Exhibit 10.14
CONSTRUCTION LOAN AGREEMENT
This Construction Loan Agreement (the "AGREEMENT") is dated as of the 16th day
of December, 2005, and is by and between RED TRAIL ENERGY, LLC, a North Dakota
limited liability company ("BORROWER"), and FIRST NATIONAL BANK OF OMAHA
("BANK"), a national banking association established at Omaha, Nebraska.
WHEREAS, the BORROWER has requested the BANK to lend to BORROWER up to the sum
of Fifty-Five Million Two Hundred Eleven Thousand seven hundred forty and no
one-hundredths ($55,211,740.00) Dollars (the "CONSTRUCTION LOAN"), for the
purpose of partially funding the cost of construction for an ethanol plant on
the real estate described in Exhibit F (the "PROPERTY"), attached hereto and by
this reference made a part hereof, together with a Three Million Five Hundred
Thousand ($3,500,000.00) Dollar revolving line of credit ("REVOLVING LOAN"), up
to One Million ($1,000,000.00) Dollars of Letters of Credit, and SWAP CONTRACTS
up to Two Million Seven Hundred Ten Thousand five hundred eighty-seven and
no/hundredths ($2,710,587.00) Dollars.
WHEREAS, the BANK is willing to provide such credit facilities to BORROWER upon
the terms and conditions herein set forth.
SECTION 1 Definitions.
1.1 "ASSIGNMENT OF CONSTRUCTION CONTRACT" means the assignment of the agreement
("CONSTRUCTION CONTRACT") between the BORROWER and Fagen, Inc. (the
"DESIGN-BUILDER") dated August 29, 2005 for construction of the PROJECT in
accordance with PLANS, by which the BORROWER assigns, as additional security for
repayment of the OBLIGATIONS, the BORROWER'S interest in the CONSTRUCTION
CONTRACT in a form acceptable to the BANK in the exercise of its reasonable
discretion.
1.2 (Intentionally left blank).
1.3 "ASSIGNMENT OF RENTS" means the assignment of rents and leases as to the
PROPERTY between BORROWER, as assignor, and the BANK, as assignee, as security
for payment of the OBLIGATIONS in a form acceptable to the BANK.
1.4 "BANKING DAY" means a day on which the BANK is open for substantially all of
its business. "EURODOLLAR BUSINESS DAY" means a BANKING DAY on which commercial
banks are open for international business (including dealings in dollar
deposits) in London, England.
1.5 "BORROWING BASE" means the lesser of:
$3,500,000.00,
or
The aggregate of (i) 75% of BORROWER'S inventory of corn at current value
on the date reported, plus (ii) 75% of the amount of BORROWER's Ethanol or
Distillers Grains Accounts aged thirty days or less, and 75% of the amount
of BORROWER's Federal and State Incentive Accounts aged less than 120 days,
excluding any Accounts reasonably deemed ineligible by BANK, plus (iii) 75%
of BORROWER's Finished Goods-Ethanol and Distillers Grains Inventory (both
wet and dry), valued at the lower of cost or market.
1.6 "CLOSING" shall mean the date on which the BANK receives this AGREEMENT,
executed by the BORROWER, together with the CONSTRUCTION NOTE and the REVOLVING
NOTE.
1.7 "CONSTRUCTION LOAN TERMINATION DATE" means the earlier of (i) the COMPLETION
DATE, or (ii) such earlier date upon which the BANK'S commitment to make a
disbursement under the CONSTRUCTION LOAN is terminated.
1.8 "COMPLETION DATE" means the earlier of April 16, 2007, or the date the BANK
determines following a proper inspection and in the exercise of BANK's
reasonable discretion, that the PROJECT has been completed in accordance with
the PLANS.
1.9 "CONSTRUCTION NOTE" means the promissory note of the BORROWER in the form of
Exhibit A evidencing borrowings under the CONSTRUCTION LOAN of up to a maximum
amount of Fifty-Five Million Two Hundred Eleven Thousand seven hundred forty
($55,211,740.00) Dollars.
1.10 "DRAW REQUEST" means forms acceptable to the BANK to be submitted to the
BANK by BORROWER when a disbursement is requested under the CONSTRUCTION NOTE.
1.11 "EBITDA" means Earnings Before Interest, Taxes, Depreciation and
Amortization, all experienced during the applicable reporting period.
1.12 "EVENT OF DEFAULT" has the meaning provided for in Section 7 of this
AGREEMENT.
1.13 "EXCESS CASH FLOW" means EBITDA, less scheduled payments on OBLIGATIONS and
SUBORDINATED DEBT, and authorized capital expenditures, all experienced during
the applicable reporting period.
1.14 "FIXED CHARGE COVERAGE RATIO" means the ratio derived when comparing (i)
EBITDA, less all capital expenditures, allowed or allowable distributions, and
taxes, to (ii) BORROWER's scheduled payments on the principal and interest of
the OBLIGATIONS and SUBORDINATED DEBT made during the applicable reporting
period, excluding any principal repaid on REVOLVING LOAN and LONG TERM REVOLVING
NOTE.
1.15 "GAAP" means generally accepted accounting principles, applied on a basis
consistent with the accounting principles applied in the preparation of the
annual financial statements of the BORROWER referred to in Section 6.1 of this
AGREEMENT and the PROJECTIONS described in Section 5.7 of this AGREEMENT. All
accounting terms not otherwise defined in this AGREEMENT have the meaning
assigned to them in accordance with GAAP.
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1.16 "INDEBTEDNESS" means all indebtedness for borrowed money including
long-term debt, short-term debt, the NEGATIVE TERMINATION VALUE of SWAP
CONTRACTS, and capital leases.
1.17 "INDEPENDENT INSPECTOR" means the firm which will be retained by BANK, at
BORROWER's cost, to conduct on site inspections of the work-in-progress on the
PROJECT, and to issue periodic reports to BANK as to the progress of
construction and adherence to the PLANS. The BANK's selection of the INDEPENDENT
INSPECTOR shall be subject to BORROWER's approval, which approval will not be
unreasonably withheld.
1.18 "INTEREST PERIOD" means initially, the period commencing on the date of any
loan made pursuant to this AGREEMENT and, for FIXED RATE NOTE and VARIABLE RATE
NOTE ending three months later, and for the CONSTRUCTION NOTE, LONG TERM
REVOLVING NOTE and REVOLVING NOTE ending one month later; and thereafter, each
period commencing on the first day immediately following the last day of the
immediately preceding INTEREST PERIOD and, for FIXED RATE NOTE and VARIABLE RATE
NOTE ending three months thereafter, and for the CONSTRUCTION NOTE, LONG TERM
REVOLVING NOTE and REVOLVING NOTE ending one month thereafter; provided that:
1.18.1 subject to clauses 1.18.2 and 1.18.3 below, any INTEREST PERIOD
which would otherwise end on a day which is not a EURODOLLAR BUSINESS DAY
shall be extended to the next succeeding EURODOLLAR BUSINESS DAY unless
such EURODOLLAR BUSINESS DAY falls in another calendar month, in which case
such INTEREST PERIOD shall end on the immediately preceding EURODOLLAR
BUSINESS DAY;
1.18.2 subject to clause 1.18.3 below, any INTEREST PERIOD which
begins on the last EURODOLLAR BUSINESS DAY of a calendar month (or a day
for which there is no numerically corresponding day in the calendar month
at the end of such INTEREST PERIOD) shall end on the last EURODOLLAR
BUSINESS DAY of a calendar month; and
1.18.3 no INTEREST PERIOD shall extend beyond the LOAN TERMINATION
DATE.
1.19 "LIBOR BASE RATE" shall mean, with respect to the applicable INTEREST
PERIOD, (a) the LIBOR INDEX RATE for such INTEREST PERIOD, if such rate is
available or (b) if the LIBOR INDEX RATE cannot be determined, the average
(rounded upward, if necessary, to the next higher 1/100 of 1%) of the respective
rates per annum of interest at which deposits in dollars are offered to BANK in
the London interbank market by two (2) Eurodollar dealers of recognized
standing, selected by BANK in its sole discretion, at such time on the date two
(2) Eurodollar Business Days before the first day of such INTEREST PERIOD as
BANK in its sole discretion elects, for delivery on the first day of the
applicable INTEREST PERIOD for a number of days comparable to the number of days
in such INTEREST PERIOD and in an amount approximately equal to the principal
amount of the OBLIGATIONS.
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1.20 "LIBOR INDEX RATE" shall mean, with respect to the applicable INTEREST
PERIOD, the rate per annum (rounded upwards, if necessary, to the next higher
1/100 of 1%) for deposits in U.S. Dollars for a period equal to such INTEREST
PERIOD, which appears on the BANK's information vendor as of 9:00 a.m. (Omaha
time) on the day two (2) Eurodollar Business Days before the first day of such
INTEREST PERIOD. The term "BANK's information vendor" means the Bloomberg
service or such other vendor chosen by BANK for the purpose of displaying
British Bankers' Association Interest Settlement Rates for U.S. Dollar Deposits.
1.21 "LIBOR RATE" shall mean (a) the quotient of the (i) LIBOR BASE RATE divided
by (ii) one minus the applicable LIBOR RESERVE PERCENTAGE plus (b) the amount of
additional basis points specified in the applicable NOTE, or, as set forth in
2.15 of this AGREEMENT. The LIBOR RATE shall be adjusted automatically on and as
of the effective date of any change in the LIBOR RESERVE PERCENTAGE.
1.22 "LIBOR RESERVE PERCENTAGE" shall mean for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor), for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System with respect to "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on LIBOR loans is determined or any category of extensions of
credit or other assets which include loans by a non-United States office of any
bank to United States residents). The LIBOR RATE shall be adjusted automatically
on and as of the effective date of any change in the LIBOR RESERVE PERCENTAGE.
1.23 "LOAN DOCUMENTS" means this AGREEMENT and each document referred to in
Section 4 of this AGREEMENT.
1.24 "LOAN TERMINATION DATE" means the earliest to occur of the following: (i)
as to the CONSTRUCTION NOTE, April 16, 2007, as to the REVOLVING NOTE, December
15, 2006, as to FIXED RATE NOTE, VARIABLE RATE NOTE and as to LONG TERM
REVOLVING NOTE, a date which is five years subsequent to the COMPLETION DATE,
(ii) the date the OBLIGATIONS are accelerated pursuant to this AGREEMENT, and
(iii) the date BANK has received (a) notice in writing from BORROWER of
BORROWER's election to terminate this AGREEMENT and (b) indefeasible payment in
full of the OBLIGATIONS.
1.25 "MANAGEMENT CONTRACT" means that written contract dated as of December
17, 2003 between BORROWER and GreenWay Consulting, LLC ("GREENWAY") by which the
latter agreed to provide consulting and management services to BORROWER.
1.26 "MARKETING AND RISK MANAGEMENT CONTRACTS" means the contracts between
BORROWER and the entities named below (or any other entity contracting with
BORROWER for similar purposes)
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Contracting Entity Regarding:
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Commodity Specialists Company distillers dried grains ("DDGS")
Renewable Products Marketing Group, LLC ethanol products
DWGS marketer wet distiller's grains ("DWGS")
New Vision Co-op unit trains of corn
Corn hedging entity corn hedging
General Industries, Inc. d/b/a Center Coal Company provision of coal
1.27 "MORTGAGE" means the mortgage between the BORROWER as mortgagor and the
BANK as mortgagee, or the Deed of Trust between BORROWER as Grantor and the BANK
as Beneficiary, in either case creating a first lien on the PROPERTY and a
security interest in all of the personal property located on the PROPERTY as
security for payment of the OBLIGATIONS.
1.28 "NEGATIVE TERMINATION VALUE" means, with respect to any SWAP CONTRACT of
the BORROWER, the amount (if any) that the BORROWER would be required to pay if
such SWAP CONTRACT were terminated by reason of a default by or other
termination event relating to BORROWER, such amount to be determined on the
basis of a good faith estimate made by BANK, in consultation with BORROWER. The
NEGATIVE TERMINATION VALUE of any such SWAP CONTRACT at any date shall be
determined (i) as of the end of the most recent fiscal quarter ended on or prior
to such date if such SWAP CONTRACT was then outstanding or (ii) as of the date
such SWAP CONTRACT is entered into if it is entered into after the end of such
fiscal quarter. However, if an applicable agreement between the BORROWER and the
relevant counterparty provides that, upon any such termination by such
counterparty, one or more other SWAP CONTRACTS (if any exist) between the
BORROWER and such counterparty would also terminate and the amount (if any)
payable by the BORROWER would be a net amount reflecting the termination of all
the SWAP CONTRACTS so terminated, then the NEGATIVE TERMINATION VALUE of all the
SWAP CONTRACTS subject to such netting shall be, at any date, a single amount
equal to such net amount (if any) payable by the BORROWER, determined as of the
later of (i) the end of the most recently ended fiscal quarter or (ii) the date
on which the most recent SWAP CONTRACT subject to such netting was entered into.
1.29 "NET WORTH" means total assets less total liabilities and less the
following types of assets: (1) leasehold improvements; (2) receivables (other
than those created by sale of goods) to a member and other investments in or
amounts due from any member, employee or other person or entity related to or
affiliated with the BORROWER); (3) goodwill, patents, copyrights, mailing lists,
trade names, trademarks, servicing rights, organizational and franchise costs,
bond underwriting costs and other like assets properly classified as intangible,
and (4) treasury stock. NET WORTH shall not include any debt due to BORROWER not
acceptable to BANK in the exercise of its reasonable discretion, but
SUBORDINATED DEBT and liabilities relating to SUBORDINATED DEBT need not be
deducted.
1.30 "OBLIGATIONS" means the obligation of the BORROWER:
1.30.1 To pay the principal of, and interest on, the CONSTRUCTION NOTE, the
TERM NOTES and the REVOLVING NOTE in accordance with the terms thereof and
to satisfy all
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of its other liabilities to the BANK, whether hereunder or otherwise,
whether now existing or hereafter incurred, matured or unmatured, direct or
contingent, joint or several, including any extensions, modifications,
renewals thereof, and substitutions therefore and including, but not
limited to, any obligations under letter of credit agreements;
1.30.2 To repay to the BANK all amounts advanced by the BANK hereunder or
otherwise on behalf of the BORROWER, including, but without limitation,
advances for principal or interest payments to prior secured parties,
mortgagees, or licensers, or taxes, levies, insurance, rent, or repairs to,
or maintenance or storage of, any of the real or personal property securing
BORROWER's payment and performance of this AGREEMENT; and
1.30.3 To reimburse the BANK, on demand, for the BANK's reasonable and
necessary out of pocket expenses and costs, including the reasonable fees
and expenses of its counsel, in connection with the preparation,
administration, amendment, modification, or enforcement of this AGREEMENT
and the LOAN DOCUMENTS required hereunder, including, without limitation,
any proceeding brought or threatened, to enforce payment of any of the
OBLIGATIONS referred to in this section of the AGREEMENT.
