AMENDED AND RESTATED
DISBURSING AGREEMENT
THIS AMENDED AND RESTATED DISBURSING AGREEMENT (this "Agreement') is made
as of March 7, 2008, by and among SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa
limited liability company (the "Borrower"), AGSTAR FINANCIAL SERVICES, PCA, and
its successors and assigns, as Agent (in such capacity, the "Agent") for the
benefit of the Banks in connection with that certain Credit Agreement dated May
2, 2007, as amended by that certain First Amendment to Credit Agreement of even
date herewith (all as amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement"), and AGSTAR FINANCIAL SERVICES, PCA (in
such capacity, the "Disbursing Agent").
In consideration of the mutual covenants and conditions contained herein,
the parties hereto agree as follows:
ARTICLE I.
Definitions
Section 1.1 Defined Terms. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed to them in the Credit
Agreement. The following terms, when used in this Agreement with initial capital
letters shall have the following meanings unless the context thereof clearly
requires otherwise:
Advance means a disbursement of loan proceeds to or for the benefit of the
Borrower pursuant to Article II of this Agreement.
Agent means AgStar Financial Services, PCA, as Agent for the benefit of the
Banks (as set forth in the Credit Agreement).
Agreement means this Amended and Restated Disbursing Agreement and any
amendments, supplements, extensions or modifications hereto.
Borrower's Equity means funds, consisting of member cash equity, grants,
Subordinated Debt, and earnings on such amounts, equal to $70,000,000.00
plus the amount equal to the difference between (x) the final Project Costs
determined on the Completion Date, and (y) $189,645,000.00.
Commerce Bank means Commerce Bank, N.A.
Commerce Bank Loan means that certain loan made to Borrower by Commerce
Bank under that certain Promissory Note dated March 7, 2008, in the maximum
principal amount of $36,000,000.00.
Commerce Bank Loan Documents means and includes the certain Promissory Note
in favor of Commerce Bank, and all other documents, instruments and
agreements evidencing the Commerce Bank Loan.
1
Commerce Bank Loan Maturity Datemeans March 1, 2009.
Construction Loan means the loan from the Banks to the Borrower in the
amount of One Hundred Eleven Million and No/100 Dollars ($111,000,000.00),
pursuant to the terms and conditions of the Credit Agreement.
Disbursement Expiration Date means the date thirty (30) days subsequent to
the Completion Date, unless extended in writing by the Agent and the
Borrower for an additional, quantified term.
Disbursing Account means a deposit account established by the Agent with
the Disbursing Agent for purposes of making all Advances under this
Agreement.
Disbursing Agent means AgStar Financial Services, PCA, and its successors
and assigns.
Draw Request means a request for an Advance prior to the Conversion Date,
submitted by the Borrower to the Agent and the Disbursing Agent, in
accordance with the terms and conditions of this Agreement.
Engineer means BBI International, a Colorado corporation, and its
successors and permitted assigns.
Event of Default means any event defined as such in the Credit Agreement or
any of the agreements incident or ancillary thereto, or this Agreement.
General Contractor means ICM, Inc., a Kansas corporation, and its
successors and permitted assigns.
Xxxxxx means the Xxxxxx Group, Inc., and its permitted successors and
assigns.
Xxxxxx Report means that certain report dated February 14, 2008, issued by
Xxxxxx and delivered to the Agent.
Indebtedness means the principal of, interest on, and all other amounts,
payments, and premiums due under the Credit Agreement or secured by the
Loan Documents or otherwise.
Legal Requirements means any and all material present and future judicial
decisions, statutes, rulings, rules, regulations, permits, certificates, or
ordinances of any Governmental Authority in any way applicable to: (a) the
Borrower, (b) the Real Property, including the ownership, use, occupancy,
possession, operation, maintenance, alteration, repair, or reconstruction
thereof; (c) any and all Leases; and (d) any and all other leases and
contracts (written or oral) of any nature that relate, in any way, to the
Project and to which the Borrower may be bound, including without
limitation any contract pursuant to which the Borrower is granted a
possessory interest in the Real Property or the Project.
2
Note means the Convertible Note evidencing the Construction Loan being made
thereunder.
Obligations means any and all of the covenants, warranties,
representations, and other obligations (other than to repay the
Indebtedness) made or undertaken by the Borrower to Agent or others as set
forth in the Loan Documents or any other agreement pursuant to which the
Borrower is granted a possessory interest in the Real Property or the
Project.
Project Sources and Uses Statement means the Project Sources and Uses
Statement dated as of January 31, 2008, attached hereto as Exhibit A.
Subordinated Debt means (i) One Hundred Thousand and No/100 Dollars
($100,000.00) loan from the Iowa Department of Economic Development; and
(ii) the Commerce Bank Loan.
Sworn Construction Statement means a sworn construction statement, sworn to
by the Borrower and the General Contractor dated as of January 31, 2008,
attached hereto as Exhibit B.
Title Company means Old Republic National Title Insurance Company, a
Minnesota corporation, and its successors and assigns.
Title Insurance means a mortgagee's title insurance binder or a title
insurance policy, in form and substance satisfactory to Agent and
containing no exceptions (printed or otherwise) which are reasonably
unacceptable to Agent, issued by the Title Company, in the face amount of
the Note, insuring that Agent has a first and prior lien on the Real
Property and containing such endorsements as Agent may reasonably require.
ARTICLE II.
Disbursement
Section 2.1 Disbursing Account.
a. Agent shall establish the Disbursing Account for purposes of making
all Advances under this Agreement. At the time of the execution of
this Agreement, the Borrower shall deposit $34,100,000.00 into the
Disbursing Account. The proceeds of the Construction Loan and the
Borrower's Equity shall be deposited in the Disbursing Account on the
terms and conditions set forth herein to be disbursed by Disbursing
Agent to or on behalf of the Borrower in payment or reimbursement of
Project Costs in accordance with this Agreement, except that (i)
monies expended by Borrower to cover Project Costs incurred and paid
prior to May 2, 2007; and (ii) that portion of Project Costs
attributable to office expenses, operating costs, organizational
costs, financing costs, payroll, payroll taxes, utilities, rolling
stock, working capital, and other administrative and overhead expenses
need not be deposited into the Disbursing Account. The deposit of the
proceeds of the Note in the Disbursing Account shall constitute
payment by the Agent to the Borrower of loan proceeds under the Note.
