BUSINESS LOAN AGREEMENT
Exhibit 10.15
| Principal | Loan Date | Maturity | Loan No | Call / Coll | Account | Officer | Initials | |||||||
| $3,517,572.00 | 03-23-2007 | 03-23-2008 | 3787 | 2200 | 242 |
References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any particular loan or item. Any item above containing “***” has been omitted due to text length limitations.
Borrower:
|
Homeland Energy Solutions, LLC (TIN: | Lender: | Home Federal Savings Bank | |||||
| 00-0000000) | Business Banking | |||||||
| 000 X Xxxx, PO Box C | 0000 Xxxxx Xxxxxx Xx XX Xxxxx 000 | |||||||
| Riceville, IA 50466 | Rochester, MN 55901 |
THIS BUSINESS LOAN AGREEMENT dated March 23, 2007, is made and executed between Homeland
Energy Solutions, LLC (“Borrower”) and Home Federal Savings Bank (“Lender”) on the following
terms and conditions. Borrower has received prior commercial loans from Lender or has
applied to Lender for a commercial loan or loans or other financial accommodations, including
those which may be described on any exhibit or schedule attached to this Agreement (“Loan”).
Borrower understands and agrees that: (A) in granting, renewing, or extending any Loan,
Lender is relying upon Borrower’s representations, warranties, and agreements as set forth in
this Agreement; (B) the granting, renewing, or extending of any Loan by Lender at all times
shall be subject to Xxxxxx’s sole Judgment and discretion; and (C) all such Loans shall be
and remain subject to the terms and conditions of this Agreement.
TERM. This Agreement shall be effective as of March 23, 2007, and shall continue in full
force and effect until such time as all of Borrower’s Loans in favor of Lender have been paid
in full, including principal, interest, costs, expenses, attorneys’ fees, and other fees and
charges, or until such time as the parties may agree in writing to terminate this Agreement.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender’s obligation to make the initial Advance and
each subsequent Advance under this Agreement shall be subject to the fulfillment to Lender’s
satisfaction of all of the conditions set forth in this Agreement and in the Related
Documents.
Loan Documents. Borrower shall provide to Lender the following documents for the Loan: (1)
the Note; (2) Security Agreements granting to Lender security interests in the Collateral;
(3) financing statements and all other documents perfecting Lender’s Security Interests;
(4) evidence of insurance as required below; (6) together with all such Related Documents
as Lender may require for the Loan; all in form and substance satisfactory to Lender and
Lender’s counsel.
Borrower’s Authorization. Borrower shall have provided in form and substance satisfactory
to Lender properly certified resolutions, duly authorizing the execution and delivery of
this Agreement, the Note and the Related Documents. In addition, Borrower shall have
provided such other resolutions, authorizations, documents and instruments as Lender or
its counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees, charges, and
other expenses which are then due and payable as specified in this Agreement or any
Related Document.
Representations and Warranties. The representations and warranties set forth in this
Agreement, in the Related Documents, and in any document or certificate delivered to
Lender under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a condition which
would constitute an Event of Default under this Agreement or under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as of the
date of this Agreement, as of the date of each disbursement of loan proceeds, as of the date
of any renewal, extension or modification of any Loan, and at all times any Indebtedness
exists:
Organization. Borrower is a limited liability company which is, and at all times shall be,
duly organized, validly existing, and in good standing under and by virtue of the laws of
the State of Iowa. Borrower is duly authorized to transact business in all other states in
which Borrower is doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business. Specifically,
Borrower is, and at all times shall be, duly qualified as a foreign limited liability
company in all states in which the failure to so qualify would have a material adverse
effect on its business or financial condition. Borrower has the full power and authority
to own its properties and to transact the business in which it is presently engaged or
presently proposes to engage. Borrower maintains an office at 000 X Xxxx, XX Xxx X,
Xxxxxxxxx, XX 00000. Unless Borrower has designated otherwise in writing, the principal
office is the office at which Borrower keeps its books and records including its records
concerning the Collateral. Borrower will notify Lender prior to any change in the location
of Borrower’s state of organization or any change in Borrower’s name. Borrower shall do
all things necessary to preserve and to keep in full force and effect its existence,
rights and privileges, and shall comply with all regulations, rules, ordinances, statutes,
orders and decrees of any governmental or quasi-governmental authority or court applicable
to Borrower and Borrower’s business activities.
