MASTER LOAN AGREEMENT
Exhibit
10.1
THIS MASTER LOAN AGREEMENT is
entered into as of May 3, 2010, between CoBANK, ACB (“CoBank”) and
SOUTH DAKOTA SOYBEAN PROCESSORS, LLC, Volga, South Dakota (the
“Company”).
BACKGROUND
CoBank
and the Company are parties to a Master Loan Agreement dated October 6, 2005, as
amended (the “Existing Agreement”). Pursuant to the terms of the Existing
Agreement, the parties entered into one or more Supplements thereto. CoBank and
the Company now desire to amend and restate the Existing Agreement and to apply
such new agreement to the existing Supplements, as well as any new Supplements
that may be issued thereunder. For that reason and for valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), CoBank and the
Company hereby agree that the Existing Agreement shall be amended and restated
to read as follows:
SECTION 1. Supplements. In the
event the Company desires to borrow from CoBank and CoBank is willing to lend to
the Company, or in the event CoBank and the Company desire to consolidate any
existing loans hereunder, the parties will enter into a Supplement to this
agreement (a ‘Supplement”). Each Supplement will set forth the amount of the
loan, the purpose of the loan, the interest rate or rate options applicable to
that loan, the repayment terms of the loan, and any other terms and conditions
applicable to that particular loan. Each loan will he governed by the terms and
conditions contained in this agreement and in the Supplement relating to the
loan. As of the date hereof, the following Supplements are outstanding hereunder
and shall be governed by the terms and conditions hereof: (A) the Statused
Revolving Credit Supplement dated May 3, 2010 and numbered RIB051S01K; (B) the
Revolving Term Loan Supplement dated May 3, 2010 and numbered R1B051T05F; and
(C) the Revolving Credit Supplement (Letter of Credit) dated May 3, 2010 and
numbered RIB051T06C.
SECTION 2. Availability. Loans
will be made available on any day on which CoBank and the Federal Reserve Banks
are open for business upon the telephonic or written request of the Company.
Requests for loans must be received no later than 12:00 Noon Company’s local
time on the date the loan is desired. Loans will be made available by wire
transfer of immediately available funds to such account or accounts as may be
authorized by the Company. The Company shall furnish to CoBank a duly completed
and executed copy of a CoBank Delegation and Wire and Electronic Transfer
Authorization Form, and CoBank shall be entitled to rely on (and shall incur no
liability to the Company in acting on) any request or direction furnished in
accordance with the terms thereof.
SECTION 3.
Repayment. The Company’s
obligation to repay each loan shall be evidenced by the promissory note set
forth in the Supplement relating to that loan or by such replacement note as
CoBank shall require. CoBank shall maintain a record of all loans, the interest
accrued thereon, and all payments made with respect thereto, and such record
shall, absent proof of manifest error, be conclusive evidence of the outstanding
principal and interest on the loans, All payments shall be made by wire transfer
of immediately available fluids, by check, or by automated clearing house or
other similar cash handling processes as specified by separate agreement between
the Company and CoBank. Wire transfers shall be made to ABA
No. 000000000 for advice to and credit of CoBank (or to such other account as
CoBank may direct by notice). The Company shall give CoBank telephonic notice no
later than 12:00 Noon Company’s local time of its intent to pay by wire and
funds received after 3:00 pm. Company’s local time shall be credited on the next
business day. Checks shall be mailed to XxXxxx, Xxxxxxxxxx 000, Xxxxxx, Xxxxxxxx
00000-0000 (or to such other place as CoBank may direct by notice). Credit for
payment by check will not be given until the later of: (A) the day on which
CoBank receives immediately available funds; or (B) the next business day after
receipt of the check.
SECTION 4. Capitalization. The
Company agrees to acquire equity in CoBank in such amounts and at such times as
CoBank may from time to time require in accordance with its Bylaws and Capital
Plan (as each may be amended from time to time), except that the maximum amount
of equity that the Company may be required to purchase in connection with a loan
may not exceed the maximum amount permitted by the Bylaws at the time the
Supplement relating to such loan is entered into or such loan is renewed or
refinanced by CoBank. The rights and obligations of the parties with respect to
such equity and any patronage or other distributions made by CoBank shall be
governed by CoBank’s Bylaws and Capital Plan (as each may be amended from time
to time).
SECTION 5. Security. The Company’s
obligations under this agreement, all Supplements (whenever executed), and all
instruments and documents contemplated hereby or thereby, shall be secured by a
statutory first lien on all equity which the Company may now own or hereafter
acquire in CoBank. In addition, the Company’s obligations under each Supplement.
