Common use of Conditions Precedent to Funding Clause in Contracts

Conditions Precedent to Funding. The effectiveness of this Agreement and obligations of the Lender to make any Advance, are subject to the conditions precedent that the Lender shall have received the following, in form and substance satisfactory to the Lender: (a) This Agreement, duly executed by the Borrower and the Lender; (b) The Supplements, duly executed by the Borrower and the Lender; (c) The Construction Note and the Revolving Note duly executed by the Borrower; (d) The Mortgage, fully executed and notarized, to secure the Loans encumbering on a first Lien basis the fee interest and/or leasehold interest of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d); (e) A Security Agreement duly executed by the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower in the Collateral; (f) A copy of the Construction Contract(s) and a complete set of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the Project; (g) An assignment of contract for each of the Construction Contracts and the Plans and Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract;

Conditions Precedent to Funding. The effectiveness obligation of this Agreement Lessor to purchase ------------------------------- and obligations pay for each Unit is subject to satisfaction of the Lender to make any Advance, are subject to the following conditions precedent that the Lender precedent: (a) Lessee shall have received executed and delivered to Lessor the followingCertificate and any Purchase Agreement Assignment or xxxx of sale and invoice therefor as required under Sections 1.1 and 1.3 of the Lease Agreement; (b) the Delivery Date of the Unit shall be during the Utilization Period set forth below; (c) there shall exist no Event of Default (nor any event which, with notice or lapse of time or both, would become an Event of Default); (d) no material adverse change in Lessee's or any guarantor's or general partner of Lessee's financial condition shall have occurred since the date hereof; (e) satisfactory resolution of any environmental issues; and (f) delivery to Lessor, no later than the first assignment by Lessee of a Purchase Agreement under this Appendix (or, in the case of a sale and leaseback, the first Delivery Date), at Lessee's sole expense, of the following documents, in form and substance satisfactory to the Lender: (a) This Agreement, duly executed by the Borrower and the LenderLessor; (bi) The Supplementsevidence of Lessee's and any guarantor's authority to enter into and perform its obligations under the Lease, duly executed by and of the Borrower incumbency of corporate or partnership officers or identity of individuals authorized to execute and deliver the LenderLease and any other agreement or document required thereunder, including specimen signatures of such persons; (cii) The Construction Note an opinion of counsel of Lessee and the Revolving Note duly executed by the Borrowerany guarantor; (diii) The Mortgage, fully executed and notarized, insurance certificates or other evidence acceptable to secure the Loans encumbering on a first Lien basis the fee interest and/or leasehold interest Lessor that Lessee has complied with Section 7 of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d)Lease Agreement; (eiv) A Security Agreement duly UCC financing statements executed by Lessee together with, at Lessor's option, certificates of filing officers as to the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower nonexistence of any prior UCC filings and, in the Collateral; (f) A copy case of the Construction Contract(s) a sale and a complete set of the Plans leaseback, evidence satisfactory to Lessor that each Unit is free and Specifications, together with copies clear of all permits claims, liens, security interests and government approvals relating to the construction and use of the Projectencumbrances; (g) An assignment of contract for each of the Construction Contracts and the Plans and Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract;

