exv10w11



 







EXHIBIT 10.11




CONSULTING AGREEMENT




     THIS CONSULTING AGREEMENT (the “Agreement”) is made the twelfth day of September, 2005
(the “Effective Date”), by and between Pro-Vision Development Corporation of Eldora, Iowa
(“Pro-Vision”) and NEK-SEN Energy Partners, of Sabetha, Kansas, a Kansas Partnership (“Client”).



     WHEREAS, Client intends to develop, finance and construct an ethanol plant in or near Sabetha,
Kansas (the “Project”); and



     WHEREAS, Pro-Vision has a background in developing and financing ethanol plants and is willing
to provide services to Client based on this background.



     NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein,
Client hereby engages Pro-Vision, and Pro-Vision hereby accepts engagement, upon the terms and
conditions hereinafter set forth.



     1. Term. The Pro-Vision engagement with Client shall commence as of the Effective
Date and may be terminated at any time by either party upon thirty (30) days prior written notice
of its intent to terminate this Agreement. Upon termination, neither Client nor Pro-Vision shall
have any further rights or obligations under the terms of this Agreement other than delivery of
payments for services to which Pro-Vision may be entitled through the date of termination.



     2. Services. Pro-Vision shall serve as the Client’s consultant and shall perform the
following duties incident to that service subject to Client’s approval:



a. Consult with the officers and employees of the Client concerning matters
relating to the planning and development of a 50 MGY renewable fuel ethanol plant;



b. Provide Project Coordination services, providing management and oversight in the
Client’s directive to establish a separate LLC or Limited Partnership company that
will develop, own and operate the production facility, if applicable; and



c. Perform such other reasonably necessary duties as Client may request for the
timely and successful securing of debt financing; including without limitation,
cooperating with the Client’s personnel, consultants and agents similarly engaged.



d. Perform management and oversight representing Client in the construction
development of the project, including but not limited to: management of employees
and consultants in budgeting, permitting, request for proposals, contracting and
overall Construction Coordination.



     It is anticipated Pro-Vision will spend approximately 10 to 100 man hours per week in
fulfilling its management obligations under this Agreement. The particular time may vary from day
to day or week to week.



     3. Payment. Client shall pay to Pro-Vision a one time commitment fee of $ 15,000 and
$1,800 per week for service performed hereunder commencing upon the Effective Date. The weekly base
payment shall be due*. Upon termination of this Agreement, payments hereunder shall
cease; provided, however, that Pro-Vision shall be entitled to payments for periods or partial
periods that occurred prior to the date of termination for which Pro-Vision has not been paid. In
addition, if the triggering event has occurred prior to the effective date of his termination,
Client shall pay to Pro-Vision the following:



a. Business Plan Bonus. Client will pay to Pro-Vision a success bonus of
$20,000 (the



 





*Biweekly [/s/GE; /s/MC]
 

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“Business Plan Bonus”) due immediately upon the Client’s acceptance of the Business
Plan from Pro-Vision as complete.



b. Loan Commitment Bonus. Client will pay to Pro-Vision a success bonus of
$75,000 (the “Loan Commitment Bonus”) payable upon Client’s final acceptance of the
senior loan commitment and all additional equity and/or subordinated debt required
by such loan commitment.



c. Loan Closing Bonus. Client will pay to Pro-Vision a success bonus of
$100,000 (the “Loan Closing Bonus”) at the time of execution of the definitive
documents defining the Clients senior loan. Notwithstanding the foregoing, the
Client shall have sole discretion in determining whether to accept a loan commitment
or close a loan, and the Client shall not become liable to pay the amount discussed
in this Section 3d if it elects to not accept a loan commitment or close a loan.



e. Construction Completion Bonus. Client will pay to Pro-Vision a success
bonus of $ 50,000 (the “Construction Completion Bonus”) at the time of Substantial
Completion by prime contractor/design builder.



