MASTER LOAN AGREEMENT
Xxxxxxx 00.0
XXX Xx. XX0000X
THIS MASTER LOAN AGREEMENT is entered
into as of April 7, 2011, between FARM CREDIT SERVICES
OF AMERICA. FLCA (“FLCA”). FARM CREDIT SERVICES OF AMERICA. PCA (“PCA”) and ABE FAIRMONT, LLC,
Fairmont, Nebraska (the “Company”).
BACKGROUND
FLCA and the Company are parties to a Master
Loan Agreement dated November 20, 2006, as
amended (the “Existing Agreement”). Hereinafter, the term “Farm Credit” shall mean FLCA. PCA or
both, as applicable in the context. Pursuant to the terms of the Existing Agreement, the parties
entered into one or more Supplements thereto. Farm Credit and the Company now desire to amend and
restate the Existing Agreement and to apply such new agreement to the existing Supplements, as
well as any new Supplements that may be issued thereunder. For that reason and for valuable
consideration (the receipt and sufficiency of which are hereby acknowledged). Farm Credit and the
Company hereby agree that the Existing Agreement shall be amended and restated to read as follows:
SECTION 1. Supplements. In the event the Company desires to borrow from Farm Credit and Farm
Credit is willing to lend to the Company, or in the event Farm Credit and the Company desire to
consolidate any existing loans hereunder, the parties will enter into a Supplement to this
agreement (a “Supplement”). 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. As of the date hereof, the following Supplements are outstanding hereunder and shall be
governed by the terms and conditions hereof: (A) the Monitored Revolving Credit Supplement dated
April 7, 2011 and numbered RI0475S02; (B) the Multiple Advance Term Loan Supplement dated April 7,
2011 and numbered RI0340T01E: (C) the Construction and Revolving Term Loan Supplement dated
December 24, 2008 and numbered RI0340T02C; and (D) the Revolving Credit Supplement (Letters of
Credit) dated April 7, 2011 and numbered RI0340T04.
SECTION 2. Sale of Participation Interests and Appointment of Administrative Agent.
The Company acknowledges that concurrent with the execution of this MLA and related
Supplements, Farm Credit is selling a participation interest in this MLA and Supplements executed
concurrently herewith to CoBank, ACB (“CoBank”) (up to a 100% interest). Pursuant to an
Administrative Agency Agreement dated November 20, 2006. as amended. (“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.
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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, 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.
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, 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: ABE Fairmont. LLC | SSN/TIN: 20-5736411 |
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:
Xxxxxxx Xxxxxxxx, 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’s obligations under each Supplement (whenever executed)
and this agreement shall be secured by a first lien (subject only to exceptions approved in
writing by Agent) pursuant to all security agreements, mortgages, and deeds of trust executed by
the Company in favor of
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Farm Credit, whether now existing or hereafter entered into. As additional security for those
obligations: (A) the Company agrees to grant to Farm Credit, by means of such instruments and
documents as Agent shall 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 (B) 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.
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:
This Agreement, Etc, A duly executed copy of this agreement and all instruments and
documents contemplated hereby.
(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:
(1) Supplement. A duly executed copy of the Supplement and all instruments and
documents contemplated thereby.
(2) 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.
(3) Fees
and Other Charges. All fees and other charges provided for herein or in the Supplement.
(4) 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.
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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:
(1) 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.
(2) 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:
(1) 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.
(2) 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.
(3) 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).
(4) 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.
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(B) Corporate Existence, Licenses, Etc. (1) Preserve and keep in full force and effect its
existence and good standing in the jurisdiction of its incorporation or formation; (2) qualify
and remain qualified to transact business in all jurisdictions where such qualification is required: and
(3) 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 and any patron or
member investment program that it may have. In addition, the Company agrees to cause all persons
occupying or present on any of its properties, and to cause each Subsidiary to 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:
(1) 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 and Advanced BioEnergy. LLC (“Advanced”)
occurring during the term hereof, annual consolidated and consolidating financial statements of
the Company and Advanced, and their consolidated Subsidiaries, if any, prepared in accordance with
GAAP consistently applied. Furthermore, as soon as available, but in no event more than 120 days
after the end of each fiscal year of Advanced occurring during the term hereof, annual
unconsolidated financial statements of Advanced, prepared in accordance with GAAP consistently
applied. Such financial statements shall: (a) be audited by independent certified public
accountants selected by the Company and Advanced and acceptable to Agent; (b) be accompanied by a
report of such accountants containing
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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.
