THIS MASTER CREDIT AGREEMENT is made and entered into as of December 29, 2015 by and among ABE South Dakota, LLC, a Delaware
limited liability company, (“Borrower”), AGCOUNTRY FARM CREDIT SERVICES, PCA (“Lender”), a federal production credit association organized under the Farm Credit Act of 1971, as amended.
A. Borrower is
the owner and operator of dry mill, fuel grade ethanol and related byproducts production facilities located in Aberdeen and Huron, South Dakota (the “Business”).
B. Subject to the terms and conditions hereof and under the other Loan Documents, Lender agrees to provide financing to Borrower in connection
with the Business.
C. Borrower may request, and Lender in its discretion may provide to Borrower, additional loans and other credit
accommodations from time to time.
In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
Section 1.01 Definitions. Capitalized terms used herein have the meanings set forth on Attachment I hereto.
Section 1.02 Master Agreement/Supplements. Additional terms of each loan, credit facility and other credit accommodation
are set forth in supplements (“Supplements”) to this Master Credit Agreement (“Master Agreement”). The terms of this Master Agreement and the Supplements supersede all prior agreements and arrangements
between Borrower and Lender related to the Loans and govern the relationship and agreements between Borrower and Lender in respect of the Loans. In the event Borrower and Lender agree to additional loans, credit facilities, and/or other credit
accommodations from time to time in the future, Borrower and Lender may enter into additional Supplements to this Master Agreement. Each Supplement will set forth additional terms and conditions specific to such loans and credit facilities,
including without limitation, the applicable:
(a) amount of the loan and/or credit facility;
(b) interest rate and rate options,
(c) fees, costs and expenses; and/or
(d) repayment terms.
In the event of any inconsistency between the terms set forth in the Master Agreement and any Supplement, the
terms of the applicable Supplement will control to the extent provided in such Supplement. Unless otherwise provided in a Supplement, each Supplement applies solely to the Loans described therein. The Supplements, including all Supplements entered
into as the date hereof and all future Supplements (when they become effective) are hereby incorporated by reference. This Master Agreement and all present and future Supplements are collectively referred to as the “Credit
Agreement,” or this “Agreement.”
Section 1.03 Notes. Each Supplement may be
accompanied by one or more Notes made payable to the order of Lender by Borrower.
Section 1.04 Default Interest. Upon
the occurrence and during the continuance of a Default or Event of Default or after acceleration, Borrower will pay interest (“Default Interest”) with respect to the Loans at the rate otherwise applicable plus an
additional two hundred basis points per annum (2.00%). Default Interest is payable on demand. The Default Interest rate will apply whether or not an affected Lender has exercised its option to accelerate the maturity of the Loans and declare the
entire principal balance due and payable.
Section 1.05 Interest Generally; Maximum Rate. Lender’s internal
records of applicable interest rates are determinative in the absence of manifest error. In the event any Governmental Authority subjects Lender to any new or additional charge, fee, withholding or tax of any kind with respect to any Loan (other
than taxes based on (or determined solely by) Lender’s net income), or changes the method of taxation of any Loan (other than taxes based on (or determined solely by) Lender’s net income), or changes the reserve, capital or deposit
requirements applicable to any Loan, Borrower will pay such additional amounts as will compensate Lender for such cost (including opportunity cost) or lost income resulting therefrom as reasonably determined by Lender. Notwithstanding anything to
the contrary herein or in any Supplement, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which may be treated as interest on such Loan under applicable law (collectively, the
“Charges”) exceed the maximum lawful rate of interest (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by Lender, the rate of interest payable in respect of the
Loans, together with all Charges payable in respect thereof, will be limited to the Maximum Rate; provided, such Charges may be applied by Lender and collected over a longer period of time to avoid application of a rate that exceeds the Maximum
Rate. Any amount paid in excess of the Maximum Rate will be applied to principal and other amounts outstanding in the order Lender deems appropriate.
Section 1.06 Payments Generally. All payments will be made to Lender at its address set forth in Section 8.01
in U.S. Dollars and in immediately available funds, without set-off, deduction, or counterclaim, not later than 11:00 A.M. (Fargo, North Dakota time) on the date on which such payment is due, and each payment made after such time on such due date
will be deemed to have been made on the next succeeding Business Day. All payments may be applied by Lender to principal, interest, fees and other amounts in any order which Lender elects in its sole reasonable discretion. Whenever any payment is
stated to be due on a day that is not a Business Day, such payment will be due and payable on the next succeeding Business Day, not later than 11:00 A.M., and such extension of time will in such case be included in the computation of the payment of
interest and fees, as the case may be.
Section 1.07 Computations. Computations of interest and fees (to the extent
computed on the basis of days elapsed) hereunder will be made on the basis of a year of 360 days with twelve 30 day months, including the first day but excluding the last day, occurring in the period for which such interest or fees are payable. Each
determination by Lender of an interest amount or fee hereunder will be final, conclusive, and binding for all purposes, except in the event of manifest error. All interest and fees will be considered earned when due.
Section 1.08 Prepayments.
(a) Subject to applicable fees and charges and such other terms and conditions as set forth in any applicable Supplement,
Borrower may prepay the Loans, in whole or in part at any time and from time to time, by giving irrevocable written notice (or telephonic notice promptly confirmed in writing) to Lender not less than five (5) Business Days prior to any such
prepayment; provided, that the amount of any such prepayment may not be less than $100,000. Each such notice will be irrevocable and will specify the proposed date of such prepayment (which shall be any regularly scheduled monthly payment date,
unless the entire outstanding amount of the Loans is to be repaid) and the principal amount to be prepaid. The amount specified in such notice will be due and payable on the date designated in such notice, together with accrued interest on the
amount so prepaid and any prepayment fee or premium payable in connection therewith.
(b) If Borrower issues any membership
interests, any other equity interests, or any debt securities (other than Indebtedness permitted by Section 6.01), then no later than the Business Day following the date of receipt of the proceeds thereof, Borrower must prepay the Loans in an
amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith; provided, that no such prepayment is required in the event Borrower issues membership
interests or other equity interests and the proceeds of such issuance are invested in assets that constitute Collateral subject to Lender’s first priority Lien under the Loan Documents. Any such prepayment will applied in accordance with
paragraph (c) below.
(c) Any prepayments will be applied as follows: first to fees and reimbursable expenses
of Lender then due and payable pursuant to any of the Loan Documents; second to interest then due and payable on the Loans; third pro rata to the principal balance of each term loan outstanding in inverse order of maturity, until each
loan is paid in full; and fourth pro rata to the principal balance outstanding under each revolving and other open-end credit facility until all such amounts are paid in full.
(d) Borrower will pay to Lender a prepayment premium in connection with any
prepayment of the Loans as a result of a refinance or payoff through sources other than from Borrower’s cash flow from operating activities as follows:
(i) 2.0% of the principal balance of the Loans so prepaid during the during the first twelve (12) months following the
(ii) 1.0% of the principal balance of the Loans so prepaid during the thirteenth (13) through the
twenty-fourth (24) month following the Closing Date; and
(iii) 0.0% thereafter.
Borrower agrees that the prepayment premium is paid as a fee for the right to prepay, and that the prepayment premium does not constitute
liquidated damages or a prepayment penalty.
