CONSTRUCTION AND REVOLVING TERM LOAN SUPPLEMENT
Exhibit 10.4
Loan No. RI0340T02C
CONSTRUCTION AND REVOLVING TERM LOAN SUPPLEMENT
THIS SUPPLEMENT to the Master Loan Agreement dated November 20, 2006, (the “MLA”), is entered
into as of December 24, 2008 between FARM CREDIT SERVICES OF AMERICA, FLCA (“Farm Credit”) and ABE
FAIRMONT, LLC, Fairmont, Nebraska (the “Company”), and amends and restates the Supplement dated
February 17, 2006 and numbered RI0340T02, as amended.
SECTION 1. The Construction and Revolving Term Loan Commitment. On the terms and conditions
set forth in the MLA and this Supplement, Farm Credit agrees to make loans to the Company from time
to time during the period set forth below in an aggregate principal amount not to exceed, at any
one time outstanding, $25,000,000.00 less the amounts scheduled to be repaid during the period set
forth below in Section 6 (the “Commitment”). Requests for advances which are for the purpose of
paying the costs to construct the ethanol plant described below shall be accompanied by
documentation evidencing such costs. Within the limits of the Commitment, the Company may borrow,
repay and reborrow.
The Company may, in its sole discretion, elect to permanently reduce the amount of the Commitment
by giving Agent (as that term is defined in the MLA) ten (10) days prior written notice. Said
election shall be made only if the Company is not in default at the time of the election and will
remain in compliance with all financial covenants after such reduction. Any such reduction shall
be treated as an early, voluntary reduction of the Commitment amount and shall not delay or reduce
the amount of any scheduled Commitment reduction under Section 6 hereof (which reductions shall
continue in the increments and on the dates determined in accordance with Section 6), but rather
shall result in an earlier expiration of the Commitment and final maturity of the loans.
SECTION 2. Purpose and Transfer. The purpose of the Commitment is to partially finance the
Company’s construction of a 100 million gallon (annual) ethanol plant (the “Improvements”)
identified in the plans and specifications provided to and approved by Agent pursuant to Section
7(A)(xi) of the MLA (as the same may be amended pursuant to Section 12(A) herein, the “Plans”), on
real property owned by the Company near Fairmont, Nebraska (the “Property”) and to provide working
capital to the Company. In addition, the purpose of the Commitment is to consolidate under this
Supplement the Company’s existing indebtedness to CoBank under the Construction and Revolving Term
Loan Supplement dated November 20, 2006 and numbered RI0475T02, as amended (the “Existing
Agreement”). The Company agrees that on the date when all conditions precedent to Agent’s
obligation to extend credit hereunder have been satisfied: (A) the principal balance outstanding
under the Existing Agreement shall be transferred to and charged against the Commitment; (B) all
accrued obligations of the Company under the Existing Agreement for the payment of interest or
other charges shall be transferred to and become part of the Company’s obligations under this
Supplement as if fully set forth herein; and (C) the Existing Agreement and the promissory note set
forth in or executed in connection therewith shall be deemed replaced and superseded, but the
indebtedness evidenced by such note shall not be deemed to have been paid off, by this Supplement
and the MLA. In addition, in the event any balances bearing interest at a fixed rate are
outstanding on the date such loans are being transferred hereto, then such balances shall continue
to be subject to such rates for the remaining agreed upon fixed rate periods but shall otherwise be
subject to the terms hereof. The Company agrees to utilize the proceeds of the Commitment for
these purposes only.
SECTION 3. Term. The term of the Commitment shall be from the date hereof, up to and
including December 1, 2016, or such later date as Agent may, in its sole discretion, authorize in
writing.
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| ABE Fairmont, LLC | ||
| Fairmont, Nebraska |
SECTION 4. Reserved.
SECTION 5. Interest and Fees.
