CONSTRUCTION LOAN AGREEMENT
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Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$20,000,000.00 12-19-2001 06-19-2003 53455 47/400 000000 XX
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
Any item above containing "* * *" has been omitted due
to text length limitations.
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Borrower: HUSKER AG PROCESSING, LLC (TIN: 00-0000000) LENDER: XXXXXXX BANK NATIONAL ASSOCIATION
XX XXX 00 0000 XX 0XX XX
XXXXXXXXX, XX 00000 XX XXX 0000
XX XXXXX, XX 00000
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THIS CONSTRUCTION LOAN AGREEMENT dated December 19, 2001, is made and executed
between HUSKER AG PROCESSING, LLC ("Borrower") and XXXXXXX BANK NATIONAL
ASSOCIATION ("Lender") on the following terms and conditions. Borrower has
applied to Lender for one or more loans for purposes of constructing the
Improvements on the Real Property described below. Lender is willing to lend the
loan amount to Borrower solely under the terms and conditions specified in this
Agreement and in the Related Documents, to each of which Borrower agrees.
Borrower understands and agrees that: (A) in granting, renewing, or extending
any Loan, Lender is relying upon Borrower's representations, warranties, and
agreements as set forth in this Agreement, and (B) all such Loans shall be and
remain subject to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of December 19, 2001, and shall
continue in full force and effect until such time as all of Borrower's Loans in
favor of Lender have been paid in full, including principal, interest, costs,
expenses, attorneys' fees, and other fees and charges, or until such time as the
parties may agree in writing to terminate this Agreement.
LOAN. The Loan shall be in an amount not to exceed the principal sum of U.S.
$20,000,000.00 and shall bear interest on so much of the principal sum as shall
be advanced pursuant to the terms of this Agreement and the Related Documents.
The Loan shall bear interest on each Advance from the date of the Advance in
accordance with the terms of the Note. Borrower shall use the Loan Funds solely
for the following specific purposes: ALL MONIES ADVANCED WILL BE USED SOLELY TO
CONSTRUCT THE 20 MGY CAPACITY ETHANOL PLANT LOCATED IN PLAINVIEW, NEBRASKA,
INCLUDING OPERATING COSTS AS SET FORTH IN BORROWER'S BUDGET. The Loan amount
shall be subject at all times to all maximum limits and conditions set forth in
this Agreement or in any of the Related Documents, including without limitation,
any limits relating to loan to value ratios and acquisition and Project costs.
PROJECT DESCRIPTION. The word "Project" as used in this Agreement means the
construction and completion of all Improvements contemplated by this Agreement,
included without limitation the erection of the building or structure on the
Real Property identified to this Agreement by Borrower and Lender, installation
of equipment and fixtures, landscaping, and all other work necessary to make the
Project usable and complete for the intended purposes. The Project includes the
following work:
CONSTRUCT A 20 MGY CAPACITY ETHANOL PLANT LOCATED IN PLAINVIEW, NEBRASKA,
INCLUDING OPERATING COSTS AS SET FORTH IN BORROWER'S BUDGET.
The word "Property" as used in this Agreement means the Real Property together
with all Improvements, all equipment, fixtures, and other articles of personal
property now or subsequently attached or affixed to the Real Property, together
with all accessions, parts, and additions to, all replacements of, and all
substitutions for any of such property, and all proceeds (including insurance
proceeds and refunds of premiums) from any sale or other disposition of such
property. The real estate described below constitutes the Real Property as used
in this Agreement.
The real estate or its address is commonly known as:
Real Property located at XXXXXXX 00 XXXX, XXXXXXXXX, XX 00000.
FEES AND EXPENSES. As a condition of Lender making the Loan, Borrower agrees to
pay the following fees, charges, and expenses, in addition to all others set
forth in this Agreement: 2% ORIGINATION FEE, 2% USDA GUARANTEE FEE, $750 LEGAL
FEE, $500 DOCUMENTATION FEE, $150 PER DISBURSEMENT FEE, $20 PER WIRE FEE, ALONG
WITH CLOSING COSTS, INCLUDING BUT NOT LIMITED TO TITLE INSURANCE, APPRAISAL,
FILING FEES, ETC. Whether or not the Project shall be consummated, Borrower
shall assume and pay upon demand all out-of-pocket expenses incurred by Lender
in connection with the preparation of loan documents and the making of the Loan,
including without limitation the following: (A) all closing costs, loan fees,
and disbursements; (B) all expenses of Lender's legal counsel; and (C) all title
examination fees, title insurance premiums, appraisal fees, survey costs,
required fees, and filing and recording fees.
NO CONSTRUCTION PRIOR TO RECORDING OF SECURITY DOCUMENTS. Lender acknowledges
payment to Xxxxxxx Progress in the amount of $51,134.51. Borrower will not
permit any work or materials to be furnished in connection with the Project
until (A) Borrower has signed the Related Documents; (B) Lender's mortgage or
deed of trust and other Security Interests in the Property have been duly
recorded and perfected; (C) Lender has been provided evidence, satisfactory to
Lender, that Borrower has obtained all insurance required under this Agreement
or any Related Documents and that Lender's liens on the Property and
Improvements are valid perfected first liens, subject only to such exceptions,
if any, acceptable to Lender.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a limited liability company which is, and at all
times shall be, duly organized, validly existing, and in good standing
under and by virtue of the laws of the State of Nebraska. Borrower is duly
authorized to transact business in all other states in which Borrower is
doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a
foreign limited liability company in all states in which the failure to so
qualify would have a material adverse effect on its business or financial
condition. Borrower has the full power and authority to own its properties
and to transact the business in which it is presently engaged or presently
proposes to engage. Borrower maintains an office at XX XXX 00, XXXXXXXXX,
XX 00000. Unless Borrower has designated otherwise in writing, the
principal office is the office at which Borrower keeps its books and
records including its records concerning the Collateral. Borrower will
notify Lender prior to any change in the location of Borrower's state of
organization or any change in Borrower's name. Borrower shall do all things
necessary to preserve and to keep in full force and effect its existence,
rights and privileges, and shall comply with all regulations, rules,
ordinances, statutes, orders and decrees of any governmental or
quasi-governmental authority or court applicable to Borrower and Borrower's
business activities.
Assumed Business Names. Borrower has filed or recorded all documents or
filings required by law relating to all assumed business names used by
Borrower. Excluding the name of Borrower, the following is a complete list
of all assumed business names under which Borrower does business: None.
Authorization. Borrower's execution, delivery, and performance of this
Agreement and all the Related Documents have been duly authorized by all
necessary action by Borrower and do not conflict with, result in a
violation of, or constitute a default under (1) any provision of Borrower's
articles of organization or membership agreements, or any agreement or
other instrument binding upon Borrower or (2) any law, governmental
regulation, court decree, or order applicable to Borrower or to Borrower's
properties.
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 2
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Financial Information. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will
constitute legal, valid, and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms.