3
b. All funds deposited in the Disbursing Account, whether of proceeds of
the Construction Loan or Borrower's Equity, shall be disbursed from
the Disbursing Account and used for Project Costs in the following
order:
(1) Borrower's Equity, until exhausted;
(2) Once the Borrower's Equity has been exhausted, proceeds of the
Construction Loan alone shall be disbursed;
c. Except as otherwise provided herein (including Sections 2.5 and 2.6
hereof), any balance remaining in the Disbursing Account on the
Conversion Date after the payment of Project Costs shall be used by
Agent to prepay the Note in accordance with the terms of the Note.
d. If as a result of the occurrence of an Event of Default under the Loan
Documents, the Agent may declare the unpaid principal balance and
accrued interest on the Note immediately due and payable, the Agent
may apply all funds then on hand in the Disbursing Account to the
immediate payment of the Note. Any such application shall reduce and
discharge the amount then due and payable on the Note, and the Agent
shall promptly notify the Borrower of the amount so applied. Should
the Agent apply any funds in the Disbursing Account to the outstanding
balances owed under the Note, Agent acknowledges the priority of the
Mortgage may be affected, impaired or subordinated as to the claims of
suppliers and contractors.
e. The Disbursing Agent shall maintain adequate records pertaining to
Advances disbursed by it and shall file an accounting thereof with the
Agent and the Borrower upon the liquidation and termination of the
Disbursing Account. Disbursing Agent shall provide Borrower with
monthly statements pertaining to the activity in the Disbursing
Account in order that Borrower may confirm the accuracy of Disbursing
Agent's records.
Section 2.2 Disbursements from the Disbursing Account. Disbursements from
the Disbursing Account are conditioned upon the approval of the Agent which is
conditioned, in turn, upon the satisfaction of the terms contained in the Credit
Agreement and this Section 2.2, except for those costs and expenses of the
Borrower set forth in Sections 2.16 and 8.04 of the Credit Agreement.
a. No disbursement shall be made from the Disbursing Account until the
Agent receives the Title Insurance issued by the Title Company:
(1) showing that marketable fee title to the Real Property is in the
Borrower, subject only to the encumbrances specified in the Mortgage
and any Permitted Liens;
(2) showing the recording of the Mortgage;
4
(3) insuring the Mortgage to be a first lien on the Real Property
subject only to Permitted Liens and encumbrances approved by Agent;
(4) naming the Agent as the insured for its own benefit and for the
benefit of the Banks;
(5) containing only such other matters as are reasonably acceptable to
the Agent.
b. To obtain draws from the Disbursing Account, the Borrower shall submit
to the Agent written Draw Requests, Sworn Construction Statements,
Project Cost certifications and such other information as the Agent
may request, in form and substance satisfactory to the Agent and the
Title Company:
(1) specifying the uses to which the proceeds of the draw will be put;
(2) certifying such amounts to be currently payable (excluding
withholdings) for costs constituting Project Costs, which costs are
identified on the Project Sources and Uses Statement and with respect
to which no prior Draw Request has been made; and
(3) stating that no Event of Default has occurred under the terms of
the Credit Agreement, the Note, Mortgage, the Commerce Bank Loan
Documents, or any of the other Loan Documents. Each Draw Request
(other than a request relating to payment of interest on the Note or
the costs of issuance of the Note) shall be accompanied by
certifications of the Borrower, and, if requested by Agent, the
General Contractor, the Engineer and/or the Inspecting Engineer, to
the effect that:
(i) The construction work to be paid for has been completed in a
workmanlike manner in accordance with the Plans and
Specifications;
(ii) Materials are in place or are being stored on the Real Property
or in secure off-site storage facilities permitted by a
Construction Contract and work has been completed on the Project,
which materials and work have, in the aggregate, a value equal to
the total of: (a) the amount which has been disbursed in
connection with earlier Draw Requests; and (b) the amount which
is to be disbursed with the requested draw; and
(iii) The funds remaining undisbursed in the Disbursing Account or
available to Borrower pursuant to the Note or the terms of any
Subordinated Debt agreements are to the best of its knowledge
sufficient to fully complete the Project in accordance with the
Plans and Specifications and the Project Sources and Uses
Statement.
5
c. Within three (3) business days of its receipt of such Draw Request and
certifications as are specified in Section 2.2(b), the Agent shall
notify the Borrower of its consent to or refusal of the requested
Advance, and if such Draw Request is consented to by the Agent, shall
credit the Disbursing Account with sufficient immediately available
funds to pay such Draw Request in full, less applicable retainage, and
shall wire transfer said amount to the Disbursing Account for
disbursement. For each Draw Request consented to by the Agent, the
Disbursing Agent shall disburse funds to the parties identified in the
Draw Request pursuant to the terms of the Agent's consent thereto. The
Agent and Disbursing Agent assume no liability for the accuracy of any
certifications presented to it nor for any request for Advances by the
Borrower in violation hereof or of the Loan Documents. The Agent may
retain five percent (5%) from each Advance up to the point when one
hundred percent (100%) of the work performed by General Contractor has
been completed. All amounts retained by the Agent shall be advanced
upon completion of the Project in accordance with the applicable
Construction Contract.
d. The Disbursing Agent shall disburse all funds from the Disbursing
Account in accordance with this Agreement to the Contractor which is
entitled thereto, as set forth in the Draw Request. Each such Draw
Request shall include a statement sworn to by the Borrower, listing
the names, addresses, and telephone numbers, the work, labor, and/or
materials to be supplied by, and the total estimated amounts to be
paid to the General Contractor and subcontractor, with respect to the
Project. Agent shall receive a general lien waiver from all
Contractors, including the General Contractor, covering all
disbursements made hereunder and an express lien waiver from each
supplier and sub-contractor having a contract with any Contractor with
respect to the Project in excess of ten thousand ($10,000.00) dollars
through the date of the immediately preceding disbursement to it
hereunder; except for the final disbursement, which shall be paid only
upon receipt of all lien waivers from General Contractor and its
subcontractors and suppliers. The Disbursing Agent shall not disburse
any Advance hereunder if there have been any changes in the status of
title as set forth in the Title Insurance which have not been
consented to in writing by the Agent. If any such change has not been
so consented to, the Borrower shall promptly and at its sole cost and
expense restore the status of title to that reflected in the Title
Insurance. The Title Company shall, in any event, promptly notify the
Agent of any change in the status of title to the Real Property or the
Project. To the extent any change in title is insured against by the
Title Company, the Borrower shall take all actions necessary to
restore the status of title to that reflected in the Title Insurance.
e. The Draw Requests, mechanics' lien waivers, certificates, and any and
all other instruments or documents required to be delivered in
connection with an Advance shall be in form and substance reasonably
satisfactory to the Agent.
f. The Disbursing Agent shall not disburse any Advance hereunder unless
the Title Company shall insure the Agent against claims for mechanics'
liens against the Project.
