MLA No. BO51H
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT is entered into as of February 26, 2002,
between COBANK, ACB ("CoBank") and SOUTH DAKOTA SOYBEAN PROCESSORS, Volga,
South Dakota (the "Company").
BACKGROUND
CoBank and the Company are parties to a Master Loan Agreement dated
September 15, 1995 (the "Existing Agreement"). Pursuant to the terms of the
Existing Agreement, the parties entered into one or more Supplements thereto.
CoBank and the Company now desire to amend and restate the Existing Agreement
and to apply such new agreement to the existing Supplements, as well as any
new Supplements that may be issued thereunder. For that reason and for
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), CoBank and the Company hereby agree that the Existing
Agreement shall be amended and restated to read as follows:
SECTION 1. SUPPLEMENTS. In the event the Company desires to borrow
from CoBank and CoBank is willing to lend to the Company, or in the event
CoBank and the Company desire to consolidate any existing loans hereunder,
the parties will enter into a Supplement to this agreement (a "Supplement").
Each Supplement will set forth the amount of the loan, the purpose of the
loan, the interest rate or rate options applicable to that loan, the
repayment terms of the loan, and any other terms and conditions applicable to
that particular loan. Each loan will be governed by the terms and conditions
contained in this agreement and in the Supplement relating to the loan. As of
the date hereof, the following Supplements are outstanding hereunder and
shall be governed by the terms and conditions hereof: (1) the Statused
Revolving Credit Supplement dated February 26, 2002 and numbered B051S01F;
and (2) the Revolving Term Loan Supplement dated February 26, 2002 and
numbered B051T05D.
SECTION 2. AVAILABILITY. Loans will be made available on any day on
which CoBank and the Federal Reserve Banks are open for business upon the
telephonic or written request of the Company. Requests for loans must be
received no later than 12:00 Noon Company's local time on the date the loan
is desired. Loans will be made available by wire transfer of immediately
available funds to such account or accounts as may be authorized by the
Company. The Company shall furnish to CoBank a duly completed and executed
copy of a CoBank Delegation and Wire and Electronic Transfer Authorization
Form, and CoBank shall be entitled to rely on (and shall incur no liability
to the Company in acting on) any request or direction furnished in accordance
with the terms thereof.
SECTION 3. REPAYMENT. The Company's obligation to repay each loan
shall be evidenced by the promissory note set forth in the Supplement
relating to that loan or by such replacement note as CoBank may require.
CoBank shall maintain a record of all loans, the interest accrued thereon,
and all payments made with respect thereto, and such record shall, absent
proof of manifest error, be conclusive evidence of the outstanding principal
and interest on the loans. All
payments shall be made by wire transfer of immediately available funds, by
check, or by automated clearing house or other similar cash handling
processes as specified by separate agreement between the Company and CoBank.
Wire transfers shall be made to ABA No. 000000000 for advice to and credit of
CoBank (or to such other account as CoBank may direct by notice). The Company
shall give CoBank telephonic notice no later than 12:00 noon Company's local
time of its intent to pay by wire and funds received after 3:00 p.m.
Company's local time shall be credited on the next business day. Checks shall
be mailed to XxXxxx, Xxxxxxxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000 (or to such
other place as CoBank may direct by notice). Credit for payment by check will
not be given until the latter of: (a) the day on which CoBank receives
immediately available funds; or (b) the next business day after receipt of
the check.
SECTION 4. SECURITY. The Company's obligations under this agreement,
all Supplements (whenever executed), and all instruments and documents
contemplated hereby or thereby, shall be secured by a statutory first lien on
all equity which the Company may now own or hereafter acquire in CoBank and
by a first lien (subject only to exceptions approved in writing by CoBank)
pursuant to all security agreements, mortgages, and deeds of trust executed
by the Company in favor of CoBank, whether now existing or hereafter entered
into. As additional security for those obligations, the Company agrees to
grant to CoBank, by means of such instruments and documents as CoBank shall
require, a first lien on such of its other assets, whether now existing or
hereafter acquired, as CoBank may from time to time require, including an
Assignment of Project Documents Agreement in form and substance satisfactory
to CoBank.