Properties. Except as contemplated in this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender and as
accepted by Lender, and except for property tax liens for taxes not
presently due and payable, Borrower owns and has good title to all of
Borrower's properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of Borrower's properties are titled in Borrower's legal
name, and Borrower has not used or filed a financing statement under any
other name for at least the last five (5) years.
Hazardous Substances. Except as disclosed to and acknowledged by Lender in
writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of Borrower's Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance by any person on, under,
about or from any of the Collateral. (2) Borrower has no knowledge of, or
reason to believe that there has been (a) any breach or violation of any
Environmental Laws; (b) any use, generation, manufacture, storage,
treatment, disposal, release or threatened release of any Hazardous
Substance on, under, about or from the Collateral by any prior owners or
occupants of any of the Collateral; or (c) any actual or threatened
litigation or claims of any kind by any person relating to such matters.
(3) Neither Borrower nor any tenant, contractor, agent or other authorized
user of any of the Collateral shall use, generate, manufacture, store,
treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations,
and ordinances, including without limitation all Environmental Laws.
Borrower authorizes Lender and its agents to enter upon the Collateral to
make such inspections and tests as Lender may deem appropriate to determine
compliance of the Collateral with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower's expense and for
Lender's purposes only and shall not be construed to create any
responsibility or liability on the part of Lender to Borrower or to any
other person. The representations and warranties contained herein are based
on Borrower's due diligence in investigating the Collateral for hazardous
waste and Hazardous Substances. Borrower hereby (1) releases and waives any
future claims against Lender for indemnity or contribution in the event
Borrower becomes liable for cleanup or other costs under any such laws, and
(2) agrees to indemnify and hold harmless Lender against any and all
claims, losses, liabilities, damages, penalties, and expenses, including
attorneys' fees, consultants' fees, and costs which Lender may directly or
indirectly sustain or suffer resulting from a breach of this section of the
Agreement or as a consequence of any use, generation, manufacture, storage,
disposal, release or threatened release of a hazardous waste or substance
on the Collateral. The provisions of this section of the Agreement,
including the obligation to indemnify, shall survive the payment of the
Indebtedness and the termination, expiration or satisfaction of this
Agreement and shall not be affected by Lender's acquisition of any interest
in any of the Collateral, whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred which
may materially adversely affect Borrower's financial condition or
properties, other than litigation, claims, or other events, if any, that
have been disclosed to and acknowledged by Lender in writing.
Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns
and reports that are or were required to be filed, have been filed, and all
taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith
in the ordinary course of business and for which adequate reserves have
been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment
of Borrower's Loan and Note, that would be prior or that may in any way be
superior to Lender's Security Interests and rights in and to such
Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any),
and all Related Documents are binding upon the signers thereof, as well as
upon their successors, representatives and assigns, and are legally
enforceable in accordance with their respective terms.
Title to Property. Borrower has, or on the date of first disbursement of
Loan proceeds will have, good and marketable title to the Collateral free
and clear of all defects, liens, and encumbrances, excepting only liens for
taxes, assessments, or governmental charges or levies not yet delinquent or
payable without penalty or interest, and such liens and encumbrances as may
be approved in writing by the Lender. The Collateral is contiguous to
publicly dedicated streets, roads, or highways providing access to the
Collateral.
Project Costs. The Project costs are true and accurate estimates of the
costs necessary to complete the Improvements in a good and workmanlike
manner according to the Plans and Specifications presented by Borrower to
Lender, and Borrower shall take all steps necessary to prevent the actual
cost of the Improvements from exceeding the Project costs.
Utility Services. All utility services appropriate to the use of the
Project after completion of construction are available at the boundaries of
the Collateral.
Assessment of Property. The Collateral is and will continue to be assessed
and taxed as an independent parcel by all governmental authorities.
Compliance with Governing Authorities. Borrower has examined and is
familiar with all the easements, covenants, conditions, restrictions,
reservations, building laws, regulations, zoning ordinances, and federal,
state, and local requirements affecting the Project. The Project will at
all times and in all respects conform to and comply with the requirements
of such easements, covenants, conditions, restrictions, reservations,
building laws, regulations, zoning ordinances, and federal, state, and
local requirements.
Survival of Representations and Warranties. Borrower understands and agrees
that in extending Loan Advances, Lender is relying on all representations,
warranties, and covenants made by Borrower in this Agreement or in any
certificate or other instrument delivered by Borrower to Lender under this
Agreement or the Related Documents. Borrower further agrees that
regardless of any investigation made by Lender, all such representations,
warranties and covenants will survive the extension of Loan Advances and
delivery to Lender of the Related Documents, shall be continuing in nature,
shall be deemed made and redated by Borrower at the time each Loan Advance
is made, and shall remain in full force and effect until such time as
Borrower's Indebtedness shall be paid in full, or until this Agreement
shall be terminated in the manner provided above, whichever is the last to
occur.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
Special Conditions to Initial Advance. TITLE PROFESSIONALS WILL VERIFY THE
INJECTION OF EQUITY INTO THE PROJECT PRIOR TO FUNDING AND ADVANCE FUNDS
FROM RECEIPTS SHOWN.
Equity Funds. Borrower shall provide evidence of equity funds totaling
$14,402,000.00 prior to the initial advance from the Loan Fund. Lender
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 3
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may, at Lender's option, require that the equity funds be deposited with
Lender as a portion of the Loan Fund, which funds shall be disbursed prior
to any Loan proceeds.
Approval of Contractors, Subcontractors, and Materialmen. Lender shall have
approved a list of all contractors employed in connection with the
construction of the Improvements, showing the name, address, and telephone
number of each contractor, a general description of the nature of the work
to be done, the labor and materials to be supplied, the names of
materialmen, if known, and the approximate dollar value of the labor, work,
or materials with respect to each contractor or materialman. Lender shall
have the right to communicate with any person to verify the facts disclosed
by the list or by any application for any Advance, or for any other
purpose.
Plans, Specifications, and Permits. Lender shall have received and accepted
a complete set of written Plans and Specifications setting forth all
Improvements for the Project, and Borrower shall have furnished to Lender
copies of all permits and requisite approvals of any governmental body
necessary for the construction and use of the Project.
Architecture and Construction Contracts. Borrower shall have furnished in
form and substance satisfactory to Lender an executed copy of the
Architecture Contract and an executed copy of the Construction Contract.
Budget and Schedule of Estimated Advances. Lender shall have approved
detailed budget and cash flow projections of total Project costs and a
schedule of the estimated amount and time of disbursements of each Advance.
Borrower's Authorization. Borrower shall have provided in form and
substance satisfactory to Lender properly certified resolutions, duly
authorizing the consummation of the Project and duly authorizing the
execution and delivery of this Agreement, the Note and the Related
Documents. In addition, Borrower shall have provided such other
resolutions, authorizations, documents and instruments as Lender or its
counsel, in their sole discretion, may require.
