Exhibit 10.26
LOAN AGREEMENT
between
Xxxxx, Inc.
LENDER
and
Red Trail Energy, LLC.
BORROWER
Dated: FEBRUARY 28, 2006
LOAN AGREEMENT
THIS LOAN AGREEMENT is entered into as of this _____ day of FEBRUARY, 2006, by
and between RED TRAIL ENERGY, LLC, a North Dakota limited liability company
(herein "BORROWER"), and XXXXX, INC., a Minnesota corporation (herein "LENDER").
WHEREAS, Borrower desires Lender to loan to Borrower an amount not to
exceed One Million Dollars ($1,000,000) to be used by Borrower for the purpose
of constructing a ethanol production facility in or near Richardton, North
Dakota (the "PROJECT"), and Lender is willing to make the loan, all upon the
terms, conditions, security, commitments, promises and undertakings set forth
below; and
WHEREAS, this Loan Agreement, together with the other Loan Documents (as
hereinafter defined), shall set forth the rights, duties, and obligations of the
parties with respect to amounts borrowed hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the benefits to be derived herefrom and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1. DEFINITIONS.
1.1 Certain Definitions. As used herein, the following terms have the
following definitions, unless otherwise defined herein, or the context
clearly requires otherwise.
"AGENT" means ICM, as agent for Lender, ICM, and GREENWAY under the terms
of the Collateral Agreement, or any successor agent thereunder.
"APPLICABLE RATE" means the fluctuating per annum rate of interest utilized
under the Construction Loan Agreement, as determined from time to time, plus two
percent (2%).
"AVAILABLE FUNDS" means (I) DEBT SERVICE PAYMENTS, (II) any contributions
to the capital of Borrower made after the date of this Loan Agreement, or (III)
any other amounts TO BE PAID BY BORROWER TO LENDER THAT HAVE BEEN authorized by
FNBO pursuant to the Construction Loan Agreement OR THE SUBORDINATION AGREEMENT.
"CLOSING" means the date of execution and delivery of this Loan Agreement.
"COLLATERAL" means the Property which is provided as security for the
Indebtedness of Borrower hereunder.
"COLLATERAL AGREEMENT" means that certain Collateral and Agency Agreement
dated as of FEBRUARY ____, 2006 by and among Lender, ICM, and Green Way.
"CONSTRUCTION LOAN AGREEMENT" means that certain Construction Loan
Agreement dated December 15, 2005, by and between Borrower, as borrower, and
FNBO, as lender.
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"DEFAULT" means and refers to an event that with notice or with the passage
of time or both would constitute an Event of Default.
"DEBT SERVICE PAYMENTS" MEANS, WITH RESPECT TO ANY PERIOD, ANY PAYMENTS
RECEIVED BY AGENT IN PAYMENT OF ANY CASH INTEREST PAYMENTS (WHETHER STATED
INTEREST OR DEFAULT INTEREST), PRINCIPAL PAYMENTS, LATE CHARGES, AND OTHER
CHARGES WITH RESPECT TO ANY SUBORDINATE LOAN REQUIRED TO BE PAID DURING SUCH
PERIOD.
"EVENT OF DEFAULT" has the meaning ascribed to such term in ARTICLE 8 of
this Loan Agreement.
"FINANCING STATEMENTS" means collectively, all financing statements, if
any, executed or to be executed by Borrower, to perfect or to continue the
perfection of any security interests granted to Lender in any Collateral
securing the Loan.
"FNBO" means First National Bank of Omaha, a national banking association
established at Omaha, Nebraska.
"FNBO LOAN" means the loan made by FNBO to Borrower pursuant to the
Construction Loan Agreement.
"GAAP" means generally accepted accounting principles, consistently
applied, as in effect at the time of application of the provisions hereof.
"GOVERNMENTAL REQUIREMENTS" means the duties, requirements or other
obligations imposed by applicable laws, rules, regulations or ordinances.
"GREEN WAY" means Green Way Consulting, LLC, a Minnesota limited liability
company.
"GREENWAY LOAN" means a loan made by GreenWay to Borrower in an amount not
to exceed One Million Five Hundred Twenty-Five Thousand Dollars ($1,525,000).
"GREENWAY LOAN DOCUMENTS" means those agreements, instruments and other
documents that evidence or secure the GreenWay Loan.
"ICM" means ICM, Inc., a Kansas corporation.
"ICM LOAN" means a loan made by ICM to Borrower in an amount not to exceed
Three Million Dollars ($3,000,000).
"ICM LOAN DOCUMENTS" means those agreements, instruments and other
documents that evidence or secure the ICM Loan.
"INDEBTEDNESS" means all present and future indebtedness, obligations and
liabilities, or any part thereof, of Borrower now existing or hereafter arising
under or in connection with this Loan Agreement, the Promissory Note or any of
the other Loan Documents (specifically including, without limitation, the
principal amount outstanding under the Promissory Note), together with (a) all
interest accrued thereon; and (b) all costs, charges, commissions, reasonable
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attorneys' fees and expenses owing and to become owing in connection with the
enforcement and collection of the foregoing obligations and indebtedness, and
those owing to or to become owing in connection with the repossession,
operation, maintenance, preservation or foreclosure of any Collateral,
regardless of whether such indebtedness, obligations and liabilities are direct,
contingent, fixed, liquidated, unliquidated, joint, several or joint and
several. The Indebtedness shall include all renewals, extensions, modifications,
rearrangements and replacements of any of the above-described obligations and
indebtedness. Indebtedness shall not include any amounts due under the Other
Loan Documents.
"INDEMNIFIED PERSON" has the meaning set forth in Section 6.7.
"LIEN" means, any mortgage, lien, pledge, charge, security interest,
assignment or encumbrance of any kind.
"LOAN AGREEMENT" means and refers to this loan agreement executed by
Borrower and Lender, as the same may at any time and from time to time be
amended, extended, modified, renewed, restated or supplemented.
"LOAN DOCUMENTS" means and refers to this Loan Agreement, the Promissory
Note, the Collateral Agreement, the Security Documents, together with all other
documents or instruments contemplated therein as any of them may at any time and
from time to time be amended, extended, modified, renewed, restated or
supplemented.
"LOAN" means the amount loaned by Lender to Borrower pursuant to this Loan
Agreement in connection with the Project.
"MATERIAL ADVERSE EFFECT" means an effect resulting from any circumstance
or event of whatever nature (including, but not limited to, the filing of, or
any adverse determination or development in, any litigation, arbitration or
governmental investigation or proceeding) which (a) has any adverse effect
whatsoever upon the ability of Lender to enforce any material provisions of any
of the Loan Documents; (b) is material and adverse to financial condition or
other property of Borrower; or (c) impairs the ability of Borrower to fulfill
any material obligation under the Loan Documents.
"MATURITY DATE" means the date all amounts due and owing by Borrower to
First National Bank of Omaha under the Construction Loan Agreement are paid in
full or, if earlier, the date that is sixty-one (61) months after the date of
this Loan Agreement.
