Exhibit 10.24
LOAN AGREEMENT
between
ICM, Inc.
LENDER
and
Red Trail Energy, LLC.
BORROWER
Dated: February 28, 2006
LOAN AGREEMENT
THIS LOAN AGREEMENT is entered into as of this _____ day of February, 2006, by
and between RED TRAIL ENERGY, LLC, a North Dakota limited liability company
(herein "Borrower"), and ICM, INC., a Kansas corporation (herein "Lender").
WHEREAS, Borrower desires Lender to loan to Borrower an amount not to
exceed Three Million Dollars ($3,000,000) to be used by Borrower for the purpose
of constructing a ethanol production facility in or near Richardton, North
Dakota (the "Project"), and Lender is willing to make the loan, all upon the
terms, conditions, security, commitments, promises and undertakings set forth
below; and
WHEREAS, this Loan Agreement, together with the other Loan Documents (as
hereinafter defined), shall set forth the rights, duties, and obligations of the
parties with respect to amounts borrowed hereunder.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the benefits to be derived herefrom and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE 1. DEFINITIONS.
1.1. Certain Definitions. As used herein, the following terms have the
following definitions, unless otherwise defined herein, or the context clearly
requires otherwise.
"Agent" means ICM, as agent for Lender, Xxxxx and XxxxxXxx under the terms
of the Collateral Agreement, or any successor agent thereunder.
"Applicable Rate" means the fluctuating per annum rate of interest utilized
under the Construction Loan Agreement, as determined from time to time, plus two
percent (2%).
"Available Funds" means (i) Debt Service Payments, (ii) any contributions
to the capital of the Borrower after the date of this Loan Agreement, or (iii)
any other amounts to be paid by Borrower to Lender that have been authorized by
FNBO pursuant to the Construction Loan Agreement or the Subordination Agreement.
"Closing" means the date of execution and delivery of this Loan Agreement.
"Collateral" means the Property which is provided as security for the
Indebtedness of Borrower hereunder.
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"Collateral Agreement" means that certain Collateral and Agency Agreement
dated as of February _____, 2006 by and among Lender, Xxxxx and GreenWay.
"Construction Loan Agreement" means that certain Construction Loan
Agreement dated December 15, 2005, by and between Borrower (as borrower) and
FNBO (as lender).
"Debt Service Payments" means, with respect to any period, any payments
received by Agent of any cash interest payments (whether stated interest or
default interest), principal payments, late charges, and other charges with
respect to any Subordinate Loan required to be paid during such period.
"Default" means and refers to an event that with notice or with the passage
of time or both would constitute an Event of Default.
"Event of Default" has the meaning ascribed to such term in ARTICLE 8 of
this Loan Agreement.
"Xxxxx" means Xxxxx, Inc., a Minnesota corporation.
"Xxxxx Loan" means a loan made by Xxxxx to Borrower in an amount not to
exceed One Million Dollars ($1,000,000).
"Xxxxx Loan Documents" means those agreements, instruments and other
documents that evidence or secure the Xxxxx Loan.
"Financing Statements" means collectively, all financing statements, if
any, executed or to be executed by Borrower, to perfect or to continue the
perfection of any security interests granted to Lender in any Collateral
securing the Loan.
"FNBO" means First National Bank of Omaha, a national banking association
established at Omaha, Nebraska.
"FNBO Loan" means the loan made by FNBO to Borrower pursuant to the
Construction Loan Agreement.
"GAAP" means generally accepted accounting principles, consistently
applied, as in effect at the time of application of the provisions hereof.
"Governmental Requirements" means the duties, requirements or other
obligations imposed by applicable laws, rules, regulations or ordinances.
"GreenWay" means GreenWay Consulting, LLC, a Minnesota limited liability
company.
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"GreenWay Loan" means a loan made by GreenWay to Borrower in an amount not
to exceed One Million Five Hundred Twenty-Five Thousand Dollars ($1,525,000).
" GreenWay Loan Documents" means those agreements, instruments and other
documents that evidence or secure the GreenWay Loan.
"Indebtedness" means all present and future indebtedness, obligations and
liabilities, or any part thereof, of Borrower now existing or hereafter arising
under or in connection with this Loan Agreement, the Promissory Note or any of
the other Loan Documents (specifically including, without limitation, the
principal amount outstanding under the Promissory Note), together with (a) all
interest accrued thereon; and (b) all costs, charges, commissions, reasonable
attorneys' fees and expenses owing and to become owing in connection with the
enforcement and collection of the foregoing obligations and indebtedness, and
those owing to or to become owing in connection with the repossession,
operation, maintenance, preservation or foreclosure of any Collateral,
regardless of whether such indebtedness, obligations and liabilities are direct,
contingent, fixed, liquidated, unliquidated, joint, several or joint and
several. The Indebtedness shall include all renewals, extensions, modifications,
rearrangements and replacements of any of the above-described obligations and
indebtedness. Indebtedness shall not include any amounts due under the Other
Loan Documents.
"Indemnified Person" has the meaning set forth in Section 6.7.
"Lien" means, any mortgage, lien, pledge, charge, security interest,
assignment or encumbrance of any kind.
"Loan Agreement" means and refers to this loan agreement executed by
Borrower and Lender, as the same may at any time and from time to time be
amended, extended, modified, renewed, restated or supplemented.
"Loan Documents" means and refers to this Loan Agreement, the Promissory
Note, the Collateral Agreement, and the Security Documents, together with all
other documents or instruments contemplated therein as any of them may at any
time and from time to time be amended, extended, modified, renewed, restated or
supplemented.
"Loan" means the amount loaned by Lender to Borrower pursuant to this Loan
Agreement in connection with the Project.
"Material Adverse Effect" means an effect resulting from any circumstance
or event of whatever nature (including, but not limited to, the filing of, or
any adverse determination or development in, any litigation, arbitration or
governmental investigation or proceeding) which (a) has any adverse effect
whatsoever upon the ability of Lender to enforce any material provisions of any
of the Loan Documents; (b) is material and adverse to financial condition or
other property of
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Borrower; or (c) impairs the ability of Borrower to fulfill any material
obligation under the Loan Documents.
"Maturity Date" means the date all amounts due and owing by Borrower to
FNBO under the Construction Loan Agreement are paid in full or, if earlier, the
date that is sixty-one (61) months after the date of this Loan Agreement.
"Mortgage" means that certain mortgage, assignment of rents, security
agreement, and fixture financing statement executed by Borrower in favor of
Agent which encumbers the Property and which secures the Promissory Note and the
Other Loan Documents.
"Other Loan Documents" means, collectively, the Xxxxx Loan Documents and
the GreenWay Loan Documents.