(A) Interest. The Company agrees to pay interest on the unpaid principal balance of the loans
in accordance with one or more of the following interest rate options, as selected by the Company:
(1) One-Month LIBOR Index Rate. At a rate (rounded upward to the nearest 1/100th
and adjusted for reserves required on “Eurocurrency Liabilities” [as hereinafter defined] for banks
subject to “FRB Regulation D” [as hereinafter defined] or required by any other federal law or
regulation) per annum equal at all times to 340 basis points above the annual rate quoted by the
British Bankers Association (the “BBA”) at 11:00 a.m. London time for the offering of one (1)-month
U.S. dollars deposits, as published by Bloomberg or another major information vender listed on
BBA’s official website on the first U.S. Banking Day (as hereinafter defined) in each week with
such rate to change weekly on such day. The rate shall be reset automatically, without the
necessity of notice being provided to the Company or any other party, on the first U.S. Banking Day
of each succeeding week, and each change in the rate shall be applicable to all balances subject to
this option. Information about the then-current rate shall be made available upon telephonic
request. For purposes hereof: (1) “U.S. Banking Day” shall mean a day on which CoBank is open for
business and banks are open for business in New York, New York; (2) “Eurocurrency Liabilities”
shall have the meaning as set forth in “FRB Regulation D”; and (3) “FRB Regulation D” shall mean
Regulation D as promulgated by the Board of Governors of the Federal Reserve System, 12 CFR Part
204, as amended.
(2) Quoted Rate. At a fixed rate per annum to be quoted by Agent in its sole discretion in
each instance. Under this option, rates may be fixed on such balances and for such periods, as may
be agreeable to Agent in its sole discretion in each instance, provided that: (1) the minimum
fixed period shall be 30 days; (2) amounts may be fixed in increments of $500,000.00 or multiples
thereof; and (3) the maximum number of fixes in place at any one time shall be five.
(3) LIBOR. At a fixed rate per annum equal to “LIBOR” (as hereinafter defined) plus 3.40%.
Under this option: (1) rates may be fixed for “Interest Periods” (as hereinafter defined) of 1, 2,
3, 6, 9, or 12 months as selected by the Company; (2) amounts may be fixed in increments of
$500,000.00 or multiples thereof; (3) the maximum number of fixes in place at any one time shall be
five; and (4) rates may only be fixed on a “Banking Day” (as hereinafter defined) on 3 Banking
Days’ prior written notice. For purposes hereof: (a) “LIBOR” shall mean the rate (rounded upward
to the nearest sixteenth and adjusted for reserves required on “Eurocurrency Liabilities” (as
hereinafter defined) for banks subject to “FRB Regulation D” (as herein defined) or required by any
other federal law or regulation) quoted by the British Bankers Association (the “BBA”) at 11:00
a.m. London time 2 Banking Days before the commencement of the Interest Period for the offering of
U.S. dollar deposits in the London interbank market for the Interest Period designated by the
Company; as published by Bloomberg or another major information vendor listed on BBA’s official
website; (b) “Banking Day” shall mean a day on which Agent is open for business, dealings in U.S.
dollar deposits are being carried out in the London interbank market, and banks are open for
business in New York City and London, England; (c) “Interest Period” shall mean a period commencing on the date this option is to take effect and ending on the
numerically corresponding day in the next calendar month or the month that is 2, 3, 6, 9, or 12
months thereafter, as the case may be; provided, however, that: (i) in the event such ending day
is not a Banking Day, such
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| ABE Fairmont, LLC | ||
| Fairmont, Nebraska |
period shall be extended to the next Banking Day unless such next
Banking Day falls in the next calendar month, in which case it shall end on the preceding Banking
Day; and (ii) if there is no numerically corresponding day in the month, then such period shall end
on the last Banking Day in the relevant month; (d) “Eurocurrency Liabilities” shall have meaning as
set forth in “FRB Regulation D”; and (e) “FRB Regulation D” shall mean Regulation D as promulgated
by the Board of Governors of the Federal Reserve System, 12 CFR Part 204, as amended.