"MORTGAGE" means that certain mortgage, assignment of rents, security
agreement, and fixture financing statement executed by Borrower in favor of
Agent, which encumbers the Property and secures the Promissory Note and the
Other Loan Documents.
"OTHER LOAN DOCUMENTS" means, collectively, the GreenWay Loan Documents
and the ICM Loan Documents.
"PAYMENT PERCENTAGE" MEANS, FOR SO LONG AS NO SUBORDINATED LOAN HAS BEEN
PAID IN FULL: WITH RESPECT TO ICM, FORTY-FIVE PERCENT (45%); WITH RESPECT TO
GREENWAY, TWENTY-SEVEN AND ONE HALF PERCENT (27.5%); AND WITH RESPECT TO LENDER,
TWENTY-SEVEN AND ONE-HALF
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PERCENT (27.5%). ONCE THE LOAN OR THE GREENWAY LOAN HAS BEEN PAID IN FULL, THE
PAYMENT PERCENTAGE SHALL BE TWO-THIRDS (2/3) TO ICM AND ONE-THIRD (1/3) TO
GREENWAY OR LENDER, WHICHEVER IS REMAINING, OR IF THE ICM LOAN IS PAID IN FULLY
PRIOR TO THE PAYMENT IN FULL OF THE GREENWAY LOAN AND THE LOAN, THEN THE PAYMENT
PERCENTAGE SHALL BE ONE-HALF (1/2) TO GREENWAY AND ONE-HALF (1/2) TO LENDER.
ONCE THE LOANS OF TWO OF THE PARTICIPANTS HAVE BEEN PAID IN FULL, THEN THE
PAYMENT PERCENTAGE SHALL BE 100% TO THE REMAINING PARTICIPANT.
"PARTICIPATION PERCENTAGE" MEANS THE PERCENTAGE AMOUNT THAT THE OUTSTANDING
PRINCIPAL BALANCE OF A SUBORDINATED LENDER'S SUBORDINATE LOAN BEARS TO THE
AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF ALL OF THE SUBORDINATE LOANS.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PROPERTY" means and refers to the following property, rights, interests
and estates now owned, or hereafter acquired, by Borrower:
(a) Land. The real property described in Exhibit A attached hereto and
made a part hereof (collectively, the "LAND"), together with all
additional lands and estates therein which may, from time to time, by
supplemental mortgage be expressly made subject to the lien of this
Mortgage.
(b) Improvements. The buildings, structures, fixtures, additions,
accessions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter erected or located on
the Land (the "IMPROVEMENTS");
(c) Easements. All easements, rights-of-way or use, rights, strips and
gores of land, streets, ways, alleys, passages, sewer rights, water,
water courses, water rights and powers, air rights and development
rights, and all estates, rights, titles, interests, privileges,
liberties, servitudes, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way now or hereafter belonging, relating
or pertaining to the Land and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of
any street, road or avenue, opened or proposed, in front of or
adjoining the Land, to the center line thereof and all the estates,
rights, titles, interests, property, possession, claim and demand
whatsoever, both at law and in equity, of Borrower of, in and to the
Land and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
(d) Fixtures and Personal Property. All machinery, equipment, goods,
inventory, fixtures (including, but not limited to, all heating, air
conditioning, plumbing, lighting) and other property of every kind and
nature whatsoever owned by Borrower, or in which Borrower has or shall
have an interest, now or hereafter located upon the Land and the
Improvements, or appurtenant thereto, and usable in connection with
the present or future use, maintenance, enjoyment, operation and
occupancy of the Land and the Improvements and all building equipment,
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materials and supplies of any nature whatsoever owned by Borrower, or
in which Borrower has or shall have an interest, now or hereafter
located upon the Land and the Improvements, or appurtenant thereto, or
usable in connection with the present or future operation and
occupancy of the Land and the Improvements and the right, title and
interest of Borrower in and to any of the Personal Property (as
hereinafter defined) which may be subject to any security interests,
as defined in the Uniform Commercial Code, as adopted and enacted by
the state or states where any of the Property is located ("UNIFORM
COMMERCIAL CODE"), superior in lien to the lien of this Mortgage and
all proceeds and products of the above;
(e) Leases and Rents. All leases and other agreements affecting the use,
enjoyment or occupancy of the Land and the Improvements heretofore or
hereafter entered into, (individually, a "LEASE"; collectively, the
"LEASES") and all right, title and interest of Borrower, its
successors and assigns therein and thereunder, including, without
limitation, cash or securities deposited thereunder to secure the
performance by the lessees of their obligations thereunder and all
rents (including all tenant security and other deposits), additional
rents, revenues, issues and profits (including all oil and gas or
other mineral royalties and bonuses) from the Land and the
Improvements whether paid or accruing before or after the filing by or
against Borrower of any petition for relief under the Bankruptcy Code
(collectively the "RENTS") and all proceeds from the sale or other
disposition of the Leases and the right to receive and apply the Rents
to the payment of the Indebtedness;
(f) Condemnation Awards. All awards or payments, including interest
thereon, which may heretofore and hereafter be made with respect to
the Property, whether from the exercise of the right of eminent domain
(including but not limited to any transfer made in lieu of or in
anticipation of the exercise of the right), or for a change of grade,
or for any other injury to or decrease in the value of the Property;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any
insurance policies covering the Property, including, without
limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage
to the Property;
(h) Tax Certiorari. All refunds, rebates or credits in connection with a
reduction in real estate taxes and assessments charged against the
Property as a result of tax certiorari or any applications or
proceedings for reduction;
(i) Conversion. All proceeds of the conversion, voluntary or involuntary,
of any of the foregoing including, without limitation, proceeds of
insurance and condemnation awards, into cash or liquidation claims;
(j) Rights. The right, in the name and on behalf of Borrower, to appear in
and defend any action or proceeding brought with respect to the
Property and to commence
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any action or proceeding to protect the interest of Lender in the
Property;
(k) Agreements. All agreements, contracts (including purchase, sale,
option, right of first refusal and other contracts pertaining to the
Property), certificates, instruments, franchises, permits, licenses,
approvals, consents, plans, specifications and other documents, now or
hereafter entered into, and all rights therein and thereto, respecting
or pertaining to the use, occupation, construction, management or
operation of the Property (including any Improvements or respecting
any business or activity conducted on the Land and any part thereof)
and all right, title and interest of Borrower therein and thereunder,
including, without limitation, the right, upon the happening of any
default hereunder, to receive and collect any sums payable to Borrower
thereunder;
(l) Trademarks. All tradenames, trademarks, servicemarks, logos,
copyrights, goodwill, books and records and all other general
intangibles relating to or used in connection with the operation of
the Property;
(m) Accounts. All accounts, accounts receivable, documents, instruments,
chattel paper, deposit accounts, investment property, claims, reserves
(including deposits) representations, warranties, and general
intangibles, as one or more of the foregoing terms may be defined in
the Uniform Commercial Code, and all contract rights, franchises,
books, records, plans, specifications, permits, licenses (to the
extent assignable), approvals, actions, choses, commercial tort
claims, suits, proofs of claim in bankruptcy and causes of action
which now or hereafter are owned by Borrower and relate to, or are
derived from or are used in connection with the Property, or the use,
operation, maintenance, occupancy or enjoyment thereof or the conduct
of any business or activities thereon; and
(n) Other Rights. Any and all other rights of Borrower in and to the
Property and any accessions, renewals, replacements and substitutions
of all or any portion of the Property and all proceeds derived from
the sale, transfer, assignment or financing of the Property or any
portion thereof.