"Payment Percentage" means, for so long as none of the Subordinated Loans
have been paid in full: with respect to Lender, forty-five percent (45%); with
respect to GreenWay, twenty-seven and one-half percent (27.5%); and with respect
to Xxxxx, twenty-seven and one-half percent (27.5%). Once the Xxxxx Loan or the
GreenWay Loan has been paid in full, the Payment Percentage shall be two-thirds
(2/3) to Lender and one-third (1/3) to GreenWay or Xxxxx, whichever is
remaining, or if the Loan is paid in full prior to payment in full of the
GreenWay Loan and the Xxxxx Loan, then the Payment Percentage shall be one-half
(1/2) to GreenWay and one-hald (1/2) to Xxxxx. If all but one of the
Subordinated Loans has been paid in full, then the Payment Percentage shall be
100% to the remaining Subordinated Lender.
"Participation Percentage" means the percentage amount that the outstanding
principal balance of a Subordinated Lender's Subordinate Loan bears to the
aggregate outstanding principal balance of all of the Subordinate Loans.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Property" means and refers to the following property, rights, interests
and estates now owned, or hereafter acquired, by Borrower:
(a) Land. The real property described in Exhibit A attached hereto and
made a part hereof (collectively, the "Land"), together with all
additional lands and estates therein which may, from time to time, by
supplemental mortgage be expressly made subject to the lien of this
Mortgage.
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(b) Improvements. The buildings, structures, fixtures, additions,
accessions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter erected or located on
the Land (the "Improvements");
(c) Easements. All easements, rights-of-way or use, rights, strips and
gores of land, streets, ways, alleys, passages, sewer rights, water,
water courses, water rights and powers, air rights and development
rights, and all estates, rights, titles, interests, privileges,
liberties, servitudes, tenements, hereditaments and appurtenances of
any nature whatsoever, in any way now or hereafter belonging, relating
or pertaining to the Land and the Improvements and the reversion and
reversions, remainder and remainders, and all land lying in the bed of
any street, road or avenue, opened or proposed, in front of or
adjoining the Land, to the center line thereof and all the estates,
rights, titles, interests, property, possession, claim and demand
whatsoever, both at law and in equity, of Borrower of, in and to the
Land and the Improvements and every part and parcel thereof, with the
appurtenances thereto;
(d) Fixtures and Personal Property. All machinery, equipment, goods,
inventory, fixtures (including, but not limited to, all heating, air
conditioning, plumbing, lighting) and other property of every kind and
nature whatsoever owned by Borrower, or in which Borrower has or shall
have an interest, now or hereafter located upon the Land and the
Improvements, or appurtenant thereto, and usable in connection with
the present or future use, maintenance, enjoyment, operation and
occupancy of the Land and the Improvements and all building equipment,
materials and supplies of any nature whatsoever owned by Borrower, or
in which Borrower has or shall have an interest, now or hereafter
located upon the Land and the Improvements, or appurtenant thereto, or
usable in connection with the present or future operation and
occupancy of the Land and the Improvements and the right, title and
interest of Borrower in and to any of the Personal Property (as
hereinafter defined) which may be subject to any security interests,
as defined in the Uniform Commercial Code, as adopted and enacted by
the state or states where any of the Property is located ("Uniform
Commercial Code"), superior in lien to the lien of this Mortgage and
all proceeds and products of the above;
(e) Leases and Rents. All leases and other agreements affecting the use,
enjoyment or occupancy of the Land and the Improvements heretofore or
hereafter entered into, (the "Leases") and all right, title and
interest of Borrower, its successors and assigns therein and
thereunder, including, without limitation, cash or securities
deposited thereunder to secure the performance by the lessees of their
obligations thereunder and all rents (including all tenant security
and other deposits), additional rents, revenues, issues and profits
(including all oil and gas or other mineral royalties and bonuses)
from the Land and the Improvements whether paid or accruing before or
after the filing by or against Borrower of any petition for relief
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under the Bankruptcy Code (collectively the "Rents") and all proceeds
from the sale or other disposition of the Leases and the right to
receive and apply the Rents to the payment of the Indebtedness;
(f) Condemnation Awards. All awards or payments, including interest
thereon, which may heretofore and hereafter be made with respect to
the Property, whether from the exercise of the right of eminent domain
(including but not limited to any transfer made in lieu of or in
anticipation of the exercise of the right), or for a change of grade,
or for any other injury to or decrease in the value of the Property;
(g) Insurance Proceeds. All proceeds of and any unearned premiums on any
insurance policies covering the Property, including, without
limitation, the right to receive and apply the proceeds of any
insurance, judgments, or settlements made in lieu thereof, for damage
to the Property;
(h) Tax Certiorari. All refunds, rebates or credits in connection with a
reduction in real estate taxes and assessments charged against the
Property as a result of tax certiorari or any applications or
proceedings for reduction;
(i) Conversion. All proceeds of the conversion, voluntary or involuntary,
of any of the foregoing including, without limitation, proceeds of
insurance and condemnation awards, into cash or liquidation claims;
(j) Rights. The right, in the name and on behalf of Borrower, to appear in
and defend any action or proceeding brought with respect to the
Property and to commence any action or proceeding to protect the
interest of Lender in the Property;
(k) Agreements. All agreements, contracts (including purchase, sale,
option, right of first refusal and other contracts pertaining to the
Property), certificates, instruments, franchises, permits, licenses,
approvals, consents, plans, specifications and other documents, now or
hereafter entered into, and all rights therein and thereto, respecting
or pertaining to the use, occupation, construction, management or
operation of the Property (including any Improvements or respecting
any business or activity conducted on the Land and any part thereof)
and all right, title and interest of Borrower therein and thereunder,
including, without limitation, the right, upon the happening of any
default hereunder, to receive and collect any sums payable to Borrower
thereunder;
(l) Trademarks. All tradenames, trademarks, servicemarks, logos,
copyrights, goodwill, books and records and all other general
intangibles relating to or used in connection with the operation of
the Property;
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(m) Accounts. All accounts, accounts receivable, documents, instruments,
chattel paper, deposit accounts, investment property, claims, reserves
(including deposits) representations, warranties, and general
intangibles, as one or more of the foregoing terms may be defined in
the Uniform Commercial Code, and all contract rights, franchises,
books, records, plans, specifications, permits, licenses (to the
extent assignable), approvals, actions, choses, commercial tort
claims, suits, proofs of claim in bankruptcy and causes of action
which now or hereafter are owned by Borrower and relate to, or are
derived from or are used in connection with the Property, or the use,
operation, maintenance, occupancy or enjoyment thereof or the conduct
of any business or activities thereon; and
(n) Other Rights. Any and all other rights of Borrower in and to the
Property and any accessions, renewals, replacements and substitutions
of all or any portion of the Property and all proceeds derived from
the sale, transfer, assignment or financing of the Property or any
portion thereof.
