MASTER LOAN AGREEMENT
Xxxxxxx 00.0
XXX Xx. XX0000
THIS MASTER LOAN AGREEMENT is entered into as February 17, 2006, between FARM CREDIT SERVICES
OF AMERICA, FLCA (“Farm Credit”) and ADVANCED BIOENERGY, LLC, Fairmont, Nebraska (the “Company”).
BACKGROUND
From time to time Farm Credit may make loans to the Company. In order to reduce the amount of
paperwork associated therewith, Farm Credit and the Company would like to enter into a master loan
agreement. For that reason, and in consideration of Farm Credit making one or more loans to the
Company, Farm Credit and the Company agree as follows:
SECTION 1. Supplements. In the event the Company desires to borrow from Farm Credit and the
Company has satisfied the conditions precedent set forth in Section 7 of this Master Loan
Agreement, Farm Credit will lend to the Company, (or in the event Farm Credit and the Company
desire to consolidate any existing loans hereunder) pursuant to a Supplement to this agreement (a
“Supplement”) and other provisions hereof. Each Supplement will set forth the amount of the loan,
the purpose of the loan, the interest rate or rate options applicable to that loan, the repayment
terms of the loan, and any other terms and conditions applicable to that particular loan. Each
loan will be governed by the terms and conditions contained in this agreement and in the Supplement
relating to the loan.
SECTION 2. Sale of Participation Interests and Appointment of Administrative Agent. The
Company acknowledges that concurrent with the execution of this Master Loan Agreement and related
Supplements, Farm Credit is selling a participation interest in this Master Loan Agreement and
Supplements executed concurrently herewith to CoBank, ACB (“CoBank”) (up to a 100% interest).
Pursuant to an Administrative Agency Agreement dated February 17, 2006, (“Agency Agreement”), Farm
Credit and CoBank appointed CoBank to act as Administrative Agent (“Agent”) to act in place of Farm
Credit hereunder and under the Supplements and any security documents to be executed thereunder.
All funds to be advanced hereunder shall be made by Agent, all repayments by the Company hereunder
shall be made to Agent, and all notices to be made to Farm Credit hereunder shall be made to Agent.
Agent shall be solely responsible for the administration of this agreement, the Supplements and
the security documents to be executed by the Company thereunder and the enforcement of all rights
and remedies of Farm Credit hereunder and thereunder. Company acknowledges the appointment of the
Agent and consents to such appointment.
SECTION 3. Availability. Loans will be made available on any day on which Agent and the
Federal Reserve Banks are open for business upon the telephonic or written request of the Company.
Requests for loans must be received no later than 12:00 Noon Company’s local time on the date the
loan is desired. Loans will be made available by wire transfer of immediately available funds to
such account or accounts as may be authorized by the Company. The Company shall furnish to Agent a
duly completed and executed copy of a CoBank Delegation and Wire and Electronic Transfer
Authorization Form of the Agent, and Agent shall be entitled to rely on (and shall incur no
liability to the Company in acting on) any request or direction furnished in accordance with the
terms thereof.
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SECTION 4. Repayment. The Company’s obligation to repay each loan shall be evidenced by the
promissory note set forth in the Supplement relating to that loan or by such replacement note as
Agent shall require. Agent shall maintain a record of all loans, the interest accrued thereon, and
all payments made with respect thereto, and such record shall, absent proof of manifest error, be
conclusive evidence of the outstanding principal and interest on the loans. All payments shall be
made by wire transfer of immediately available funds, by check, or by automated clearing house or
other similar cash handling processes as specified by separate agreement between the Company and
Agent. Wire transfers shall be made to ABA No. 000000000 for advice to and credit of CoBank (or to
such other account as Agent may direct by notice). The Company shall give Agent telephonic notice
no later than 12:00 Noon Company’s local time of its intent to pay by wire and funds received after
3:00 p.m. Company’s local time shall be credited on the next business day. Checks shall be mailed
to XxXxxx, XXX, Xxxxxxxxxx 000, Xxxxxx, Xxxxxxxx 00000-0000 (or to such other place as Agent may
direct by notice). Credit for payment by check will not be given until the later of: (a) the day
on which Agent receives immediately available funds; or (b) the next business day after receipt of
the check.
SECTION 5. Capitalization. The Company agrees to purchase voting (Class D) or non-voting
(Class E) stock in Farm Credit Services of America, ACA ($1,000.00 worth of stock consisting of at
least 200 shares of $5.00 par value stock) as required under the policy of Farm Credit at the time
of acquisition. Farm Credit policy may change from time to time. Farm Credit shall have a first
lien on the stock for payment of any liability of the Company to Farm Credit. Said stock shall be
owned as follows:
Owner Name: Advanced BioEnergy, LLC SSN/TIN: 20-2281511
The Company authorizes and appoints the following to act on behalf of the Company, to vote the
Class D stock, and to accept, receive and receipt for any dividends declared on the stock:
Xxxxx X. Xxxxxxxxxx, III, voter
SECTION 6. Security. The Company’s obligations under this agreement, all Supplements
(whenever executed), and all instruments and documents contemplated hereby or thereby, shall be
secured by a statutory first lien on all equity which the Company may now own or hereafter acquire
in Farm Credit. In addition, the Company agrees to grant to Farm Credit, by means of such
instruments and documents as Agent shall reasonably require, a first lien (subject only to
exceptions approved in writing by Agent) on all personal property of the Company, and on all real
property of the Company, whether now existing or hereafter acquired. As additional security for
those obligations: (i) the Company agrees to grant to Farm Credit, by means of such instruments
and documents as Agent shall reasonably require, a first priority lien on such of its other assets,
whether now existing or hereafter acquired, as Agent may from time to time require; and (ii) the
Company agrees to grant to Farm Credit, by means of such instruments and documents as Agent shall
require, a first priority lien on all realty which the Company may from time to time acquire after
the date hereof. Farm Credit may at its discretion assign collateral to the Agent under the Agency
Agreement.