Conditions Precedent to Funding. The effectiveness of this Agreement and obligations of the Lender to make any Advance, fund the Loans are subject to the conditions condition precedent that the Lender shall have received the following, in form and substance satisfactory to the Lender: (a) This Agreement, duly executed by the Borrower and the Lender; (b) The SupplementsNotes, duly executed by the Borrower and the Lender; (c) The Construction Note and the Revolving Note duly executed by the Borrower; (dc) The Mortgage, fully executed and notarized, to secure the Loans encumbering on a first Lien basis the fee interest and/or leasehold interest of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d3.01(c); (ed) A Security Agreement duly executed by the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower in the Collateral; (fe) A copy of the Construction Contract(s) and a complete set of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the Project; (gf) An assignment of contract for each of the Construction Contracts and the Plans and Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract; (g) Copies of all other agreements between Borrower and third parties used in the normal operations of Borrower, including but not limited to management agreements, marketing agreements, and corn delivery agreements; (h) Assignments of the contracts between Borrower and third parties identified above, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such contracts, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such contract; (i) Financing Statements in form and content satisfactory to the Lender and in proper form under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Lender, desirable to perfect the security interests created by the Security Agreement; (j) Copies of UCC, tax and judgment lien search reports listing all financing statements and other encumbrances which name the Borrower (under its present name and any previous name) and which are filed in the jurisdictions in which the Borrower is located, organized or maintains collateral, together with copies of such financing statements (none of which shall cover the collateral purported to be covered by the Security Agreement); (k) Evidence that all other actions necessary or, in the opinion of the Lender, desirable to enable the Lender to perfect and protect the security interests created by the Security Agreement have been taken; (l) An ALTA mortgagee title insurance policy issued by a title insurance company acceptable to Lender, with respect to the Real Property, assuring the Lender that the Mortgage creates a valid and enforceable encumbrance on the Real Property, free and clear of all defects and encumbrances except Permitted Liens and containing: (i) a comprehensive endorsement (ALTA form 9); (ii) a zoning endorsement (ALTA form 3.1) specifying an ethanol production facility as a permitted use for all of the parcels included in the Real Property; and (iii) such endorsements as the Lender shall reasonably require. All such title insurance policies shall be in form and substance reasonably satisfactory to the Lender and shall provide for affirmative insurance and such reinsurance as the Lender may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Lender; (m) Maps or plats of the Real Property certified to the Lender and the title insurance company issuing the policy referred to in Subsection 3.01(k) (the “Title Insurance Company”) in a manner reasonably satisfactory to each of the Lender and the Title Insurance Company, dated a date reasonably satisfactory to each of the Lender and the Title Insurance Company by an independent professional licensed land surveyor, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (i) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (ii) the lines of streets abutting the sites and width thereof; (iii) all access and other easements appurtenant to the sites necessary to use the sites; (iv) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (v) any encroachments on any adjoining property by the building structures and improvements on the sites; and (vi) if the site is described as being on a filed map, a legend relating the survey to said map; (n) Evidence as to: (i) whether any portion of the Real Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Hazard Property”); and (ii) if any portion of the Real Property is a Flood Hazard Property: (A) whether the community in which such Real Property is located is participating in the National Flood Insurance Program; (B) the Borrower’s written acknowledgment of receipt of written notification from the Lender (1) as to the fact that such Real Property is a Flood Hazard Property and (2) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program; and (C) copies of insurance policies or certificates of insurance of the Borrower evidencing flood insurance satisfactory to the Lender and naming the Lender as sole loss payee on behalf of the Lender; (o) Evidence reasonably satisfactory to the Lender that the Real Property and the contemplated use of the Real Property, are in compliance in all material respects with all applicable Laws including without limitation health and Environmental Laws, including, but not limited to all concentrated animal feedlot operations rules and regulations, erosion control ordinances, storm drainage control laws, doing business and/or licensing laws, zoning laws (the evidence submitted as to zoning should include the zoning designation made for the Real Property, the permitted uses of the Real Property under such zoning designation and zoning requirements as to parking, lot size, ingress, egress and building setbacks) and laws regarding access and facilities for disabled persons including, but not limited to, the Federal Architectural Barriers Act, the Fair Housing Amendments Act of 1988, the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990; (p) A certificate of the secretary of the Borrower together with true and correct copies of the following: (i) the Articles of Organization of the Borrower, including all amendments thereto, certified by the Department of Financial Institutions of the state of its incorporation and dated within 30 days prior to the date hereof; (ii) the Operating Agreement of the Borrower, including all amendments thereto; (iii) the resolutions of the Board of Directors of the Borrower authorizing the execution, delivery and performance of this Agreement, the other Loan Documents, and all documentation executed and delivered in connection therewith to which the Borrower is a party; (iv) certificates of the appropriate government officials of the state of organization of the Borrower as to its existence and good standing, and certificates of the appropriate government officials in each state where each corporate Borrower does business and where failure to qualify as a foreign corporation would have a material adverse effect on the business and financial condition of the Borrower, as to its good standing and due qualification to do business in such state, each dated within 30 days prior to the date hereof; and (v) the names of the officers of the Borrower authorized to sign this Agreement and the other Loan Documents to be executed by each corporate Borrower, together with a sample of the true signature of each such officer; (q) Favorable opinion of Brown, Winick, Graves, Gross, Xxxxxxxxxxx and Xxxxxxxxxxx, legal counsel for the Borrower, in the form attached hereto as “Exhibit D”; (r) The Commitment Fee, Participation Fee, and Facility Fee due pursuant to Section 2.07 have been paid; (s) An Intercreditor Agreement between the Lender and Xxxxx, Inc. as to the priority of the Lender’s security interests in the Collateral, rights to payment following an Event of Default, and as to such other matters as requested by the Lender. Such Intercreditor Agreement shall, among other things, provide that in the event Lender does not receive required principal reduction from Borrower, or Borrower does not meet all loan covenants, no payments are to be made on subordinated debt by Borrower to Xxxxx, Inc. Instead, any such missed payments shall be added to the end of the amortization schedule for the subordinated debt owed to Xxxxx Inc. Further providing that the subordinated debt from Xxxxx, Inc. may be reduced in the event Borrower injects cash of a like amount into the Company; (t) Evidence that the costs and expenses (including, without limitation, attorney’s fees) referred to in Section 7.04, to the extent incurred and invoiced, shall have been paid in full; (u) The results of the Lender’s inspection of the Collateral, and the Lender’s receipt of an appraisal of the Collateral acceptable to Lender in its sole discretion; (v) Satisfactory review by the Lender of any pending litigation relating to the Borrower; (w) A Phase I Environmental Assessment in form and substance acceptable to the Lender; (x) The Borrower shall have provided to Lender a corn logistics study from PRX prior to the Closing Date; (y) The Borrower shall have ordered the General Contractor to begin construction of the Project, and construction shall have commenced; (z) A schedule, certified by Borrower as accurate and complete, setting forth: (i) the necessary licenses, permits and consents required by applicable federal, state, and local governmental entities required for the lawful construction and operation of the Project; and (ii) the deadlines to obtain such licenses, permits and consents so that the Completion Date occurs as scheduled; (aa) Lender shall have received in form and substance acceptable to Lender, an agreement with an Inspecting Engineer of recognized standing and acceptable to Lender, by which agreement such Inspecting Engineer agrees to assist Lender in its inspection of the Project during construction, review and approve Draw Requests on behalf of Lender, and provide such additional services as Lender may reasonably require at the sole expense of Borrower; (bb) The Borrower shall have provided commitment to the Lender of its Cash Equity. Notwithstanding the foregoing, should the Borrower’s members’ equity be in excess of $23,781,500.00 at Closing Date, the required subordinated debt shall be reduced by an amount equal to the amount of such members’ equity in excess of $23,781,500.00; (cc) The Borrower has caused a bonding company to issue a Construction Completion Bond; (dd) The Borrower shall have provided to Lender evidence of ownership indicating that at least 50% of the owners of Borrower are eligible borrowers; (ee) The Borrower shall notify Lender of any changes in plant management or any decision to excuse management;