Section 1.09 Payments After Default; Proceeds of Collateral. All payments,
proceeds, and other amounts received by Lender after acceleration of the Obligations under Section 8.02(c), or from the sale or other liquidation of Collateral during the continuance of an Event of Default, will be applied in accordance
with Section 1.08(c). After all the Obligations (including without limitation, all contingent Obligations, other than any inchoate indemnification obligations under Section 8.03) have been paid and satisfied in full, all Commitments
have been terminated and all other obligations of Borrower to Lender have been otherwise satisfied, any remaining proceeds of Collateral will be delivered to the Person entitled thereto as determined by applicable law or court order or the Loan
Section 1.10 Origination Fee. Borrower agrees to pay to Lender any origination fee or other fees as set
forth in any Supplement. In addition to fees payable in connection with the specific Loans under the Supplements, Borrower agrees to pay to Lender (a) a one-time lead agent fee of $150,000 at closing; (b) a one-time upfront fee of $75,000
at closing; and (c) an annual administrative fee of $10,000 at closing and on each anniversary of the Closing Date at any time in which any amount is outstanding or any commitment is in effect hereunder. Borrower agrees that all fees, including
any fees paid in connection with any term sheet or conditional commitment, are considered fully earned by Lender when they become due and payable (the “Fees”).
Section 1.11 Collateral. The Obligations are secured by Lender’s Lien on the Collateral, subject only to the Permitted
Encumbrances. Borrower hereby pledges, mortgages, transfers, assigns, sets aside, and grants a security interest to Lender in the Collateral.
Section 1.12 Priority Among Loans. Except to the extent any Loan is specifically subordinated to one or more other Loans,
each Loan will be pari passu with all other Loans in all respects.
Section 1.13 Advances. Lender is authorized
and directed to credit the account Borrower designates in writing for all Advances made hereunder. Lender is authorized, in Lender’s sole discretion, to advance Loan funds for any amount Borrower is obligated to pay hereunder.
Section 2.01 Conditions To Effectiveness. Lender will have no obligation under this Agreement or any other Loan Document
until each of the following conditions is satisfied (or waived in accordance with Section 8.02) except to the extent Lender has agreed to accept satisfaction of such conditions as set forth in the Post-Closing Agreement between Lender
and Borrower dated as of the date hereof:
(a) Lender has received all fees and other amounts due and payable on or prior
to the date hereof, including the fees and amounts for reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by Borrower pursuant to this Agreement, under any other Loan Document, or any other agreement with
(b) Borrower has delivered to Lender duly executed counterparts of the following, each in form and substance
acceptable to Lender in all respects:
this Master Agreement;
the First Supplement, along with all Notes and other documents, instruments and agreements required thereunder;
the Second Supplement, along with all Notes and other documents, instruments and agreements required thereunder;
the Security Agreement, together with UCC-1 financing statements and other applicable documents under the laws of the jurisdictions with respect to the perfection of the Liens granted under the Security Agreement in
order to perfect such Liens, duly authorized for filing by Borrower;
all Control Agreements required under Section 6.13, if any;
the Mortgage, fully notarized, together with evidence that it has been recorded (or will be recorded with assurance from the Title Company that it will provide affirmative coverage from the date hereof) in all places to
the extent necessary or desirable, in the judgment of Lender, to create in favor of Lender a valid and enforceable first priority Lien (subject to Permitted Encumbrances) on the fee simple estate (or leasehold or other interest if agreeable to
Lender) of the Real Estate, together with UCC fixture financing statements, as applicable;
such additional Collateral Assignments of Material Contracts as Lender may require, together with copies of such Material Contracts, certified by a Responsible Officer as being in full force and effect, and not subject
to a default by any party thereto; along with the written consent thereto by all counterparties to such Material Contracts; and
the Post-Closing Agreement.
(c) Lender has received as of the Closing Date (or such other date specified in
this Section 2.01(c)) the following, each in form and substance acceptable to Lender in all respects:
a commitment from the Title Company to issue a title insurance policy assuring Lender that the Mortgage creates a valid and enforceable encumbrance on the Real Estate, free and clear of all defects and encumbrances
except Permitted Encumbrances;
copies of favorable UCC, tax, judgment, bankruptcy and fixture lien search reports (or other evidence of the same satisfactory to Lender) in all necessary or appropriate jurisdictions and under all legal and trade names
of Borrower and all other parties requested by Lender, indicating that there are no prior Liens on any of the Collateral other than Permitted Encumbrances and Liens to be released on the Closing Date;
duly executed lease subordination agreements, landlord waivers and/or warehouseman, or bailee agreements with respect to all inventory of Borrower located at leased locations and all other locations not owned by
Borrower in fee simple, if any, along with a certified copy of all Real Estate leases of Borrower, including a Landlord Estoppel Waiver and Consent, if any;
certified copies of the articles of organization or other charter documents of Borrower, together with certificates of good standing or existence, as are available from the Secretary of State (or other applicable
Governmental Authority) of the jurisdiction of organization of Borrower and each other jurisdiction where Borrower is required to be qualified to do business as a foreign entity;
a certificate, dated as of the date hereof and signed by an appropriate Responsible Officer, attaching and certifying copies of the bylaws or similar documents, and appropriate resolutions authorizing or ratifying, as
applicable, the execution, delivery and performance of the Loan Documents and certifying the name, title and the signature of each officer executing the Loan Documents;
one or more favorable written opinions of counsel to Borrower, addressed to Lender, addressing the matters set forth on Exhibit 2.01(c)(6);
certificates of insurance, in form and substance acceptable to Lender, describing the types and amounts of insurance (property and liability) carried by Borrower, in each case insuring Lender as a first mortgagee under
a standard mortgagee clause, and naming Lender as lender loss payee or additional insured, as the case may be, and which include a stipulation that coverages will not be cancelled or diminished without at least 30 days’ prior written notice to
Lender, together with a lender’s loss payable endorsement;
copies of duly executed payoff letters, in form and substance satisfactory to Lender, executed by each existing lender, if any, together with (a) UCC-3 or other appropriate termination statements, in form and
substance satisfactory to Lender, releasing all liens of the existing lenders upon any of the personal property of Borrower, (b) cancellations and releases, in form and substance satisfactory to Lender, releasing all liens of the existing
lenders upon any of the Real Estate, and (c) any other releases, terminations or other documents reasonably required by Lender to evidence the payoff of Indebtedness owed to existing lenders;
certified copies of all material consents, permits, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any requirement of law or by any material
contractual obligation of Borrower, in connection with the operation of Borrower’s business, including the production of ethanol and by-products thereof, certified by a Responsible Officer or appropriate official of the applicable Governmental
Authority, as the case may be, as being in full force and effect, and not being subject to any condition precedent;
copies of all Phase I Environmental Site Assessment Reports on all of the Real Estate, along with such further environmental review and audit reports as Lender requests (which may include Phase II reports), and letters
by the firms preparing such environmental reports authorizing Lender to rely on such reports;
Federal Emergency Management Agency Standard Flood Hazard Determination Certificates certifying, among other things, that none of the Real Estate is located within a flood hazard area; and
a certificate dated the Closing Date and signed by a Responsible Officer, confirming notice to Borrower pursuant to section 326 of the USA Patriot Act of 2001, 31 U.S.C. sec. 5318.
(d) The representations and warranties set forth in the Loan Documents are true and correct in all material respects.
(e) All conditions precedent in the other Loan Documents have been satisfied or
waived in accordance with Section 8.02.
(f) Borrower shall have purchased the Required Stock.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender, as of the date hereof, the date of each Supplement, and the date of each Advance (unless otherwise
specified) as follows:
Section 3.01 Existence; Power. Borrower (a) is duly organized, validly existing and in
good standing as a limited liability company under the laws of the State of Delaware, (b) has all requisite power and authority to carry on its businesses as now conducted, and (c) is duly qualified to do business, and is in good standing,
in each jurisdiction where such qualification is required, except where a failure to be so qualified could not reasonably be expected to result in a Material Adverse Effect.