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SECTION 7. Conditions Precedent.
(A) Conditions to Initial Supplement. Farm Credit’s obligation to extend credit under the
initial Supplement hereto is subject to the conditions precedent that Agent receive, in form and
content satisfactory to Agent, each of the following:
(i) This Agreement, Etc. A duly executed copy of this agreement and all instruments and
documents contemplated hereby.
(ii) Security Agreement. A security agreement granting to Farm Credit a first lien (subject
only to exceptions approved in writing by Agent) on all personal property of the Company, whether
now owned or hereafter acquired.
(iii) Mortgage/Deed of Trust. A mortgage or deed of trust granting to Farm Credit a first
lien (subject only to exceptions approved in writing by Agent) on the Company’s Property (as that
term is defined in the applicable Supplements) located near Fairmont, Nebraska.
(iv) Title Commitment/Policy. A commitment from a title insurance company acceptable to Agent
to issue an ALTA lender’s policy of title insurance in the face amount of $84,500,000.00 insuring
the Company’s Mortgage or Deed of Trust to Farm Credit as a first priority lien on the property
encumbered thereby, subject only to exceptions approved in writing by Agent. The Company agrees to
pay the cost of such commitment and the related policy, together with such endorsements as may be
reasonably requested by Agent, and also agrees that if, for any reason, a final policy is not
issued by the date that is ninety (90) days after the date of this agreement or such later date as
may be agreeable to Agent, then an “Event of Default” shall be deemed to have occurred under this
agreement.
(v) Insurance. Certificates from the insurance carrier for the general contractor or
contractors (and if the Company is not adequately insured therein, from the Company’s insurance
carrier) evidencing workers’ compensation and liability insurance (including contractual liability)
carried during the course of construction, with liability limits for death of or injury to persons
and for damages to property in amounts acceptable to Agent or such other limits if any are
established under the construction contract(s). Without limiting the provision in Section 9(D)
herein or the foregoing, the Company agrees to obtain Builder’s Risk casualty insurance covering
fire and other casualty with extended coverage including vandalism and malicious mischief.
(vi) Environmental Audit. A written report of an environmental audit pertaining to the
Company’s real property located near Fairmont, Nebraska, produced by an independent national or
regional environmental consulting firm or such other evidence satisfactory to Agent, which report
or evidence shall show to Agent’s satisfaction that all appropriate inquiry was made and that the
past or present use or condition of the property poses neither material health or safety hazards
nor potential financial exposure that Agent in its sole discretion, finds unacceptable.
(vii) Evidence of Capital. Such evidence as Agent may require that the Company has obtained
equity capital, or acceptable binding commitments thereof, in an amount no less than $53,000,000.00
with terms and conditions acceptable to Agent.
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(viii) Process/Yield Guarantee. An acceptable Process/Yield Guarantee from the design
engineer and contractor, acceptable to Agent, as well as a minimum one-year warranty on all work
performed.
(ix) Engineering and Construction Contracts. Copies of all engineering and construction
contracts with payment retainages, fixed-priced provisions and warranty provisions acceptable to
Agent.
(x) Utilities; Access. A certificate from the Company’s engineer or other evidence
satisfactory to Agent as to the methods of access to and egress from the Property and the
availability of water supply, electricity, natural gas, and other utilities, and for the disposal
of wastewater, all in locations and capacities sufficient to meet the reasonable requirements of
the Property and the Improvements (as that term is defined in the applicable Supplements) and
otherwise satisfactory to Agent.