"PROMISSORY NOTE" means that certain promissory note executed by Borrower
to the order of Lender on the __day of FEBRUARY, 2006 in the principal
amount of not to exceed $1,000,000.00, including any and all promissory notes
given in renewal, extension, modification, restatement, rearrangement or
replacement of the Promissory Note.
"SECURITY DOCUMENTS" shall mean any agreement, instrument or document
(including, but not limited to the Mortgage and Financing Statements) that
secures Borrower's obligations under the Promissory Note and this Loan
Agreement.
"SUBORDINATED LENDER" MEANS ANY OF LENDER, GREEN WAY, AND ICM.
"SUBORDINATED LOANS" MEANS THE LOAN, THE GREEN WAY LOAN AND THE ICM LOAN.
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"SUBORDINATION AGREEMENT" means that certain subordination agreement
between Borrower, Lender, FNBO, ICM and Green Way dated DECEMBER 15, 2005.
1.2 Titles. Underlined titles to sections have been included for
convenience only and shall not define, affect or limit any of the terms or
provisions of this Loan Agreement and shall be disregarded in construing
the language of any such term or provision.
1.3 Capitalized Terms. Capitalized terms used herein shall have the
same meaning given to such terms in the other Loan Documents unless
otherwise defined herein or the context clearly indicates otherwise.
ARTICLE 2. THE LOAN.
2.1 Loan Facility. Subject to and upon the terms, covenants and
conditions of this Loan Agreement, Lender agrees that it shall make a Loan
in a principal amount that does not exceed One Million Dollars
($1,000,000). The Loan shall be evidenced by the Promissory Note and the
other Loan Documents.
2.2 Repayment of Loan.
(a) Prior to the Maturity Date. Borrower shall repay the principal amount of
the Loan from Available Funds as hereinafter provided, and shall also pay
accrued interest thereon in quarterly payments on the first day of January,
April, July and October of each year. Such interest payments shall commence
on the 1st day of April, 2006. The remaining outstanding principal balance
and all accrued but unpaid interest shall become due and payable on the
Maturity Date. In addition to the amounts being loaned by FNBO and Lender,
Borrower is borrowing an amount not to Three Million Dollars ($3,000,000)
from ICM under the terms of the ICM Loan Documents and an amount not to
exceed One Million Five Hundred Twenty-Five Thousand Dollars ($1,525,000)
from GreenWay under the terms of the GreenWay Loan Documents.
(b) Upon each and every date Borrower obtains Available Funds, Borrower shall
pay out such Available Funds within five (5) business days thereafter to
the Agent, who shall distribute such payment of Available Funds to Lender,
ICM, and GREENWAY pursuant to the terms of the Collateral Agreement. The
terms of the Collateral Agreement provide as follow:
(i) the Agent shall distribute SUCH AVAILABLE FUNDS CONSISTING OF PAYMENTS
OF INTEREST TO THE SUBORDINATE LENDERS PARI PASSU IN ACCORDANCE WITH
THE SUBORDINATE LENDERS' RESPECTIVE PARTICIPATION PERCENTAGES.
(II) THE AGENT SHALL DISTRIBUTE SUCH AVAILABLE FUNDS CONSISTING OF PAYMENTS
OF PRINCIPAL TO THE SUBORDINATE LENDERS PARI PASSU IN ACCORDANCE WITH
THE SUBORDINATE LENDERS' RESPECTIVE PAYMENT PERCENTAGES.
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(iii) THE AGENT SHALL DISTRIBUTE SUCH AVAILABLE FUNDS CONSISTING OF
EXTRAORDINARY PAYMENTS TO THE PARTICIPANTS PARI PASSU IN ACCORDANCE
WITH THE PARTICIPANTS' RESPECTIVE PARTICIPATION PERCENTAGES.
(c) Payments of Available Funds received by Lender under the terms of this of
Section (REGARDLESS OF HOW CLASSIFIED BY THE AGENT) shall be applied to
first to amounts other than interest and principal that are due hereunder,
second to accrued but unpaid interest, and then third to principal. Any
payment of principal on the Loan shall be evidenced by notations on the
books and records of Lender. If requested by Borrower from time to time,
Lender shall deliver a statement of account to Borrower setting forth the
unpaid principal balance of the Loan. Such statement shall (absent clerical
error) be deemed conclusively correct and accepted by Borrower unless
Borrower notifies Lender to the contrary in writing within five (5)
business days following delivery of such statement. Upon receipt of the
payment or prepayment by Borrower of any portion of the Loan, Lender is
hereby authorized to record the date and amount of each such payment or
prepayment on its books and records, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so
recorded, absent manifest error. The failure of Lender to make any such
notation shall not affect in any manner or to any extent Borrower's
obligations hereunder.
(d) The obligation of Borrower to repay the principal amount of the Loan
together with interest thereon shall be further evidenced by the Promissory
Note. Interest shall accrue on the principal amount of the Loan from the
date of advance until the Maturity Date at a rate equal to the Applicable
Rate. Lender's calculation of the applicable interest accrued on the Loan
shall constitute prima facie evidence of the accuracy of the amount of
interest calculated, absent manifest error.
2.3 No Prepayment Charge. Borrower may make prepayments of principal
at any time and from time to time without the payment of a prepayment
charge; provided that such prepayments shall be deemed to be Available
Funds to be distributed pursuant to the Collateral Agreement and Section
2.1(b).
2.4 Renewal and Extension. Any renewal or extension of the Promissory
Note (or any advance made pursuant to the terms of such renewed or extended
Promissory Note) shall be subject to the terms of this Loan Agreement and
the other Loan Documents. Lender is under no obligation to renew or extend
the term of any Indebtedness when it matures.
2.5 Reinstatement of Debt. If and to the extent Lender must deliver to
FNBO a payment received from Borrower pursuant to the terms of the
Subordination Agreement, Borrower will not be credited for the payment so
turned over and the Indebtedness owing to Lender shall be adjusted
accordingly.
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ARTICLE 3. CONDITIONS TO CLOSING.
