EXHIBIT 10.17
DISBURSING AGREEMENT
THIS DISBURSING AGREEMENT is made and entered into as of November 23,
2004, by and among EAST KANSAS AGRI-ENERGY, L.L.C., a Kansas limited liability
company ("BORROWER"), Home Federal Savings BANK ("LENDER"), and First American
Title Insurance Company of Kansas, a Kansas corporation ("ESCROW COMPANY").
RECITALS:
A. Borrower and Lender have entered into a Credit Agreement of even
date herewith (THE "CREDIT AGREEMENT") providing for a loan (the "LOAN") in the
maximum principal amount of $26,000,000. A portion of the proceeds of the Loan
are to be used by Borrower to pay up to 60% of the Construction Costs for
construction of an ethanol production, storage and distribution facility and
related improvements (the "PROJECT") to be located on the real estate described
in EXHIBIT A attached hereto (the "PROPERTY").
B. Borrower and Lender have obtained a Commitment for Title
Insurance for a mortgagee's title insurance policy (the "TITLE POLICY") relating
to the Lender's Mortgage on the Property in the amount of $26,000,000, such
Title Policy to be issued by Escrow Company.
C. Borrower and Lender have requested that the Escrow Company act
as disbursing agent for the disbursement of the Loan under the Credit Agreement
in accordance with the terms thereof and of this Agreement.
AGREEMENT:
In consideration of the above recitals, of Lender's agreement to lend
funds to Borrower under the Credit Agreement, and of the mutual agreements set
forth below, the parties agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined in
this Agreement shall have the meanings given to them in the Credit Agreement.
2. CONTRACTORS AND CONTRACTS. Borrower shall submit to the Escrow
Company a copy of the Sworn Construction Cost Statement, and shall advise Lender
and the Escrow Company of the name of the construction firm engaged as general
contractor ("GENERAL CONTRACTOR") for completion of the Project, as well as all
subcontractors thereof (each a "SUBCONTRACTOR"). Borrower shall also furnish to
Lender (and the Escrow Company if so requested) a copy of the Lump Sum
Design-Build Agreement with the General Contractor (the "GENERAL CONTRACTOR'S
CONTRACT") and, as may be requested by Lender or Escrow Company, each contract
with each of the Subcontractors. Borrower shall keep the Escrow Company and
Lender advised at all times of the names of all Subcontractors, and of the type
of work, material or services and of the dollar amount covered by each of their
respective contracts with Borrower. It is understood that only (a) the General
Contractor, (b) those Subcontractors whose names, contract descriptions and,
after
3. CONSTRUCTION. The Borrower shall not commence construction of,
or accept delivery of materials for, the Project prior to the recording of the
Mortgage without the prior written consent of Lender and the Escrow Company,
which consent is hereby granted.
4. AMOUNT OF ADVANCES. Borrower may obtain advances for
disbursement to the
General Contractor or Subcontractors only to the extent of the amount currently
due to each for work satisfactorily completed or materials actually incorporated
into the Project by the General Contractor or Subcontractors, less any retainage
required herein, and Borrower agrees that all sums requested hereunder for
disbursement to the General Contractor or Subcontractors shall not exceed that
amount. Lender shall not be required to make the final advance for the payment
of the full amount of the General Contractor's Contract until Lender is
satisfied that all of the work covered by such contract has been completed in
accordance with the approved Construction Plans, and all requirements set forth
in the Credit Agreement have been fully complied with, including the
requirements to evidence Construction Completion.
