BUSINESS LOAN AGREEMENT
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Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
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$19,180,500.00 01-20-2004 04-20-2011 57748 37 / 400 119284 JB
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any Item above
containing "***" has been omitted due to text length limitations.
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Borrower: Husker AG, LLC Lender: Xxxxxxx Bank National Association
(Tin: 00-0000000) 0000 XX 0xx Xx
XX Xxx 00 XX Xxx 0000
Xxxxxxxxx, XX 00000 St Cloud, MN 56302
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THIS BUSINESS LOAN AGREEMENT dated January 20, 2004, is made and executed
between HUSKER AG, LLC ("Borrower") and XXXXXXX BANK NATIONAL ASSOCIATION
("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"). Borrower
understands and agrees that: (A) in granting, renewing, or extending any Loan,
Lender is relying upon Borrower's representations, warranties, and agreements as
set forth in this Agreement; (B) the granting, renewing, or extending of any
Loan by Lender 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 January 20, 2004, and shall
continue in full force and effect until such time as all Borrower's Loans in
favor of Lender have been paid in full, including principal, interest, costs,
expenses, attorneys' fees, and other fees and charges, or until such time as the
parties may agree in writing to terminate this Agreement.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make 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 Notes; (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) assignments of life insurance; (6)
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 a substance
satisfactory to Lender properly certified resolutions, duly authorizing the
execution and delivery of this Agreement, the Notes 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
reasonable 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 beyond applicable cure periods
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, validity existing, and in good standing
under and by virtue of the laws of the State of Nebraska. Borrower is duly
authorized to transact business in all other states in which Borrower is
doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a
foreign limited liability company in all states in which the failure to so
qualify would have a material adverse effect on its business or financial
condition. Borrower has the full power and authority to own its properties
and to transact the business in which it is presently engaged or presently
proposes to engage. Borrower maintains an office at XX XXX 00 XXXXXXXXX, XX
00000. Unless Borrower has designated otherwise in writing, the principal
office is the office at which Borrower keeps its books and records
including its records concerning Collateral. Borrower will notify Lender
prior to any change in the location of Borrower's state of organization or
any change in Borrower's name. Borrower shall do all things necessary to
preserve and to keep in full force and effect its existence, rights and
privileges, and shall comply with all regulations, rules, ordinances,
statutes, orders and decrees of any governmental or quasi-governmental
authority or court applicable to Borrower and Borrower's business
activities.
ASSUMED BUSINESS NAMES. Borrower has filed or recorded all documents or
filings required by law relating to all assumed business names used by
Borrower. Excluding the name of Borrower, the following is a complete list
of all assumed business names under which Borrower does business: NONE.
AUTHORIZATION. Borrower's execution, delivery, 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 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.
FINANCIAL INFORMATION. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of
the date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will
constitute legal, valid, and binding obligations of Borrower enforceable
against Borrower in accordance to their perspective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrower's financial statements or in writing to Lender and as
accepted by Lender, and except for property tax liens for taxes not
presently due and payable, Borrower owns and has good title to all of
Borrower's properties free and clear of all Security Interests, and has not
executed any security documents or financing statements relating to such
properties. All of Borrower's properties are titled in Borrower's legal
name, and Borrower has not used or filed a financing statement under any
other name for at least the last five (5) years.
HAZARDOUS SUBSTANCES. Except as disclosed to and acknowledged by Lender in
writing, Borrower represents and warrants that: (1) During the period of
Borrower's ownership of Borrower's collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance by any person on, under,
about or from any of the Collateral. (2) Borrower has no knowledge of, or
reason to believe that there has been (a) any breach or violation of any
Environmental Laws; (b) any use, generation, manufacture, storage,
treatment, disposal, release
BUSINESS LOAN AGREEMENT
Loan No: 57748 (Continued) Page 2
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or threatened release of any Hazardous Substance on, under, about or from
the Collateral by any prior owners or occupants of any of the Collateral;
or (c) any actual or threatened litigation or claims of any kind by any
person relating to such matters. (3) Neither Borrower nor any tenant,
contractor, agent or other authorized user of any of the Collateral shall
use, generate, manufacture, store, treat, dispose of or release any
Hazardous Substance on, under, about or from any of the Collateral; and any
such activity shall be conducted in compliance with all applicable federal,
state and local laws, regulations, and ordinances, including without
limitation all Environmental Laws. Borrower authorizes Lender and its
agents to enter upon the Collateral to make such inspections and tests as
Lender may deem appropriate to determine compliance of the Collateral with
this section of the Agreement. Any inspections or tests made by the Lender
shall be at Borrower's expense and for Lender's purposes only and shall not
be construed to create any responsibility or liability on the part of
Lender to Borrower or to any other person. The representations and
warranties contained herein are based on Borrower's due diligence in
investigating the Collateral for hazardous waste and Hazardous Substances.
