Subordinated Debt Agreement
Exhibit 10.1
THIS AGREEMENT, (“Agreement”) made and entered into on this 29 day of January, 2008,
(“Effective Date”) by and between E Energy Xxxxx, LLC, (“EEA”) a limited liability company
organized in the State of Nebraska and North Star Bank, a Corporation in the State of
Minnesota (“Creditor”),
WITNESSETH:
WHEREAS, EEA intends to borrow from Creditor the sum of $2,500,000.00 (“Debt”);
AND WHEREAS, the purpose of the Debt (“Purpose”) will be to build EEA’s working capital and to
cure an existing default in the terms of a certain Credit Agreement (“Senior Credit Agreement”)
executed on or about August 25, 2006, by EEA in favor of Farm Credit Services of America, FLCA and
Farm Credit Services of America, PCA (“Farm Credit”);
AND WHEREAS, Creditor understands and acknowledges that repayment of the Debt shall in all
instances be subordinated to Farm Credit;
AND WHEREAS, EEA agrees to pay the Debt to Creditor in accordance with the terms and
provisions set forth herein,
NOW THEREFORE, in consideration of the mutual promises herein, the parties hereto agree as
follows:
| 1 | Promise to Pay. That EEA promises to pay the Debt to Creditor, together with
interest, as provided herein. |
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| 2 | Interest on Debt. That simple interest shall accrue on the Debt at a rate of 6.50% per
annum (“Interest”) from the Effective Date until the Debt is paid in full (“Final Payment) |
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| 3 | Repayment of Debt. That the Debt, together with the Interest, shall be due and
payable as follows: |
| .1 | Minimum Payments for first two years. Until the date that is two
years after the Effective Date (“Second Anniversary”), EEA shall make
minimum annual payments of a sum which is not less than unpaid accrued
Interest (“Minimum Payments”); PROVIDED HOWEVER, EEA shall have the
right but not the obligation to make payments which have the effect of
reducing or completely repaying the Debt. The Minimum Payments shall
be made on the last day of each fiscal year after the Effective Date. |
| .1 | Restrictions on Minimum Payments. Payment of any Minimum Payment
shall be subject to EEA’s continued compliance with the Senior Credit
Agreement on a pro forma basis after assuming payment of each Minimum
Payment. |
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| .2 | Payments after Third Anniversary. The unpaid balance of the Debt on
the Second Anniversary shall be amortized over five years on an annual
payment basis. The resulting payment amount (“Annual Installment”)
shall be paid by EEA to Creditor beginning on the date one year after
the Second Anniversary and after receipt of the annual audit and
continuing on the same date of each subsequent year (“Payment Date”)
until the 5th Payment Date (“Maturity Date”), at which time
all unpaid principal and interest accrued thereon shall be due and
payable. |
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| .3 | Restrictions on payment of Annual Installment. Payment of any Annual
Installment shall be subject to EEA’s continued compliance with the
Senior Credit Agreement on a pro forma basis after assuming payment of
each Annual Installment. |
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| .4 | Receipt of unauthorized payments held in trust. In the event Creditor
shall receive any payments which Creditor is not entitled to receive
under the provisions of the foregoing paragraphs, Creditor will hold
the amount so received in trust for Farm Credit and will forthwith
turn over such payment to Farm Credit in the form received (except for
the endorsement of Creditor where necessary) for application on the
Senior Credit Agreement, whether due or not due, in such manner of
application as Farm Credit may deem appropriate. |
| 4 | Debt Cap under Other Subordinated Debt Agreements. That the aggregate principal
amount of debt owed by EEA to Creditor under this Agreement and to third parties under Other
Subordinated Debt Agreements shall not exceed the sum of $2,500,000.00. This provision shall
in no manner be construed to prohibit or restrict EEA from contracting additional debt with
third parties so long as such debt is structurally subordinated to the Debt. |
|
| 5 | Default. That EEA shall be in default of this Agreement upon the occurrence of any
of the following (“Event of Default”): |
| .1 | Failure to pay Debt. EEA fails to pay any Minimum Payment or any Annual Installment. |
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| .2 | Default in other agreements. EEA defaults in the terms of any other agreement between EEA and Creditor. |
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| .3 | Bankruptcy. Proceedings in federal bankruptcy court are initiated by or against EEA. |
| 6 | Creditor’s Remedies in Event of Default. That in an Event of Default, Creditor shall
have the right, subject at all times to paragraph §7 of this Agreement, to any or all of the
following remedies (“Remedies”): |
| .1 | Acceleration of maturity. Creditor may declare any or all unpaid
portions of the Debt immediately due and payable without prior notice. |
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| .2 | |||
| .3 | Addition of attorney fees. Creditor may add to the Debt Creditor’s
attorney fees incurred in collecting the Debt to the maximum extent
allowed by law, and EEA agrees to pay such fees as a component of the
Debt. |
| 7 | Restrictions on Exercise of Remedies. That no Remedy may be exercised until all
amounts due to Farm Credit under the Senior Credit Agreement and instruments ancillary to the
Senior Credit Agreement have been paid in full. |
|
| 8 | Expansion of Definition of “Senior Credit Agreement.” That as used in this