Section 3.02 Organizational Power; Authorization. The execution, delivery and performance by Borrower of the Loan Documents
to which it is a party are within its limited liability company powers and have been duly authorized by all necessary board, manager, and if required, member action. This Agreement and the other Loan Documents have been duly executed and delivered
by Borrower, and constitute valid and binding obligations of Borrower, enforceable against it in accordance with their respective terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors’ rights generally and by general principles of equity.
Section 3.03 Governmental
Approvals; No Conflicts. The execution, delivery and performance by Borrower of the Loan Documents (a) does not require any consent or approval of, registration or filing with, or any action by, any Governmental Authority, except those
as have been obtained or made and are in full force and effect or where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, articles of incorporation, bylaws, or other organization documents of Borrower or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, material agreement or other
material instrument binding on Borrower or any of its assets or give rise to a right thereunder to require any payment to be made by Borrower, and (d) will not result in the creation or imposition of any Lien on any asset of Borrower except
Liens created under the Loan Documents.
Section 3.04 Financial Statements. Borrower has furnished to Lender copies of
Borrower’s (a) audited financial statements (consistent with the requirements of Section 4.01(a)) as of its most recent fiscal year end and (b) internally prepared financial statements (consistent with the requirements of
Section 4.01(b)) as of the last day of the most recent quarter. Such financial statements fairly present the financial condition of Borrower as of such dates and
the results of operations for such periods in conformity with GAAP consistently applied, subject in the case of interim financial statements, to year-end audit adjustments and the absence of
footnotes. Since the date of the most recent of the financial statements provided to Lender, there have been no changes with respect to Borrower which have had or could reasonably be expected to have, singly or in the aggregate, a Material Adverse
Effect on the business, results of operations, financial condition, assets, liabilities or prospects of Borrower.
Litigation and Environmental Matters.
(a) Except as provided in Schedule 3.05(a), no litigation,
investigation or proceeding of or before any arbitrator or Governmental Authority is pending against or, to the knowledge of Borrower, threatened against or affecting Borrower (1) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect or (2) which in any manner draws into question the validity or enforceability of this Agreement or any other Loan
(b) Borrower (1) has not failed to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (2) has not become subject to any Environmental Liability, (3) has not received notice of any claim with respect to any Environmental Liability, or (4) does
not know of any basis for any Environmental Liability, which in the case of each of the preceding clauses, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
Section 3.06 Compliance with Laws and Agreements. Borrower is in compliance with all (a) applicable laws, rules, and
regulations, (b) orders of any Governmental Authority, and (c) all indentures, agreements or other instruments binding upon it or its properties; except where non-compliance, either singly or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 3.07 Investment Company Act, Etc. Borrower is not (a) an
“investment company,” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended, (b) a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company
Act of 2005, as amended, or (c) otherwise subject to any other regulatory scheme limiting its ability to incur debt.
Section 3.08 Taxes. Borrower and each other Person for whose taxes Borrower could become liable have timely filed or caused
to be filed all tax returns and other filings that are required to be filed by any of them, and have paid all taxes shown to be due and payable (or with respect to real estate taxes, have paid all taxes prior to the time the same become delinquent)
on such returns or on any assessments made against it or its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority, except (a) to the extent the failure to do so would not have a
Material Adverse Effect or (b) where the same are currently being contested in good faith by appropriate proceedings and for which Borrower has set aside adequate reserves on its books in accordance with GAAP. The charges, accruals and reserves
on the books of Borrower in respect of such taxes are adequate, and no tax liabilities that could be materially in excess of the amount so provided are anticipated.
Section 3.09 Margin Regulations. None of the proceeds of the Loans have been
used, directly or indirectly, for “purchasing” or “carrying” any “margin stock” with the respective meanings of each of such terms under Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect, or for any purpose that violates the provisions of Regulation U, T or X of the Board of Governors of the Federal Reserve System.
Section 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other
such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used under
GAAP) did not, as of the date of the most recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used under GAAP) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $50,000 the fair market value of the assets of all such underfunded Plans.
Section 3.11 Ownership of Property. Borrower has good title to or a valid leasehold interest in all of the real and
personal property material to operation of the Business. Except as provided in Schedule 3.05(a), Borrower owns, or is licensed or otherwise has the right to use, all patents, trademarks, service marks, trade names, copyrights and other
intellectual property material to the Business, and the use thereof by Borrower does not infringe on the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.
Section 3.12 Disclosure. Borrower has disclosed to Lender all agreements, instruments,
and corporate or other restrictions to which Borrower is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial
statements, certificates or other information furnished by or on behalf of Borrower pursuant to this Agreement or any other Loan Document or delivered hereunder or thereunder (as modified or supplemented by any other information so furnished)
contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, not misleading.
Section 3.13 Labor Relations. There are no strikes, lockouts or other material labor disputes or grievances against
Borrower, or, to the knowledge of Borrower, threatened against or affecting Borrower, and no significant unfair labor practice, charges or grievances are pending against Borrower, or to the knowledge of Borrower, threatened against Borrower before
any Governmental Authority. All payments due from Borrower pursuant to any collective bargaining agreement have been paid or accrued as a liability except where the failure to do so could not reasonably be expected to result in a Material Adverse
Section 3.14 Subsidiaries. Borrower has no Subsidiaries other than those for
which Borrower has complied with the requirements of Section 4.10.
Section 3.15 Permits. Borrower has, and
Schedule 3.15 sets forth, all of the material licenses, consents, approvals, authorizations and permits of Governmental Authorities which Borrower is required to maintain or renew in connection with the operation of the Business, including
but not limited to any of the foregoing related to Environmental Laws, zoning and land-use laws (including any requirement to obtain a special exception, if applicable), water use laws, waste disposal laws, laws requiring construction permits, and
occupancy certificates. Borrower has provided true and correct copies of such licenses, consents, approvals, authorizations and permits to Lender.
Section 3.16 Material Contracts. Borrower is a party to, and Schedule 3.16 sets forth a complete and accurate
listing of, all Material Contracts which are required to be in effect to operate the Business. Borrower is in compliance with all Material Contracts, and to Borrower’s knowledge, all other parties thereto are in compliance with all Material
Section 3.17 Anti-Terrorism Laws. Neither Borrower nor any of its Affiliates is in violation of
(a) any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (b) Executive Order No. 13,224, 66
Fed Reg 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) or (c) the anti-money laundering provisions of
the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public Law 107-56 (October 26, 2001) amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et
Borrower covenants and agrees that so long as any Commitment is in effect or the principal of or interest on any Loan or any fee or other
amount owing to Lender under the Loan Documents remains unpaid:
Section 4.01 Financial Statements and Other
Information. Borrower will deliver to Lender:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of Borrower, a copy of the annual audited report for such fiscal year for Borrower as of the end of such fiscal year and the related consolidated balance sheets, statements of income, owners’ equity and cash flows
(together with all footnotes thereto) of Borrower for such fiscal year, setting forth in comparative form the figures for the previous fiscal year, all in reasonable detail and reported on by a firm of independent public accountants acceptable to
Lender (without a “going concern” or like qualification, exception or explanation and without any qualification or exception as to scope of such
audit), and a statement from such accountants to the effect that such financial statements present fairly in all material respects the financial condition and the results of operations of
Borrower for such fiscal year in accordance with GAAP, that the examination by such accountants in connection with such financial statements has been made in accordance with GAAP;
(b) as soon as available and in any event within 30 days after the end of each quarter, an unaudited balance sheet of Borrower
as of the end of such quarter and the related unaudited statements of income, owner’s equity and cash flows of Borrower for such quarter and the then elapsed portion of such fiscal year, setting forth in each case in comparative form the
figures for the corresponding quarter and the corresponding portion of Borrower’s previous fiscal year; in either case all certified by an appropriate Responsible Officer of Borrower as presenting fairly in all material respects the financial
condition and results of operations of Borrower in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes;
(c) within 30 days of the last day of each quarter, a certificate, in form and substance satisfactory to Lender in all
respects, of a Responsible Officer, (1) certifying as to whether there exists a Default or Event of Default on the date of such certificate, and if a Default or an Event of Default then exists, specifying the details thereof and the action
which Borrower has taken or proposes to take with respect thereto, (2) setting forth in reasonable detail calculations demonstrating compliance with Article V, (3) stating whether any change in GAAP or the application thereof
has occurred since the date of Borrower’s most recent previously delivered audited financial statements and, if any change has occurred, specifying the effect of such change on the financial statements accompanying such certificate, and
(4) attaching a production report, certified as to accuracy, which sets forth pertinent information in respect of the amount of ethanol produced and other information, as Lender may request from time to time;
(d) concurrently with the financial statements referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether it obtained any knowledge during the cause of its examination of such financial statements of the occurrence of any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines); promptly after the same become available, copies of all periodic reports distributed by Borrower to its members generally, or to any national securities exchange, as applicable;
(e) concurrently with the delivery of the financial statements referred to in clause (a) above, a copy of Borrower’s
pro forma budget and business plan for the subsequent fiscal year for Borrower, containing a pro forma consolidated balance sheet of Borrower as of the end of such subsequent fiscal year and the related pro forma consolidated
statements of income, owners’ equity and cash flows (together with all footnotes thereto) of Borrower for such subsequent fiscal year; and
(f) promptly following any request therefor, such other information regarding the results of operations, business affairs and
financial condition of Borrower as Lender may reasonably request.