Borrower hereby (1) releases and waives any future claims against Lender
for indemnity or contribution in the event Borrower becomes liable for
cleanup or other costs under any such laws except as relates to lender's
gross negligence or willful acts of misconduct and (2) agrees to indemnify
and hold harmless Lender against any and all claims, losses, liabilities,
damages, penalties, and expenses, including attorneys' fees, consultants'
fees, and costs which Lender may directly or indirectly sustain or suffer
resulting from a breach of this section of the Agreement or as "consequence
of any use, generation, manufacture, storage, disposal, release or
threatened release of a hazardous waste or substance on the Collateral. The
provisions of this section of the Agreement, including the obligation to
indemnify, shall survive the payments of the Indebtedness and the
termination, expiration or satisfaction of this Agreement and shall not be
affected by Lender's acquisition of any interest in any of the Collateral,
whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other ever has occurred which my
materially adversely affect Borrower's financial condition or properties,
other than litigation, claims, or other events, if any, that have been
disclosed to and acknowledged by Lender in writing.
Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns
and reports that are or were required to be filed, have been filed, and all
taxes, assessments and other governmental charges have been paid in full,
except those presently being or to be contested by Borrower in good faith
in the ordinary course of business and for which adequate reserves have
been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or
affecting any of the Collateral directly or indirectly securing repayment
of Borrower's Loan and Notes, that would be prior or that may in any way be
superior to Lender's Security Interests and rights in and to such
Collateral.
Binding Effect. This Agreement, the Notes, all Security Agreements (if
any), and all Related Documents are binding upon the signers thereof, as
well as upon their successors, representatives and assigns, and are legally
enforceable in accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Lender in writing of (1)
all material adverse changes in Borrower's financial condition, and (2) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or an
Guarantor which could materially affect the financial condition of Borrower
or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit Lender to examine and audit
Borrowers' books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than
ninety (90) days after the end of each fiscal year, Borrower's balance
sheet and income statements for the year ended, audited by a certified
public accountant satisfactory to Lender.
Tax Returns. As soon as available after the applicable filing date for
the tax reporting period ended, Federal and other governmental tax
returns, prepared by a tax professional satisfactory to Lender.
Additional Requirements.
INTERIM STATEMENTS: AS SOON AS AVAILABLE, BUT IN NO EVENT LATER THAN
30-DAYS AFTER THE END OF EACH MONTH, BORROWER'S BALANCE SHEET AND
PROFIT AND LOSS STATEMENT FOR THE PERIOD ENDED, PREPARED AND CERTIFIED
AS CORRECT TO THE BEST KNOWLEDGE AND BELIEF BY THE COMPANY'S CHIEF
FINANCIAL OFFICER OR OTHER OFFICER OR OTHER AUTHORIZED COMPANY
REPRESENTATIVE ACCEPTABLE TO THE LENDER.
ANNUAL STATEMENTS: AS SOON AS AVAILABLE, BUT IN NO EVENT LATER THAN
90-DAYS AFTER THE CLOSE OF EACH BORROWER'S FISCAL YEAR-END, A FINANCIAL
REPORT ALL IN REASONABLE DETAIL AND STATING IN COMPARATIVE FORM THE
FIGURES AT THE CLOSE OF AND FOR THE PREVIOUS FISCAL YEAR WITH THE
UNQUALIFIED OPINION BY AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTANT
SATISFACTORY TO THE LENDER AND IN ACCORDANCE WITH GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES (GAAP), ALONG WITH ANNUAL BUDGET/PROJECTIONS,
EQUIPMENT LIST AND CAPITAL EXPENDITURES.