SECTION 5. CONDITIONS PRECEDENT. CoBank's obligation to extend
credit under the initial Supplement hereto is subject to the receipt by
CoBank of a duly executed copy of this agreement and all instruments and
documents contemplated hereby. CoBank's obligation to extend credit under
each Supplement is subject to the condition that CoBank receive, in form and
substance satisfactory to CoBank (a) a duly executed copy of the Supplement
and all instruments and documents contemplated thereby; (b) such certified
board resolutions, evidence of incumbency, and other evidence as CoBank may
require that the Supplement, all instruments and documents executed in
connection therewith, and (in the case of the initial Supplement hereto) this
agreement and all instruments and documents executed in connection herewith,
have been duly authorized and executed; (c) all fees and other charges
provided for herein or in the Supplement; and (d) such evidence as CoBank may
require that CoBank has, as of the date of the Supplement, a duly perfected
first priority lien on all security for the Company's obligations. In
addition, CoBank's obligation to extend or to continue to extend credit under
each Supplement is subject to the Company being in compliance with the terms
of this agreement, the Supplements, and all security and other instruments
and documents related hereto or thereto (collectively, at any time, the "Loan
Documents").
SECTION 6. REPRESENTATIONS AND WARRANTIES. The execution by the
Company of each Supplement shall constitute a representation and warranty to
CoBank that: (a) each representation and warranty and all information set
forth in any application or other document submitted in connection with, or
to induce CoBank to enter into, such Supplement, is correct in all material
respects as of the date of such Supplement; (b) the Loan Documents do not
conflict with any other agreement to which the Company is a party or with any
provision of the Company's bylaws, articles of incorporation or other
organizational documents; (c) the Company is in compliance with
all of the terms of the Loan Documents (including, without limitation,
Section 7(a) of this agreement on eligibility to borrow from CoBank); and (d)
the Loan Documents create legal, binding, and enforceable obligations of the
Company, except as enforceability may be limited by bankruptcy and similar
laws affecting creditors' rights generally.
SECTION 7. AFFIRMATIVE COVENANTS. Unless CoBank otherwise consents
in writing, while this agreement is in effect, the Company agrees to: (a)
maintain its status as an entity eligible to borrow from CoBank and its
existence and good standing in the jurisdiction of its incorporation or
formation; (b) qualify and remain qualified to transact business wherever
such qualification is required and obtain and maintain all licenses,
certificates, permits, and like authorizations which are material to its
business or required by law, rule, regulation, code, orders or the like
(collectively, "Laws"); (c) comply in all material respects with all
applicable Laws, including all environmental Laws and all Laws relating to
any patron or member investment program that the Company may have; (d) cause
all persons occupying or present on any property of the Company to comply in
all material respects with all environmental Laws; (e) maintain insurance
with companies satisfactory to CoBank in such amounts and covering such risks
as are customarily carried by companies engaged in the same or similar
business and similarly situated, and make such increases in the amount or
type of coverage as CoBank may request; (f) cause all policies covering any
collateral provided for herein or in any Supplement to have loss payable
clauses or endorsements form and content acceptable to CoBank; (g) maintain
its property in good working condition, ordinary wear and tear excepted; (h)
keep books of account in accordance with generally accepted accounting
principles ("GAAP") consistently applied; (i) permit CoBank or its agents to
inspect the Company's properties, books, and records, and to discuss the
Company's affairs, finances, and accounts with its directors, employees, and
independent certified public accountants; (j) purchase such equity in CoBank
as CoBank may from time to time require in accordance with its bylaws (except
that the maximum amount of equity which Company may be required to purchase
in connection with any loan may not exceed the amount permitted by the bylaws