3.1 Conditions Precedent to Lender's Obligations under the Loan
Documents. Lender shall have no obligation under the Loan Documents unless
the following conditions have been satisfied:
(a) Borrower shall have delivered to Lender duly and properly executed
originals of the Loan Documents;
(b) Borrower shall have delivered certified (as of the date of this Loan
Agreement) copies of all corporate action taken by Borrower, authorizing
the execution, delivery and performance of the Loan Documents and each
other document contemplated to be delivered pursuant to the Loan Documents;
(c) Lender shall have received current certificates of good standing for
Borrower issued by the Secretary of State of the state in which Borrower is
doing business;
(d) Borrower shall have delivered current UCC search results showing the
Collateral is free and clear of any lien, encumbrance or security interest,
other than the lien of the Agent and the mortgage securing the FNBO Loan,
and demonstrated to Lender's satisfaction that Borrower owns the
Collateral;
(e) Borrower shall have delivered its opinion of counsel concluding the Loan
Documents are binding and enforceable in accordance with their terms and
addressing such other matters as Lender may request;
(f) Borrower shall have delivered a commitment for title insurance proposing to
insure the Lien of the Mortgage, subject only to (x) the mortgage securing
the FNBO Loan, and (y) easements and restrictions of record which are
acceptable to Lender, but if title insurance is not available, an
attorney's opinion of title, abstract of title or such other title evidence
satisfactory to Lender confirming the priority of the lien of the Mortgage
as aforesaid shall be furnished at Borrower's expense;
(g) The Mortgage and the Financing Statement shall have been properly filed of
record, and Borrower shall have paid all applicable recording costs, filing
fees, stamp taxes and the like;
(h) Borrower and Lender shall have entered into an Design-Build Lump Sum
Contract under which Lender is to design and construct the Project; and
(i) LENDER and ICM shall have entered into an agreement under which ICM is to
provide certain services in connection with the design and construction of
a coal fired steam generation system and a distillers grain steam dryer
system for the Project;.
(j) Borrower and ICM shall have entered into the ICM Loan Documents on terms
acceptable to Lender.
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(k) Borrower and Green Way shall have entered into the Green Way Loan Documents
on terms acceptable to Lender; and
(l) Lender, ICM, FNBO, Green Way and Borrower shall have entered into the
Subordination Agreement with respect to the loans each such lender shall
make to Borrower, on terms acceptable to Lender; and
(m) Borrower shall have entered into the Construction Loan Agreement with FNBO,
on terms acceptable to Lender.
3.2 Actions by Lender. No action taken by Lender, including the
advancement of funds hereunder, prior to Borrower's satisfaction of the
above requirements, shall be deemed a waiver of Lender's right to require
full compliance with all conditions.
ARTICLE 4. ADVANCE UNDER THE LOAN.
4.1 Borrower's Right to Advance under the Loan. Lender shall be
obligated to disburse or advance any funds under the Loan only if the
following conditions have been satisfied as of the date of the request for
the Loan:
(a) Closing shall have previously occurred;
(b) All representations and warranties made herein shall be true and correct in
all material respects as of the date of the Borrower's deemed request for
the Loan;
(c) No Default or Event of Default shall have occurred and be continuing; and
(d) Borrower shall have performed or caused to be performed the conditions of
Section 3.1 above applicable to the requested Loan.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants, and so long as any Indebtedness from
Borrower to Lender remains unpaid or this Loan Agreement remains in effect,
continuously represents and warrants as follows:
5.1 Due Organization. Borrower is a duly organized and validly
existing limited liability company under the laws of the State of North
Dakota and is duly qualified to transact business and is in good standing
in that State and in each jurisdiction where the nature and extent of its
business and property require same. Borrower has the authority to own its
properties and carry on its businesses as they are now and will be
conducted.
5.2 Due Authority. All actions necessary or required to be taken by
Borrower for the execution, delivery and performance by Borrower of the
Loan Documents have been duly authorized and taken by Borrower.
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5.3 Enforceability against Borrower. This Loan Agreement and the other
Loan Documents constitute legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms.
5.4 No Conflict. The execution and delivery of the Loan Documents by
Borrower do not conflict with or constitute on the part of Borrower a
breach of, or default under any of the terms, conditions, provisions, or
restrictions of any other promissory note, mortgage or loan agreement, or
of any partnership agreement or any other agreement, articles of
incorporation, by-laws, lease or other instrument to which Borrower is
subject or by which Borrower may be bound.
5.5 Financial Statements. All balance sheets, income statements,
accounts receivable aging reports, inventory reports and other financial
information of Borrower which may hereafter be furnished to Lender present
fairly the financial condition and results of Borrower's operations, as of
the date and for the periods shown and have been and will be prepared in
conformity with the standards established by AICPA and in accordance GAAP
or such other basis of accounting as is acceptable to Lender.
5.6 Litigation. There is no action, suit, proceeding, inquiry, or
investigation at law or in equity or before or by any court, public board
or body pending or threatened against or affecting Borrower, nor, to the
best of Borrower's knowledge, does there exist any basis upon which any
such action, suit, proceeding, inquiry or investigation could be instituted
which could result in an unfavorable decision, ruling, or finding which
would in any way materially adversely affect Borrower, Borrower's
operations, the transactions contemplated in the Loan Documents or create a
Lien on the Property.
5.7 Statutory Compliance. Borrower and the Collateral are each in
compliance in all material respects with all Governmental Requirements.
5.8 Ownership of the Property and Collateral. Borrower has marketable
title in and to the Property and the Collateral, subject only to the Lien
and security interest of Lender pursuant to the Loan and the Lien of the
mortgage securing the FNBO Loan.
ARTICLE 6. COVENANTS AND AGREEMENTS.
Borrower hereby covenants and agrees, and so long as any Indebtedness from
Borrower to Lender remains unpaid or this Loan Agreement remains in effect,
continuously covenants and agrees as follows:
6.1 Payment of Indebtedness. Borrower will pay the Indebtedness at the
time and in the manner provided in the Loan Documents, or as provided in
any other instruments, agreements or documents evidencing the obligations
of Borrower to Lender. In addition, Borrower will timely pay the
obligations owed on the FNBO Loan.
6.2 Maintain Good Standing. Borrower is and shall remain a limited
liability company in good standing under the laws of the State of North
Dakota and any other state in which qualification may be necessary.
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6.3 Maintain System of Accounting; Provide Financial Information.
Borrower shall maintain its books and records and system of accounting in
accordance with GAAP or such other basis of accounting as is acceptable to
Lender, so that at any time and from time to time the true and complete
financial condition of Borrower is presented fairly and may be readily
determined, and, at Lender's request, shall make such records available for
Lender's inspection. Borrower agrees to furnish to Lender within thirty
(30) days after the end of each calendar month (i) a balance sheet of
Borrower, as of the end of such period, and (ii) income statements and
statements of changes in cash flow for such period and year to date, all
prepared in accordance with GAAP, and all in reasonable detail. Following
completion of the Project, Borrower shall also furnish to Lender each
month, within thirty (30) days of the last day of each month end, a monthly
production report of Borrower's input and output amounts of corn usage,
coal usage, distillers dried grain, ethanol and CO(2) together with all
other monthly financial and operational information as may required by this
Loan Agreement. Borrower shall also furnish promptly to Lender, in such
form as Lender may reasonably request, such additional financial or other
information concerning the cash flow, income, assets, liabilities,
ownership, operations, corporate activities and meetings and transactions
of Borrower as may be requested by Lender from time to time, and permit
Lender to make and obtain copies of any such records or information.