5. RETAINAGE. Borrower may submit a Construction Draw Request for
payment to the General Contractor no more than once each month and subject to a
ten percent (10.0%) retainage of the aggregate amount of each such Construction
Draw Request, provided, however, that when fifty percent (50%) of the total
contract price for the Project ($17,950,000 aggregate payment) has been
completed by the General Contractor, no additional amounts shall be retained
from subsequent Construction Draw Requests, unless there is less than $1,795,000
total retainage. At such time as Lender shall have delivered notice to Escrow
Company that the Inspecting Architect has confirmed that the Project is
substantially complete, Escrow Company shall deliver to General Contractor all
retained amounts relating to the completed portion of the Project, less an
amount equal to the reasonable value of all remaining or incomplete items of the
Project, provided that such payment shall only be disbursed when all of the
conditions of the final Construction Draw Request as provided in this Agreement
have been satisfied and Lender has been satisfied that the Project has been
acceptably completed in accordance with the Construction Plans.
6. ADVANCES THROUGH ESCROW COMPANY. Lender agrees that it will
deliver the executed Mortgage to the Escrow Company for recording. Lender also
agrees that it will advance all Loan proceeds under the Credit Agreement through
the Escrow Company as provided in this Agreement, except for payments to be made
to Lender (for interest and other charges), in accordance with the Credit
Agreement, which Lender may advance directly to itself.
7. CONDITIONS OF FIRST ADVANCE. Prior to advancing funds for the
first Construction Borrowing, the Escrow Company shall be furnished:
(a) An approval by Lender of the satisfaction of Conditions under
the Credit Agreement. The approval shall take the form of a
letter of instruction to the Escrow Company from Lender or
Lender's attorneys, Xxxxxxxxx & Xxxxxx P.L.L.P.
(b) An approval by the Lender of the condition of title to the
Project. The Lender's approval shall take the FORM of a letter
of instruction to the Escrow Company from Lender's attorneys,
Xxxxxxxxx & Xxxxxx P.L.L.P., or receipt and approval of a
marked-up title insurance commitment by such attorneys. The
Escrow Company shall have issued or shall be prepared to issue
the Mortgagee's Policy of Title Insurance in the form described
in such letter or commitment.
(c) Copies of any other construction documents required by Lender or
the Escrow Company in their reasonable discretion.
8. REQUIREMENTS FOR EACH ADVANCE. Whenever Borrower desires to
obtain an advance of funds for payment in connection with construction of the
project (an "ADVANCE"), Borrower shall submit a signed Construction Draw Request
pursuant to the Credit Agreement to Lender, to the Inspecting Architect, and to
the Escrow Company, at least five (5) Business Days prior to the date on which
the requested Advance is to be advanced ("ADVANCE DATE"). BORROWER shall also
simultaneously submit, in escrow, to the Escrow Company the following:
(a) General Contractor's Application for Payment (AIA FORM) to
establish the cost or
value of the Improvements for which Advances are to be and have
been advanced or as may be required by the Credit Agreement.
(b) A report of the Inspecting Architect certifying that work has
been completed and materials are in place as indicated by the
Construction Draw Request.
(c) A waiver of mechanic's lien and/or materialman's lien, executed
by the General Contractor, in the amount of the lienable costs
of the Project payable from the requested Advance, together with
a waiver of mechanic's lien and/or materialman's lien executed
by each Subcontractor and supplier to which any portion of any
preceding Advance was paid covering liens for all work done and
materials supplied for which disbursement was made from any
preceding Advance, in the fog i required by the Escrow Company.
Such waivers shall be accompanied by a schedule listing all
disbursements made from the preceding Advance and the recipients
thereof.
The Escrow Company shall request a search of the appropriate records
and, within five (5) Business Days after receiving the foregoing items, shall
(i) give Lender notice by telephone if any intervening LIENS are disclosed
(other than those expressly listed in the Title Policy or subsequent Amendments
thereto previously provided to Lender), and (ii) deliver to Lender any
endorsements necessary to include the amount of the Advance within the coverage
of the Title Policy. If any such intervening liens (or other matters which in
Lender's sole judgment jeopardize its security interest in the Property) are
discovered by the Escrow Company, the Escrow Company shall refrain from making
further disbursements until Lender notifies the Escrow Company that such
intervening liens or other matters have been waived by Lender or satisfied. Upon
demand of Lender, Borrower shall immediately cause any such liens or other
matters to be satisfied of record or bonded, or shall make other arrangements
with respect to the discharge thereof satisfactory to Lender.