at the time the Supplement relating to that loan is entered into or such loan
is renewed or refinanced by CoBank); (k) have at the end of each period for
which financial statements are required to be furnished pursuant to Section 8
hereof, an excess of current assets over current liabilities (both as
determined in accordance with GAAP consistently applied) of not less than
$5,000,000.00 through and including April 30, 2003, and of not less than
$7,000,000.00 thereafter, except that in determining current assets, any
amount available under the Revolving Term Loan Supplement hereto may be
included, and except that in determining current liabilities, any outstanding
principal balance under the Statused Revolving Credit Supplement hereto shall
be included; (1) have at the end of each fiscal year of the Company a "Debt
Service Coverage Quotient" (as defined below) of not less than 1.2 to 1, (m)
pay or cause to be removed by the initiation of legal proceedings or
otherwise, within sixty (60) days after notice from CoBank, any lien on the
Improvements or Property subject to any security document unless said lien is
covered by insurance or bond; and (n) comply with and keep in effect all
permits and approvals obtained from any governmental bodies that relate to
the lawful construction of the Improvements, as well as all existing and
future laws, regulations, orders and requirements of all governmental,
judicial or legal authorities having jurisdiction over the Property or
Improvements, and with all recorded restrictions affecting the Property. For
purposes of subsection (1) above, "Debt Service Coverage Quotient" shall mean
the following (all as calculated for the most current year end in accordance
with GAAP consistently applied, except as otherwise specifically indicated):
(i) net income (after taxes) plus depreciation
and amortization, minus non-cash patronage income, minus cash patronage paid
or scheduled to be paid, based on the most recent prior fiscal year, minus
extraordinary gains (plus losses); divided by (ii) all principal payments due
within one year on all long-term debt as of the prior fiscal year-end, but in
no event including any current portion of the Statused Revolving Credit
Supplement hereto.
SECTION 8. REPORTING COVENANT. Unless CoBank otherwise consents in
writing, while this agreement is in effect, the Company agrees to furnish to
CoBank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 120 days after the end of
each fiscal year of the Company occurring during the term hereof: (i) annual
financial statements prepared in accordance with GAAP consistently applied
and audited by independent certified public accountants selected by the
Company and acceptable to CoBank; and (ii) a report of such accountants on
such statements containing an opinion acceptable to CoBank.
(b) INTERIM FINANCIAL STATEMENTS. Within 45 days after the end of
each month (other than the last month in each fiscal year), a balance sheet,
a statement of income for such month and for the period year to date, and
such other monthly statements as CoBank may specifically request, all
prepared its reasonable detail and in form and substance satisfactory to
CoBank.
(c) NOTICE OF DEFAULT. Promptly after becoming aware thereof, notice
of the occurrence of a default or of any event which with the giving of
notice and the passage of time would become a default hereunder.
(d) NOTICE OF LITIGATION, ENVIRONMENTAL MATTERS, ETC. Promptly after
becoming aware thereof (i) notice of the commencement of all actions, suits,
or proceedings affecting the Company which, if determined adversely to the
Company, could have a material adverse effect on the Company, and (ii) notice
of the receipt of all pleadings, orders, complaints, indictments, or any
other communication alleging a condition that may require the Company to
undertake or to contribute to a cleanup or other response under environmental
Laws, or which seek penalties, damages, injunctive relief, or criminal
sanctions related to alleged violations of such Laws, or which claim personal
injury or property damage to any person as a result of environmental factors
or conditions.
(e) BYLAWS AND ARTICLES. Promptly after any change in the Company's
bylaws or articles of incorporation (or like documents), copies of all such
changes, certified by the Company's Secretary.
(f) OTHER INFORMATION. Such other information as CoBank may from
time to time request.