Assumed Business Names. Xxxxxxxx has filed or recorded all documents or filings required
by law relating to all assumed business names used by Xxxxxxxx. Excluding the name of
Xxxxxxxx, the following is a complete list of all assumed business names under which
Borrower does business: None.
Authorization. Xxxxxxxx’s execution, delivery, and performance of this Agreement and all
the Related Documents have been duly authorized by all necessary action by Borrower and do
not conflict with, result in a violation of, or constitute a default under (1) any
provision of (a) Borrower’s articles of organization or membership agreements, or (b) any
agreement or other instrument binding upon Borrower or (2) any law, governmental
regulation, court decree, or order applicable to Borrower or to Borrower’s properties.
Financial information. Each of Xxxxxxxx’s financial statements supplied to Xxxxxx truly
and completely disclosed Xxxxxxxx’s financial condition as of the date of the statement,
and there has been no material adverse change in Borrower’s financial condition subsequent
to the date of the most recent financial statement supplied to Lender. Borrower has no
material contingent obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement Borrower is
required to give under this Agreement when delivered will constitute legal, valid, and
binding obligations of Borrower enforceable against Borrower in accordance with their
respective terms.
Properties. Except as contemplated by this Agreement or as previously disclosed in
Xxxxxxxx’s financial statements or in writing to Lender and as accepted by Xxxxxx, and
except for property tax liens for taxes not presently due and payable, Borrower owns and
has good title to all of Borrower’s properties free and clear of all Security Interests,
and has not executed any security documents or financing statements relating to such
properties. All of Xxxxxxxx’s properties are titled in Borrower’s legal name, and Xxxxxxxx
has not used or filed a financing statement under any other name for at least the last
five (5) years.
| Loan No: 3787 | (Continued) | Page 2 |
Hazardous Substances. Except as disclosed to and acknowledged by Xxxxxx in writing, Borrower
represents and warrants that; (1) During
the period of Borrower’s ownership of the Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened release of
any Hazardous Substance by any person on, under, about or from any of the Collateral. (2)
Borrower has no knowledge of, or reason to believe that there has been (a) any breach or
violation of any Environmental Laws; (b) any use, generation, manufacture, storage,
treatment, disposal, release or threatened release of any Hazardous Substance on, under,
about or from the Collateral by any prior owners or occupants of any of the Collateral; or
(c) any actual or threatened litigation or claims of any kind by any person relating to
such matters. (3) Neither Borrower nor any tenant, contractor, agent or other authorized
user of any of the Collateral shall use, generate, manufacture, store, treat, dispose of
or release any Hazardous Substance on, under, about or from any of the Collateral; and any
such activity shall be conducted in compliance with all applicable federal, state, and
local laws, regulations, and ordinances, including without limitation all Environmental
Laws. Borrower authorizes Lender and its agents to enter upon the Collateral to make such
inspections and tests as Lender may deem appropriate to determine compliance of the
Collateral with this section of the Agreement. Any inspections or tests made by Lender
shall be at Borrower’s expense and for Lender’s purposes only and shall not be construed
to create any responsibility or liability on the part of Lender to Borrower or to any
other person. The representations and warranties contained herein are based on Borrower’s
due diligence in investigating the Collateral for hazardous waste and Hazardous
Substances. Borrower hereby (1) releases and waives any future claims against Lender for
indemnity or contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and {2) agrees to indemnify, defend, and hold harmless Lender against
any and all claims, losses, liabilities, damages, penalties, and expenses which Lender may
directly or indirectly sustain or suffer resulting from a breach of this section of the
Agreement or as a consequence of any use, generation, manufacture, storage, disposal,
release or threatened release of a hazardous waste or substance on the Collateral. The
provisions of this section of the Agreement, including the obligation to indemnify and
defend, shall survive the payment of the indebtedness and the termination, expiration or
satisfaction of this Agreement and shall not be affected by Lender’s acquisition of any
interest in any of the Collateral, whether by foreclosure or otherwise.
Litigation and Claims. No litigation, claim, investigation, administrative proceeding or
similar action (including those for unpaid taxes) against Borrower is pending or
threatened, and no other event has occurred which may materially adversely affect
Borrower’s financial condition or properties, other than litigation, claims, or other
events, if any, that have been disclosed to and acknowledged by Xxxxxx in writing.
Taxes. To the best of Xxxxxxxx’s knowledge, all of Xxxxxxxx’s tax returns and reports that
are or were required to be filed, have been filed, and all taxes, assessments and other
governmental charges have been paid in full, except those presently being or to be
contested by Borrower in good faith in the ordinary course of business and for which
adequate reserves have been provided.