(2) Interim Financial Statements. 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.
(3) Notice of Default. Promptly after becoming aware thereof, notice of the
occurrence of an Event of Default or a Potential Default.
(4) 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.
(5) 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.
(6) Bylaws and Articles. Promptly after any change in the Company’s bylaws or
articles of incorporation (or like documents), copies of all such changes, certified by the
Company’s
Secretary.
(7) Compliance Certificates. Together with each set of financial statements
furnished to Agent pursuant to Subsection H(2) hereof and, if applicable, Subsection (2)
hereof, a
certificate of an officer or 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.
(8) 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.
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(9) 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.
(10) 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)(4) and (5) above.
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: (1) debt to Farm Credit;
(2) accounts payable to trade creditors incurred in the ordinary course of business; (3) current operating
liabilities (other than for borrowed money) incurred in the ordinary course of business; (4) Industrial
Revenue Bond financing from Fillmore County, Nebraska, in an amount
not to exceed $7,000,000.00
(exclusive of any related insurance costs and reserve requirements), subject to a debt subordination
agreement acceptable to Agent; (5) 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: and (6) Tax Increment
Financing in an amount not to exceed $7,000,000.00.
(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 forgoing
restrictions shall not apply to: (1) Liens in favor of Farm Credit; (2) Liens for taxes, assessments, or
governmental charges that are not past due; (3) Liens and deposits under workers’ compensation,
unemployment insurance, and social security Laws: (4) 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; (5) Liens imposed by Law in favor of
mechanics, materialmen, warehousemen, and like persons that secure obligations that are not past due; (6)
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 (7) Liens securing permitted borrowings in Section 10(A)(4), 10(A)(5) and 10(A)(6) above.
(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.
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(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.
(H) Capital Expenditures. During fiscal year 2011 of the Company, expend, in the aggregate,
no more than $3,600,000.00 and in subsequent fiscal years expend no 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 for: (1) 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; and (2) leases of railroad cars, provided, however, the Company will lease no more
that 454 cars, and further provided that all railroad car leases expire on or before December 1,
2013, and with any subsequent extension or renewal of any railroad car lease not to exceed a term
of three years, all under terms and conditions acceptable to Agent.
(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 2011, a distribution may be made to the Company’s
members/owners of up to 40% 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 the fiscal year ending 2011 and each subsequent fiscal year, a
distribution may be made to its members/owners up to 75% 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 Multiple Advance Term Loan
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Supplement
dated April 7, 2011, and numbered RI0340T01E and any renewals, restatements and
amendments thereof, and will remain in compliance with all other loan covenant, terms and
conditions.
(L) Payments on Subordinate Debt. In accordance with, and as permitted by, the terms of the
Debt Subordination agreement dated as of April 15, 2006, as the same has been amended from time to
time, among the Agent, and the Company (as successor to Advanced BioEnergy, LLC). Xxxxx Fargo Bank,
National Association, as trustee, and Farm Credit, make any payments on the subordinated debt that
would cause the Company to be in violation of the terms of the Debt Subordination Agreement.
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, 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) hereto 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 pursuant to 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
$50,000,000.00, except that in determining total liabilities, the amount of Tax Increment
Financing shall be excluded.
(C) Debt Service Coverage Ratio. The Company will have at the end of each fiscal year
of the Company a “Debt Service Coverage Ratio” (as defined below) of not less than 1.10 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): (1) net income (after
taxes), plus depreciation and amortization; divided by (2) 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 to
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.