Prior to advance of the final Advance proceeds and in addition to the
other requirements set forth in this Agreement, the Borrower shall deliver to
the Lender the items described in SECTION 9 of this Agreement.
On each Advance Date, if all the Eel tits and conditions of the Credit
Agreement and this Agreement have been complied with by Borrower, if no default
or Event of Default exists under the Credit Agreement, and if Lender has
approved the Advance, Lender shall advance to the Escrow Company, in a manner
satisfactory to the Escrow Company and Lender, the principal amount of the
requested Advance (less any required retainage and less amounts payable to and
advanced by Lender to itself). The Escrow Company shall, as promptly as possible
thereafter, if all of the conditions of this Agreement have been complied with
in a manner satisfactory to the Escrow Company, and if the Escrow Company has
not received notice from Lender that a default or an Event of Default exists
under the Credit Agreement, disburse the proceeds so received from Lender by
delivering to the General Contractor and Subcontractors of Borrower, or, at
Lender's request or the Escrow Company's option, to each of the Subcontractors
entitled to receive a ny of such proceeds, by check, wire transfer or automated
clearinghouse transfer, the amounts set forth in such Construction Draw Request;
provided, however, Escrow Company shall not disburse the proceeds so received
from Lender until it has received a waiver of mechanic's lien and/or
materialman's lien, executed by the General Contractor, in the amount of the
lienable costs payable from the requested Advance less the appropriate
retainage, together with a waiver of mechanic's lien and/or materialman's lien
executed by each Subcontractor to which any portion of any preceding Advance was
paid covering liens for all work done and materials supplied for which
disbursement was made from any preceding Advance, in the form required by Lender
and/or the Escrow Company. Such waivers shall be accompanied by a schedule, in a
form acceptable to Lender, listing all disbursements made FROM the preceding
Advance and the recipients thereof.
9. CONDITIONS TO FINAL ADVANCE. At the time of submission of the
final Construction Draw Request, which shall not be submitted until completion
of the Project, Borrower shall also submit the following to Lender and/or the
Escrow Company, as indicated below:
(a) to the Escrow Company, a written lien waiver from each General
Contractor, Subcontractor and supplier that has provided more
than $100,000 of work and/or materials in respect of the Project
for all work theretofore done and for all materials theretofore
furnished by it for construction or installation of the
Improvements, which lien waivers shall conform in form and
amount to the Sworn Construction Statement;
(b) to Lender and the Escrow Company, such other supporting evidence
as may reasonably be requested by Lender or the Escrow Company
to substantiate all payments which are to be made out of such
Advance and/or to substantiate all payments then made with
respect to the Project;
(c) to Lender, evidence satisfactory to Lender that all work
requiring inspection by municipal or other governmental
authorities having jurisdiction has been duly inspected and
approved by such authorities and by the rating or inspection
organization, bureau, corporation or office having jurisdiction,
and that all requisite certificates of occupancy and other
approvals have been issued:
(d) to Lender, an AIA certificate of completion signed by Borrower,
the General Contractor and the Inspecting Architect certifying
that the Project has been completed substantially in accordance
with the Construction Plans;
(e) to Lender, upon request by Lender, at Borrower's cost, a written
appraisal letter from a qualified Person confirming the value of
the Project as completed; and
(f) to Lender, evidence satisfactory to Lender that the plant is
capable of operating at the performance levels as set forth in
the Performance Guarantee Criteria in the General Contractor's
Contract.