Conditions Precedent to Funding. The effectiveness of this Agreement and obligations of the Lender to make any Advance, are subject to the conditions precedent that the Lender shall have received the following, in form and substance satisfactory to the Lender: (a) This Agreement, duly executed by the Borrower and the Lender; (b) The Supplements, duly executed by the Borrower and the Lender; (c) The Construction Note, the Term Revolving Note and the Revolving Line of Credit Note duly executed by the Borrower; (d) The Mortgage, fully executed and notarized, to secure the Loans encumbering on a first Lien lien basis the fee interest and/or leasehold interest of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d); (e) A Security Agreement duly executed by the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower in the Collateral; (f) The Disbursing Agreement, duly executed by Borrower; (g) The Environmental Indemnity Agreement, duly executed by Borrower; (h) A copy of the Construction Contract(s) and a complete set of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the Project; (gi) An assignment of contract for each of the Construction Contracts and the Plans and Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract;

Conditions Precedent to Funding. The effectiveness of this Agreement and obligations of the Lender Lenders to make any Advancethe initial Extensions of Credit hereunder and all other Extensions of Credit during the Certain Funds Period, are shall be subject only to the satisfaction of the following conditions precedent that on the Lender shall have received the following, in form and substance satisfactory to the Lenderdate of making each such Extension of Credit: (a) This it is not unlawful for the Lenders together to perform their obligations under this Agreement, duly executed by the Borrower and the Lender; (b) The Supplementsthere has been no repudiation or rescission of any Loan Document by Thomson or any Borrower, duly executed by which is materially adverse to the Borrower and interests of the LenderLenders, as applicable, taken as a whole; (c) The Construction Note the Combination has been consummated (i) in accordance with Applicable Laws and (ii) upon terms and conditions which do not deviate materially from those previously described to the Administrative Agent (as reflected in the Implementation Agreement and the Revolving Note duly executed by the Borrowerissued Press Release), and has become effective and unconditional in all respects; (d) The Mortgageno Major Default has occurred and is continuing and, fully executed and notarizedwith respect to any Major Default relating to any Major Representation, to secure has not been remedied, if capable of remedy, within 10 Business Days or, if earlier, the Loans encumbering on a first Lien basis date upon which the fee interest and/or leasehold interest relevant Extension of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d)Credit will be made; (e) A Security Agreement duly executed by the Borrower Major Representations shall be true and in a form correct on and as provided by of the Lender by which security agreement date of such Extension of Credit, with the Lender is granted a security interest by the Borrower in the Collateral;same effect as if made on such date; and (f) A copy the Administrative Agents shall have received (i) certified copies of the Construction Contract(sexecuted Transaction Documentation not previously delivered pursuant to Section 4.01, (ii) and a complete set certified copies of counterparts of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the Project; (g) An assignment of contract for each of the Construction Contracts and the Plans and SpecificationsCross-Guaranties, duly executed by the Borrower each of Newco and pursuant to which the Borrower shall have assigned Thomson and (iii) to the Lender all extent any Borrower has been designated in accordance with Section 3.01, certified copies of counterparts of the Borrower’s rightGuarantee, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing duly executed by the other party(ies) to each such Construction Contract;Thomson.