Bond. If requested by Lender, Borrower shall have furnished a performance
and payment bond in an amount equal to 100% of the amount of the
Construction Contract, as well as a materialmen's and mechanics' payment
bond, with such riders and supplements as Lender may require, each in form
and substance satisfactory to Lender, naming the General Contractor as
principal and Lender as an additional obligee.
Appraisal. If required by Lender, an appraisal shall be prepared for the
Property, at Borrower's expense, which in form and substance shall be
satisfactory to Lender, in Lender's sole discretion, including applicable
regulatory requirements.
Plans and Specifications. If requested by Lender, Borrower shall have
assigned to Lender on Lender's forms the Plans and Specifications for the
Project.
Environmental Report. If requested by Lender, Borrower shall have furnished
to Lender, at Borrower's expense, an environmental report and certificate
on the Property in form and substance satisfactory to Lender, prepared by
an engineer or other expert satisfactory to Lender stating that the
Property complies with all applicable provisions and requirements of the
"Hazardous Substances" paragraph set forth in this Agreement.
Soil Report. If requested by Lender, Borrower shall have furnished to
Lender, at Borrower's expenses, a soil report for the Property in form and
substance satisfactory to Lender, prepared by a registered engineer
satisfactory to Lender stating that the Property is free from soil or other
geological conditions that would preclude its use or development as
contemplated without extra expense for precautionary, corrective or
remedial measures.
Survey. If requested by Lender, Borrower shall have furnished to Lender a
survey of recent date, prepared and certified by a qualified surveyor and
providing that the Improvements, if constructed in accordance with the
Plans and Specifications, shall lie wholly within the boundaries of the
Collateral and without encroachment or violation of any zoning ordinances,
building codes or regulations, or setback requirements, together with such
other information as Lender in its sole discretion may require.
Zoning. Borrower shall have furnished evidence satisfactory to Lender that
the Collateral is duly and validly zoned for the construction, maintenance,
and operation of the Project.
Title Insurance. Borrower shall have provided to Lender an ALTA Lender's
extended coverage policy of title insurance with such endorsements as
Lender may require, issued by a title insurance company acceptable to
Lender and in a form, amount, and content satisfactory to Lender, insuring
or agreeing to insure that Lender's security agreement or other security
document on the Property is or will be upon recordation a valid first lien
on the Property free and clear of all defects, liens, encumbrances, and
exceptions except those as specifically accepted by Lender in writing. If
requested by Lender, Borrower shall provide to Lender, at Borrower's
expense, a foundation endorsement to the title policy upon the completion
of each foundation for the Improvements, showing no encroachments, and upon
completion an endorsement which insures the lien-free completion of the
Improvements. Specifically, Borrower shall provide to Lender the following
title insurance endorsements: SURVEY, MECHANICS LIEN, ZONING, EARLY START,
CONTIGUITY AND ACCESS ENDORSEMENTS.
Insurance. Unless waived by Lender in writing, Borrower shall have
delivered to Lender the following insurance policies or evidence thereof:
(a) an all risks course of construction insurance policy (builder's risk),
with extended coverage covering the Improvements issued in an amount and by
a company acceptable to Lender, containing a loss payable or other
endorsement satisfactory to Lender insuring Lender as mortgagee, together
with such other endorsements as may be required by Lender, including
stipulations that coverages will not be cancelled or diminished without at
least thirty (30) days prior written notice to Lender; (b) owners and
General Contractor general liability insurance, public liability and
workmen's compensation insurance; (c) flood insurance if required by Lender
or applicable law; and (d) all other insurance required by this Agreement
or by the Related Documents.
Worker's Compensation Coverage. Provide to Lender proof of the General
Contractor's compliance with all applicable workers' compensation laws and
regulations with regard to all work performed on the Project.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in
this Agreement or any Related Document.
Satisfactory Construction. All work usually done at the stage of
construction for which disbursement is requested shall have been done in a
good and workmanlike manner and all materials and fixtures usually
furnished and installed at that stage of construction shall have been
furnished and installed, all in compliance with the Plans and
Specifications. Borrower shall also have furnished to Lender such proofs as
Lender may require to establish the progress of the work, compliance with
applicable laws, freedom of the Property from liens, and the basis for the
requested disbursement.
Certification. Borrower shall have furnished to Lender a certification by
an engineer, architect, or other qualified inspector acceptable to Lender
that the construction of the Improvements has complied and will continue to
comply with all applicable statutes, ordinances, codes, regulations, and
similar requirements.
Lien Waivers. Borrower shall have obtained and attached to each application
for an Advance, including the Advance to cover final payment to the General
Contractor, executed acknowledgements of payments of all sums due and
releases of mechanic's and materialmen's liens, satisfactory to Lender,
from any party having lien rights, which acknowledgements of payment and
releases of liens shall cover all work, labor, equipment, materials done,
supplied, performed, or furnished prior to such application for an Advance.
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 4
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No Event of Default. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement
or under any Related Document.
DISBURSEMENT OF LOAN FUNDS. The following provisions relate to the disbursement
of funds from the Loan Fund.
Application for Advances. Each application shall be stated on a standard
AIA payment request form or other form approved by Lender, executed by
Borrower, and supported by such evidence as Lender shall reasonably
require. Borrower shall apply only for disbursement with respect to work
actually done by the General Contractor and for materials and equipment
actually incorporated into the Project. Each application for an Advance
shall be deemed a certification of Borrower that as of the date of such
application, all representations and warranties contained in the Agreement
are true and correct, and that Borrower is in compliance with all of the
provisions of this Agreement. Under no circumstances shall Lender be
required to make any Loan Advance in an amount less than 50,000.00.
Payments. At the sole option of Lender, Advances may be paid in the joint
names of Borrower and the General Contractor, subcontractor(s), or
supplier(s) in payment of sums due under the Construction Contract. At its
sole option, Lender may directly pay the General Contractor and any
subcontractors or other parties the sums due under the Construction
Contract. Borrower appoints Lender as its attorney-in-fact to make such
payments. This power shall be deemed coupled with an interest, shall be
irrevocable, and shall survive an Event of Default under this Agreement.
Project Cost Overruns. If Lender at any time determines in its sole
discretion that the amount in the Loan Fund is insufficient, or will be
insufficient, to complete fully and to pay for the Project, then within ten
(10) days after receipt of a written request from Lender, Borrower shall
deposit in the Loan Fund an amount equal to the deficiency as determined by
Lender. The judgment and determination of Lender under this section shall
be final and conclusive. Any such amounts deposited by Borrower shall be
disbursed prior to any Loan proceeds.
Final Payment to General Contractor. Upon completion of the Project and
fulfillment of the Construction Contract to the satisfaction of Lender and
provided sufficient Loan Funds are available, Lender shall make an Advance
to cover the final payment due to the General Contractor upon delivery to
Lender of endorsements to the ALTA title insurance policy following the
posting of the completion notice, as provided under applicable law.