COMPLIANCE CERTIFICATION: AS SOON AS AVAILABLE, BUT IN NO EVENT LATER
THAN 90-DAYS AFTER THE END OF THE BORROWER'S FISCAL YEAR, A CERTIFICATE
OF COMPLIANCE SIGNED BY THE BORROWER'S CHIEF FINANCIAL OFFICER, OR
OTHER DESIGNATED OFFICER, STATING THAT THE BORROWER HAS PERFORMED AND
OBSERVED EACH AND EVERY COVENANT CONTAINED IN THIS DOCUMENT AND THE
AGREEMENT TO BE PERFORMED BY IT AND THAT NO EVENT HAS OCCURRED AND NO
CONDITION THEN EXISTS WHICH CONSTITUTES AN EVENT HEREUNDER OR WOULD
CONSTITUTE SUCH AN EVENT OF DEFAULT UPON THE LAPSE OF TIME OR UPON THE
GIVING OF NOTICE AND THE LAPSE OF TIME SPECIFIED HEREIN; OR, IF ANY
SUCH EVENT HAS OCCURRED OR SUCH CONDITION EXISTS, SPECIFYING THE NATURE
THEREOF.
EMPLOYMENT INFORMATION: BORROWER MAY BE REQUIRED TO PROVIDE PERIODIC
INFORMATION ON PROJECT EMPLOYMENT TO DETERMINE USDA PROGRAM
EFFECTIVENESS ALONG WITH INFORMATION TOTAL PAYROLL.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and
certified by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements,
as Lender may request from time to time.
Insurance. Maintain fire and other risk insurance, public liability
insurance, and such other insurance as Lender may require with respect to
Borrower's properties and operations, in form, amounts, coverages and with
insurance companies acceptable to Lender. Borrower, upon request of Lender,
will deliver to Lender from time to time the policies or certificates of
insurance in form satisfactory to Lender, including stipulations that
coverages will not be cancelled or diminished without at least thirty (30)
days prior written notice to Lender. Each insurance policy also shall
include an endorsement providing that coverage in favor of Lender will not
be impaired in any way by any act, omission or default of Borrower or any
other person. In connection with all policies covering assets in which
Lender holds or is offered a security interest for the Loans, Borrower will
provide Lender with such lender's loss payable or other endorsements as
Lender may require.
BUSINESS LOAN AGREEMENT
Loan No: 57748 (Continued) Page 3
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Insurance Reports. Furnish to Lender, upon request of Lender, reports on
each existing insurance policy showing such information as Lender may
reasonably request, including without limitation the following: (1) the
name of the insurer; (2) the risks insured; (3) the amount of the policy;
(4) the properties insured; (5) the then current property values on the
basis of which insurance has been obtained, and the manner of determining
those values; and (6) the expiration date of the policy. In addition, upon
request of Lender (however not more often than annually), Borrower will
have an independent appraiser satisfactory to Lender determine, as
applicable, the actual cash value or replacement cost of any Collateral.
the cost of such appraisal shall be paid by Borrower.
Life Insurance. As soon as practical, obtain and maintain life insurance in
form and with insurance companies acceptable to the Lender on the following
individuals in the amounts indicated below and, at Lender's option, cause
such insurance coverage to be pledged, made payable to, or assigned to
Lender on Lender's forms. Lender, at its discretion, may apply the proceeds
of any insurance policy to the unpaid balances of any Loan:
Names/Titles of Insureds Amounts
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GENERAL MANAGER $500,000.00
PLANT MANAGER $500,000.00
Other agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and any
other party and notify Lender immediately in writing of any default in
connection with any other such agreements.
Loans Proceeds. Use all Loan proceeds solely for Borrower's business
operations, unless specifically consented to the contrary by Lender 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 Lender 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 managerial personnel; conduct its business affairs in a
reasonable and prudent manner.
Environmental Studies. Promptly conduct and complete, at Borrower's
expense, all such investigations, studies, samplings and testings as may be
requested by Lender or any governmental authority relative to any
substance, or any waste or by-product of any substance defined as toxic or
a hazardous substance under applicable federal, state, or local law, rule,
regulation order or directive, at or affecting any property or any facility
owned, leased or used by Borrower.
