FORM 5130 (10-2005) CTL 2:102 CTL 3:268 Customer No:141967 Note No:101 Note Date: February 13, 2006
EXHIBIT 10.1
| FORM 5130 (10-2005) | ||||||||
CTL 2:102
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CTL 3:268 | Customer No:141967 | Note No:101 | Note Date: February 13, 2006 |
Farm Credit Services of America
PROMISSORY NOTE (OPERATING LOAN) AND LOAN AGREEMENT
For value received, the undersigned Maker(s) jointly and severally promise to pay in U.S. dollars
to Farm Credit Services of America, PCA, Lender, at its office in Omaha, Nebraska, or
order, the principal sum of ONE MILLION, $1,000,000.00, (Maximum Principal
Balance), plus interest on the principal remaining from time to time unpaid.
MAXIMUM PRINCIPAL BALANCE/ADDITIONAL ADVANCES OPTION (THIS DOES NOT CONSTITUTE A COMMITMENT BY
XXXXXX TO MAKE ANY TYPE OF ADVANCE):
Budgeted Credit: Lender, at its option, may advance sums to Maker(s) up to the Maximum
Principal Balance until April 1, 2006 (Final Advancement Date). Each advance made
hereunder will reduce the funds available for future advances by the amount of the advance.
Repayments of principal will NOT be available for subsequent advances.
Restrictions on Maximum Principal Balance/Additional Advances: The right to request and receive
funds is not assignable. Lender may determine whether Make(s) continues to meet Xxxxxx’s credit
standards at the time of each requested advance. Lender, in its sole discretion, may decrease the
funds available for disbursement following this review. The obligation to advance funds may be
terminated prior to the First Advancement Date or before the Maximum Principal Balance is reached
if intervening liens have been filed on any collateral given or pledged to secure payment of this
loan since the date of closing, including the filing of a notice of lis pendens, or any Maker or
guarantor has given written notice to Lender to terminate this provision of this Note. Xxxxxx’s
termination of this provision will not alter my/our obligation to make the payments as specified in
this Note.
Protective Advances: Xxxxxx may make advances to protect the collateral for this Note; such
advances may be added to the principal sum stated above and will, at Xxxxxx’s option, be
immediately due and payable and bear interest at the default interest rate from the date advanced
until paid.
INTEREST RATE OPTION: Interest will accrue at the Initial Interest Rate of 8,500 percent
per annum, with interest thereafter at the rate provided in the interest rate option specified
below unless the Default Interest provision has been invoked on the loan.
Variable Interest Rate: The Interest rate is variable until maturity. A higher or lower rate
of interest may be established for any Individual Loan Pricing Classification (ILPC) Index
for which the loan from time to time qualifies; this higher or lower rate will thereupon
apply to the outstanding principal balance of the debt evidenced hereby and will remain in
effect until a different rate of interest is established. The amount of each subsequent
payment will be increased or decreased accordingly to reflect the different rate of interest
without in any manner changing the due date of the payments. Lender may have up to 15 days
from any Index change to change the rate. There is no limitation on the frequency or the
amount of the change in the Interest rate.
The amount of the change is based on the ILPC Prime Index with a 1,000
percent spread.
REPAYMENT: Interest on the unpaid principal balance is payable annually or at such other times as
may be prescribed from time to time by Xxxxxx’s policies or by separate agreement I/we execute with
Xxxxxx. Any interest not paid when due will be added to the principal and the whole will bear
interest at the default interest rate. Principal and interest are due in full on April 1,
2006. Payments will be made at the location identified by Lender. Any amounts submitted by
me/us will, at Lender’s option, be applied first to the payment of default interest, then to
protective advances and fees, then to accrued interest, and finally to principal to the extent of
the amount submitted.
CARRY FORWARD INTEREST: Upon request, this note may also include accrued and unpaid interest from
previous indebtedness to Lender. This will be the starting balance on Xxxxxx’s books for the
interest accrual on this note and is not alone cause for the note to be considered due, past due or
in default.