6
Section 2.3 Conditions to Initial Advance. Agent shall not be obligated to
consent to the initial Advance to the Borrower unless and until:
a. Agent has received: (1) copies of the Plans and Specifications and all
executed Construction Contracts; (2) a certificate from the Engineer
stating that the Plans and Specifications have been approved by the
Engineer and satisfactorily provide for the construction of the
Project in accordance with the Project Sources and Uses Statement; (3)
copies of all authorizations and permits which are presently
procurable and required by any Legal Requirement for the construction
and proposed use of the Project; (4) an original current survey of the
Project showing the perimeter of the Real Property by courses and
distances, all easements and rights-of-way, the line of the streets
abutting the Real Property and the width thereof, any encroachments
and the extent thereof in feet and inches, the relation of the
proposed Project by distances to the perimeter of the Real Property
and the proposed Project lines, all acceptable to the Agent to modify
the "area, boundaries, and encroachments" exception to the maximum
extent permissible by law; and (5) copies of the policies of insurance
required by the Loan Documents accompanied by evidence by the payment
of the premiums therefor, or a Certificate of Insurance executed by
the insurer or its authorized agent.
b. The Loan Documents have been duly authorized, executed, and recorded
or filed in accordance with applicable Legal Requirements and original
counterparts thereof delivered to Agent.
c. The Title Company has issued the commitment for Title Insurance.
d. Borrower, and, if requested by Agent, the Engineer and Inspecting
Engineer, have executed, or caused to be executed, and delivered to
Agent a Draw Request in form and substance acceptable to Agent
certifying in acceptable detail the expenditures made or expenses
incurred by the Borrower of the type described in Section 2.2 of this
Agreement, with such supporting data as Agent may reasonably require,
and that the amount requested represents sums actually spent or
indebtedness actually incurred.
e. The Borrower pays to Agent, or any other person or party entitled
thereto, all fees and costs then due and payable with reference to
this Agreement and the subject hereof, including any commitment or
origination fee to be paid to the Agent.
f. A Sworn Construction Statement has been prepared and executed by the
Engineer, and delivered to the Agent accompanied by executed lien
waivers and any other documents required by the Title Company for all
Project Costs paid by Borrower prior to the Closing Date.
g. A copy of the building permit issued by the appropriate governmental
entity for the Project has been delivered to the Agent.
h. Borrower has deposited with the Disbursing Agent the Borrower's Equity
pursuant to the provisions of Section 2.1 of this Agreement.
7
i. Executed copies of the Commerce Bank Loan Documents.
Section 2.4 Conditions to Any Subsequent Advances. The Agent shall not be
obligated to consent to subsequent Advances unless and until:
a. The Borrower shall have complied with all conditions precedent for
Advances set forth in the Loan Documents.
b. The Borrower and, if requested by Agent, Xxxxxx, the Engineer and
Inspecting Engineer, shall have executed, or caused to be executed,
and delivered to Agent a Draw Request as described in Section 2.3(d)
above and the data therein referred to.
c. Agent shall have received: (1) an endorsement (if permitted or
required by virtue of the form thereof) to the Title Insurance
increasing the coverage thereof to the full amount of the sum advanced
and reflecting no changes in the status of title or the Title
Insurance since the previous Advance, or if such endorsement cannot be
obtained or if the Title Insurance is a binder, an abstractor's
certificate or other evidence satisfactory to Agent from the Title
Company reflecting that there have been no such changes in the status
of title or the Title Insurance; (2) if requested by Agent,
certificate from Xxxxxx and/or the Engineer that, in its opinion, the
construction of the Project theretofore performed has been in
substantial accordance with the Plans and Specifications and in
accordance with the Project Sources and Uses Statement; (3) at the
request of Agent, lien waivers or release from all contractors,
subcontractors, laborers, and materialmen employed or furnishing
materials in connection with the construction of the Project as
specified in Section 2.2(d); and (4) such other certifications or
evidence of cost and completion as Agent may reasonably request.
d. All amounts deposited by the Borrower in the Disbursing Account from
time to time, are first disbursed for Project Costs pursuant to the
terms and conditions of this Article II.
Section 2.5 Contingent Project Cost Reserve. Borrower shall deposit with
the Disbursing Agent a construction contingency fund (the "Contingent Project
Cost Reserve") in the amount of $3,253,722.00 (the "Original Contingent Project
Cost Reserve Amount"). Such Contingent Project Cost Reserve amount is inclusive
within the deposit of $34,100,000.00 made by Borrower, pursuant to Section
2.1(a) of this Agreement. The Disbursing Agent may from time to time in its
reasonable discretion disburse amounts from the Contingent Project Cost Reserve
to pay for Project Costs exceeding the amount set forth in the Project Sources
and Uses Statement. Immediately following any such disbursement, the Borrower
shall replenish the Contingent Project Cost Reserve to the Original Contingent
Project Cost Reserve Amount with funds from the Equity Escrow Fund, if any. On
the Conversion Date, amounts held in the Contingent Project Cost Reserve shall
be paid to Commerce Bank to repay the Commerce Bank Loan, so long as (x) all
conditions precedent to the conversion of the Construction Loan into the Term
Loan and into the Term Revolving Loan have been met, (y) there exists no Events
of Default, and (z) no Subordinated Debt other than the One Hundred Thousand and
No/100
8
Dollars ($100,000.00) loan from the Iowa Department of Economic Development and
the Commerce Bank Loan remains outstanding. If the Commerce Bank Loan has been
paid in full on or before the Conversion Date, amounts held in the Contingent
Project Cost Reserve shall be paid to the Borrower, consistent with the terms of
this Agreement.
Section 2.6 Equity Escrow Fund. Borrower shall deposit with the Disbursing
Agent the first $5,000,000.00 it collects as a result of any equity offering
(the "Equity Escrow Fund"). Until the Conversion Date, funds held in the Equity
Escrow Fund shall be used by the Disbursing Agent: (a) first, to replenish the
Contingent Project Cost Reserve, and (b) second, for the payment of Project
Costs exceeding the amount set forth in the Project Sources and Uses Statement.
On the Conversion Date, amounts held in the Equity Escrow Fund shall be paid to
Commerce Bank to repay the Commerce Bank Loan, so long as (x) all conditions
precedent to the conversion of the Construction Loan into the Term Loan and into
the Term Revolving Loan have been met, (y) there exists no Events of Default,
and (z) no Subordinated Debt other than the One Hundred Thousand and No/100
Dollars ($100,000.00) loan from the Iowa Department of Economic Development and
the Commerce Bank Loan remains outstanding. If the Commerce Bank Loan has been
paid in full on or before the Conversion Date, amounts held in the Equity Escrow
Fund shall be paid to the Borrower.
Section 2.7 Right to Withhold Consent to Advance. Notwithstanding anything
to the contrary contained in or inferable from any of the above, Agent shall not
be required to consent to any Advance hereunder if, at the time of the requested
Advance:
a. Any Default or Event of Default exists hereunder or under the terms of
any of the Loan Documents.
b. The requested Advance, plus the sum of the previous Advances or other
sums disbursed by Agent under the Loan Documents, exceed the face
amount of the Note.
c. In the good faith judgment of the Agent (after consultation with
independent third parties when deemed necessary or advisable by the
Agent), the Project will not be completed in substantial accordance
with the Plans and Specifications, the Project Sources and Uses
Statement and/or the Legal Requirements or the other provisions of
this Agreement or the Loan Documents.
d. In the good faith judgment of Agent (after consultation with
independent third parties when deemed necessary or advisable by the
Agent), the sum of the unadvanced loan proceeds plus other sums held
in the Disbursing Account for Borrower plus other funds available to
pay the costs of constructing the Project are insufficient to complete
the Project in substantial accordance with the Plans and
Specifications and this Agreement or the Loan Documents, unless and
until the Borrower has deposited additional funds into the Disbursing
Account.
e. The Project (or any portion thereof) is demolished or substantially
destroyed or condemnation or similar type proceedings are commenced
with reference thereto.