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 an so long as, in Lender's sole opinion, Lender's
interest in the Collateral are not jeopardized. Lender may require Borrower
to post adequate security or a surety bond, reasonably satisfactory to
Lender, to protect Lender'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 Borrower's other
properties and to examine or audit Borrower's books, accounts, and records
and to make copies and memoranda of Borrower's books, accounts, and
records. If Borrower now or at any time hereafter maintains any records
(including without limitation computer generated records and computer
software programs for the generation of such records) in the possession of
the third party, Borrower, upon request of the Lender, shall notify such
party to permit Lender free access to such records at all reasonable times
and to provide Lender with copies of any records it may request, all at
Borrower's expense.
Environmental Compliance and Reports. Borrower shall comply in all respects
with any and all Environmental Laws; not cause or permit to exist, as a
result of an intentional or unintentional action or omission on Borrower's
part or on the part of any third party, on property owned and/or occupied
by Borrower, any environmental activity where damage may result to the
environment, unless such environmental activity is pursuant to and in
compliance with the conditions of a permit issued by the appropriate
federal, state or local governmental authorities; shall furnish to Lender
promptly and in any event within thirty (30) days after receipt thereof a
copy of any notice, summons, lien, citation, directive, letter or other
communication from any governmental agency or instrumentality concerning
any intentional or unintentional action or omission on Borrower's part in
connection with any environmental activity whether or not there is damage
to the environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments,
financing statements, instruments, documents and other agreements as Lender
or its attorneys may reasonably request to evidence and secure the Loans
and to perfect all Security Interests.
LENDER'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 this Agreement or any Related Documents, including
but not limited to Borrower's failure to discharge or pay when due any amounts
Borrower is required to discharge or pay under this Agreement or any Related
Documents, Lender on Borrower's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on any Collateral and paying all
costs for insuring, maintaining, and preserving any Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by the Borrower. All such expenses will become a
part of the Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be payable
with any installment payments to become due either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the normal
course of business and indebtedness to Lender contemplated by this
Agreement, create, incur or assume indebtedness for borrowed money,
including capital leases, (2) sell, transfer, mortgage, assign, pledge,
lease, grant a security interest in, or encumber any of Borrower's assets
(except as allowed as Permitted Liens), or (3) sell with recourse any of
Borrower's accounts, except to Lender.
Continuity of Operations. (1) Engage in any business activities
substantially different than those in which Borrower is presently engaged,
BUSINESS LOAN AGREEMENT
Loan No: 57748 (Continued) Page 4
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(2) cease operations, liquidate, merge, transfer, acquire or consolidate
with any other entity, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, or (3) make any
distribution with respect to any capital account, whether by reduction of
capital or otherwise.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or
assets to any other person, enterprise or entity, (2) purchase, create or
acquire any interest in any other enterprise or entity, or (3) incur any
obligation as surety or guarantor other than in the ordinary course of
business.
Agreements. Borrower will not enter into any agreement containing any
provisions which would be violated or breached by the performance of
Borrower'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 of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender; (B) Borrower or any Guarantor dies, becomes
incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse
change in Borrower's financial condition, in the financial condition of any
Guarantor, or in the value of any Collateral securing any Loan; or (D) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with the 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 the
right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any XXX or Xxxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Borrower authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts, and at Lender's option, to
administratively freeze all such accounts to allow Lender to protect Lender's
charge and setoff rights provided in this paragraph.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Borrower fails to make any payment within ten (10) days
when due under this Loan.
Other Defaults. Borrower materially fails to comply with or perform any
other term, obligation, covenant or condition contained in this Agreement
or in any of the Related Documents or to comply with or to materially
perform any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person
that may materially affect any of Borrower's or any Guarantor's property or
Borrower's or any Guarantor's ability to repay the Loans or perform their
respective obligations under this Agreement or any of the Related
Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this
Agreement or the Related Documents is false or misleading in any material
respect, either now or at the time made or furnished or becomes false or
misleading at any time thereafter.
Death or insolvency. The dissolution of Borrower (regardless of whether
election to continue is made), or any other termination of Borrower's
existence as a going business, the insolvency of Borrower, the appointment
of a receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement of
any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
Defective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any
time and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or by any
governmental agency against any collateral securing the Loan. This includes
a garnishment of any Borrower's accounts, including deposit accounts, with
Lender. However, this Event of Default shall not apply if there is a good
faith dispute by Borrower as to the validity or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if Borrower
gives Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion, as
being an adequate reserve or bond for the dispute.