Section 4.02 Notices of Material Events. Borrower will promptly furnish
written notice to Lender of the following, in each case accompanied by a written statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against
or, to the knowledge of Borrower, affecting Borrower which, if adversely determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which Borrower (1) fails to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (2) becomes subject to any Environmental Liability, (3) receives notice of any claim with respect to any Environmental
Liability, or (4) becomes aware of any basis for any Environmental Liability and in each of the preceding clauses, which individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together with any other ERISA Events that have occurred, could reasonably
be expected to result in a Material Adverse Effect;
(e) the incurrence of any Indebtedness, including Indebtedness
permitted under this Agreement; and
(f) any other development that results in, or could reasonably be expected to result
in, a Material Adverse Effect.
Section 4.03 Existence; Conduct of Business; Eligible Borrower. Borrower will do all
things necessary to preserve, renew and maintain in full force and effect its legal existence and its rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, and
will continue to engage in the same business as presently conducted or such other businesses that are reasonably related thereto. Borrower shall maintain at all time its status as an entity eligible to borrow from Lender and the farm credit system
of lending institutions.
Section 4.04 Compliance with Laws, Etc. Borrower will comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to it or its properties, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Borrower will in all respects conform to and comply with all applicable covenants, conditions, restrictions and reservations, and with all requirements of Governmental Authorities, including, without limitation, all building codes and zoning,
environmental, hazardous substance, energy and pollution control laws, ordinances and regulations affecting Borrower’s business, and the Real Estate and the related improvements, except to the extent any nonconformance or noncompliance could
not reasonably be expected to result in a Material Adverse Effect.
Section 4.05 Payment of Obligations. Borrower will pay and discharge all of
its obligations and liabilities (including without limitation all tax liabilities and claims that could result in a statutory Lien) before the same become delinquent or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) Borrower has set aside on its books adequate reserves with respect thereto in accordance with GAAP, and (c) the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
Section 4.06 Books and Records. Borrower will keep proper books of
record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities to the extent necessary to prepare the consolidated financial statements of Borrower in conformity with
Section 4.07 Visitation, Inspection, Audit, Etc.
(a) Borrower will permit any representative or agent of Lender to visit and inspect its properties, to conduct audits of the
Collateral, to examine its books and records and to make copies and take extracts therefrom, and to discuss its affairs, finances and accounts with any of its officers, employees and its independent certified public accountants, all at such
reasonable times and as often as Lender, may reasonably request after reasonable prior notice to Borrower; provided, if a Default or an Event of Default has occurred and is continuing, no prior notice will be required. Borrower will bear all
expenses incurred by Lender in connection with any such visit, inspection, audit, examination, or discussion.
will deliver to Lender such appraisals of the Real Estate and other fixed assets of Borrower as Lender may request at any time and from time to time, such appraisals to be conducted by an appraiser, and to be presented in form and substance,
reasonably satisfactory to Lender, in each case conducted at the expense of Borrower if the appraisal is delivered in connection with a request by Borrower for an accommodation, waiver, or other credit action.
Section 4.08 Maintenance of Properties; Insurance. Borrower will (a) keep and maintain (or cause others to keep and
maintain) all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted, except where the failure to do so, either individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, and (b) maintain with financially sound and reputable insurance companies, insurance with respect to its properties and business against loss or damage of the kinds and in the amounts customarily carried by
companies in the same or similar business operating in the same of similar locations and under the same or similar circumstances, and in any event, with coverages no less than and subject to the terms described on Exhibit 4.08.
Section 4.09 Use of Proceeds. No part of the proceeds of any Loan will be used, directly or indirectly, for any purpose
that would violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or for speculative purposes, including, without limitation, speculating in the commodities and/or futures markets.
Section 4.10 Subsidiaries. Schedule 4.10 lists Subsidiaries of Borrower
as of the date hereof. Within 10 Business Days after Borrower acquires or forms any Subsidiary, Borrower will notify Lender and will cause such Subsidiary to execute a Guarantee of the Obligations, a joinder to the Security Agreement, and a joinder
to such other instruments, agreements, and documents as Lender requires, each in form and substance satisfactory to Lender, and will cause such Subsidiary to deliver simultaneously therewith similar documents applicable to such Subsidiary required
under Section 2.01 as requested by Lender.
Section 4.11 Assignment of Material Contracts. Borrower will
notify Lender of the existence of any Material Contract promptly upon entering into the same. Borrower agrees to promptly execute and deliver to Lender such Collateral Assignments and take such other actions as Lender requests in furtherance of
Borrower’s collateral assignment of Borrower’s rights under such Material Contracts.
Section 4.12 Compliance with
Certain Laws. Borrower will (a) ensure that no Person that Controls Borrower is or will be listed on the Specially Designated Nationals and Blocked Person List or other similar list maintained by the Office of Foreign Assets Control
(“OFAC”), the Department of Treasury or included in any executive order or other similar list of such Persons published by a Governmental Authority, (b) not use or permit the use of any proceeds of any Loan to violate
any of the foreign asset control regulations of OFAC or any enabling statute, executive order, or requirement of a Governmental Authority relating thereto, and (c) comply with all applicable Bank Secrecy Act laws and regulations, as amended.
Section 4.13 Farm Products. If Borrower acquires any Collateral which may have constituted Farm Products in the
possession of the seller or supplier thereof, Borrower will, at its sole expense, use its best efforts to take such steps to ensure that all Liens (except the security interests granted to Lender) in such acquired Collateral are terminated or
released, including, without limitation, in the case of such Farm Products produced in a state which has established a Central Filing System (as defined in the Food Security Act), registering with the Secretary of State of such state (or such other
party or office designed by such state) and otherwise take such reasonable actions necessary, as prescribed by the Food Security Act, to purchase Farm Products free of liens, security interest and encumbrances of any kind (except the security
interests granted to Lender); provided, however, that Borrower may contest and need not obtain the release or termination of any lien, security interest or encumbrance asserted by any creditor of any seller of such Farm Products, so long as
it contests the same by proper proceedings and maintain appropriate accruals and reserves therefore in accordance with GAAP. Upon Lender’s request, Borrower agrees to forward to Lender promptly after receipt copies of all notices of Liens and
master lists of effective financing statements delivered to Borrower pursuant to the Food Security Act, which notices and/or lists pertain to any of the Collateral. Upon Lender’s request, Borrower agrees to provide Lender with the names of
Persons who supply Borrower with such Farm Products and such other information as Lender may reasonably request with respect to such Persons.