1.31 "PERMIT" or "PERMITS" means ANY LICENSE OR PERMIT, AND ALL licenses or
permits, required under any environmental law or regulation required to
construct and operate the facility on the PROPERTY after completion of the
PROJECT at its operational capacity, including without limitation the following:
1.31.1 An air emissions permit, which PERMIT will allow the BORROWER after
COMPLETION DATE to operate the ethanol plant on the PROPERTY after
construction of the PROJECT at maximum capacity.
1.31.2 All permits required in connection with the construction and
operation of all above ground storage tanks included in the PLANS for the
ethanol plant.
1.31.3 A National Pollution Discharge Elimination System Construction
Permit for any storm water that is discharged during construction and after
construction of the PROJECT.
1.32 "PLANS" means the plans and specifications prepared by ICM on behalf of the
BORROWER for the PROJECT and identified to this AGREEMENT by the DESIGN-BUILDER,
the BORROWER and the BANK.
1.33 "PROJECT" means the design and construction of an ethanol plant, together
with all necessary and appropriate fixtures, equipment, attachments, and
accessories, as described in the PLANS, to be constructed on the PROPERTY.
1.34 "REVOLVING NOTE" means that promissory note of BORROWER to BANK evidencing
the revolving credit facility described in Section 2.8 of this AGREEMENT, its
renewals, modifications and extensions.
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1.35 "SECURITY AGREEMENT" means the SECURITY AGREEMENT between the BORROWER, as
debtor, and the BANK, as secured party, creating a first security interest in
all BORROWER'S assets, including general intangibles, securing the OBLIGATIONS.
1.36 "SUBCONTRACTOR" means any person who contracts with the DESIGN-BUILDER or
BORROWER to perform any work or supply any of the materials or equipment
necessary to complete the PROJECT.
1.37 "SUBORDINATED DEBT" means INDEBTEDNESS of BORROWER to entities other than
BANK that has been subordinated, in form acceptable to BANK, to the OBLIGATIONS,
including, without limitation, BORROWER'S debt to ICM, DESIGN-BUILDER, and
GREENWAY.
1.38 "SWAP CONTRACT" or "SWAP CONTRACTS" means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity contracts,
equity or equity index swaps or options, bond or bond price or bond index swaps
or options or forward bond or forward bond price or forward bond index
transactions, interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross currency rate swap transactions, currency options, spot
contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc.
Provided, however, the term SWAP CONTRACT shall not, for the purposes of this
AGREEMENT, include commodity hedging or commodity risk management contracts. The
term "commodity" includes grain, natural gas and other traded commodities.
1.39 "TERM NOTES" means those promissory notes of BORROWER to BANK which
evidence permanent financing to pay the CONSTRUCTION NOTE as described in
Section 2.5 of this AGREEMENT, their renewals, modifications and extensions.
FIXED RATE NOTE, VARIABLE RATE NOTE, and LONG TERM REVOLVING NOTE refer to three
individual promissory notes that constitute the TERM NOTES, in accordance with
this AGREEMENT.
1.40 "WORKING CAPITAL" means current assets (less investments in or other
amounts due from any member, employee or any person or entity related to or
affiliated with the BORROWER and prepayments), plus the amount available to
BORROWER for drawing under LONG TERM REVOLVING NOTE, less current liabilities.
SECTION 2 Amount and Terms of the LOANS.
2.1 CONSTRUCTION LOAN. The BANK agrees, on the terms and subject to the
conditions hereinafter set forth, to make, from time to time during the period
from the date of execution of this AGREEMENT to and including the CONSTRUCTION
LOAN TERMINATION DATE disbursements to the BORROWER in an aggregate principal
amount not to exceed the amount of the CONSTRUCTION LOAN for the sole purpose of
paying approved construction costs of the
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PROJECT. If, prior to the COMPLETION DATE, there is paid to BANK a third party
payment (a grant payment, for example), which is applied to the CONSTRUCTION
LOAN, BANK will advance such amount, or a lesser sum, as in BANK'S reasonable
discretion is necessary to complete the PROJECT. Approved construction costs are
costs actually incurred in connection with the construction of the PROJECT,
which shall include but not be limited to costs of permits, licenses, labor,
supplies, materials, services, equipment, insurance premiums, real estate taxes
and interest on disbursements, and BANK approved operating costs of the ethanol
plant. Construction costs do not include the cost associated with payment of
lost profits connected with termination under Section 14.1.3 of the General
Conditions of Contract included in the CONSTRUCTION CONTRACT.
2.2 The CONSTRUCTION NOTE. The obligation of the BORROWER to repay the
CONSTRUCTION LOAN shall be evidenced by the CONSTRUCTION NOTE. Notwithstanding
any provisions of the CONSTRUCTION NOTE, interest shall be payable at the rate
provided therein only on such portions of the CONSTRUCTION LOAN proceeds as
actually have been disbursed pursuant to this AGREEMENT.
2.3 Interest on the CONSTRUCTION LOAN. Subject to Section 2.15, interest shall
accrue on the CONSTRUCTION LOAN as set forth in the CONSTRUCTION NOTE.
2.4 Repayment of the CONSTRUCTION NOTE. Interest only shall be payable quarterly
on the CONSTRUCTION NOTE. All outstanding principal and accrued but unpaid
interest shall be payable on the LOAN TERMINATION DATE.
2.5 TERM LOAN. The existing balance on the CONSTRUCTION LOAN, including any
advance made to increase WORKING CAPITAL, as of COMPLETION DATE will be restated
and said balance will be paid by three new promissory notes, hereafter called
"FIXED RATE NOTE", "VARIABLE RATE NOTE", and "LONG TERM REVOLVING NOTE" in the
forms attached hereto as Exhibits B, C, and D, respectively, and are by this
reference made a part hereof. The TERM NOTES evidence "TERM LOANS". Payments on
such TERM NOTES shall be as follows:
On the tenth day of every third month, commencing three months after
COMPLETION DATE, BORROWER shall pay to BANK the scheduled principal payment
shown in Schedule I, attached hereto and by this reference made a part hereof,
plus accrued interest on FIXED RATE NOTE.
In addition, on the tenth day of every third month, commencing three months
after COMPLETION DATE, BORROWER shall pay $1,004,671.55 to BANK, which shall be
allocated as follows:
a. first to accrued interest on LONG TERM REVOLVING NOTE;
b. next to accrued interest on VARIABLE RATE NOTE;
c. next to principal on VARIABLE RATE NOTE;
After VARIABLE RATE NOTE has been fully paid, such quarterly payments shall
be allocated first to accrued interest on LONG TERM REVOLVING NOTE, and thence
to principal,
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reducing available revolving loan capacity. All unpaid principal and accrued
interest under the TERM LOANS shall be due and payable on LOAN TERMINATION DATE,
if not sooner paid.
2.6 Interest on the TERM LOANS. Subject to Section 2.15, interest shall accrue
on the TERM LOANS as set forth in the TERM NOTES.
2.7 LONG TERM REVOLVING NOTE. BANK agrees to lend $10,000,000.00 to BORROWER
pursuant to this facility. BANK will credit proceeds of this revolving loan
("LONG TERM REVOLVING LOAN") to BORROWER'S deposit account with the BANK,
bearing number 110193357.
2.7.1 Subject to the terms hereof, the BANK will lend the BORROWER, from
time to time until the "LOAN TERMINATION DATE" such sums in integral
multiples of $10,000.00 as the BORROWER may request by reasonable same day
notice to the BANK, received by the BANK not later than 11:00 A.M. of such
day, but which shall not exceed in the aggregate principal amount at any
one time outstanding, $10,000,000.00 (the "LONG TERM REVOLVING LOAN
COMMITMENT"). The BORROWER may borrow, repay without penalty or premium and
reborrow hereunder, from the date of this AGREEMENT until the LOAN
TERMINATION DATE, either the full amount of the LONG TERM REVOLVING LOAN
COMMITMENT or any lesser sum which is $10,000.00 or an integral multiple
thereof.
2.8 REVOLVING LOAN. BANK agrees to lend $3,500,000.00 to BORROWER pursuant to
this facility. BANK will credit proceeds of this revolving loan ("REVOLVING
LOAN") to BORROWER'S deposit account with the BANK, bearing number 110193357.
2.8.1 Subject to the terms hereof, the BANK will lend the BORROWER, from
time to time until the LOAN TERMINATION DATE, such sums in integral
multiples of $10,000.00 as the BORROWER may request by reasonable same day
notice to the BANK, received by the BANK not later than 11:00 A.M. of such
day, but which shall not exceed in the aggregate principal amount at any
one time outstanding, $3,500,000.00 (the "REVOLVING LOAN COMMITMENT"). The
BORROWER may borrow, repay without penalty or premium and reborrow
hereunder, from the date of this AGREEMENT until the LOAN TERMINATION DATE,
either the full amount of the REVOLVING LOAN COMMITMENT or any lesser sum
which is $ 10,000.00 or an integral multiple thereof. It is the intention
of the parties that the outstanding balance of the REVOLVING LOAN shall not
exceed the BORROWING BASE, as required in Section 6.1.9, and if at any time
said balance exceeds the BORROWING BASE, BORROWER shall forthwith pay BANK
sufficient funds to reduce the balance of the REVOLVING LOAN until it is in
compliance with this requirement.
2.9 THE REVOLVING NOTE. The REVOLVING LOAN COMMITMENT shall be evidenced by a
REVOLVING NOTE having stated maturity on the LOAN TERMINATION DATE, in the form
attached hereto as Exhibit E.
2.10 INTEREST ON THE REVOLVING NOTE. Subject to Section 2.15, interest on the
principal
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balance of the REVOLVING LOAN shall accrue and be payable as set forth in the
NOTE evidencing the REVOLVING LOAN.
2.11 LETTERS OF CREDIT. BANK will issue its letters of credit at BORROWER'S
request, on BORROWER'S account, pursuant to the BANK'S customary policies and
with its standardized documents, in amounts outstanding at no time exceeding
$1,000,000.00 in the aggregate.
2.12 Payments and Prepayments. All principal, interest and fees due under this
AGREEMENT, the CONSTRUCTION NOTE, the REVOLVING NOTE, the TERM NOTES and the
LOAN DOCUMENTS shall be paid in immediately available funds as contracted in
this AGREEMENT and no later than the payment due dates set forth in the periodic
statements mailed to the BORROWER by the BANK. Should a payment come due on a
day other than a BANKING DAY, then the payment shall be made no later than the
next BANKING DAY and interest shall continue to accrue during the extended
period.
On the occasion of any prepayment of the CONSTRUCTION NOTE or the TERM
NOTES in full, BORROWER will pay to BANK a prepayment fee calculated as follows:
If the prepayment occurs during the construction of the PROJECT or within the
first three years of the TERM LOANS, a fee of one (1%) percent of the amount
prepaid.
In the event that the BORROWER pre-pays all of FIXED RATE NOTE or VARIABLE
RATE NOTE, where the rate is fixed in excess of one month, and except as to such
payments as required by this AGREEMENT, the BORROWER shall pay BANK a breakage
fee sufficient to make BANK whole for any expenses related to breaking fixed
interest rates, which BANK shall apportion among its participants. Provided,
however, no payment of EXCESS CASH FLOW shall be the cause of a payment to BANK
for interest rate breakage fees or otherwise result in any prepayment fee.
2.13 Fees. At CLOSING, the BORROWER shall pay to the BANK the $70,000.00 balance
of the due diligence and negotiation fee, which fee BORROWER agrees and
acknowledges has been earned by BANK as of the execution hereof as the result of
BANK's efforts to acquire participating lenders. At CLOSING, the BORROWER shall
pay to the BANK a commitment fee of $414,088.05, which fee BORROWER agrees and
acknowledges has been earned by BANK. On each annual anniversary of COMPLETION
DATE, the BORROWER shall pay to the BANK an Annual Servicing Fee of $30,000.00,
which fee shall be due and payable in four equal quarterly installments each
year. BORROWER agrees to pay BANK an unused commitment fee equal to 30 basis
points of the average unused portion of the REVOLVING LOAN COMMITMENT and of
LONG TERM REVOLVING NOTE, calculated and payable on a quarterly basis in
arrears; provided, however, the unused commitment fees on same shall not apply
and be payable by the BORROWER until the COMPLETION DATE. BORROWER shall pay
BANK commitment fees equal to Two and one-quarter (2.25%) percent of outstanding
Letters of Credit issued on BORROWER'S account, together with such other fees as
are consistent with BANK's then current International Trade Services Fee
Schedule. The International Trade Services Fee Schedule effective at the
execution of this AGREEMENT is attached hereto, marked Exhibit G, by this
reference made a part hereof.
2.14 Appraisal. If the BANK is required by any government entity with regulatory
authority over the BANK to obtain a real estate appraisal, the BANK will obtain,
at BORROWER'S expense, an
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appraisal of the PROJECT and PROPERTY providing values obtained by use of the
cost approach, the income approach and the replacement cost approach. If such
appraisal shows that the outstanding CONSTRUCTION LOAN amount at that time
exceeds the value of the PROJECT and PROPERTY as determined by the appraisal,
using the replacement cost approach, then the BORROWER shall, within thirty (30)
days of notice by the BANK and without penalty or premium, pay the difference
between the outstanding CONSTRUCTION LOAN amount and the appraised value amount
of the PROJECT and PROPERTY as determined by such appraisal, and no further
advances shall be made on the CONSTRUCTION LOAN thereafter until such time as
the appraised value of the PROJECT and PROPERTY exceeds the CONSTRUCTION LOAN
amount.
2.15 Incentive Pricing. The interest rate applicable to the VARIABLE RATE NOTE,
LONG TERM REVOLVING NOTE, and the REVOLVING LOAN is subject to reduction
commencing six months subsequent to COMPLETION DATE, based on the business
results of BORROWER. In the event that BORROWER maintains the following ratios,
measured monthly, the interest rate will be reduced accordingly:
If INDEBTEDNESS to NET WORTH
is less than: Interest rate will be:
- ---------------------------- ----------------------
1.15 : 1.00 LIBOR RATE plus 325 basis points
1.00 : 1.00 LIBOR RATE plus 300 basis points
.75 : 1.00 LIBOR RATE plus 275 basis points
Following CLOSING, the parties contemplate the possibility of replacement
promissory notes being delivered to BANK that may include different incentive
pricing models. Any such replacement promissory notes may describe the same or
different incentive pricing as above.
SECTION 3 Disbursement Procedures.
3.1 Submission of DRAW REQUESTS. Whenever the BORROWER desires a disbursement
under the CONSTRUCTION LOAN, which shall be no more often than three times a
month, unless BANK agrees otherwise, the BORROWER shall submit to the BANK a
DRAW REQUEST, duly executed on behalf of the BORROWER setting forth the
information requested therein. Each DRAW REQUEST shall be delivered to the BANK
at least ten (10) days before the date the disbursement is desired.