(xi) Project Budget and Schedule, Contracts and Plans. Project budget, schedule, contracts
and plans as follows: (i) a budget setting forth the total estimated direct costs for construction
(including real property acquisition, site preparation and infrastructure, railroad siding,
capitalized interest and contingencies) not to exceed an aggregate total of $114,250,000.00 for the
Improvements, and for indirect costs, (including costs to organize and obtain financing, to pay
claims and liabilities, and for pre-production expenses, but excluding working capital) not to
exceed an aggregate total of $3,500,000.00, including line item cost breakdowns for all direct
costs by trade, job, and subcontractor, and a schedule of all sources of funds to pay such costs
(the “Project Budget”); (ii) a schedule setting forth, by trade, job, and subcontractor, the
estimated dates of commencement and completion of construction of the Improvements (the “Project
Schedule”); (iii) a schedule of the amounts and times of advances anticipated to be requisitioned
by the Company from time to time during the term of construction of the Improvements (the
“Disbursement Schedule”); (iv) a list of all subcontractors and materialmen who have been, or, to
the extent then determined by the Company, will be supplying labor, materials or goods for the
Improvements; (v) two sets of the Plans with a certification from the Company and from the
Company’s architect or engineer, or with other evidence satisfactory to Agent as to the following
matters: (a) that the Improvements can be completed by, April 1, 2007, (the “Completion Date”);
(b) that the Project Budget, Project Schedule, Disbursement Schedule and the Plans satisfactorily
provide for the construction of the Improvements; and (c) that the Improvements upon completion
will comply with all Laws (as defined in Section 9(B) hereof), including, without limitation, all
Laws relating to the environment, and all approvals, consents, permits and licenses required under
such Laws (the “Project Approvals”) which have been obtained or are to be obtained by the Company
relating in any way to the acquisition, construction or the contemplated operation of the
Improvements (including, without limitation, those relating to zoning, building, use and occupancy,
fire prevention and health); and (vi) a list of the Project Approvals indicating those Project
Approvals obtained and to be obtained (and a schedule for obtaining such Project Approvals).
(xii) Escrow Agreement. An escrow agreement for distribution of loan funds acceptable to
Agent specifically providing for a Title/Abstract Company to distribute all loan proceeds. Costs
of said agreement are to be paid by the Company.
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(xiii) Survey. Receipt of an ALTA quality survey of the Property by a licensed surveyor
satisfactory to Agent verifying no encroachments by any Improvements on the Property onto adjoining
property, or such other information as may be required by Agent.
(xiv) Appraisal. An appraisal of the Property by a licensed, independent appraiser
satisfactory to Agent, such appraisal to include values for the proposed ethanol facility and rail
spur to be located on the Company’s real property located near Fairmont, Nebraska.
(xv) Opinion of Counsel. An opinion of the Company’s counsel (in form and substance
acceptable to Agent) confirming due authorization and execution of the loan documents.
(B) Conditions to Each Supplement. Farm Credit’s obligation to extend credit under each
Supplement, including the initial Supplement, is subject to the conditions precedent that Agent
receive, in form and content satisfactory to Agent, each of the following:
(i) Supplement. A duly executed copy of the Supplement and all instruments and documents
contemplated thereby.
(ii) Evidence of Authority. Such certified board resolutions, certificates of incumbency, and
other evidence that Agent may require that the Supplement, all instruments and documents executed
in connection therewith, and, in the case of initial Supplement hereto, this agreement and all
instruments and documents executed in connection herewith, have been duly authorized and executed.
(iii) Fees and Other Charges. All fees and other charges provided for herein or in the
Supplement.
(iv) Evidence of Perfection, Etc. Such evidence as Agent may require that Farm Credit has a
duly perfected first priority lien on all security for the Company’s obligations, and that the
Company is in compliance with Section 9(D) hereof.
(C) Conditions to Each Loan. Farm Credit’s obligation under each Supplement to make any loan
to the Company thereunder is subject to the condition that no “Event of Default” (as defined in
Section 12 hereof) or event which with the giving of notice and/or the passage of time would become
an Event of Default hereunder (a “Potential Default”), shall have occurred and be continuing.
SECTION 8. Representations and Warranties.
(A) This Agreement. The Company represents and warrants to Farm Credit and Agent that as of
the date of this Agreement:
(i) Compliance. The Company and, to the extent contemplated hereunder, each “Subsidiary” (as
defined below), is in compliance with all of the terms of this agreement, and no Event of Default
or Potential Default exists hereunder.
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(ii) Subsidiaries. The Company has no Subsidiary(ies) as defined below. For purposes hereof,
a “Subsidiary” shall mean a corporation of which shares of stock having ordinary voting power to
elect a majority of the board of directors or other managers of such corporation are owned,
directly or indirectly, by the Company.
(B) Each Supplement. The execution by the Company of each Supplement hereto shall constitute
a representation and warranty to Agent that:
(i) Applications. Each representation and warranty and all information set forth in any
application or other documents submitted in connection with, or to induce Farm Credit to enter
into, such Supplement, is correct in all material respects as of the date of the Supplement.
(ii) Conflicting Agreements, Etc. This agreement, the Supplements, and all security and other
instruments and documents relating hereto and thereto (collectively, at any time, the “Loan
Documents”), do not conflict with, or require the consent of any party to, any other agreement to
which the Company is a party or by which it or its property may be bound or affected, and do not
conflict with any provision of the Company’s operating agreement, articles of organization, or
other organizational documents.
(iii) Compliance. The Company and, to the extent contemplated hereunder, each Subsidiary, is
in compliance with all of the terms of the Loan Documents (including, without limitation, Section
9(A) of this agreement on eligibility to borrow from Farm Credit).
(iv) Binding Agreement. The Loan Documents create legal, valid, and binding obligations of
the Company which are enforceable in accordance with their terms, except to the extent that
enforcement may be limited by applicable bankruptcy, insolvency, or similar laws affecting
creditors’ rights generally.
SECTION 9. Affirmative Covenants. Unless otherwise agreed to in writing by Agent while this
agreement is in effect, the Company agrees to, and with respect to Subsections 9(B) through 9(G)
hereof, agrees to cause each Subsidiary to:
(A) Eligibility. Maintain its status as an entity eligible to borrow from Farm Credit
pursuant to the terms of the Farm Credit Act of 1971, as amended, 12 USC 2001, et seq.