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,
as 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.
Adverse Change. A material adverse change occurs in Borrower's financial
condition.
Right to Cure. If any default, other than a default in Indebtedness, is
curable and if Borrower or Grantor, as the case may be, has not been given
a notice of a similar default within the preceding twelve (12) months, it
may be cured (and no Event of Default will have occurred) if Borrower or
Grantor, as the case may be, after receiving written notice from Lender
demanding cure of such default: (1) cure the default within fifteen (15)
days; or (2) if the cure requires more than fifteen (15) days, immediately
initiates steps which Lender deems in Lender's sole discretion to be
sufficient to cure the default and thereafter continue and complete all
reasonable and necessary steps sufficient to produce compliance as soon as
reasonably practical.
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 or the Related Documents or any
other agreement immediately terminate (including any obligation to make further
Loan Advances or disbursements), and, at Lender'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 rights and remedies provided in
the Related Documents or available by 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
Lender 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 Lender's right to declare a default
and to exercise its rights and remedies.
LIMITATION ON PURCHASE OR SALE OF EQUIPMENT AND FIXED ASSETS. BORROWER WILL NOT
MAKE OR INCUR ANY OBLIGATIONS IN ANY MANNER OR FORM FOR THE PURCHASE OR
ACQUISITION OF FIXED ASSETS AND EQUIPMENT IN AN AGGREGATE AMOUNT GREATER THAN
$300,000 DURING FISCAL YEAR 12-31-2005 OTHER THAN NORMAL ANNUAL OPERATING
TRANSACTIONS REQUIRE PRIOR WRITTEN CONSENT OF THE
BUSINESS LOAN AGREEMENT
Loan No: 57748 (Continued) Page 5
================================================================================
LENDER. THE LIMITATION WILL INCREASE BY $100,000 INCREMENTS EACH YEAR
THEREAFTER, AS LONG AS ALL LOAN COVENANTS ARE BEING AND WILL BE MET. HOWEVER, IF
THE COMPANY FAILS TO PERFORM AT PROJECTED PROFIT LEVELS, CAPITAL PURCHASES WILL
BE DEFERRED.
RATIO REQUIREMENTS. ALL RATIOS DETERMINED IN ACCORDANCE WITH GAAP AND MEASURED
AT BORROWER'S FISCAL YEAR END.
1. TANGIBLE NET WORTH: MAINTAIN A MINIMUM TANGIBLE NET WORTH OF NOT LESS THEN
40% FOR THE LIFE OF THE LOAN, AS DETERMINED IN ACCORDANCE WITH GAAP.
2. TOTAL DEBT TO TANGIBLE NET WORTH RATIO: TOTAL DEBT NOT TO EXCEED 2.5 TO 1.0
TIMES TANGIBLE NET WORTH, AS IN ACCORDANCE WITH GAAP.
3. CURRENT RATIO: MAINTAIN A RATIO OF TOTAL CURRENT ASSETS DIVIDED BY TOTAL
CURRENT LIABILITIES IN EXCESS OF 1.5 TO 1, WHEN CURRENT MATURITIES OF LONG-TERM
DEBT ARE INCLUDED AS A CURRENT LIABILITY.
4. WORKING CAPITAL: MAINTAIN AT ALL TIMES WORKING CAPITAL IN AN AMOUNT NOT LESS
THAN $2,500,000.
ENVIRONMENTAL ISSUES. BORROWER AGREES TO TAKE ALL NECESSARY MEASURES TO AVOID OR
REDUCE ADVERSE ENVIRONMENTAL IMPACTS FROM THE CONSTRUCTION OR OPERATION OF THE
PROJECT FINANCED WITH THIS LOAN.
DISTRIBUTION TO OWNERS. BORROWER WILL NOT DECLARE OR PAY ANY DIVIDEND OR MAKE
ANY DISTRIBUTION UPON ITS CAPITAL STOCK, OR PURCHASE OR RETURN ANY OF ITS
CAPITAL STOCK, WITHOUT PRIOR APPROVAL OF THE LENDER, EXCEPT DISTRIBUTIONS MAY BE
MADE TO STOCKHOLDERS IN AN AMOUNT EQUAL TO THE INCOME TAX LIABILITY INCURRED BY
BORROWER'S STOCKHOLDERS BY REASON OF THE INCOME EARNED BY BORROWER WHICH IS
TAXABLE TO SAID STOCKHOLDERS.