9
f. Any change in the status of title to the Real Property or the Project
has occurred subsequent to the date hereof without Agent's prior
written consent.
g. Any event has occurred which has or could give rise to a lien claim
having priority over the Mortgage.
h. An order or decree in any court of competent jurisdiction exists
enjoining the construction of the Project or enjoining or prohibiting
the Borrower or Agent or either of them from performing their
respective obligations under this Agreement.
i. Any material deviation exists in the work of construction from the
Plans and Specifications without the prior written approval of Agent,
which approval shall not be unreasonably withheld, or it appears to
Agent in good faith (after consultation with independent third parties
when deemed necessary or advisable by the Agent) that there are
material defects in the workmanship or materials.
j. Any material encroachment exists which has occurred without the
approval of Agent.
k. The work of construction has ceased prior to completion of the Project
for a continuous period of thirty (30) days or more for causes other
than those beyond the control of the Borrower or consented to in
writing by Agent.
Section 2.8 Conditions for Benefit of the Agent and Banks. All conditions
precedent to Agent's obligation to consent to Advances hereunder are imposed
solely and exclusively for Banks' benefit, or for the mutual benefit of the
Agent and the Banks, where so indicated. No person or entity other than Agent
shall have any standing to require satisfaction of such conditions, or be
entitled to assume that Agent will refuse to make Advances absent strict
compliance therewith, and any or all of such conditions may be freely waived (in
whole or in part) by Agent at any time or times.
ARTICLE III.
General Terms and Conditions
Section 3.1 Fees. Any and all reasonable costs and expenses required to
satisfy any provision of this Agreement, including without limitation
documentary taxes and recording, brokerage, reasonable attorneys', surveyors',
accountants', engineers' and inspectors' fees and Title Insurance premiums shall
be paid by the Borrower. Upon Borrower's request, Agent shall provide to
Borrower invoices for all costs and expenses to be reimbursed by Borrower under
this Agreement. No portion of any such costs and expenses shall be, in any way
and to any extent, credited against any portion of the indebtedness.
Section 3.2 Instruments, Policies, Proceedings, and Parties. All
instruments and policies of insurance to be executed and/or delivered to Agent,
and all proceedings to be taken in connection with this Agreement and the
Construction Loan provided for herein, and all persons or parties responsible in
any way for the construction of the Project or any obligation to be performed
hereunder, shall be subject to the acceptance of Agent as to form, substance,
coverage, and identity. Immediately upon request of Agent, the Borrower will
execute,
10
acknowledge, and deliver to Agent such further instruments and do such further
acts as Agent may reasonably deem necessary to carry out more effectively the
purpose of this Agreement or to subject it to the liens and security interests
of the Loan Documents any property intended by the terms thereof to be covered
thereby, including specifically but without limitation, any renewals, additions,
substitutions, replacements, betterments, or appurtenances to the Project.
Section 3.3 Waiver. Any failure by Agent to insist, or election by Agent
not to insist, upon the Borrower's strict performance of any of the terms,
provisions, or conditions of the Loan Documents shall not be deemed to be a
waiver of same or of any other term, provision, or condition thereof, and Agent
shall have the right at any time thereafter to insist upon strict performance by
Borrower of any and all of the same. Specifically, no Advance of any
Construction Loan proceeds hereunder absent Borrower's strict compliance with
this Agreement shall, in any way, preclude Agent from thereafter declaring such
failure to comply to be an Event of Default hereunder.
Section 3.4 Written Amendment or Waiver. This Agreement may not be amended,
waived, discharged, or terminated except through a writing executed by the party
against whom enforcement of the amendment, waiver, discharge, or termination is
sought.
Section 3.5 Applicable Law and Severability. This Agreement has been
executed under and shall be construed and enforced in accordance with the laws
of the State of Minnesota. This Agreement and all of the Loan Documents are
intended to be performed in accordance with, and only to the extent permitted
by, all applicable legal requirements. If any provision hereof or if any of the
other Loan Documents or the application thereof to any person or circumstances
shall, for any reason and to any extent, be invalid or unenforceable, neither
the application of such provision to any other person or circumstance nor the
remainder of the instrument in which such provision is contained shall be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
Section 3.6 Exercise of Rights or Remedies. All rights, remedies, and
recourse afforded the parties hereto in the Credit Agreement, Note, Mortgage, or
otherwise available at law or in equity, including specifically those granted by
the Uniform Commercial Code in effect in the State of Minnesota are incorporated
herein by references and: (a) shall be deemed cumulative and concurrent; (b) may
be pursued separately, successively, or concurrently against Borrower or anyone
else obligated hereunder, or against the Real Property, or against any one or
more of them, at the sole discretion of Agent; (c) may be exercised as often as
the occasion therefore shall arise, it being understood by the Borrower that the
exercise, failure to exercise, or election not to exercise any of the same shall
in no event be construed as a waiver of same or of any other right, remedy, or
recourse available to Agent; and (d) are intended to be, and shall, be
nonexclusive.
Section 3.7 Assignment. This Agreement shall be binding upon the parties
hereto and their respective heirs, successors, legal representatives, and
assigns; provided, however, that the Borrower may not assign, transfer, or in
any way hypothecate their interests in the Loan Documents or the Real Property
(or any portion thereof) without Agent's prior written consent (except as
provided in the Loan Documents).
11
Section 3.8 Notices. All notices or other communications required or
permitted to be given pursuant to the provisions of this Agreement shall be in
writing and shall be considered as properly given if mailed by first class
United States mail, postage prepaid, or by delivering same in person to the
intended addressee, or by prepaid telegram. Notice so mailed shall be effective
upon its deposit. Notice given in any other manner shall be effective only if
and when received by the addressee. For purposes of notice, the addresses of the
parties shall be as follows:
To the Borrower: Southwest Iowa Renewable Energy, LLC
0000 00xx Xxxxxx
Xxxxxxx Xxxxxx, XX 00000
With a copy to: Husch Xxxxxxxxx Xxxxxxx LLP
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx
To the Agent/Disbursing Agent: AgStar Financial Services, PCA
P.O. Box 4249
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxxx
With copy to: Xxxx, Plant, Xxxxx, Xxxxx & 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
provided, however, that any party shall have the right to change his address for
notice hereunder to any other location within the continental United States by
the giving of thirty (30) days' notice to the other parties at the address set
forth hereinabove.