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Master Loan Agreement RI0475D
ABE FAIRMONT, LLC
Fairmont, Nebraska
ABE FAIRMONT, LLC
Fairmont, Nebraska
(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)(2), 9(H)(6) 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 or
between the Company and any affiliate of CoBank, including without limitation Farm Credit Leasing Services Corporation.
(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: (1) enforcement proceedings shall have been commenced; (2) a Lien prohibited under Section 9(B)
hereof shall have been obtained; or (3) 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.
(H) Insolvency, Etc. The Company or any Subsidiary shall: (1) 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 (2) suspend its business operations or a material part thereof or make an
assignment for the benefit of creditors; or (3) 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 (4) 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
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Master Loan Agreement RI0475D
ABE FAIRMONT, LLC
Fairmont, Nebraska
ABE FAIRMONT, LLC
Fairmont, Nebraska
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 obligation to Farm
Credit the proceeds of any equity in Farm Credit or Agent, any 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).
(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: (1) upon the occurrence and during the
continuance of an Event of Default, then at Agent’s option in each instance, the entire
indebtedness outstanding hereunder and under all Supplements shall bear interest from the date of
such Event of Default until such Event of Default shall have been waived or cured in a manner
satisfactory to Agent at 4.00% per annum in excess of the rate(s) of interest that would otherwise
be in effect on that loan; and (2) 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 4.00% per
annum in excess of the rate(s) of interest that would otherwise
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Master Loan Agreement RI0475D
ABE FAIRMONT, LLC
Fairmont, Nebraska
ABE FAIRMONT, LLC
Fairmont, Nebraska
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: (A) 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 (B) $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 CoBank 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 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 Company 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.
SECTION 17. Applicable Law. Without giving effect to the principles of conflict of laws and
except to the extent governed by federal law, the Laws of the State of Colorado, without reference
to choice of law doctrine, shall govern this agreement, each Supplement and any other Loan
Documents for which Colorado is specified as the applicable law, and all disputes and matters
between the parties to this agreement, including all disputes and matters whatsoever arising
under, in connection with or incident to the lending and/or leasing or other business relationship
between the parties, and the rights and obligations of the parties to this agreement or any other
Loan Documents by and between the parties for which Colorado is specified as the applicable law.
-13-
Master Loan Agreement RI0475D
ABE FAIRMONT, LLC
Fairmont, Nebraska
ABE FAIRMONT, LLC
Fairmont, Nebraska
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 parries 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:
|
ABE FAIRMONT, LLC | |
CoBank. ACB
|
00000 Xxxxxxx Xxxxxxxxx | |
X.X. Xxx 0000
|
Xxxxxxxxxxx, Xxxxxxxxx 00000 | |
Denver. Colorado 80217-5110 |
||
For direct delivery purposes, when desired:
|
Attention: CEO | |
CoBank, ACB
|
Fax No.: 000-000-0000 | |
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:
(A) all indebtedness and obligations of the Company under this agreement, all Supplements, and all
other Loan Documents shall have been paid or satisfied: (B) Agent has no commitment to extend
credit to or for the account of the Company under any Supplement: and (C) 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.
-14-
Master Loan Agreement RI0475D
ABE FAIRMONT, LLC
Fairmont, Nebraska
ABE FAIRMONT, 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 hereunder. In connection with the foregoing, Farm
Credit may disclose information concerning the Company and its
Subsidiaries, if any, 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 a 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 a participation interest.
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, 2011 and
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 OF AMERICA, FLCA | ABE FAIRMONT, LLC | ||||||
| By ADVANCED BIOENERGY, LLC, | |||||||
| its sole member | |||||||
By:
|
/s/ Xxxxxxx Xxxxx | By: | /s/ Xxxxxxx Xxxxxxxx | ||||
Title:
|
VP Credit | Title: | CEO/CFO NT 0-00-00 |
||||
| XXXX XXXXXX XXXXXXXX XX XXXXXXX, XXX | |||||||
By:
|
/s/ Xxxxxxx Xxxxx | ||||||
Title:
|
VP Credit | ||||||