6.4 Notice of Litigation. Borrower shall advise Lender promptly of any
claim or controversy which is or may become the subject of litigation
against Borrower or any Collateral, and whether such litigation or
potential litigation, in the event of an unfavorable outcome, could have a
Material Adverse Effect on Borrower's financial condition or operations.
6.5 Compliance with Governmental Requirements. Borrower shall timely
comply with all Governmental Requirements applicable to the Loan, any of
the Loan Documents, and all applicable organizational documents and other
agreements to which Borrower is a party and shall promptly deliver to
Lender evidence of such compliance upon request.
6.6 Notification of Defaults and Other Events. Borrower shall promptly
advise Lender in writing of any of the following occurrences or events as
they become known to Borrower, specifying in each case the action Borrower
has taken or caused to be taken, or proposes to take or cause to be taken,
with respect to the following:
(a) the occurrence of a Default or an Event of Default;
(b) any default by Borrower under any Governmental Requirement or in the
payment of any indebtedness (or in the performance of any obligation
related thereto) related to the Loan or the Loan Documents which could have
a Material Adverse Effect;
(c) any claim or controversy which is or may become the subject of litigation,
arbitration or governmental investigation which has been instituted or to
the knowledge of Borrower, is threatened against Borrower or any Collateral
which could have a Material Adverse Effect;
Loan Agreement
Page 12
(d) any damage or injury to the Collateral; or
(e) if the Project is no longer in operating condition.
6.7 Hold Harmless. Borrower shall protect, indemnify, hold harmless
and defend, at Borrower's own cost and expense. Lender, and its successors
and assigns (each, an "INDEMNIFIED PERSON"), from and against, and if and
to the extent paid, reimburse each such Indemnified Person for, any and all
losses, liabilities, claims, damages deficiencies, interest, judgments,
costs and expenses (including, but not limited to, all court costs and
reasonable attorneys' fees and expenses) of any and every kind and nature
arising out of or by reason of any representation or warranty made by
Borrower hereunder or under any of the other Loan Documents; Provided,
however, that nothing contained in this Section 6.7 shall be construed as
an agreement by Borrower to indemnify any Indemnified Person for any
Indemnified Person's (i) gross negligence or willful misconduct that
directly causes or results in the harm or loss being indemnified; or (ii)
any unexcused or unlawful breach by Lender of any of its obligations under
this Loan Agreement or any of the other Loan Documents. The indemnity
provided herein shall survive the expiration or earlier termination of the
Loan Documents.
6.8 Access to Borrower's Books and Records. At all times during normal
business hours, Borrower shall accord Lender and Lender's representatives
access to Borrower's books and records (wherever located), including those
electronically stored, for inspection and examination and shall permit
copies to be made of such books and records and make available a photocopy
facility for that purpose at Borrower's expense.
6.9 Costs and Expenses. Borrower has and will pay when due all costs
and expenses occurring after Closing in connection with the Loan,
including, but not limited to, all reasonable fees, expenses and
disbursements of Lender's counsel in connection with the amendment,
enforcement or defense of the Loan Documents, the granting or denial of any
waiver or consent hereunder or under the other Loan Documents or any other
matter or transaction contemplated by the Loan Documents.
6.10 Prompt Performance. So long as any portion of the Indebtedness
remains outstanding, Borrower shall promptly perform each and every
obligation of Borrower as set forth herein, in the other Loan Documents,
under the Construction Loan Agreement with FNBO, and under the Other Loan
Documents.
6.11 Insurance on the Collateral, So long as the Loan is outstanding,
Borrower shall keep and maintain casualty insurance on the Collateral,
which insurance shall name Lender as loss payee. The amount of insurance
shall be subject to Lender's approval, and Borrower shall provide evidence
that such insurance is in effect at all times.
6.12 Operate the Project. Until the Loan is paid in full or otherwise
retired as provided herein, Borrower covenants to continuously operate the
Project at Borrower's sole cost and expense.
Loan Agreement
Page 13
ARTICLE 7. BORROWER'S NEGATIVE COVENANTS.
Borrower hereby covenants that so long as any portion of the Indebtedness
remains outstanding and unpaid, Borrower will not, directly or indirectly, do
any of the following without the prior written consent of Lender:
7.1 Incur Or Make Additional Debt. Enter into any contract, guaranty,
indemnity or other agreement with another party which has the effect of
creating a monetary debt in favor of the other party, or enter into an
amendment, change, revision or other modification of the terms of the FNBO
Loan, the ICM Loan, or the Green Way Loan that has the effect of increasing
the indebtedness, extending the time for payment or granting other
collateral as security therefor. Borrower shall not make any loan, or
extend credit to, any person including but not limited to any officer,
manager, employee or member of Borrower.
7.2 Application of Funds. Apply the amounts borrowed under this Loan
Agreement to any purpose or use not expressly permitted under this Loan
Agreement other than toward payment of proper costs of constructing the
Project pursuant to the Design-Build Lump Sum Contract between Borrower and
Lender, as invoiced by Lender.
7.3 Change in Ownership. Sell, transfer or assign (or permit the sale,
transfer or assignment of) any interest in the beneficial ownership of
Borrower, or pledge or otherwise encumber (or permit any pledge or
encumbrance of) any interest in Borrower.
7.4 Use Violations. Use, maintain, operate or occupy or allow the use,
maintenance, operation or occupancy of the Property in any manner which (i)
violates the terms of the Loan Documents; (ii) may be dangerous unless
safeguarded as required by law; (iii) constitutes a public nuisance; (iv)
makes void, voidable or cancelable any insurance policy then in force with
respect thereto; or (v) makes void, voidable or cancelable any governmental
permit.
7.5 Distributions. Declare or make any distribution (whether cash or
property) to its members; provided, however, Borrower may make annual cash
distributions to its members not to exceed the lesser of (i) the estimated
federal, state and local income tax liability (excluding penalties and
interest) attributable to each member's proportionate share of the
Borrower's net taxable income, or (ii) the amount permitted under the
Construction Loan Agreement. Such estimated tax liability, which shall be
computed by the accountant who regularly prepares the Borrower's tax
returns, shall be computed on the basis of the highest marginal rate
applicable to individuals on capital gains and other taxable income for the
fiscal year in question.
7.6 Transfer Its Assets. Except in the ordinary course of its
business, sell or offer to sell or otherwise transfer or dispose of any of
Borrower's assets including the Project or any interest therein.