SECTION 9. NEGATIVE COVENANTS. Unless CoBank otherwise consents is
writing, while this agreement is in effect, the Company will not: (a) create,
assume or allow to exist any indebtedness or liability for borrowed money or
for the deferred purchase price of property or services (including
capitalized leases not otherwise permitted hereunder), except for
indebtedness to CoBank; indebtedness under the Company's member or patron
investment program, (provided such indebtedness is expressly stated to be
subordinated to all indebtedness to CoBank);
indebtedness to any local, state or federally sponsored developmental
agencies in an aggregate principal amount not to exceed $3,000,000.00 but no
extensions and refinancings thereof; miscellaneous indebtedness not to exceed
$200,000.00 at any one time outstanding; indebtedness for accounts payable to
trade creditors; and current operating liabilities (other than for borrowed
money) incurred in the ordinary course of business; (b) grant, assume or
allow to exist any security interest, mortgage, deed of trust or other
consensual lien on any of its property, except liens in favor of CoBank,
liens in existence on the date hereof in favor of any local, state or
federally sponsored developmental agencies to secure indebtedness permitted
hereunder, and liens securing miscellaneous indebtedness permitted under
Subsection (a) above; (c) allow to exist any non-consensual or statutory
liens that secure obligations that are past due or any judgment liens; unless
said liens are subject to and covered by insurance or bonds or are being
contested by the Company in legal proceedings or on appeal; (d) merge or
consolidate with any other entity, or form or create any new subsidiary, or
purchase all or a material part of the assets of any person or entity, or
commence operations under any other name or organization; (e) sell, lease, or
otherwise dispose of any assets, except in the ordinary course of business;
(f) lend money or otherwise extend credit, except for trade credit extended
in the ordinary course of business; (g) assume, guarantee, or otherwise
become liable (directly or indirectly) for the debts of another; (h) engage
in any business activities substantially different from the Company's present
business activities; (i) declare or pay any dividends or retire capital
equities or other written notices of allocation, or make any other
distribution or allocation of its earnings, surplus or assets to any holder
of stock, allocated equities or other written notices of allocation, except
that the Company may distribute patronage-sourced earnings annually in the
form of cash value-added payments and qualified written notices of
allocation, so long as the Company is operating on a profitable basis and is
in full compliance with all loan covenants, and such written notices
constitute equity and not debt; (j) create, incur, assume, or permit to exist
any obligation as lessee except (1) operating leases for the rental or hire
of any real or personal property (excluding railroad cars) which do not in
the aggregate require the Company to make scheduled payments to the lessors
in any fiscal year of the Company occurring during the term hereof in excess
of $350,000.00, (2) leases which should be capitalized in accordance with
GAAP for the rental or hire of any real or personal property which do not in
the aggregate require the Company to make scheduled payments to the lessors
in any fiscal year of the company occurring during the term hereof in excess
of $200,000.00, (3) leases for the rental or hire of up to 400 tanker and/or
xxxxxx railroad cars under terms and conditions acceptable to CoBank, (4)
other leases of railroad cars with original maturities of less than 18
months, at the Company's discretion, and (5) leases of soybean oil storage
tank space with aggregate annual payments not to exceed $400,000.00; or (l)
purchase or install any materials, equipment, fixtures or articles of
personal property of the Company placed in the Improvements if such shall be
covered under any security agreement or other agreement where the seller
reserves or purports to reserve title or the right of removal or
repossession, or the right to consider them personal property after their
incorporation in the work of construction, unless authorized by CoBank in
writing, except in support of financing permitted under Sections 9(a) and
9(j).