Lien Priority. Unless otherwise previously disclosed to Lender in writing, Xxxxxxxx has
not entered into or granted any Security Agreements, or permitted the filing or attachment
of any Security Interests on or affecting any of the Collateral directly or indirectly
securing repayment of Borrower’s Loan and Note, that would be prior or that may in any way
be superior to Lender’s Security Interests and rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any), and all
Related Documents are binding upon the signers thereof, as well as upon their successors,
representatives and assigns, and are legally enforceable in accordance with their
respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Xxxxxx that, so long as this Agreement
remains in effect, Borrower will:
Notices of Claims and Litigation. Promptly inform Xxxxxx in writing of {1) all material
adverse changes in Borrower’s financial condition, and (2) all existing and all threatened
litigation, claims, investigations, administrative proceedings or similar actions
affecting Borrower or any Guarantor which could materially affect the financial condition
of Borrower or the financial condition of any Guarantor.
Financial Records. Maintain its books and records in accordance with GAAP, applied on a
consistent basis, and permit Xxxxxx to examine and audit Xxxxxxxx’s books and records at
all reasonable times.
Financial Statements. Furnish Lender with such financial statements and other related
information at such frequencies and in such detail as Lender may reasonably request.
Additional Information. Furnish such additional information and statements, as Xxxxxx may
request from time to time.
Insurance. Maintain fire and other risk insurance, public liability insurance, and such
other insurance as Lender may require with respect to Borrower’s properties and
operations, in form, amounts, coverages and with insurance companies acceptable to Lender.
Borrower, upon request of Xxxxxx, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including stipulations that
coverages will not be cancelled or diminished without at least ten (10) days prior written
notice to Lender. Each insurance policy also shall include an endorsement providing that
coverage in favor of Lender will not be impaired in any way by any act, omission or
default of Borrower or any other person. In connection with all policies covering assets
in which Lender holds or is offered a security interest for the Loans, Borrower will
provide Lender with such lender’s loss payable or other endorsements as Lender may
require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on each existing
insurance policy showing such information as Lender may reasonably request, including
without limitation the following: {1) the name of the insurer; (2) the risks insured; {3)
the amount of the policy; (4) the properties insured; (5) the then current property values
on the basis of which insurance has been obtained, and the manner of determining those
values; and (6) the expiration date of the policy. In addition, upon request of Lender
(however not more often than annually), Borrower will have an independent appraiser
satisfactory to Lender determine, as applicable, the actual cash value or replacement cost
of any Collateral. The cost of such appraisal shall be paid by Borrower.
Other Agreements. Comply with all terms and conditions of all other agreements, whether
now or hereafter existing, between Borrower and any other party and notify Lender
immediately in writing of any default in connection with any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for Xxxxxxxx’s business operations, unless
specifically consented to the contrary by Xxxxxx in writing.
Taxes, Charges and Liens. Pay and discharge when due all of its indebtedness and
obligations, including without limitation all assessments, taxes, governmental charges,
levies and liens, of every kind and nature, imposed upon Borrower or its properties,
income, or profits, prior to the date on which penalties would attach, and all lawful
claims that, if unpaid, might become a lien or charge upon any of Borrower’s
properties, income, or profits.
Performance. Perform and comply, in a timely manner, with all terms, conditions, and
provisions set forth in this Agreement, in the Related Documents, and in all other
instruments and agreements between Borrower and Lender. Borrower shall notify Xxxxxx
immediately in writing of any default in connection with any agreement.
| Loan No: 3787 | (Continued) | Page 3 |
Operations. Maintain executive and management personnel with substantially the same
qualifications and experience as the present executive and management personnel; provide
written notice to Lender of any change in executive and management personnel; conduct its
business affairs in a reasonable and prudent manner.
Environmental Studies. Promptly conduct and complete, at Borrower’s expense, all such
investigations, studies, samplings and testings as may be requested by Lender or any
governmental authority relative to any substance, or any waste or by-product of any
substance defined as toxic or a hazardous substance under applicable federal, state, or
local law, rule, regulation, order or directive, at or affecting any property or any
facility owned, leased or used by Borrower.
Compliance with Governmental Requirements. Comply with all laws, ordinances, and
regulations, now or hereafter in effect, of all governmental authorities applicable to the
conduct of Borrower’s properties, businesses and operations, and to the use or occupancy
of the Collateral, including without limitation, the Americans With Disabilities Act.