7.7 Other Covenants. Do or cause to be done any act which would result
in a breach of any of the Loan Documents.
Loan Agreement
Page 14
ARTICLE 8. EVENTS OF DEFAULT.
The occurrence of any one or more of the following shall constitute an "EVENT OF
DEFAULT" hereunder:
8.1 Failure to Make Payment. The failure of Borrower to pay, when due,
any amount then owing by Borrower to Lender, which failure continues,
without cure, for ten (10) days from the date notice of such failure is
provided by Lender to Borrower.
8.2 Default on the Agreement with Lender or ICM. Default in the
performance by Borrower of any of the terms or obligations on its part to
be performed under any agreement with Lender or ICM which default is not
timely cured to the satisfaction of Lender or ICM, as the case may be,
including without limitation the agreements referenced in clauses (h) and
(j) of section 3.1.
8.3 Failure to Make Payment or Discharge Obligations on Other
Indebtedness. Default in the payment when due (subject to applicable grace
periods), whether by acceleration or otherwise, of any other indebtedness
or undertaking of Borrower, or default in the performance or observance of
any obligation or condition with respect to any such other indebtedness or
undertaking, if the effect of such default is to accelerate the maturity of
such other indebtedness or undertaking or to permit the holder(s) thereof,
or any trustee or agent for such holder(s), to cause such other
indebtedness or undertaking to become due and payable prior to its
expressed maturity.
8.4 Failure to Discharge Obligations. The failure of Borrower to
promptly, punctually and faithfully perform or discharge any of its
covenants, agreements or obligations (excluding payment obligations) under
any of the Loan Documents and such failure continues, without cure, for
more than thirty (30) days from the date notice of such failure is provided
by Lender to Borrower.
8.5 Misrepresentation. The reasonable determination by Lender that any
representation or warranty now or hereafter made by Borrower to Lender,
whether in the Loan Documents or otherwise, was not true or correct when
given in any material respect, and Borrower is unable to correct, cure or
make true such representation or warranty within twenty (20) days from the
date notice thereof is provided by Lender to Borrower.
8.6 Governmental Action. Any Governmental Authority or any other
person takes or institutes action, which in the reasonable opinion of
Lender, will have a Material Adverse Effect on Borrower, Borrower's
operations, or Borrower's ability to repay the Loan, and such governmental,
public or private action continues, without cure, for more than twenty (20)
days from the date notice thereof is provided by Lender to Borrower.
8.7 Business Failure. Dissolution, termination of existence,
insolvency, business failure, or suspension of business on the part of
Borrower, the filing of a petition for the appointment of a receiver or the
appointment of a receiver for all or any part of Borrower's property,
assignment for the benefit of creditors or commencement of any proceedings
under any bankruptcy or insolvency laws by or against Borrower.
Loan Agreement
page 15
8.8 Service of Process. Service of any order of attachment,
garnishment, or levy or the existence or the making or issuance of any tax
lien or similar process on or with respect to any of Borrower's property,
which has not been released, or collection, execution or similar process
stayed for a period within of thirty (30) days.
8.9 Judgment. The entry of any judgment or order against Borrower,
which judgment or order is not satisfied or appealed from (with execution
or similar process o stayed) within ten (10) days of the entry of such
judgment.
8.10 Sell. Transfer or Dispose of the Collateral. The sale, transfer,
assignment, mortgage or other disposition of any of the Collateral without
Lender's prior written consent.
ARTICLE 9. RIGHTS AND REMEDIES UPON DEFAULT.
9.1 Remedies upon Default. Upon the occurrence of an Event of Default,
Lender, acting by or through agents, receivers, trustees or otherwise
(including, but not limited to the Agent) without further notice
(including, without limitation, notice of default, notice of intent to
accelerate or of acceleration) except for any notice that is expressly
required herein, and without demand, presentment, protest or action of any
nature whatsoever all of which are hereby waived by Borrower, and in
addition to any other provision in the Loan Documents may exercise any or
all of the following rights, remedies and recourses:
(a) Declare the unpaid principal balance of the Promissory Note, the accrued
and unpaid interest thereon and any other accrued but unpaid portion of the
Indebtedness to be immediately due and payable, whereupon the same shall
become immediately due and payable; provided, however, that if accelerated
pursuant to this sentence, the Promissory Note and all such Indebtedness
may be reinstated at the option and upon the written approval of Lender.
(b) Reduce any claim to judgment.
(c) Perform and discharge each and every obligation, covenant, condition and
agreement of Borrower under any of the Loan Documents (provided that Lender
shall not have any obligation to perform or discharge any such obligation),
and, in exercising any such powers, to pay necessary costs and expenses,
employ counsel and incur and pay reasonable attorneys' fees and expenses.
Lender shall not be obligated to perform or discharge, nor does it hereby
undertake to perform or discharge, any obligation, duty or liability of
Borrower by reason of this Loan Agreement, it being agreed that Lender
shall be treated as agreeing to perform or discharge such obligation, duty
or liability if (but only if) Lender shall expressly so elect, by sending
written notice to the other contracting party to such documents.
(d) Lender may proceed by a suit or suits in equity or at law for a judicial or
strict foreclosure hereunder, or for the specific performance of any
covenant or agreement herein contained, or in aid of the execution of any
power herein granted.
Loan Agreement
Page 16
(e) Lender, its agents or its representatives shall have the right to become
the purchaser at any sale held by Lender or by any receiver or public
officer, and Lender shall have the right to credit upon the amount of the
bid made therefor the amount payable out of the net proceeds of such sale
to Lender
(f) Exercise any and all other rights, remedies and recourses granted under any
of the Loan Documents (including but not limited to the Security Documents)
or otherwise now or hereafter existing in equity, at law, by virtue of
statute or otherwise.
9.2 Application of Proceeds After Default. All payments on the Loan
received by Lender during the existence of an Event of Default, and the
proceeds of any sale or disposition of the Collateral, and all proceeds
generated by Lender's exercise of its remedies herein set forth or under
any of the Loan Documents, shall be applied to the Indebtedness owing by
Borrower in such order and manner as Lender deems appropriate any
instructions from any other Person (including Borrower) notwithstanding.
9.3 Waivers. To the full extent permitted by law, Borrower hereby
irrevocably and unconditionally waives and releases:
(a) except as specifically provided for herein or in any of the other Loan
Documents, all notices of any Default or Event of Default or of any
election by Lender to exercise any right, remedy or recourse provided for
under the Loan Documents or of the actual exercise of any such right,
remedy or recourse;
(b) except as specifically provided for in any of the Loan Documents, any and
all right to receive demand, grace, notice, presentment for payment,
protest, notice of intention to accelerate the Indebtedness or notice of
acceleration of the Indebtedness.