10. EXCEPTIONS TO REQUIREMENTS FOR ADVANCES; SPECIAL DOCUMENTATION.
The provisions of this Agreement requiring submission of the documents specified
in SECTION 8 above shall not apply with respect to Loan proceeds to be disbursed
for the items listed below, which may be disbursed in full upon submission of a
Construction Draw Request listing such items signed by Borrower or Lender,
and/or the following special documentation, if any, delivered to Lender and the
Escrow Company or as otherwise provided by the Credit Agreement:
ITEM SPECIAL DOCUMENTATION
---- ---------------------
Lender charges (interest, fees, etc.) None
Attorneys' fees (including Lender's counsel) Copy of Statement
and inspecting Architect's fees
OTHER indirect (non-construction) items As specified by Lender and the
Escrow Company
If Borrower directly pays certain costs of construction, and Lender and
the Escrow Company approve, the Escrow Company may disburse Loan proceeds
allocated for payment of such construction costs directly to Borrower as a
reimbursement for such payment; PROVIDED that all of the other requirements of
this Agreement, including but not limited to the presentation of waivers of lien
with
respect thereto, are fulfilled.
11. ESCROW COMPANY'S RECORDS. The Escrow Company shall keep records
showing the names of all Subcontractors and other payees to whom disbursements
of Loan proceeds are made by the Escrow Company, the date of each disbursement,
and the amount of each disbursement, which records may BE inspected by Borrower
and Lender.
12. IMPROPER DOCUMENTATION; RETURN OF FUNDS TO LENDER. If the Escrow
Company shall determine, in its reasonable judgment, that proper documentation
to support a given disbursement, as required by this Agreement, has not been
furnished, the Escrow Company shall withhold payment of all or such portion of
such disbursement as shall not be so supported by proper documentation, and
shall promptly notify Borrower and Lender of the discrepancy in or omission of
such documentation. Until such time as such discrepancy or omission is corrected
to the satisfaction of the Escrow Company, it shall withhold such amount. In the
event that such discrepancy or omission is not corrected within five (5)
Business Days, the Escrow Company shall, upon demand of Lender, return such
withheld funds to Lender, and the Obligations of Borrower to Lender under the
Credit Agreement shall be credited with the amount of such funds. Such returned
funds shall remain available for readvancement under the Credit Agreement, if
the requirements thereof and hereof with respect thereto are later met. Escrow
Company shall not be liable to any party to this Agreement for any interest on
undisbursed funds.
13. INSPECTIONS OF PROJECT. Borrower shall be responsible for making
inspections of the Project during the course of construction, and shall
determine to its own satisfaction that the work done or material supplied by the
General Contractor and Subcontractors to whom disbursements are to be made out
of each Advance has been properly done or supplied in accordance with applicable
contracts with the General Contractor and such Subcontractors. The Escrow
Company and Lender shall not be required to conduct on behalf of the Borrower
any inspection of the Project.
14. LOAN BALANCE. If at any time during the course of construction,
the total of the unpaid Construction Costs as indicated by the column totals on
the Sworn Construction Cost Statement exceeds the amount of undisbursed Loan
proceeds, the Escrow Company shall not make further disbursements under the
terms of this Agreement unless specifically directed to do so by Lender.
15. LENDER'S AND ESCROW COMPANY'S LIABILITY. It is expressly
understood and agreed that neither the Escrow Company nor Lender assumes any
liability or responsibility for the satisfactory completion of the Project, for
the adequacy of funds advanced or disbursed by either of them pursuant hereto
and to the Credit Agreement to complete the Project, for inspections during
construction, or for any acts on the part of Borrower or the General Contractor
or the Subcontractors to be performed in the construction of the Project. Escrow
Company shall not be liable to any party for any interest in the event funds are
advanced by Lender but not disbursed pending the resolution of any dispute.
16. NOTICES. Any notice required or permitted to be given by any
party hereto to any other party hereto under the terms of this Agreement shall
be deemed to have been given on the date the same is deposited in the United
States mail, registered or certified, return receipt requested, postage prepaid,
addressed to the party to which the notice is to be given at the address set
forth opposite its name below, or at any other address specified in a notice
given by such party to the other parties not less than ten (10) days prior to
the effective date of the address change:
If to Borrower: EAST KANSAS AGRI-ENERGY, L.L.C.