If any warehouse receipt or receipts in the nature of a warehouse receipt is/are issued in respect of any portion of the Collateral, then
Borrower (a) will not permit such warehouse receipt or receipts in the nature thereof to be “negotiable” as such term is used in Article 7 of the UCC and (b) will deliver all such receipts to Lender (or a Person designated by
Lender) within five
days of Lender’s request and from time to time thereafter. If no Default or Event of Default then exists, Lender agrees to deliver to Borrower any receipt so held by Lender upon
Borrower’s request in connection with Borrower’s sale or other disposition of the underlying Collateral, if such disposition is in the ordinary course of Borrower’s business.
Borrower covenants and agrees that so long as any Obligation remains unpaid or any Commitment is in effect:
Section 5.01 Fixed Charge Coverage Ratio. Borrower will maintain a minimum Fixed Charge Coverage Ratio of 1.15:1.00 as
measured on the last day of each fiscal year beginning September 30, 2016. When the Owners’ Equity Ratio of at least 60% and Working Capital of $15,000,000 or more are both reached and maintained, then the minimum Fixed Charge Coverage
Ratio will be reduced automatically to 1.00:1.00. Should the Owners’ Equity Ratio decline below 60% or Working Capital decline below $15,000,000, the minimum Fixed Charge Coverage Ratio of 1.15:1.0 will be reinstated automatically without
notice or other action by Lender.
Section 5.02 Working Capital. Borrower will maintain Working Capital of at least
$10,000,000 at all times at all times, which shall increase to at least $12,750,000 by September 30, 2016 and must be maintained at all times thereafter.
Section 5.03 Capital Expenditures. Borrower will not make Capital Expenditures in excess of $2,000,000 in any fiscal
year without Lender’s prior written approval.
Section 5.04 Owners’ Equity Ratio. Borrower must maintain an
Owners’ Equity Ratio of at least 42% on the last day of each fiscal year, beginning September 30, 2016, increasing by 2% at each fiscal year end until an Owner’s Equity Ratio of 50% is reached and maintained.
Section 5.05 Current Ratio. Borrower will maintain a ratio of current assets to current liabilities of not less than
Section 5.06 Total Outstanding Debt to EBITDA Ratio. Borrower must ensure that the Total Outstanding Debt
to EBITDA Ratio is less than 4:00:1:00 as monitored quarterly and tested on the last day of at each fiscal year end, beginning September 30, 2016.
Section 5.07 Compliance Generally. Compliance with the financial covenants set forth in this Article V will be
tested based on financial statements dated as of the close of business on the last day of the immediately preceding quarter, or fiscal year in the case of measurements of the Fixed Charge Coverage Ratio under Section 5.01, Capital
Expenditures under Section 5.03, and Total Outstanding Debt to EBITDA under Section 5.06, for the related period.
Without the prior written consent of Lender, Borrower covenants and agrees that so long as any Commitment is in effect or the principal of or
interest on any Loan or any fee remains unpaid:
Section 6.01 Indebtedness. Borrower will not create, incur, assume or
suffer to exist any Indebtedness, except
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness acceptable to Lender in its sole discretion and existing on the date hereof and set forth on Schedule 6.01(b) and
extensions and renewals of any such Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life
(c) Indebtedness of Borrower incurred to finance the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets secured by a Lien on any such assets prior to the acquisition thereof and extensions, renewals, and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof; provided, that such Indebtedness
is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvements; provided further, that the aggregate principal amount of such Indebtedness does not exceed $500,000 at any time outstanding; and
(d) Hedging Agreements permitted by Section 6.10.
Section 6.02 Negative Pledge. Except Permitted Encumbrances, Borrower will not create, incur, assume or suffer to exist any
Lien on any of its assets or property now owned or hereafter acquired.
Section 6.03 Fundamental Changes. Borrower will
not, and will not permit any Subsidiary to, engage in any business other than businesses of the type conducted by Borrower on the date hereof and businesses reasonably related thereto.
Section 6.04 Investments, Loans, Etc. Borrower will not purchase, hold or acquire any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any
other interest in, any other Person (all of the foregoing being collectively called “Investments”), or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person that
constitute a business unit, or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments) existing on the
date hereof and set forth on Schedule 6.04(a);
(b) Permitted Investments in which Lender maintains a first priority, perfected security interest
(c) loans or advances to employees, officers or directors of Borrower in the ordinary course of business for travel, relocation
and related expenses; provided, however, that the aggregate amount of all such loans and advances does not exceed $200,000 at any time; and
(d) Investments not exceeding $500,000 in the aggregate in businesses that have a contractual relationship with Borrower.
Section 6.05 Restricted Payments. Other than dividends or distributions by Borrower solely in units of any class of its
membership interests, Borrower will not pay, declare or make, or agree to pay, declare or make, directly or indirectly, any dividend or distribution on any class of its membership interests or make any payment on account of, or set apart assets for
a sinking or other analogous fund for, the purchase, redemption, retirement, defeasance or other acquisition of, any membership interest, or any options, warrants, or other rights to purchase any of the foregoing, whether now or hereafter
outstanding, or any payment in respect of Indebtedness subordinated to the Obligations (each such dividend, distribution, set aside or payment, a “Restricted Payment”), so long as no Default or Event of Default has occurred
and is then continuing or would result from such payment:
(a) Borrower may distribute an amount of up to 40% of its Net Income; and
(b) So long as Borrower achieves and maintains an Owners’ Equity Ratio of at least 60% and Working Capital of at least $15,000,000 (in
each case as reported on audited fiscal year end financial statements), Borrower may distribute up to 100% of its Net Income; provided, the limitations set forth in (a) above will be reinstated if Borrower’s Owners’ Equity Ratio falls
below 60% or Working Capital falls below $15,000,000 at any quarterly reporting period.
Distributions for any prior fiscal year must be
declared by Borrower’s board of managers within 120 days of such fiscal year end or allowance hereunder to declare and pay the distribution for such fiscal year will be deemed waived by Borrower and disallowed. In addition, distributions for
any current fiscal year may be declared and paid by Borrower’s board of managers at any time during such fiscal year. Minutes of Borrower’s board of managers’ meeting, or a writing in lieu of meeting signed by all members of the board
of managers, for which any distribution is declared must, at a minimum, state the fiscal year period for which any distribution will be made. Distributions in respect of Net Income for the prior year may not be paid until after confirmation of Net
Income in Borrower’s financial statements submitted pursuant to Section 4.01(a). Distributions in respect of Net Income for the current period may be paid in accordance with the Borrower’s internally prepared year to date
financial statements reflecting its Net Income for the year; provided, Borrower must promptly provide for additional capital in the event the amount of distributions exceed the amount allowed based on Borrower’s audited financial statements for
Section 6.06 Sale of Assets. Borrower will not convey, sell, lease, assign,
transfer or otherwise dispose of, any of its assets, business or property, whether now owned or hereafter acquired, to any Person except (a) the sale or other disposition for fair market value of obsolete or worn out property or other property
not necessary for operations disposed of in the ordinary course of business; and (b) the sale of inventory in the ordinary course of business.
Section 6.07 Transactions with Affiliates. Borrower will not sell, lease or otherwise transfer any property or assets to,
or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices and on terms and conditions not less
favorable to Borrower than could be obtained on an arm’s-length basis from unrelated third parties in comparable transactions, (b) transactions solely between Borrower and any wholly-owned Subsidiary of Borrower, and (c) transactions
permitted by this Agreement or any other Loan Document.