SECTION 10. EVENTS OF DEFAULT. The Company shall be in default
hereunder if any of the following occur: (a) any payment required to be made
hereunder or under any Supplement is not made where due; (b) any
representation or warranty made or deemed made by the Company herein or in
any other Loan Document shall prove to have been false or misleading in any
material respect on the date made or deemed made; (c) the Company should fail
to comply with Subsection
(7) (a) through (7) (i) hereof, or Subsections 8 (a), (b), (e), and (f)
hereof or any reporting covenant set forth in any Supplement hereto, and such
breach continues for 15 days after written notice thereof shall have been
given to the Company; (d) any other covenant or agreement set forth herein or
in any other Loan Document is breached or the Company uses the proceeds of
any loan for any unauthorized purpose; (e) the Company should breach or be in
default under any other agreement between the Company and CoBank; (f) the
Company should fail to pay when due any indebtedness to any other person or
entity for borrowed money or any long-term obligation for the deferred
purchase price of the property (including any capitalized lease), or any
other event occurs which constitutes or would, with the giving of notice
and/or the passage of time, constitute a default under any agreement relating
to such indebtedness or obligation; (g) the Company becomes insolvent or does
not pay its debts as they come due or suspends its business operations or a
material part thereof or makes an assignment for the benefit of creditors or
commences or has commenced against it any proceeding for the appointment of a
receiver, trustee, or other custodian for it or any of its property or any
proceeding under any bankruptcy, reorganization, dissolution, or similar Law;
and (h) any material adverse change occurs in the Company's financial
condition, results of operation, or ability to perform its obligations to
CoBank under this agreement and the other Loan Documents.
SECTION 11. REMEDIES. Upon the occurrence of a default or of any
event which with the giving of notice and the passage of time would become a
default hereunder, CoBank shall have no obligation to continue to extend
credit to the Company and may discontinue doing so at any time without prior
notice. In addition, upon the occurrence of each and every default hereunder,
CoBank may, upon notice to the Company: (a) terminate any commitment; (b)
declare the unpaid principal of the loans, all accrued interest thereon, and
all other amounts payable under this agreement and the other Loan Documents
to be immediately due and payable (whereupon the same shall become
immediately due and payable without presentment, demand, or further notice of
any kind, all of which are hereby waived); (c) proceed to protect, exercise,
and enforce such rights and remedies as may be provided by agreement or under
Law; (d) apply all payments received by CoBank to the Company's obligations
in such order and manner as CoBank may elect; and (e), hold and/or set off
and apply against the Company's obligations to CoBank, the proceeds of any
equity in CoBank, any cash collateral held by CoBank, or any balances held by
CoBank for the Company's account (whether or not such balances are then due).
The Company acknowledges that each and every one of CoBank's rights and
remedies shall be cumulative and may be exercised from time to time, and no
failure on the part of CoBank to exercise, and no delay in exercising, any
right or remedy shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy preclude any other or future exercise
thereof, or the exercise of any other right or remedy.
In addition to the rights and remedies set forth above: (i) if the Company
fails to purchase any equity in CoBank when required or fails to make any
payment to CoBank when due, then at CoBank's option in each instance, such
obligation or payment shall bear interest from the date due to the date paid
at 4% per annum in excess of the rate(s) of interest that would otherwise be
in effect on that loan; and (b) after the maturity of any loan (whether as a
result of acceleration or otherwise) shall automatically bear interest at 4%
per annum in excess of the rate(s) of interest that would otherwise be in
effect on that loan. All interest provided for herein shall be payable on
demand and shall be calculated on the basis of a year consisting of 360 days.
SECTION 12. BROKEN FUNDING SURCHARGE. Notwithstanding any provision
contained in any Supplement giving the Company the right to repay any loan
prior to the date it would otherwise be due and payable, the Company agrees
that in the event it repays any fixed rate balance prior to its scheduled due
date or prior to the last day of the fixed rate period applicable thereto
(whether such payment is made voluntarily, as a result of an acceleration, or
otherwise), the Company will pay to CoBank a surcharge in an amount which
would result in CoBank being made whole (on a present value basis) for the
actual or imputed funding losses incurred by CoBank as a result thereof.
Notwithstanding the foregoing, in the event any fixed rate balance is repaid
as a result of the Company refinancing the loan with another lender or by
other means, then in lieu of the foregoing, the Company shall pay to CoBank a
surcharge in an amount sufficient (on a present value basis) to enable CoBank
to maintain the yield it would have earned during the fixed rate period on
the amount repaid. Such surcharges will be calculated in accordance with
methodology established by CoBank (a copy of which will be made available to
the Company upon request).