LIMITATION ON COMPENSATION OF OFFICERS. BORROWER WILL NOT DECLARE OR PAY ANY
INCREASE IN SALARY, WHETHER BY LOAN, GIFT, BONUS OR OTHERWISE DIRECTLY OR
INDIRECTLY TO ANY OFFICER, DIRECTOR, OR EMPLOYEE OF BORROWER IF THE BUSINESS
FAILS TO PERFORM AT FAVORABLE PROJECTED LEVELS.
COLLATERAL. THE USDA NOTE AND XXXXXXX NOTE RANK AND WILL RANK PARI PASSU IN
RIGHT OF PAYMENT AND WITH RESPECT TO RIGHT IN THE COLLATERAL. THE USDA NOTE AND
XXXXXXX NOTE ARE SECURED BY A FIRST REAL ESTATE DEED OF TRUST ON LAND,
BUILDINGS, IMPROVEMENTS AND APPURTENANCES AND A SECOND LIEN ON MACHINERY AND
EQUIPMENT.
ADDITIONAL DEBT. BORROWER WILL NOT MAKE ANY ADDITIONAL LOANS, ASSUME LIABILITIES
OR OBLIGATIONS OF OTHERS, CONSOLIDATE, MERGE OR SELL THE BUSINESS WITH OUT PRIOR
CONCURRENCE OF THE LENDER AND USDA.
USDA-INDEBTEDNESS AND LIENS. EXCEPT FOR TRADE DEBT INCURRED IN THE NORMAL COURSE
OF BUSINESS AND INDEBTEDNESS TO LENDER CONTEMPLATED BY THIS AGREEMENT, CREATE,
INCUR OR ASSUME ADDITIONAL INDEBTEDNESS FOR BORROWED MONEY, INCLUDING CAPITAL
LEASES, IN EXCESS OF THE AGGREGATE AMOUNT OF $300,000 DURING FISCAL YEAR
12-31-05, OTHER THAN NORMAL ANNUAL OPERATING TRANSACTIONS, REQUIRE PRIOR WRITTEN
CONSENT OF THE LENDER. THE LIMITATION WILL INCREASE BY $100,000 INCREMENTS EACH
YEAR THEREAFTER, AS LONG AS ALL LOAN COVENANTS ARE BEING AND WILL BE MET.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are part of
this Agreement:
Amendments. This Agreement, together with any Related documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
Attorney's Fees; Expenses. Borrower agrees to pay upon demand all of
Lender's costs and expenses, including Lender's reasonable attorney's fees
and Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, an Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's reasonable attorneys' fees
and legal expenses whether or not there is a lawsuit, including reasonable
attorney's fee and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and
any anticipated post-judgment collection services. Borrower also shall pay
any court costs and such additional fees as may be directed by the court.
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions
of this Agreement.
Consent to Loan Participation. Borrower agrees and consents to Lender's
sale or transfer, whether now or later, of one or more participation
interests in the Loan to one or more purchasers, whether related or
unrelated to Lender. Lender may provide, without any limitation whatsoever,
to any one or more purchasers, or potential purchasers, any information or
knowledge Lender may have about Borrower or about any other matter relating
to the Loan, and Borrower hereby waives any rights to privacy Borrower may
have with respect to such matters. Borrower additionally waives any and all
notices of sale of participation interests, as well as all notices of any
repurchase of such participation interests. Borrower also agrees that the
purchasers of any such participation interests will be considered as the
absolute owners of such interests in the Loan and will have all the rights
granted under the participation agreement or agreements governing the sale
of such participation interests. Borrower further waives all rights of
offset or counterclaim that it may have now or later against Lender or
against any purchaser of such a participation interest and unconditionally
agrees that either Lender or such purchaser may enforce Borrower's
obligation under the Loan irrespective of the failure or insolvency of any
holder of any interest in the Loan. Borrower further agrees that the
purchaser of any such participation interests may enforce its interests
irrespective of any personal claims or defenses that Borrower may have
against the Lender.
Governing Law. This Agreement will be governed by, construed and enforced
in accordance with federal law and the laws of the State of Minnesota. This
Agreement has been accepted by Lender in the State of Minnesota.
