Exhibit 10.17
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Agreement") is made as of May
2, 2007, by SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa limited liability
company (the "Borrower"), for the benefit of AGSTAR FINANCIAL SERVICES, PCA, and
its successors and assigns, as Agent (in such capacity, the "Agent") for the
benefit of the Banks (the "Banks") in connection with that certain Credit
Agreement of even date herewith (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement").
RECITALS
A. The Banks have agreed to make certain loans to the Borrower, in the
aggregate principal amount of One Hundred Twenty-six Million and No/cents
($126,000,000.00) (the "Loan"). The Loan is evidenced by the Credit Agreement
and the Construction Note, Term Revolving Note and Revolving Line of Credit Note
(together the "Notes"), and secured by, among other things, the Mortgage (Open
End) creating a lien (the "Mortgage") on certain real property located in
Pottawattamie County, Iowa, as more particularly described on Exhibit A attached
hereto, together with the improvements and personal property located thereon
(collectively, the "Premises").
B. The making of the Loan is subject to the condition precedent that
Borrower makes and delivers this Agreement to the Agent for the benefit of the
Banks.
C. Borrower acknowledges that the Banks would not make the Loan in the
absence of this Agreement, and that the Borrower is entering into this Agreement
for the purpose of inducing the Banks to make the Loan to it, notwithstanding
any contrary provision contained in the Credit Agreement, the Mortgage, or any
other document given in connection with the Loan (such other documents being
collectively referred to herein as the "Collateral Loan Documents").
D. Borrower acknowledges that the Banks may sustain Losses (as defined in
Section 4(a)) both prior to and following a foreclosure of the Banks' security
interest in the Premises pursuant to the Mortgage or the Collateral Loan
Documents or conveyance in lieu thereof, as well as after the Notes are paid in
accordance with its terms.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Hazardous Substances. As used herein, "Hazardous Substance" shall mean
and include, but shall not be limited to, any element, substance, compound,
mixture, waste, material, pollutant or contaminant (including, without
limitation, asbestos, any petroleum or petroleum derived waste or products, and
raw materials that include hazardous or harmful constituents); to the extent the
foregoing items are included under or regulated by any federal, state or local
law, rule or regulation applicable to Borrower's activities on the Premises, as
now or hereafter enacted or amended, including, without limitation, the Federal
Comprehensive Environmental
Response, Compensation and Liability Act of 1980; the Federal Resource
Conservation and Recovery Act; the Federal Superfund Amendments and
Reauthorization Act of 1986; the Federal Toxic Substances Control Act; the
Federal Hazardous Material Transportation Act; the Federal Clean Air Act; the
Federal Water Pollution Control Act; together with any other federal, state or
local superlien or other statutes, rules or regulations, as now or hereafter
amended in any way pertaining to clean-up; disclosure; water pollution control;
air pollution control; regulation of solid waste; hazardous waste management;
storage tanks; regulation of environmentally sensitive areas; regulation of
drinking water; use of ground water, surface waters and wetlands; hazardous and
toxic substance reporting; environmental preservation or control; indoor air
quality issues, including asbestos, radon and tobacco smoke; and any other laws,
including case law, which might be deemed or referred to as environmental common
law (all such laws, rules and regulations being referred to collectively as
"Environmental Laws") and any other substances now or hereafter deemed
hazardous, toxic, or otherwise harmful, including but not limited to, mold and
other contaminants, regardless of whether the same are regulated under any
Environmental Laws.
2. Representations and Warranties.
(a) Investigation. Borrower has performed the following assessments on
the Premises:
1. Phase I Environmental Site Assessment for Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 00 Xxxx, Xxxxxxxxxxxxx Xxxxxx, dated December 16,
2005;
2. Phase I Environmental Site Assessment for 275 Acres within the SE
1/4 of Section 18 and E 1/2 of Section 19, Township 74 North,
Range 43 West, Pottawattamie County, dated February 15, 2006;
3. Limited Site Investigation (Phase II) for the above-named
properties, dated March 6, 2006; and
4. Phase I Environmental Site Assessments for each of the
above-named properties, which are compliant with the standards
set forth in the ASTM E1527-05 Phase I Environmental Site
Assessment Process.
