Exhibit 10.26
TERM REVOLVING NOTE
$900,900.00 Effective on the Conversion Date
1. FOR VALUE RECEIVED, SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa
limited liability company (the "Borrower"), hereby promises to pay to the order
of METLIFE BANK, N.A. (the "Bank,"), the principal sum of Nine Hundred Thousand
Nine Hundred and No/100ths ($900,900.00) Dollars, or so much thereof as may be
advanced to, or for the benefit of, the Borrower and be outstanding, with
interest thereon, to be computed on each advance from the date of its
disbursement as set forth herein pursuant to that certain Credit Agreement dated
May 2, 2007, by and between the Borrower, the Bank and the other commercial,
banking or financial institutions from time to time parties thereto, and AgStar
Financial Services, PCA, as agent (the "Agent") (as it may be amended, modified,
supplemented, extended or restated from time to time, the "Credit Agreement"),
and which remains unpaid, in lawful money of the United States and immediately
available funds. This Term Revolving Note is issued pursuant to the terms and
provisions of the Credit Agreement and is entitled to all of the benefits
provided for in the Credit Agreement. All capitalized terms used and not defined
herein shall have the meanings assigned to them in the Credit Agreement.
2. The outstanding principal balance of this Term Revolving Note shall bear
interest at a variable rate determined by Bank to be 295 basis points above the
LIBOR Rate in effect on the date of the first Advance made to Borrower under
this Term Revolving Note, or at such rate as adjusted pursuant to the terms of
the Credit Agreement. Notwithstanding the foregoing, the rate of interest under
this Term Revolving Note shall be subject to adjustment by Bank pursuant to the
provisions of the Credit Agreement and this Term Revolving Note.
3. The "LIBOR Rate" (London Interbank Offered Rate) means the rate (rounded
upward to the nearest sixteenth and adjusted for reserves required on
Eurocurrency Liabilities (as hereinafter defined) for banks subject to FRB
Regulation D (as hereinafter defined) or required by any other federal law or
regulation), quoted by the British Bankers Association (the "BBA") at 11:00 a.m.
London time two Banking Days (as hereinafter defined) before the commencement of
the Interest Period for the offering of U.S. Dollar deposits in the London
interbank market for an Interest Period of one month, as published by Bloomberg
or another major information vendor listed on BBA's official website. "Banking
Day" shall mean a day on which Agent is open for business, dealings in U.S.
Dollar deposits are being carried out in the London interbank market, and banks
are open for business in New York City and London, England. "Eurocurrency
Liabilities" has the meaning as set forth in FRB Regulation D. "FRB Regulation
D" means Regulation D as promulgated by the Board of Governors of the Federal
Reserve System, 12 C.F.R. Part 204, as amended from time to time.
4. The rate of interest due hereunder shall initially be determined as of
the Conversion Date and shall thereafter be adjusted, as and when, the LIBOR
Rate changes or as provided in Section 2.11 of the Credit Agreement. All such
adjustments to the rate of interest shall be made and become effective as of the
first day of the month following the date of any change in the LIBOR Rate and
shall remain in effect until and including the day immediately preceding the
next such adjustment (each such day hereinafter being referred to as an
"Adjustment Date"). All such adjustments to said rate shall be made and become
effective as of the Adjustment Date, and said rate as adjusted shall remain in
effect until and including the day immediately preceding the next Adjustment
Date. Interest hereunder shall be computed on the basis of a year of three
hundred sixty-five (365) days, but charged for actual days principal is
outstanding.
5. Notwithstanding anything to the contrary in the Credit Agreement and
this Term Revolving Note, no advances will be made to the Borrower under this
Term Revolving Note until the Availability Date as specified in the Credit
Agreement.
6. Beginning on the first (1st) day of the first calendar month following
the month in which funds have been advanced to Borrower hereunder, and
continuing on the first (1st) day of each succeeding month thereafter until the
Maturity Date, the Borrower shall make monthly payments of accrued interest.
7. Xxxxxxxx agrees to pay to the Agent for the account of the Bank an
Unused Commitment Fee on the average daily unused portion of Bank's Term
Revolving Loan Commitment from the Availability Date until the Maturity Date at
the rate of 0.35% per annum, payable in arrears in quarterly installments
payable on the first (1st) day of each third month after the Availability Date.
8. The outstanding principal balance hereof, together with all accrued
interest, if not paid sooner, shall be due and payable in full on the fifth
(5th) anniversary date of the Conversion Date (the "Maturity Date").