"Promissory Note" means that certain promissory note executed by Borrower
to the order of Lender on the _____________ day of February, 2006 in the
principal amount of not to exceed $3,000,000.00, including any and all
promissory notes given in renewal, extension, modification, restatement,
rearrangement or replacement of the Promissory Note.
"Security Documents" shall mean any agreement, instrument or document
(including, but not limited to the Mortgage and Financing Statements) that
secures Borrower's obligations under the Promissory Note and this Loan Agreement
"Subordinated Lenders" means Lender, GreenWay and Xxxxx.
"Subordinate Loans" means the Loan, GreenWay Loan and Xxxxx Loan.
"Subordination Agreement" means that certain subordination agreement
between Borrower, Lender, FNBO, Xxxxx and GreenWay dated December 15, 2005.
1.2. Titles. Underlined titles to sections have been included for
convenience only and shall not define, affect or limit any of the terms or
provisions of this Loan Agreement and shall be disregarded in construing the
language of any such term or provision.
1.3. Capitalized Terms. Capitalized terms used herein shall have the same
meaning given to such terms in the other Loan Documents unless otherwise defined
herein or the context clearly indicates otherwise.
ARTICLE 2. THE LOAN.
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2.1. Loan Facility. Subject to and upon the terms, covenants and conditions
of this Loan Agreement, Lender agrees that it shall make a Loan in a principal
amount that does not exceed Three Million Dollars ($3,000,000). The Loan shall
be evidenced by the Promissory Note and the other Loan Documents.
2.2 Repayment of Loan.
(a) Prior to the Maturity Date, Borrower shall repay the principal amount
of the Loan from Available Funds as hereinafter provided, and shall also pay
accrued interest thereon in quarterly payments on the first day of January,
April, July and October of each year. Such interest payments shall commence on
the 1st day of April, 2006. The remaining outstanding principal balance and all
accrued but unpaid interest shall become due and payable on the Maturity Date.
In addition to the amounts being loaned by FNBO and Lender, Borrower is
borrowing an amount not to exceed One Million Dollars ($1,000,000) from Xxxxx
under the terms of the Xxxxx Loan Documents and an amount not to exceed One
Million Five Hundred Twenty-Five Thousand Dollars ($1,525,000) from GreenWay
under the terms of the GreenWay Loan Documents.
(b) Upon each and every date Borrower obtains Available Funds, Borrower
shall pay out within five (5) business days thereafter to the Agent, who shall
distribute such payment of Available Funds to Lender, Xxxxx and XxxxxXxx
pursuant to the terms of the Collateral Agreement. The terms of the Collateral
Agreement provide as follows:
(i) the Agent shall distribute such Available Funds consisting of payment
of interest to the Subordinated Lenders pari passu in accordance with
the Subordinated Lenders' respective Participation Percentage.
(ii) the Agent shall distribute such Available Funds consisting of payment
of principal to the Subordinated Lenders pari passu in accordance with
the Subordinated Lenders' respective Payment Percentage.
(iii) the Agent shall distribute such Extraordinary Payments (as defined in
the Collateral Agreement) consisting of payment of interest to the
Subordinated Lenders pari passu in accordance with the Subordinated
Lenders' respective Participation Percentage.
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(c) Payments of Available Funds received by Lender under the terms of this
of Section (regardless of how classified by the Agent) shall be applied first to
amounts other than interest and principal that are due hereunder, second to
accrued but unpaid interest, and then third to principal. Any payment of
principal on the Loan shall be evidenced by notations on the books and records
of Lender. If requested by Borrower from time to time, Lender shall deliver a
statement of account to Borrower setting forth the unpaid principal balance of
the Loan. Such statement shall (absent clerical error) be deemed conclusively
correct and accepted by Borrower unless Borrower notifies Lender to the contrary
in writing within five (5) business days following delivery of such statement.
Upon receipt of the payment or prepayment by Borrower of any portion of the
Loan, Lender is hereby authorized to record the date and amount of each such
payment or prepayment on its books and records, and any such recordation shall
constitute prima facie evidence of the accuracy of the information so recorded,
absent manifest error. The failure of Lender to make any such notation shall not
affect in any manner or to any extent Borrower's obligations hereunder.
(d) The obligation of Borrower to repay the principal amount of the Loan
together with interest thereon shall be further evidenced by the Promissory
Note. Interest shall accrue on the principal amount of the Loan from the date of
advance until the Maturity Date at a rate equal to the Applicable Rate. Lender's
calculation of the applicable interest accrued on the Loan shall constitute
prima facie evidence of the accuracy of the amount of interest calculated,
absent manifest error.
2.4. No Prepayment Charge. Borrower may make prepayments of principal at
any time and from time to time without the payment of a prepayment charge;
provided that such prepayments shall be deemed to be Available Funds to be
distributed pursuant to the Collateral Agreement and Section 2.1(b).
2.5. Renewal and Extension. Any renewal or extension of the Promissory Note
or any advance made pursuant to the terms of such renewed or extended Promissory
Note, shall be subject to the terms of this Loan Agreement and the other Loan
Documents. Lender is under no obligation to renew or extend the term of any
Indebtedness when it matures.
2.6. Reinstatement of Debt. If and to the extent Lender must deliver to
FNBO a payment received from Borrower pursuant to the terms of the Subordination
Agreement, Borrower will not be credited for the payment so turned over and the
Indebtedness owing to Lender shall be adjusted accordingly.
ARTICLE 3. CONDITIONS TO CLOSING.