(B) Company Existence, Licenses, Etc. (i) Preserve and keep in full force and effect its
existence and good standing in the jurisdiction of its formation; (ii) qualify and remain qualified
to transact business in all jurisdictions where such qualification is required; and (iii) obtain
and maintain all licenses, certificates, permits, authorizations, approvals, and the like which are
material to the conduct of its business or required by law, rule, regulation, ordinance, code,
order, and the like (collectively, “Laws”).
(C) Compliance with Laws. Comply in all material respects with all applicable Laws,
including, without limitation, all Laws relating to environmental protection. In addition, the
Company agrees to cause all persons occupying or present on any of its properties, and to cause
each Subsidiary to
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cause all persons occupying or present on any of its properties, to comply in all material respects
with all environmental protection Laws.
(D) Insurance. Maintain insurance with insurance companies or associations reasonably
acceptable to Agent in such amounts and covering such risks as are usually carried by companies
engaged in the same or similar business and similarly situated, and make such increases in the type
or amount of coverage as Agent may reasonably request. All such policies insuring any collateral
for the Company’s obligations to Farm Credit shall have mortgagee or lender loss payable clauses or
endorsements in form and content acceptable to Agent. At Agent’s request, all policies (or such
other proof of compliance with this Subsection as may be satisfactory to Agent) shall be delivered
to Agent.
(E) Property Maintenance. Maintain all of its property that is necessary to or useful in the
proper conduct of its business in good working condition, ordinary wear and tear excepted.
(F) Books and Records. Keep adequate records and books of account in which complete entries
will be made in accordance with generally accepted accounting principles (“GAAP”) consistently
applied.
(G) Inspection. Permit Agent or its agents, upon reasonable notice and during normal business
hours or at such other times as the parties may agree, to examine its properties, books, and
records, and to discuss its affairs, finances, and accounts, with its respective officers,
directors, employees, and independent certified public accountants.
(H) Reports and Notices. Furnish to Agent:
(i) Annual Financial Statements. As soon as available, but in no event more than 90 days
after the end of each fiscal year of the Company occurring during the term hereof, annual
consolidated and consolidating financial statements of the Company and its consolidated
Subsidiaries, if any, prepared in accordance with GAAP consistently applied. Such financial
statements shall: (a) be audited by independent certified public accountants selected by the
Company and acceptable to Agent; (b) be accompanied by a report of such accountants containing an
opinion thereon acceptable to Agent; (c) be prepared in reasonable detail and in comparative form;
and (d) include a balance sheet, a statement of income, a statement of retained earnings, a
statement of cash flows, and all notes and schedules relating thereto.
(ii) Interim Financial Statements. Effective with the commencement of operations, as soon as
available, but in no event more than 30 days after the end of each month, a consolidated balance
sheet of the Company and its consolidated Subsidiaries, if any, as of the end of such month, a
consolidated statement of income for the Company and its consolidated Subsidiaries, if any for such
period and for the period year to date, and such other interim statements as Agent may reasonably
request, all prepared in reasonable detail and in comparative form in accordance with GAAP
consistently applied and, if required by written notice from Agent, certified by an authorized
officer or employee of the Company acceptable to Agent.
(iii) Notice of Default. Promptly after becoming aware thereof, notice of the occurrence of
an Event of Default or a Potential Default.
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(iv) Notice of Non-Environmental Litigation. Promptly after the commencement thereof, notice
of the commencement of all actions, suits, or proceedings before any court, arbitrator, or
governmental department, commission, board, bureau, agency, or instrumentality affecting the
Company or any Subsidiary which, if determined adversely to the Company or any such Subsidiary,
could have a material adverse effect on the financial condition, properties, profits, or operations
of the Company or any such Subsidiary.
(v) Notice of Environmental Litigation, Etc. Promptly after receipt thereof, notice of the
receipt of all pleadings, orders, complaints, indictments, or any other communication alleging a
condition that may require the Company or any Subsidiary to undertake or to contribute to a cleanup
or other response under environmental Laws, or which seek penalties, damages, injunctive relief, or
criminal sanctions related to alleged violations of such Laws, or which claim personal injury or
property damage to any person as a result of environmental factors or conditions.
(vi) Formation Documents. Promptly after any change in the Company’s operating agreement or
articles of organization (or like documents), copies of all such changes, certified by the
Company’s Secretary.
(vii) Budgets. As soon as available, but in no event more than 90 days after the end of any
fiscal year of the Company occurring during the term hereof, copies of the Company’s board-approved
annual budgets and forecasts of operations and capital expenditures.
(viii) Compliance Certificate. Together with each set of financial statements furnished to
Agent pursuant to Subsection (H)(ii) hereof, a certificate of an officer of employee of the Company
acceptable to Agent, in the form attached as Exhibit “A” hereto: (a) certifying that no Event of
Default or Potential Default occurred during the period covered by such statement(s) or, if an
Event of Default or Potential Default occurred, a description thereof and of all actions taken or
to be taken to remedy same, and (b) setting forth calculations showing compliance with the
financial covenants set forth in Section 11 hereof.