3.2 Amount of DRAW REQUEST. Each DRAW REQUEST shall be limited to amounts equal
to (i) the total of costs actually incurred and paid or owing by the BORROWER to
the date of such DRAW REQUEST for work performed or materials incorporated in
the PROJECT as described in the PLANS, plus (ii) the cost of materials and
equipment not incorporated in the PROJECT, but delivered to and suitably stored
at the PROJECT site, plus (iii) prepayments for equipment when prepayment is
required by the manufacturer or supplier; less, (iv) prior disbursements for
such costs and from the CONSTRUCTION LOAN or BORROWER'S WORKING CAPITAL for such
costs. Notwithstanding anything herein to the contrary, no disbursements for
materials stored at the
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PROJECT site will be made by the BANK unless the BORROWER shall advise the BANK
of its intention to store materials prior to their delivery, and provide
suitable security for such storage.
3.3 Other Documents. At the time of submission of each DRAW REQUEST, the
BORROWER shall submit or cause to be submitted to the BANK the following:
3.3.1. A written lien waiver from the DESIGN-BUILDER and each SUBCONTRACTOR
for work done and materials supplied by it which were paid for pursuant to
the next preceding DRAW REQUEST with copies of all invoices supporting the
DRAW REQUEST.
3.3.2. A document from the BORROWER and DESIGN-BUILDER, and if applicable,
the INDEPENDENT INSPECTOR requesting and/or approving payment of the
relevant DRAW REQUEST.
3.3.3. Such other supporting evidence as may be reasonably requested by the
BANK to substantiate all payments which are to be made out of the relevant
DRAW REQUEST and/or to substantiate all payments then made with respect to
the PROJECT.
3.4 Cost Over Runs. The BORROWER agrees that all cost over runs on the PROJECT
shall be paid solely by the BORROWER and that the BORROWER shall deliver
additional funds to the BANK in accordance with Section 3.6 of this AGREEMENT to
pay any cash required to fund cost over runs on the PROJECT.
3.5 Making the Disbursements. If on the date a DRAW REQUEST is received by BANK,
the BORROWER has performed all of its agreements and complied with all
requirements therefore to be performed or complied with hereunder including
satisfaction of all applicable conditions precedent contained in Section 4 of
this AGREEMENT and, if required by the BANK, the BANK has received a current
report from the INDEPENDENT INSPECTOR documenting compliance with the PLANS for
those portions of the PROJECT indicated as completed in the DRAW REQUEST and
otherwise confirming the acceptability of the PROJECT work represented by the
DRAW REQUEST, the BANK shall pay to the BORROWER the amount of the requested
disbursement. Each disbursement disbursed to the BORROWER under the CONSTRUCTION
LOAN shall bear interest at the rate provided in the CONSTRUCTION NOTE
evidencing the disbursement from the date such disbursement is so disbursed to
the BORROWER or deposited into BORROWER'S account.
3.6 Deposit of Funds by the BORROWER. If the INDEPENDENT INSPECTOR shall at any
time in good faith determine that the undisbursed amount of the CONSTRUCTION
LOAN is less than the amount required to pay all cash required to pay costs and
expenses of any kind which reasonably may be anticipated in connection with the
completion of the PROJECT after application of all funds received from the
BORROWER'S equity and shall thereupon send written notice thereof to the
BORROWER specifying the amount required to be deposited by the BORROWER with the
BANK to provide sufficient funds to complete the PROJECT, the BORROWER agrees
that it will, within forty-five (45) calendar days of receipt of any such
notice, deposit with the BANK, the amount of funds specified in the BANK'S
notice. The BORROWER agrees that any such funds deposited with the BANK may be
disbursed before any further disbursement of CONSTRUCTION
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LOAN proceeds from the BANK, to pay any and all costs and expenses of any kind
in connection with completion of the PROJECT.
3.7 Disbursements Without Receipt of DRAW REQUEST. Notwithstanding anything
herein to the contrary, the BANK shall have the irrevocable right at any time
and from time to time to apply funds which it agrees to disburse hereunder to
pay interest on the CONSTRUCTION NOTE as and when such interest becomes due, and
to pay any and all of the expenses of BANK related to the PROJECT and the
CONSTRUCTION LOAN, all without receipt of a DRAW REQUEST.
3.8 Miscellaneous Procedures. BANK may establish additional procedures regarding
disbursements as are reasonable to assure the proceeds of the CONSTRUCTION LOAN
are paid only to those persons and entities entitled to the same, and that the
liens securing the OBLIGATIONS are in all cases first and paramount liens on the
PROPERTY.
3.9 Appointment of INDEPENDENT INSPECTOR. No DRAW REQUEST shall be honored after
commencement of construction unless BORROWER has consented to the appointment of
an INDEPENDENT INSPECTOR.
SECTION 4 Conditions of Lending.
4.1 Conditions Precedent to the Initial Disbursement. The obligation of the BANK
to make its initial disbursement under the CONSTRUCTION LOAN is subject to the
condition precedent that the BORROWER shall be in compliance with the conditions
set forth in Section 4.2 of this AGREEMENT and to the further condition
precedent that the BANK shall have received on or before the CLOSING all of the
following, each dated (unless otherwise indicated) such day, in form and
substance satisfactory to the BANK:
4.1.1 The CONSTRUCTION NOTE, duly executed on behalf of the BORROWER.
4.1.2 The MORTGAGE duly executed on behalf of the BORROWER.
4.1.3 The ASSIGNMENT OF RENTS, duly executed on behalf of the BORROWER.
4.1.4 The SECURITY AGREEMENT, duly executed on behalf of the BORROWER.
4.1.5 A financing statement or statements sufficient when filed to perfect
the security interests granted under the MORTGAGE, the ASSIGNMENT OF RENTS,
the SECURITY AGREEMENT, and the ASSIGNMENT OF CONSTRUCTION CONTRACT, to the
extent such security interests are capable of being perfected by filing.
4.1.6 A copy of the PLANS, certified by ICM, DESIGN-BUILDER and the
BORROWER.
4.1.7 The ASSIGNMENT OF CONSTRUCTION CONTRACT, duly executed by the
BORROWER and consented to by the DESIGN-BUILDER and a copy of the
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CONSTRUCTION CONTRACT, together with the General Conditions of Contract
referred to therein, if any.
4.1.8 A total project cost statement on the PROJECT duly executed by the
BORROWER, setting forth the anticipated total cost of the PROJECT's
completion, and a construction cost statement duly executed by the
DESIGN-BUILDER, setting forth its anticipated construction costs of the
PROJECT.
4.1.9 An ALTA/ACSM LAND TITLE SURVEY prepared in accordance with the
current accuracy standards jointly adopted by ALTA (American Land Title
Association), ACSM (American Congress on Surveying and Mapping) and NSPS
(National Society of Professional Surveyors) together with optional survey
requirements #2 (vicinity map showing the property surveyed in reference to
nearby highway(s) or major street intersections); #6 (identify setbacks);
#7 (identify exterior dimensions of all existing and proposed buildings
"As-Built", including square footage of exterior footprint of all
buildings, gross floor area of all buildings); and #11 (location of
utilities). The survey shall show the location of all easements and
encroachments onto or from the PROPERTY that are visible on the PROPERTY,
known to the surveyor preparing the survey or of record, identifying
easements of record by recording data. Such surveyor shall certify there
are no easements or encroachments upon the PROPERTY except as shown on the
survey,
4.1.10 An as built appraisal based upon the PLANS to be performed by
Natwick Associates Appraisal Services which shows the as-completed value of
the PROPERTY and PROJECT addressed to and otherwise acceptable to BANK.
4.1.11 A title binder, issued by Dakota Homestead Title Co., (the "TITLE
COMPANY") at BORROWER'S expense, constituting a commitment by the TITLE
COMPANY to issue a mortgagee's title policy in favor of the BANK as
mortgagee under the MORTGAGE, that will be free from all standard
exceptions, including mechanics' liens and all other exceptions not
previously approved by the BANK and that will insure the MORTGAGE to be a
valid first lien on the PROPERTY. Such policy shall include additional
rider coverage as may be requested by BANK, including, without limitation,
the following ALTA endorsement forms:
ALTA Endorsement Form 3.1 Zoning-Completed Structure
ALTA Endorsement Form 6 Variable Rate Mortgage
ALTA Endorsement Form 8.1 Environmental Protection
ALTA Endorsement Form 9 Restrictions, Encroachments, Minerals
ALTA Endorsement Form 11 Mortgage Modification
ALTA Construction Loan
Endorsement B
4.1.12 A soil report on the PROPERTY certified by a registered engineer
including structural design recommendations in form and substance
satisfactory to the BANK. Such report shall include soil borings and
geo-technical analyses.
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4.1.13 A Phase I Environmental Report of the PROPERTY, as well as any
subsequent Limited Environmental Site Assessments issued prior to CLOSING,
all in form and content satisfactory to the BANK.
4.1.14 An assignment of any License Agreements with ICM.
4.1.15 Copies of all PERMITS from the applicable regulatory agencies from
whom a permit or license is required as of the then current stage of the
PROJECT.
4.1.16 Copies of documents from the appropriate state, federal, city or
county authority having jurisdiction over the PROPERTY and the PROJECT that
provide to the reasonable satisfaction of the BANK that the PROJECT when
constructed in accordance with the PLANS will comply in all material
respects with all applicable ordinances, zoning, subdivision, platting,
environmental and land use requirements, without special variance or
exception, and such other evidence as the BANK shall reasonably request to
establish that the PROJECT and the contemplated use thereof are permitted
by and comply in all material respects with all applicable use or other
restrictions and requirements in prior conveyances, zoning ordinances,
environmental laws and regulations, water shed district regulations and all
other applicable laws or regulations, and governmental authorities having
jurisdiction over the PROJECT. BORROWER is not required to obtain advance
confirmation from any governmental body that the PROJECT will comply with
such ordinances, regulations and requirements.
4.1.17 Copies of certificates of insurance demonstrating the types, levels,
deductibles, endorsements and other coverage parameter issues to the
satisfaction of the BANK for builder's risk insurance, casualty/commercial
general liability insurance, business automobile liability insurance,
environmental liability insurance, worker's compensation insurance, and
permanent all risk property insurance thirty days prior to completion of
construction, required under Section 6.3 of this AGREEMENT, with all such
insurance in full force and effect and approved by the BANK, in the
exercise of its reasonable discretion, and naming BANK as an additional
insured and loss payee together with appropriate flood insurance, if the
PROPERTY is in a flood hazard area. Notwithstanding the foregoing, BORROWER
is not required to obtain worker's compensation insurance until required by
applicable law. In addition, BORROWER shall provide to BANK proof of
insurance for business interruption/extra expense coverage for six months
of operating expenses, and also directors/officers errors and omissions
coverage in a minimum amount of $5,000,000.00.
4.1.18 A signed opinion of counsel for the BORROWER, addressed to the BANK
and containing customary qualifications, opining that: 1) the BORROWER is
duly organized and in good standing in the state of North Dakota; 2) the
BORROWER is qualified in each state in which it does business and is
legally required to be qualified; 3) the BORROWER has the limited liability
company power to execute and deliver the LOAN DOCUMENTS to which it is a
party and to borrow money and perform in accordance with the terms of such
LOAN DOCUMENTS; 4) to the counsel's knowledge, all actions and consents by
BORROWER necessary to the validity of the LOAN DOCUMENTS to which it is a
party have been
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obtained; 5) the LOAN DOCUMENTS to which it is a party have been duly
signed and are the valid and binding obligation of the BORROWER and
enforceable in accordance with their terms; and 6) to the best of counsel's
knowledge, the LOAN DOCUMENTS to which it is a party and the transactions
contemplated there under do not conflict with any provision of the Articles
of Organization of BORROWER or its operating agreement, or any agreement
binding upon the BORROWER or its properties.
4.1.19 A Certificate of Authority executed by such person or persons
authorized by the BORROWER'S organizational documents and/or agreements to
do so, certifying the incumbency and signatures of the officers or other
persons authorized to execute the LOAN DOCUMENTS to which it is a party,
and authorizing the execution of the LOAN DOCUMENTS to which it is a party
and performance in accordance with their terms.
4.1.20 A recently certified copy of the BORROWER'S operating agreement, and
any amendments, if applicable.
4.1.21 A recently certified copy of the BORROWER'S Articles of Organization
and any amendments, if applicable.
4.1.22 A certificate of good standing for the BORROWER from the office of
the North Dakota Secretary of State.
4.1.23 Proof of injection of equity capital into BORROWER of no less than
$38,500,000.00 including SUBORDINATED DEBT. Such equity capital shall
include no less than $31,500,000.00 of equity capital from BORROWER'S
owners.
4.1.24 A copy of the MARKETING and RISK MANAGEMENT CONTRACTS, and the
MANAGEMENT CONTRACT, together with assignments in favor of BANK in form
satisfactory to BANK, as well as control agreements reasonably requested by
BANK, in form reasonably acceptable to BANK.
4.1.25 A copy of any existing contracts for BORROWER'S coal purchases,
natural gas, electricity and water service.
4.1.26 A copy of BORROWER'S loan documents representing all SUBORDINATED
DEBT and a copy of any grant documents evidencing grants obtained by
BORROWER.
4.1.27 A written marketing plan ("MARKETING PLAN") reasonably acceptable to
BANK, in which BORROWER specifies the manner in which BORROWER intends to
sell its inventories and defines the contracts and entities which BORROWER
will utilize to effectuate such plan.
4.1.28 An executed security agreement and control agreement, in form
satisfactory to BANK, regarding the BORROWER'S account at Bank of North
Dakota.
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4.1.29 Documentation of the SWAP CONTRACTS in form satisfactory to BANK.
4.2 Conditions Precedent to All Disbursements. The obligation of the BANK to
make each disbursement under the CONSTRUCTION LOAN (including the initial
disbursement) shall be subject to the further conditions precedent that on the
date of such disbursement:
4.2.1 The representations and warranties contained in Section 5 of this
AGREEMENT are correct on and as of the date of such disbursement as though
made on and as of such date, except to the extent that such representations
and warranties relate solely to an earlier date and except to the extent of
changes permitted under the terms of this AGREEMENT.
4.2.2 No event has occurred and is continuing, or would result from such
disbursement, which constitutes an EVENT OF DEFAULT.
4.2.3 No determination shall have been made by the BANK that the
undisbursed amount of the CONSTRUCTION LOAN is less than the amount
required to pay all costs and expenses of any kind which reasonably may be
anticipated in connection with the completion of the PROJECT; or, if such a
determination has been made and notice thereof sent to the BORROWER in
accordance with this AGREEMENT, the BORROWER shall have deposited the
necessary funds with the BANK in accordance with the Section 3.6 of this
AGREEMENT.
4.2.4 The disbursement requirements of Section 3 of this AGREEMENT have
been satisfied.