(whenever executed) and this agreement shall be secured by a first lien (subject
only to exceptions approved in writing by CoBank) pursuant to all security
agreements, mortgages, and deeds of trust executed by the Company in favor of
CoBank, whether now existing or hereafter entered into. As additional security
for those obligations: (A) the Company agrees to grant to CoBank, by
means of such instruments and documents as CoBank shall requite a first priority
lien on such of its other assets, whether now existing or hereafter acquired, as
CoBank may from time to time require; and (B) the Company agrees to grant to
CoBank, by means of such instruments and documents as CoBank shall require, a
first priority lien on all realty which the Company may from time to time
acquire after the date hereof.
SECTION
6. Conditions Precedent.
(A) Conditions to Initial
Supplement. CoBank’ s
obligation to extend credit under the initial Supplement hereto is
subject to the conditions precedent that CoBank receive, in form and content
satisfactory to CoBank, each of the following:
This Agreement, Etc. A duly
executed copy of this agreement and all instruments and documents contemplated
hereby.
(B) Conditions to Each Supplement.
CoBank’s obligation to extend credit under each Supplement, including
the initial
Supplement, is subject to the conditions precedent that CoBank receive, in form
and content satisfactory to CoBank, each of the following:
(1) Supplement. A duly executed
copy of the Supplement and all instruments and documents contemplated
thereby.
(2) Evidence of Authority. Such
certified board resolutions, certificates of incumbency, and other evidence that
CoBank may require that the Supplement, all instruments and documents executed
in connection therewith, and, in the case of initial Supplement hereto, this
agreement and all instruments and documents executed in connection herewith,
have been duly authorized and executed.
(3) Fees and Other Charges. All
fees and other charges provided for herein or in the
Supplement.
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(4) Evidence of Perfection, Etc.
Such evidence as CoBank may require that CoBank has a duly perfected first
priority lien on all security for the Company’s obligations, and that the
Company is in compliance with Section 8(D) hereof.
(C) Conditions to Each Loan.
CoBank’s obligation under each Supplement to make any loan to the Company
thereunder is subject to the condition that no “Event of Default” (as defined in
Section 11 hereof) or event which with the giving of notice and/or the passage
of time would become an Event of Default hereunder (a “Potential Default”),
shall have occurred and be continuing.
SECTION
7. Representations and Warranties.
(A) This Agreement. The Company
represents and warrants to CoBank that as of the date
of this
agreement:
(1) Compliance. The Company and,
to the extent contemplated hereunder, each “Subsidiary” (as defined below), is
in compliance with all of the terms of this agreement, and no Event of Default
or Potential Default exists hereunder.
(2) Subsidiaries. The Company has
the following “Subsidiary(ies)” (as defined below): Urethane Soy Systems
Company. For purposes hereof, a “Subsidiary” shall mean a corporation of which
shares of stock having ordinary voting power to elect a majority of the board of
directors or other managers of such corporation are owned, directly or
indirectly, by the Company.
(B) Each Supplement. The execution
by the Company of each Supplement hereto shall constitute a representation and
warranty to CoBank that:
(1) Applications. Each representation and
warranty and all information set forth in any application or other documents
submitted in connection with, or to induce CoBank to enter into, such
Supplement, is correct in all material respects as of the date of the
Supplement.
(2) Conflicting Agreements, Etc.
This agreement, the Supplements, and all security and other instruments and
documents relating hereto and thereto (collectively, at any time, the “Loan
Documents”), do not conflict with, or require the consent of any party to, any
other agreement to
which the Company is a party or by which it or its property may be bound or
affected, and do not conflict with any provision of the Company’s bylaws,
articles of incorporation, or other organizational documents.
(3) Compliance. The Company and,
to the extent contemplated hereunder, each Subsidiary, is in compliance with all
of the terms of the Loan Documents (including, without limitation, Section 8(A)
of this agreement on eligibility to borrow from CoBank).
(4) Binding Agreement. The Loan
Documents create legal, valid, and binding obligations of the Company which are
enforceable in accordance with their terms, except to the extent that
enforcement may be
limited by applicable bankruptcy, insolvency, or similar laws affecting
creditors’ rights generally.
SECTION 8. Affirmative
Covenants. Unless otherwise agreed to in writing by CoBank while this
agreement is in effect, the Company agrees to and with respect to Subsections
8W) through 8(G) hereof, agrees to cause each Subsidiary to:
(A) Eligibility. Maintain its
status as an entity eligible to borrow from CoBank.