SECTION 13. OTHER TYPES OF CREDIT. From time to time, CoBank may
issue letters of credit or extend other types of credit to or for the account
of the Company. In the event the parties desire to do so under the terms of
this agreement, such extensions of credit may be set forth in any Supplement
hereto and this agreement shall be applicable thereto.
SECTION 14. MISCELLANEOUS. The Loan Documents are intended by the
parties to be a complete and final expression of their agreement. No
amendment, modification, or waiver of any provision nor any consent to any
departure therefrom, shall be effective unless in writing and signed by
CoBank, and then such waiver of consent shall be effective only in the
specific instance and for the specific purpose for which granted. In the
event this agreement is amended or restated, each such amendment and
restatement shall be applicable to all Supplements hereto. This agreement
shall continue in effect until all indebtedness or obligations of the Company
shall have been paid, CoBank has no further commitment to extend credit to or
for the account of the Company under any Supplement, and either party
furnishes notice of termination to the other. Except to the extent governed
by applicable federal law, this agreement and each Supplement shall be
governed by the Laws of the State of Colorado, without reference to choice of
law doctrine. Any provision of this agreement or any other Loan Document
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent thereof without invalidating the
remaining provisions hereof or thereof. The Loan Documents shall be binding
upon and inure to the benefit of the Company and CoBank and their respective
successors and assigns, except that the Company may not assign or transfer
its rights or obligations under the Loan Documents without the prior written
consent of CoBank.
SECTION 15. NOTICES. All notices provided for herein shall be in
writing (including facsimile) and shall be mailed or delivered to the
following addresses or facsimile numbers or to such other address or
facsimile number as either party may specify by notice to the other: (a) If
to CoBank, to Attention: Credit Information Services, X.X. Xxx 0000, Xxxxxx,
Xxxxxxxx 00000, Fax No.: (000) 000-0000; and (b) if to the Company, to
Attention: President, 000 Xxxxxxx Xxx., Xxxxx, Xxxxx Xxxxxx 00000, Fax No:
(000) 000-0000.
SECTION 16. TAXES AND EXPENSES. To the extent allowed by law, the
Company agrees to pay all reasonable out-of-pocket costs and expenses
(including the fees and expenses of counsel retained by CoBank) incurred by
CoBank in connection with the origination, administration, collection, and
enforcement of this agreement and the other Loan Documents, including,
without limitation, all costs and expenses incurred in perfecting,
maintaining, determining the priority of, and releasing any security for the
Company's obligations hereunder or under any Supplement and any stamp,
intangible, transfer, or similar tax payable in connection with this
agreement or any other Loan Document.
SECTION 17. NOTICE OF COMPLETION. The Company irrevocably appoints
CoBank as the Company's agent to file of record any notice of completion,
cessation of labor or any other notice that CoBank deems necessary to file to
protect any of the interests of CoBank. CoBank, however, shall have no duty
to make such filing.
SECTION 18. SIGNS AND PUBLICITY. At CoBank's request, the Company
will allow CoBank to post signs on the Property at the construction site for
the purpose of identifying CoBank as the "Construction Lender." At the
request of CoBank, the Company will use its best efforts to identify CoBank
as the construction lender in publicity concerning the project.
SECTION 19. COOPERATION. The Company will cooperate at all times
with CoBank in bringing about the timely completion of the Improvements, and
the Company will resolve all disputes arising during the work of construction
in a manner which will allow work to proceed expeditiously.
IN WITNESS WHEREOF, the parties have caused this agreement to be
executed by their duly authorized officers as of the date shown above.
CoBANK, ACB SOUTH DAKOTA SOYBEAN PROCESSORS
By: By: /s/ Xxxxxx Xxxxx
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Title: Title: CFO
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