4.2.5 If required by the BANK, the BANK shall be furnished with a statement
from the BORROWER and the DESIGN-BUILDER, in form and substance
satisfactory to the BANK, in the exercise of its reasonable discretion,
setting forth the names, addresses and amounts due or to become due, as
well as the amounts previously paid, to every SUBCONTRACTOR whose charges
exceed $2,000.00.
4.2.6 No PERMIT necessary for the construction of the PROJECT shall have
been revoked or the issuance thereof subjected to challenge before any
court or other governmental authority having or asserting jurisdiction as
to the PROJECT.
4.2.7 The parties intend that the CONSTRUCTION LOAN is available to fund
the lesser of fifty-eight (58%) percent of the total cost of the PROJECT,
including all other approved expenses as set forth in the final version of
the Sources and Uses of Funds document furnished to BANK by BORROWER prior
to CLOSING, or $55,211,740.00. No advances or disbursements under the
CONSTRUCTION LOAN shall exceed such levels, unless BANK consents in writing
to the same.
4.3 Conditions Precedent to the Final Disbursements. The obligation of the BANK
to make the final disbursement on the CONSTRUCTION LOAN shall be subject to the
condition precedent that the BORROWER shall be in compliance with all conditions
set forth in Sections 4.1 and 4.2 of this
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AGREEMENT and, further, that the following conditions shall have been satisfied
on or prior to the COMPLETION DATE:
4.3.1 The PROJECT has been completed in material compliance with the PLANS
and the BANK shall have received a certificate of completion from the
DESIGN-BUILDER, certifying that (i) work on the PROJECT has been completed
in material compliance with the PLANS and all labor, services, materials
and supplies used in such work have been paid for and (ii) the completed
PROJECT conforms in all material respects with all applicable zoning, land
use planning, building and environmental laws and regulations of the
governmental authorities having jurisdiction over the PROJECT.
4.3.2 The BANK has received satisfactory evidence that all work requiring
inspection by municipal or other governmental authorities having
jurisdiction has been duly inspected and approved by such authorities and
by the rating or inspection organization, bureau, corporation or office
having jurisdiction.
4.3.3 The BANK shall have received a lien waiver from each SUBCONTRACTOR
whose charges exceed $2,000.00 and the DESIGN-BUILDER for all work done and
for all materials furnished by it for the PROJECT.
4.3.4 The BANK has received an itemized list from BORROWER of all equipment
and fixtures, which are at that time subject to BANK'S security interest.
4.4 No Waiver. The making of any disbursement under the CONSTRUCTION LOAN prior
to fulfillment of any condition thereto shall not be construed as a waiver of
such condition, and the BANK reserves the right to require fulfillment of any
and all such conditions prior to making any subsequent disbursements under the
CONSTRUCTION LOAN.
SECTION 5 Representations and Warranties.
To induce the BANK to enter into this AGREEMENT, the BORROWER makes the
following representations and warranties and agrees that each DRAW REQUEST
constitutes a reaffirmation of these representations and warranties:
5.1 Existence and Power. The BORROWER is a limited liability company duly formed
and in good standing under the laws of the state of North Dakota. The BORROWER
has accomplished all necessary actions required by a limited liability company
under applicable law to own the PROPERTY and construct the PROJECT, and to
execute and deliver, and to perform all of its obligations under the LOAN
DOCUMENTS to which it is a party.
5.2 Authorization of Borrowing; No Conflict as to Law or Other Agreements. The
execution, delivery and performance by the BORROWER of the LOAN DOCUMENTS and
the borrowings from time to time hereunder have been duly authorized by all
necessary limited liability company actions of the BORROWER and do not and will
not (a) require any material consent or approval, or authorization, by any
governmental department, commission, board, bureau, agency or
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instrumentality, domestic or foreign, other than those obtained and in full
force and effect, (b) violate, in any material respect, any provision of any
law, rule or regulation or of any order, writ, injunction or decree presently in
effect having applicability to the BORROWER, or violate any provision of the
Articles of Organization or operating agreement of the BORROWER, (c) result in a
breach of or constitute a default beyond any applicable cure period under any
indenture or loan or credit agreement or any other agreement, lease or
instrument to which the BORROWER is a party or by which it or its properties may
be bound or affected, or (d) result in, or require, the creation or imposition
of any mortgage, deed of trust, pledge, lien, security interest or other charge
or encumbrance of any nature to or with any other creditor of the BORROWER, in
the aggregate exceeding $100,000.00, upon or with respect to any of the
properties now owned or hereafter acquired by the BORROWER.
5.3 Legal Agreements. The LOAN DOCUMENTS to which it is a party constitute the
legal, valid and binding obligations of the BORROWER enforceable against the
BORROWER in accordance with their respective terms, and as to the LOAN DOCUMENTS
to which BORROWER is not a party, BORROWER believes such documents constitute
the legal, valid and binding obligations of the parties thereto, enforceable
against such parties in accordance with their respective terms, except (a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally, and (b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
5.4 License and Permits. The BORROWER has all necessary PERMITS required for
construction and operation of the PROJECT except those which are not required
for the current stage of construction of the PROJECT, or which cannot be
obtained until completion of the PROJECT. BORROWER will provide BANK copies of
all PERMITS as they are obtained and when required by the various regulatory
agencies. BORROWER will timely obtain and will retain all necessary permits and
licenses to operate its businesses at the PROPERTY.
5.5 Construction of the PROJECT. The PROJECT will be constructed in material
compliance with the PLANS; and will not encroach upon or overhang any easement
or right-of-way on land not constituting part of the PROPERTY. The PROJECT, both
during construction and on COMPLETION DATE, and the contemplated use thereof,
will not violate in any material respect, any applicable zoning or use statute,
ordinance, building code, rule or regulation, or any covenant or agreement of
record. The BORROWER agrees that it will furnish from time to time such
satisfactory evidence with respect thereto as may be required by the BANK.
5.6 Title to the PROPERTY. The BORROWER has good and marketable fee simple title
to the PROPERTY, subject to the limitations described in 4.1.11, above, and
except to the extent title is affected by the matters permitted under 6.4.1,
below..
5.7 Financial Condition. The BORROWER has furnished to the BANK its compiled
cash flow projection of the BORROWER for the construction period and for the
first ten (10) years of operations, which projections were given to the BANK on
May 9, 2005 (the "PROJECTIONS"). The PROJECTIONS fairly present the projected
financial condition of the BORROWER on the
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dates thereof, and were prepared in GAAP format and on the basis of assumptions
deemed reasonable by the BORROWER. There has been no material adverse change in
the operations, properties or condition (financial or otherwise) of the BORROWER
since the date of the PROJECTIONS and no additional borrowings have been made by
the BORROWER other than the borrowing contemplated hereby or approved by the
BANK. No certificate or statement furnished to the BANK by or on behalf of the
BORROWER in connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements contained therein or herein not misleading. To
the best of the knowledge of the BORROWER, there is no fact which materially
adversely affects or in the future (so far as the BORROWER now foresees) may
materially adversely affect the operation or prospects or condition (financial
or other) of the BORROWER or its properties or assets, which has not been set
forth herein or in a certificate or statement furnished to the BANK by the
BORROWER.
5.8 Litigation. There are no actions, suits or proceedings pending or, to the
knowledge of the BORROWER, threatened against or affecting the BORROWER or the
properties of the BORROWER before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
which, if determined adversely to the BORROWER, would have a material adverse
effect on the financial condition, properties, or operations of the BORROWER.
5.9 Taxes. The BORROWER has filed all federal, state and local tax returns which
to the knowledge of the BORROWER are required to be filed, and the BORROWER has
paid or caused to be paid to the respective taxing authorities all taxes as
shown on said returns or on any assessment received by it to the extent such
taxes have become due except those which the BORROWER is contesting in good
faith and with respect to which adequate reserves have been set aside.
5.10 No Default. There is no event, which is, or with notice or the lapse of
time would be, an EVENT OF DEFAULT under this AGREEMENT.
5.11 ERISA. The BORROWER is in compliance in all material respects with the
Employee Retirement Income Security Act of 1974, as amended, and has received no
notice to the contrary from the Internal Revenue Service, the Department of
Labor, the Pension Benefit Guaranty Corporation or any other governmental entity
or notice of any claims or pending claims under ERISA.
5.12 Environmental Matters. Except as set forth in the Phase I Environmental
Report referenced in Section 4.1 of this AGREEMENT: 1) the BORROWER is in
compliance in all material respects with all health and environmental laws
applicable to the BORROWER and its operations and knows of no conditions or
circumstances that could materially interfere with such compliance in the
future; 2) except for PERMITS that cannot be obtained until completion of the
PROJECT, the BORROWER has obtained all PERMITS, and approvals required by law
for the operation of its business; and 3) the BORROWER has not identified any
"recognized environmental conditions," as that term is defined by the American
Society for Testing and Materials in its standards for environmental due
diligence, which could subject the BORROWER to enforcement action if brought to
the attention of appropriate governmental authorities.
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5.13 Necessary Utilities, Etc. BORROWER has made suitable arrangements so that
the PROJECT has all necessary electrical, coal, gas, water, and sewer facilities
in place for the proper construction and operation of its ethanol plant.
BORROWER has made adequate provision for all storage facilities, equipment and
product supplies, including corn and coal, as specified by its engineers for the
maximum output and operation of the plant.
SECTION 6 Additional Covenants of the BORROWER.
6.1 Financial Information and Reporting. Except as otherwise stated in this
AGREEMENT, all financial information provided to the BANK shall be compiled
using GAAP consistently applied. During the time period that any amounts are
outstanding under the CONSTRUCTION NOTE or this AGREEMENT or the LOAN DOCUMENTS
to which it is a party, unless the BANK shall otherwise agree in writing:
6.1.1 BORROWER shall provide the BANK within 120 days of the BORROWER'S
fiscal year end, the BORROWER'S consolidated, annual financial statements.
The statements must be audited with an unqualified opinion by a certified
public accountant reasonably acceptable to the BANK, with such opinion
directed both to BORROWER and to BANK, and must be accompanied by a
certificate of such accountants stating whether, in conducting their audit,
they have become aware of any event of default under this AGREEMENT, or of
any event which would, after the lapse of time or the giving of notice, or
both, constitute an EVENT OF DEFAULT, specifying the nature and duration of
the default. Such audit statement shall be accompanied by the accountants'
calculations of BORROWER's compliance with the covenants contained in
Section 6.2 of this AGREEMENT as of the said fiscal year end.
6.1.2 The BORROWER will furnish to the BANK within thirty- (30) days after
the end of each calendar month, a balance sheet of the BORROWER as of the
end of such period, and income statements and statements of changes in cash
flow for such period and year to date, prepared in accordance with GAAP,
all in reasonable detail, except for the absence of financial footnotes.
6.1.3 For each quarter of each fiscal year ending after COMPLETION DATE,
BORROWER will deliver to BANK, within thirty (30) days of each full quarter
end, a certificate in form reasonably acceptable to BANK that has been
signed by an authorized agent of BORROWER, which: 1) certifies that the
statements required by section 6.1.1 and 6.1.2 have been accurately
prepared in accordance with GAAP applied consistently (except for the
absence of financial footnotes to the statements furnished under Section
6.1.2); 2) certifies that the neither the agent nor BORROWER have knowledge
of any EVENT OF DEFAULT under this AGREEMENT or the LOAN DOCUMENTS, or of
any event which would, after the lapse of time or the giving of notice, or
both, constitute an event of default under this AGREEMENT or the LOAN
DOCUMENTS.
6.1.4 After COMPLETION DATE, BORROWER will deliver to BANK each month,
within thirty (30) days of each month end, a monthly Production Report, in
form reasonably
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acceptable to BANK, reporting for such month BORROWER's Input and Output
amounts of Corn Usage, Coal Usage, DDGs Output, Ethanol Output, and if
applicable, CO(2) Output.
6.1.5 BORROWER shall notify BANK of the existence of any EVENT OF DEFAULT
promptly after such EVENT OF DEFAULT becomes known to any management agent,
officer or director of BORROWER.
6.1.6 BORROWER shall authorize all federal, state and municipal authorities
to furnish reports of examinations, records and other information relating
to the condition and affairs of the BORROWER and its ethanol plant, and any
information from reports, returns, files and records by such authorities
regarding BORROWER upon request to the BANK.
6.1.7 The BORROWER will give the BANK prompt written notice of any material
violation as to any environmental matter by the BORROWER and, of the
commencement of any judicial or administrative proceeding relating to
health, safety or environmental matters (i) in which an adverse
determination or result could result in the revocation of or have a
material adverse effect on any PERMITS held by the BORROWER which are
material to the operations of the BORROWER, and (ii) which will or
threatens to impose a material liability on the BORROWER to any person or
party or which will require a material expenditure by the BORROWER to cure
any alleged problem or violation.
6.1.8 The BORROWER will give prompt notice to the BANK of (i) any
litigation or proceeding in which it is a party if an adverse decision
therein would require it to pay more than $100,000.00 or deliver assets the
value of which exceeds such sum (whether or not the claim is considered to
be covered by insurance); and (ii) the institution of any other suit or
proceeding involving it that might materially and adversely affect its
operations, financial condition, property, or business prospects.
6.1.9 BORROWER shall provide monthly borrowing base certificates in form
reasonably acceptable to BANK, calculating advance rates under the
REVOLVING LOAN pursuant to the BORROWING BASE beginning with the
certificate with respect to the fourth month following COMPLETION DATE.
6.1.10 BORROWER shall provide to BANK monthly summaries of all grain
hedging transactions, from the entity providing BORROWER's grain hedging
account(s), and from any entity providing BORROWER with an ethanol hedging
account(s), monthly summaries of all ethanol hedging transactions.
6.1.11 The BORROWER will provide the BANK with such other information as it
may reasonably request.
6.1.12 BORROWER will deliver to BANK, no later than thirty- (30) days prior
to its fiscal year end, its projected financial statements for the ensuing
fiscal year, and a budget of BORROWER's projected capital expenditures for
the ensuing fiscal year ("CAPEX BUDGET").
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6.2 Financial Covenants. At all times that any amounts are outstanding under the
CONSTRUCTION NOTE, the TERM NOTES, the REVOLVING NOTE, or this AGREEMENT or the
LOAN DOCUMENTS to which BORROWER is a party, unless the BANK shall otherwise
agree in writing, the BORROWER agrees to comply with the financial covenants
described below, which shall be calculated using GAAP consistently applied,
except as they may be otherwise modified by the capitalized definitions:
6.2.1 The BORROWER shall maintain a FIXED CHARGE COVERAGE RATIO, measured
on a rolling four quarters trailing basis at the end of each full fiscal
quarter, of no less than 1.25:1.0, for all periods following the COMPLETION
DATE; provided, however, the FIXED CHARGE COVERAGE RATIO shall be measured
as follows for the first three fiscal quarters after the COMPLETION DATE:
first fiscal quarter: on a rolling one quarter basis at the end of the
fiscal quarter
second fiscal quarter: on a rolling two quarter basis at the end of
each fiscal quarter
third fiscal quarter: on a rolling three quarter basis at the end of
each fiscal quarter.