DEFAULT INTEREST: If any principal, interest, or advance is past due, regardless of the length of
time, or if there is any failure to comply with any covenant, condition, or agreement contained in
this Note, in any loan agreement, or in any mortgage, trust deed,
security agreement, or other document given to secure payment of this Note, than, at the election
of the holder hereof, all principal, all accrued interest thereon, and all advances will become
immediately due and payable without presentment or demand and the whole will bear interest at the
default interest rate from the date of election until paid. Any attorney fees (to the extent
allowed by law), costs, or expenses incurred and advanced by holder to enforce collection of this
Note will be added to the principal and bear interest at the default interest rate from the date of
advance until paid. At Lender’s option, any condition of default may result in interest being
charged on all principal, all accrued interest thereon, and all advances at the default rate
without declaring the loan in default.
Variable Rate: Default interest will be assessed at a rate which is 6.00 percent per annum
higher than the ILPC Prime Rate Index. If the loan is subsequently brought current, the ILPC
may be re-evaluated and the interest rate adjusted as provided in the Interest Rate Option
provision of this Note.
ASSUMPTIONS: This Note is assumable only at the sole discretion of the holder.
WAIVERS AND OTHER PROVISIONS: The Maker(s) and any endorsers, sureties, and guarantors of this
Note hereby severally waive presentment, demand, notice of nonpayment,, protest, notice of protest,
and due diligence in enforcing the payment hereof and consent that the time of payment may be
extended from time to time by holder without notice. Each Maker hereby binds their separate
estate, existing now or hereafter acquired, for the payment of this Note and agrees that any
release of any collateral or of any person liable hereon will not operate as a release of any other
Maker, endorser, surety, or guarantor.
In consideration of the advances of any credit by XxxxXxxx, FCB to Lender in reliance upon this
Note, the Makers, sureties, and guarantors of this Note hereby severally waive any and all defenses
or right of offset which they may have, individually or collectively, against Lender and its
successors or assigns under this Note.
LOAN AGREEMENT: This Note includes the provisions on the back hereof or attached hereto and any
addenda or amendments thereto or replacement thereof.
LOAN AGREEMENT: I/We further understand and agree or certify as follows:
1. Disbursement Authorization. Any person executing this Promissory Note and Loan Agreement
(Agreement) is authorized to request, accept, receive, and receipt for all or any portion of the
proceeds of the loan(s) or of any refinance, conversion, extension, additional loan,
reamortization, or revision of the same and to execute and approve all agreements required by
Lender in the disbursement of loan proceeds.
Any one of those who have executed and signed this Agreement may initiate/request either by phone,
in person, or in writing, disbursements or advances in the form of check, wire, or electronic
transfer to an account specified by requester. Lender may also disburse or retain from the initial
loan proceeds or any subsequent advance of proceeds any amount required to: (a) purchase stock as
set out above; (b) pay any fees or charges assessed in connection with any loan, loan servicing
action, or other service, including optional financial services provided by or through Lender; (c)
obtain any evidence of title to any property, real or personal, which secures the loan(s); (d)
satisfy any loan closing or title requirements necessary to clear title or obtain a first lien on
loan collateral; (e) pay any letters of credit issued for or on behalf of me/us; and (f) otherwise
close the loan.
2. Stock Ownership/Voting Member. Stock ownership and voting requirements are already established
as acknowledged in other documents with Farm Credit Services of America.
3. Financial Information. To provide Lender on request with financial information in a format
acceptable to Lender.
4. Cross Collateralization/Cross Default. Unless otherwise specifically limited by the terms and
conditions of the security instrument(s), all real or personal property given as collateral for
this loan secures all indebtedness owed to Lender now or in the future. Declaration of default
under any loan may, at Xxxxxx’s option, cause all loans to be in default, charged interest at the
default rate stated in the note(s), and declare all sums loaned or advanced and all accrued
interest thereon to be immediately due and payable.
The loan(s) may be declared in default for : (a) providing false, misleading, or incomplete
information to Lender for the purpose of influencing the decision(s) of Lender; (b) selling,
transferring, or disposing of property, whether or not the property is collateral for the loan(s),
with the intent to defraud Lender; (c) using loan proceeds for purposes not designated and approved
in the loan application; (d) failure to comply with any term, covenant or agreement in any loan
application, note, mortgage, trust deed, security agreement, loan agreement, or other document or
instrument executed in connection with any loan.