Section 6.08 Restrictive Agreements. Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement that prohibits, restricts or imposes any condition upon the ability of Borrower or any Subsidiary to create, incur or permit any Lien upon
any of its assets or properties, whether now owned or hereafter acquired, except restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted under this Agreement if such restrictions and conditions apply only to
the property or assets securing such Indebtedness.
Section 6.09 Sale and Leaseback Transactions. Borrower will not
enter into any arrangement, directly or indirectly, whereby it sells or transfers any property, real or personal, used or useful in its business, whether now owned or hereinafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the property sold or transferred.
Hedging Agreements. Borrower will not enter into any Hedging Agreement other than Hedging Agreements approved by Lender and entered into in the ordinary course of business to hedge or mitigate risks to which Borrower is exposed in the
conduct of its business or the management of its liabilities.
Section 6.11 Amendment to Material Documents. Except to
the extent as could not reasonably be expected to result in a Material Adverse Effect, Borrower will not amend, modify or waive any of its rights or any other terms or condition under (a) its certificate or articles of organization, operating
agreement, bylaws or other organizational documents or (b) any Material Contract.
Section 6.12 Accounting
Changes. Borrower will not make any significant change in accounting treatment or reporting practices, except as required by GAAP, or change its fiscal year.
Section 6.13 Deposit and Investment Accounts. Borrower will not maintain, deposit or invest funds into any Deposit Account
or Investment Account other than those listed on Schedule 6.13 without first obtaining a Control Agreement acceptable to Lender.
Section 6.14 Use of Proceeds. Borrower will not use the proceeds of any Loan,
directly or indirectly, for “purchasing” or “carrying” any “margin stock” with the respective meanings of each of such terms under Regulation U of the Board of Governors of the Federal Reserve System as now and from
time to time hereafter in effect, or for any purpose that violates the provisions of Regulation U, T or X of the Board of Governors of the Federal Reserve System.
Section 6.15 Legal Status; Eligible Borrower. Borrower will not (a) change its jurisdiction of organization, or
(b) take or permit any action that would result in (i) Borrower’s discontinuance as a limited liability company in good standing under the jurisdiction of Borrower’s organization, or (ii) Borrower becoming ineligible to
borrow from Lender or any Farm Credit System lending institutions.
EVENTS OF DEFAULT AND REMEDIES
Section 7.01 Events of Default. The following will be considered events of default (each an “Event of
(a) Borrower fails to pay or deposit, as the case may be, any amount payable or required
under this Agreement or any other Loan Document within 10 days after such amount becomes due;
(b) any representation or
warranty made or deemed made by or on behalf of Borrower in or in connection with this Agreement or any other Loan Document (including the Schedules attached hereto and thereto) and any amendments or modifications hereof or waivers hereunder, or in
any certificate, report, financial statement or other document submitted to Lender by Borrower or any representative of Borrower pursuant to or in connection with this Agreement or any other Loan Document proves to be materially incorrect when made
or deemed made or submitted;
(c) Borrower fails to observe or perform any covenant or agreement in (i) Article V
or VI of this Master Agreement, or (ii) any Material Contract beyond any applicable cure period, if any (other than failure to make any payment under such Material Contracts being contested in accordance with Section 4.05);
(d) Borrower fails to observe or perform any covenant or agreement in this Agreement (other than those referred to in clauses
(a), (b), or (c) above) or in any other Loan Document, and such failure continues for 30 days after the earlier of the date (1) Borrower becomes aware of such failure, or (2) written notice thereof is given to Borrower by Lender; or
any Event of Default otherwise occurs under any Loan Document;
(e) Borrower or any guarantor of any portion of the
Obligations, (whether as primary obligor or as guarantor or other surety) fails to pay any principal of or premium or interest on any Material Indebtedness that is outstanding, when and as the same becomes due and payable (whether at scheduled
maturity, required prepayment,
acceleration, demand or otherwise), and such failure continues after the applicable grace period, if any, specified in the agreement or instrument evidencing such Material Indebtedness; or any
other event occurs or condition exists under any agreement or instrument relating to such Material Indebtedness and continues after the applicable grace period, if any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such Material Indebtedness; or any such Indebtedness is declared to be due and payable; or required to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or any offer to prepay, redeem, purchase or defease such Material Indebtedness is required to be made, in each case prior to the stated maturity thereof;
(f) Borrower or any guarantor of any portion of the Obligations, (1) commences a voluntary case or other proceeding or
files any petition seeking liquidation, reorganization or other relief under any federal, state or foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its property, (2) consents to the institution of, or fails to contest in a timely and appropriate manner, any proceeding or petition described in clause (1) of this
Section 7.01(f), (3) applies for or consents to the appointment of a custodian, trustee, receiver, liquidator or other similar official for Borrower or such guarantor or for a substantial part of the assets of Borrower or such
guarantor, (4) files an answer admitting the material allegations of a petition filed against it in any such proceeding, (5) makes a general assignment for the benefit of creditors, or (6) takes any action for the purpose of effecting
any of the foregoing;
(g) an involuntary proceeding is commenced or an involuntary petition is filed seeking
(1) liquidation, reorganization or other relief in respect of Borrower or any guarantor of any portion of the Obligations, or the debts, or any substantial part of the assets of Borrower or such guarantor under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (2) the appointment of a custodian, trustee, receiver, liquidator or other similar official for Borrower or any guarantor of any portion of the Obligations, or for a
substantial part of the assets of Borrower or such guarantor, and in any such case, such proceeding or petition remains undismissed for a period of 60 days or an order or decree approving or ordering any of the foregoing is entered;
(h) Borrower or any guarantor of any portion of the Obligations becomes unable to pay, admits in writing its inability to pay,
or fails to pay, its debts as they become due;
(i) an ERISA Event occurs with respect to Borrower or any guarantor of any
portion of the Obligations that, in the opinion of Lender, when taken together with other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect;
(j) any final, non-appealable judgment or order for the payment of money in
excess of $250,000 in the aggregate is rendered against Borrower or any guarantor of any portion of the Obligations, and either (1) such judgment or order is final and enforcement proceedings have been commenced by any creditor upon such
judgment or order, or (2) such judgment or order shall remain unsatisfied for a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, is not in effect;
(k) any non-monetary judgment or order is rendered against Borrower or any guarantor of any portion of the Obligations that
could reasonably be expected to result in a Material Adverse Effect (except for any judgment or order in the litigation disclosed in Schedule 3.05(a)), and there is a period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, is not in effect;
(l) a Change in Control occurs or
(m) Borrower ceases to exist or any guarantor of any portion of the Obligation ceases to exist;
(n) any guarantor of any portion of the Obligations attempts to revoke such Guarantee, or any such Guarantee becomes
unenforceable in whole or in part for any reason;
(o) an Event of Default occurs under any other agreement with (or
instrument in favor of) Lender that could reasonably be expected to result in a Material Adverse Effect; or
fails to deliver any item required under the Post-Closing Agreement within the time allowed therein.
Remedies. Upon the occurrence of an Event of Default (other than an event described in clause (f), (g) or (h) of Section 7.01), and at any time thereafter, Lender may take any one or more or all of the following
actions, at the same or different times:
(a) terminate the Commitments, whereupon the Commitments will terminate
(b) declare the principal of and any accrued interest on the Loans, and all other Obligations to be due and
payable, whereupon the same will become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Borrower;
(d) take other steps to protect or preserve Lender’s interest in any Collateral, including, without limitation, notifying
account debtors to make payments directly to Lender, advancing funds to protect any Collateral, and insuring Collateral; and/or
(e) exercise all remedies provided for in any other Loan Document or as otherwise provided by law.