3.1. Conditions Precedent to Lender's Obligations under the Loan Documents.
Lender shall have no obligation under the Loan Documents unless the following
conditions have been satisfied:
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(a) Borrower shall have delivered to Lender duly and properly executed
originals of the Loan Documents;
(b) Borrower shall have delivered certified (as of the date of this Loan
Agreement) copies of all corporate action taken by Borrower, authorizing the
execution, delivery and performance of the Loan Documents and each other
document contemplated to be delivered pursuant to the Loan Documents;
(c) Lender shall have received current certificates of good standing for
Borrower issued by the Secretary of State of the state in which Borrower is
doing business;
(d) Borrower shall have delivered current UCC search results showing the
Collateral is free and clear of any lien, encumbrance or security interest,
other than the lien of Agent and the mortgage securing the FNBO Loan, and
demonstrated to Lender's satisfaction that Borrower owns the Collateral;
(e) Borrower shall have delivered its opinion of counsel concluding the
Loan Documents are binding and enforceable in accordance with their terms and
addressing such other matters as Lender may request;
(f) Borrower shall have delivered a commitment for title insurance
proposing to insure the Lien of the Mortgage, subject only to (x) the mortgage
securing the FNBO Loan, and (y) easements and restrictions of record which are
acceptable to Lender, but if title insurance is not available, an attorney's
opinion of title, abstract of title or such other title evidence satisfactory to
Lender confirming the priority of the lien of the Mortgage as aforesaid shall be
furnished at Borrower's expense;
(g) The Mortgage and the Financing Statement shall have been properly filed
of record, and Borrower shall have paid all applicable recording costs, filing
fees, stamp taxes and the like;
(h) Borrower and Xxxxx shall have entered into a Design-Build Lump Sum
Contract under which Xxxxx is to design and construct the Project;
(i) Xxxxx and Lender shall have entered into an agreement under which
Lender is to provide certain services in connection with the design and
construction of a coal fired steam generation system and a distillers grain
steam dryer system for the Project;
(j) Borrower and Xxxxx shall have entered into the Xxxxx Loan Documents, on
terms acceptable to Lender.
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(k) Borrower and GreenWay shall have entered into the GreenWay Loan
documents, on terms acceptable to Lender;
(l) Lender, Xxxxx, FNBO, GreenWay and Borrower shall have entered into the
Subordination Agreement with respect to the loans each such lender shall make to
Borrower, on terms acceptable to Lender; and
(m) Borrower shall have entered into the Construction Loan Agreement with
FNBO, on terms acceptable to Lender.
3.2. Actions by Lender. No action taken by Lender, including the
advancement of funds hereunder, prior to Borrower's satisfaction of the above
requirements, shall be deemed a waiver of Lender's right to require full
compliance with all conditions.
ARTICLE 4. ADVANCE UNDER THE LOAN.
4.1. Borrower's Right to Advance under the Loan. Lender shall be obligated
to disburse or advance any funds under the Loan only if the following conditions
have been satisfied as of the date of the request for the Loan:
(a) Closing shall have previously occurred;
(b) All representations and warranties made herein shall be true and
correct in all material respects as of the date of the Borrower's deemed request
for the Loan;
(c) No Default or Event of Default shall have occurred and be continuing;
and
(d) Borrower shall have performed or caused to be performed the conditions
of Section 3.1 above applicable to the requested Loan.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.
Borrower hereby represents and warrants, and so long as any Indebtedness
from Borrower to Lender remains unpaid or this Loan Agreement remains in effect,
continuously represents and warrants as follows:
5.1. Due Organization. Borrower is a duly organized and validly existing
limited liability company under the laws of the State of North Dakota and is
duly qualified to transact business and is in good standing in that State and in
each jurisdiction where the nature and extent of its business and property
require same. Borrower has the authority to own its properties and carry on its
businesses as they are now and will be conducted.
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5.2. Due Authority. All actions necessary or required to be taken by
Borrower for the execution, delivery and performance by Borrower of the Loan
Documents have been duly authorized and taken by Borrower.
5.3. Enforceability against Borrower. This Loan Agreement and the other
Loan Documents constitute legal, valid and binding obligations of Borrower,
enforceable in accordance with their respective terms.
5.4. No Conflict. The execution and delivery of the Loan Documents by
Borrower do not conflict with or constitute on the part of Borrower a breach of,
or default under any of the terms, conditions, provisions, or restrictions of
any other promissory note, mortgage or loan agreement, or of any partnership
agreement or any other agreement, articles of incorporation, bylaws, lease or
other instrument to which Borrower is subject or by which Borrower may be bound.
5.5. Financial Statements. All balance sheets, income statements, accounts
receivable aging reports, inventory reports and other financial information of
Borrower which may hereafter be furnished to Lender present fairly the financial
condition and results of Borrower's operations, as of the date and for the
periods shown and have been and will be prepared in conformity with the
standards established by AICPA and in accordance GAAP or such other basis of
accounting as is acceptable to Lender.
5.6. Litigation. There is no action, suit, proceeding, inquiry, or
investigation at law or in equity or before or by any court, public board or
body pending or threatened against or affecting Borrower, nor, to the best of
Borrower's knowledge, does there exist any basis upon which any such action,
suit, proceeding, inquiry or investigation could be instituted which could
result in an unfavorable decision, ruling, or finding which would in any way
materially adversely affect Borrower, Borrower's operations, the transactions
contemplated in the Loan Documents or create a Lien on the Property.
5.7. Statutory Compliance. Borrower and the Collateral are each in
compliance in all material respects with all Governmental Requirements.
5.8. Ownership of the Property and Collateral. Borrower has marketable
title in and to the Property and the Collateral, subject only to the Lien and
security interest of Lender pursuant to this Loan Agreement and the Lien of the
mortgage securing the FNBO Loan.
ARTICLE 6. COVENANTS AND AGREEMENTS.
Borrower hereby covenants and agrees, and so long as any Indebtedness from
Borrower to Lender remains unpaid or this Loan Agreement remains in effect,
continuously covenants and agrees as follows:
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6.1. Payment of Indebtedness. Borrower will pay the Indebtedness at the
time and in the manner provided in the Loan Documents, or as provided in any
other instruments, agreements or documents evidencing the obligations of
Borrower to Lender. In addition, Borrower will timely pay the obligations owed
on the FNBO Loan.
6.2. Maintain Good Standing. Borrower is and shall remain a limited
liability company in good standing under the laws of the State of North Dakota
and any other state in which qualification may be necessary.
6.3. Maintain System of Accounting; Provide Financial Information. Borrower
shall maintain its books and records and system of accounting in accordance with
GAAP or such other basis of accounting as is acceptable to Lender, so that at
any time and from time to time the true and complete Financial condition of
Borrower is presented fairly and may be readily determined, and, at Lender's
request, shall make such records available for Lender's inspection. Borrower
agrees to furnish to Lender within thirty (30) days after the end of each
calendar month (i) a balance sheet of Borrower, as of the end of such period,
and (ii) income statements and statements of changes in cash flow for such
period and year to date, all prepared in accordance with GAAP, and all in
reasonable detail. Following completion of the Project, Borrower shall also
furnish to Lender each month, within thirty (30) days of the last day of each
month end, a monthly production report of Borrower's input and output amounts of
corn usage, coal usage, distillers dried grain, ethanol and CO2 together with
all other monthly financial and operational information as may required by this
Loan Agreement. Borrower shall also furnish promptly to Lender, in such form as
Lender may reasonably request, such additional financial or other information
concerning the cash flow, income, assets, liabilities, ownership, operations,
corporate activities and meetings and transactions of Borrower as may be
requested by Lender from time to time, and permit Lender to make and obtain
copies of any such records or information.