Construction shall not be deemed complete for purposes of final
disbursement unless and until Lender shall have received all of the
following:
(1) Evidence satisfactory to Lender that all work under the
Construction Contract requiring inspection by any governmental
authority with jurisdiction has been duly inspected and approved by
such authority, that a certificate of occupancy has been issued, and
that all parties performing work have been paid, or will be paid, for
such work;
(2) A certification by an engineer, architect, or other qualified
inspector acceptable to Lender that the Improvements have been
completed substantially in accordance with the Plans and
Specifications and the Construction Contract, that direct connection
has been made to all utilities set forth in the Plans and
Specifications, and that the Project is ready for occupancy; and
(3) Acceptance of the completed Improvements by Lender and Borrower.
Construction Default. If Borrower fails in any respect to comply with the
provisions of this Agreement or if construction ceases before completion
regardless of the reason, Lender, at its option, may refuse to make further
Advances, may accelerate the indebtedness under the terms of the Note, and
without thereby impairing any of its rights, powers, or privileges, may
enter into possession of the construction site and perform or cause to be
performed any and all work and labor necessary to complete the
improvements, substantially in accordance with the Plans and
Specifications.
Damage or Destruction. If any of the Collateral or Improvements is damaged
or destroyed by casualty of any nature, within sixty (60) days thereafter
Borrower shall restore the Collateral and Improvements to the condition in
which they were before such damage or destruction with funds other than
those in the Loan Fund. Lender shall not be obligated to make disbursements
under this Agreement until such restoration has been accomplished.
Adequate Security. When any event occurs that Lender determines may
endanger completion of the Project or the fulfillment of any condition or
covenant in this Agreement, Lender may require Borrower to furnish, within
ten (10) days after delivery of a written request, adequate security to
eliminate, reduce, or indemnify Lender against, such danger. In addition,
upon such occurrence, Lender in its sole discretion may advance funds or
agree to undertake to advance funds to any party to eliminate, reduce, or
indemnify Lender against, such danger or to complete the Project. All sums
paid by Lender pursuant to such agreements or undertakings shall be for
Borrower's account and shall be without prejudice to Borrower's rights, if
any, to receive such funds from the party to whom paid. All sums expended
by Lender in the exercise of its option to complete the Project or protect
Lender's interests shall be payable to Lender on demand together with
interest from the date of the Advance at the rate applicable to the Loan.
In addition, any Advance of funds under this Agreement, including without
limitation direct disbursements to the General Contractor or other parties
in payment of sums due under the Construction Contract, shall be deemed to
have been expended by or on behalf of Borrower and to have been secured by
Lender's Deeds of Trust, if any, on the Collateral.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(A) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender; or (E) Lender in
good xxxxx xxxxx itself insecure, even though no Event of Default shall have
occurred.
LIMITATION OF RESPONSIBILITY. The making of any Advance by Lender shall not
constitute or be interpreted as either (A) an approval or acceptance by Lender
of the work done through the date of the Advance, or (B) a representation or
indemnity by Lender to any party against any deficiency or defect in the work
or against any breach of contract. Inspections and approvals of the Plans and
Specifications, the Improvements, the workmanship and materials used in the
Improvements, and the exercise of any other right of inspection, approval, or
inquiry granted to Lender in this Agreement are acknowledged to be solely for
the protection of Lender's interests, and under no circumstances shall they be
construed to impose any responsibility or liability of any nature whatsoever on
Lender to any party. Neither Borrower nor any contractor, subcontractor,
materialman, laborer, or any other person shall rely, or have any right to rely,
upon Lender's determination of the appropriateness of any Advance. No
disbursement or approval by Lender shall constitute a representation by Lender
as to the nature of the Project, its construction, or its intended use for
Borrower or for any other person, nor shall it constitute an indemnity by Lender
to Borrower or to any other person against any deficiency or defects in the
Project or against any breach of any contract.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Lender in writing of (1)
all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or any
Guarantor which could materially affect the financial condition of Borrower
or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit Lender to examine and
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 5
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audit Borrower's books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, Borrower's balance
sheet and income statement for the year ended, audited by a certified
public accountant satisfactory to Lender.
Interim Statements. As soon as available, but in no event later than
thirty (30) days after the end of each month, Borrower's balance sheet
and profit and loss statement for the period ended, prepared by
Borrower in form satisfactory to Lender.
Tax Returns. As soon as available after the applicable filing date for
the tax reporting period ended, Federal and other governmental
returns, prepared by a tax professional satisfactory to Lender.
Additional Requirements. ANNUAL BUDGET, PROJECTIONS AND EQUIPMENT
LIST; SEMI-ANNUAL ACCOUNTS RECEIVABLE/PAYABLE LISTING.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements,
list of assets and liabilities, agings of receivables and payables,
inventory schedules, budgets, forecasts, tax returns, and other reports
with respect to Borrower's financial condition and business operations as
Lender may request from time to time.
Other Agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
Insurance. Maintain fire and other risk insurance, hail, federal crop
insurance, public liability insurance, and such other insurance as Lender
may require with respect to Borrower's properties and operations, in form,
amounts, coverages and with insurance companies acceptable to Lender.
Borrower, upon request of Lender, will deliver to Lender from time to time
the policies or certificates of insurance in form satisfactory to Lender,
including stipulations that coverages will not be cancelled or diminished
without at least thirty (30) days prior written notice to Lender. Each
insurance policy also shall include an endorsement providing that coverage
in favor of Lender will not be impaired in any way by any act, omission or
default of Borrower or any other person. In connection with all policies
covering assets in which Lender holds or is offered a security interest for
the Loans, Borrower will provide Lender with such lender's loss payable or
other endorsements as Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (1) the
name of the insurer; (2) the risks insured; (3) the amount of the policy;
(4) the properties insured; (5) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (6) the expiration date of the policy. In addition, upon
request of Lender (however not more often than annually), Borrower will
have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral.
The cost of such appraisal shall be paid by Borrower.
Loan Fees, Charges and Expenses. Whether or not the Project is completed,
Borrower also shall pay upon demand all reasonable out-of-pocket expenses
incurred by Lender in connection with the preparation of loan documents and
the making of the Loan, including, without limitation, all closing costs,
fees, and disbursements, all expenses of Lender's legal counsel, and all
title examination fees, title insurance premiums, appraisal fees, survey
costs, required fees, and filing and recording fees.
Loan Proceeds. Use all Loan proceeds solely for the following specific
purposes: ALL MONIES ADVANCED WILL BE USED SOLELY TO CONSTRUCT THE 20 MGY
CAPACITY ETHANOL PLANT LOCATED IN PLAINVIEW, NEBRASKA, INCLUDING OPERATING
COSTS AS SET FORTH IN BORROWER'S BUDGET.