The Company shall select the applicable rate option at the time it requests a loan hereunder and
may, subject to the limitations set forth above, elect to convert balances bearing interest at the
variable rate option to one of the fixed rate options. Upon the expiration of any fixed rate
period, interest shall automatically accrue at the variable rate option unless the amount fixed is
repaid or fixed for an additional period in accordance with the terms hereof. Notwithstanding the
foregoing, rates may not be fixed in such a manner as to cause the Company to have to break any
fixed rate balance in order to pay any installment of principal. All elections provided for herein
shall be made electronically (if applicable), telephonically or in writing and must be received by
Agent not later than 12:00 Noon Company’s local time in order to be considered to have been
received on that day; provided, however, that in the case of LIBOR rate loans, all such elections
must be confirmed in writing upon Agent’s request. Interest shall be calculated on the actual
number of days each loan is outstanding on the basis of a year consisting of 360 days and shall be
payable monthly in arrears by the 20th day of the following month or on such other day in such
month as Agent shall require in a written notice to the Company; provided, however, in the event
the Company elects to fix all or a portion of the indebtedness outstanding under the LIBOR interest
rate option above, at Agent’s option upon written notice to the Company, interest shall be payable
at the maturity of the Interest Period and if the LIBOR interest rate fix is for a period longer
than 3 months, interest on that portion of the indebtedness outstanding shall be payable quarterly
in arrears on each three-month anniversary of the commencement date of such Interest Period, and at
maturity.
(B) Commitment Fee. In consideration of the Commitment, the Company agrees to pay to Agent a
commitment fee on the average daily unused portion of the Commitment (as permanently reduced by the
Company, if applicable, under Section 1 above) at a rate of 5/8 of 1% per annum (calculated on a
360 day basis), payable monthly in arrears by the 20th day following each month. Such fee shall be
payable for each month (or portion thereof) occurring during the original or any extended term of
the Commitment.
SECTION 6. Promissory Note. The Company promises to repay on the dates set forth below, the
outstanding principal, if any, that is in excess of the listed amounts:
| Payment Date | Reducing Commitment Amount | |||
December 1, 2014 |
$ | 20,000,000.00 | ||
June 1, 2015 |
$ | 15,000,000.00 | ||
December 1, 2015 |
$ | 10,000,000.00 | ||
June 1, 2016 |
$ | 5,000,000.00 | ||
December 1, 2016 |
$ | 0.00 | ||
Provided, however, that if Construction and Term Loan Supplement No. RI0340T01C dated
December 24, 2008, has been repaid prior to its maturity date of May 20,2014, then repayment for
this loan shall begin on the first day of the month that is six months after the first day of the
month following the repayment of RI0340T01C, and reductions in principal as noted above shall occur
every six months
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| ABE Fairmont, LLC | ||
| Fairmont, Nebraska |
thereafter. If any installment due date is not a day on which Agent is open for
business, then such installment shall be due and payable on the next day on which Agent is open for
business. In addition to the above, the Company promises to pay interest on the unpaid principal
balance hereof at the times and in accordance with the provisions set forth in Section 5 hereof.
SECTION 7. Prepayment. In addition to the broken funding surcharge provision of the MLA,
prepayment of any outstanding principal balance due to refinancing, or refinancing of any
unadvanced Commitment, up to and including July 1, 2009, will result in a 3% prepayment charge in
addition to any broken funding surcharges which may be applicable, based on the amounts prepaid and
on the total amount of the Commitments in effect at such time.
SECTION 8. Security. The Company’s obligations hereunder and, to the extent related hereto,
the MLA, shall be secured as provided in the Security Section of the MLA, including without
limitation as a future advance under any existing mortgage or deed of trust.
SECTION 9. Reserved.
SECTION 10. Representations and Warranties. In addition to the representations and warranties
contained in the MLA, the Company represents and warrants as follows:
Environmental Compliance. Without limiting the provisions of the MLA, all property owned or
leased by the Company, including, without limitation, the Property and the Improvements, and all
operations conducted by it are in compliance in all material respects with all Laws and all Project
Approvals relating to environmental protection, the failure to comply with which could have a
material adverse effect on the condition, financial or otherwise, operations, properties, or
business of the Company, or on the ability of the Company to perform its obligations under the loan
documents, except as the Company has disclosed to Agent in writing.