Section 3.9 Exculpation. Neither the Agent nor the Title Company, nor any
of their officers, directors or employees shall be liable for any action taken
or omitted by them, except for its or their own negligence, bad faith or willful
misconduct; nor shall they or the Disbursing Agent be liable or responsible for
the validity, enforceability, or sufficiency of any document furnished to the
them pursuant to Article II hereof, nor shall they be responsible for any
representations or statement made in any of those documents. The Agent and
Disbursing Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any document or notice delivered to it hereunder which it
believes to be genuine or to have been presented by a proper person. Any
disbursements by the Agent of any Advance shall not be deemed to be an approval
by it of any work performed on the Project or any materials furnished with
respect
12
thereto or a representation by it that the unused portion of the Construction
Loan is sufficient to pay remaining Project Costs.
IN WITNESS WHEREOF, the Borrower, Agent and Disbursing Agent have caused
this Disbursing Agreement to be executed in their respective names as of the
date first above written.
BORROWER:
SOUTHWEST IOWA RENEWABLE ENERGY, LLC, AGENT AND DISBURSING AGENT:
an Iowa limited liability company AGSTAR FINANCIAL SERVICES, PCA,
an United States instrumentality
By /s/ Xxxx Xxxxx /s/ Xxx Xxxxxx
------------------------------- -------------------------------------
Xxxx Xxxxx By Xxx Xxxxxx
Its: General Manager Its Vice President
By /s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx
Its: Board Chairman
13
EXHIBIT A
PROJECT SOURCES AND USES STATEMENT
[See following attached pages.]
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
SOURCES OF FUNDS
Note Payable 2400 0 1,283,250 0 0.00 1,283,250
Note payable IDED 2410 (1,667) 13,333 30,000 44.44 (16,667)
Construction Loan 2500 0 0 101,000,000 0.00 (101,000,000)
Senior Debt Revolving 2510 0 0 10,000,000 0.00 (10,000,000)
Revolving line of Credit 2520 0 0 0 0.00 0
Long Term IDED 2910 0 168,333 170,000 99.02 (1,667)
Seed Capital 3300 0 1,650,000 1,650,000 100.00 0
Member's Equity 3400 0 69,876,000 74,004,000 94.42 (4,128,000)
Member's Contribution 3403 0 4,128,000 0 0.00 4,128,000
Contributed Capital 3404 0 960,000 0 0.00 960,000
Additional Member Equity 3405 0 0 34,100,000 0.00 (34,100,000)
Grant Revenue 4900 6,769 169,480 360,000 47.08 (190,520)
Interest Income 4910 0 3,342,841 3,321,389 100.65 21,452
Contributions 4920 250 4,325 0 0.00 4,325
Other Income 4930 0 2,500 0 0.00 2,500
Loss on Disposition 4935 0 (34,084) 0 0.00 (34,084)
Rental Income 4940 0 58,983 0 0.00 58,983
--------------------------------------- ----------------
TOTAL SOURCES 5,352 81,622,962 224,635,389 36.34 (143,012,427)
USES OF FUNDS
CASH AND NONCASH ACCRUALS
Cash - Checking - Frontier 1025 (140,309) 1,028,829 0 0.00 1,028,829
Xxxxx Cash Frontier2-07 1027 543 962 0 0.00 962
Construction Fund 1040 0 1,871,461 0 0.00 1,871,461
First Nat'l Payroll account 1041 (28,139) 45,188 0 0.00 45,188
Accounts Receivable 1100 (1,032) 6,769 0 0.00 6,769
Accumulated Depreciation 1890 (1,143) (11,804) 0 0.00 (11,804)
Prepaid Insurance 1160 (8,139) 18,294 0 0.00 18,294
Prepaid Office Rent 1166 0 3,525 0 0.00 3,525
Prepaid Taxes 1170 0 5,223 0 0.00 5,223
Accounts Payable 2000 (2,830,762) (23,347,427) 0 0.00 (23,347,427)
Accrued Expenses 2020 25,322 (84,314) 0 0.00 (84,314)
Retainage payable 2060 0 (3,968,097) 0 0.00 (3,968,097)
State WH Payable 2101 3,645 (1,830) 0 0.00 (1,830)
Unemployment Fed Payable 2110 114 (232) 0 0.00 (232)
Unemployment State Payable 2112 (241) (344) 0 0.00 (344)
--------------------------------------- ----------------
(2,980,140) (24,433,798) 0 0.00 (24,433,798)
PLANT CONSTRUCTION COSTS
Construction Contract 1300 0 69,767,728 118,000,000 59.13 (48,232,272)
Construction Sales Tax 1301 321,579 570,718 3,268,693 17.46 (2,697,975)
Admin Building 1305 25,000 109,777 660,000 16.63 (550,223)
Office Equipment 1310 0 39,867 80,000 49.83 (40,133)
Computers, Software, Network 1315 5,954 42,543 300,000 14.18 (257,458)
Office Equipment Other-Signage 1316 0 0 0 0.00 0
Construction Ins-Builders Risk 1325 0 267,618 400,000 66.90 (132,382)
Capitalized Interest 1330 0 0 5,400,000 0.00 (5,400,000)
Construction Contingency 1335 0 0 3,253,722 0.00 (3,253,722)
Steam Infrustructure Costs 1350 538,844 3,108,365 20,632,955 15.07 (17,524,590)
Grain Storage and DDGS Handling 1355 503,353 9,069,553 9,612,977 94.35 (543,424)
Emissions Monitoring 1356 0 0 300,000 0.00 (300,000)
Back up boilers 1358 0 0 6,670,000 0.00 (6,670,000)
Power Distribution 1360 238,927 283,640 3,904,273 7.26 (3,620,633)
Engineering 1802 0 40,008 0 0.00 40,008
--------------------------------------- ----------------
1,633,657 83,299,816 172,482,620 48.29 (89,182,804)
3/17/2008 at 2:07 p.m. Prepared by Management Page: 1
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
SITE COSTS
Land 1400 0 2,064,090 2,064,090 100.00 0
Site Engineering (Survey& Bori 1405 0 114,835 1,162,216 9.88 (1,047,381)
Site Fencing 1410 0 77,802 237,000 32.83 (159,198)
Site Improvements 1415 18,455 5,154,387 5,410,275 95.27 (255,888)
Hard Surface Roads 1420 0 0 1,400,600 0.00 (1,400,600)
Site Maintenance 1425 0 0 0 0.00 0
Site Utilities 1430 8,320 497,259 435,070 114.29 62,189
Permitting 1435 0 1,145 300,000 0.38 (298,855)
Security Fence 1440 0 2,004 0 0.00 2,004
--------------------------------------- ----------------
26,775 7,911,523 11,009,251 71.86 (3,097,728)
NATURAL GAS 0 0 1,807,000 0.00 (1,807,000)
--------------------------------------- ----------------
0 0 1,807,000 0.00 (1,807,000)
SCALES y& PROBE 0 0 750,000 0.00 (750,000)
--------------------------------------- ----------------
0 0 750,000 0.00 (750,000)
RAILROAD
Mainline Rail Switch 1500 0 0 0 0.00 0
Yard Rail Switch 1505 0 0 0 0.00 0
Rail Track 1510 1,140,219 3,556,378 4,521,461 78.66 (965,083)
Rail Development Engineering 1511 17,224 131,204 200,000 65.60 (68,796)
Railroad Contingency 1515 0 40,000 40,000 100.00 0
Rail Infrastructure 1525 0 1,314,825 1,669,938 78.73 (355,113)
Rail Spur Development 1530 0 1,967,839 5,203,884 37.81 (3,236,045)
--------------------------------------- ----------------