9. All payments and prepayments shall, at the option of the Agent for the
account of the Bank, be applied first to any costs of collection, second to any
late charges, third to accrued interest and the remainder thereof to principal.
10. This Term Revolving Note may be prepaid at any time, at the option of
the Borrower, either in whole or in part, subject to the obligation of the
Borrower to compensate the Bank for any loss, cost or expense as a result of
such prepayment as set forth in the Credit Agreement. This Term Revolving Note
is subject to mandatory prepayment, at the option of the Agent, as provided in
the Credit Agreement.
11. In addition to the rights and remedies set forth in the Credit
Agreement: (i) if the Borrower fails to make any payment to Bank when due under
this Term Revolving Note, then at Agent's option in each instance, such
obligation or payment shall bear interest from the date due to the date paid at
2% per annum in excess of the rate of interest that would otherwise be
applicable to such obligation or payment under this Term Revolving Note; (ii)
upon the occurrence and during the continuance of an Event of Default beyond any
applicable cure period, if any, at Agent's option in each instance, the unpaid
balances under this Term Revolving Note shall bear interest from the date of the
Event of Default or such later date as Agent shall elect at 2% per annum in
excess of the rate(s) of interest that would otherwise be in effect under the
terms of this Term Revolving Note; and (iii) after the Maturity Date, whether by
reason of acceleration or otherwise, the unpaid principal balance of this Term
Revolving Note (including without limitation, principal, interest, fees and
expenses) shall automatically bear interest at 2% per annum in excess of the
rate of interest that would otherwise be in effect under this Term Revolving
Note. Interest payable at the Default Rate shall be payable from time to time on
demand or, if not sooner demanded, on the last day of each calendar month.
12. If the Borrower fails to make any payment to Agent within ten (10) days
of the due date thereof, the Borrower shall pay, in addition to such amount, a
late charge equal to five percent (5%) of the amount of such payment.
13. This Term Revolving Note is secured by, among other instruments, a
Mortgage, Security Agreement and Financing Statement covering various parcels of
real property, fixtures, and personal property located in Pottawattamie County,
Iowa. In the event any such security is found to be invalid for whatever reason
as provided for in the Credit Agreement, such invalidity shall constitute an
Event of Default hereunder. All of the agreements, conditions, covenants,
provisions, and stipulations contained in the Mortgage, or any instrument
securing this Term Revolving Note are hereby made a part of this Term Revolving
Note to the same extent and with the same force and effect as if they were fully
set forth herein. It is agreed that time is of the essence of this Term
Revolving Note.
13. Upon the occurrence at any time of an Event of Default or at any time
thereafter, the outstanding principal balance hereof plus accrued interest
hereon plus all other amounts due hereunder
shall, at the option of the Agent, be immediately due and payable, without
notice or demand, and Agent shall be entitled to exercise all remedies provided
in this Term Revolving Note, the Credit Agreement, or any of the Loan Documents.
14. Upon the occurrence at any time of an Event of Default or at any time
thereafter, the Bank shall have the right to set off any and all amounts due
hereunder by the Borrower to the Bank against any indebtedness or obligation of
the Bank to the Borrower.
15. The Borrower promises to pay all reasonable costs of collection of this
Term Revolving Note, including, but not limited to, reasonable attorneys' fees
paid or incurred by the Agent on account of such collection, whether or not suit
is filed with respect thereto and whether or not such costs are paid or
incurred, or to be paid or incurred, prior to or after the entry of judgment.
16. Demand, presentment, protest and notice of nonpayment and dishonor of
this Term Revolving Note are hereby waived.
17. This Term Revolving Note shall be governed by and construed in
accordance with the laws of the State of Minnesota.
18. The Borrower hereby irrevocably submits to the jurisdiction of any
Minnesota state court or federal court over any action or proceeding arising out
of or relating to this Term Revolving Note, the Credit Agreement and any
instrument, agreement or document related hereto or thereto, and the Borrower
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Minnesota state or federal court.
The Borrower hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. Nothing in this Term Revolving Note shall affect the right of the
Agent to bring any action or proceeding against the Borrower or its property in
the courts of any other jurisdiction to the extent permitted by law.
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
an Iowa limited liability
company
By /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Its: General Manager
By /s/ Xxxxx Xxxx
-----------------------------------------
Xxxxx Xxxx
Its: Board Chairman
GP:2091892 v1