(ix) Other Information. Such other information regarding the condition or operations,
financial or otherwise, of the Company or any Subsidiary as Agent may from time to time reasonably
request, including but not limited to copies of all pleadings, notices, and communications referred
to in Subsections 9(H)(iv) and (v) above.
(I) Policies/Contracts. Enter into and provide copies to Agent of each of the following by no
later than January 1, 2007: (i) risk management policies and programs/strategies pertaining to
grain procurement and ethanol and related byproduct marketing; (ii) distillers grain and ethanol
marketing contracts; and (iii) hedging and grain procurement contracts. Furthermore, the Company
agrees to obtain Agent’s written consent prior to making any material changes therein.
(K) Performance Bonds. Provide performance bonds, in form and content acceptable to Agent,
for construction and related contracts upon request by Agent.
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SECTION 10. Negative Covenants. Unless otherwise agreed to in writing by Agent, while this
agreement is in effect the Company will not:
(A) Borrowings. Create, incur, assume, or allow to exist, directly or indirectly, any
indebtedness or liability for borrowed money (including trade or bankers’ acceptances), letters of
credit, or the deferred purchase price of property or services, except for: (i) debt to Farm
Credit; (ii) accounts payable to trade creditors incurred in the ordinary course of business; (iii)
current operating liabilities (other than for borrowed money) incurred in the ordinary course of
business and (iv) debt of the Company to miscellaneous creditors, in an aggregate amount not to
exceed $1,500,000.00 on terms and conditions satisfactory to Agent.
(B) Liens. Create, incur, assume, or allow to exist any mortgage, deed of trust, pledge, lien
(including the lien of an attachment, judgment, or execution), security interest, or other
encumbrance of any kind upon any of its property, real or personal (collectively, “Liens”). The
foregoing restrictions shall not apply to: (i) Liens in favor of Farm Credit; (ii) Liens for
taxes, assessments, or governmental charges that are not past due; (iii) Liens and deposits under
workers’ compensation, unemployment insurance, and social security Laws; (iv) Liens and deposits to
secure the performance of bids, tenders, contracts (other than contracts for the payment of money),
and like obligations arising in the ordinary course of business, as conducted on the date hereof;
(v) Liens imposed by Law in favor of mechanics, materialmen, warehousemen, and like persons that
secure obligations that are not past due; (vi) easements, rights-of-way, restrictions, and other
similar encumbrances which, in the aggregate, do not materially interfere with the occupation, use,
and enjoyment of the property or assets encumbered thereby in the normal course of its business or
materially impair the value of the property subject thereto; and (vii) subordinate Liens in favor
of miscellaneous creditors to secure indebtedness permitted hereunder.
(C) Mergers, Acquisitions, Etc. Merge or consolidate with any other entity or acquire all or
a material part of the assets of any person or entity, or form or create any new Subsidiary or
affiliate, or commence operations under any other name, organization, or entity, including any
joint venture.
(D) Transfer of Assets. Sell, transfer, lease, or otherwise dispose of any of its assets,
except in the ordinary course of business.
(E) Loans and Investments. Make any loan or advance to any person or entity, or purchase any
capital stock, obligations or other securities of, make any capital contribution to, or otherwise
invest in any person or entity, or form or create any partnerships or joint ventures except trade
credit extended in the ordinary course of business.
(F) Contingent Liabilities. Assume, guarantee, become liable as a surety, endorse,
contingently agree to purchase, or otherwise be or become liable, directly or indirectly
(including, but not limited to, by means of a maintenance agreement, an asset or stock purchase
agreement, or any other agreement designed to ensure any creditor against loss), for or on account
of the obligation of any person or entity, except by the endorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary course of the Company’s business.
(G) Change in Business. Engage in any business activities or operations substantially
different from or unrelated to the Company’s present business activities or operations.
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Master Loan Agreement RI0340
Advanced BioEnergy, LLC
Fairmont, Nebraska
Advanced BioEnergy, LLC
Fairmont, Nebraska
(H) Capital Expenditures. Beginning with fiscal year ending 2008, expend, in the aggregate,
during any fiscal year more than $600,000.00 for the acquisition of fixed or capital assets
(including all obligations under capitalized leases authorized under the terms of this agreement,
but excluding obligations under operating leases).
(I) Leases. Create, incur, assume, or permit to exist any obligation as lessee under
operating leases or leases which should be capitalized in accordance with GAAP for the rental or
hire of any real or personal property, except leases which do not in the aggregate require the
Company to make scheduled payments to the lessors in any fiscal year of the Company in excess of
$100,000.00.
(J) Changes to Operating Agreements, Etc. Amend or otherwise make any material changes to the
Company’s Articles of Organization, Operating Agreement, management contracts and ethanol and/or
distillers grain marketing contracts.
(K) Dividends, Etc. Declare or pay any dividends, or make any distribution of assets to the
member/owners, or purchase, redeem, retire or otherwise acquire for value any of its equity, or
allocate or otherwise set apart any sum for any of the foregoing, except that for each fiscal year
commencing with the fiscal year ending 2007, a distribution may be made to the Company’s
members/owners of up to 50% of the net profit (according to GAAP) for such fiscal year after
receipt of the audited financial statements for the pertinent fiscal year, provided that the
Company has been and will remain in compliance with all loan covenants, terms and conditions.
