securities.



2.      DEVELOPMENT FEE AND PAYMENT TERMS. In consideration for the Development Services to be
provided to Company, Company shall pay SWP a development fee equal to $26,000 (“Development Fee”).
One-half ($13,000) of the Development Fee shall be payable to SWP on December 20, 2006 and the
remaining half ($13,000) shall be payable to SWP on March 1, 2007.



3.      EXPENSES. Company shall reimburse SWP for all reasonable, ordinary and necessary
expenses incurred by SWP in performance of its duties hereunder, including without limitation,
reimbursement for hotel expenses, business meals, travel expenses, educational expenses, and
automobile mileage at a rate per mile as periodically set by the Internal Revenue Service.



4.      TERM AND TERMINATION OF AGREEMENT. The term of this Agreement shall commence as of the
Effective Date and shall terminate upon the earlier of any of the events


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enumerated below (“Termination Event”).




     (a) Payment in full of the Development Fee;




(b) Dissolution, bankruptcy or insolvency of the Company, or the inability or failure of the
Company generally to pay debts as they become due, or an assignment by the Company for the
benefit of creditors, or the commencement of any case or proceeding in respect of the
Company under any bankruptcy, insolvency or similar laws;




(c) Rob Davis’ voluntary relinquishment of his Board seat; and




(d) Mutual written agreement of the parties.


For purposes of this Agreement, death or disability shall not terminate this Agreement.



5.      INDEMNIFICATION. Company shall indemnify, defend against and advance to SWP all
expenses actually and reasonably incurred in connection with the defense of any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (a “Proceeding”), in which SWP is made a party by reason of
performing services for Company or acting in any manner pursuant to this Agreement, except that
Company shall have no obligation to indemnify and defend SWP or its agents for its act or omission
that involves gross negligence, intentional misconduct or a known violation of the law. SWP shall
indemnify and defend Company and its employees, members, directors, officers and agents against
expenses actually and reasonably incurred in connection with the defense of any Proceeding in
which Company and/or its employees, members, directors, officers or agents are made a party by
reason of SWP committing an act or omission that involves gross negligence, intentional misconduct
or a known violation of the law.



6.      DEFAULT. In the event of the failure of either of the parties to comply with any of the
terms and provisions of this Agreement, or in the event either party has violated any of the
warranties and representations made herein by that party, then such party shall be deemed to be in
default hereunder and the other party shall be given written notice of such noncompliance and
shall give the defaulting party thirty (30) days from the date of such notice within which to
correct such noncompliance. If such default has not been corrected, or an arrangement satisfactory
to the complaining party has not been made by the end of the notice period, then the complaining
party may take whatever action is necessary, and exercise all remedies available in order to
protect the complaining party’s rights under the terms and conditions of this Agreement. The
parties agree that the remedies set forth in this Section 6 shall not be exclusive, but they shall
be cumulative with all other rights and remedies available, at law or in equity, to the parties.
In the event of any dispute between the parties resulting from this Agreement or any provisions
hereunder, the prevailing party in any such dispute shall be entitled to recover reasonable
attorneys’ fees and related costs and such other costs incurred therewith.



7.      SUCCESSORS AND ASSIGNS BOUND. This Agreement shall be binding upon the Company, SWP,
their respective heirs, executors, administrators, successors in interest or permitted assigns,
including without limitation, any partnership, corporation or other entity into which the Company
may be merged or by which it may be acquired (whether directly, indirectly or by operation of
law), or to which it may assign its rights under this Agreement.




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8.        RELATIONSHIP OF THE PARTIES. The parties understand that SWP is an independent
contractor with respect to the Company, and this Agreement shall not be construed or interpreted
as creating any other relationship, including, without limitation, that of principal-agent,
employer- employee, partnership or joint venture. Consequently, neither party shall have the
right or authority, express or implied, to assume or create any responsibility, obligation, or
liability on behalf of or in the name of the other party, or bind the other party is any respect.
The Company will not provide fringe benefits, including health insurance benefits, paid vacation,
or any other employee benefits for the benefit of SWP. SWP shall be responsible for all insurance
including, but not limited to, medical disability, workers compensation and unemployment
insurance. Notwithstanding the above, should the Company’s Board establish a board of directors’
compensation policy, Rob Davis, as a director of the Company, may receive reasonable compensation
for his services as a director and may be reimbursed for his expenses in attending Board meetings.
However, in no event shall SWP or Rob Davis receive compensation for services it performs as a
member on any committee established by the Board.



9.         TAXES. SWP shall be solely liable for, and shall indemnify and hold the Company
harmless from and against, all takes on any compensation earned as an independent contractor
hereunder, including federal and state income taxes, self-employment taxes, FICA and FUTA taxes,
etc.



10.      AUTHORITY. Each of the signatories hereto certifies that such party has all necessary
authority to execute this Agreement.



11.      AMENDMENTS. This Agreement sets forth the entire understanding of the parties and
supersedes any prior agreements, oral or written, as to the subject matter hereof. This Agreement
may be amended or modified by, and only by, a written instrument executed by the parties hereto.



12.      ASSIGNMENT. This Agreement shall not be assigned by any party hereto except as
permitted by its express terms or upon the written consent of the other party. Nothing in this
Agreement, express or implied, is intended to confer upon any other person any rights or remedies
under or by reason of this Agreement.



13.      SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement, or affecting the validity or enforceability of any of the terms
or provisions of this Agreement in any other jurisdiction.



14.      WAIVER. The failure of any party hereto to insist in any one of more instances upon
performance of any term or condition of this Agreement shall not be construed as a waiver of
future performance of any such term, covenant or condition, but the obligation of such party with
respect thereto shall continue in full force and effect.



15.      CAPTIONS. The captions herein are inserted for convenience of reference only and shall
be ignored in the construction or interpretation hereof.



16.      NOTICES. Any notice required to be given hereunder shall be in writing and shall be


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deemed to be sufficiently served by either party on the other party if such notice is delivered
personally or is sent by certified or first class mail addressed as follows:




	 	 	 	 	 
	

	 	To SWP:
	 	Spiceland Wood Products, Inc.
	 

	 	 	 	609 S. Pearl St.
	 

	 	 	 	P.O. Box 406
	 

	 	 	 	Spiceland, IN 47385
	 
	 	 	 	 
	 

	 	To Company:
	 	Cardinal Ethanol, LLC
	 

	 	 	 	Attention: Troy Prescott
	 

	 	 	 	2 OMCO Square, Suite 201

	 

	 	 	 	Winchester, IN 47394
	 
	 	 	 	 
	 

	 	Copy to:
	 	Brown, Winick, et al.
	 

	 	 	 	Attention: Mandy Hughes

	 

	 	 	 	666 Grand Avenue, Ste. 2000 Des
	 

	 	 	 	Moines, Iowa 50309





17.      GOVERNING LAW. This Agreement shall be governed and construed in accordance with the
law of the State of Indiana, without reference to its conflict of law rules. Each of the parties
hereto irrevocably submits to the jurisdiction of any state or federal court sitting in the State
of Indiana in any action or proceeding brought to enforce or otherwise arising out of or relating
to this Agreement.



18.      INTERPRETATION. The parties agree that each has had an opportunity to negotiate fully
the terms of this Agreement and that this Agreement shall not be interpreted in favor of or against
the party drafting the Agreement.




     IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.



	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Spiceland Wood Products, Inc.	 	Cardinal Ethanol, LLC
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Robert J. Davis
	 	By:
	 	/s/ Troy Prescott	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	Its:

	 	President
	 	Its:
	 	President	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 






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