Borrower has provided such assessments, and all updates, amendments,
supplements, and modifications thereto (collectively, hereinafter the
"Environmental Reports") to the Agent. Except as otherwise disclosed in writing
to the Agent, the Environmental Reports comply with the standards set forth in
the ASTM E1527-05 Phase I Environmental Site Assessment Process and provide such
additional information as Agent has required in order to establish that Agent
has made "all appropriate inquiries" as provided under Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA) and 40 C.F.R.
Part 312. Borrower's knowledge of environmental conditions on, under and at the
Premises is limited to the information contained in the Environmental Reports.
(b) No Violations. Except as disclosed in the Environmental Report, neither
the Borrower, the Premises nor any other property owned by Borrower: (i) is
subject to any private or governmental lien or judicial or administrative
notice, order or action relating to
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Hazardous Substances or environmental problems, impairments or liabilities with
respect to the Premises or such other property; or (ii) is in, or with any
applicable notice and/or lapse of time, and/or failure to take certain curative
or remedial actions, will be in violation of any Environmental Laws.
(c) No Hazardous Substances on Premises. Except as disclosed in the
Environmental Report, no Hazardous Substances (except for nominal amounts used
in the ordinary course of business and in compliance with all applicable
Environmental Laws) are or have been located, used, stored, disposed of,
possessed, managed, processed, generated, transported, treated, discharged or
released in, on, from or with respect to the Premises (including ground water
contamination) and no above ground or underground storage tanks are located on
the Premises. Borrower shall not allow any Hazardous Substances to be located,
used, stored, disposed of, possessed, managed, processed, generated,
transported, treated, discharged or released in, on, from or with respect to the
Premises (including ground water contamination) or otherwise handled on the
Premises (except for nominal amounts used in the ordinary course of business and
in compliance with all applicable Environmental Laws), unless in compliance with
all applicable Environmental Laws.
(d) All Necessary Approvals Obtained. Borrower warrants that it has
obtained all necessary approvals and satisfactory clearances for use of the
Premises from all appropriate federal, state and local governmental authorities,
utility companies and development entities, including but not limited to the
Iowa Department of Natural Resources (and any successor authority) and any
County or City departments, public water works and public utilities in regard to
the use of the Premises and the presence, use, storage, disposal, processing,
generation, transportation, treatment, discharge or release of any Hazardous
Substances in, on, from or with respect to the Premises.
(e) Financial Condition. The Borrower hereby represents that, as of the
date hereof, (i) Borrower's obligations to its creditors, including, but not
limited to, all payments and accounts relating to the Premises, are current;
(ii) any and all representations to the Agent representing Borrower's financial
condition are true and correct, and there has not been any material adverse
change in any Borrower's financial condition, credit rating, business,
operations or affairs since the date of said representations; (iii) there is no
action, proceeding or claim pending or threatened against the Borrower before
any court, administrative agency, or arbitration panel of any kind, which if
adversely decided would result in a materially adverse change in the business or
financial condition of the Borrower; (iv) there are no outstanding judgments,
arbitration awards, decrees, or orders of any kind pending against the Borrower;
(v) no petition of bankruptcy, whether voluntary or involuntary, nor assignment
for the benefit of creditors, nor any other action involving debtors' or
creditors' rights under the laws of the United States or any state has been
filed by or threatened by or against the Borrower; and (vi) the Borrower is
solvent and is not contemplating any proceedings described in subsection (v).
(f) Financial Statements. Upon (i) a Default by Borrower under the Credit
Agreement, the Notes, the Mortgage, or the Collateral Loan Documents; (ii) the
discovery of the presence, use, storage, disposal, processing, generation,
transportation, treatment, discharge or release of any Hazardous Substances in,
on, from or with respect to the Premises in violation of this Agreement; (iii)
the occurrence of any matter entitling the Banks to call upon the indemnity
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provided in this Agreement; or (iv) a Default under this Agreement, the Borrower
agrees to furnish to the Agent within ten (10) days of demand, a financial
statement for the Borrower current within six (6) months. All financial
statements provided pursuant to this subsection shall be signed and dated and
certified by the Borrower to be true and correct and shall detail the assets and
liabilities of the Borrower, all in form and substance acceptable to the Agent.