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(B) Corporate Existence, Licenses,
Etc. (1) Preserve and keep in full force and effect its existence and
good standing in the jurisdiction of its incorporation or formation; (2) qualify
and remain qualified to transact business in all jurisdictions where such
qualification is required; and (3) obtain and maintain all licenses,
certificates, permits, authorizations, approvals, and the like which are
material to the conduct of its business or required by law, rule, regulation,
ordinance, code, order, and the like (collectively, “Laws”).
(C) Compliance with Laws. Comply
in all material respects with all applicable Laws, including, without
limitation, all Laws relating to environmental protection and any patron or
member investment program that it may have. In addition, the Company agrees to
cause all persons occupying or present on any of its properties, and to cause
each Subsidiary to cause all persons occupying or present on any of its
properties, to comply in all material respects with all environmental protection
Laws.
(D) Insurance. Maintain insurance
with insurance companies or associations acceptable to CoBank in such amounts
and covering such risks as are usually carried by companies engaged in the same
or similar business and similarly situated, and make such increases in the type
or amount of coverage as CoBank may request. All such policies insuring any
collateral for the Company’s obligations to CoBank shall have mortgagee or
lender loss payable clauses or endorsements in form and content acceptable to
CoBank. At CoBank’s request, all policies (or such other proof of compliance
with this Subsection as may be satisfactory to CoBank) shall be delivered to
CoBank.
(E) Property Maintenance. Maintain
all of its property that is necessary to or useful in the proper conduct of its
business in good working condition, ordinary wear and tear
excepted.
(F) Books and Records. Keep
adequate records and books of account in which complete entries will be made in
accordance with generally accepted accounting principles (“GAAP”) consistently
applied.
(G) Inspection. Permit
CoBank or its agents, upon reasonable notice and during normal business hours or
at such other times as the parties may agree, to examine its properties, books,
and records, and to discuss its affairs, finances, and accounts, with its
respective officers, directors, employees, and independent certified public
accountants.
(H) Reports
and Notices. Furnish to CoBank:
(1) Annual Financial Statements.
As soon as available, but in no event more than 90 days after the end of each
fiscal year of the Company occurring during the term hereof, annual consolidated
and consolidating financial statements of the Company and its consolidated
Subsidiaries, if any, prepared in accordance with OAAP consistently applied.
Such financial statements shall: (a) be audited by independent certified public
accountants selected by the Company and acceptable to CoBank; (b) be accompanied
by a report of such accountants containing an opinion thereon acceptable to
CoBank; (c) be prepared in reasonable detail and in comparative form; and (d)
Include a balance sheet, a statement of income, a statement of retained
earnings, a statement of cash flows, and all notes and schedules relating
thereto.
(2) Interim Financial Statements.
As soon as available, but in no event more than 30 days after the end of
each month, a consolidated balance sheet of the Company and its consolidated
Subsidiaries, if any, as of the end of such month, a consolidated statement of
income for the Company and its consolidated Subsidiaries, if any, for such
period and for the period year to date, and such other interim statements as
CoBank may specifically request, all prepared in reasonable detail and in
comparative form in accordance with GAAP consistently applied and, if required
by written notice from CoBank, certified by an authorized officer or employee of
the Company acceptable to CoBank.
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(3) Notice of Default. Promptly
after becoming aware thereof, notice of the occurrence of an Event of Default or
a Potential Default.
(4) Notice of Non-Environmental
Litigation. Promptly after the commencement thereof, notice of the
commencement of all actions, suits, or proceedings before any court, arbitrator,
or governmental department, commission, hoard, bureau, agency, or
instrumentality affecting the Company or any Subsidiary which, if determined
adversely to the Company or any such Subsidiary, could have a material adverse
effect on the financial condition, properties, profits, or operations of the
Company or any such Subsidiary.
(5) Notice of Environmental Litigation,
Etc. Promptly after receipt thereof, notice of the receipt of all
pleadings, orders, complaints, indictments, or any other communication alleging
a condition that may require the Company or any Subsidiary to undertake or to
contribute to a cleanup or other response under environmental Laws, or which
seek penalties, damages, injunctive relief, or criminal sanctions related to
alleged violations of such Laws, or which claim personal injury or property
damage to any person as a result of environmental factors or
conditions.
(6) Bylaws and Articles. Promptly
after any change in the Company’s bylaws or articles of incorporation (or like
documents), copies of all such changes, certified by the Company’s
Secretary.