Attention: Xxxxxxx X. Xxxxxx
210 1/2 East 4th Avenue, X.X. Xxx 000
Xxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
With a Copy to: Xxxx Xxxxxxx, Esq.
Brown, Winick, Graves, Gross, P.L.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
And a copy to: Xx. Xxxxxx Xxxxx
Xxxxxxxxx & Xxxxxx P.L.L.P.
4200 IDS Center
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
If to Lender: Home Federal Savings Bank
0000 Xxxxx Xxxxxx Xxxxx XX
Xxxxx 000
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
If to Escrow Company: First American Title Insurance Company
National Commercial Services
0000 Xxxxxxx Xxxxx Xxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
17. APPROVAL OF DOCUMENTS. All documents required to be delivered by
Borrower to Lender or the Escrow Company pursuant to this Agreement shall be in
form and content acceptable to Lender or the Escrow Company, as the case may be.
18. LENDER'S RIGHTS. All of Lender's rights herein are in addition
to, and not substitution of, Lender's other rights under the Credit Agreement
and other Loan Documents. No parties shall have been deemed to have waived any
right hereunder, unless such waiver is in writing signed by the party to be
charged thereby. This Agreement shall be governed by the laws of the State of
Minnesota, without regard to its conflicts or choice of law provisions. This
Agreement constitutes the entire agreement between the parties concerning the
subject matter hereof.
19. COUNTERPART SIGNATURES. This Agreement may be executed by each
party in one or more counterparts, each of which shall be deemed an original and
all of which taken together shall constitute one binding document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and YEAR first above written.
BORROWER:
EAST KANSAS AGRI-ENERGY, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
LENDER:
HOME FEDERAL SAVINGS BANK
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
ESCROW COMPANY:
FIRST AMERICAN TITLE INSURANCE COMPANY
OF KANSAS
By:
-------------------------------------
Name:
---------------------------
Title:
19. COUNTERPART SIGNATURES. This Agreement may be executed by each
party in one or more counterparts, each OF WHICH shall be deemed an original and
all of which taken together shall constitute one binding document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
BORROWER:
EAST KANSAS AGRI-ENERGY, L.L.C.
By:
-------------------------------------
Name:
---------------------------
Title:
LENDER:
HOME FEDERAL SAVINGS BANK
By:
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
ESCROW COMPANY:
FIRST AMERICAN TITLE INSURANCE COMPANY
OF KANSAS, INC.
By: /s/ Xxxx Xxxxx
-------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
TRACT I (PARCEL "A"):
All of Lots One (1), Two (2), Three (3) and Four (4), except the West 450 feet
of said Lot Two (2) and Lot Three (3), in the Golden Prairie Industrial Park
Addition to the City of Xxxxxxx, Xxxxxxxx County, Kansas.
A strip of land described as the South 50 feet of the West 450 feet of Lot Two
(2), in the Golden Prairie Industrial Park Addition to the City of Xxxxxxx,
Xxxxxxxx County, Kansas.
TRACT 2 (PARCEL "B"):
Beginning at a 1/2" rebar at the Southwest corner of the Southeast Quarter
(SE/4) of Section Thirty (30), Township (20) South, Range Twenty (20) East of
the Sixth Principal Meridian, THENCE North 02(DEGREES)14'48" West for a distance
of 925.52 feet to a 1/2" rebar on the West line of said Southeast Quarter
(SE/4), THENCE South 68(DEGREES)39'56" East for a distance of 896.17 feet to a
1/2" rebar; THENCE South 74(DEGREES)03'04" East for a distance of 428.02 feet to
a 1/2" rebar; THENCE South 02(DEGREES)14'48" East for a distance of 444.00 feet
to a 1/2" rebar on the South line of said Southeast Quarter (SE/4); THENCE South
88(DEGREES)15'01" West for a distance of 1228.00 feet along said South line to
the point of beginning.
Note: Parcel designations are for convenience of reference only and do not
constitute an integral part of the legal description.