1,157,444 7,010,247 11,635,283 60.25 (4,625,036)
FIRE PROTECTION/WATER SUPPLY
Fire Protection Loop 1600 0 471,759 522,648 90.26 (50,889)
Fire Protection Equipment 1605 0 0 0 0.00 0
Fire Water Pumps y& Hydrants 1610 0 0 487,060 0.00 (487,060)
Xxxxx or Water System Access 1615 0 66,504 612,543 10.86 (546,039)
Water System Pump 1620 0 10,564 10,900 96.92 (336)
Drain Field y& Septic Tank 1625 0 625 0 0.00 625
Water Treatment System 1630 0 417,407 2,030,000 20.56 (1,612,593)
Process Building Fire Suppress 1640 0 320 0 0.00 320
Blow Down Pond 1645 0 0 0 0.00 0
--------------------------------------- ----------------
0 967,178 3,663,151 26.40 (2,695,973)
ROLLING STOCK
Rolling Stock 1730 0 9,737 2,000,000 0.49 (1,990,263)
--------------------------------------- ----------------
3/17/2008 at 2:07 p.m. Prepared by Management Page: 2
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
0 9,737 2,000,000 0.49 (1,990,263)
FINANCING COSTS
Financing Costs *** 1900 0 2,419,153 1,618,824 149 800,329
Loan Origination Fees 1905 0 0 0 - 0
Bank Commitment Fee 1910 0 149,995 150,000 100 (5)
Bank Annual Service Fee 1920 0 0 0 - 0
Construction Inspections 1925 0 0 0 - 0
Bank Attorney Fees 1930 0 132,710 132,710 100 0
Title Insurance 1935 0 71,676 72,000 100 (324)
Disbursement Agent fee 1940 0 5,000 5,000 100 0
Appraisal Cost 1945 0 25,500 25,500 100 0
--------------------------------------- ----------------
0 2,804,034 2,004,034 140 800,000
PRE PRODUCTION PERIOD COSTS
Preproduction - Start-Up Costs 5300 0 2,589 50,000 5 (47,411)
Preproduction - Admin Labor 5310 30,418 443,657 837,670 53 (394,013)
Employment expenses 5311 649 83,527 150,000 56 (66,473)
Preproduction Production Labor 5320 0 0 462,000 - (462,000)
Preproduction - Utilities 5330 10,465 137,856 170,000 81 (32,144)
Rail Leases 5335 0 0 0 - 0
Training costs 5340 (496) 12,046 100,000 12 (87,954)
Operating Costs 5350 0 401 30,000 1 (29,599)
--------------------------------------- ----------------
41,036 680,076 1,799,670 38 (1,119,594)
INVENTORY-WORKING CAPITAL
Inventory - Corn 1205 0 0 3,500,000 0.00 (3,500,000)
Inventory - Ethanol 1210 0 0 5,300,000 0.00 (5,300,000)
Inventory - Chemicals y& Ingred 1215 0 0 800,000 0.00 (800,000)
Spare Parts 1225 0 0 750,000 0.00 (750,000)
Working Capital 1240 0 0 1,000,000 0.00 (1,000,000)
Inventory DDGS 1245 0 0 1,300,000 0.00 (1,300,000)
--------------------------------------- ----------------
0 0 12,650,000 0.00 (12,650,000)
ORGANIZATIONAL COSTS
ENTITY ORGANIZATION
Organizational - Legal 5000 0 11,976 15,000 80 (3,024)
Organizational - Accounting 5010 0 0 0 - 0
Organizational - Misc 5020 65 33,627 35,000 96 (1,373)
--------------------------------------- ----------------
65 45,603 50,000 91 (4,397)
COST OF RAISING CAPITAL
Cost of Rasing Capital 3940 0 139,889 145,000 96 (5,111)
--------------------------------------- ----------------
0 139,889 145,000 96 (5,111)
3/17/2008 at 2:07 p.m. Prepared by Management Page: 3
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
OPERATING
Office expense 6000 841 11,165 25,000 45 (13,835)
Office labor 6010 4,016 151,727 200,000 76 (48,273)
Office equipment/supplies 6020 (448) 17,746 28,000 63 (10,254)
Telephone 6030 1,036 14,761 23,000 64 (8,239)
Internet service 6040 563 2,621 7,500 35 (4,879)
Postage and printing 6050 1,545 28,716 40,000 72 (11,284)
Rent 6060 3,525 53,886 65,000 83 (11,114)
License and fees 6070 0 310 2,000 16 (1,690)
Directors meeting expense 6200 16,031 336,333 522,480 64 (186,147)
Director travel expense 6210 (354) 16,405 28,000 59 (11,595)
Travel expenses 6215 3,884 44,765 65,000 69 (20,235)
Member meeting expenses 6216 0 8,197 15,000 55 (6,803)
Payroll tax expense 6230 4,352 34,528 130,000 27 (95,472)
Employee Benefits 6241 3,480 23,592 132,000 18 (108,408)
Accounting fees 6400 18,250 139,486 227,000 61 (87,514)
Legal 6410 39,407 766,738 1,082,000 71 (315,262)
Consulting fees 6420 14,310 404,112 475,000 85 (70,888)
Professional Fees 6425 769 16,741 150,000 11 (133,259)
Membership Meetings 6440 0 771 7,500 10 (6,729)
Conference Fees 6441 10 6,412 12,000 53 (5,589)
General meeting 6445 738 3,310 3,500 95 (190)
Membership Fees 6450 0 305 2,000 15 (1,695)
Bank charges 6600 0 10,110 14,000 72 (3,890)
Depreciation 6610 1,143 11,804 44,000 27 (32,196)
Miscellaneous expense 6620 563 56,128 70,000 80 (13,872)
Donations 6630 0 100,000 100,000 100 0
Dues & subscriptions 6640 2,601 9,519 9,800 97 (281)
Insurance-operations 6650 0 0 20,000 - (20,000)
Insurance-D&O 6660 5,945 98,637 165,000 60 (66,363)
Insurance-Bond 6662 75 1,309 7,500 17 (6,191)
Insurance-Workers Comp 6663 343 3,485 19,800 18 (16,315)
Insurance-Gen Liability 6664 1,939 35,271 62,000 57 (26,730)
Insurance-Land Title 6665 0 300 300 100 0
Insurance-Railroad Prot 6666 0 4,658 5,000 93 (342)
Interest 6670 0 1,804 2,000 90 (196)
Property taxes 6680 0 672 35,000 2 (34,328)
Advertising 6690 0 1,217 8,500 14 (7,283)
Project coordinator 6800 0 362,492 362,500 100 (8)
Project coordinator Expansion 6801 0 30,000 30,000 100 0
Permitting 6810 0 4,699 60,000 8 (55,301)
Site/land improvements 6820 0 37,001 42,000 88 (4,999)
Site Assessments 6825 1,210 330,820 340,000 97 (9,180)
--------------------------------------- ----------------
125,774 3,182,552 4,639,380 69 (1,456,828)
--------------------------------------- ----------------
PRE PRODUCTION TOTAL 125,839 3,368,044 4,834,380 70 (1,466,336)
--------------------------------------- ----------------
TOTAL USES 4,611 81,616,857 224,635,389 36 (143,018,532)
--------------------------------------- ----------------
TOTAL SOURCES 5,352 81,610,726 224,635,389 36 (143,024,663)
--------------------------------------- ----------------
TOTAL SOURCES LESS USES 741 $ 5,364 $ 0 $ 5,364
==============================================================
=========================================================================================================
*** Includes RDA shares issued for services rendered in the amount of $800,000
---------------------------------------------------------------------------------------------------------
3/17/2008 at 2:07 p.m. Prepared by Management Page: 4
EXHIBIT B
SWORN CONSTRUCTION STATEMENT
[See following attached pages.]