6.4. Notice of Litigation. Borrower shall advise Lender promptly of any
claim or controversy which is or may become the subject of litigation against
Borrower or any Collateral, and whether such litigation or potential litigation,
in the event of an unfavorable outcome, could have a Material Adverse Effect on
Borrower's financial condition or operations.
6.5. Compliance with Governmental Requirements. Borrower shall timely
comply with all Governmental Requirements applicable to the Loan, any of the
Loan Documents, and all applicable organizational documents and other agreements
to which Borrower is a party and shall promptly deliver to Lender evidence of
such compliance upon request.
6.6. Notification of Defaults and Other Events. Borrower shall promptly
advise Lender in writing of any of the following occurrences or events as they
become known to Borrower, specifying in each case the action Borrower has taken
or caused to be taken, or proposes to take or cause to be taken, with respect to
the following:
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(a) the occurrence of a Default or an Event of Default;
(b) any default by Borrower under any Governmental Requirement or in the
payment of any indebtedness (or in the performance of any obligation related
thereto) related to the Loan or the Loan Documents which could have a Material
Adverse Effect;
(c) any claim or controversy which is or may become the subject of
litigation, arbitration or governmental investigation which has been instituted
or to the knowledge of Borrower, is threatened against Borrower or any
Collateral which could have a Material Adverse Effect;
(d) any damage or injury to the Collateral; or
(e) if the Project is no longer in operating condition.
6.7. Hold Harmless. Borrower shall protect, indemnify, hold harmless and
defend, at Borrower's own cost and expense, Lender, and its successors and
assigns (each, an "Indemnified Person"), from and against, and if and to the
extent paid, reimburse each such Indemnified Person for, any and all losses,
liabilities, claims, damages deficiencies, interest, judgments, costs and
expenses (including, but not limited to, all court costs and reasonable
attorneys' fees and expenses) of any and every kind and nature arising out of or
by reason of any representation or warranty made by Borrower hereunder or under
any of the other Loan Documents; Provided, however, that nothing contained in
this Section 6.7 shall be construed as an agreement by Borrower to indemnify any
Indemnified Person for any Indemnified Person's (i) gross negligence or willful
misconduct that directly causes or results in the harm or loss being
indemnified, or (ii) any unexcused or unlawful breach by Lender of any of its
obligations under this Loan Agreement or any of the other Loan Documents. The
indemnity provided herein shall survive the expiration or earlier termination of
the Loan Documents.
6.8. Access to Borrower's Books and Records. At all times during normal
business hours, Borrower shall accord Lender and Lender's representatives access
to Borrower's books and records (wherever located), including those
electronically stored, for inspection and examination and shall permit copies to
be made of such books and records and make available a photocopy facility for
that purpose at Borrower's expense.
6.9. Costs and Expenses. Borrower has and will pay when due all costs and
expenses occurring after Closing in connection with the Loan, including, but not
limited to, all reasonable fees, expenses and disbursements of Lender's counsel
in connection with the amendment, enforcement or defense of the Loan Documents,
the granting or denial of any waiver or consent hereunder or under the other
Loan Documents or any other matter or transaction contemplated by the Loan
Documents.
Loan Agreement
Page 15
6.10. Prompt Performance. So long as any portion of the Indebtedness
remains outstanding, Borrower shall promptly perform each and every obligation
of Borrower as set forth herein, in the other Loan Documents, under the
Construction Loan Agreement with FNBO and under the Other Loan Documents.
6.11. Insurance on the Collateral. So long as the Loan is outstanding,
Borrower shall keep and maintain casualty insurance on the Collateral, which
insurance shall name Lender as loss payee. The amount of insurance shall be
subject to Lender's approval, and Borrower shall provide evidence that such
insurance is in effect at all times.
6.12 Operate the Project. Until the Loan is paid in full or otherwise
retired as provided herein, Borrower covenants to continuously operate the
Project at Borrower's sole cost and expense.
ARTICLE 7. BORROWER'S NEGATIVE COVENANTS.
Borrower hereby covenants that so long as any portion of the Indebtedness
remains outstanding and unpaid, Borrower will not, directly or indirectly, do
any of the following without the prior written consent of Lender:
7.1. Incur Or Make Additional Debt. Enter into any contract, guaranty,
indemnity or other agreement with another party which has the effect of creating
a monetary debt in favor of the other party, or enter into an amendment, change,
revision or other modification of the terms of the FNBO Loan, the Xxxxx Loan or
the GreenWay Loan that has the effect of increasing the indebtedness, extending
the time for payment or granting other collateral as security therefor. Borrower
shall not make any loan, or extend credit to, any person including but not
limited to any officer, manager, employee or member of Borrower.
7.2. Application of Funds. Apply the amounts borrowed under this Loan
Agreement to any purposeor use not expressly permitted under this Loan
Agreement, other than toward payment of proper costs of constructing the Project
pursuant to the Design-Build Lump Sum Contract between Borrower and Xxxxx, as
invoiced by Xxxxx.
7.3. Change in Ownership. Sell, transfer or assign (or permit the sale,
transfer or assignment of) any interest in the beneficial ownership of Borrower,
or pledge or otherwise encumber (or permit the pledge or other encumbrance of)
any interest in Borrower.
7.4. Use Violations. Use, maintain, operate or occupy or allow the use,
maintenance, operation or occupancy of the Property in any manner which (i)
violates the terms of the Loan Documents; (ii) may be dangerous unless
safeguarded as required by law; (iii) constitutes a public
Loan Agreement
Page 16
nuisance; (iv) makes void, voidable or cancelable any insurance policy then in
force with respect thereto; or (v) makes void, voidable or cancelable any
governmental permit.
7.5 Distributions. Declare or make any distribution (whether cash or
property) to its members; provided, however, Borrower may make annual cash
distributions to its members not to exceed the lesser of (i) the estimated
federal, state and local income tax liability (excluding penalties and interest)
attributable to each member's proportionate share of the Borrower's net taxable
income, or (ii) the amount permitted under the Construction Loan Agreement. Such
estimated tax liability, which shall be computed by the accountant who regularly
prepares the Borrower's tax returns, shall be computed on the basis of the
highest marginal rate applicable to individuals on capital gains and other
taxable income for the fiscal year in question.
7.6 Transfer Its Assets. Except in the ordinary course of its business,
sell or offer to sell or otherwise transfer or dispose of any of Borrower's
assets including the Project or any interest therein.
7.7 Other Covenants. Do or cause to be done any act which would result in a
breach of any of the Loan Documents.