The FIXED CHARGE COVERAGE RATIO shall be tested by the BANK quarterly on a
fiscal quarter basis commencing at the end of the first full fiscal quarter
after the COMPLETION DATE.
6.2.2 The BORROWER shall maintain NET WORTH of not less than $37,000,000.00
at all times after COMPLETION DATE. The required minimum NET WORTH of
BORROWER, which is to be measured annually at the end of each fiscal year
of BORROWER, shall increase each fiscal year by an amount equal to the
greater of (a) $250,000.00 or (b) the amount of undistributed earnings
accumulated during the fiscal year just ended, but not including allowable
distributions attributable to the just ended fiscal year's earnings.
6.2.3 The BORROWER shall determine, at each fiscal quarter following
COMPLETION DATE, the amount of its EXCESS CASH FLOW for said fiscal
quarter, and within sixty (60) days following such fiscal quarter end, pay
to BANK the lesser of (i) twenty percent (20%) of such sum, or (ii)
$4,000,000.00, to be applied to the outstanding principal amount of
VARIABLE RATE NOTE, and after VARIABLE RATE NOTE is repaid, to LONG TERM
REVOLVING NOTE to reduce the principal balance, if any, and after LONG TERM
REVOLVING NOTE is repaid, BORROWER'S payment to BANK of EXCESS CASH FLOW
shall no longer be required. Such quarterly payment shall not release
BORROWER from making any payment of principal or interest otherwise
required by this AGREEMENT. No payment of EXCESS CASH FLOW shall be the
cause of a payment to BANK for interest rate breakage fees or otherwise
result in any prepayment fee.
6.2.4 BORROWER shall maintain the following minimum WORKING CAPITAL during
the periods stated below, measured continuously:
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Minimum
Period WORKING CAPITAL
- ------ ---------------
Beginning with the first day of the fourth month after
COMPLETION DATE $5,000,000.00
During seventh through twelfth months after COMPLETION DATE $5,500,000.00
Beginning with the thirteenth month after COMPLETION DATE
until payment in full of the TERM LOAN $6,000,000.00
For the purpose of this covenant, the amount of any available borrowing
under LONG TERM REVOLVING NOTE shall constitute an addition to WORKING
CAPITAL.
6.3 Affirmative Covenants. During the time period that any amounts are
outstanding under the CONSTRUCTION NOTE, the TERM NOTES, and the REVOLVING NOTE,
this AGREEMENT or the LOAN DOCUMENTS to which BORROWER is a party, unless the
BANK shall otherwise agree in writing, the BORROWER shall:
6.3.1 Diligently proceed with construction of the PROJECT in material
compliance with the PLANS and in accordance in all material respects with
all applicable laws and ordinances, and complete the PROJECT by the
COMPLETION DATE.
6.3.2 Use the proceeds of each of the disbursements under the CONSTRUCTION
LOAN solely for the purposes set forth in this AGREEMENT.
6.3.3 Use its reasonable best efforts to require the DESIGN-BUILDER and
each SUBCONTRACTOR to comply in all material respects with all rules,
regulations, ordinances and laws bearing on its conduct of work on the
PROJECT.
6.3.4 Provide and maintain at all times during the process of building the
PROJECT and, from time to time at the request of the BANK, furnish the BANK
with proof of payment of premiums on:
(i) Builders' Risk completed value form insurance insuring the PROJECT
(and after completion of the PROJECT, a permanent All Risk property
policy of insurance with coverage equal to the replacement cost of the
facility, as well as casualty/umbrella (Commercial General Liability)
insurance), against all risks, including flood, earthquake, and
mechanical and electrical breakdown including testing to the full
value of the PROJECT (subject to reasonable loss deductible
provisions). The BANK's interest shall be protected by naming the BANK
as additional insured on the liability policies and loss payee on the
property policies;
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(ii) Casualty (Commercial General Liability) & Umbrella insurance
(including products and completed operations, operations of
subcontractors, and contractual liability insurance) with coverage in
the amount of $2,000,000.00 in the form of either a $2,000,000.00
primary policy or a $1,000,000.00 primary policy and a $1,000,000.00
Umbrella policy. The BANK's interest shall be protected by naming the
BANK as an additional named insured on all such policies;
(iii) State worker's compensation insurance, with statutory limits,
and Employer's Liability coverage with coverage of no less than
$500,000.00.
(iv) Business automobile liability insurance insuring all vehicles on
the site, including hired and non-owned liability with coverage in the
amount of $2,000,000.00 in the form of either a $2,000,000.00 primary
policy or a $1,000,000.00 primary policy and a $1,000,000.00 Umbrella
policy.
(v) Environmental coverage shall be provided for clean up and removal
once the Project becomes operational (unless the condition precedent
site survey and soil tests establish adverse findings which may
generate the need for environmental coverage prior to operation), but
only insofar as it is reasonably required by BANK.
(vi) Directors/Officers errors and omissions coverage of no less than
$3,000,000.00.
(vii) By COMPLETION DATE, Business Interruption and Extra Expense
insurance equal to 100% of the estimated revenue loss during a
potential interruption of production of not less than six months.
The policies of insurance required pursuant to clauses (i) and (ii)
above shall be in form and content satisfactory to the BANK and shall
be placed with financially sound and reputable insurers. The policy of
insurance referred to in clause (i) above shall contain an agreement
of the insurer to give not less than thirty (30) days' advance written
notice to the BANK in the event of cancellation of such policy or
change affecting the coverage there under. Acceptance of insurance
policies referred to above shall not bar the BANK from requiring
additional insurance, which it reasonably deems necessary.
6.3.5 Assign to BANK, in form acceptable to BANK, all equipment and systems
warranties relating to the PROJECT, together with all contracts for coal,
natural gas, electricity, water and other utilities, as the same are
obtained by BORROWER following CLOSING.
6.3.6 Maintain accurate and complete books, accounts and records pertaining
to the PROPERTY and the PROJECT and its ongoing and continuing operations
in form and substance reasonably satisfactory to the BANK. The BORROWER
will permit the BANK, at the BANK's expense if BANK employees makes the
inspection, but at BORROWER's expense if BANK contracts with third parties
at reasonable expense to make the inspection,
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to examine upon reasonable notice all books, records, contracts, plans,
drawings, PERMITS, bills and statements of account pertaining to the
PROJECT and to inspect upon reasonable notice all books and records
pertaining to its operations and to make extracts therefrom and copies
thereof.
6.3.7 Cause to be paid to the proper authorities when due all federal,
state and local taxes, including taxes on the PROPERTY, required to be paid
or withheld by it except those which the BORROWER is contesting in good
faith and with respect to which adequate reserves have been set aside.
6.3.8 Allow the BANK and its participants, upon reasonable notice, and at
its expense, to conduct such inspections of the PROJECT and BORROWER's
personal property subject to the BANK's security interest as the BANK may
deem necessary for the protection of the BANK's interest. Provided,
however, such inspections shall occur during regular business hours, or
such other time as the BORROWER and BANK may agree, and shall not
unreasonably interfere with BORROWER's business operations. Any such
inspections shall be made and any certificates issued are solely for the
benefit and protection of the BANK, and the BORROWER shall not be entitled
to rely thereon.
6.3.9 Make all repairs, renewals or replacements necessary to keep its
plant, properties and equipment in good working condition.
6.3.10 Comply in all material respects with all laws applicable to its form
of organization, business, and the ownership of its property.
6.3.11 Maintain and preserve all PERMITS, licenses, rights, privileges,
charters and franchises that it is required to hold to construct and
operate the PROJECT.
6.3.12 Observe and comply with all laws, rules, regulations and orders of
any government or government agency relating to health, safety, pollution,
hazardous materials or other environmental matters to the extent
non-compliance could result in a material liability or otherwise have a
material adverse effect on the BORROWER.
6.3.13 Maintain primary banking accounts (including those accounts
containing BORROWER's equity capital) at BANK, other than as otherwise
agreed by BANK. BORROWER may maintain a depositary account at Bank of North
Dakota, with collected balances of no less than $250,000 and no more than
$500,000.
6.4 Negative Covenants. During the time period that any amounts are outstanding
under the CONSTRUCTION NOTE, the TERM NOTES, the REVOLVING NOTE, or this
AGREEMENT or the LOAN DOCUMENTS to which BORROWER is a party, unless the BANK
shall otherwise agree in writing, the BORROWER shall not:
6.4.1 Permit any security interest or mortgage or lien on the PROPERTY or
PROJECT or other real or personal property BORROWER owns now or in the
future, or assign any
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interest that it may have in any assets or subordinate any rights that it
may have in any assets now or in the future, except: (i) liens,
assignments, or subordinations in favor of the BANK; (ii) liens,
assignments, or subordinations outstanding on the date of this AGREEMENT
and disclosed in advance to the BANK in writing and approved by the BANK;
(iii) liens for taxes or assessments or other governmental charges not
delinquent or which the BORROWER is contesting in good faith; (iv) liens
which secure purchase money indebtedness allowed under this AGREEMENT; (v)
liens that are imposed by law for obligations for labor or materials not
overdue for more than 120 days, such as mechanics', materialmen's,
carriers', landlords', and warehousemen's liens, or liens, pledges, or
deposits under workers' compensation, unemployment insurance, Social
Security, or similar legislation; (vi) liens securing INDEBTEDNESS which
constitutes SUBORDINATED DEBT; and (vii) liens created in favor of hedging
account entity and described in the control agreements to which hedging
account entity, BORROWER and BANK are party.
6.4.2 Agree or consent to any material changes in the PLANS, any material
changes in the terms and provisions of the CONSTRUCTION CONTRACT or, to any
one change order in an amount exceeding $100,000.00, or all change orders
when combined exceeding $500,000.00, or any material change to any other
contract identified in Section 4 of this AGREEMENT.
6.4.3 Incorporate in the PROJECT any materials, fixtures or property that
are subject to the claims of any other person, whether pursuant to
conditional sales contract, security agreement, lease, mortgage, except as
permitted under Section 6.4.1.
6.4.4 Lease, sell, transfer, convey, assign, or otherwise transfer all or
any material part of the interest of the BORROWER in the PROJECT or the
PROPERTY.
6.4.5 Cause or suffer any change in its MANAGEMENT CONTRACT, or the entity
providing BORROWER'S management thereunder, without BANK's approval, which
will not unreasonably be withheld.
6.4.6 Engage in any line of business materially different from that
presently engaged in by the BORROWER.
6.4.7 Make any change to its organizational structure as a limited
liability company.
6.4.8 Make any material changes in its accounting procedures for tax or
other purposes.
6.4.9 Incur any INDEBTEDNESS except: (1) debt arising under this or another
agreement with the BANK (including SWAP CONTRACTS); (ii) trade credit
incurred in the ordinary course of business; (iii) indebtedness in
existence on the date of this AGREEMENT and disclosed in advance to the
BANK in writing, (iv) indebtedness set forth on Schedule 6.4.9, attached
hereto and by this reference made a part hereof, and (v) SUBORDINATED DEBT.
BORROWER shall not borrow other than pursuant to this AGREEMENT or as
otherwise permitted hereunder, without permission of the BANK. Provided,
however, BANK consents
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to BORROWER in the ordinary course of its business, borrowing up to
$100,000.00 each year, without further permission from BANK.
6.4.10 Consolidate, or merge or pool or syndicate or otherwise combine with
any other entity, or give any preferential treatment, make any advance,
directly or indirectly, by way of loan, gift, bonus, or otherwise, to any
entity directly or indirectly controlling or affiliated with or controlled
by BORROWER, or any other entity, or to any partner or employee of
BORROWER, or of any such entity.
6.4.11 Make, or commit to make, capital expenditures (including the total
amount of any capital leases, but excluding BANK approved plant
construction) in an aggregate amount exceeding $500,000.00 in any single
fiscal year, nor capital expenditures not included in a BANK approved CAPEX
BUDGET.
6.4.12 Make or pay, without the written consent of BANK, which written
consent will not be unreasonably withheld, in any fiscal year,
distributions to members or shareholders of the BORROWER in excess of the
following percentages of the previous fiscal year's net income, or which
would result in the BORROWER at the time of such distribution not being in
compliance with any of the covenants set forth in this AGREEMENT after
payment of such distribution. Any such distributions shall be made only
once per fiscal year, and only after receipt by BANK of BORROWER's annual
audited financial statements and compliance statements as required herein,
as well as the statements required by 6.1.13, and if no EVENT OF DEFAULT
has occurred or is continuing.
If BORROWER'S ratio of INDEBTEDNESS
to NET WORTH is: Allowable distributions up to:
- --------------------------------------- ------------------------------
Greater than or equal to 1.00 : 1.00 50%
Less than 1.00: 1.00 60%
6.4.13 Assume, guarantee, endorse or otherwise becoming contingently liable
for any obligations of any other person, except for those guaranties
outstanding at the time of execution of this AGREEMENT and disclosed to the
BANK in writing.
6.4.14 Make sales to or purchases from any affiliate of the BORROWER or
extend credit or make payments for services rendered by any affiliate of
the BORROWER, unless such sales or purchases are made or such services are
rendered in the ordinary course of business and on terms and conditions at
least as favorable to the BORROWER as the terms and conditions which would
apply in a similar transaction with a person or party not an affiliate of
the BORROWER.
6.4.15 Sell or dispose of all or substantially all its assets.
6.4.16 Redeem, purchase, or retire any of its membership interests or grant
or issue, or purchase or retire for any consideration, any warrant, right
or option pertaining thereto, or
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permit any redemption, retirement, or other acquisition by BORROWER of the
ownership of the outstanding membership interests of the BORROWER, except
as a result of a "Triggering Event" as defined in the BORROWER's Operating
Agreement existing at time of CLOSING.
6.4.17 Allow the balance of its depository account at Bank of North Dakota
to have a collected funds balance of less than $250,000 nor more than
$500,000 at any time.
SECTION 7 EVENTS OF DEFAULT, Rights and Remedies.
7.1 EVENTS OF DEFAULT. Each of the following shall be an EVENT OF DEFAULT and
give the BANK the right to exercise its remedies under this AGREEMENT:
7.1.1 The BORROWER shall fail to pay when due any OBLIGATIONS or any other
installment of principal or interest or fee payable to BANK.
7.1.2 The BORROWER shall fail to timely provide reports to BANK as provided
in Section 6, above.
7.1.3 The BORROWER shall fail to observe or perform any other obligation to
be observed or performed by it hereunder or under any of the LOAN
DOCUMENTS.
7.1.4 The BORROWER shall fail to pay any INDEBTEDNESS in an aggregate
principal amount in excess of $100,000.00 due any third persons, and such
failure shall continue beyond any applicable grace period, or the BORROWER
shall default under any material agreement binding the BORROWER, and such
default shall continue beyond any applicable grace period.