Borrower may contest in good faith any such law, ordinance, or regulation and withhold
compliance during any proceeding, including appropriate appeals, so long as Borrower has
notified Lender in writing prior to doing so and so long as, in Xxxxxx’s sole opinion,
Xxxxxx’s interests in the Collateral are not jeopardized. Lender may require Borrower to
post adequate security or a surety bond, reasonably satisfactory to Lender, to protect
Xxxxxx’s interest.
Inspection. Permit employees or agents of Lender at any reasonable time to inspect any and
all Collateral for the Loan or Loans and Xxxxxxxx’s other properties and to examine or
audit Xxxxxxxx’s books, accounts, and records and to make copies and memoranda of
Xxxxxxxx’s books, accounts, and records. If Borrower now or at any time hereafter
maintains any records (including without limitation computer generated records and
computer software programs for the generation of such records) in the possession of a
third party, Borrower, upon request of Xxxxxx, shall notify such party to permit Lender
free access to such records at all reasonable times and to provide Lender with copies of
any records it may request, all at Borrower’s expense.
Environmental Compliance and Reports. Borrower shall comply in all respects with any and
all Environmental Laws; not cause or permit to exist, as a result of an intentional or
unintentional action or omission on Borrower’s part or on the part of any third party, on
property owned and/or occupied by Borrower, any environmental activity where damage may
result to the environment, unless such environmental activity is pursuant to and in
compliance with the conditions of a permit issued by the appropriate federal, state or
local governmental authorities; shall furnish to Lender promptly and in any event within
thirty (30) days after receipt thereof a copy of any notice, summons, lien, citation,
directive, letter or other communication from any governmental agency or instrumentality
concerning any intentional or unintentional action or omission on Borrower’s part in
connection with any environmental activity whether or not there is damage to the
environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory notes,
mortgages, deeds of trust, security agreements, assignments, financing statements,
instruments, documents and other agreements as Lender or its attorneys may reasonably
request to evidence and secure the Loans and to perfect all Security Interests.
XXXXXX’S EXPENDITURES. If any action or proceeding is commenced that would materially affect
Xxxxxx’s interest in the Collateral or if Borrower fails to comply with any provision of this
Agreement or any Related Documents, including but not limited to Borrower’s failure to
discharge or pay when due any amounts Borrower is required to discharge or pay under this
Agreement or any Related Documents, Lender on Borrower’s behalf may {but shall not be
obligated to) take any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and other claims, at
any time levied or placed on any Collateral and paying all costs for insuring, maintaining
and preserving any Collateral, All such expenditures incurred or paid by Lender for such
purposes will then bear interest at the rate charged under the Note from the date incurred or
paid by Lender to the date of repayment by Borrower. All such expenses will become a part of
the Indebtedness and, at Xxxxxx’s option, will {A) be payable on demand; (13) be added to the
balance of the Note and be apportioned among and be payable with any installment payments to
become due during either (1) the term of any applicable insurance policy; or (2) the
remaining term of the Note; or (C) be treated as a balloon payment which will be due and
payable at the Note’s maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this Agreement is in
effect, Borrower shall not, without the prior written consent of Lender:
Indebtedness and Liens. (1) Except for trade debt incurred in the normal course of
business and indebtedness to Lender contemplated by this Agreement, create, incur or
assume indebtedness for borrowed money, including capital leases, (2) sell, transfer,
mortgage, assign, pledge, lease, grant a security interest in, or encumber any of
Borrower’s assets {except as allowed as Permitted Liens), or (3) sell with recourse any of
Borrower’s accounts, except to Xxxxxx.
Continuity of Operations. (1) Engage in any business activities substantially different
than those in which Borrower is presently engaged, (2) cease operations, liquidate, merge,
transfer, acquire or consolidate with any other entity, change its name, dissolve or
transfer or sell Collateral out of the ordinary course of business, or {3) make any
distribution with respect to any capital account, whether by reduction of capital or
otherwise.
Loans. Acquisitions and Guaranties. (1) Loan, invest in or advance money or assets to any
other person, enterprise or entity, (2) purchase, create or acquire any interest in any
other enterprise or entity, or (3) incur any obligation as surety or guarantor other than
in the ordinary course of business.