SECTION 11. Reserved.
SECTION 12. Reserved.
SECTION 13. Reserved.
SECTION 14. Other Rights of Agent. The Company shall indemnify and hold Farm Credit and Agent
harmless from and against all liability, cost or damage arising out of this Agreement or any other
loan document or the transactions contemplated hereby and thereby, including, without limitation,
(i) any alleged or actual violation of any Law or Project Approval relating to the Property or the
Improvements and (ii) any condition of the Property or the Improvements whether relating to the
quality of construction or otherwise and whether Agent elects to complete construction upon an
Event of Default or discontinues or suspends construction pursuant to this Section 14. Agent may
commence, appear in or defend any such action or proceeding or any other action or proceeding
purporting to affect the rights, duties or liabilities of the parties hereunder, or the
Improvements, or the Property, or the payment of the Commitment, and the Company agrees to pay all of Agent’s costs and expenses, including its
reasonable attorneys’ fees, in any such actions. The obligations of the Company under this
Subsection 14(E) shall survive the termination of this Agreement. As to any action or inaction
taken by Agent hereunder, Agent shall not be liable for any error of judgment or mistake of fact or
law, absent gross negligence or willful
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| ABE Fairmont, LLC | ||
| Fairmont, Nebraska |
misconduct on its part. The Company’s obligation to
indemnify and hold Agent harmless hereunder will exclude any liability, cost, or damage related to
Agent’s breach of this Agreement or for Agent’s gross negligence or willful misconduct.
SECTION 15. Reserved.
SECTION 16. Reserved.
SECTION 17. Reserved.
SECTION 18. Reserved.
SECTION 19. Remedies Upon Default. In addition to the remedies set forth in the MLA, upon the
occurrence of and during the continuance of each and every Event of Default Agent may (but shall
not be obligated to) take over and complete construction of the Improvements in accordance with
plans and specifications approved by Agent with such changes as Agent may, in its sole discretion,
deem appropriate, all at the risk, cost, and expense of the Company. Agent may assume or reject
any contracts entered into by the Company in connection with the Improvements, and may enter into
additional or different contracts for services, labor, and materials required, in the judgment of
Agent, to complete the construction of the Improvements and may pay, compromise, and settle all
claims in connection with the construction of the Improvements. All sums, including reasonable
attorneys’ fees, charges, or fees for supervision and inspection of the construction, and for any
other necessary purpose in the discretion of Agent, expended by Agent in completing the
construction of the Improvements (whether aggregating more or less than the amount of this
Commitment) shall be deemed advances made by Agent to the Company under this Commitment, and the
Company shall be liable to Agent for the repayment of such sums, together with interest on such
amounts from the date of their expenditure at the default rate specified above. Agent may, in its
sole discretion, at any time, abandon work on the construction of the Improvements after having
commenced such work, and may recommence such work at any time, it being understood that nothing in
this Section shall impose any obligation on Agent to either complete or not to complete the
construction of the Improvements. For the purposes of carrying out the provisions of this Section,
the Company irrevocably appoints Agent, its attorney-in-fact, with full power of substitution, to
execute and deliver all such documents, pay and receive such funds, and take such action as may be
necessary, in the judgment of Agent, to complete the construction of the Improvements.
IN WITNESS WHEREOF, the parties have caused this Supplement to be executed by their duly
authorized officers as of the date shown above.
| FARM CREDIT SERVICES | ABE FAIRMONT, LLC | |||||||||
| OF AMERICA, FLCA | By ADVANCED BIOENERGY, LLC, | |||||||||
| its sole member | ||||||||||
By:
|
/s/ Xxxxx Xxxxx | By: | /s/ Xxxxxxx Xxxxxxxx | |||||||
Title:
|
Vice President | Title: | CEO/CFO | |||||||