(7) Compliance Certificates.
Together with each set of financial statements furnished to CoBank pursuant to
Subsection (H)(2) hereof for a period corresponding to a period for which one or
more of the financial covenants set forth in Section 10 hereof are required to
be tested, a certificate of an officer or employee of the Company acceptable to
CoBank setting forth calculations showing compliance with each of the financial
covenants that require compliance at the end of the period for which the
statements are being furnished.
(8) Other Information. Such other
information regarding the condition or operations, financial or otherwise, of
the Company or any Subsidiary as CoBank may from time to time reasonably
request, including but not limited to copies of all pleadings, notices, and
communications referred to in Subsections 8(H)(4) and (5) above.
(I) Post-Closing
Title Policy.
(1) On
or before November 1, 2010, provide CoBank with an ALTA lender’s policy of title
insurance in the face amount of $22,000,000.00 insuring the Company mortgage(s)
or deed(s) of trust to CoBank as first priority lien(s) on the Company Property,
subject only to exceptions approved in writing by CoBank.
(2) The
Company agrees to pay 100% of the cost of the policy, together with such
endorsements as may be reasonably requested by CoBank, and also agrees that if,
for any reason, a final lender’s policy is not issued to CoBank by November 1,
2010, or such later date as may be agreeable to CoBank, then an “Event of
Default” shall he deemed to have occurred under this agreement.
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(J) Post-Closing Guaranty and Related
Documents. On or before August 1, 2010, provide to CoBank; (1) A
guarantee of payment from Urethane Soy Systems Company; (2) such certified board
resolutions, evidence of incumbency, and other evidence as CoBank may require
that the guarantee and all instruments and documents executed in connection
therewith have been duly authorized and executed; and (3) a Security Agreement
granting to CoBank a first lien on all personal property of the guarantor,
whether now existing or hereafter acquired. if, for any reason, the Company does
not fulfill the obligations in the Section 8(J) by August 1, 2010 or such later
date as may be agreeable to CoBank, then an “Event of Default’ shall be deemed
to have occurred under this agreement.
SECTION 9. Negative Covenants.
Unless otherwise agreed to in writing by CoBank, while this agreement is in
effect the Company will not:
(A) Borrowings. Create, incur,
assume, or allow to exist, directly or indirectly, any indebtedness or liability
for borrowed money (including trade or bankers’ acceptances), letters of credit,
or the deferred purchase price of property or services (including capitalized
leases), except for: (1) debt to CoBank; (2) accounts payable to trade creditors
incurred in the ordinary course of business; (3) current operating liabilities
(other than for borrowed money) incurred in the ordinary course of business; (4)
indebtedness of the Company under its member or patron investment program,
provided, however, that such
indebtedness is expressly stated to be subordinate in right of payment to all
obligations of the Company to CoBank; and (5) debt of the Company to
miscellaneous creditors in an amount not to exceed $300,000.00.
(B) Liens. Create, incur, assume,
or allow to exist any mortgage, deed of trust, pledge, lien (including the lien
of an attachment, judgment, or execution), security interest, or other
encumbrance of any kind upon any of its property, real or personal
(collectively, “Liens”). The forgoing restrictions shall not apply to: (I) Liens
in favor of CoBank; (2) Liens for taxes, assessments, or governmental charges
that are not past due; (3) Liens and deposits under workers’ compensation,
unemployment insurance, and social security Laws; (4) Liens and deposits to
secure the performance of bids, tenders, contracts (other than contracts for the
payment of money), and like obligations arising in the ordinary course of
business as conducted on the date hereof; (5) Liens imposed by Law in favor of
mechanics, materialmen, warehousemen, and like persons that secure obligations
that are not past due; (6) easements, rights-of-way, restrictions, and other
similar encumbrances which, in the aggregate, do not materially interfere with
the occupation, use, and enjoyment of the property or assets encumbered thereby
in the normal course of its business or materially impair the value of the
property subject thereto; and (7) Liens in favor of miscellaneous creditors to
secure indebtedness permitted hereunder.
(C) Mergers, Acquisitions, Etc.
Merge or consolidate with any other entity or acquire all or a material part of
the assets of any person or entity, or form or create any new Subsidiary or
affiliate, or commence operations under any other name, organization, or entity,
including any joint venture.
(D) Transfer of Assets. Sell,
transfer, lease, or otherwise dispose of any of its assets, except in the
ordinary course of business.
