BUSINESS LOAN AGREEMENT
Exhibit 10.9
| Officer | ||||||||||||||
| Principal | Loan Date | Maturity | Loan No. | Call/Coll. | Account | PBlake | Initials | |||||||
| $970,000.00 | 03-09-2007 | 03-06-2008 | 8000845380 |
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.
Any item above containing “***” has been omitted due to text length limitations.
Borrower:
|
Agassiz Energy, LLC (TIN: 00-0000000) | Lender: | American Federal Bank COPY | |||
| 000 Xxxxxx Xxxx 71 | 000 Xxxxx 0xx Xxx | |||||
| Crookston, MN 56716 | Fargo, ND 58102 |
THIS BUSINESS LOAN AGREEMENT dated March 9, 2007, is made and executed between Agassiz Energy, LLC
(“Borrower”) and American Federal Bank (“Lender”) on the following terms and conditions. Borrower
has received prior commercial loans from Lender or has applied to Lender for a commercial loan or
loans or other financial accommodations, including those which may be described on any exhibit or
schedule attached to this Agreement (“Loan”). Xxxxxxxx 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; (B) the granting, renewing, or extending
of any Loan by Xxxxxx at all times shall be subject to Lender’s sole judgment and discretion; and
(C) all such Loans shall be and remain subject to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of March 9, 2007, 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 March 6, 2008.
ADVANCE AUTHORITY. The following persons currently are authorized to request advances and authorize
payments under the line of credit until Xxxxxx receives from Borrower, at Xxxxxx’s address shown
above, written notice of revocation of their authority: Xxxxxx Xxxxxxxx, President of Agassiz
Energy LLC; Xxxxx Xxxxxxxxx, Treasurer of Agassiz Energy LLC; and Xxxxx Xxxxxx, Vice President of
Agassiz Energy LLC.
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.
Loan Documents. Borrower shall provide to Lender the following documents for the Loan: (1) the
Note; (2) Security Agreements granting to Lender security interests in the Collateral; (3)
financing statements and all other documents perfecting Lender’s Security Interests; (4) evidence
of insurance as required below; (5) together with all such Related Documents as Lender may require
for the Loan; all in form and substance satisfactory to Lender and Lender’s counsel.
Borrower’s Authorization. Borrower shall have provided in form and substance satisfactory to Lender
properly certified resolutions, 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, may require.
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.
Representations and Warranties. The representations and warranties set forth in this Agreement, in
the Related Documents, and in any document or certificate delivered to Lender under this Agreement
are true and correct.
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.
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 Borrower’s
state of organization. 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. Borrower maintains an office at 000
Xxxxxx Xxxx 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.
Assumed Business Names. Xxxxxxxx has filed or recorded all documents or filings required by
law relating to all assumed business names used by Xxxxxxxx. Excluding the name of Xxxxxxxx, the
following is a complete list of all
assumed business names under which Borrower does business: None.
Authorization. Xxxxxxxx’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 (a) Borrower’s
articles of organization or membership agreements, or (b) 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.
Properties. Except as contemplated by this Agreement or as previously disclosed in Xxxxxxxx’s
financial statements or in writing to Lender and as accepted by Xxxxxx, 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 liens and security interests, and has not executed any
security documents or financing statements relating to such properties. All of Xxxxxxxx’s
properties are titled in Borrower’s legal name, and Xxxxxxxx has not used or filed a financing
statement under any other name for at least the last five (5) years.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Xxxxxx that, so long as this Agreement
remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Xxxxxx 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 accounting principles
acceptable to Xxxxxx, applied on a consistent basis, and permit Lender to examine and audit
Xxxxxxxx’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 sixty (60) days after the
end of each fiscal year, Xxxxxxxx’s balance sheet and income statement for the year ended, prepared
by Xxxxxxxx.
Tax Returns. As soon as available, but in no event later than sixty (60) days after the applicable
filing date for the tax reporting period ended, Federal and other governmental tax returns,
prepared by a professional accountant satisfactory to Lender.
| Loan No: 8000845380 | (Continued) | Page 2 |
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.
Loan Proceeds. Use all Loan proceeds solely for Xxxxxxxx’s business operations, unless specifically
consented to the contrary by Xxxxxx in writing.
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 Xxxxxx immediately in writing of any default in
connection with any agreement.
Operations. Maintain executive and management personnel with substantially the same qualifications
and experience as the present executive and management personnel; provide written notice to Lender
of any change in executive and management personnel; conduct its business affairs in a reasonable
and prudent manner.