SWORN CONSTRUCTION STATEMENT Attachment 6
OWNER: Southwest Iowa Renewable Energy, LLC
PROPERTY AT: 00000 000xx Xxxxxx, Xxxxxxx Xxxxxx, XX 00000
SIRE As of 1-31-2008
-----------------------------------------------------------------------------------------------------------------------------------------
IMPORTANT NOTICE: This statement must be complete as to names of all persons and companies furnishing labor and/or material on the
premises herein. Any increase in cost, from changes in construction or otherwise, must be forthwith reported to the DISBURSING AGENT
with additional deposits to cover such increase in cost.
------------------------------------------------------------------------------------------------------------------------------------------
Amounts
Remaining
Bids or for Signed
ITEMS FURNISH BY Budget Contracts AMT PAID Contracts
-----------------------------------------------------------------------------------------------------------------------------------------
1 Plant Construction Costs
-----------------------------------------------------------------------------------------------------------------------------------------
ICM Fixed
Price Contract $118,000,000 $48,042,404 $69,957,596
-----------------------------------------------------------------------------------------------------------------------------------------
2 Builders Risk(thru 1 May 08) IMA, Ins $267,618 $267,618 $0
-----------------------------------------------------------------------------------------------------------------------------------------
Builders Risk(thru 1 Sept 08) IMA, Ins $132,382
-----------------------------------------------------------------------------------------------------------------------------------------
3 Steam System(Turbine, Building, Etc) ICM Fixed
Price Contract $19,882,955 $2,497,537
-----------------------------------------------------------------------------------------------------------------------------------------
3 Steam System(Turbine, Start Up/Cleaning) ICM $750,000
-----------------------------------------------------------------------------------------------------------------------------------------
Engineering & Contract Administration HGM Opinion $23,628
-----------------------------------------------------------------------------------------------------------------------------------------
4 Grain and DDGS Storage and Handling Xxxx & Sargents $9,612,977 $7,399,640 $2,213,338
-----------------------------------------------------------------------------------------------------------------------------------------
0 Xxxx Xxxx
-----------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Grading Petersons $1,760,548 $1,667,031 $93,517
-----------------------------------------------------------------------------------------------------------------------------------------
North Grading Completion Xxxxxxxx
Construction and
Excavation $345,285 $294,043 $51,242
-----------------------------------------------------------------------------------------------------------------------------------------
South Grading Xxxxxxxx
Construction and
Excavation $2,135,488 $1,945,137 190,351
-----------------------------------------------------------------------------------------------------------------------------------------
Other-Misc MidAm/Culvert/BNSF Issues MidAm/Xxxxxxxx $167,172
-----------------------------------------------------------------------------------------------------------------------------------------
Rail Bridge Xxxxx $1,669,938 $1,007,758 $662,180
-----------------------------------------------------------------------------------------------------------------------------------------
Rail Construction Colo $971,565
-----------------------------------------------------------------------------------------------------------------------------------------
Rail Construction Inner Loop $997,192
-----------------------------------------------------------------------------------------------------------------------------------------
Direct Purchase of Rail Materials XX Xxxxxx/Narstco/
Progress Rail $3,507,544
-----------------------------------------------------------------------------------------------------------------------------------------
Engineering & Contract Administration HGM Opinion $227,242
-----------------------------------------------------------------------------------------------------------------------------------------
Channel Assemblies thru loadout building Drake Xxxxxxxx $40,552 $40,794
-----------------------------------------------------------------------------------------------------------------------------------------
CBEC Option $40,000 $40,000 $0
-----------------------------------------------------------------------------------------------------------------------------------------
6 Site Costs
-----------------------------------------------------------------------------------------------------------------------------------------
Geopiers Petersons $1,704,260 $1,704,260 $0
-----------------------------------------------------------------------------------------------------------------------------------------
Plant Grading Xxxxxxxx
Construction
and
Excavation $3,560,448 $3,459,858 $100,590
-----------------------------------------------------------------------------------------------------------------------------------------
Site Utilities
-----------------------------------------------------------------------------------------------------------------------------------------
Fire Loop/Tank supply line Midwest Underground $388,341 $388,341 $0
-----------------------------------------------------------------------------------------------------------------------------------------
Potable Water Main/Sanitary Sewers Midwest Underground $145,207 $107,177 $38,030
-----------------------------------------------------------------------------------------------------------------------------------------
Process Water Xxxxx Xxxxx Western $245,455 $0 $245,455
----------------------------------------------------------------------------------------------------------------------------------------
Potable Water Xxxxx $18,999 $0 $18,999
-----------------------------------------------------------------------------------------------------------------------------------------
Other Utilites
-----------------------------------------------------------------------------------------------------------------------------------------
Septic Tanks D&D Septic $25,684 $25,684 $0
-----------------------------------------------------------------------------------------------------------------------------------------
Well Testing Xxxxx $12,905 $12,905 $0
-----------------------------------------------------------------------------------------------------------------------------------------
Temporary Power/Tanks ABC Electric $161,937 $161,938
-----------------------------------------------------------------------------------------------------------------------------------------
Temporary Power - MidAm MidAm $27,710 $27,710
-----------------------------------------------------------------------------------------------------------------------------------------
Temporary Power - ICM ICM $40,989
-----------------------------------------------------------------------------------------------------------------------------------------
Non-contact Process Water Main HGM Opinion $309,501
-----------------------------------------------------------------------------------------------------------------------------------------
Fire Pumps, Hydrants, Monitors ICM Fixed Price
Contract $487,060
-----------------------------------------------------------------------------------------------------------------------------------------
Fencing & Gating American Fence $237,000 $79,806
-----------------------------------------------------------------------------------------------------------------------------------------
Landscaping HGM Engineer
Opinion $100,000
-----------------------------------------------------------------------------------------------------------------------------------------
Containment(Storage Tanks) HGM Opinion $250,000
-----------------------------------------------------------------------------------------------------------------------------------------
Engineering & Contract Administration HGM Opinion $972,216 $225,030
-----------------------------------------------------------------------------------------------------------------------------------------
Ground Soil Compaction Testing HGM Opinion $190,000 $164,945