(E) Loans and Investments. Make
any loan or advance to any person or entity, or purchase any capital stock,
obligations or other securities of, make any capital contribution to, or
otherwise invest in any person or entity, or form or create any partnerships or
joint ventures except: (1) trade credit extended in the ordinary course of
business; and (2) loans or advances by the Company to Urethane Soy Systems in an
aggregate principal amount not to exceed $8,500,000.00 at any one time
outstanding.
(F) Contingent Liabilities.
Assume, guarantee, become liable as a surety, endorse, contingently agree to
purchase, or otherwise be or become liable, directly or indirectly (including,
hut not limited to, by means of a maintenance agreement, an asset or stock
purchase agreement, or any other agreement designed to ensure any creditor
against loss), for or on account of the obligation of any person or entity,
except by the endorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of the Company’s
business.
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(G) Change in Business. Engage in
any business activities or operations substantially different from or unrelated
to the Company’s present business activities or operations.
(H) Dividends, Etc. Declare or pay
any dividends, or make any distribution of assets to the stockholders, or
purchase, redeem, retire or otherwise acquire for value any of its capital
stock, or allocate or otherwise set apart any sum for any of the foregoing,
except that in any fiscal year of the Company, the Company may pay dividends in
an amount up to 50% of its consolidated net income for the prior fiscal year,
provided that no Event of Default or Potential Default shall have occurred and
be continuing or would result therefrom.
(I) Leases. Create, incur, assume,
or permit to exist any obligation as lessee under operating leases which should
be capitalized in accordance with GAAP for the rental or hire of any real or
personal property, except: (1) leases of soybean oil storage tank space with
aggregate annual payments not to exceed $400,000.00; (2) leases of up to 435
tanker and/or xxxxxx railroad cars under terms and conditions acceptable to
CoBank; (3) Leases of other railroad cars, excluding those allowed in (2) above,
with original maturities of less than sixty (60) months at the Company’s
discretion; and (4) other leases, excluding those allowed above, which do not in
the aggregate require the Company to make scheduled payments to the lessors in
any fiscal year of the company during the term hereof in excess of
$800,000.00.
SECTION 10. Financial
Covenants. Unless otherwise agreed to in writing, while this agreement is
in effect:
(A) Working Capital. The Company
and its consolidated Subsidiaries will have an excess of consolidated current
assets over consolidated current liabilities (both as determined in accordance
with GAAP consistently applied) of not less than: (1) $7,500,000.00 at the end
of each fiscal year of the Company; and (2) $6,000,000.00 at the end of each
other period for which financial statements are required to be furnished
pursuant to Section 8(H) hereof, except that in determining consolidated current
assets, any amount available under the Revolving Term Loan Supplement (less the
amount that would be considered a current liability under GAAP if fully
advanced) hereto may be included. Furthermore, also in determining consolidated
current assets over consolidated current liabilities, any “Unspent Construction
Designated Funds” (as defined in the Compliance Certificates), shall be
deducted.
(B) Debt Service Coverage Ratio.
The Company and its consolidated Subsidiaries will have at the end of each
fiscal year of the Company a “Debt Service Coverage Ratio” (as defined below)
for such year of not less than 1.2 to 1.0. For purposes hereof, the term “Debt
Service Coverage Ratio” shall mean the following (all as calculated on a
consolidated basis for the most current year end in accordance with (IAAP
consistently applied): (1) net income (after taxes), plus depreciation and
amortization, minus non-cash patronage income, minus extraordinary gains (+
losses), minus gain (+ loss) on asset sale; divided by (2) all current portion
of long term debt for the prior period (previous year-end).
SECTION 11. Events of Default.
Each of the following shall constitute an “Event of Default” under this
agreement:
(A) Payment Default. The Company
should fail to make any payment to, or to purchase any equity in, CoBank when
due.
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(B) Representations and
Warranties. Any representation or warranty made or deemed made by the
Company herein or in any Supplement, application, agreement, certificate, or
other document related to or furnished in connection with this agreement or any
Supplement, shall prove to have been false or misleading in any material respect
on or as of the date made or deemed made.
(C) Certain Affirmative Covenants.
The Company or, to the extent required hereunder, any Subsidiary should fail to
perform or comply with Sections 8(A) through 8(H)(2), (H)(6) and 8(H)(7) or any
reporting covenant set forth in any Supplement hereto, and such failure
continues for 15 days after written notice thereof shall have been delivered by
CoBank to the Company.