9.4 Discontinuance of Proceedings. In case Lender shall have proceeded
to invoke any right, remedy, recourse or power permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Lender shall have the unqualified right to do so and, in such
event, Borrower and Lender shall be restored to their former positions with
respect to the Indebtedness, the Loan Documents, the Collateral and
otherwise, and the rights, remedies, recourses and powers of Lender shall
continue as if same had never been invoked.
ARTICLE 10. MISCELLANEOUS PROVISIONS.
Borrower acknowledges and agrees that the following provisions shall also apply
to this Loan Agreement:
10.1 Continuing Agreement. This is a continuing agreement and all the
rights, powers and remedies of Lender hereunder and all agreements and
obligations of Borrower and Lender shall continue to exist until all of the
Indebtedness is paid in full.
10.2 Failure to Give Notice and/or Cure. If any provision of the Loan
Agreement or any of the other Loan Documents provides for Lender to give to
Borrower
Loan Agreement
Page 17
or any other person liable on the Loan any notice and/or cure period
regarding an Event of Default, then, if Lender shall fail to give such
notice to Borrower or such other Person, the sole and exclusive remedy of
Borrower or such other person for such failure shall be to seek appropriate
equitable relief to enforce the agreement to give such notice and to have
any acceleration of the maturity of the Promissory Note enjoined, postponed
or revoked and foreclosure proceedings in connection therewith delayed or
terminated pending or upon the curing of such Event of Default in the
manner and during the period of time permitted by the Loan Agreement or the
applicable Loan Document, if any, and neither Borrower nor such other
person shall have any right to damages or any other type of relief against
Lender not herein specifically set forth, all of which damages or other
relief are hereby waived by Borrower. Borrower understands and agrees that
the term of any cure period granted in this Loan Agreement shall not be
increased by a similar cure period granted in any other Loan Document with
respect to the same default.
10.3 Defense of Actions. Lender may (but shall not be obligated to)
commence, appear in, or defend any action or proceeding purporting to
affect the Loan, or the respective rights and obligations of Lender and
Borrower pursuant to this Loan Agreement and the other Loan Documents.
Lender may (but shall not be obligated to) pay all necessary expenses,
including reasonable attorneys' fees and expenses incurred in connection
with such proceedings or actions, which Borrower agrees to repay to Lender
on demand.
10.4 No Modification. No modification, consent or waiver whatsoever of
any provision hereunder shall be effective unless in writing and approved
by Lender, and then only to the extent set forth in such writing.
10.5 Failure to Act. No act, delay, or omission of Lender to exercise
any right, remedy or power under the Loan Documents shall impair any such
right, remedy or power, or be construed to be a waiver of any Default or an
acquiescence therein; and any single or partial exercise of any such right,
remedy or power shall not preclude other and further exercise thereof, or
the exercise of any other right, remedy or power.
10.6 Rights Cumulative. The rights, remedies and powers provided in
the Loan Documents or otherwise are cumulative, and the exercise of any
particular right, remedy or power does not preclude the exercise of any
other right, remedy or power in addition to, or as an alternative of, such
remedy.
10.7 Limitation on Interest. Notwithstanding anything herein or in the
other Loan Documents, expressed or implied, to the contrary, in no event
shall any interest rate charged hereunder, under the Promissory Note or any
of the other Loan Documents, or any interest contracted for, collected or
received by Lender exceed the maximum interest rate allowed by applicable
law. It is expressly stipulated and agreed to be the intent of Borrower and
Lender at all times to comply with the applicable law governing the maximum
rate or amount of interest payable on or in connection with any of the
Promissory Note and the Loan. If the applicable law is ever judicially
interpreted so as to render usurious any amount called for under either of
the Promissory Note or the Loan, or any other circumstance whatsoever, and
results in Lender having been paid any interest in
Loan Agreement
Page 18
excess of that permitted by applicable law, then it is the express intent
of Borrower and Lender that all excess amounts theretofore collected by
Lender be credited to the principal balance of said Promissory Note, or if
said Promissory Note has been or would thereby be paid in full, refunded to
Borrower, and the provisions of said Promissory Note and the other
applicable Loan Documents shall immediately be deemed to be reformed and
the amounts thereafter collectible hereunder and thereunder reduced,
without the necessity of the execution any new document, so as to comply
with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder or thereunder.
10.8 Provisions Severable. If any one or more of the provisions of
this Loan Agreement operates, in whole or in part, or if any one or more of
the provisions of this Loan Agreement would prospectively operate, in whole
or in part, to invalidate this Loan Agreement, then said provision or
provisions shall be deemed null and void, but shall not affect any other
provision of this Loan Agreement, and its remaining provisions shall in no
way be affected, prejudiced or disturbed thereby.
10.9 No Assignment by Borrower. Neither this Loan Agreement nor the
other Loan Documents may be assigned by Borrower without the express
written consent of Lender.
10.10 Borrower Additionally Bound. Borrower understands and agrees
that it is additionally bound by the terms and conditions of the other Loan
Documents, which such terms and provisions are incorporated herein and made
a part of this Loan Agreement. To the extent that any term or provision of
the other Loan Documents conflicts with a term or provision of this Loan
Agreement, the term or provision affording Lender the most security or the
greatest right shall control.
10.11 Binding Effect. This Loan Agreement and the other Loan Documents
shall be binding upon Lender and Borrower and inure to the benefit of their
respective representatives, successors and assigns.
10.12 No Agency. Unless expressly set forth herein or in the other
Loan Documents, nothing contained herein or in the other Loan Documents
shall be construed as creating an agency relationship between Borrower and
Lender. It is expressly agreed and understood that no party shall have the
right to act for or on behalf of any other party as the result of the
execution hereof or of the other Loan Documents.
10.13 Not a Joint Venture or Partnership. Nothing contained in any of
the Loan Documents shall be deemed to render Lender and Borrower partners
or joint venturers for any purpose.
10.14 Survival of Representations. All covenants, agreements,
undertakings, indemnities, representations and warranties made by the
Borrower herein will survive the delivery of the Loan Documents and the
making of the Loan, and any investigation at any time made by or on behalf
of Lender will not diminish Lender's right to rely thereon. All statements
contained in any certificate or other instrument delivered by or on behalf
of
Loan Agreement
page 19
the Borrower under or pursuant to the Loan Documents or in connection with
the transactions contemplated hereby shall constitute representations and
warranties made by the Borrower hereunder.
10.15 Further Assurances. Each party hereto agrees, from time to time
as may be reasonably requested by the other party hereto, to execute,
acknowledge, obtain and deliver such documents as may be required in order
to complete and effect the transactions contemplated by the Loan Documents.
10.16 Time. Time is of the essence with respect to Borrower's
obligations under the Loan Documents.
10.17 No Third Party Beneficiaries. Neither this Loan Agreement nor
the other Loan Documents create any rights to or for the benefit of any
person or persons not a party hereto or thereto.
10.18 Governing Law, Jurisdiction and Venue. This Loan Agreement shall
be governed by and construed in accordance with the laws of the State of
Minnesota. Borrower expressly agrees to jurisdiction and venue for any and
all legal proceedings filed in connection herewith in Hennepin County,
Minnesota.