Taxes, Charges and Liens. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all assessments,
taxes, governmental charges, levies and liens, of every kind and nature,
imposed upon Borrower or its properties, income, or profits, prior to the
date on which penalties would attach, and all lawful claims that, if
unpaid, might become a lien or charge upon any of Borrower's properties,
income, or profits.
Performance. Perform and comply, in a timely manner, with all terms,
conditions, and provisions set forth in this Agreement, in the Related
Documents, and in all other instruments and agreements between Borrower and
Lender. Borrower shall notify Lender immediately in writing of any default
in connection with any agreement.
Inspection. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
properties and to examine or audit Borrower's books, accounts, and records
and to make copies and memoranda of Borrower's books, accounts, and
records. If Borrower now or at any time hereafter maintains any records
(including without limitation computer generated records and computer
software programs for the generation of such records) in the possession of
a third party, Borrower, upon request of Lender, shall notify such party to
permit Lender free access to such records at all reasonable times and to
provide Lender with copies of any records it may request, at all Borrower's
expense.
Compliance Certificates. Unless waived in writing by Lender, provide Lender
at least annually, with a certificate executed by Borrower's chief
financial officer, or other officer or person acceptable to Lender,
certifying that the representations and warranties set forth in this
Agreement are true and correct as of the date of the certificate and
further certifying that, as of the date of the certificate, no Event of
Default exists under this Agreement.
Construction of the Project. Commence construction of the Project no later
than December 19, 2001, and cause the Improvements to be constructed and
equipped in a diligent and orderly manner and in strict accordance with the
Plans and Specifications approved by Lender, the Construction Contract, and
all applicable laws, ordinances, codes, regulations, and rights of
adjoining of concurrent property owners. Borrower agrees to complete the
Project for purposes of final payment to the General Contractor on or
before June 19, 2003, regardless of the reason for any delay.
Defects. Upon demand of Lender, promptly correct any defect in the
Improvements or any departure from the Plans and Specifications not
approved by Lender in writing before further work shall be done upon the
portion of the Improvements affected.
Project Claims and Litigation. Promptly inform Lender of (1) all material
adverse changes in the financial condition of the General Contractor; (2)
any litigation and claims, actual or threatened, affecting the Project or
the General Contractor, which could materially affect the successful
completion of the Project or the ability of the General Contractor to
complete the Project as agreed; and (3) any condition or event which
constitutes a breach of default under any of the Related Documents or any
contract related to the Project.
Payment of Claims and Removal of Liens. (1) Cause all claims for labor done
and materials and services furnished in connection with the Improvements to
be fully paid and discharged in a timely manner, (2) diligently file or
procure the filing of a valid note of completion of the Improvements, or
such comparable document as may be permitted under applicable lien laws,
(3) diligently file or procure the filing of a notice of
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 6
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cessation, or such comparable document as may be permitted under applicable
lien laws, upon the happening of cessation of labor on the Improvements for
a continuous period of thirty (30) days or more, and (4) take all
reasonable steps necessary to remove all claims of liens against the
Collateral, the Improvements or any part of the Collateral or Improvements,
or any rights or interests appurtenant to the Collateral or Improvements.
Upon Lender's request, Borrower shall make such demands or claims upon or
against laborers, materialmen, subcontractors, or other persons who have
furnished or claim to have furnished labor, services, or materials in
connection with the Improvements, which demands or claims shall under the
laws of the State of Minnesota require diligent assertions of lien claims
upon penalty of loss or waiver thereof. Borrower shall, within ten (10)
days after the filing of any claim of lien that is disputed or contested by
Borrower, provide Lender with a surety bond issued by a surety acceptable
to Lender sufficient to release the claim of lien or deposit with Lender an
amount satisfactory to Lender for the possibility that the contest will be
unsuccessful. If Borrower fails to remove any lien on the Collateral or
Improvements or provide a bond or deposit pursuant to this provision,
Lender may pay such lien, or may contest the validity of the lien, and
Borrower shall pay all costs and expenses of such contest, including
Lender's reasonable attorneys' fees.
Taxes and Claims. Pay and discharge when due all of Borrower's
indebtedness, obligations, and claims that, if unpaid, might become a lien
or charge upon the Collateral or Improvements; provided, however, that
Borrower shall not be required to pay and discharge any such indebtedness,
obligation, or claim so long as (1) its legality shall be contested in good
faith by appropriate proceedings, (2) the indebtedness, obligation, or
claim does not become a lien or charge upon the Collateral or Improvements,
and (3) Borrower shall have established on its books adequate reserves with
respect to the amount contested in accordance with GAAP. If the
indebtedness, obligation, or claim does become a lien or charge upon the
Collateral or Improvements, Borrower shall remove the lien or charge as
provided in the preceding paragraph.
Environmental Statutes. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as may be
requested by Lender or any governmental authority relative to any
substance, or any waste or by-product of any substance defined as toxic or
a hazardous substance under applicable federal, state, or local law, rule,
regulation, order or directive, at or affecting any property or any
facility owned, leased or used by Borrower.
Additional Assurances. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments,
financing statements, instruments, documents and other agreements as Lender
or its attorneys may reasonably request to evidence and secure the Loans
and to perfect all Security Interests in the Collateral and Improvements.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect the Lender's Interest in the Collateral or if Borrower fails
to comply with any provision of this Agreement or any Related Documents,
including but not limited to Borrower's failure to discharge or pay when due any
amounts Borrower is required to discharge or pay under this Agreement or any
Related Documents, Lender on Borrower's behalf may (but shall not be obligated
to) take any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at a rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Borrower. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (2) sell, transfer, mortgage, assign, pledge,
lease, grant a security interest in, or encumber any of Borrower's assets
(except as allowed in Permitted Liens), or (3) sell with recourse any of
Borrower's accounts, except to Lender.
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
(2) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, or (3) make any
distribution with respect to any capital account, whether by reduction of
capital or otherwise.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or
assets, (2) purchase, create or acquire any interest in any other
enterprise, entity, or (3) incur any obligation as surety or guarantor
other than in the ordinary course of business.
Modification of Contract. Make or permit to be made any modification of the
Construction Contract.
Liens. Create or allow to be created any lien or charge upon the Collateral
or the Improvements.
GENERAL PROJECT PROVISIONS. The following provisions relate to the construction
and completion of the Project:
Change Orders. All requests for changes in the Plans and Specifications,
other than minor changes involving no extra cost, must be in writing,
signed by Borrower and the architect, and delivered to Lender for its
approval. Borrower will not permit the performance of any work pursuant to
any change order or modification of the Construction Contract or any
subcontract without the written approval of Lender. Borrower will obtain
any required permits or authorizations from governmental authorities having
jurisdiction before approving or requesting a new change order.
Purchase of Materials; Conditional Sales Contracts. No materials,
equipment, fixtures, or articles of personal property placed in or
incorporated into the Project shall be purchased or installed under any
Security Agreement or other agreement whereby the seller reserves or
purports to reserve title or the right of removal or repossession, or the
right to consider such items as personal property after their incorporation
into the Project, unless otherwise authorized by Lender in writing.