7.1.5 Any financial statement, representation, warranty, or certificate
made or furnished by or with respect to the BORROWER to the BANK in
connection with this AGREEMENT, or as an inducement to the BANK to enter
into this AGREEMENT, or in any separate statement or document to be
delivered to the BANK hereunder, shall be materially false, incorrect, or
incomplete when made.
7.1.6 The BORROWER shall admit its inability to pay its debts as they
mature or shall make an assignment for the benefit of itself or any of its
creditors.
7.1.7 Proceedings in bankruptcy, or for reorganization of the BORROWER, or
for the readjustment of debt under the Bankruptcy Code, as amended, or any
part thereof, or under any other laws, whether state or federal, for the
relief of debtors, now or hereafter existing, shall be commenced against or
by the BORROWER and, except with respect to any such proceedings instituted
by the BORROWER, shall not be discharged or stayed within sixty (60) days
of their commencement.
7.1.8 A receiver or trustee shall be appointed for the BORROWER or for any
substantial part of its respective assets, or any proceedings shall be
instituted for the dissolution or the
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full or partial liquidation of the BORROWER, and except with respect to any
such appointments requested or instituted by the BORROWER, such receiver or
trustee shall not be discharged within sixty (60) days of his appointment,
and except with respect to any such proceedings instituted by the BORROWER,
such proceedings shall not be discharged within sixty (60) days of their
commencement, or the BORROWER shall discontinue business or materially
change the nature of its business.
7.1.9 The BORROWER shall suffer final judgments for payment of money
aggregating in excess of $100,000.00 which are not covered, without
reservation, by insurance and shall not discharge the same within a period
of thirty (30) days unless, pending further proceedings, execution has not
been commenced or, if commenced, has been effectively stayed.
7.1.10 A judgment creditor of the BORROWER shall obtain possession of any
of BANK's collateral by any means, including (without implied limitation)
levy, distraint, replevin, or self-help.
7.1.11 The construction of the PROJECT is abandoned or shall be
unreasonably delayed or be discontinued for a period of fifteen (15)
consecutive calendar days, in each instance for reasons other than acts of
God, fire, storm, adverse weather, strikes, blackouts, labor difficulties,
riots, inability to obtain materials, equipment or labor, governmental
restrictions or any similar cause not subject to the BORROWER'S control and
other than a change in the DESIGN-BUILDER as provided in Section 7.1.14.
7.1.12 The BORROWER at any time prior to the completion of the PROJECT,
shall delay construction or suffer construction to be delayed for any
period of time, for any reason whatsoever, so that the completion of the
PROJECT cannot be accomplished, in the reasonable judgment of the BANK, by
the COMPLETION DATE.
7.1.13 The PROJECT is materially damaged or destroyed by fire or other
casualty and the loss, in the reasonable judgment of the BANK, is not
adequately covered by insurance actually collected or in the process of
collection.
7.1.14 Fagen, Inc. shall cease to be the DESIGN-BUILDER and BORROWER has
not replaced the DESIGN-BUILDER, within thirty (30) days following the
termination of the same with the replacement contractor to the satisfaction
of BANK, which BANK approval shall not be unreasonably withheld, but which
approval may include a bonding requirement in the reasonable exercise of
BANK's judgment.
7.1.15 Any entity described in BORROWER'S MARKETING AND RISK MANAGEMENT
CONTRACTS ceases to be the marketing agent of the BORROWER, and BORROWER
has not within thirty- (30) days following termination of any of the
foregoing obtained a replacement to the BANK's satisfaction, which BANK
approval will not be unreasonably withheld.
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7.1.16 BORROWER shall fail to obtain a plant operations manager or general
manager with previous ethanol plant experience, of if BORROWER has not
within thirty- (30) days following a termination of such persons obtained
replacements to the BANK'S satisfaction, which BANK approval shall not
unreasonably be withheld.
7.2 Rights and Remedies. If an EVENT OF DEFAULT shall have occurred and be
continuing, the BANK may refrain from making any further disbursements hereunder
(but the BANK may make disbursements after the occurrence of such an EVENT OF
DEFAULT without thereby waiving its rights and remedies hereunder), and the BANK
may exercise any or all of the following rights and remedies:
7.2.1 The BANK may declare the CONSTRUCTION LOAN, the REVOLVING LOAN, and
the TERM LOANS to be terminated, whereupon the same shall forthwith
terminate.
7.2.2 The BANK may declare the entire unpaid principal amount of the
CONSTRUCTION NOTE, the TERM NOTES, or the REVOLVING NOTE then outstanding,
all interest accrued and unpaid thereon, and all other amounts payable
under this AGREEMENT to be forthwith due and payable, whereupon the
OBLIGATIONS, all such accrued interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
BORROWER.
7.2.3 The BANK may exercise and enforce its rights and remedies under any
or all of the LOAN DOCUMENTS.
7.2.4 The BANK may enter upon the PROPERTY, if allowed under applicable
law, and take possession thereof, together with the PROJECT then in the
course of construction, and proceed either in its own name or in the name
of the BORROWER, as the attorney-in-fact of the BORROWER (which authority
is coupled with an interest and is irrevocable by the BORROWER) to complete
or cause to be completed the PROJECT, at the cost and expense of the
BORROWER. If the BANK elects to complete or cause to be completed the
PROJECT, it may do so according to the PLANS or according to such changes,
alterations or modifications in and to the PLANS as the BANK may deem
reasonable and appropriate; and the BANK may enforce or cancel all
contracts let by the BORROWER relating to construction of the PROJECT,
and/or let other contracts which in the BANK'S sole judgment may seem
advisable; and the BORROWER shall forthwith turn over and duly assign to
the BANK, as the BANK may from time to time require, contracts not already
assigned to the BANK relating to construction of the PROJECT, blueprints,
shop drawings, bonds, building permits, bills and statements of accounts
pertaining to the PROJECT, whether paid or not, and any other instruments
or records in the possession of the BORROWER pertaining to the PROJECT. The
BORROWER shall be liable under this AGREEMENT to pay to the BANK, on
demand, any amount or amounts reasonably expended by the BANK in so
completing the PROJECT, together with any reasonable costs, charges, or
expenses incident thereto or resulting therefrom, all of which shall be
secured by the LOAN DOCUMENTS. In the event that a proceeding is instituted
against the BORROWER for recovery and reimbursement of
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any moneys expended by the BANK in connection with the completion of the
PROJECT, a statement of such expenditures, verified by the affidavit of an
officer of the BANK, shall be prima facie evidence of the amounts so
expended and of the propriety of the necessity for such expenditures; and
the burden of proving to the contrary shall be upon the BORROWER. The BANK
shall have the right to apply any funds which it agrees to disburse
hereunder to bring about the completion of the PROJECT and to pay the costs
thereof; and if such money so agreed to be disbursed is insufficient, in
the sole judgment of the BANK, to complete the PROJECT, the BORROWER agrees
to promptly deliver and pay to the BANK such sum or sums of money as the
BANK may from time to time demand for the purpose of completing the PROJECT
or of paying any liability, charge or expense which may have been incurred
or assumed by the BANK under or in performance of this AGREEMENT, or for
the purpose of completing the PROJECT. It is expressly understood and
agreed that in no event shall the BANK be obligated, or liable in any way
to complete the PROJECT or to pay for the costs of construction thereof
beyond the amount of the CONSTRUCTION LOAN.
7.2.5 The BANK may exercise any other rights and remedies available to it
by law or agreement.
SECTION 8 Miscellaneous.
8.1 Inspections. The BORROWER and the DESIGN-BUILDER shall be responsible for
making inspections of the PROJECT during the course of construction and shall
determine to their own satisfaction that the work done or materials supplied by
the DESIGN-BUILDER or any SUBCONTRACTOR to whom payment is to be made out of
each disbursement has been properly done or supplied in accordance with the
CONSTRUCTION CONTRACT. If any work done or materials supplied by the
DESIGN-BUILDER or any SUBCONTRACTOR are not satisfactory to the BORROWER and/or
its DESIGN-BUILDER and the same is not remedied within fifteen (15) days of the
discovery thereof, the BORROWER will immediately notify the BANK in writing of
such fact. It is expressly understood and agreed that the BANK and any party
designated by the BANK may conduct such inspections of the PROJECT, subject to
the limitations expressed in this AGREEMENT, as BANK may deem necessary for the
protection of the BANK's interest, and that any inspections which may be made of
the PROJECT by the BANK will be made, solely for the benefit and protection of
the BANK, and that the BORROWER will not rely thereon.
8.2 Indemnification by the BORROWER. The BORROWER shall bear all loss, expense
(including reasonable attorneys' fees) and damage in connection with, and agrees
to indemnify and hold harmless the BANK, its agents, servants and employees
from, all claims, demands and judgments made or recovered against the BANK, its
agents, servants and employees, because of bodily injuries, including death at
any time resulting there from, and/or because of damages to property (including
loss of use) from any cause whatsoever, arising out of, incidental to, or in
connection with the construction of the PROJECT, whether or not due to any act
of omission or commission, including negligence of the BORROWER or the
DESIGN-BUILDER or of his or their employees, servants or agents, other than
gross negligence or willful misconduct of BANK or its agents. The BORROWER'S
liability hereunder shall not be limited to the extent of insurance carried by
or provided by the BORROWER or subject to any exclusion from coverage in any
insurance
-32-
policy. The obligations of the BORROWER under this Section shall survive the
payment of the CONSTRUCTION NOTE.
8.3 No Waiver; Cumulative Remedies. No failure or delay on the part of the BANK
in exercising any right, power or remedy under the LOAN DOCUMENTS shall operate
as a waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy under the LOAN DOCUMENTS. The remedies
provided in the LOAN DOCUMENTS are cumulative and not exclusive of any remedies
provided by law.
8.4 Amendments, Etc. No amendment, modification, termination or waiver of any
provision of any of the LOAN DOCUMENTS or consent to any departure by the
BORROWER therefrom shall be effective unless the same shall be in writing and
signed by the BANK and the BORROWER, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No notice to or demand on the BORROWER in any case shall entitle the
BORROWER to any other or further notice or demand in similar or other
circumstances.
8.7 Addresses for Notices, Etc. Except as otherwise expressly provided herein,
all notices, requests, demands and other communications provided for under the
LOAN DOCUMENTS shall be in writing and sent by mail or telecopy (if by telecopy
with a confirmation mailed within two BUSINESS DAYS thereafter), to the
applicable party at its address indicated below:
If to the BORROWER: Red Trail Energy, LLC
P.O. Box 11
Richardton, North Dakota 58652
Attention: Ambrose Hoff
Telecopy: 701-974-3294
If to the BANK: First National Bank of Omaha
1620 Dodge St. STOP 1050
Omaha, NE 68197-1050
Attention: Natalie E. Mason
Telecopy: 402-633-3519
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other party complying as to delivery with the terms
of this Section. All such notices, requests, demands and other communications
shall, when mailed, be effective when deposited in the mails, addressed as
aforesaid, or, when telecopied, is effective when confirmation of receipt is
received, except that notices or requests to the BANK pursuant to any of the
provisions hereunder shall not be effective until received by the BANK.
8.8 Time of Essence. Time is of the essence in the performance of this
AGREEMENT.
-33-
8.9 Execution in Counterparts. The LOAN DOCUMENTS may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which counterparts, taken together, shall constitute
but one and the same instrument.
8.10 Binding Effect, Assignment. The LOAN DOCUMENTS to which they are parties
shall be binding upon and inure to the benefit of the BORROWER and the BANK and
their respective successors and assigns, except that the BORROWER shall not have
the right to assign its rights thereunder or any interest therein without the
prior written consent of the BANK.
8.11 Governing Law. The LOAN DOCUMENTS, to the extent they do not otherwise
provide, shall be governed by, and construed in accordance with, the laws of the
State of Nebraska.
8.12 Severability of Provisions. Any provision of this AGREEMENT, which is
prohibited or unenforceable, shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.
8.13 Headings. Section headings in this AGREEMENT are included herein for
convenience of reference only and shall not constitute a part of this AGREEMENT
for any other purpose.
8.14 Integration. This AGREEMENT supersedes, replaces and terminates any prior
oral offers, negotiations, understandings or agreements and any commitment
letters or similar writings relating to any of the matters contemplated herein.
8.15 Participations. Notwithstanding any other provision of this AGREEMENT, the
BORROWER understands that the BANK may enter into participation agreements with
other lenders whereby the BANK will allocate a certain percentage of the
OBLIGATIONS to them. The BORROWER specifically permits and authorizes the BANK
to exchange financial information about the BORROWER with actual or potential
participants. The BORROWER acknowledges that, for the convenience of all
parties, this AGREEMENT is being entered into with the BANK only and that its
obligations under this AGREEMENT are undertaken for the benefit of, and as an
inducement to, each of the Participating Lenders as well as the BANK, and the
BORROWER hereby grants to each of the Participating Lenders to the extent of its
participation in the OBLIGATIONS, the right to set off deposit accounts
maintained by the BORROWER with such BANK. The BORROWER understands that the
terms of such participation agreements with any of the participants will limit
the BANK's rights to amend, waive or modify the terms and conditions of this
AGREEMENT without the express written consent of all or a designated percentage
of such participants.
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
RED TRAIL ENERGY, LLC FIRST NATIONAL BANK OF OMAHA
By: /s/ Ambrose Hoff By: /s/ Natalie E. Mason
--------------------------------- ------------------------------------
Name: Ambrose Hoff Natalie E. Mason, Commercial Loan
Officer
-34-
Title: President
And
By: /s/ William DuToit
---------------------------------
Name: William DuToit
Title: Tres
STATE OF North Dakota )
)ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared Ambrose Hoff, as President of Red Trail Energy, LLC,
who executed the foregoing instrument, and acknowledged that he executed the
same as his voluntary act and deed, as well as that of the limited liability
company.
/s/ DEELL HOFF
----------------------------------------
Notary Public
STATE OF North Dakota )
)ss.
COUNTY OF Stark ) [DEELL HOFF STAMP]
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared William DuToit, as Tres. of Red Trail Energy, LLC,
who executed the foregoing instrument, and acknowledged that he executed the
same as his voluntary act and deed, as well as that of the limited liability
company.
/s/ DEELL HOFF
----------------------------------------
Notary Public
[DEELL HOFF STAMP]
-35-
EXHIBIT A
Construction Note
Note Date: December 16, 2005 $55,211,740.00
Maturity Date: April 16, 2007
FOR VALUE RECEIVED, Red Trail Energy, LLC, a North Dakota limited liability
company ("BORROWER"), promises to pay to the order of First National Bank of
Omaha ("BANK"), at its principal office or such other address as BANK or holder
may designate from time to time, the principal sum of Fifty-Five Million Two
Hundred Eleven Thousand seven hundred forty and No/100 Dollars ($55,211,740.00),
or the amount shown on the BANK's records to be outstanding, plus interest
(calculated on the basis of actual days elapsed in a 360-day year) accruing each
day on the unpaid principal balance at the annual interest rates defined below.