10.19 Notice. All notices, requests and communications to any party
hereunder shall be in writing (including bank wire, telecopy or similar
writing), except for any telephone notices specifically provided for
herein, and may be personally served or sent by telecopier, registered or
certified mail or the express mail service of the United States Postal
Service, Federal Express or other equivalent overnight or expedited
delivery service.
Any such notice, request or other communication shall be deemed given and
received (i) if given by personal service, or telecopier (confirmed in writing)
twenty-four (24) hours after having been given; (ii) if sent by telecopier with
confirmation by telephone, upon receipt; (iii) if sent by registered or
certified mail, upon the earlier of (x) actual receipt, or (y) three (3) days
after deposit in a depository of the United States Postal Service, postage
prepaid; (iv) if sent by Federal Express, the express mail service of the United
States Postal Service or other equivalent overnight or expedited delivery
service, upon the earlier of (x) actual receipt or (y) twenty four (24) hours
after delivery to such overnight or expedited delivery service, delivery charges
prepaid and properly addressed. For the purposes hereof, the addresses of
Borrower and Lender shall be as set forth below.
If to Lender: Xxxxx, Inc.
Attn: XXXXXXXX XXXXXXX
X.X.Xxx 000
000 Xxxx Xxxxxxx 000
Xxxxxxx Xxxxx, XX 00000
Telecopier: (000) 000-0000
If to Borrower: Red Trail Energy, LLC
Loan Agreement
Page 20
Attn: Xxxx Xxxxxx
X.X. Xxx 00
0000 Xxx. 0 Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000)000-0000
Any party may, by proper written notice hereunder to the other party, change the
address to which notices shall thereafter be sent to it.
10.20 Counterparts. This Loan Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same agreement.
10.21 Acceptance by Lender. This Loan Agreement is not binding upon
Lender until accepted by Lender.
THIS LOAN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, ARE THE FINAL
EXPRESSION OF THE AGREEMENT BETWEEN LENDER AND BORROWER AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR OR CONTEMPORANEOUS ORAL AGREEMENT BETWEEN
US. LENDER AND BORROWER EACH HEREBY ACKNOWLEDGE AND AFFIRM THAT NO SUCH
UNWRITTEN, ORAL AGREEMENTS EXIST. EACH PARTY HERETO ACKNOWLEDGES THAT SUFFICIENT
SPACE HAS BEEN PROVIDED HEREIN, AND IN THE OTHER LOAN DOCUMENTS, FOR THE
PLACEMENT OF NONSTANDARD TERMS.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
Loan Agreement
Page 21
IN WITNESS WHEREOF, the parties have caused this Loan Agreement to be executed
and delivered as of the date and year first written above.
BORROWER:
RED TRAIL ENERGY, LLC
By: /s/ Xxxxxxx X Xxxx
------------------------------------
Name: Xxxxxxx X Xxxx
Its: President
ACCEPTED BY LENDER:
XXXXX, INC.
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Its: CEO-President
Loan Agreement
Page 22
SCHEDULE A
TO LOAN AGREEMENT
LEGAL DESCRIPTION OF PROJECT:
TRACT 1:
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER (SW1/4) OF SECTION 4, TOWNSHIP
139 NORTH, RANGE 92 WEST OF THE 5TH PRINCIPAL MERIDIAN, XXXXX COUNTY, NORTH
DAKOTA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ALL THAT PORTION OF SAID SOUTHWEST QUARTER LYING SOUTH OF THE SOUTHERLY 200 FOOT
RIGHT OF WAY LINE OF THE BURLINGTON NORTHERN / SANTA FE RAILROAD AS SURVEYED AND
CONSTRUCTED ACROSS SAID SOUTHWEST QUARTER OF SECTION 4, EXCEPT THE WEST 100.00
FEET AND THE SOUTH 850.00 FEET OF THE WEST 920.00 FEET OF SAID SOUTHWEST QUARTER
OF SECTION 4.
TRACT 2:
A TRACT OF LAND LOCATED IN THE SE1/4 OF SECTION 4, TOWNSHIP 139 NORTH, RANGE 92
WEST OF THE 5TH P.M., XXXXX COUNTY, NORTH DAKOTA, MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
ALL THAT PORTION OF SAID SE1/4 LYING SOUTH OF THE SOUTHERLY 200 FOOT RIGHT OF
WAY LINE OF THE BURLINGTON NORTHERN / SANTA FE RAILROAD AS SURVEYED AND
CONSTRUCTED ACROSS THE SAID SE1/4 OF SECTION 4.
TRACT 3:
A TRACT OF LAND LOCATED IN THE SOUTH HALF (S1/2) OF SECTION 4, TOWNSHIP 139
NORTH, RANGE 92 WEST OF THE 5TH PRINCIPAL MERIDIAN, XXXXX COUNTY, NORTH DAKOTA,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THE SOUTHERLY 150.00 FEET OF THE SOUTHERLY 200.00 FEET OF RIGHT OF WAY FOR THE
BURLINGTON NORTHERN / SANTA FE RAILROAD AS SURVEYED AND CONSTRUCTED ACROSS SAID
SOUTH HALF OF SECTION 4. SAID TRACT CONTAINS 16.87 ACRES.
TRACT 4:
A TRACT OF LAND LOCATED IN THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER (NE1/4
NE1/4) OF SECTION 9, TOWNSHIP 139 NORTH, RANGE 92 WEST OF THE 5TH PRINCIPAL
MERIDIAN, XXXXX COUNTY, NORTH DAKOTA, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
THE SOUTHERLY 150.00 FEET OF THE SOUTHERLY 200.00 FEET OF RIGHT OF WAY FOR THE
BURLINGTON NORTHERN / SANTA FE RAILROAD AS SURVEYED AND CONSTRUCTED ACROSS SAID
NORTHEAST QUARTER
Loan Agreement
Page A-1
OF THE NORTHEAST QUARTER OF SECTION 9. SAID TRACT CONTAINS 2.79 ACRES.
TRACT 5:
A TRACT OF LAND LOCATED IN THE NORTHWEST, NORTHEAST AND SOUTHEAST QUARTERS OF
SECTION 10, TOWNSHIP 139 NORTH, RANGE 92 WEST OF THE 5TH PRINCIPAL MERIDIAN,
XXXXX COUNTY, NORTH DAKOTA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
THE SOUTHERLY 150.00 FEET OF THE SOUTHERLY 200.00 FEET OF RIGHT OF WAY FOR THE
BURLINGTON NORTHERN / SANTA FE RAILROAD AS SURVEYED AND CONSTRUCTED ACROSS SAID
NORTHWEST QUARTER, THE NORTHEAST QUARTER AND THE SOUTHEAST QUARTER OF SECTION
10. SAID TRACT CONTAINS 22.05 ACRES.
Loan Agreement
Page A-2