ARTICLE 8. EVENTS OF DEFAULT.
The occurrence of any one or more of the following shall constitute an
Event of Default hereunder:
8.1. Failure to Make Payment. The failure of Borrower to pay, when due, any
amount then owing by Borrower to Lender, which failure continues, without cure,
for ten (10) days from the date notice of such failure is provided by Lender to
Borrower.
8.2. Default on the Agreement with Xxxxx or Lender. Default in the
performance by Borrower of any of the terms or obligations on its part to be
performed under any agreement with Xxxxx or Lender which default is not timely
cured to the satisfaction of Xxxxx or Lender, as the case may be, including
without limitation the agreements referenced in clauses (h) and (i) of section
3.1.
8.3. Failure to Make Payment or Discharge Obligations on Other
Indebtedness. Default in the payment when due (subject to applicable grace
periods), whether by acceleration or otherwise, of any other indebtedness or
undertaking of Borrower, or default in the performance or observance of any
obligation or condition with respect to any such other indebtedness or
undertaking, if the effect of such default is to accelerate the maturity of such
other indebtedness or undertaking or to permit the holder(s) thereof, or any
trustee or agent for such holder(s), to cause such other indebtedness or
undertaking to become due and payable prior to its expressed maturity.
Loan Agreement
Page 17
8.4. Failure to Discharge Obligations. The failure of Borrower to promptly,
punctually and faithfully perform or discharge any of its covenants, agreements
or obligations (excluding payment obligations) under any of the Loan Documents
and such failure continues, without cure, for more than thirty (30) days from
the date notice of such failure is provided by Lender to Borrower.
8.5. Misrepresentation. The reasonable determination by Lender that any
representation or warranty now or hereafter made by Borrower to Lender, whether
in the Loan Documents or otherwise, was not true or correct when given in any
material respect, and Borrower is unable to correct, cure or make true such
representation or warranty within twenty (20) days from the date notice thereof
is provided by Lender to Borrower.
8.6. Governmental Action. Any Governmental Authority or any other person
takes or institutes action, which in the reasonable opinion of Lender, will have
a Material Adverse Effect on Borrower, Borrower's operations, or Borrower's
ability to repay the Loan, and such governmental, public or private action
continues, without cure, for more than twenty (20) days from the date notice
thereof is provided by Lender to Borrower.
8.7. Business Failure. Dissolution, termination of existence, insolvency,
business failure, or suspension of business on the part of Borrower, the filing
of a petition for the appointment of a receiver or the appointment of a receiver
for all or any part of Borrower's property, assignment for the benefit of
creditors or commencement of any proceedings under any bankruptcy or insolvency
laws by or against Borrower.
8.8. Service of Process. Service of any order of attachment, garnishment,
or levy or the existence or the making or issuance of any tax lien or similar
process on or with respect to any of Borrower's property, which has not been
released or collection, execution or similar process stayed within thirty (30)
days.
8.9. Judgment. The entry of any judgment or order against Borrower, which
judgment or order is not satisfied or appealed from (with execution or similar
process stayed) within ten (10) days of the entry of such judgment.
8.10. Sell, Transfer or Dispose of the Collateral. The sale, transfer,
assignment, mortgage or other disposition of any of the Collateral without
Lender's prior written consent.
ARTICLE 9. RIGHTS AND REMEDIES UPON DEFAULT.
9.1. Remedies upon Default. Upon the occurrence of an Event of Default,
Lender, acting by or through agents, receivers, trustees or otherwise
(including, but not limited to the Agent) without further notice (including,
without limitation, notice of default, notice of intent to
Loan Agreement
Page 18
accelerate or of acceleration) except for any notice that is expressly required
herein, and without demand, presentment, protest or action of any nature
whatsoever all of which are hereby waived by Borrower, and in addition to any
other provision in the Loan Documents may exercise any or all of the following
rights, remedies and recourses:
(a) Declare the unpaid principal balance of the Promissory Note, the
accrued and unpaid interest thereon and any other accrued but unpaid portion of
the Indebtedness to be immediately due and payable, whereupon the same shall
become immediately due and payable; provided, however, that if accelerated
pursuant to this sentence, the Promissory Note and all such Indebtedness may be
reinstated at the option and upon the written approval of Lender.
(b) Reduce any claim to judgment.
(c) Perform and discharge each and every obligation, covenant, condition
and agreement of Borrower under any of the Loan Documents (provided that Lender
shall not have any obligation to perform or discharge any such obligation), and,
in exercising any such powers, to pay necessary costs and expenses, employ
counsel and incur and pay reasonable attorneys' fees and expenses. Lender shall
not be obligated to perform or discharge, nor does it hereby undertake to
perform or discharge, any obligation, duty or liability of Borrower by reason of
this Loan Agreement, it being agreed that Lender shall be treated as agreeing to
perform or discharge such obligation, duty or liability if (but only if) Lender
shall expressly so elect, by sending written notice to the other contracting
party to such documents.
(d) Lender may proceed by a suit or suits in equity or at law for a
judicial or strict foreclosure hereunder, or for the specific performance of any
covenant or agreement herein contained, or in aid of the execution of any power
herein granted.
(e) Lender, its agents or its representatives shall have the right to
become the purchaser at any sale held by Lender or by any receiver or public
officer, and Lender shall have the right to credit upon the amount of the bid
made therefor the amount payable out of the net proceeds of such sale to Lender.
(f) Exercise any and all other rights, remedies and recourses granted under
any of the Loan Documents (including but not limited to the Security Documents)
or otherwise now or hereafter existing in equity, at law, by virtue of statute
or otherwise.
9.2. Application of Proceeds After Default. All payments on the Loan
received by Lender during the existence of an Event of Default, and the proceeds
of any sale or disposition of the Collateral, and all proceeds generated by
Lender's exercise of its remedies herein set forth or under any of the Loan
Documents, shall be applied to the Indebtedness owing by Borrower in such order
and manner as Lender deems appropriate any instructions from any other Person
(including Borrower) notwithstanding.
Loan Agreement
Page 19
9.3. Waivers. To the full extent permitted by law, Borrower hereby
irrevocably and unconditionally waives and releases:
(a) except as specifically provided for herein or in any of the other Loan
Documents, all notices of any Default or Event of Default or of any election by
Lender to exercise any right, remedy or recourse provided for under the Loan
Documents or of the actual exercise of any such right, remedy or recourse;
(b) except as specifically provided for in any of the Loan Documents, any
and all right to receive demand, grace, notice, presentment for payment,
protest, notice of intention to accelerate the Indebtedness or notice of
acceleration of the Indebtedness.