Furthermore, with respect to fiscal year ending 2007 and each subsequent fiscal year, a
distribution may be made to its members/owners in excess of 50% of the net profit for such fiscal
year if the Company has made the required “Free Cash Flow” payment to Agent for such fiscal year as
provided in Construction and Term Loan Supplement dated February 17, 2006, and numbered XX0000X00
and any renewals, restatements and amendments thereof, and will remain in compliance with all other
loan covenant, terms and conditions.
SECTION 11. Financial Covenants. Unless otherwise agreed to in writing, while this agreement
is in effect:
(A) Working Capital. The Company will have at the end of each period for which financial
statements are required to be furnished pursuant to Section 9(H) hereof, an excess of current
assets over current liabilities (both as determined in accordance with GAAP consistently applied)
of not less than $10,000,000.00 at the earlier of commencement of operations or by April 30, 2007,
except that in determining current assets, any amount available under the Construction and
Revolving Term Loan Supplement hereto (less the amount that would be considered a current liability
under GAAP if fully advanced) may be included.
(B) Net Worth. The Company will have at the end of each period for which financial statements
are required to be furnished under Section 9(H) hereof an excess of total assets over total
liabilities (both as determined in accordance with GAAP consistently applied) of not less than:
(i) $50,000,000.00; (ii) increasing to $53,000,000.00 at fiscal year ending 2007; and (iii)
increasing to $54,000,000.00 at fiscal year ending 2008 and thereafter.
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Master Loan Agreement RI0340
Advanced BioEnergy, LLC
Fairmont, Nebraska
Advanced BioEnergy, LLC
Fairmont, Nebraska
(C) Debt Service Coverage Ratio. The Company will have at the end of each fiscal year of the
Company, effective with the fiscal year ending 2008, a “Debt Service Coverage Ratio” (as defined
below) for that year of not less than 1.25 to 1.00. For purposes hereof, the term “Debt Service
Coverage Ratio” shall mean the following (all as calculated for the most current year-end in
accordance with GAAP consistently applied): (i) net income (after taxes), plus depreciation and
amortization; divided by (ii) all current portion of regularly scheduled long term debt for the
prior period (previous year-end).
SECTION 12. Events of Default. Each of the following shall constitute an “Event of Default”
under this agreement:
(A) Payment Default. The Company should fail to make any payment to Agent, or purchase any
equity in Farm Credit, when due.
(B) Representations and Warranties. Any representation or warranty made or deemed made by the
Company herein or in any Supplement, application, agreement, certificate, or other document related
to or furnished in connection with this agreement or any Supplement, shall prove to have been false
or misleading in any material respect on or as of the date made or deemed made.
(C) Certain Affirmative Covenants. The Company or, to the extent required hereunder, any
Subsidiary should fail to perform or comply with Sections 9(A) through 9(H)(ii), 9(H)(vi) through
9(H)(viii) or any reporting covenant set forth in any Supplement hereto, and such failure continues
for 15 days after written notice thereof shall have been delivered by Agent to the Company.
(D) Other Covenants and Agreements. The Company or, to the extent required hereunder, any
Subsidiary should fail to perform or comply with any other covenant or agreement contained herein
or in any other Loan Document or shall use the proceeds of any loan for an unauthorized purpose.
(E) Cross-Default. The Company should, after any applicable grace period, breach or be in
default under the terms of any other agreement between the Company and Farm Credit.
(F) Other Indebtedness. The Company or any Subsidiary should fail to pay when due any
indebtedness to any other person or entity for borrowed money or any long-term obligation for the
deferred purchase price of property (including any capitalized lease), or any other event occurs
which, under any agreement or instrument relating to such indebtedness or obligation, has the
effect of accelerating or permitting the acceleration of such indebtedness or obligation, whether
or not such indebtedness or obligation is actually accelerated or the right to accelerate is
conditioned on the giving of notice, the passage of time, or otherwise.
(G) Judgments. A judgment, decree, or order for the payment of money shall be rendered
against the Company or any Subsidiary in an amount exceeding $100,000.00 and either: (i)
enforcement proceedings shall have been commenced, (ii) a Lien prohibited under Section 10(B)
hereof shall have been obtained, or (iii) such judgment, decree, or order shall continue
unsatisfied and in effect for a period of 20 consecutive days without being vacated, discharged,
satisfied, or stayed pending appeal.
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Master Loan Agreement RI0340
Advanced BioEnergy, LLC
Fairmont, Nebraska
Advanced BioEnergy, LLC
Fairmont, Nebraska
(H) Insolvency, Etc. The Company or any Subsidiary shall: (i) become insolvent or shall
generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as
they come due; or (ii) suspend its business operations or a material part thereof or make an
assignment for the benefit of creditors; or (iii) apply for, consent to, or acquiesce in the
appointment of a trustee, receiver, or other custodian for it or any of its property or, in the
absence of such application, consent, or acquiescence, a trustee, receiver, or other custodian is
so appointed; or (iv) commence or have commenced against it any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation Law of any
jurisdiction.
