Exhibit 10.22
PROMISSORY NOTE
(Renewal Note)
(Variable Rate, Revolving Loan)
Not to Exceed $5,000,000.00 Sioux Falls, South Dakota
January 1, 2003
FOR VALUE, RECEIVED, NORTHERN LIGHTS ETHANOL, LLC, a South Dakota
Limited Liability Company ("Borrower"), hereby promises to pay to the order of
U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Lender", which
term shall include any future holder hereof), at 000 X. Xxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxx, or at such other place as Lender may from time-to-time
designate in writing, in lawful money of the United States of America, the
principal sum of Five Million & 00/100 Dollars ($5,000,000.00) or so much
thereof as may be advanced hereunder, including all amounts due or incurred by
Borrower in accordance with the terms of the Loan Agreement between Borrower and
Lender dated as of July 11, 2001, or due or incurred by Borrower under the terms
of any other Loan Document as defined in such Loan Agreement.
PARTIAL RENEWAL OF LOAN. This Promissory Note partially supercedes and
replaces that Promissory Note dated July 11, 2001, in the original principal
amount of $31,100,000.00 which Borrower delivered to Lender pursuant to the Loan
Agreement between Borrower and Lender dated as of July 11, 2001, (the "Prior
Note"). The original principal amount of this Note represents Five Million
Dollars ($5,000,000.00) of the unpaid principal balance of the Prior Note after
application of all payments made by Borrower thereunder.
CALCULATION AND PAYMENT OF INTEREST. All outstanding principal due
hereunder shall bear interest at an annual rate equal to one percent (1%) plus
the prime rate announced by Xxxxxx from time-to-time (the "Index"). The interest
rate shall be adjusted each time that the Index changes. Lender will strive to
inform Borrower of each change in the Index, but each adjustment in the Index is
effective whether or not Lender informs Borrower of such change. Payments of all
interest accrued hereunder shall be made March 31, June 30, September 30 and
December 31 of each year unless such day is not a Business Day as defined in the
Loan Agreement (in which case the Business Day which immediately follows such
day shall apply) in which any amount is outstanding under the Note (the
"Quarterly Payment Date"). The first Quarterly Payment Date shall be March 31,
2003, and an interest only payment shall be due that day and each Quarterly
Payment Date thereafter until December 31, 2007 (the "Maturity Date"). Xxxxxx
and Xxxxxxxx agree that the Index applicable on the date of this Note shall be
Four and One Quarter percent (4.25%), producing an original effective interest
rate hereunder of Five and One Quarter percent (5.25%). Interest shall be
calculated on a 365/360 simple basis; that is, by applying the ratio of the
annual interest rate over a year of 360 days, multiplied by the outstanding
principal balance, multiplied by the actual number of days the principal balance
is outstanding. In addition to the foregoing payments, Borrower shall pay Lender
all interest accrued under the Prior Note (or prepay interest which shall
accrue), as well as any non-principal item accrued under such Prior Note, if
any, through December 31, 2002, not later than the close of such Business Day.
REVOLVING FEATURE. Xxxxxxxx acknowledges that sufficient Advances were
made under the Loan Agreement so that such loan was extended to the Loan
Maximum, such that no further Advances will be made. Notwithstanding this,
Borrower may re-borrow, on a revolving basis, the difference between the
outstanding principal amount hereunder and Five Million Dollars ($5,000,000.00)
(the "Revolving Loan Maximum"). Xxxxxx's obligation to make any advance under
this Promissory Note is conditioned upon (i) all representations and warranties
made by Borrower in the Loan Agreement remaining true, accurate and complete,
(ii) Borrower's continued compliance with all other terms and conditions of the
Loan Agreement, (iii) no Event of Default having occurred under this Promissory
Note, or any other Promissory Note between the parties hereto, or under any
other Loan Document, (iv) Borrower demonstrating to Lender's satisfaction that
such funds shall be used in Borrower's core operations (as Lender shall
determine), and (v) Borrower delivering to Lender such mortgage(s), amendment(s)
to the Mortgage and/or other documents, and taking such other actions as Lender
shall deem appropriate to secure this Note, and Lender obtaining such
endorsements, riders, modifications and/or updates to the Title Policy as Lender
may deem appropriate in connection with such security. Subject to these
conditions, Xxxxxx shall advance to Borrower hereunder, such amounts as Borrower
may from time-to-time request, in multiples of not less than One Hundred
Thousand Dollars ($100,000.00), not to exceed the Revolving Loan Maximum. Such
requests for advances hereunder shall be funded the next Business Day if
received by Xxxxxx not later than 11:00 a.m. of any Business Day, subject to
Lender requiring additional time to confirm Borrower has satisfied the foregoing
conditions at the time each such advance is requested and made.