Absent manifest error, the BANK's records shall be conclusive evidence of the
principal and accrued interest owing hereunder.
This promissory note is executed pursuant to a Construction Loan Agreement
("LOAN AGREEMENT") between BORROWER and BANK dated as of December 16, 2005. All
capitalized terms not otherwise defined in this note shall have the meanings
provided in the LOAN AGREEMENT.
INTEREST ACCRUAL. Interest on the principal amount outstanding on the
CONSTRUCTION LOAN shall accrue, for the period through and including the
COMPLETION DATE, at a rate equal to the LIBOR RATE plus three hundred forty
(340) basis points from time to time until maturity, and six hundred (600) basis
points in excess of said aggregate interest rate from time to time after
maturity, whether by acceleration or otherwise. Interest shall be calculated on
the basis of a 360-day year, counting the actual number of days elapsed.
REPAYMENT TERMS. Until LOAN TERMINATION DATE, interest only shall be payable
every three months, commencing March 16, 2006. On LOAN TERMINATION DATE, all
principal and accrued interest are due and payable. The LOAN AGREEMENT describes
the TERM NOTES that may be used by BORROWER to pay this promissory note.
PREPAYMENT. The LOAN AGREEMENT contains provisions regarding prepayment.
ADDITIONAL TERMS AND CONDITIONS. The LOAN AGREEMENT, and any amendments or
substitutions, contains additional terms and conditions, including default and
acceleration provisions, which are incorporated into this CONSTRUCTION NOTE by
reference. The BORROWER agrees to pay all costs of collection, including
reasonable attorneys fees and legal expenses incurred by the BANK if this
CONSTRUCTION NOTE is not paid as provided above. This CONSTRUCTION NOTE shall be
governed by the substantive laws of the State of Nebraska.
WAIVER OF PRESENTMENT AND NOTICE OF DISHONOR. BORROWER and any other person who
signs, guarantees or endorses this CONSTRUCTION NOTE, to the extent allowed by
law, hereby waives presentment, demand for payment, notice of dishonor, protest,
and any notice relating to the acceleration of the maturity of this CONSTRUCTION
NOTE.
-36-
Red Trail Energy, LLC, a North Dakota limited liability company
By:
---------------------------------
Name: Ambrose Hoff
Title: President
And
By:
---------------------------------
Name: William Dutoit
Title: Tres
STATE OF North Dakota)
)ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared Ambrose Hoff, President of Red Trail Energy, LLC, a
North Dakota limited liability company, on behalf of said entity, who executed
the foregoing instrument, and acknowledged that he executed the same as his
voluntary act and deed.
----------------------------------------
Notary Public
STATE OF North Dakota)
)ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared William DuToit, Tres. of Red Trail Energy, LLC, a
North Dakota limited liability company, on behalf of said entity, who executed
the foregoing instrument, and acknowledged that he executed the same as his
voluntary act and deed.
----------------------------------------
Notary Public
-37-
EXHIBIT B
FIXED RATE NOTE
Note Date: ____________, 2007 $27,605,870.00
Maturity Date: ____________, 2012
FOR VALUE RECEIVED, RED TRAIL ENERGY, LLC, a North Dakota limited liability
company ("BORROWER"), promises to pay to the order of First National Bank of
Omaha ("BANK"), at its principal office or such other address as BANK or holder
may designate from time to time, the principal sum of Twenty Seven Million Six
Hundred and Five Thousand Eight Hundred Seventy and 00/100 Dollars
($27,605,870.00), or the amount shown on the BANK's records to be outstanding,
plus interest (calculated on the basis of actual days elapsed in a 360-day year)
accruing each day on the unpaid principal balance at the annual interest rates
defined below. Absent manifest error, the BANK's records shall be conclusive
evidence of the principal and accrued interest owing hereunder.
This promissory note is executed pursuant to a Construction Loan Agreement
("CONSTRUCTION LOAN AGREEMENT") between BORROWER and BANK dated as of December
16, 2005, (the Construction Loan Agreement, together with all amendments thereto
is called the "AGREEMENT"). All capitalized terms not otherwise defined in this
note shall have the meanings provided in the AGREEMENT.
INTEREST ACCRUAL. Interest on the principal amount outstanding shall accrue
until maturity and be fixed based on a three month LIBOR +300 basis points on
the Note Date, and at the LIBOR RATE plus six hundred (600) basis points in
excess of said aggregate interest rate from time to time after maturity, whether
by acceleration or otherwise. Interest shall be calculated on the basis of a
360-day year, counting the actual number of days elapsed.
REPAYMENT TERMS. Interest on the outstanding principal balance shall be due and
payable quarterly, in arrears, with the first payment commencing
on ___________________, 200______. Principal shall be due and payable in the
amounts and on the dates set forth in Schedule I, attached to the AGREEMENT,
which is incorporated herein by reference. In all events, the entire outstanding
principal balance, together with all accrued and unpaid interest, shall be
immediately due and payable in full on ___________________, 2012.
PREPAYMENT. The BORROWER may prepay this promissory note in full or in part at
any time. Provided, however, a condition of any prepayment of all of the FIXED
RATE NOTE, VARIABLE RATE NOTE and LONG TERM REVOLVING NOTE is that certain fees
shall be paid to BANK. If such complete prepayment occurs within the first three
years following COMPLETION DATE, a fee of one (1%) percent of the amount prepaid
shall be paid to BANK.
In addition, if complete or partial prepayment occurs, a fee shall be paid to
BANK equal to the amount calculated by the following formula: (Original LIBOR
RATE minus current LIBOR RATE) multiplied by the amount prepaid, multiplied by
the number of days to the next scheduled interest adjustment day, divided by
360. Any prepayment may be applied in inverse order of maturity or as the BANK
in its sole discretion may deem appropriate. Such prepayment
shall not excuse the BORROWER from making subsequent payments each quarter until
the indebtedness is paid in full. No payment of EXCESS CASH FLOW shall be the
cause of a payment to BANK for interest rate breakage fees or otherwise result
in any prepayment fee.
ADDITIONAL TERMS AND CONDITIONS. The AGREEMENT, and any amendments or
substitutions, contains additional terms and conditions, including default and
acceleration provisions, which are incorporated into this promissory note by
reference. The BORROWER agrees to pay all costs of collection, including
reasonable attorneys fees and legal expenses incurred by the BANK if this
promissory note is not paid as provided above. This promissory note shall be
governed by the substantive laws of the State of Nebraska.
WAIVER OF PRESENTMENT AND NOTICE OF DISHONOR. BORROWER and any other person who
signs, guarantees or endorses this promissory note, to the extent allowed by
law, hereby waives presentment, demand for payment, notice of dishonor, protest,
and any notice relating to the acceleration of the maturity of this promissory
note.
RED TRAIL ENERGY, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
And
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STATE OF North Dakota)
)ss.
COUNTY OF Stark )
On this 16 day of December 2005, before me, the undersigned, a Notary
Public, personally appeared Ambrose Hoff, President of Red Trail Energy, LLC, on
behalf of said entity, who executed the foregoing instrument, and acknowledged
that he executed the same as his voluntary act and deed and that of the Company.
----------------------------------------
Notary Public
-2-
STATE OF North Dakota)
)ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared William DuToit, Tres. of Red Trail Energy, LLC, on
behalf of said entity, who executed the foregoing instrument, and acknowledged
that he executed the same as his voluntary act and deed and that of the Company.
----------------------------------------
Notary Public
-3-
EXHIBIT C
VARIABLE RATE NOTE
Note Date: ______________, 2007 $17,605,870.00
Maturity Date: _____________, 2012
FOR VALUE RECEIVED, RED TRAIL ENERGY, LLC, a North Dakota limited liability
company ("BORROWER"), promises to pay to the order of First National Bank of
Omaha ("BANK"), at its principal office or such other address as BANK or holder
may designate from time to time, the principal sum of Seventeen Million Six
Hundred and Five Thousand Eight Hundred Seventy and 00/100 Dollars
($17,605,870.00), or the amount shown on the BANK'S records to be outstanding,
plus interest (calculated on the basis of actual days elapsed in a 360-day year)
accruing each day on the unpaid principal balance at the annual interest rates
defined below. Absent manifest error, the BANK'S records shall be conclusive
evidence of the principal and accrued interest owing hereunder.
This promissory note is executed pursuant to a Construction Loan Agreement
("CONSTRUCTION LOAN AGREEMENT") between BORROWER and BANK dated as of December
16, 2005, (the Construction Loan Agreement, together with all amendments thereto
is called the "AGREEMENT"). All capitalized terms not otherwise defined in this
note shall have the meanings provided in the AGREEMENT.
INTEREST ACCRUAL. Interest on the principal amount outstanding shall accrue
based on a three month LIBOR +340 basis points from time to time until maturity,
and at the LIBOR RATE plus six hundred (600) basis points in excess of said
aggregate interest rate from time to time after maturity, whether by
acceleration or otherwise. Interest shall be calculated on the basis of a
360-day year, counting the actual number of days elapsed.
INCENTIVE PRICING. The interest rate applicable to this promissory note is
subject to reduction after a date six months subsequent to CONSTRUCTION
COMPLETION DATE, based on the business results of BORROWER. In the event that
BORROWER maintains the following ratios, measured monthly, the interest rates
will be reduced accordingly:
If INDEBTEDNESS to NET WORTH
is less than: Interest will be:
- ---------------------------- -----------------
1.15:1.00 three month LIBOR plus 325 basis points
1.00:1.00 three month LIBOR plus 300 basis points
.75:1.00 three month LIBOR plus 275 basis points
REPAYMENT TERMS. Interest and Principal shall be due and payable in the amounts
described in the AGREEMENT, which will be applied to this Note and the LONG TERM
REVOLVING NOTE, in the manner described in the AGREEMENT. Any remaining
principal balance, plus any accrued but unpaid interest, shall be fully due and
payable on _________________, 2012.
PREPAYMENT. The BORROWER may prepay this promissory note in full or in part at
any time. Provided, however, a condition of any prepayment of all of the FIXED
RATE NOTE, VARIABLE RATE NOTE, and LONG TERM REVOLVING NOTE is that certain fees
shall be paid to BANK. If such complete prepayment occurs within the first three
years following COMPLETION DATE, a fee of one (1%) percent of the amount prepaid
shall be paid to BANK.
In addition, if complete or partial prepayment occurs, a fee shall be paid to
BANK equal to the amount calculated by the following formula: (Original LIBOR
RATE minus current LIBOR RATE) multiplied by the amount prepaid, multiplied by
the number of days to the next scheduled interest adjustment day, divided by
360. Any prepayment may be applied in inverse order of maturity or as the BANK
in its sole discretion may deem appropriate. Such prepayment shall not excuse
the BORROWER from making subsequent payments each quarter until the indebtedness
is paid in full. No payment of EXCESS CASH FLOW shall be the cause of a payment
to BANK for interest rate breakage fees or otherwise result in any prepayment
fee.
ADDITIONAL TERMS AND CONDITIONS. The AGREEMENT, and any amendments or
substitutions, contains additional terms and conditions, including default and
acceleration provisions, which are incorporated into this promissory note by
reference. The BORROWER agrees to pay all costs of collection, including
reasonable attorneys fees and legal expenses incurred by the BANK if this
promissory note is not paid as provided above. This promissory note shall be
governed by the substantive laws of the State of Nebraska.
WAIVER OF PRESENTMENT AND NOTICE OF DISHONOR. BORROWER and any other person who
signs, guarantees or endorses this promissory note, to the extent allowed by
law, hereby waives presentment, demand for payment, notice of dishonor, protest,
and any notice relating to the acceleration of the maturity of this promissory
note.
RED TRAIL ENERGY, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
And
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-2-
STATE OF North Dakota)
)ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared Ambrose Hoff, President of Red Trail Energy, LLC, on
behalf of said entity, who executed the foregoing instrument, and acknowledged
that he executed the same as his voluntary act and deed and that of the Company.
----------------------------------------
Notary Public
STATE OF North Dakota)
)ss.
COUNTY OF Stark )
On this 16 day of December, 2005 before me, the undersigned, a Notary
Public, personally appeared William DuToit, Tres. of Red Trail Energy, LLC, on
behalf of said entity, who executed the foregoing instrument, and acknowledged
that he executed the same as his voluntary act and deed and that of the Company.
----------------------------------------
Notary Public
-3-
EXHIBIT D
LONG TERM REVOLVING NOTE
Note Date: ______________________, 2007 $10,000,000.00
Maturity Date: _______________________, 2012
FOR VALUE RECEIVED, RED TRAIL ENERGY, LLC, a North Dakota limited liability
company ("BORROWER") promises to pay to the order of First National Bank of
Omaha ("BANK"), at its principal office or such other address as BANK or holder
may designate from time to time, the principal sum of Ten Million and 00/100
Dollars ($10,000,000.00), or the amount shown on the BANK's records to be
outstanding, plus interest (calculated on the basis of actual days elapsed in a
360-day year) accruing each day on the unpaid principal balance at the annual
interest rates defined below. Absent manifest error, the BANK's records shall be
conclusive evidence of the principal and accrued interest owing hereunder.
This promissory note is executed pursuant to a Construction Loan Agreement
between BORROWER and BANK dated as of December 16, 2005, (the Construction Loan
Agreement, together with all amendments thereto is called the "AGREEMENT"). All
capitalized terms not otherwise defined in this note shall have the meanings
provided in the AGREEMENT.
INTEREST ACCRUAL. Interest on the principal amount outstanding shall accrue
based on a one month LIBOR +340 basis points from time to time until maturity,
and at the LIBOR RATE plus six hundred (600) basis points in excess of said
aggregate interest rate from time to time after maturity, whether by
acceleration or otherwise. Interest shall be calculated on the basis of a
360-day year, counting the actual number of days elapsed.
REVOLVING FEATURE. The BORROWER may reborrow, on a revolving basis, that
principal amount repaid on this promissory note which remains at a variable
interest rate. BORROWER will pay BANK an unused commitment fee of three-tenths
of one percent (3/10%) assessed quarterly in arrears against the unused portion
of the note amount. Pursuant to this revolving loan feature the BANK will lend
the BORROWER, from time to time until maturity of this note such sums in
integral multiples of $10,000.00 as the BORROWER may request by reasonable same
day notice to the BANK, received by the BANK not later than 11:00 A.M. on
Friday, or the next BUSINESS DAY thereafter, each week but which shall not
exceed in the aggregate principal amount at any one time outstanding,
$10,000,000.00. The BORROWER may borrow, repay and reborrow hereunder, from the
date of this AGREEMENT until the maturity of this note, said amount or any
lesser sum which is $10,000.00 or an integral multiple thereof.