(I) Material Adverse Change. Any material adverse change occurs, as reasonably determined by
Agent, in the Company’s financial condition, results of operation, or ability to perform its
obligations hereunder or under any instrument or document contemplated hereby.
(J) Revocation of Guaranty. Any guaranty, suretyship, subordination agreement, maintenance
agreement, or other agreement furnished in connection with the Company’s obligations hereunder and
under any Supplement shall, at any time, cease to be in full force and effect, or shall be revoked
or declared null and void, or the validity or enforceability thereof shall be contested by the
guarantor, surety or other maker thereof (the “Guarantor”), or the Guarantor shall deny any further
liability or obligation thereunder, or shall fail to perform its obligations thereunder, or any
representation or warranty set forth therein shall be breached, or the Guarantor shall breach or be
in default under the terms of any other agreement with Agent (including any loan agreement or
security agreement), or a default set forth in Subsections (F) through (H) hereof shall occur with
respect to the Guarantor.
SECTION 13. Remedies. Upon the occurrence and during the continuance of an Event of Default
or any Potential Default, Farm Credit shall have no obligation to continue to extend credit to the
Company and may discontinue doing so at any time without prior notice. For all purposes hereof,
the term “Potential Default” means the occurrence of any event which, with the passage of time or
the giving of notice or both would become an Event of Default. In addition, upon the occurrence
and during the continuance of any Event of Default, Farm Credit or Agent may, upon notice to the
Company, terminate any commitment and declare the entire unpaid principal balance of the loans, all
accrued interest thereon, and all other amounts payable under this agreement, all Supplements, and
the other Loan Documents to be immediately due and payable. Upon such a declaration, the unpaid
principal balance of the loans and all such other amounts shall become immediately due and payable,
without protest, presentment, demand, or further notice of any kind, all of which are hereby
expressly waived by the Company. In addition, upon such an acceleration:
(A) Enforcement. Farm Credit or Agent may proceed to protect, exercise, and enforce such
rights and remedies as may be provided by this agreement, any other Loan Document or under Law.
Each and every one of such rights and remedies shall be cumulative and may be exercised from time
to time, and no failure on the part of Farm Credit or Agent to exercise, and no delay in
exercising, any right or remedy shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy shall preclude any other or future exercise thereof, or the
exercise of any other right. Without limiting the foregoing, Agent may hold and/or set off and
apply against the Company’s obligations to Farm Credit cash collateral held by Farm Credit or
Agent, or any balances held by Farm Credit or Agent for the Company’s account (whether or not such
balances are then due).
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Master Loan Agreement RI0340
Advanced BioEnergy, LLC
Fairmont, Nebraska
Advanced BioEnergy, LLC
Fairmont, Nebraska
(B) Application of Funds. Agent may apply all payments received by it to the Company’s
obligations to Farm Credit in such order and manner as Agent may elect in its sole discretion.
In addition to the rights and remedies set forth above: (i) if the Company fails to purchase any
equity in Farm Credit when required or fails to make any payment to Agent when due, then at Agent’s
option in each instance, such payment shall bear interest from the date due to the date paid at 4%
per annum in excess of the rate(s) of interest that would otherwise be in effect on that loan; and
(ii) after the maturity of any loan (whether as a result of acceleration or otherwise), the unpaid
principal balance of such loan (including without limitation, principal, interest, fees and
expenses) shall automatically bear interest at 4% per annum in excess of the rate(s) of interest
that would otherwise be in effect on that loan. All interest provided for herein shall be payable
on demand and shall be calculated on the basis of a year consisting of 360 days.
SECTION 14. Broken Funding Surcharge. Notwithstanding any provision contained in any
Supplement giving the Company the right to repay any loan prior to the date it would otherwise be
due and payable, the Company agrees to provide three Business Days’ prior written notice for any
prepayment of a fixed rate balance and that in the event it repays any fixed rate balance prior to
its scheduled due date or prior to the last day of the fixed rate period applicable thereto
(whether such payment is made voluntarily, as a result of an acceleration, or otherwise), the
Company will pay to Agent a surcharge in an amount equal to the greater of: (i) an amount which
would result in Farm Credit, Agent, and all subparticipants being made whole (on a present value
basis) for the actual or imputed funding losses incurred by Farm Credit, Agent, and all
subparticipants as a result thereof; or (ii) $300.00. Notwithstanding the foregoing, in the event
any fixed rate balance is repaid as a result of the Company refinancing the loan with another
lender or by other means, then in lieu of the foregoing, the Company shall pay to Agent a surcharge
in an amount sufficient (on a present value basis) to enable Farm Credit, Agent, and all
subparticipants to maintain the yield they would have earned during the fixed rate period on the
amount repaid. Such surcharges will be calculated in accordance with methodology established by
Farm Credit, Agent, and all subparticipants (copies of which will be made available to the Company
upon request).
SECTION 15. Complete Agreement, Amendments. This agreement, all Supplements, and all other
instruments and documents contemplated hereby and thereby, are intended by the parties to be a
complete and final expression of their agreement. No amendment or modification of this Agreement
shall be effective unless in writing signed by both parties hereto. No waiver of any provision
hereof, and no consent to any departure by either party herefrom, shall be effective unless
approved in writing by the other party, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. In the event this agreement is
amended or restated, each such amendment or restatement shall be applicable to all Supplements
hereto.