(g) Authority. The Borrower is an entity and the persons executing this
Agreement on behalf of Borrower represent and warrant to the Banks that (i) the
Borrower is legally organized and validly existing, in good standing, under the
laws of the state of its organization and duly qualified, to the extent
necessary, in the state or states in which the Premises are located and in all
other jurisdictions in which the Borrower owns property or conducts business;
(ii) the execution and delivery of this Agreement and the performance by the
Borrower of its obligations hereunder have been duly authorized and approved;
(iii) the persons executing this Agreement on behalf of the Borrower are duly
elected, qualified and acting officers of Borrower and have full legal capacity
and authority to execute and deliver this Agreement on behalf of the Borrower;
and (iv) the Borrower shall maintain its existence, qualification to do
business, name, rights and franchises in all states in which such qualification
is necessary to remain in good standing.
(h) No Conflict or Lien. Compliance by the Borrower with its obligations
under this Agreement has not resulted and will not result in the violation of or
result in the creation of any lien, charge or encumbrance upon any property or
asset of the Borrower under any agreement or other instrument to which the
Borrower may be a party or by which the Borrower or any of its assets are bound.
3. Covenants.
(a) Compliance with Laws. Borrower shall comply strictly and in all
material respects with the requirements of the Environmental Laws applicable to
Borrower's activities on the Premises.
(b) Remedial Work. If any investigation, site monitoring, abatement,
containment, clean-up, removal or other remedial work of any kind or nature (the
"Remedial Work") is necessary because of, or in connection with, the current or
future presence, suspected presence, release or suspected release of a Hazardous
Substance in, on, from or with respect to the Premises (or any portion thereof),
Borrower shall promptly (and in all events within the time required under any
applicable Environmental Law, order or agreement) commence and thereafter
diligently prosecute to completion, all such Remedial Work; provided however,
the Agent may require that Borrower commence such Remedial Work no later than
thirty (30) days after written demand for performance from the Agent. Such
Remedial Work shall be completed in accordance with all applicable Environmental
Laws (and in all events in a manner satisfactory to the Agent). The Agent shall
have the right to approve any contractors performing Remedial Work in advance
and to require that the Remedial Work be performed under the supervision of a
consulting engineer approved by the Agent. All reasonable costs and expenses in
connection with such Remedial Work shall be paid by Borrower, including without
limitation, the Agent's reasonable fees and costs incurred with monitoring and
reviewing the Remedial Work.
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(c) No Unauthorized Substances. Borrower hereby covenants and agrees not to
take or fail to take any action that will result in the unauthorized presence,
use, storage, disposal, processing, generation, transportation, treatment,
discharge or release of any Hazardous Substances in, on, from or with respect to
the Premises.
(d) Obligation to Notify Agent. Borrower shall immediately notify the Agent
should Borrower become aware of (i) any unauthorized release of, or
contamination from, any Hazardous Substance on, in or under or over the
Premises; or (ii) any litigation relating to any alleged unauthorized release of
any Hazardous Substance or discovery of any Hazardous Substance or other
contamination, liability or problem respecting the Premises. Borrower shall
promptly forward to the Agent copies of all orders, notices, permits and
applications or other communications and reports in connection with any
unauthorized release or discovery of any Hazardous Substance or other
contamination, or any other environmental matters affecting the Premises.
(e) Environmental Audit. As soon as reasonably practicable, upon the
written and good faith request of the Agent from time to time, Borrower shall
provide the Agent, at Borrower's expense, with an environmental site assessment
or environmental audit report in form and content acceptable to the Agent
regarding the Premises (an "Environmental Audit"). The Environmental Audit shall
be prepared by an environmental engineering firm acceptable to Agent, shall
assess with a reasonable degree of certainty (including a subsurface
investigation if warranted) the presence or absence of any Hazardous Substances
and shall indicate the potential costs in connection with any site monitoring,
abatement, containment, clean-up, removal or other remedial work of any kind or
nature relating to Hazardous Substances found in, on, under, at, within or
emanating from the Premises.