UNUSED COMMITMENT FEE. Borrower shall pay Lender in arrears each
Quarterly Payment Date an unused commitment fee equal to one-half percent (1/2%)
multiplied by the difference, if any, of the Revolving Loan Maximum minus the
average daily outstanding principal balance due hereunder for such prior
quarter.
PAYMENT IN FULL AT MATURITY. The total unpaid principal amount and all
interest thereon and any other amount due hereunder shall be payable on the
Maturity Date. THIS NOTE REQUIRES A BALLOON PAYMENT.
PAYMENTS. All payments under this Note shall be made in immediately
available funds. In the event there is no outstanding Event of Default, all
payments made hereunder shall be credited first to accrued interest, next to
unpaid principal, and next, in such order as Lender may determined in its sole
and absolute discretion, to other fees, charges, or costs and expenses payable
by Borrower under this Note or in connection with any other Loan Document.
PREPAYMENTS. Borrower may prepay this Note in whole or in part at any
time, and if in part from time-to-time, during the entire term of this Note,
without penalty or premium. No prepayment shall reduce the amount of any
scheduled payment.
COLLATERAL; COORDINATION WITH LOAN AGREEMENT. This Note is within the
definition of the "Note" in the Loan Agreement, and is subject to the additional
terms and conditions set forth in the Loan Agreement and the Loan Documents
referred to therein. This Note is secured by a Mortgage, Security Agreement,
Assignment of Leases and Rents and
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Fixture Financing Statement dated as of July 11, 2001, on the Project, as well
as other collateral described in the Loan Agreement and the other Loan
Documents. This Promissory Note shall further be secured by a collateral real
estate mortgage containing terms acceptable to Lender and which shall provide
Lender a first position mortgage on the Project, subject only to the Mortgage
and the Permitted Encumbrances. Capitalized terms not defined herein shall have
the meaning given such terms in the Loan Agreement.
LATE PAYMENT; GRACE PERIOD. If a payment due hereunder is not made
within five (5) days after the date when due, Borrower shall pay to Lender a
late payment charge of Five Hundred Dollars ($500.00) to compensate Lender for a
portion of the cost related to handling the overdue payment. After any Event of
Default, as defined in the Loan Agreement, then the entire principal sum
evidenced by this Note, together with all accrued and unpaid interest, shall, at
the option of the holder hereof, bear interest at the rate per annum (the
"Default Rate") equal to 3% in excess of the rate of interest per annum which
would otherwise be payable hereunder, and become immediately due and payable
without further notice (except as provided in the Loan Agreement), demand or
presentment for payment, and without any relief whatever from any valuation or
appraisement laws.
PAYMENT OF OTHER ITEMS. If Borrower defaults under any of the terms of
this Note, Borrower shall pay all reasonable costs and expenses, including
without limitation attorneys' fees (including any service tax thereon) and
costs, incurred by Xxxxxx in enforcing this Note immediately upon Xxxxxx's
demand, whether or not any action or proceeding is commenced by Lender. Without
limiting the generality of the preceding sentence, such costs and expenses shall
include all attorneys' fees and costs incurred by Lender in connection with any
federal or state bankruptcy, insolvency, reorganization, or other similar
proceeding by or against Borrower or any surety, guarantor or endorser of this
Note which in any way affects Xxxxxx's exercise of its rights and remedies under
this Note or under the Loan Agreement or any other Loan Document, Maker hereby
stipulates that Lender is a "regulated lender" within the meaning of SDCL
54-3-13 and other applicable South Dakota statutes.
NO OFFSET. No indebtedness evidenced by this Note shall be offset by
all or part of any claim, cause of action, or cross-claim of any kind, whether
liquidated or unliquidated, which Borrower now has or may hereafter acquire or
allege to have acquired against Lender. To the fullest extent permitted by law,
Borrower waives the benefits of any applicable law, regulation, or procedure
which provides, in substance, that where cross demands for money exist between
parties at any point in time when neither demand is barred by the applicable
statute of limitations, and an action is thereafter commenced by one such party,
the other party may assert the defense of payment in that the two demands are
compensated so far as they equal each other, notwithstanding that an independent
action asserting the claim would at the time of filing the response be barred by
the applicable statute of limitations.