9.4. Discontinuance of Proceedings. In case Lender shall have proceeded to
invoke any right, remedy, recourse or power permitted under the Loan Documents
and shall thereafter elect to discontinue or abandon same for any reason, Lender
shall have the unqualified right to do so and, in such event, Borrower and
Lender shall be restored to their former positions with respect to the
Indebtedness, the Loan Documents, the Collateral and otherwise, and the rights,
remedies, recourses and powers of Lender shall continue as if same had never
been invoked.
ARTICLE 10. MISCELLANEOUS PROVISIONS. Borrower acknowledges and agrees that the
following provisions shall also apply to this Loan Agreement:
10.1. Continuing Agreement. This is a continuing agreement and all the
rights, powers and remedies of Lender hereunder and all agreements and
obligations of Borrower and Lender, shall continue to exist until all of the
Indebtedness is paid in full.
10.2. Failure to Give Notice and/or Cure. If any provision of the Loan
Agreement or any of the other Loan Documents provides for Lender to give to
Borrower or any other person liable on the Loan any notice and/or cure period
regarding an Event of Default, then, if Lender shall fail to give such notice to
Borrower or such other Person, the sole and exclusive remedy of Borrower or such
other person for such failure shall be to seek appropriate equitable relief to
enforce the agreement to give such notice and to have any acceleration of the
maturity of the Promissory Note enjoined, postponed or revoked and foreclosure
proceedings in connection therewith delayed or terminated pending or upon the
curing of such Event of Default in the manner and during the period of time
permitted by the Loan Agreement or the applicable Loan Document, if any, and
neither Borrower nor such other person shall have any right to damages or any
other type of relief against Lender not herein specifically set forth, all of
which damages or other relief are hereby waived by Borrower. Borrower
understands and agrees that the term of any cure period granted in this Loan
Agreement shall not be increased by a similar cure period granted in any other
Loan Document with respect to the same default.
Loan Agreement
Page 20
10.3. Defense of Actions. Lender may (but shall not be obligated to)
commence, appear in, or defend any action or proceeding purporting to affect the
Loan, or the respective rights and obligations of Lender and Borrower pursuant
to this Loan Agreement and the other Loan Documents. Lender may (but shall not
be obligated to) pay all necessary expenses, including reasonable attorneys'
fees and expenses incurred in connection with such proceedings or actions, which
Borrower agrees to repay to Lender on demand.
10.4. No Modification. No modification, consent or waiver whatsoever of any
provision hereunder shall be effective unless in writing and approved by Lender,
and then only to the extent set forth in such writing.
10.5. Failure to Act. No act, delay, or omission of Lender to exercise any
right, remedy or power under the Loan Documents shall impair any such right,
remedy or power, or be construed to be a waiver of any Default or an
acquiescence therein; and any single or partial exercise of any such right,
remedy or power shall not preclude other and further exercise thereof, or the
exercise of any other right, remedy or power.
10.6. Rights Cumulative. The rights, remedies and powers provided in the
Loan Documents or otherwise are cumulative, and the exercise of any particular
right, remedy or power does not preclude the exercise of any other right, remedy
or power in addition to, or as an alternative of, such remedy.
10.7. Limitation on Interest. Notwithstanding anything herein or in the
other Loan Documents, expressed or implied, to the contrary, in no event shall
any interest rate charged hereunder, under the Promissory Note or any of the
other Loan Documents, or any interest contracted for, collected or received by
Lender exceed the maximum interest rate allowed by applicable law. It is
expressly stipulated and agreed to be the intent of Borrower and Lenderat all
times to comply with the applicable law governing the maximum rate or amount of
interest payable on or in connection with any of the Promissory Note and the
Loan. If the applicable law is ever judicially interpreted so as to render
usurious any amount called for under either of the Promissory Note or the Loan,
or any other circumstance whatsoever, and results in Lender having been paid any
interest in excess of that permitted by applicable law, then it is the express
intent of Borrower and Lender that all excess amounts theretofore collected by
Lender be credited to the principal balance of said Promissory Note, or if said
Promissory Note has been or would thereby be paid in full, refunded to Borrower,
and the provisions of said Promissory Note and the other applicable Loan
Documents shall immediately be deemed to be reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution any new document, so as to comply with the applicable law, but so as
to permit the recovery of the fullest amount otherwise called for hereunder or
thereunder.
10.8. Provisions Severable. If any one or more of the provisions of this
Loan Agreement operates, in whole or in part, or if any one or more of the
provisions of this Loan Agreement
Loan Agreement
Page 21
would prospectively operate, in whole or in part, to invalidate this Loan
Agreement, then said provision or provisions shall be deemed null and void, but
shall not affect any other provision of this Loan Agreement, and its remaining
provisions shall in no way be affected, prejudiced or disturbed thereby.
10.9. No Assignment by Borrower. Neither this Loan Agreement nor the other
Loan Documents may be assigned by Borrower without the express written consent
of Lender.
10.10. Borrower Additionally Bound. Borrower understands and agrees that it
is additionally bound by the terms and conditions of the other Loan Documents,
which such terms and provisions are incorporated herein and made a part of this
Loan Agreement. To the extent that any term or provision of the other Loan
Documents conflicts with a term or provision of this Loan Agreement, the term or
provision affording Lender the most security or the greatest right shall
control.
10.11. Binding Effect. This Loan Agreement and the other Loan Documents
shall be binding upon Lender and Borrower and inure to the benefit of their
respective representatives, successors and assigns.
10.12. No Agency. Unless expressly set forth herein or in the other Loan
Documents, nothing contained herein or in the other Loan Documents shall be
construed as creating an agency relationship between Borrower and Lender. It is
expressly agreed and understood that no party shall have the right to act for or
on behalf of any other party as the result of the execution hereof or of the
other Loan Documents.
10.13. Not a Joint Venture or Partnership. Nothing contained in any of the
Loan Documents shall be deemed to render Lender and Borrower partners or joint
venturers for any purpose.
10.14. Survival of Representations. All covenants, agreements,
undertakings, indemnities, representations and warranties made by the Borrower
herein will survive the delivery of the Loan Documents and the making of the
Loan, and any investigation at any time made by or on behalf of Lender will not
diminish Lender's right to rely thereon. All statements contained in any
certificate or other instrument delivered by or on behalf of the Borrower under
or pursuant to the Loan Documents or in connection with the transactions
contemplated hereby shall constitute representations and warranties made by the
Borrower hereunder.
10.15. Further Assurances. Each party hereto agrees, from time to time as
may be reasonably requested by the other party hereto, to execute, acknowledge,
obtain and deliver such documents as may be required in order to complete and
effect the transactions contemplated by the Loan Documents.