Conditions Precedent to Funding. The effectiveness of this Agreement and obligations of the Lender to make any Advance, fund the Loans are subject to the conditions condition precedent that the Lender shall have received the following, in form and substance satisfactory to the Lender: (a) This Agreement, duly executed by the Borrower and the Lender; (b) The SupplementsNotes, duly executed by the Borrower and the Lender; (c) The Construction Note and the Revolving Note duly executed by the Borrower; (dc) The Mortgage, fully executed and notarized, to secure the Loans encumbering on a first Lien basis the fee interest and/or leasehold interest of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d3.01(c); (ed) A Security Agreement duly executed by the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower in the Collateral; (fe) A copy of the Construction Contract(s) and a complete set of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the Project; (gf) An assignment of contract for each of the Construction Contracts and the Plans and Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title and interest in and to each such Construction Contract, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contract; (g) A deposit account control agreement;

Conditions Precedent to Funding. The effectiveness of this Agreement and obligations of the Lender Banks to make any Advancethe Advances on the Loans contemplated hereunder on the Closing Date, as contemplated by the terms and conditions of this Agreement, are subject to the conditions precedent that the Lender Agent - to the extent not received on or before the Closing Date or in connection with the closing of the Original Credit Agreement - shall have received the following, in form and substance satisfactory to the LenderAgent: (a) This this Agreement, duly executed by the Borrower Borrower, the Agent and the LenderBanks; (b) The Supplementsthe Notes, duly executed by the Borrower and the Lender; (c) The Construction Note and the Revolving Note duly executed by the Borrower; (dc) The the Mortgage, fully executed and notarized, to secure ; (d) the Loans encumbering on a first Lien basis Environmental Indemnity Agreement duly executed by the fee interest and/or leasehold interest of the Borrower in the Real Property and the fixtures thereon described in Schedule 3.01(d)Borrower; (e) A the Security Agreement duly executed by the Borrower and in a form as provided by the Lender by which security agreement the Lender is granted a security interest by the Borrower in the CollateralBorrower; (f) A copy of the Construction Contract(s) and a complete set of the Plans and Specifications, together with copies of all permits and government approvals relating to the construction and use of the ProjectUCC-1 Financing Statement; (g) An assignment copies of contract for each all Material Contracts; GP:4272375 vl (h) Collateral Assignments of the Construction Contracts and the Plans and SpecificationsMaterial Contracts, duly executed by the Borrower and pursuant to which the Borrower shall have assigned to the Lender Agent, as collateral security, all of the Borrower’s 's right, title and interest in and to each of such Construction Contractcontracts, and which assignment shall have been consented to and certified in writing by the other party(ies) to each such Construction Contractcontract; (i) UCC, tax, and judgment lien search reports listing all financing statements and other encumbrances which name the Borrower (under its present name and any previous name) and which are filed in the jurisdictions in which the Borrower is located, organized or maintains collateral, together with copies of such financing statements (none of which shall cover the collateral purported to be covered by the Security Agreement); (a) evidence that all other actions necessary or, in the opinion of the Agent, desirable to enable the Agent to perfect and protect the Banks' rights, titles and interests under the Loan Documents; (b) an ALTA mortgagee title insurance policy issued by Commonwealth Land Title Insurance Company (the "Title Insurance Company"), with respect to the Real Property, assuring the Agent and the Banks that the Mortgage creates a valid and enforceable encumbrance on the Real Property, free and clear of all defects and encumbrances except Permitted Encumbrances and containing: (i) a comprehensive endorsement (ALTA form 9); (ii) a zoning endorsement (ALTA form 3.1) specifying an ethanol production facility as a permitted use for all of the parcels included in the Real Property; (iii) a restrictions, encroachments, minerals-owners endorsement (ALTA Form 9.2); and (iv) such endorsements as the Agent shall reasonably require. Such title insurance policy shall be in form and substance reasonably satisfactory to the Agent and shall provide for affirmative insurance and such reinsurance as the Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Agent;