Agreements. Borrower will not enter into any agreement containing any provisions which
would be violated or breached by the performance of Borrower’s obligations under this
Agreement or in connection herewith.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to Borrower,
whether under this Agreement or under any other agreement, Lender shall have no obligation to
make Loan Advances or to disburse Loan proceeds if: (A) Borrower or any Guarantor is in
default under the terms of this Agreement or any of the Related Documents or any other
agreement that Borrower or any Guarantor has with Lender; {B) Borrower or any Guarantor dies,
becomes incompetent or becomes insolvent, files a petition in bankruptcy or similar
proceedings, or is adjudged a bankrupt; (C) there occurs a material adverse change in
Borrower’s financial condition, in the financial condition of any Guarantor, or in the value
of any Collateral securing any Loan; or ID) any Guarantor seeks, claims or otherwise attempts
to limit, modify or revoke such Guarantor’s guaranty of the Loan or any other loan with
Lender; or (E) Lender in good xxxxx xxxxx itself insecure, even though no
Event of Default shall have occurred.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff
in all Borrower’s accounts with Lender (whether checking, savings, or some other account).
This includes all accounts Borrower holds jointly with someone else and all accounts Borrower
may open in the future. However, this does not include any IRA or Xxxxx accounts, or any
trust accounts for which setoff would be prohibited by law. Xxxxxxxx authorizes Xxxxxx, to
the extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts.
| Loan No: 3787 | (Continued) | Page 4 |
DEFAULT. Each of the following shall constitute an Event of Default under this Agreement:
Payment Default. Xxxxxxxx fails to make any payment when due under the Loan.
Other Defaults. Borrower fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Agreement or in any of the Related Documents or to
comply with or to perform any term, obligation, covenant or condition contained in any
other agreement between Lender and Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any other
agreement, in favor of any other creditor or person that may materially affect any of
Borrower’s or any Grantor’s property or Borrower’s or any Grantor’s ability to repay the
Loans or perform their respective obligations under this Agreement or any of the Related
Documents.
False Statements. Any warranty, representation or statement made or furnished to Lender by
Borrower or on Borrower’s behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished or becomes
false or misleading at any time thereafter.
Death or Insolvency. The dissolution of Borrower (regardless of whether election to
continue is made), any member withdraws from Borrower, or any other termination of
Borrower’s existence as a going business or the death of any member, the insolvency of
Borrower, the appointment of a receiver for any part of Borrower’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.
Defective Collateralization. This Agreement or any of the Related Documents ceases to be
in full force and effect (including failure of any collateral document to create a valid
and perfected security interest or lien) at any time and for any reason.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by any
creditor of Borrower or by any governmental agency against any collateral securing the
Loan. This includes a garnishment of any of Borrower’s accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if there is a good
faith dispute by Xxxxxxxx as to the validity or reasonableness of the claim which is the
basis of the creditor or forfeiture proceeding and if Borrower gives Xxxxxx written notice
of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond
for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole
discretion, as being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect to any
Guarantor of any of the Indebtedness or any Guarantor dies or becomes incompetent, or
revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness.
In the event of a death, Lender, at its option, may, but shall not be required to, permit
the Guarantor’s estate to assume unconditionally the obligations arising under the
guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of Default.
Adverse Change. A material adverse change occurs in Borrower’s financial condition, or
Xxxxxx believes the prospect of payment or performance of the Loan is impaired.
Insecurity. Lender in good faith believes itself insecure.
Right to Cure. If any default, other than a default on Indebtedness, is curable and if
Borrower or Grantor, as the case may be, has not been given a notice of a similar default
within the preceding twelve (12) months, it may be cured if Borrower or Grantor, as the
case may be, after receiving written notice from Lender demanding cure of such default (1)
cure the default within fifteen (15) days; or (2) if the cure requires more than fifteen
(15) days, immediately initiate steps which Xxxxxx deems in Xxxxxx’s sole discretion to be
sufficient to cure the default and thereafter continue and complete all reasonable and
necessary steps sufficient to produce compliance as soon as reasonably practical.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except where otherwise
provided in this Agreement or the Related Documents, all commitments and obligations of
Lender under this Agreement or the Related Documents or any other agreement immediately will
terminate (including any obligation to make further Loan Advances or disbursements), and, at
Lender’s option, all Indebtedness immediately will become due and payable, all without notice
of any kind to Borrower, except that in the case of an Event of Default of the type described
in the “Insolvency” subsection above, such acceleration shall be automatic and not optional.
In addition, Lender shall have all the rights and remedies provided in the Related Documents
or available at law, in equity, or otherwise. Except as may be prohibited by applicable law,
all of Lender’s rights and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Xxxxxx to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an obligation of
Borrower or of any Grantor shall not affect Xxxxxx’s right to declare a default and to
exercise its rights and remedies.