(D) Other Covenants and
Agreements. The Company or, to the extent required hereunder, any
Subsidiary should fall to perform or comply with any other covenant or agreement
contained herein or in any other Loan Document or shall use the proceeds of any
loan for an unauthorized purpose.
(E) Cross-Default. The Company
should, after any applicable grace period, breach or be in default under the
terms of any other agreement between the Company and CoBank, or between the
Company and any affiliate of CoBank, including without limitation Farm Credit
Leasing Services Corporation.
(F) Other Indebtedness. The
Company or any Subsidiary should fail to pay when due any indebtedness to any
other person or entity for borrowed money or any long-term obligation for the
deferred purchase price of property (including any capitalized lease), or any
other event occurs which, under any agreement or instrument relating to such
indebtedness or obligation, has the effect of accelerating or permitting the
acceleration of such indebtedness or obligation, whether or not such
indebtedness or obligation is actually accelerated or the right to accelerate is
conditioned on the giving of notice, the passage of time, or
otherwise.
(G) Judgments. A judgment, decree,
or order for the payment of money shall be rendered against the Company or any
Subsidiary and either: (1) enforcement proceedings shall have been commenced;
(2) a Lien prohibited under Section 9(B) hereof shall have been obtained; or (3)
such judgment, decree, or order shall continue unsatisfied and in effect for a
period of 20 consecutive days without being vacated, discharged, satisfied, or
stayed pending appeal.
(H) Insolvency, Etc. The Company
or any Subsidiary shall: (1) become insolvent or shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they
come due; or (2) suspend its business operations or a material part thereof or
make an assignment for the benefit of creditors; or (3) apply for, consent to,
or acquiesce in the appointment of a trustee, receiver, or other custodian for
it or any of its property or, in the absence of such application, consent, or
acquiescence, a trustee, receiver, or other custodian is so appointed; or (4)
commence or have commenced against it any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
Law of any jurisdiction.
(I) Material Adverse Change. Any
material adverse change occurs, as reasonably determined by CoBank, in the
Company’s financial condition, results of operation, or ability to perform its
obligations hereunder or under any instrument or document contemplated
hereby.
(J) Revocation of Guaranty. Any
guaranty, suretyship, subordination agreement, maintenance agreement, or other
agreement furnished in connection with the Company’s obligations hereunder and
under any Supplement shall, at any time, cease to be in full force and effect,
or shall be revoked or declared null and void, or the validity or enforceability
thereof shall be contested by the guarantor, surety or other maker thereof (the
“Guarantor”), or the Guarantor shall deny any further liability or obligation
thereunder, or shall fall to perform its obligations thereunder, or any
representation or warranty set forth therein shall be breached, or the Guarantor
shall breach or be in default under the terms of any other agreement with CoBank
(including any loan agreement or security agreement), or a default set forth in
Subsections (F) through (H) hereof shall occur with respect to the
Guarantor.
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SECTION 12. Remedies. Upon the
occurrence and during the continuance of an Event of Default or any Potential
Default, CoBank shall have no obligation to continue to extend credit to the
Company and may discontinue doing so at any time without prior notice. For all
purposes hereof, the term “Potential Default” means the occurrence of any event
which, with the passage of time or the giving of notice or both would become an
Event of Default. In addition, upon the occurrence and during the continuance of
any Event of Default, CoBank may, upon notice to the Company, terminate any
commitment and declare the entire unpaid principal balance of the loans, all
accrued interest thereon, and all other amounts payable under this agreement,
all Supplements, and the other Loan Documents to be immediately due and payable.
Upon such a declaration, the unpaid principal balance of the loans and all such
other amounts shall become immediately due and payable, without protest,
presentment, demand, or further notice of any kind, all of which are hereby
expressly waived by the Company. In addition, upon such an
acceleration:
(A) Enforcement. CoBank may
proceed to protect, exercise, and enforce such rights and remedies as may be
provided by this agreement, any other Loan Document or under Law. Each and every
one of such rights and remedies shall be cumulative and may be exercised from
time to time, and no failure on the part of CoBank to exercise, and no delay in
exercising, any right or remedy shall operate as a waiver thereof, and no single
or partial exercise of any right or remedy shall preclude any other or future
exercise thereof, or the exercise of any other right. Without limiting the
foregoing, CoBank may hold and/or set off and apply against the Company’s
obligation to CoBank the proceeds of any equity in CoBank, any cash collateral
held by CoBank, or any balances held by CoBank for the Company’s account
(whether or not such balances are then due).