If an Event of Default specified in either clause (f), (g) or (h) of
Section 7.01 occurs, all Commitments will automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, and all fees, and all other Obligations will automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Borrower.
Section 8.01 Notices.
Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications to
any party herein to be effective will be in writing and delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
ABE South Dakota, LLC
8000 Norman Center Drive, Suite 610
Bloomington, Minnesota 55437
Facsimile No. (763) 226-2725
With a copy to:
David Vander Haar, Esq.
Barnes & Thornburg LLP
225 South Sixth Street
Minneapolis, Minnesota 555402-4662
Facsimile No. (612) 333-6798
AgCountry Farm Credit Services
Attention: Randolph L. Aberle, Senior Vice President
Post Office Box 6020
1900 44th Street South
Fargo, North Dakota 58108
Facsimile No. (877) 811-4074
With a copy to:
Ronald K. Vaske, Esq.
Lindquist & Vennum LLP
4200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
Facsimile No. (612) 371-3207
Any party hereto may change its address or facsimile number for notices and other communications
hereunder by notice to the other parties. All notices and other communications delivered to Borrower will, when transmitted by overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in legible
form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date deposited in the mail or if delivered, upon delivery. Notices delivered to Lender will not be effective until actually received at its address
specified in this Section 8.01.
Any agreement of Lender to receive certain notices by telephone or facsimile is solely for
the convenience and at the request of Borrower. Lender will be entitled to rely on the authority of any Person purporting to be a Person authorized by Borrower to give such notice and Lender will not have any liability to Borrower or any other
Person as a result of any action taken or not taken by Lender in reliance upon such telephonic or facsimile notice. The obligation of Borrower to repay the Loans and all other Obligations hereunder will not be affected in any way or to any extent by
any failure of Lender to receive written confirmation of any telephonic or facsimile notice or the receipt by Lender of a confirmation which is at variance with the terms understood by Lender to be contained in any such telephonic or facsimile
Section 8.02 Waiver; Amendments.
(a) No failure or delay by Lender in exercising any right or power hereunder or any other Loan Document, and no course of
dealing between Borrower and Lender, will operate as a waiver, nor will any single or partial exercise of any such right or power or any abandonment or discontinuance of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The rights and remedies of Lender hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to any departure by Borrower therefrom will in any event be effective unless the same is permitted by paragraph (b) of this Section, and then such waiver or consent will be
effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of an Advance will not be construed as a waiver of any Default or Event of Default, regardless of whether
Lender had notice or knowledge of such Default or Event of Default at the time.
(b) No amendment or waiver of any
provision of this Agreement or any other Loan Document, nor consent to any departure by Borrower therefrom, will in any event be effective unless the same is in writing and signed by Borrower and Lender and then such waiver or consent will be
effective only in the specific instance and for the specific purpose for which given.
Section 8.03 Expenses;
(a) Borrower indemnifies Lender and each Participant against, and holds Lender and each
Participant harmless from, any and all costs, losses, liabilities, claims, damages and related expenses, including the fees, charges and disbursements of any engineers, consultants, agents and counsel for Lender and/or any Participant, which are
incurred by or asserted against Lender and/or any Participant arising out of, in connection with or as a result of (1) the execution, delivery and documentation of this Master Agreement, any
Supplement, any other Loan Document, or any other agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of any of the transactions contemplated hereby or
thereby, (2) any Advances or any actual or proposed use of the proceeds therefrom, (3) any actual or alleged presence or release of Hazardous Materials on or from any property owned by Borrower or any Subsidiary, or any Environmental
Liability related in any way to Borrower or any Subsidiary, or (4) actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of
whether Lender is a party thereto, including attorneys’ fees and all other costs and fees (i) incurred before or after commencement of litigation or at trial, on appeal or in any other proceeding, and (ii) incurred in any bankruptcy
proceeding; provided, that Borrower is not obligated to indemnify Lender or any Participant for any of the foregoing arising out of Lender’s or such Participant’s gross negligence or willful misconduct.
(b) Borrower will pay, and hold Lender and each Participant harmless from and against, any and all Taxes with respect to this
Agreement and any other Loan Document, any Collateral described therein, or any payments due thereunder, and will hold Lender and each Participant harmless from and against any and all liabilities with respect to or resulting from any delay or
omission to pay such Taxes.
(c) To the extent permitted by applicable law, Borrower will not assert, and Borrower hereby
waives, any claim against Lender and/or any Participant, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to actual or direct damages) arising out of, in connection with or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the transactions contemplated therein, any Advance or the use of proceeds thereof.
(d) All amounts due under this Section 8.03 are due and payable promptly on demand.
Section 8.04 Successors and Assigns.
(a) The provisions of this Agreement are binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that Borrower may not assign or transfer any of its rights hereunder without the prior written consent of Lender (and any attempted assignment or transfer by Borrower without such consent will be considered null and
(b) Lender may at any time, without the consent of Borrower, assign to one or more assignees all or a portion of
its rights and obligations under this Agreement and the other Loan Documents, including all or a portion of any Commitment and/or all or any portion of any Loan.
(c) Lender and each Participant may at any time, without the consent of Borrower,
sell participation interests to one or more Persons (a “Participant”) in all or a portion of Lender’s rights and obligations under this Agreement, including all or a portion of any Commitment and/or all or any portion of
any Loan. In the event Lender or any Participant sells one or more participation interests, Lender’s (and such Participant’s) obligations under this Agreement will remain unchanged, and Borrower will continue to deal solely and directly
with Lender in connection with Lender’s rights and obligations under this Agreement and the other Loan Documents.
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement and the Notes without complying with this Section. No such pledge or assignment will release Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for Lender as a party hereto.
Section 8.05 Governing Law; Jurisdiction;
Consent to Service of Process.
(a) This Agreement and the other Loan Documents (except to the extent otherwise
provided therein) will be construed in accordance with and be governed by the law (without giving effect to the conflict of law principles thereof) of the State of North Dakota.
(b) Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the non-exclusive jurisdiction of
the United States District Court of the District of North Dakota, and of any state court of the State of North Dakota located in Cass County, in any action or proceeding arising out of or relating to this Agreement or any other Loan Document or the
transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment. Each of the parties irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in
such North Dakota state court or, to the extent permitted by applicable law, such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding will be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document will affect any right Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against Borrower or its properties in the courts of any jurisdiction.
(c) Borrower irrevocably and
unconditionally waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph (b) of this Section and brought in any court referred to in paragraph (b) of
this Section. Each of the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
Section 8.06 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 8.07 Right of Setoff. As additional security for payment of the Obligations, Borrower grants to Lender a security
interest in, a lien on, and an express contractual right, at any time or from time to time upon the occurrence and during the continuance of a Default or an Event of Default, without prior notice to Borrower, any such notice being expressly waived
by Borrower to the extent permitted by applicable law, to set off and apply against all deposits (general or special, time or demand, provisional or final) of Borrower at any time held or other obligations at any time owing by Lender to or for the
credit or the account of Borrower against any and all Obligations held by Lender or any Participant (“Setoff”), irrespective of whether Lender or any Participant has made demand hereunder and although such
Obligations may be unmatured. Lender or any Participant, as applicable, agrees to notify Borrower after any Setoff and any application made by Lender or any Participant; provided, that the failure to give such notice will not affect the
validity of such Setoff and application. The rights of Lender and the Participants under this Section 8.07 are in addition to any rights now or hereafter granted under applicable law and do not limit any such rights.