Lender's Right of Entry and Inspection. Lender and its agents shall have at
all times the right of entry and free access to the Property and the right
to inspect all work done, labor performed, and materials furnished with
respect to the Project. Lender shall have unrestricted access to and the
right to copy all records, accounting books, contracts, subcontracts,
bills, statements, vouchers, and supporting documents of Borrower relating
in any way to the Project.
Lender's Right to Stop Work. If Lender in good faith determines that any
work or materials do not conform to the approved Plans and Specifications
or sound building practices, or otherwise depart from any of the
requirements of this Agreement, Lender may require the work to be stopped
and withhold disbursements until the matter is corrected. In such event,
Borrower will promptly correct the work to Lender's satisfaction. No such
action by Lender will affect Borrower's obligation to complete the
Improvements on or before the Completion Date. Lender is under no duty to
supervise or inspect the construction or examine any books and records. Any
inspection or examination by Lender is for the sole purpose of protecting
Lender's security and preserving Lender's rights under this Agreement. No
default of Borrower will be waived by any inspection by Lender. In no event
will any inspection by Lender be a representation that there has been or
will be compliance with the Plans and Specifications or that the
construction is free from defective materials or workmanship.
Indemnity. Borrower shall indemnify and hold Lender harmless from any and
all claims asserted against Lender or the Property by any person, entity,
or governmental body, or arising out of or in connection with the Property,
Improvements, or Project. Lender shall be entitled to appear in
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 7
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any proceedings to defend itself against such claims, and all costs and
expenses reasonable attorneys' fees incurred by Lender in connection with
such defense shall be paid by Borrower to Lender. Lender shall, in its sole
discretion, be entitled to settle or compromise any asserted claims against
it, and such settlement shall be binding upon Borrower for purposes of this
indemnification. All amounts paid by Lender under this paragraph shall be
secured by Lender's security agreement or Deeds of Trust, if any, on the
Property, shall be deemed an additional principal Advance under the Loan,
payable upon demand, and shall bear interest at the rate applicable to the
Loan.
Publicity. Lender may display a sign at the construction site informing the
public that Lender is the construction lender for the Project. Lender may
obtain other publicity in connection with the Project through press
releases and participation in ground-breaking and opening ceremonies and
similar events.
Actions. Lender shall have the right to commence, appear in, or defend any
action or proceeding purporting to affect the rights, duties, or
liabilities of the parties to this Agreement, or the disbursement of funds
from the Loan Fund. In connection with this right, Lender may incur and pay
reasonable costs, expenses and reasonable attorneys' fees. Borrower
covenants to pay Lender on demand all such expenses, together with interest
from the date Lender incurs the expense at the rate specified in the Note,
and Lender is authorized to disburse funds from the Loan Fund for such
purposes.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Borrower fails to make any payment when due under the
Loan.
Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Agreement or in any of
the Related Documents or to comply with or to perform any term, covenant or
condition contained in any other agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's or any Grantor's property or
Borrower's or any Grantor's ability to repay the Loans or perform their
respective obligations under this Agreement or any of the Related
Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Insolvency. The dissolution of Borrower (regardless of whether election to
continue is made), or any other termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
Defective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceedings, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Loan. This includes
a garnishment of any of Borrower's accounts, including deposit accounts,
with Lender. However, this Event of Default shall not apply if there is a
good faith dispute by Borrower as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding and if
Borrower gives Lender written notice of the creditor or forfeiture
proceedings and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in
its sole discretion, as being an adequate reserve or bond for the dispute.
Breach of Construction Contract. The Improvements are not constructed in
accordance with the Plans and Specifications or in accordance with the
terms of the Construction Contract, provided such noncompliance is material
or has not been consented to in writing.
Cessation of Construction. Prior to the completion of construction of the
Improvements and equipping of the Project, the construction of the
Improvements or the equipping of the Project is abandoned or work thereon
ceases for a period of more than ten (10) days for any reason, or the
Improvements are not completed for purposes of final payment to the General
Contractor prior to June 19, 2003, regardless of the reason for the delay.
Transfer of Property. Sale, transfer, hypothecation, assignment, or
conveyance of the Property or the Improvements or any portion thereof or
interest therein by Borrower or any Borrower without Lender's prior written
consent.
Condemnation. All or any material portion of the Collateral is condemned,
seized, or appropriated without compensation, and Borrower does not within
thirty (30) days after such condemnation, seizure, or appropriation,
initiate and diligently prosecute appropriate action to contest in good
faith the validity of such condemnation, seizure, or appropriation.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
Loan is impaired.
Insecurity. Lender in good faith believes itself insecure.
Right to Cure. If any default, other than a default on Indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given
a notice of a similar default within the preceding twelve (12) months, it
may be cured (and no Event of Default will have occurred) if Borrower or
Grantor, as the case may be, after receiving written notice from Lender
demanding cure of such default: (1) cure the default within fifteen (15)
days; or (2) if the cure requires more than fifteen (15) days, immediately
initiate steps which Lender deems in Lender's sole discretion to be
sufficient to cure the default and thereafter continue and complete all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practicable.
EFFECT OF AN EVENT OF DEFAULT; REMEDIES. Upon the occurrence of any Event of
Default and at any time thereafter, Lender may, at its option,
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 8
================================================================================
but without any obligation to do so, and in addition to any other right Lender
without notice to Borrower may have, do any one or more of the following without
notice to Borrower; (a) Cancel this Agreement; (b) Institute appropriate
proceedings to enforce the performance of this Agreement; (c) Withhold further
disbursement of Loan Funds; (d) Expend funds necessary to remedy the default;
(e) Take possession of the Property and continue construction of the Project;
(f) Accelerate maturity of the Note and/or Indebtedness and demand payment of
all sums due under the Note and/or Indebtedness; (g) Bring an action on the Note
and/or Indebtedness; (h) Foreclose Lender's security agreement or Deeds of
Trust, if any, on the Property in any manner available under law; and (i)
Exercise any other right or remedy which it has under the Note or Related
Documents, or which is otherwise available at law or in equity by statute.