No Waiver by Lender. Lender shall not be deemed to have waived any rights
under this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by
Lender of a provision of this Agreement shall not prejudice or constitute a
waiver of Lender's right otherwise to demand strict compliance with that
provision or any other provision of this Agreement. No prior waiver by
Lender, nor any course of dealing between Lender and Borrower, or between
Lender and any Grantor, shall constitute a waiver of any of Lender's rights
or of any of Borrower's or any Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall not
constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the
sole discretion of Lender.
Notices. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
BUSINESS LOAN AGREEMENT
Loan No: 57748 (Continued) Page 6
================================================================================
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Borrower agrees to keep Lender informed at all times
of Borrower's current address. Unless otherwise provided or required by
law, if there is more than one Borrower, any notice given by Lender to any
Borrower is deemed to be notice given to all Borrowers.
Severability. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
Subsidiaries and Affiliates of Borrower. To the extent the context of any
provisions of this Agreement makes it appropriate, including without
limitation any representation, warranty or covenant, the word "Borrower" as
used in this Agreement shall include all of Borrower's subsidiaries and
affiliates. Notwithstanding the foregoing however, under no circumstances
shall this Agreement be construed to require Lender to make any Loan or
other financial accommodation to any of Borrower's subsidiaries or
affiliates.
Successors and Assigns. All covenants and agreements by or on behalf of
Borrower contained in this Agreement or any Related Documents shall bind
Borrower's successors and assigns and shall inure to the benefit of Lender
and its successors and assigns. Borrower shall not, however, have the right
to assign Borrower's rights under this Agreement or any interest therein,
without the prior written consent of the Lender.
Survival of Representations and Warranties. Borrower understands and agrees
that in making the Loan, Lender is relying on all representations,
warranties, and covenants made by Borrower in this Agreement or in any
certificate or other instrument delivered by Borrower to Lender under this
Agreement or the Related Documents. Borrower further agrees that regardless
of any investigation made by Lender, all such representations, warranties
and covenants will survive the making of the Loan and delivery to Lender of
the Related Documents, shall be continuing in nature, and shall remain in
full force and effect until such time as Borrower's indebtedness shall be
paid in full, or until this Agreement shall be terminated in the manner
provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
Waive Jury. All parties to this Agreement hereby waive the right to any
jury trial in any action, proceeding, or counterclaim brought by any party
against any other party.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. Accounting
words and terms not otherwise defined in this Agreement shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
in effect on the date of this Agreement:
Advance. The word "Advance" means a disbursement of Loan funds made, or to
be made, to Borrower 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 HUSKER AG, LLC and includes all
co-signers and co-makers signing the Notes.
Collateral. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage,
collateral chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention
contract, lease or consignment intended as a security device, or any other
security or lien interest whatsoever, whether created by law, contract, or
otherwise.
Environmental Laws. The words "Environmental Laws" means any and all state,
federal and local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation
the Comprehensive Environmental Response, compensation, and Liability Act
of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
("XXXX"), the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, et seq., the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto or common law, and shall also include
pollutants, contaminants, polychlorinated biphenyls, asbestos, urea
formaldehyde, petroleum and petroleum products, and agricultural chemicals.
Event of Default. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
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.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Notes.
Hazardous Substances. The words "Hazardous Substances" means materials
that, because of their quantity, concentration or physical, chemical or
infectious characteristics, may cause or pose a present or potential hazard
to human health or the environment when improperly used, treated, stored,
disposed of, generated, manufactured, transported or otherwise handled. The
words "Hazardous Substances" are used in their very broadest sense and
include without limitation any and all hazardous or toxic substances,
materials or waste as defined by or listed under the Environmental Laws.
The term "Hazardous Substances" also includes, without limitation,
petroleum and petroleum by-products or any fraction thereof and asbestos.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by
the Notes or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
Lender. The word "Lender" means XXXXXXX BANK NATIONAL ASSOCIATION, its
successors and assigns.
Loan. The word "Loan" means any and all loans and financial accommodations
from Lender to Borrower whether now or hereafter existing, and however
evidence, including without limitation those loans and financial
accommodations described herein or described on any exhibit or schedule
attached in this Agreement from time to time.