(B) Application of Funds. CoBank
may apply all payments received by it to the Company’s obligations to CoBank in
such order and manner as CoBank may elect in its sole discretion.
In
addition to the rights and remedies set forth above: (1) upon the occurrence and
during the continuance of an Event of Default, then at CoBank’s option in each
instance, the entire indebtedness outstanding hereunder and under all
Supplements shall bear interest from the date of such Event of Default until
such Event of Default shall have been waived or cured in a manner satisfactory
to CoBank at 4.00% per annum in excess of the rate(s) of interest that would
otherwise be in effect on that loan; and (2) after the maturity of any loan
(whether as a result of acceleration or otherwise), the unpaid principal balance
of such loan (including without limitation, principal, interest, fees and
expenses) shall automatically bear interest at 4.00% per annum in excess of the
rate(s) of interest that would otherwise be in effect on that loan. All interest
provided for herein shall be payable on demand and shall be calculated on the
basis of a year consisting of 360 days.
SECTION 13. Broken Funding
Surcharge. Notwithstanding any provision contained in any Supplement
giving the Company the right to repay any loan prior to the date it would
otherwise he due and payable, the Company agrees to provide three Business Days’
prior written notice for any prepayment of a fixed rate balance and that in the
event it repays any fixed rate balance prior to its scheduled due date or prior
to the last day of the fixed rate period applicable thereto (whether such
payment is made voluntarily, as a result of an acceleration, or otherwise), the
Company will pay to CoBank a surcharge in an amount equal to the greater of: (A)
an amount which would result in CoBank being made whole (on a present value
basis) for the actual or imputed funding losses incurred by CoBank as a result
thereof; or (B) $300.00. Notwithstanding the foregoing, in the event any fixed
rate balance is repaid as a result of the Company refinancing the loan with
another lender or by other means, then in lieu of the foregoing, the Company
shall pay to CoBank a surcharge in an amount sufficient (on a present value
basis) to enable CoBank to maintain the yield it would have earned during the
fixed rate period on the amount repaid. Such surcharges will be calculated in
accordance with methodology established by CoBank (a copy of which will be made
available to the Company upon request).
9
SECTION 14. Complete Agreement,
Amendments. This agreement, all Supplements, and all other instruments
and documents contemplated hereby and thereby, are intended by the parties to be
a complete and final expression of their agreement. No amendment, modification,
or waiver of any provision hereof or thereof, and no consent to any departure by
the Company herefrom or therefrom, shall be effective unless approved by CoBank
and contained in a writing signed by or on behalf of CoBank, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. In the event this agreement is amended or
restated, each such amendment or restatement shall he applicable to all
Supplements hereto.
SECTION 15. Other Types of
Credit. From time to time, CoBank may issue letters of credit or extend
other types of credit to or for the account of the Company. In the event the
parties desire to do so under the terms of this agreement, such extensions of
credit may be set forth in any Supplement hereto and this agreement shall be
applicable thereto.
SECTION 16. Applicable Law.
Without giving effect to the principles of conflict of laws and except to the
extent governed by federal law, the Laws of the State of Colorado, without
reference to choice of law doctrine, shall govern this agreement, each
Supplement and any other Loan Documents for which Colorado is specified as the
applicable law, and all disputes and matters between the parties to this
agreement, including all disputes and matters whatsoever arising under, in
connection with or incident to the lending and/or leasing or other business
relationship between the parties, and the rights and obligations of the parties
to this agreement or any other Loan Documents by and between the parties for
which Colorado is specified as the applicable law.
SECTION 17. Notices. All
notices hereunder shall be in writing and shall be deemed to be duly given upon
delivery if personally delivered or sent by telegram or facsimile transmission,
or three days after mailing if sent by express, certified or registered mail, to
the parties at the following addresses (or such other address for a party as
shall be specified by like notice):
|
If
to CoBank, as follows:
|
If
to the Company, as follows:
|
|
For
general correspondence purposes:
|
South
Dakota Soybean Processors, LLC
|
|
X.X.
Xxx 0000
|
Xxx
000
|
|
Xxxxxx,
Xxxxxxxx 00000-0000
|
Volga,
Xxxxx Xxxxxx 00000
|
|
For
direct delivery purposes, when desired:
|
|
|
0000
Xxxxx Xxxxxx Xxxxxx
|
|
|
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
|
|
|
Attention:
Credit Information Services
|
Attention:
CEO
|
|
Fax
No.: (000) 000-0000
|
Fax
No.: (000) 000-0000
|
SECTION 18. Taxes and Expenses.