COMPLETION OF IMPROVEMENTS BY LENDER. If Lender takes possession of the
Collateral, it may take any and all actions necessary in its judgment to
complete construction of the Improvements, including but not limited to making
changes in the Plans and Specifications, work, or materials and entering into,
modifying or terminating any contractual arrangements, subject to Lender's right
at any time to discontinue any work without liability. If Lender elects to
complete the Improvements, it will not assume any liability to Borrower or to
any other person for completing the Improvements or for the manner or quality of
construction of the Improvements, and Borrower expressly waives any such
liability. Borrower irrevocably appoints Lender as its attorney-in-fact, with
full power of substitution, to complete the Improvements, at Lender's option,
either in Borrower's name or in its own name. In any event, all sums expended by
Lender in completing the construction of the Improvements will be considered to
have been disbursed to Borrower and will be secured by the Collateral for the
Loan. Any such sums that cause the principal amount of the Loan to exceed the
face amount of the Note will be considered as an additional Loan to Borrower,
bearing interest at the Note rate and being secured by the Collateral. For these
purposes, Borrower assigns to Lender all of its right, title and interest in and
to the Project Documents; however Lender will not have any obligation under the
Project Documents unless Lender expressly hereafter agrees to assume such
obligations in writing. Lender will have the right to exercise any rights of
Borrower under the Project Documents upon the occurrence of any Event of
Default. Except as may be prohibited by applicable law, all of Lender's rights
and remedies, whether evidenced by this Agreement or any other writing, shall be
cumulative and may be exercised singularly or concurrently.
ADDITIONAL DOCUMENTS. Borrower shall provide Lender with the following
additional documents.
Articles of Organization and Company Resolutions. Borrower has provided or
will provide Lender with a certified copy of Borrower's Articles of
Organization, together with a certified copy of resolutions properly
adopted by the Directors of the company, under which the Directors
authorized one or more designated members or employees to execute this
Agreement, the Note and any and all Security Agreements directly or
indirectly securing repayment of the same, and to consummate the borrowings
and other transactions as contemplated under this Agreement, and to consent
to the remedies following any default by Borrower as provided in this
Agreement and in any Security Agreements.
Opinion of Counsel. When required by Lender, Borrower has provided or will
provide Lender with an opinion of Borrower's counsel certifying to and
that: (1) Borrower's Note, any Security Agreements and this Agreement
constitute valid and binding obligations on Borrower's part that are
enforceable in accordance with their respective terms; (2) Borrower is
validly existing and in good standing; (3) Borrower has authority to enter
into this Agreement and to consummate the transactions contemplated under
this Agreement; and (4) such other matters as may have been requested by
Lender or by Lender's counsel.
CONSTRUCTION LOAN AGREEMENT PROVISION. BORROWER HEREBY SELLS, ASSIGNS,
TRANSFERS, AND SETS OVER TO LENDER, ALL OF ITS RIGHT, TITLE, AND INTEREST IN AND
TO ALL CONSTRUCTION, MATERIAL, MANAGEMENT, SUPPLY CONTRACTS, SURETY BONDS AND
ALL PLANS, SPECIFICATIONS, DRAWINGS AND DOCUMENTS, TOGETHER WITH ALL
MODIFICATIONS, AMENDMENTS, SUPPLEMENTS, GENERAL CONDITIONS AND ADDENDA THERETO
(COLLECTIVELY, THE "CONTRACTS") RELATED TO THE CONSTRUCTION, MANAGEMENT AND
OPERATION OF THE PROJECT. BORROWER AGREES THAT LENDER DOES NOT ASSUME ANY OF
BORROWER'S OBLIGATIONS OR DUTIES CONCERNING THE CONTRACTS UNTIL AND UNLESS
LENDER SHALL HAVE GIVEN TO BORROWER WRITTEN NOTICE THAT IT HAS AFFIRMATIVELY
EXERCISED ITS RIGHT TO COMPLETE OR CAUSE THE COMPLETION OF CONSTRUCTION OF THE
PROJECT UPON OR AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER THE NOTE AND
MORTGAGE.
THIS ASSIGNMENT IS FOR SECURITY PURPOSES ONLY. ACCORDINGLY, LENDER SHALL HAVE NO
RIGHT UNDER THIS AGREEMENT TO ENFORCE BORROWER'S RIGHT WITH RESPECT TO THE PLANS
OR THE CONTRACT UNTIL BORROWER SHALL BE IN DEFAULT UNDER ANY OF ITS OBLIGATIONS
TO LENDER UNDER ANY INSTRUMENT, DOCUMENT, OR AGREEMENT RELATED TO THE PROJECT OR
TO THE NOTE. UPON THE OCCURRENCE OF ANY SUCH DEFAULT, LENDER MAY, WITHOUT
AFFECTING ANY OF ITS RIGHTS OR REMEDIES AGAINST BORROWER UNDER ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT, EXERCISE ITS RIGHT UNDER THIS ASSIGNMENT AS
BORROWER'S ATTORNEY-IN-FACT OR IN ANY OTHER MANNER PERMITTED BY LAW, AND IN
ADDITION, LENDER SHALL HAVE AND POSSESS, WITHOUT LIMITATION, ANY AND ALL RIGHTS
AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE OR OTHERWISE
PROVIDED BY LAW.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
Attorneys' Fees; Expenses. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's reasonable attorneys' fees
and Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's reasonable attorneys' fees
and legal expenses whether or not there is a lawsuit, including reasonable
attorneys' fees and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and
any anticipated post-judgment collection services. Borrower shall also pay
all court costs and such additional fees as may be directed by the court.
Authority to File Notices. Borrower appoints and designates Lender as its
attorney-in-fact to file for the record any notice that Lender deems
necessary to protect its interest under this Agreement. This power shall be
deemed coupled with an interest and shall be irrevocable while any sum or
performance remains due and owing under any of the Related Documents.
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
Governing Law. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of Minnesota. This
Agreement has been accepted by Lender in the State of Minnesota.
Indemnification of Lender. Borrower agrees to indemnify, to defend and to
save and hold Lender harmless from any and all claims, suits, obligations,
damages, losses, costs and expenses (including, without limitation,
Lender's reasonable attorneys' fees, as well as Lender's architect's and
engineering fees), demands, liabilities, penalties, fines and forfeitures
of any nature whatsoever that may be asserted against or incurred by
Lender, its officers, directors, employees, and agents arising out of,
relating to, or in any manner occasioned by this Agreement and the exercise
of the rights and remedies granted Lender under this. The foregoing
indemnity provisions shall survive the cancellation of this Agreement as to
all matters arising or accruing prior to such cancellation and the
foregoing indemnity shall survive in the event that Lender elects to
exercise any of the remedies as provided under this Agreement following
default thereunder.
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 9
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Consent to Loan Participation. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation whatsoever,
to any one or more purchasers, or potential purchases, any information or
knowledge Lender may have about Borrower or about any other matter relating
to the Loan, and Borrower hereby waives any rights to privacy Borrower may
have with respect to such matters. Borrower additionally waives any and all
notices of sale of participation interests, as well as all notices of any
repurchase of such participation interests. Borrower also agrees that the
purchase of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under the participation agreements governing the sale of such
participation interests. Borrower further waives all rights of offset or
counterclaim that it may have now or later against Lender or against any
purchaser of such a participation interest and unconditionally agrees that
either Lender or such purchaser may enforce Borrower's obligation under the
Loan irrespective of the failure or insolvency of any holder of any
interest in the Loan. Borrower further agrees that the purchaser of any
such participation interests may enforce its interests irrespective of any
personal claims or defenses that Borrower may have against Lender.