-----------------------------------------------------------------------------------------------------------------------------------------
7 Road/Parking Lot Paving HGM Engineer
Opinion $1,400,600
-----------------------------------------------------------------------------------------------------------------------------------------
Permitting Bunge & ICM
Engineer Est $300,000 $5,095
-----------------------------------------------------------------------------------------------------------------------------------------
Electrical
-----------------------------------------------------------------------------------------------------------------------------------------
8 SIRE Permanent Power ICM Fixed
Price Contract $1,328,800 $66,087
-----------------------------------------------------------------------------------------------------------------------------------------
8 Engineer Design Grain Hndlng Automation Interstates
Engineering $235,000 $23,186
-----------------------------------------------------------------------------------------------------------------------------------------
9 Electrical Installation Grain Hndlng Interstates
Esitmate with
ICM Agreement $2,265,000
-----------------------------------------------------------------------------------------------------------------------------------------
10 Electrical - MidAm Power line Relocation HGM Engineer
Opinion $75,473
-----------------------------------------------------------------------------------------------------------------------------------------
Backup Boilers & Building Proposal
Xxxxxxxxx $6,670,000
-----------------------------------------------------------------------------------------------------------------------------------------
Natural Gas Piping Proposal
Northern $1,807,000
-----------------------------------------------------------------------------------------------------------------------------------------
Scales & Probe
-----------------------------------------------------------------------------------------------------------------------------------------
11 Two Truck Scales Scales Sales
& Service
(Contract) $116,000
-----------------------------------------------------------------------------------------------------------------------------------------
Grain Hndlng Accounting Software Xxxx Deer
Agri-Services
(Proposal) $99,000
-----------------------------------------------------------------------------------------------------------------------------------------
12 Scales & Probe Bldg Bunge
Engineering
Estimate $535,000
-----------------------------------------------------------------------------------------------------------------------------------------
13 Water Treatment ICM Fixed
Price Contract $2,030,000 $600
-----------------------------------------------------------------------------------------------------------------------------------------
14
-----------------------------------------------------------------------------------------------------------------------------------------
15 Land Pottawattamie
County $2,064,090 $780,840 $1,283,250
-----------------------------------------------------------------------------------------------------------------------------------------
16 Continious Emissions Monitoring Equipment ICM Estimate
Based on
Experience $300,000
-----------------------------------------------------------------------------------------------------------------------------------------
17 Administrative Building Prairie
Construction $660,000 $22,646
-----------------------------------------------------------------------------------------------------------------------------------------
18 Office Equipment Various $80,000 $39,781
-----------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------
Amounts
Remaining
Bids or for Signed
ITEMS FURNISH BY Budget Contracts AMT PAID Contracts
-----------------------------------------------------------------------------------------------------------------------------------------
Computers, Software, Network Various $300,000 $46,326
-----------------------------------------------------------------------------------------------------------------------------------------
19 Capitalized Interest AgStar $5,400,000
-----------------------------------------------------------------------------------------------------------------------------------------
Construction Contingency $3,268,693
-----------------------------------------------------------------------------------------------------------------------------------------
20 Sales Tax Contingency $3,253,722
-----------------------------------------------------------------------------------------------------------------------------------------
21 Financing Costs
-----------------------------------------------------------------------------------------------------------------------------------------
AgStar $368,000 $1,046,000 $1,046,000 $0
-----------------------------------------------------------------------------------------------------------------------------------------
Pre-Production Period Costs $1,799,670 $666,907
-----------------------------------------------------------------------------------------------------------------------------------------
22 Organizational & Development $5,424,414 $3,816,013
-----------------------------------------------------------------------------------------------------------------------------------------
Cost of Raising Capital $139,999
-----------------------------------------------------------------------------------------------------------------------------------------
23
-----------------------------------------------------------------------------------------------------------------------------------------
24 Rolling Stock $2,000,000
-----------------------------------------------------------------------------------------------------------------------------------------
25 Working Capital (Assumes $15M Revolver +$10M Additional Available)
-----------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Cash $1,000,000
-----------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Corn $3,500,000
-----------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Chemicals &
Ingredients $800,000
-----------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Spare Parts $750,000
-----------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Ethanol $5,300,000
-----------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital DDGS $1,300,000
-----------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL $56,851,214 167,784,175 $76,463,964 74,854,548
-----------------------------------------------------------------------------------------------------------------------------------
**Proposals or contracts have not been completed
STATE OF Iowa)
> SS.
COUNTY OF Pottawattamie)
The undersigned being first duly sworn, each for himself, as General Contractor and Borrower, deposes and says that the foregoing
are the names of all parties having contracts or subcontracts for specified portions of the work on said property and building or
material entering into the construction thereof, and the amounts due and to become due to each of said parties, that the items
mentioned include all labor and material required to complete said buildings according to plans and specifications, that there are
no other contracts outstanding; and that there is nothing due or to become due to any person for material, labor or other work of
any kind done upon said building other than as above stated.
The undersigned further deposes and says that no increase in the cost of construction will be made under any circumstances without
furnishing information on same to the DISBURSING AGENT with additional deposits to cover such increase; that, in the event of any
such increase, no orders or claims will be made to said company until such information and additional deposits shall have been
completed; that the purpose of said statement is to induce said company to pay out the proceeds of a loan of $111,000,000 secured by
a mortgage on said property; and that, upon payment of the specific unpaid items listed herein, the undersigned General Contractor
hereby agrees to waive all claims of priority to said mortgage and both parties herein will save said company harmless as to any
claims of priority of lien for any labor or material, furnished or to be furnished, for completion of construction.
/s/ Xxx Xxxxx
-------------------------------------
Treasurer, Board Member
The foregoing instrument was acknowledged before me this 21st day of February, 2008.
/s/ Xxxxx Xxxxxx
-------------------------------------
NOTARY STAMP:
Signature of Notary Public