     4. Expenses. Client shall reimburse Pro-Vision for all reasonable, ordinary and
necessary expenses incurred by Pro-Vision in performance of its duties hereunder, including without
limitation, reimbursement for automobile mileage at a rate periodically set by the Internal Revenue
Service (presently 40.5 cents/mile), phone and a mutually agreed upon per diem for lodging and
meals. However, in no case shall any such expense reimbursements exceed $950 in any single week.
Payment for expenses will be paid 14 days after receipt by Client from Pro-Vision of expenses due.
All other expenses incurred by Pro-Vision under the direction of Client in development of project
such as air travel, meeting expenses, copy, postage and office materials utilized remotely from
Client supplied office will be reimbursed at cost and will not be within weekly limitation
previously defined.



     5. Support Services. Client will provide the following support services for the
benefit of Pro-Vision as approved by Client: office space, office equipment, supplies and
administrative support such as accounting and secretarial.



     6. Successors and Assigns Bound. This Agreement shall be binding upon the Client and
Pro-Vision, their respective heirs, executors, administrators, successors in interest or assigns,
including without limitation, any partnership, corporation or other entity into which the Client
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.



     7. Relationship of the Parties. The parties understand that Pro-Vision is an
independent contractor with respect to Client and Pro-Vision agents do not represent employment of
Client. Client will not provide fringe benefits, including health insurance benefits, paid
vacation, or any other employee benefits for the benefit of Pro-Vision.



     8. Injuries. Pro-Vision acknowledges Pro-Vision’s obligation to obtain appropriate
insurance coverage for the benefit of Pro-Vision and its agents. Pro-Vision waives any rights to
recover from Client for any injuries that Pro-Vision or his agents, may sustain while performing
services under this Agreement resulting from the negligence of Pro-Vision or his agents.



     9. Property and Return of Records. Upon termination of this Agreement, Pro-Vision
shall deliver all records, notes, data, memoranda, models, and equipment of any nature that are in
Pro-Vision’s possession or under Pro-Vision’s control and that are Client’s property or relate to
Client’s business. This article shall be reciprocal where Client shall return or keep confidential
all such similar articles of Pro-Vision rights of ownership to Pro-Vision upon termination of this
Agreement. Such articles include documented intellectual
property such as “Developing a Renewable Fuels Project from Grass Roots” and such
other



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documents so defined and marked as Pro-Vision property and which are not public record.
 

     10. Waiver. The waiver by the Client of its rights under this Agreement or the
failure of the Client promptly to enforce any provision hereof shall not be construed as a waiver
of any subsequent breach of the same or any other covenant, term or provision.



     11. Entire Agreement. This Agreement constitutes the entire Agreement between the
parties hereto with regard to the subject matter hereof, and there are no agreements, understanding
specific restrictions, warranties or representations relating to said subject matter between the
parties other than those set forth herein or herein provided for. No amendment or modification of
this Agreement shall be valid or binding unless in writing and signed by the party against whom
such amendment or modification is to be enforced.



     12. Notices. Any notice required to be given hereunder shall be in writing and shall
be 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, or such substitute
street addresses as the parties may provide in writing:



	 	 	 	 	 	 	 
	 

	 	To Pro-Vision:
	 	Pro-Vision Development Corporation	 	 
	 

	 	 	 	Attention: Matt Crouse, President	 	 
	 

	 	 	 	1801 17th Avenue	 	 
	 

	 	 	 	Eldora, IA 50627	 	 
	 
	 	 	 	 	 	 
	 

	 	To Client:
	 	NEK-SEN Energy Partners	 	 
	 

	 	 	 	Attention: Gary Edelman	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

Sabetha, Kansas
	 	 






     13. Governing Law. This Agreement is entered into pursuant to and shall be governed
by and in accordance with the laws of the State of Kansas.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the Effective Date.



	 	 	 	 	 	 	 	 	 
	PRO-VISION DEVELOPMENT CORPORATION	 	NEK-SEN Energy Partners	 	 
	 
	 	 	 	 	 	 	 	 
	/s/ Matthew Crouse
 

Matthew Crouse

	 	 	 	By:
	 	/s/ Gary Edelman
 
 
	 	 
	 

	 	 	 	Its:
	 	President	 	 







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