Loan Agreement
Page 22
10.16. Time. Time is of the essence with respect to Borrower's obligations
under the Loan Documents.
10.17. No Third Party Beneficiaries. Neither this Loan Agreement nor the
other Loan Documents create any rights to or for the benefit of any person or
persons not a party hereto or thereto.
10.18. Governing Law, Jurisdiction and Venue. This Loan Agreement shall be
governed by and construed in accordance with the laws of the State of Kansas,
and Sedgwick County, Kansas, is deemed to be the place of execution, delivery
and performance. Borrower expressly agrees to jurisdiction and venue for any and
all legal proceedings filed in connection herewith in the District Court of
Sedgwick County, Kansas.
10.19. Notice. All notices, requests and communications to any party
hereunder shall be in writing (including bank wire, telecopy or similar
writing), except for any telephone notices specifically provided for herein, and
may be personally served or sent by telecopier, registered or certified mail or
the express mail service of the United States Postal Service, Federal Express or
other equivalent overnight or expedited delivery service. Any such notice,
request or other communication shall be deemed given and received (i) if given
by personal service, or telecopier (confirmed in writing) twenty-four (24) hours
after having been given; (ii) if sent by telecopier with confirmation by
telephone, upon receipt; (iii) if sent by registered or certified mail, upon the
earlier of (x) actual receipt, or (y) three (3) days after deposit in a
depository of the United States Postal Service, postage prepaid; (iv) if sent by
Federal Express, the express mail service of the United States Postal Service or
other equivalent overnight or expedited delivery service, upon the earlier of
(x) actual receipt or (y) twenty four (24) hours after delivery to such
overnight or expedited delivery service, delivery charges prepaid and properly
addressed. For the purposes hereof, the addresses of Borrower and Lender shall
be as set forth below.
If to Lender: ICM, Inc.
Attn: Xxxxx Xxxxx
000 X. Xxxxx Xx.
Xxxxxxx, Xxxxxx 00000
Telecopier: (000) 000-0000
If to Borrower: Red Trail Energy, LLC
Attn: Xxxx Xxxxxx
X.X. Xxx 00
0000 Xxx. 0 Xxxxx
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Loan Agreement
Page 23
Any party may, by proper written notice hereunder to the other party, change the
address to which notices shall thereafter be sent to it.
10.20. Counterparts. This Loan Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same agreement.
10.21. Acceptance by Lender. This Loan Agreement is not binding upon Lender
until accepted by Lender.
10.22. Grant of Security Interest. Borrower hereby grants to Lender a
security interest in the Collateral and Property, all proceeds thereof and after
acquired Collateral of similar nature. The security interest shall secure the
Indebtedness.
THIS LOAN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, ARE THE FINAL
EXPRESSION OF THE AGREEMENT BETWEEN LENDER AND BORROWER AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR OR CONTEMPORANEOUS ORAL AGREEMENT BETWEEN
US. LENDER B AND BORROWER A&H EACH HEREBY ACKNOWLEDGE AND AFFIRM THAT NO SUCH
UNWRITTEN, ORAL AGREEMENTS EXIST. EACH PARTY HERETO ACKNOWLEDGES THAT SUFFICIENT
SPACE HAS BEEN PROVIDED HEREIN, AND IN THE OTHER LOAN DOCUMENTS, FOR THE
PLACEMENT OF NONSTANDARD TERMS.
IN WITNESS WHEREOF, the parties have caused this Loan Agreement to be
executed and delivered as of the date and year first written above.
RED TRAIL ENERGY, LLC
By: /s/ Xxxxxxx X Xxxx
------------------------------------
Name: Xxxxxxx X Xxxx
Title: President
"Borrower"
ACCEPTED:
ICM, INC.
By /s/ Xxxx Xxxxxx Gried
----------------------------------
Name: XXXX XXXXXX GRIED
Title: CEO
"Lender"
Loan Agreement
Page 24
EXHIBIT A
TO LOAN AGREEMENT
LEGAL DESCRIPTION OF PROJECT:
TRACT 1:
A TRACT OF LAND LOCATED IN THE SOUTHWEST QUARTER (SW1/4) OF SECTION 4, TOWNSHIP
139 NORTH, RANGE 92 WEST OF THE 5th PRINCIPAL MERIDIAN, XXXXX COUNTY, NORTH
DAKOTA, being more particularly described as follows:
All that portion of said Southwest Quarter lying South of the southerly 200 foot
right of way line of the Burlington Northern/Santa Fe Railroad as surveyed and
constructed across said Southwest Quarter of Section 4, except the west 100.00
feet and the south 850.00 feet of the west 920.00 feet of said Southwest Quarter
of Section 4.
TRACT 2:
A TRACT OF LAND LOCATED IN THE SE1/4 OF SECTION 4, TOWNSHIP 139 NORTH, RANGE 92
WEST OF THE 5th P.M., XXXXX COUNTY, NORTH DAKOTA, more particularly described as
follows:
All that portion of said SE1/4 lying south of the southerly 200 foot right of
way line of the Burlington Northern/Santa Fe Railroad as surveyed and
constructed across the said SE1/4 of Section 4.
TRACT 3:
A tract of land located in the South Half (S1/2) of Xxxxxxx 0, Xxxxxxxx 000
Xxxxx, Xxxxx 00 Xxxx of the 5th Principal Meridian, Xxxxx County, North Dakota,
being more particularly described as follows:
The southerly 150.00 feet of the southerly 200.00 feet of right of way for the
Burlington Northern/Santa Fe Railroad as surveyed and constructed across said
South Half of Section 4. Said tract contains 16.87 acres.
TRACT 4:
A tract of land located in the Northeast Quarter of the Northeast Quarter (NE1/4
NE1/4) of
Loan Agreement
Page 25
Section 9, Township 139 North, Range 92 West of the 5th Principal Meridian,
Xxxxx County, North Dakota, being more particularly described as follows:
The southerly 150.00 feet of the southerly 200.00 feet of right of way for the
Burlington Northern/Santa Fe Railroad as surveyed and constructed across said
Northeast Quarter of the Northeast Quarter of Section 9. Said tract contains
2.79 acres.
TRACT 5:
A tract of land located in the Northwest, Northeast and Southeast Quarters of
Section 10, Township 139 North, Range 92 West of the 5th Principal Meridian,
Xxxxx County, North Dakota, being more particularly described as follows:
The southerly 150.00 feet of the southerly 200.00 feet of right of way for the
Burlington Northern/Santa Fe Railroad as surveyed and constructed across said
Northwest Quarter, the Northeast Quarter and the Southeast Quarter of Section
10. Said tract contains 22.05 acres.
Loan Agreement
Page 26