4. Indemnity.
(a) Scope of Indemnity. Borrower hereby agrees to indemnify, save, defend
(at Borrower's sole cost and expense) and hold harmless Banks and the officers,
directors, shareholders, agents, attorneys and employees of Banks, and the
successors and assigns of each of the foregoing (all of such persons or entities
being collectively referred to herein as "Indemnified Parties" and each such
reference shall refer jointly and severally to each such persons) from and
against the full amount of any and all Losses (as hereinafter defined),
regardless of the acts or omissions of Indemnified Parties except as hereinafter
specifically excepted. "Losses" shall mean any and all liabilities, obligations,
losses, damages, penalties, claims, actions, suits and costs and expenses
(including but not limited to all costs and expenses associated with court or
administrative proceedings (through the appellate level)) such as condemnation,
bankruptcy and other administrative proceedings, as well as any other of the
foregoing where a proof of claim is by law required to be filed, or in which it
becomes necessary to defend or uphold the terms of this Agreement, together with
reasonable attorneys' fees and other reasonable professional and consultant's
expenses incurred in investigating, preparing for, serving as a witness in or
defending against any action or proceeding whether actually commenced or
threatened), arising from, in respect of, as a consequence of, or in connection
with any of the following: (i) the presence, use, storage, disposal, processing,
generation, transportation, treatment, discharge or release of any Hazardous
Substances in, on, from or with respect to the Premises, regardless of whether
the same is caused or permitted by Borrower or
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any other person or entity; (ii) the removal of any Hazardous Substances on,
from or with respect to the Premises, regardless of whether the same is
performed by Borrower or any other person or entity and regardless of whether or
not such removal is rendered voluntarily or pursuant to a court order or the
order of an administrative agency; (iii) claims asserted by any person or entity
(including, without limitation, any governmental or quasi-governmental agency,
authority, board, bureau, commission, department, instrumentality, public body,
court or administrative tribunal (a "Governmental Agency")), in connection with
or in any way arising out of the presence, use, storage, disposal, processing,
generation, transportation, treatment, discharge or release of any Hazardous
Substances in, on, from or with respect to the Premises, either prior to or
after the date of this Agreement and either prior to or after the time that
Borrower became the owner of the Premises; (iv) the violation or claimed
violation of any Environmental Laws in regard to the Premises, whether such
violation or claimed violation occurred prior to or after the date of this
Agreement and regardless of whether such violation occurred prior to or after
the time that Borrower became the owner of the Premises; (v) the preparation of
an Environmental Audit on the Premises conducted pursuant to paragraph 3(e)
above or authorized by Borrower and the implementation of any such Environmental
Audit's recommendations; and (vi) the cost of enforcing this Agreement. Agent
may employ the attorneys and/or consultants of its choice. The foregoing shall
not apply to Losses resulting from Hazardous Substances brought on to the
Premises by an Indemnified Party or to any act by an Indemnified Party which
constitutes "participating in management" within the meaning of 42 U.S.C. ss.
9601(20)(F)(i)-(ii) and results in the Loss(es).
(b) Effect. Borrower's obligations under this Agreement shall arise upon
the discovery of the improper or unauthorized presence, use, storage, disposal,
processing, generation, transportation, treatment, discharge or release of any
Hazardous Substances in, on, from or with respect to the Premises, whether or
not a Governmental Agency has taken or threatened any action in connection
therewith.
(c) Agent's Self-Help Rights. If Borrower fails to comply with the
requirements of any Environmental Law, to perform any Remedial Work as required
herein, or to perform any other obligation of Borrower hereunder, Agent may at
its election, but without any obligation to do so, take any and all actions as
Agent shall deem necessary or advisable in order to cure Borrower's failure, in
which event Borrower shall reimburse Agent for all reasonable costs and expenses
thereof or incurred in connection therewith, as provided in Section 5. Before
Agent exercises its Self-Help Rights, Agent shall provide Borrower with a
written notice explaining Agent's proposed actions and reasons therefor within a
reasonable period of time, but in no event less than five weekdays exclusive of
Federal and State holidays. The "proposed actions" to be contained in Agent's
notice need not be detailed, but may specify generic actions such as, by way of
illustration only, "replace the damaged roof over the hazardous waste storage
pad," or "excavate and dispose of contaminated soil south of the aboveground
gasoline storage tank". The "proposed reasons" to be contained in Agent's notice
need not be detailed, but may specify generic reasons such as, by way of
illustration only, "in order to bring the drum storage area into compliance with
RCRA" or "because of the gasoline release on [date]". Borrower may, within a
reasonable time of such notice, initiate a cure consistent with Agent's proposed
actions. Agent's failure to provide the notice and cure opportunity described in
this Section 4(c) shall eliminate Borrower's obligation to reimburse Agent.