To the extent allowed bylaw, the Company agrees to pay all reasonable
out-of-pocket costs and expenses (including the fees and expenses of counsel
retained or employed by CoBank) incurred by CoBank and any participants from
CoBank in connection with the origination, administration, collection, and
enforcement of this agreement and the other Loan Documents, including, without
limitation, all costs and expenses incurred in perfecting, maintaining,
determining the priority of, and releasing any security for the Company’s
obligations to CoBank, and any stamp, intangible, transfer, or like tax payable
in connection with this agreement or any other Loan Document.
10
SECTION 19. Effectiveness and
Severability. This agreement shall continue in effect until:
(A) all
indebtedness and obligations of the Company under this agreement, all
Supplements, and all other Loan Documents shall have been paid or satisfied; (B)
CoBank has no commitment to extend credit to or for the account of the Company
under any Supplement; and (C) either party sends written notice to the other
terminating this agreement. Any provision of this agreement or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
thereof.
SECTION 20. Successors and
Assigns. This agreement, each Supplement, and the other Loan Documents
shall be binding upon and inure to the benefit of the Company and CoBank and
their respective successors and assigns, except that the Company may not assign
or transfer its rights or obligations under this agreement, any Supplement or
any other Loan Document without the prior written consent of
CoBank.
SECTION 21. Participations,
Etc. From time to time, CoBank may sell to one or more banks, financial
institutions, or other lenders a participation in one or more of the loans or
other extensions of credit made pursuant to this agreement. However, no such
participation shall relieve CoBank of any commitment made to the Company
hereunder. In connection with the foregoing, CoBank may disclose information
concerning the Company and its Subsidiaries, if any, to any participant or
prospective participant, provided that such participant or prospective
participant agrees to keep such information confidential. Patronage
distributions in the event of a sale of a participation interest shall be
governed by CoBank’s Bylaws and Capital Plan (as each may be amended from time
to time). A sale of a participation interest may include certain voting rights
of the participants regarding the loans hereunder (including without limitation
the administration, servicing, and enforcement thereof). CoBank agrees to give
written notification to the Company of any sale of a participation
interest.
IN WITNESS WHEREOF, the
parties have caused this agreement to be executed by their duly authorized
officers as of the date shown above.
|
CoBANK,
ACB
|
SOUTH
DAKOTA SOYBEAN PROCESSORS, LLC
|
||||
|
By:
|
/s/ Xxxxx Xxxxxx
|
By:
|
/s/ Xxxxxx Xxxxxxxxxxxx
|
||
|
Title:
|
Assistant Corporate
Secretary
|
Title:
|
CEO
|
||
11
COMPLIANCE
CERTIFICATE
South Dakota Soybean Processors,
LLC (00000000)
CoBank,
ACB
|
ATTN:
|
CIServices
|
X.X. Xxx 0000
Xxxxxx,
Xxxxxxxx 00000
or
CoBank,
ACB
|
ATTN:
|
ClServices
|
0000
Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
|
The following is bass on
the reporting period ending (date):
|
________________
|
Working
Capital Calculation
|
A.
|
Consolidated
Current Assets
|
$____________
|
|
B.
|
Minus: Consolidated Current
Liabilities
|
<$____________>
|
|
C.
|
Add:
Unadvanced Term Revolver*
|
$____________
|
*Less any
amount considered a current liability per GAAP and not included
in “B” above”
|
D.
|
Equals:
Adjusted Consolidated Working Capital per GAAP
|
$_____________
|
|
B.
|
Minus: Unspent
Construction Designated Funds**
|
<$_____________>
|
|
**Unspent
Construction Designated Funds Calculation
|
|
|
1)
Deodorizer Project Budget (as approved by CoBank)
|
$9,002,202.00
|
|
2)
Minus:
Amount Spent/Capitalized to
date
|
<$____________>
|
|
3)
Equals: Unspent Construction Designated Funds
|
$____________
|
|
F.
|
Working
Capital for Covenant Reporting***
|
S____________
|
***Requirement
is >$6 million for interim monthly statements and >$7.5 million for fiscal
year end
I have reviewed the above calculations and
the certified consolidated interim financial statement(s) dated as of
______________ and, based upon this review, hereby certify that to the best of my knowledge the
above calculations are accurate and complete for the period reflected.
|
South
Dakota Soybean Processors, LLC
|
|||
|
Volga,
South Dakota
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Date:
|
|||