FACSIMILE AND COUNTERPART. This document may be signed in any number of separate copies, each
of which shall be effective as an original, but all of which taken together shall constitute
a single document. An electronic transmission or other facsimile of this document or any
related document shall be deemed an original and shall be admissible as evidence of the
document and the signer’s execution.
THIS AGREEMENT APPLICABLE TO ALL LOANS. Notwithstanding anything to the contrary herein, (1)
the terms “Loan” and “Loans” shall mean and include the Note and any and all other notes,
lines of credit and other financial accomodations from Lender to Borrower which presently
exist or which are being executed in connection with this Agreement, excluding any such other
loans or financial accommodations which are not serviced by Home Federal Savings Bank, or
their successors, and the terms “Loan” and “Loans” shall also mean and include all notes and
credit agreements entered into subsequent to the date hereof which specifically provide that
they shall be governed by this Agreement, and (2) the term “Indebtedness” shall mean and
include all indebtedness evidenced by the Note and every other note or credit agreement
evidencing a Loan, and all other indebtedness for which Borrower is responsible under this
Agreement or any of the Related Documents.
FURTHER ASSURANCES. The parties hereto agree to do all things deemed necessary by Xxxxxx in
order to fully document the loan evidenced by this Note and any related agreements, and will
fully cooperate concerning the execution and delivery of security agreements, stock powers,
instructions and/or other documents pertaining to any collateral intended to secure the
Indebtedness. The undersigned agree to assist in the cure of any defects in the execution,
delivery or substance of this Note and related agreements, and in the creation and perfection
of any liens, security interests or other collateral rights securing this Note.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Agreement
Amendments. This Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Agreement.
No alteration of or amendment to this Agreement shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by the alteration or
amendment.
| Loan No: 3787 | (Continued) | Page 5 |
Attorneys’ Fees; Expenses. Xxxxxxxx agrees to pay upon demand all of Xxxxxx’s costs and
expenses, including Xxxxxx’s attorneys’ fees and Xxxxxx’s legal expenses, incurred in
connection with the enforcement of this Agreement. Lender may hire or pay someone else to
help enforce this Agreement, and Borrower shall pay the costs and expenses of such
enforcement. Costs and expenses include Xxxxxx’s attorneys’ fees and legal expenses
whether or not there is a lawsuit, including attorneys’ fees and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services. Borrower also
shall pay all court costs and such additional fees as may be directed by the court.
Caption Headings. Caption headings in this Agreement are for convenience purposes only
and are not to be used to interpret or define the provisions of this Agreement.
Consent to Loan Participation. Xxxxxxxx agrees and consents to Xxxxxx’s sale or transfer,
whether now or later, of one or more participation interests in the Loan to one or more
purchasers, whether related or unrelated to Lender. Lender may provide, without any
limitation whatsoever, to any one or more purchasers, or potential purchasers, any
information or knowledge Lender may have about Borrower or about any other matter relating
to the Loan, and Borrower hereby waives any rights to privacy Borrower may have with
respect to such matters, Borrower additionally waives any and all notices of sale of
participation interests, as well as all notices of any repurchase of such participation
interests. Xxxxxxxx also agrees that the purchasers of any such participation interests
will be considered as the absolute owners of such interests in the Loan and will have all
the rights granted under the participation agreement or agreements governing the sale of
such participation interests. Borrower further waives all rights of offset or counterclaim
that it may have now or later against Lender or against any purchaser of such a
participation interest and unconditionally agrees that either Lender or such purchaser may
enforce Xxxxxxxx’s obligation under the Loan irrespective of the failure or insolvency of
any holder of any interest in the Loan. Xxxxxxxx further agrees that the purchaser
of any such participation interests may enforce its interests irrespective of any personal
claims or defenses that Borrower may have against Xxxxxx.