Agreement, the term “Senior Credit Agreement” shall also be deemed to refer to any amendment,
extension, or modification of the Senior Credit Agreement. |
|
| 9 | Creditor’s Representations and Warranties. That Creditor represents and warrants as
follows: |
| .1 | No federal registration. Creditor understands that neither this Agreement nor any
other instrument or agreement delivered pursuant to this Agreement have been registered under
the federal Securities Act of 1933 and that EEA is entering into this transaction with
Creditor based on written representations given
contemporaneously by Creditor to EEA, including without limitation the
Acknowledgment section of the Disclosure Statement. |
| .2 | No state registration. This Agreement has not been registered under the Nebraska
Uniform Securities Act or the securities laws of any other state. |
| 10 | No Waiver of Rights. That no delay or failure on the part of any party hereto in
exercising any right, power, or privilege under this Agreement, or under any other instrument
or document given in connection with or pursuant to this Agreement, shall impair any such
right, power, or privilege or be construed as a waiver of any default or any acquiescence
thereto. No single or partial exercise of any such right, power, or privilege shall preclude
the further exercise of such right, power, or privilege, or the exercise of any other right,
power, or privilege. No other acts or failures to act by any party, including, without
limitation, any investigation or inspection by or on behalf of such party, shall be deemed to
constitute a waiver, extension, or acknowledgment by such party of compliance with any
representation, warranty, condition, agreement, or indemnification set forth in this
Agreement. No waiver shall be valid against any party hereto unless made in writing and
signed by the party against whom enforcement of such waiver is sought, and then only to the
extent expressly specified therein. |
|
| 11 | Savings Clause. That if any provision of this Agreement or the application of a
provision to any person or circumstance shall be held invalid, the remainder of this
Agreement, or the application of the provision to persons or circumstances other than those to
which it was held invalid, shall not be affected thereby, and a court of proper jurisdiction
is authorized to limit the application of any provision if it is found necessary to render the
provision enforceable in connection with the intent of the parties. |
|
| 12 | Binding Effect and Prohibition against Assignment. That this Agreement shall be
binding upon the parties hereto and their respective successors in interest, and that this
Agreement may not be assigned in whole or in part in any manner whatsoever without the prior
express written consent of the non-assigning party. |
|
| 13 | Integration. That this Agreement shall constitute the entire agreement between the
parties hereto with respect to the payment of the Debt. No modification or variation of this
Agreement shall be valid and enforceable except by supplemental agreement in writing, executed
and approved in the same manner as this Agreement. |
| 14 | Governing Law and Exclusive Venue. That the parties hereto stipulate that this
Agreement shall be interpreted and enforced in accordance with the laws of the State of
Nebraska. |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
Effective Date.
| E Energy Xxxxx, LLC |
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| /s/ Xxxx Xxxxxxx | ||||
| Xxxx Xxxxxxx, CFO | ||||
| /s/ Xxxxx Xxxx | ||||
| Creditor | ||||
| Vice President North Star Bank | ||||
THIS AGREEMENT, (“Agreement”) made and entered into on this 29 day of January, 2008, (“Effective
Date”) by and between E Energy Xxxxx, LLC, (“EEA”) a limited liability company organized in the
State of Nebraska and North Star Bank, a Corporation in the State of Minnesota (“Creditor”), and
Farm Credit Services of America, FLCA and Farm Credit Services of America, PCA, agree to the
following:
| • | EEA intends to borrow from Creditor the sum of $2,500,000.00 (Two million five hundred
thousand) (“Debt”); |
||
| • | the purpose of the Debt (“Purpose”) will be to build EEA’s working capital and to cure
an existing default in the terms of a certain Credit Agreement (“Senior Credit Agreement”)
executed on or about August 25, 2006, by EEA in favor of Farm Credit Services of America,
FLCA and Farm Credit Services of America, PCA (“Farm Credit”); |
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| • | Farm Credit Services of America, FLCA and Farm Credit Services of America, PCA (“Farm
Credit”); understands and agrees that North Star Bank intends to secure the Debt obligation
with loan proceeds at a rate 3.00% above a money market account to be held at North Star
Bank. |
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| • | The parties hereto acknowledge that North Star Bank has a first security interest in
loan proceeds via the aforementioned money market account, and that E Energy Xxxxx, LLC has
no restrictions on drawing money from said account. However, Creditor will expect E Energy
Xxxxx, LLC to provide additional collateral if the money market account falls below the
then current balance of the Debt. |
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| E Energy Xxxxx, LLC |
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| /s/ Xxxx Xxxxxxx | ||||
| Xxxx Xxxxxxx, CFO | ||||
| North Star Bank |
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| /s/ Xxxxx Xxxx | ||||
| Xxxxx Xxxx, VP | ||||
| Farm Credit Services of America, FLCA and Farm Credit Services of America, PCA |
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| Xxxxxxx Xxxxx | ||||
| Xxxxxxx Xxxxx, VP | ||||