CERTAIN BORROWER WAIVERS. Borrower waives presentment, protest and
demand, notice of protest, demand and of dishonor and nonpayment of this Note
and any lack of diligence or delays in collection or enforcement of this Note.
Xxxxxxxx agrees that this Note, or any payment hereunder, may be extended from
time-to-time; and Xxxxxxxx consents to the release of any party liable for the
obligation evidenced by this Note, the release of any of the
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security for this Note, the acceptance of any other security therefor, or any
other indulgence or forbearance whatsoever, all without notice to any party and
without affecting the liability of Borrower.
APPLICABLE LAW. This note shall be construed under and governed by the
laws of the State of South Dakota, without giving effect to conflict of laws or
principles thereof, but giving effect to federal laws of the United States
applicable to national banks. Whenever possible, each provision of this note and
any other statement, instrument or transaction contemplated hereby or relating
hereto, shall be interpreted in such manner as to be effective and valid under
such applicable law, but, if any provision of this note or any other statement,
instrument or transaction contemplated hereby or relating hereto shall be held
to be prohibited or invalid under such applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
note or any other statement, instrument or transaction contemplated hereby or
relating hereto,
NO WAIVER; CERTAIN MISCELLANEOUS PROVISIONS. Failure to exercise any
option provided herein shall not constitute a waiver of the right to exercise
the same in the event of any subsequent default. No modification or waiver by
Lender of any of the terms of this Note shall be valid or binding on Lender
unless such modification or waiver is in writing and signed by Xxxxxx. Without
limiting the generality of the preceding sentence, no delay, omission or
forbearance by Xxxxxx in exercising or enforcing any of its rights and remedies
under this Note shall constitute a waiver of such rights or remedies. Xxxxxx's
rights and remedies under this Note are cumulative with and in addition to all
other legal and equitable rights and remedies which Lender may have in
connection with the Loan. The headings of paragraphs of this Note are for
convenience of the parties only and shall not be used in interpreting this Note.
If this Note is lost, stolen, or destroyed, upon Xxxxxxxx's receipt of a
reasonably satisfactory indemnification agreement executed by Xxxxxx, or if this
Note is mutilated, upon Xxxxxx's surrender of the mutilated Note to Borrower,
Borrower shall execute and deliver to Lender a new promissory note which is
identical in form and content to this Note to replace the lost, stolen,
destroyed or mutilated Note. Time is of the essence in the performance of each
provision of this Note by Xxxxxxxx.
AT THE OPTION OF LENDER, THIS NOTE MAY BE ENFORCED IN ANY FEDERAL COURT
OR SOUTH DAKOTA STATE COURT SITTING IN SIOUX FALLS, SOUTH DAKOTA; AND BORROWER
CONSENTS TO THE JURISDICTION AND VENUE OF ANY SUCH COURT AND WAIVES ANY ARGUMENT
THAT VENUE IN SUCH FORUMS IS NOT CONVENIENT. IN THE EVENT BORROWER COMMENCES ANY
ACTION IN ANOTHER JURISDICTION OR VENUE UNDER ANY TORT OR CONTRACT THEORY
ARISING DIRECTLY OR INDIRECTLY FROM THE RELATIONSHIP CREATED BY THIS NOTE,
LENDER AT ITS OPTION SHALL BE ENTITLED TO HAVE THE CASE TRANSFERRED TO ONE OF
THE JURISDICTIONS AND VENUES ABOVE-DESCRIBED, OR IF SUCH TRANSFER CANNOT BE
ACCOMPLISHED UNDER APPLICABLE LAW, TO HAVE SUCH CASE DISMISSED WITHOUT
PREJUDICE.
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BORROWER AND XXXXXX EACH IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS NOTE OR ANY
OF THE LOAN DOCUMENTS (AS DEFINED IN THE LOAN AGREEMENT) OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
IN WITNESS WHEREOF, Xxxxxxxx has executed this Note as of the date
first above written.
NORTHERN LIGHTS ETHANOL, LLC
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Its: Chairman of the Board
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