INCENTIVE PRICING. The interest rate applicable to this promissory note is
subject to reduction after a date six months subsequent to CONSTRUCTION
COMPLETION DATE, based on the business results of BORROWER. In the event that
BORROWER maintains the following ratios, measured monthly, the interest rates
will be reduced accordingly:
If INDEBTEDNESS to NET WORTH
is less than: Interest will be:
- ---------------------------- -----------------
1.15: 1.00 LIBOR plus 325 basis points
1.00: 1.00 LIBOR plus 300 basis points
.75: 1.00 LIBOR plus 275 basis points
REPAYMENT TERMS. Interest and principal shall be paid as set forth in the
AGREEMENT. Any remaining principal balance, plus any accrued but unpaid
interest, shall be fully due and payable on ______________________, 2012, if not
sooner paid.
PREPAYMENT. The BORROWER may prepay this promissory note in full or in part at
any time. Provided, however, a condition of any prepayment of all of the FIXED
RATE NOTE, VARIABLE RATE NOTE, and LONG TERM REVOLVING NOTE is that certain fees
shall be paid to BANK. If such complete prepayment occurs within the first three
years following COMPLETION DATE, a fee of one (1%) percent of the amount prepaid
shall be paid to BANK. Any prepayment may be applied in inverse order of
maturity or as the BANK in its sole discretion may deem appropriate. Such
prepayment shall not excuse the BORROWER from making subsequent payments each
quarter until the indebtedness is paid in full. No payment of EXCESS CASH FLOW
shall be the cause of a payment to BANK for interest rate breakage fees or
otherwise result in any prepayment fee.
ADDITIONAL TERMS AND CONDITIONS. The AGREEMENT, and any amendments or
substitutions, contains additional terms and conditions, including default and
acceleration provisions, which are incorporated into this promissory note by
reference. The BORROWER agrees to pay all costs of collection, including
reasonable attorneys fees and legal expenses incurred by the BANK if this
promissory note is not paid as provided above. This promissory note shall be
governed by the substantive laws of the State of Nebraska.
WAIVER OF PRESENTMENT AND NOTICE OF DISHONOR. BORROWER and any other person who
signs, guarantees or endorses this promissory note, to the extent allowed by
law, hereby waives presentment, demand for payment, notice of dishonor, protest,
and any notice relating to the acceleration of the maturity of this promissory
note.
RED TRAIL ENERGY, LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
And
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-2-
STATE OF North Dakota)
) ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared Ambrose Hoff, President of Red Trail Energy, LLC, on
behalf of said entity, who executed the foregoing instrument, and acknowledged
that he executed the same as his voluntary act and deed and that of the Company.
----------------------------------------
Notary Public
STATE OF North Dakota)
) ss.
COUNTY OF Stark )
On this 16 day of December, 2005, before me, the undersigned, a Notary
Public, personally appeared William DuToit, Tres. of Red Trail Energy, LLC, on
behalf of said entity, who executed the foregoing instrument, and acknowledged
that he executed the same as his voluntary act and deed and that of the Company.
----------------------------------------
Notary Public
-3-
EXHIBIT E
REVOLVING PROMISSORY NOTE
Omaha, Nebraska $3,500,000.00
Note Date: December 16, 2005 Maturity Date: December 15, 2006
On or before December 15, 2006, RED TRAIL ENERGY, LLC ("BORROWER"),
promises to pay to the order of FIRST NATIONAL BANK OF OMAHA ("BANK") at any of
its offices in Omaha, Nebraska the principal sum hereof, which shall be Three
Million Five Hundred Thousand and no/100 ($3,500,000.00) Dollars or so much
thereof as may have been advanced by BANK and shown on the records of the BANK
to be outstanding, under this Note and the loan agreement executed by the BANK
and BORROWER dated as of December 16, 2005, as it may, from time to time, be
amended. Interest on the principal balance from time to time outstanding will be
payable at a rate equal to the LIBOR RATE plus three hundred forty (340) basis
points from time to time until maturity, and six hundred (600) basis points in
excess of said aggregate interest rate from time to time after maturity, whether
by acceleration or otherwise. Interest shall be calculated on the basis of a
360-day year, counting the actual number of days elapsed. Interest on the
REVOLVING LOAN shall be payable quarterly. Provided, however, the LOAN AGREEMENT
contains provisions for reduction of the interest rate under certain
circumstances.
This note is executed pursuant to a Construction Loan Agreement dated as of
December 16, 2005, between BANK and BORROWER (the "LOAN AGREEMENT"). The LOAN
AGREEMENT contains additional terms of this Note, including, but not limited to
enumerated events of default, and the granting of liens to secure BORROWER'S
performance. All capitalized terms not otherwise defined herein shall have the
same meanings as set forth in the LOAN AGREEMENT.
As provided in the LOAN AGREEMENT, upon any such enumerated default, BANK
may accelerate the due date of this Note and declare all obligations set forth
herein immediately due and payable, and BANK shall also have such other remedies
as are described in the LOAN AGREEMENT and are provided by law. All makers and
endorsers hereby waive presentment, demand, protest and notice of dishonor,
consent to any number of extensions and renewals for any period without notice;
and consent to any substitution, exchange or release of collateral, and to the
addition or releases of any other party primarily or secondarily liable.
Executed as of the Note Date set forth above.
RED TRAIL ENERGY, LLC,
a North Dakota limited liability company
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-38-
And
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-39-
EXHIBIT F
Real Estate Description
TRACT 1:
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER (SW1/4) OF SECTION 4, TOWNSHIP
139 NORTH, RANGE 92 WEST OF THE 5th PRINCIPAL MERIDIAN, STARK COUNTY, NORTH
DAKOTA. Being more particularly described as follows:
All that portion of said Southwest Quarter lying South of the southerly 200 foot
right of way line of the Burlington Northern / Santa Fe Railroad as surveyed and
constructed across said Southwest Quarter of Section 4, except the west 100.00
feet and the south 850.00 feet of the west 920.00 feet of said Southwest Quarter
of Section 4
TRACT 2:
A TRACT OF LAND IN THE SE1/4 OF SECTION 4, TOWNSHIP 139 NORTH, RANGE 92 WEST OF
THE 5th P.M., STARK COUNTY, NORTH DAKOTA, more particularly described as
follows:
All that portion of said SE1/4 lying south of the southerly 200 foot right of
way line of the Burlington Northern / Santa Fe Railroad as surveyed and
constructed across the said SE1/4 of Section 4
TRACT 3:
A tract of land located in the South Half (S1/2) of Section 4, Township 139
North, Range 92 West of the 5th Principal Meridian, Stark County, North Dakota,
being more particularly described as follows:
The southerly 150.00 feet of the southerly 200.00 feet of right of way for the
Burlington Northern / Santa Fe Railroad as surveyed and constructed across said
South Half of Section 4. Said tract contains 16.87 acres.
TRACT 4:
A tract of land located in the Northeast Quarter of the Northeast Quarter (NE1/4
NE1/4) of Section 9, Township 139 North, Range 92 West of the 5th Principal
Meridian, Stark County, North Dakota, being more particularly described as
follows:
The southerly 150.00 feet of the southerly 200.00 feet of right of way for the
Burlington Northern / Santa Fe Railroad as surveyed and constructed across said
Northeast Quarter of the Northeast Quarter of Section 9. Said Tract contains
2.79 acres.
TRACT 5:
A tract of land located in the Northwest, Northeast, and Southeast Quarters of
Section 10, Township 139 North, Range 92 West of the 5th Principal Meridian,
Stark County, North Dakota, being more particularly described as follows:
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The southerly 150.00 feet of the southerly 200.00 feet of right of way for the
Burlington Northern / Santa Fe Railroad as surveyed and constructed across said
Northwest Quarter, the Northeast Quarter and the Southeast Quarter of Section
10. Said tract contains 22.05 acres.
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(FIRST NATIONAL BANK LOGO)
EXHIBIT G TO CONSTRUCTION LOAN AGREEMENT
INTERNATIONAL TRADE SERVICES FEE SCHEDULE
ALL SERVICES MAY BE SUBJECT TO APPROVAL
DOCUMENTARY LETTERS OF CREDIT - IMPORT
Issuance....................................................................$100.00 flat fee (Includes Cable/SWIFT)
Preliminary Issuance Advice (As applicable)..................................................................$75.00
Amendment..............................................................................$50.00(lncludes Cable/SWIFT)
Examination/Payment............................................................................1/8%, $50.00 Minimum
Acceptance/Deferred Payments........................................................1.25% per annum, $50.00 Minimum
Expired/Cancelled Without Presentation of Documents..........................................................$50.00
Steamship Guarantee..........................................................................................$75.00
Transfer LC.....................................................................................25% $100.00 Minimum
Transfer Amendment...........................................................................................$50.00
Assignment of Proceeds....................................................1/10% On Assigned Amount, $100.00 Minimum
Discrepancy (Beneficiary)....................................................................................$50.00
Reimbursement Cable Fee (Beneficiary)........................................................................$30.00
DOCUMENTARY LETTERS OF CREDIT - EXPORT
Advising.....................................................................................................$50.00
Examination/Collection........................................................................1/10%, Minimum $75.00
Expedited Negotiation & Payment
(24 hour payment service)..................................................................1/10%, Minimum $75.00
(Subject to Approval)...................Plus interest at Libor +3% (# of days varies by country), Minimum $50.00
Amendment Advising...........................................................................................$30.00
Transfer LC........................................................................................25% $100 Minimum
Transfer Amendment...........................................................................................$50.00
Special Handling (As applicable)............................................................Varies, $30.00 - $50.00
Confirmation.........................................................................................By Arrangement
Acceptance/Deferred Payment..............................................................1.25% p.a., Minimum $50.00
Assignment of Proceeds....................................................1/10% On Assigned Amount, $100.00 Minimum
STANDBY LETTERS OF CREDIT
Application Preparation......................................................................Varies, $10.00 Minimum
Preliminary Issuance/Advise (if applicable)..................................................................$60.00
issuance Fee.................................................................................................$60.00
Commitment Fee............................................................................2.25% p.a. $50.00 Minimum
Amendments...................................................................................................$40.00
Payment Commission.............................................................................1.25% $50.00 Minimum
Annual Automatic Renewal....................................................................................$100.00
Transfer LC.....................................................................................25% $100.00 Minimum
Transfer LC Amendment........................................................................................$50.00
Assignment of Proceeds....................................................1/10% On Assigned Amount, $100.00 Minimum
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DOCUMENTARY COLLECTIONS - EXPORT (OUTBOUND)
U.S. and Foreign Currency
Direct Sends (Our DC Forms)..................................................................................$50.00
Standard Non-Direct...........................................................................1/10%, $60.00 Minimum
Amendments (As applicable)...................................................................................$15.00
Tracers (Your schedule preference).......................................................Courier/SWIFT/Cable $25.00
Items held unaccepted/unpaid 30 days after first presentation....................................May Apply / Varies
Any unpaid collection charges are for your account.
Any charges for returned unpaid collections are for your account.
DOCUMENTARY COLLECTIONS - IMPORT (INBOUND)
U.S. and Foreign Currency
Sight (documents released against payment).....................................................1/10% Minimum $50.00
Time (Documents released against acceptance)...................................................1/10% Minimum $60.00
Collection Amendments (As applicable)........................................................................$15.00
Items held unaccepted/unpaid 30 days after first presentation....................................May Apply / Varies
Tracers...................................................................................Courier/SWIFT/Cable$25.00
Any unpaid collection charges are for your account.
Any charges incurred for returned unpaid collections are for your account.
COLLECTIONS-DEPOSITS/CASH LETTERS
U.S. Dollar or Canadian Dollar Checks Drawn on a Canadian Bank......................................$2.00 each item
Foreign Currency Check without Restrictions...................................................................$7.50
Clean Items - U.S. Dollars or Foreign Currency.................................Face Value less than $250.00, $10.00
.............................................................................Face Value greater than $250.00, $25.00
Items deposited and returned unpaid.............................................Face Value less than $2,000, $20.00
..............................................................................Face Value greater than $2,000, $25.00
Tracers (Courier/SWIFT/Cable)................................................................................$25.00
Check Photocopy on Request..........................................................................$5.00 each item
Item Research on Request.................................$25.00 each item (plus other bank charges when applicable)
ALL ITEMS ARE SUBJECT TO FINAL PAYMENT AT THE MARKET RATE (WITHOUT ADVICE).
Any charges for returned unpaid collections are for your account.
CANADIAN TRANSBORDER ACCOUNT SERVICES AND LOCK BOX SERVICES
Contact First National for details on Canadian transborder account services,
including lock box and balance reporting.
INTERNATIONAL FOREIGN CURRENCY WIRE TRANSFERS
Wire Fee.....................................................................................................$25.00
Tracers......................................................................................................$25.00
Recall Funds/Stop Payment....................................................................................$25.00
Amendment tO Instructions...........................................$15.00(plus other bank charges when applicable)
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FOREIGN CURRENCY DRAFTS
Draft........................................................................................................$15.00
Tracers/Recall Funds/Stop Payments...........................................................................$25.00
MISCELLANEOUS
Rush Handling................................................................................Varies, $25.00 Minimum
Special Handling............................................................................Varies, $30.00 - $50.00
SWIR/Telex Message...........................................................................Varies, $25.00 Minimum
Courier (International)......................................................................................$25.00
Courier (Domestic)...........................................................................................$15.00
Check Issuance...............................................................................................$15.00
Fed Wire Transfer............................................................................................$15.00
Inbound Payment Orders.......................................................................................$15.00
Document Preparation Service.................................................................Contact Us for Details
ALL FEES SUBJECT TO CHANGE WITHOUT NOTICE.
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SCHEDULE "I" TO SWAP NOTE
AMORTIZATION SCHEDULE - U.S. RULE (NO COMPOUNDING), 360 DAY YEAR
Red Trail Energy Swap Note Principal Schedule for Payments
AMORTIZATION SCHEDULE - U.S. Rule (no compounding), 360 Day Year
BEGINNING
DATE BALANCE PRINCIPAL
---------- ------------- ------------
Loan 4/16/2007 27,605,870.00
1 7/16/2007 471,576.51
2 10/16/2007 474,814.49
2007 946,391.00
Totals
3 1/16/2008 483,778.46
4 4/16/2008 498,283.07
5 7/16/2008 507,587.85
6 10/16/2008 511,901.41
2008 2,001,550.79
Totals
7 1/16/2009 521,565.55
8 4/16/2009 541,317.96
9 7/16/2009 546,473.46
10 10/16/2009 551,948.44
2009 2,161,305.41
Totals
11 1/16/2010 562,368.63
12 4/16/2010 581,987.59
13 7/16/2010 588,354.42
14 10/16/2010 595,080.30
2010 2,327,790.94
Totals
15 1/16/2011 606,314.77
16 4/16/2011 625,790.00
17 7/16/2011 633,461.48
18 10/16/2011 641,534.61
2011 2,507,100.86
Totals
19 1/16/2012 653,646.08
20 4/16/2012 669,476.36
2012 1,323,122.44
Totals
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