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(d) Claim Settlement. So long as Banks is the holder of the Credit
Agreement, the Notes or a mortgagee or assignee under the Mortgage or any of the
Collateral Loan Documents or if Agent at any time shall have become a mortgagee
in possession or a successor in interest to Borrower by foreclosure or deed in
lieu of foreclosure with respect to all or part of the Premises, Borrower shall
not settle any claim relating to the Premises under or on account of any
Environmental Law without Agent's prior written consent, which consent may be
withheld in Agent's reasonable discretion.
5. Payments. Payments due Agent and other Indemnified Parties under this
Agreement shall be due and payable as the same are incurred, without the
requirement that such party wait for the ultimate outcome of any litigation,
claim or other proceeding. Within a reasonable time after any sums are expended
or any Losses are incurred, the Agent or other Indemnified Party (as applicable)
shall notify Borrower thereof; provided, however, that failure to give such
notice shall not relieve Borrower from any liability, duty or obligation
hereunder. Borrower will pay sums due within thirty (30) days after receipt of
notice itemizing the amounts incurred to the effective date of such notice.
Borrower shall pay interest on any amount not paid when due at an interest rate
equal to the Default Rate (as defined in the Credit Agreement and the Notes),
but in no event to exceed the maximum interest rate allowed by law.
6. Obligation to Defend.
(a) Assumption of Defense. Upon request of any Indemnified Party, Borrower
shall be bound to defend any and all actions or proceedings that are brought
against such Indemnified Party in connection with or arising out of the matters
covered by this Agreement. In the event that Borrower is defending an
Indemnified Party, Borrower may settle a claim against the Indemnified Party
only with the Indemnified Party's prior written consent, which consent may be
withheld in the Indemnified Party's reasonable discretion.
(b) Conduct of Defense; Participation by Indemnified Party. In the event an
Indemnified Party has required Borrower to defend it, such defense shall be
conducted by reputable attorneys retained by Borrower, satisfactory to the
Indemnified Party in its sole and absolute discretion, at Borrower's sole cost
and expense. In addition, the Indemnified Party shall have the right to
participate in such proceedings and to be represented by attorneys of its own
choosing. In such case, the Indemnified Party shall be responsible for the cost
of such participation unless the Indemnified Party shall have concluded in its
sole discretion that the interests of the Indemnified Party and of Borrower in
the action conflict in such a manner and to such an extent as to require,
consistent with applicable standards of professional responsibility, the
retention of separate counsel for the Indemnified Party, in which event Borrower
shall pay for separate counsel chosen by the Indemnified Party.
(c) Defense by Indemnified Party. If the Borrower fails to conduct the
defense in Section 6(b) of this Agreement, an Indemnified Party may elect in its
sole and absolute discretion at any time to conduct its own defense of any
action or proceeding that may be brought against it or to which it may be a
party. In addition, Borrower shall be liable for any and all costs and expenses,
including, but not limited to, all reasonable attorney's fees, that the
Indemnified Party incurs.