No Waiver by Lender. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising such right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
wavier of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Borrower, or between
Lender and any Grantor, shall constitute a waiver of any of Lender's rights
or of any of Borrower's or any Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the
sole discretion of Lender.
Severability. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise
required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.
Successors and Assigns. All covenants and agreements contained by or on
behalf of Borrower shall bind Borrower's successors and assigns and shall
inure to the benefit of Lender and its successors and assigns. Borrower
shall not, however, have the right to assign Borrower's rights under this
Agreement of any interest therein, without the prior written consent of
Lender.
Survival of Representations and Warranties. Borrower understands and agrees
that in extending Loan Advances, Lender is relying on all representations,
warranties, covenants made by Borrower in this Agreement or in any
certificate or other instrument delivered by Borrower to Lender under this
Agreement or the Related Documents. Borrower further agrees that regardless
of any investigation made by Lender, all such representations, warranties
and covenants will survive the extension of Loan Advances and delivery to
Lender of the Related Documents, shall be continuing in nature, shall be
deemed made and redated by Borrower at the time each Loan Advance is made,
and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
Waive Jury. All parties to this Agreement hereby waive the right to any
jury trial in any action, proceeding, or counterclaim brought by any party
against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement.
Advance. The word "Advance" means a disbursement of Loan funds made, or to
be made, to Borrower on Borrower's behalf on a line of credit or multiple
advance basis under the terms and conditions of this Agreement.
Agreement. The word "Agreement" means this Construction Loan Agreement, as
this Construction Loan Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this
Construction Loan Agreement from time to time.
Architecture Contract. The words "Architecture Contract" mean the
architect's contract between Borrower and the Architect for the Project.
Borrower. The word "Borrower" means HUSKER AG PROCESSING, LLC, and all
other persons and entities signing the Note in whatever capacity.
Collateral. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel
mortgage, collateral chattel mortgage, chattel trust, factor's lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien or
title retention contract, lease or consignment intended as a security
device, or any other security or lien interest whatsoever, whether created
by law, contract, or otherwise.
Completion Date. The words "Completion Date" mean June 19, 2003.
Construction Contract. The words "Construction Contract" mean the contract
between Borrower and XXXXX, INC., the general contractor for the Project,
and any subcontracts with subcontractors, materialmen, laborers, or any
other person or entity for performance of work on the Project or the
delivery of materials to the Project.
Contractor. The word "Contractor" means XXXXX, INC., the general contractor
for the Project.
Environmental Laws. The words "Environmental Laws" mean and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto or common law, and shall also include
pollutants, contaminants, polychlorinated biphenyls, asbestos, urea
formaldehyde, petroleum and petroleum products, and agricultural chemicals.
Event of Default. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 10
================================================================================
GAAP. The word "GAAP" means generally accepted accounting principles.
Grantor. The word "Grantor" means each and all of the persons or entities
granting a Security Interest in any Collateral for the Loan, including
without limitation all Borrowers granting such a Security Interest.
Guarantor. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Loan and any guarantor under a
completion guaranty agreement.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
Hazardous Substances. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored,
disposed of, generated, manufactured, transported or otherwise handled. The
words "Hazardous Substances" are used in their very broadcast sense and
include without limitation any and all hazardous toxic substances,
materials or waste as defined by or listed under the Environmental Laws.
The term "Hazardous Substances" are includes, without limitation, petroleum
and petroleum by-products or any fraction thereof and asbestos.
Improvements. The word "Improvements" means all existing and future
building, structures, facilities, fixtures, additions, and similar
construction on the Collateral.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
Lender. The word "Lender" means XXXXXXX BANK NATIONAL ASSOCIATION, its
successors and assigns.
Loan. The word "Loan" means the loan or loans made to Borrower under this
Agreement and the Related Documents as described.
Loan Fund. The words "Loan Fund" mean the undisbursed proceeds of the Loan
under this Agreement together with any equity funds or other deposits
required from Borrower under this Agreement.
Note. The word "Note" means the promissory note dated December 19, 2001, in
the original principal amount of $20,000,000.00 from Borrower to Lender,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the promissory
note or agreement.
Permitted Liens. The words "Permitted Liens" mean (1) liens and security
interests securing Indebtedness owed by Borrower to Lender; (2) liens for
taxes, assessments, or similar charges, either not yet due or being
contested in good faith; (3) liens of materialmen, mechanics, warehousemen,
or carriers, or other like liens arising in the ordinary course of business
and securing obligations which are not yet delinquent; (4) purchase money
liens or purchase money security interests upon or in any property acquired
or held by Borrower in the ordinary course of business to secure
indebtedness outstanding on the date of this Agreement or permitted to be
incurred under the paragraph of this Agreement titled "Indebtedness and
Liens"; (5) liens and security interests which, as of the date of this
Agreement have been disclosed to and approved by the Lender in writing; and
(6) those liens and security interests which is in the aggregate constitute
an immaterial and insignificant monetary amount with respect to the net
value of Borrower's assets.
Plans and Specifications. The words "Plans and Specifications" means the
plans and specifications for the Project which have been submitted to and
initialed by Lender, together with such changes and additions as may be
approved by Lender in writing.
Project. The word "Project" means the construction project as described in
the "Project Description" section of this Agreement.
Project Documents. The words "Project Documents" mean the Plans and
Specifications, all studies, data and drawings relating to the Project,
whether prepared by or for Borrower, the Construction Contract, the
Architecture Contract, and all other contracts and agreements relating to
the Project or the construction of the Improvements.
Property. The word "Property" means the property as described in the
"Project Description" section of this Agreement.
Real Property. The words "Real Property" mean the real property, interests
and rights, as further described in the "Project Description" section of
this Agreement.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Loan.
Security Agreement. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
Security Interest. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge, encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional sale,
trust receipt, lien or title retention contract, lease or consignment
intended as a security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
CONSTRUCTION LOAN AGREEMENT
Loan No: 53455 (Continued) Page 11
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BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS CONSTRUCTION LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS CONSTRUCTION LOAN AGREEMENT IS
DATED DECEMBER 19, 2001.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
BORROWER:
HUSKER AG PROCESSING, LLC
By: /s/ Xxxx Xxxxxxx (Seal) By: /s/ Xxxx Xxxxx (Seal)
----------------------------------------- --------------------------------
XXXX XXXXXXX, Chairman of HUSKER AG XXXX XXXXX, Secretary of HUSKER AG
PROCESSING, LLC PROCESSING, LLC
By: /s/ Xxxx Xxxxxxx (Seal)
-----------------------------------------
XXXX XXXXXXX, Treasurer of HUSKER AG
PROCESSING, LLC
LENDER:
XXXXXXX BANK NATIONAL ASSOCIATION
By: /s/ XXXXXXXXXX (Seal)
-----------------------------------------
Authorized Signer
================================================================================