Compliance with Governmental Requirements. Comply with all laws, ordinances and regulations, now or
hereafter in effect, of all governmental authorities applicable to the conduct of Borrower’s
properties, businesses and operations, and to the use or occupancy of the Collateral, including
without limitation, the Americans With Disabilities Act. Borrower may
contest in good faith any
such law, ordinance, or regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Borrower has notified Lender in writing prior to doing so and so
long as, in Xxxxxx’s sole opinion, Xxxxxx’s interests in the Collateral are not jeopardized. Lender
may require Borrower to post adequate security or a surety bond, reasonably satisfactory to Lender,
to protect Xxxxxx’s interest.
Inspection. Permit employees or agents of Lender at any reasonable time to inspect any and all
Collateral for the Loan or Loans and Xxxxxxxx’s other properties and to examine or audit Xxxxxxxx’s
books, accounts, and records and to make copies and memoranda of Xxxxxxxx’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 Xxxxxx, 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, all at Borrower’s expense.
XXXXXX’S
EXPENDITURES. If any action or proceeding is commenced that would materially affect
Lender’s interest in the Collateral or if Borrower fails to comply with any provision of the
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 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 the rate charged under the Note from the date incurred or paid by Lender to
the date of repayment by Xxxxxxxx. 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 payment 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:
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.
Agreements. Borrower will not enter into any agreement containing any provisions which would be
violated or breached by the performance of Xxxxxxxx’s obligations under this agreement or in
connection herewith.
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 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.
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 IRA or Xxxxx accounts, or any trust accounts for
which setoff would be prohibited by law. Borrower authorizes Xxxxxx, to the extent permitted by
applicable law, to charge or setoff all sums owing on the indebtedness against any and all such
accounts.
DEFAULT. Each of the following shall constitute an Event of Default under this Agreement.
Payment Default. Xxxxxxxx fails to make any payment when due under the Loan.
Other Default. Borrower fails to comply with any other term, obligation, covenant or condition
contained in this Agreement or in any of the Related Documents.
False Statements. Any representation or statement made by Borrower to Lender is false in any
material respect.
Death or Insolvency. The dissolution of Borrower (regardless of whether election to continue is
made), any member withdraws from Borrower, or any other termination of borrower’s existence as a
going business or the death of any member, the insolvency of Borrower, the appointment of a
receiver for any part of Xxxxxxxx’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.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether
by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or
by any governmental agency against any collateral securing the Loan.
Events
Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any
of the indebtedness or any Guarantor dies or becomes incompetent, or
revokes or disputes the validity of, or liability under, any Guaranty
of the indebtedness. In the event of a death, Lender, at its option, may, but shall not be required
to, permit the guarantor’s estate to assume
unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and,
in doing so, cure any Event of Default.
| BUSINESS LOAN AGREEMENT | ||||
| Loan No: 8000845380 | (Continued) | Page 3 |
Insecurity. Lender in good faith believes itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise provided
in this Agreement or the Related Documents, all commitments and obligations of Lender under this
Agreement immediately will terminate (including any obligation to
make further Loan Advances or
disbursements), and, at Xxxxxx’s option, all Indebtedness immediately will become due and payable,
all without notice of any kind to Borrower, except that in the case of an Event of Default of the
type described in the “Insolvency” subsection above, such acceleration shall be automatic and not
optional. In addition, Lender shall have all the rights and remedies provided in the Related
Documents or available at law, In equity, or otherwise. Except as may be prohibited by applicable
law, all of Lender’s rights and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Xxxxxx to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an obligation of Borrower
or of any Grantor shall not affect Xxxxxx’s right to declare a default and to exercise its rights
and remedies.
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 or 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 Business Loan Agreement, as this Business Loan
Agreement may be amended or modified from time to time, together with all exhibits and
schedules attached to this Business Loan Agreement from time to time.
Borrower. The word “Borrower” means Agassiz Energy, LLC and includes all co-signers and
co-makers signing the Note and all their successors and assigns.
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, crop pledge, 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.
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.
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.
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 American Federal Bank, its successors and assigns.
Loan. The word “Loan” means any and all loans and financial accommodations from Lender to
Borrower whether now or hereafter existing, and however evidenced, including without
limitation those loans and financial accommodations described herein or described on any
exhibit or schedule attached to this Agreement from time to time.
Note. The word “Note” means the Note executed by Agassiz Energy, LLC in the principal
amount of $970,000.00 dated March 9, 2007, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and substitutions for the note or
credit agreement.
Related Documents. The words “Related Documents” mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgage, 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.
| Loan No: 8000845380 | (Continued) | Page 4 |
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND XXXXXXXX
AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED MARCH 9, 2007.
BORROWER:
By:
|
/s/ Xxxxxx Xxxxxxxx | By: | /s/ Xxxxx Xxxxxxxxx | |||||||
By:
|
/s/ Xxxxx Xxxxxx | |||||||||
LENDER:
AMERICAN FEDERAL BANK
By:
|
/s/ Xxxxx Xxxxx | |||