SECTION 16. Other Types of Credit. From time to time, Farm Credit may extend other types of
credit to or for the account of the Company to expedite or facilitate the loans extended hereunder.
In the event the parties desire to do so under the terms of this agreement, such extensions of
credit may be set forth in any Supplement hereto and this agreement shall be applicable thereto.
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Master Loan Agreement RI0340
Advanced BioEnergy, LLC
Fairmont, Nebraska
Advanced BioEnergy, LLC
Fairmont, Nebraska
SECTION 17. Applicable Law. Except to the extent governed by applicable federal law, this
agreement and each Supplement shall be governed by and construed in accordance with the laws of the
State of Colorado, without reference to choice of law doctrine.
SECTION 18. Notices. All notices hereunder shall be in writing and shall be deemed to be duly
given upon delivery if personally delivered or sent by telegram or facsimile transmission, or three
days after mailing if sent by express, certified or registered mail, to the parties at the
following addresses (or such other address for a party as shall be specified by like notice):
If to Agent, as follows:
|
If to the Company, as follows: | |
For general correspondence purposes:
|
Advanced BioEnergy, LLC | |
CoBank, ACB
|
000 Xxxxx 0xx Xxxxxx | |
P.O. Box 5110
|
Xxxxxx, Xxxxxxxx 00000 | |
Xxxxxx, Xxxxxxxx 00000-0000 |
||
| Attention: Chairman | ||
For direct delivery purposes, when desired:
|
Fax No.: (000) 000-0000 | |
CoBank, ACB |
||
0000 Xxxxx Xxxxxx Xxxxxx |
||
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000 |
||
Attention: Credit Information Services |
||
Fax No.: (000) 000-0000 |
SECTION 19. Taxes and Expenses. To the extent allowed by law, the Company agrees to pay all
reasonable out-of-pocket costs and expenses (including the fees and expenses of counsel retained or
employed by Agent, including expenses of in-house counsel of Agent) incurred by Agent and any
participants from Farm Credit in connection with the origination, administration, collection, and
enforcement of this agreement and the other Loan Documents, including, without limitation, all
costs and expenses incurred in perfecting, maintaining, determining the priority of, and releasing
any security for the Company’s obligations to Farm Credit, and any stamp, intangible, transfer, or
like tax payable in connection with this agreement or any other Loan Document.
SECTION 20. Effectiveness and Severability. This agreement shall continue in effect until:
(i) all indebtedness and obligations of the Company under this agreement, all Supplements, and all
other Loan Documents shall have been paid or satisfied; (ii) Agent has no commitment to extend
credit to or for the account of the Company under any Supplement; and (iii) either party sends
written notice to the other terminating this agreement. Any provision of this agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or thereof.
SECTION 21. Successors and Assigns. This agreement, each Supplement, and the other Loan
Documents shall be binding upon and inure to the benefit of the Company and Farm Credit and their
respective successors and assigns, except that the Company may not assign or transfer its rights or
obligations under this agreement, any Supplement or any other Loan Document without the prior
written consent of Agent.
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Master Loan Agreement RI0340
Advanced BioEnergy, LLC
Fairmont, Nebraska
Advanced BioEnergy, LLC
Fairmont, Nebraska
SECTION 22. Participations, Etc. From time to time, Farm Credit may sell to one or more
banks, financial institutions or other lenders a participation in one or more of the loans or other
extensions of credit made pursuant to this agreement. However, no such participation shall relieve
Farm Credit of any commitment made to the Company under any Supplement hereto. In connection with
the foregoing, Farm Credit may disclose information concerning the Company and its Subsidiaries to
any participant or prospective participant, provided that such participant or prospective
participant agrees to keep such information confidential. Farm Credit agrees that all Loans that
are made by Farm Credit and that are retained for its own account and are not included in a sale of
participation interest shall be entitled to patronage distributions in accordance with the bylaws
of Farm Credit and its practices and procedures related to patronage distribution. Accordingly,
all Loans that are included in a sale of participation interest shall not be entitled to patronage
distributions from Farm Credit. A sale of participation interest may include certain voting rights
of the participants regarding the loans hereunder (including without limitation the administration,
servicing and enforcement thereof). Farm Credit agrees to give written notification to the Company
of any sale of participation interests.
SECTION 23. Counterparts. This agreement, each Supplement and any other Loan Document may be
executed in any number of counterparts and by different parties hereto in separate counterparts,
each of which, when so executed, shall be deemed to be an original and shall be binding upon all
parties and their respective permitted successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 24. Administrative Fee. The Company agrees to pay to Agent on November 1, 2006, and
on each November 1 thereafter, for as long as the Company has commitments from Farm Credit, an
administrative fee in the amount of $35,000.00.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed by their duly
authorized officers as of the date shown above.
| FARM CREDIT SERVICES | ADVANCED BIOENERGY, LLC | |||||||||
| OF AMERICA, FLCA | ||||||||||
By:
|
/s/ Xxxxxx Xxxxxxx | By: | /s/ Xxxxx X. Xxxxxxxxxx III | |||||||
Title:
|
VP | Title: | Chairman | |||||||