BUSINESS LOAN AGREEMENT
Loan No: 57748 (Continued) Page 7
================================================================================
LOAN NOTE GUARANTEE. THE WORD "LOAN NOT GUARANTEE' MEANS THE LOAN NOTE
GUARANTEE EXECUTED BY THE UNITED STATES OF AMERICA DEPARTMENT OF
AGRICULTURE FOR THE BENEFIT OF THE LENDER WITH RESPECT TO THE USDA NOTE, AS
THE SAME MAY BE AMENDED FROM TIME TO TIME.
NOTES. THE WORD "NOTES" MEANS, COLLECTIVELY, THE USDA NOTE AND THE XXXXXXX
NOTE AND THE OTHER NOTE.
OTHER NOTE. THE WORD "OTHER NOTE" MEANS THE NOTE BY HUSKER AG, LLC IN THE
PRINCIPAL AMOUNT OF $1,505,900.00 DATED JANUARY 20, 2004. TOGETHER WITH ALL
RENEWALS OF, EXTENSIONS OF, MODIFICATIONS OF, REFINANCINGS OF,
CONSOLIDATIONS OF, AND SUBSTITUTIONS FOR THE NOTE AND CREDIT AGREEMENT.
XXXXXXX NOTE. THE WORD "XXXXXXX NOTE" MEANS THE NOTE EXECUTED BY HUSKER AG,
LLC IN THE PRINCIPAL AMOUNT OF $8,837,300.00 DATED JANUARY 20, 2004,
TOGETHER WILL ALL RENEWALS OF, EXTENSIONS OF, MODIFICATIONS OF,
REFINANCINGS OF, CONSOLIDATIONS OF, AND SUBSTITUTIONS FOR THE NOTE AND
CREDIT AGREEMENT.
USDA NOTE. THE WORD "USDA NOTE" MEANS THE NOTE EXECUTED BY HUSKER AG, LLC
IN THE PRINCIPAL AMOUNT OF $8,837,300.00 DATED JANUARY 20, 2004, AND
ENHANCED BY THE LOAN NOTE GUARANTEE, TOGETHER WITH ALL RENEWALS OF,
EXTENSIONS OF, MODIFICATIONS OF, REFINANCINGS OF, CONSOLIDATIONS OF, AND
SUBSTITUTIONS FOR THE NOTE AND CREDIT AGREEMENT.
Permitted Lines. The words "Permitted Liens" mean (1) liens and securing
indebtedness owned by Borrower to Lender, (2) liens for taxes, assessments,
or similar charges either not yet due or being contested in good faith; (3)
liens of materialmen, mechanics, warehousemen, or carriers, or other like
liens arising in the ordinary course of business and securing obligations
which are not yet delinquent; (4) purchase money liens or purchase money
security interests upon or in any property acquired or held by Borrower in
the ordinary course of business to secure indebtedness outstanding on the
date of this Agreement or permitted to be incurred under the paragraph of
this Agreement titled "Indebtedness and Liens"; (5) liens and security
interests which, as of the date of this Agreement, have been disclosed to
and approved by the Lender in writing; and (6) those liens and security
interests which in the aggregate constitute an immaterial and insignificant
monetary amount with respect to the net value of Borrower's assets.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Loan.
Security Agreement. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract, or
otherwise, evidencing, governing, representing, or creating a Security
Interest.
Security Interest. The words "Security Interest" mean, without limitation,
any and all types of collateral security, present and future, whether in
the form of a lien, charge, encumbrance, mortgage, deed of trust, security
deed, assignment, pledge, crop pledge, chattel mortgage, collateral chattel
mortgage, chattel trust, factor's lien, equipment trust, conditional sale,
trust receipt, lien or title retention contract, lease or consignment
intended as a security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED JANUARY 20, 2004.
BORROWER:
HUSKER AG, LLC
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------------- ---------------------------------
XXXX XXXXXXX, Chairman of XXXX XXXXX, Secretary of
HUSKER AG, LLC HUSKER AG, LLC
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx Xxxxxxxxx
--------------------------------- ---------------------------------
XXXXX XXXXXXXXX, Vice Chairman XXXX XXXXXXXXX, Treasuer of
of HUSKER AG, LLC HUSKER AG, LLC
LENDER:
XXXXXXX BANK NATIONAL ASSOCIATION
By:
---------------------------------
Authorized Signer