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7. Default. Time is of the essence hereof. The term "Default," as used in
this Agreement, shall mean the occurrence of any one or more of the following
events:
(a) The failure of Borrower punctually and properly to perform any
covenant, condition or agreement contained in this Agreement;
(b) The filing of a proceeding in bankruptcy or arrangement or
reorganization by or against Borrower pursuant to the United States Bankruptcy
Code or any similar law, federal or state, including but not limited to:
(i) Borrower shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or answer
seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under
any present or future federal, state, or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors, or shall
seek or consent to or acquiesce in the appointment of any trustee, receiver
or liquidator of Borrower, or shall make any general assignment for the
benefit of creditors, or shall admit in writing its inability to pay or
shall fail to pay its debts generally as they become due;
(ii) A court of competent jurisdiction shall enter an order, judgment
or decree approving a petition filed against Borrower seeking any
reorganization, dissolution or similar relief under any present or future
federal, state, or other statute, law or regulation relating to bankruptcy,
insolvency or other relief for debtors, or Borrower shall be the subject of
an order for relief entered by such a court, and such order, judgment or
decree shall remain unvacated and unstayed for an aggregate of sixty (60)
days (whether or not consecutive) from the first date of entry thereof, or
any trustee, receiver, custodian or liquidator of Borrower shall be
appointed without the consent or acquiescence of Borrower and such
appointment shall remain unvacated and unstayed for an aggregate of sixty
(60) days (whether or not consecutive);
(c) The determination by Agent that any representation or warranty of
Borrower set forth in this Agreement or delivered in connection herewith or as
required from time to time hereby is false, misleading or erroneous in any
material respect as of the date thereof; or
(d) The occurrence of a Default under the Credit Agreement, Notes, the
Mortgage, or any of the Collateral Loan Documents.
8. Remedies. If any Default shall have occurred, then Agent shall have the
right to enforce any legal or equitable remedy against the Borrower and to xxx
for any sums whether damages, interest or any other sums required to be paid
under the terms of this Agreement and without prejudice to the right of the
Banks thereafter to enforce any appropriate remedy against Borrower. The rights
of the Banks arising under the clauses and covenants contained in this Agreement
shall be separate, distinct and cumulative and none of them shall be construed
as an election to proceed under any one provision herein to the exclusion of any
other provision, anything herein or otherwise to the contrary notwithstanding.
9. Invalidity. If any term or provision of this Agreement shall be invalid,
illegal or unenforceable, such term or provision shall be severable from the
rest of this Agreement and the
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validity, legality or enforceability of the remaining terms and provisions shall
not in any way be affected or impaired thereby.
10. Separate Obligations. The purpose of this Agreement is to protect Banks
against liability, loss, damage, cost or expense with respect to Hazardous
Substances and Environmental Laws relating to the Premises as provided in this
Agreement, and not as security for payment of the indebtedness evidenced by the
Credit Agreement, Notes or performance of the obligations under the Mortgage and
the Collateral Loan Documents. The obligations of Borrower under this Agreement
are separate from, independent of and in addition to the indebtedness and
obligations under the Credit Agreement, Notes, the Mortgage, and the Collateral
Loan Documents. The liability of Borrower under this Agreement shall not be
limited to or measured by the amount of the indebtedness owed under the Credit
Agreement, the Notes or the Mortgage or the value of the Premises. This
Agreement is not secured by the Mortgage, the obligations hereunder are separate
and independent, and shall not be extinguished by the release or foreclosure of
the Mortgage. Borrower shall be fully and personally liable for all obligations
of Borrower under this Agreement and a separate action may be brought and
prosecuted against any or all of the Borrowers on this Agreement. The liability
of Borrower under this Agreement shall not be subject to any limitation set
forth in the Credit Agreement, the Notes, the Mortgage, or any of the Collateral
Loan Documents, on personal liability for the payment of the indebtedness
evidenced by the Credit Agreement, the Notes, or the remedies of Banks for
enforcement of the obligations under the Credit Agreement, the Notes, the
Mortgage, or the Collateral Loan Documents or the recourse of Banks for
satisfaction of such obligations. This Agreement and the obligations of Borrower
hereunder shall survive, and remain in full force and effect after any
reconveyance of the Mortgage or any foreclosure of the Mortgage (whether by
judicial action, exercise of the power of sale, deed in lieu of foreclosure, or
otherwise) with respect to any release or threatened release of any Hazardous
Substances in, on or under the Premises or any past, present or future violation
of any Environmental Laws at the Premises which occurred, or the onset of which
occurred, before such reconveyance or foreclosure, and Agent shall have the
right to enforce this Agreement after any such reconveyance or foreclosure. To
the extent permitted by applicable law, Borrower waives the right to assert any
statute of limitations as a bar to the enforcement of this Agreement or to any
action brought to enforce this Agreement. This Agreement shall not affect,
impair or waive any rights or remedies of Banks or any rights, defenses or
obligations of Borrower with respect to Hazardous Substances created or imposed
by Environmental Laws (including Banks' rights of reimbursement or contribution
under Environmental Laws). The remedies in this Agreement are cumulative and in
addition to all remedies provided by law.