5. Environmental Declaration. All known sources of existing or potential environmental
contamination on or near any property owned or operated by me/us have been fully disclosed to
Lender; to comply fully with applicable environmental laws and promptly inform Lender of any
environmental contamination discovered on or near any property I/we own or operate; to promptly
notify Lender if I/we or property owned or operated by me/us is or may be subject to investigation
by any governmental agency for a violation of environmental laws, or is or may be subject to a lien
for cleanup of environmental hazards. Further, to hold Lender harmless from any liability for
environmental waste or contamination on any property owned or operated by me/us or liability
imposed as a consequence of my/our activities and will indemnify Lender against all claims, losses,
liabilities, and expenses incurred by Xxxxxx as a result thereof. This covenant will survive
cancellation or termination of this Agreement.
6. Set Off. Any voluntary advance conditional payments made by me/us to Lender or any funds held
by Lender in any account are subject to applicable policies and procedures as may be adopted from
time to time. Xxxxxx is granted a security interest in all of the above funds and may exercise the
right to apply these funds against any loans or other obligations I/we may owe Lender.
7. Legal Authority/Compliance with Laws. That I/we are, and shall continue to be, duly organized
validly existing and/or legally qualified to do business under the laws of the states in which I/we
operate, in compliance with federal, state and local laws or regulations, and have legal authority
in such states to conduct my/our business operations and to won agricultural real estate. No
change has been made in the name, ownership, control, legal status or organizational documents of
any undersigned legal entity since the time any such information was last provided to Lender.
8. Rights In Third Parties. No loan approved hereunder confers an contractual rights or benefits
on any third party.
9. No Commitment. Nothing contained in this or any other document or instrument executed in
connection with the loan(s) will be construed to obligate Lender to make any loan, refinance,
advance, revision, or disbursement for any purpose. All advances and disbursements are at the
option of Lender based on Lender’s standards existing at the time of the requested advance or
disbursement.
10. Disclosure. I/we certify that: (1) I/we have received a copy of the “Customer Information and
Disclosure Handbook” and (2) ALL the information provided at any time by me/us or on my/our behalf
to Lender is true, accurate, and correct. I/We may designate in writing to Lender the person to
receive future effective interest rate disclosures. Unless so designated, Lender may provide such
disclosures to any party liable on this note.
11. Construction. The term “I/we” shall be construed to include the neuter gender and legal
entities as required by context. Paragraph headings are illustration only.
12. Designation of Payer of Record. Xxxxx X. Xxxxxxxxxx is identified as the primary
customer/payer of record on this loan on behalf of all liable parties to accept and receive tax
notices and any dividends, patronage or other distributions declared under the Bylaws of Lender.
This designation will remain in effect until Lender is notified in writing by all liable parties of
any change.
LENDER ENDORSEMENT — FARM CREDIT SERVICES USE ONLY: Pay to the order of AgriBank, FCB. For value
received, we guarantee the payment of the within Note with interest according to is terms, or any
renewal or extension thereof, and agree in pay all expenses of collection thereof, or in the
enforcement of this guarantee, including reasonable attorney fees; and we waive demand for payment,
notice of default or nonpayment, protest and notice of protest, presentment, notice of extension,
notice of substitution of other collateral, or other indulgence and we agree that the rights of the
holder will remain undisturbed notwithstanding any extensions of time of payment, release an/or
substitution of collateral security or other indulgence granted by such holder.
The within Note is hereby endorsed by Xxxxxx named in the body of said notes as if the name of
Xxxxxx were atucally printed under the endorsement.
| /s/ Xxxxx X. Xxxxxxxxxx | ||||
/s/ Xxxxxx Xxxxxx |
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/s/ Xxxx Xxxxxx |
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/s/ Xxxxxxx X. Xxxxxx |
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/s/ Xxxx X. Xxxxxxxxx |
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/s/ Xxxxx X. Xxxxx |
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| Advanced BioEnergy LLC, A Limited Liability Company | ||
By /s/ Xxxxx X. Xxxxxxxxxx
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[Initialed: RLS] |
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/s/ Xxxxxx X. Xxxxxxx |
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/s/ Xxxxx X. Xxxxx |
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/s/ Xxxx X. Xxxx |
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