Governing Law. This Agreement will be governed by federal law applicable to Lender and, to
the extent not preempted by federal law, the laws of the State of Iowa without regard to
its conflicts of law provisions. This Agreement has been accepted by Xxxxxx in the State
of Iowa.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Xxxxxx, No delay or
omission on the part of Lender in exercising any right shall operate as a waiver of such
right or any other right. A waiver by Xxxxxx of a provision of this Agreement shall not
prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance
with that provision or any other provision of this Agreement. No prior waiver by Xxxxxx,
nor any course of dealing between Xxxxxx and Borrower, or between Lender and any Grantor,
shall constitute a waiver of any of Lender’s rights or of any of Borrower’s or any
Grantor’s obligations as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender in any instance
shall not constitute continuing consent to subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in the sole discretion
of Lender,
Notices. Any notice required to be given under this Agreement shall be given in writing,
and shall be effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally recognized overnight
courier, or, if mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices under this
Agreement by giving formal written notice to the other parties, specifying that the
purpose of the notice is to change the party’s address. For notice purposes,
Xxxxxxxx agrees to keep Xxxxxx informed at all times of Xxxxxxxx’s current address. Unless
otherwise provided or required by law, if there is more than one Borrower, any
notice given by Lender to any Borrower is deemed to be notice given to all Borrowers,
Severability. If a court of competent jurisdiction finds any provision of this Agreement
to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not
make the offending provision illegal, invalid, or unenforceable as to any other
circumstance. If feasible, the offending provision shall be considered modified so that it
becomes legal, valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required by law, the
illegality, invalidity, or unenforceability of any provision of this Agreement shall not
affect the legality, validity or enforceability of any other provision of this Agreement.
Subsidiaries and Affiliates of Borrower. To the extent the context of any provisions of
this Agreement makes it appropriate, including without limitation any representation,
warranty or covenant, the word “Borrower” as used in this Agreement shall include all of
Borrower’s subsidiaries and affiliates. Notwithstanding the foregoing however, under no
circumstances shall this Agreement be construed to require Lender to make any Loan or
other financial accommodation to any of Borrower’s subsidiaries or affiliates.
Successors and Assigns. All covenants and agreements by or on behalf of Borrower contained
in this Agreement or any Related Documents shall bind Borrower’s successors and assigns
and shall inure to the benefit of Lender and its successors and assigns. Borrower shall
not, however, have the right to assign Borrower’s rights under this Agreement or any
interest therein, without the prior written consent of Lender.
Survival of Representations and Warranties. Xxxxxxxx understands and agrees that in making
the Loan, Xxxxxx is relying on all representations, warranties, and covenants made by
Borrower in this Agreement or in any certificate or other instrument delivered by Borrower
to Lender under this Agreement or the Related Documents. Xxxxxxxx further agrees that
regardless of any investigation made by Xxxxxx, all such representations, warranties and
covenants will survive the making of the Loan and delivery to Lender of the Related
Documents, shall be continuing in nature, and shall remain in full force and effect until
such time as Borrower’s Indebtedness shall be paid in full, or until this Agreement shall
be terminated in the manner provided above, whichever is the last to occur.
Time is of the Essence. Time is of the essence in the performance of this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when
used in this Agreement. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as
the context may require. Words and terms not otherwise defined in this Agreement shall have
the meanings attributed to such terms in the Uniform Commercial Code. Accounting words and
terms not otherwise defined in this Agreement shall have the meanings assigned to them in
accordance with generally accepted accounting principles as in effect on the date of this
Agreement:
Advance. The word “Advance” means a disbursement of Loan funds made, or to be made, to
Borrower or on Borrower’s behalf on a line of credit or multiple advance basis under the
terms and conditions of this Agreement.
Agreement. The word “Agreement” means this Business Loan Agreement, as this Business Loan
Agreement may be amended or modified from time to time, together with all exhibits and
schedules attached to this Business Loan Agreement from time to time,
Borrower. The word “Borrower” means Homeland Energy Solutions, LLC and includes all
co-signers and co-makers signing the Note and all their successors and assigns.
| Loan No: 3787 | (Continued) | Page 6 |
Collateral. The word “Collateral” means all property and assets granted as collateral
security for a Loan, whether real or personal property, whether granted directly or
indirectly, whether granted now or in the future, and whether granted in the form of a
security interest, mortgage, collateral mortgage, deed of trust, assignment, pledge, crop
pledge, chattel mortgage, collateral chattel mortgage, chattel trust, factor’s lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention
contract, lease or consignment intended as a security device, or any other security or
lien interest whatsoever, whether created by law, contract, or otherwise.
Environmental Laws. The words “Environmental Laws” mean any and all state, federal and
local statutes, regulations and ordinances relating to the protection of human health or
the environment, including without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
(“CERCLA”), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499
(“XXXX”), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the
Resource Conservation and Recovery Act, 42 Section 6901, et seq., or other applicable
state or federal laws, rules, or regulations adopted pursuant thereto,
Event of Default. The words “Event of Default” mean any of the events of default set forth
in this Agreement in the default section of this Agreement.