11. Notice. Any notice that Borrower or Agent may be required or entitled
to give to the other party hereunder shall be in writing and shall be deemed
given when the same is (a) delivered by personal service, (b) delivered by
nationwide overnight delivery service (with charges prepaid); or (c) mailed by
certified mail, postage prepaid, return receipt requested, addressed as
specified below:
If to the Agent: AgStar Financial Services, PCA
0000 Xxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
with copies to: Xxxx, Plant, Mooty, Mooty, & Xxxxxxx, P.A.
0000 Xxxx Xx. Xxxxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
If to the Borrower: Southwest Iowa Renewable Energy, LLC
0000 00xx Xxx.
Xxxxxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxx
The addresses set forth above may be changed as to any party by such party
delivering to the other parties written notice as to such change of address.
12. Captions, Gender, and Number. Any section or paragraph, title or
caption contained in this Agreement is for convenience only and shall not be
deemed a part of this Agreement. As used in this Agreement, the masculine,
feminine or neuter gender, and the singular or plural number, shall each be
deemed to include the others whenever the context so indicates.
13. Inconsistent Provisions. Borrower further acknowledges and agrees that
the provisions hereof are in addition to and in no fashion a limitation on the
obligations of Borrower under the Credit Agreement, the Notes, the Mortgage, and
the Collateral Loan Documents. To the extent the terms hereof are inconsistent
with the terms of the Credit Agreement, the Notes, the Mortgage, or any of the
Collateral Loan Documents, or there is an ambiguity between the terms hereof and
any of said documents, the provision most favorable to Banks shall control.
14. Indemnified Parties' Rights. The parties hereto expressly acknowledge
that this Agreement is made expressly for the benefit of the Indemnified
Parties.
15. Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, the parties named herein and their respective successors and
assigns. Any Borrower's obligations hereunder shall remain in full force and
effect notwithstanding a foreclosure conducted pursuant to the Mortgage, the
making of a deed in lieu of foreclosure by the Borrower in favor of Agent for
the benefit of the Banks or a transfer of any other interest in the Premises,
whether by Borrower, Agent or the Banks or by any successor or assignee of
Borrower, the Agent or Banks.
16. Failure or Indulgence not a Waiver. No failure or delay on the part of
any Indemnified Party in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any power, right or privilege preclude any other or future exercise of any such
power, right or privilege. All powers, rights and
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privileges hereunder are cumulative to, and not exclusive of, any powers, rights
or privileges otherwise available.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
18. Time is of the Essence. Time is of the essence of this Agreement.
19. JURISDICTION. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWER
HEREBY IRREVOCABLY SUBMIT TO PERSONAL JURISDICTION IN THE XXXXX XX XXXXXXXXX XXX
XX XXX XXXXXX XXXXXX DISTRICT COURT FOR THE DISTRICT OF MINNESOTA, FOR THE
ENFORCEMENT OF BORROWER'S OBLIGATIONS HEREUNDER, AND WAIVE ANY AND ALL PERSONAL
RIGHTS UNDER THE LAW OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN THE
STATE OF MINNESOTA FOR THE PURPOSES OF LITIGATION TO ENFORCE SUCH OBLIGATIONS.
FURTHERMORE, TO THE EXTENT PERMITTED BY LAW, BORROWER HEREBY WAIVE PERSONAL
SERVICE OF THE SUMMONS AND COMPLAINT OR OTHER PROCESS OF THE PAPERS ISSUED
THEREIN AND AGREE THAT SERVICE MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO THE BORROWER AT THEIR ADDRESSES SET FORTH HEREIN.
20. WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
BORROWER WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING OF ANY KIND OR NATURE, IN ANY COURT IN WHICH AN ACTION MAY BE
COMMENCED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE CREDIT
AGREEMENT, NOTES, MORTGAGE, COLLATERAL LOAN DOCUMENTS, OR ANY OTHER MATTER
RELATED THERETO.
21. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same Agreement.
IN WITNESS WHEREOF, the undersigned have executed and delivered under seal
this Agreement as of the day and year first written above.
BORROWER:
SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an
Iowa limited liability company
/s/ Xxxx Xxxxx
-----------------------------------------
By: Xxxx Xxxxx
Its: General Manager
/s/ Xxxxx Xxxx
-----------------------------------------
By: Xxxxx Xxxx
Its: Board Chairman
11
EXHIBIT A
LEGAL DESCRIPTION
TRACT A
A parcel of land being a portion of the East One Half of Section 31, T74 North,
R43 West of the Fifth Principal Meridian, Pottawattamie County, Iowa, more fully
described as follows:
Beginning at the North quarter corner of said Sec. 31; thence along the North
line of said Sec. 31, South 88 Degrees, 17 Minutes 16 Seconds East, 2270.71 feet
to a point on the Westerly right-of-way line of Interstate 29: thence along said
Westerly right-of-way line, the following seven (7) courses:
1. South 00 Degrees 45 Minutes 10 Seconds West, 468.19 feet;
2. South 00 Degrees 41 Minutes 04 Seconds East, 200.06 feet;
3. South 00 Degrees 44 Minutes 56 Seconds West, 1964.84 feet;
4. South 00 Degrees 45 Minutes 02 Seconds West, 1635.16 feet;
5. South 01 Degree 13 Minutes 56 Seconds West, 593.52 feet;
6. South 00 Degrees 07 Minutes 12 Seconds East, 353.62 feet;
7. South 01 Degree 49 Minutes 08 Seconds West, 50.00 feet to a point on the
Southerly line of said Sec. 31;
thence along said Southerly line, North 88 Degrees 10 Minutes 52 Seconds West,
2276.52 feet to the South quarter corner of said Sec. 31; thence along the
North-South centerline of said Sec. 31, North 00 Degrees 45 Minutes 27 Seconds
East, 2629.84 feet to the center of said Sec. 31, thence continuing along said
North-South centerline, North 00 Degrees 46 Minutes 14 Seconds East, 2631.10
feet to the point of beginning.
TRACT B-1
Parcel "A" of the SW1/4 SE1/4 of Sec. 19, T74N, R 43W of the 5th Principal
Meridian, Pottawattamie County, Iowa, being more fully described as follows:
Commencing at the NW corner of said SW1/4 SE1/4; thence along the North line of
said SW1/4 SE1/4, South 88 Degrees 15 Minutes 27 Seconds East a distance of
113.56 feet to the true point of beginning; thence continuing along said North
line South 88 Degrees 15 Minutes 27 Seconds East a distance of 200 feet; thence
South 12 Degrees 06 Minutes 23 Seconds East a distance of 549.14 feet; thence
South 77 Degrees 46 Minutes 56 Seconds West a distance of 204.39 feet; thence
South 68 Degrees 35 Minutes 49 Seconds West a distance of 105.34 feet to a point
on the East right of way line of Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx Xx. 00; thence
along said East right xx xxx xxxx, Xxxxx 00 Degree 34 Minutes 53 Seconds West a
distance of 624.94 feet to the true point of beginning.
TRACT B-2
A tract of land located in the SW1/4 SE1/4 in Sec. 18, T74N, R43W of the 5th
Principal Meridian, Pottawattamie County, Iowa, more fully described as follows:
Commencing at the SE corner of said Sec. 18; thence South 89 Degrees 44 Minutes
04 Seconds West along the South line of said Sec. 18 a distance of 1,573.21 feet
to the point of beginning; thence continuing South 89 Degrees 44 Minutes 04
Seconds West along the South line of said Sec. 18 a distance of 242.14 feet to a
point on the Easterly right of way line of Xxxxxxxx Xxxxx Xxxxxxxx Xxxxxxxx Xx.
00; thence North 31 Degrees 26 Minutes 27 Seconds East along said Easterly right
of way line a distance of 317.26 feet; thence South 58 Degrees 33 Minutes 33
Seconds East a distance of 206.00 feet; thence South 31 Degrees 26 Minutes 27
Seconds West and parallel to said Easterly right of way line a distance of
190.00 feet to the point of beginning.