GAAP. The word “GAAP” means generally accepted accounting principles.
Grantor. The word “Grantor” means each and all of the persons or entities granting a
Security Interest in any Collateral for the Loan, including without limitation all
Borrowers granting such a Security Interest.
Guarantor. The word “Guarantor” means any guarantor, surety, or accommodation party of any
or all of the Loan.
Guaranty. The word “Guaranty” means the guaranty from Guarantor to Lender, including
without limitation a guaranty of all or part of the Note.
Hazardous Substances. The words “Hazardous Substances” mean materials that, because of
their quantity, concentration or physical, chemical or infectious characteristics, may
cause or pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured, transported or
otherwise handled. The words “Hazardous Substances” are used in their very broadest sense
and include without limitation any and all hazardous or toxic substances, materials or
waste as defined by or listed under the Environmental Laws. The term “Hazardous
Substances” also includes, without limitation, petroleum and petroleum by-products or any
fraction thereof and asbestos.
Indebtedness. The word “Indebtedness” means the indebtedness evidenced by the Note or
Related Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Borrower is responsible under this Agreement
or under any of the Related Documents.
Lender. The word “Lender” means Home Federal Savings Bank, its successors and assigns.
Loan. The word “Loan” means any and all loans and financial accommodations from Lender to
Borrower whether now or hereafter existing, and however evidenced, including without
limitation those loans and financial accommodations described herein or described on any
exhibit or schedule attached to this Agreement from time to time.
Note. The word “Note” means the Note executed by Homeland Energy Solutions, LLC in the
principal amount of $3,517,572.00 dated March 23, 2007, together with all renewals of,
extensions of, modifications of, refinancings of, consolidations of, and substitutions for
the note or credit agreement.
Permitted Liens. The words “Permitted Liens” mean (1) liens and security interests
securing Indebtedness owed by Borrower to Lender; (2) liens for taxes, assessments, or
similar charges either not yet due or being contested in good faith; (3) liens of
materialmen, mechanics, warehousemen, or carriers, or other like liens arising in the
ordinary course of business and securing obligations which are not yet delinquent; (4)
purchase money liens or purchase money security interests upon or in any property acquired
or held by Borrower in the ordinary course of business to secure indebtedness outstanding
on the date of this Agreement or permitted to be incurred under the paragraph of this
Agreement titled “Indebtedness and Liens”; (6) liens and security interests which, as of
the date of this Agreement, have been disclosed to and approved by the Lender in writing;
and (6) those liens and security interests which in the aggregate constitute an immaterial
and insignificant monetary amount with respect to the net value of Xxxxxxxx’s assets.
Related Documents. The words “Related Documents” mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other
instruments, agreements and documents, whether now or hereafter existing, executed in
connection with the Loan.
Security Agreement. The words “Security Agreement” mean and include without limitation any
agreements, promises, covenants, arrangements, understandings or other agreements, whether
created by law, contract, or otherwise, evidencing, governing, representing, or creating a
Security Interest.
Security Interest. The words “Security Interest” mean, without limitation, any and all
types of collateral security, present and future, whether in the form of a lien, charge,
encumbrance, mortgage, deed of trust, security deed, assignment, pledge, crop pledge,
chattel mortgage, collateral chattel mortgage, chattel trust, factor’s lien, equipment
trust, conditional sale, trust receipt, lien or title retention contract, lease or
consignment intended as a security device, or any other security or lien interest
whatsoever whether created by law, contract, or otherwise.
XXXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN AGREEMENT AND
XXXXXXXX AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS DATED MARCH 23, 2007.
XXXXXXXX ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS BUSINESS LOAN AGREEMENT AND ALL
OTHER DOCUMENTS RELATING TO THIS DEBT.
BORROWER:
HOMELAND ENERGY SOLUTIONS, LLC
By:
|
/s/ Xxxxxx X. Xxxxxxx | By: | /s/ Xxxxxxx Xxxxxxxxx | |||||
| Xxxxx Xxxxxxx, President of Homeland Energy Solutions, LLC |
Xxxxxxx Xxxxxxxxx, Treasurer of Homeland Energy Solutions, LLC |
BUSINESS LOAN AGREEMENT
| Loan No: 3787 | (Continued) | Page 7 |
| LENDER: | ||||
| HOME FEDERAL SAVINGS BANK | ||||
By:
|
/s/ Xxxxxxx Xxxxxxxx | |||
| Authorized Signer | ||||