Section 8.08 Counterparts; Integration. This Agreement may be executed in any number of separate counterparts (including by
telecopy or other electronic mail, or any other electronic means), and all of said counterparts taken together will be deemed to constitute one and the same instrument. This Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to Lender constitute the entire agreement among the parties hereto and thereto regarding the subject matters hereof and thereof and supersede all prior agreements and understandings, oral or written, regarding such
Section 8.09 Survival. All covenants, agreements, representations and warranties made by Borrower
herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement will be considered to have been relied upon by Lender and will survive the execution and delivery of this Agreement, regardless of any
investigation made by any such other party or on its behalf and notwithstanding that Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and will continue in
full force and effect as long as the principal of or any accrued interest on the Loans or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as any Commitment is in effect. The provisions of
Section 8.03 will survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, and termination of the Commitments, or this Agreement or any provision
hereof. All representations and warranties made herein, in the certificates, reports, notices, and other documents delivered pursuant to this Agreement will survive the execution and delivery of this Agreement and the other Loan Documents.
Section 8.10 Severability. Any provision of this Agreement or any other Loan
Document held to be illegal, invalid or unenforceable in any jurisdiction, will, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability without affecting the legality, validity or enforceability of
the remaining provisions hereof or thereof; and the illegality, invalidity or unenforceability of a particular provision in a particular jurisdiction will not invalidate or render unenforceable such provision in any other jurisdiction.
Section 8.11 Transferable Record. This Agreement, the Notes and the other Loan Documents, as amended, are
“transferable records” as defined in applicable law relating to electronic transactions. Therefore, Lender may, on behalf of Borrower, create a microfilm, optical disk or electronic image of such Loan Documents that are authoritative
copies under applicable law. Lender may store such authoritative copies in microfilm or electronic form and destroy the paper original as part of its normal business practices. Lender, on its own behalf, may control and transfer such authoritative
copies as permitted by applicable law.
Section 8.12 Confidentiality. Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in writing as confidential and provided to it by Borrower or any Subsidiary, except that such information may be disclosed (a) to any Affiliate, Participant or advisor of
Lender, including without limitation accountants, legal counsel and other advisors, provided that Lender shall have taken reasonable steps to assure that such Affiliates, participants, and advisors will maintain such information in confidence to the
same extent required of Lender hereunder, (b) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (c) to the extent requested by any regulatory agency or authority, (d) to the extent
that such information becomes publicly available, other than as a result of a breach of this Section 8.12, or which becomes available to Lender on a nonconfidential basis from a source other than Borrower, (e) in connection with the
exercise of any remedy hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, and (f) subject to provisions substantially similar to this Section 8.12, to any actual or
prospective assignee or Participant, or (g) with the consent of Borrower. Any Person required to maintain the confidentiality of any information as provided for in this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord its own confidential information.
Section 8.13 Copies. Borrower hereby acknowledges the receipt of a copy of this Agreement and all other Loan Documents.
Section 8.14 Notice of Claims Against Lender; Limitation of Certain Damages. In order to allow Lender to mitigate any
damages to Borrower from Lender’s alleged breach of its duties under the Loan Documents or any other duty, if any, to Borrower, the Borrower agrees to give Lender immediate written notice of any claim or defense it has against Lender, whether
in tort or contract, relating to any action or inaction by Lender under any Loan Document, or the transactions related thereto, or of any defense to payment of the Obligations
for any reason. The requirement of providing timely notice to Lender represents the parties’ agreed-upon standard of performance regarding claims against Lender. Notwithstanding any claim
that Borrower may have against Lender, and regardless of any notice Borrower may have given to Lender, Lender will not be liable to Borrower for consequential, punitive and/or special damages.
Section 8.15 Termination. Upon satisfaction of all of Borrower’s obligations hereunder, and the related documents and
instruments, Lender will (a) release its security interests and file appropriate documentations of the same, and (b) redeem the Required Stock.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by
their respective authorized officers as of the day and year first above written.
Accounting Terms and Determination. Unless otherwise defined or specified herein, all accounting terms used herein will be interpreted, all accounting determinations hereunder will be made, and all financial statements required to be delivered
hereunder will be prepared, in accordance with GAAP as in effect from time to time.
B. Terms Generally. The definitions of terms
herein apply equally to the singular and plural forms of the terms defined. The words “include,” “includes” and “including” are herein deemed to be followed by the phrase “without limitation.” Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein will be construed as referring to such agreement, instrument or other document as it was originally executed or as it may from
time to time be amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person will be construed to include such Person’s
successors and permitted assigns, (c) the words “hereof,” “herein” and “hereunder” and words of similar import will be construed to refer to this Agreement as a whole and not to any particular provision hereof,
(d) all references to Articles, Sections, Exhibits and Schedules will be construed to refer to Articles, Sections, Exhibits and Schedules to this Agreement, and (e) all references to a specific time will be construed to refer to the
time in the city provided herein for Lender’s receipt of notices hereunder, unless otherwise indicated.
Certain terms are defined specifically in one or more Supplements. If there is an inconsistency between the terms hereof and a Supplement, the definitions in the Supplement will control to the extent provided therein.
D. Defined Terms. In addition to the other terms defined in the Agreement, the following terms have the meanings herein specified.
“Advance” means an advance of Loan funds by Lender to or for the benefit of Borrower.
“Affiliate” means, as to any Person, any other Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such Person.
“Agreement” means, collectively, the
Master Agreement and each of the Supplements in effect from time to time.
“Borrower” means ABE South Dakota, LLC,
a Delaware limited liability company.
“Business” has the meaning provided in Recital A.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in the city of
Fargo, North Dakota, are authorized or required by law to close.
“Capital Expenditures” means, for any period, without
duplication, (a) the additions to property, plant and equipment and other capital expenditures of Borrower that are (or would be) set forth on a consolidated statement of cash flows of Borrower for such period prepared in accordance with GAAP
and (b) Capital Lease Obligations incurred by Borrower during such period.
“Capital Lease Obligations” of
any Person means the capitalized amount, determined in accordance with GAAP, of all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP.
“Change in Control” means the occurrence of one or more of the following events: (a) any sale, lease, exchange or
other transfer (in a single transaction or a series of related transactions) of all or substantially all of the assets of Borrower or any guarantor of any portion of the Obligations to any Person or “group” (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder in effect on the date hereof), (b) acquisition of Control of the Borrower or any guarantor of any portion of the Obligations by any Person who
does not Control the Borrower or such guarantor on the date of this Agreement, or (c) occupation of a majority of the seats on the board of directors/managers of Borrower or any guarantor of any portion of the Obligations by Persons who were
neither (1) nominated by the immediately previous board of directors or (2) appointed by directors so nominated.
“Charges” has the meaning set forth in Section 1.05.
“Closing Date” means December 29, 2015, and with respect to each Supplement, the date specified in such
supplement if a different closing date is specified.
“Code” means the Internal Revenue Code of 1986, as amended
and in effect from time to time.
“Collateral” means all of Borrower’s and each Subsidiary’s tangible
and intangible property, real and personal, including without limitation, all casualty insurance proceeds and condemnation awards.
“Collateral Assignment” means each collateral assignment by Borrower in favor of Lender of a Material Contract.
“Commitment” means any commitment by Lender to advance funds to Borrower as set forth in this Master Agreement or any
“Control” means the power, directly or indirectly, either to (a) vote 50% or more of securities
having ordinary voting power for the election of directors (or persons performing similar functions) of a Person or (b) direct or cause the direction of the management and policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. The terms “Controls,” “Controlling,” “Controlled by,” and “under common Control with” have meanings correlative thereto.
“Control Agreements” means the agreements requested by Lender, if any, to
perfect Lender’s security interest in Deposit Accounts and Investment Accounts, as the same may be amended, restated, supplemented or otherwise modified from time to time.
“Default” means any condition or event that, with the giving of notice or the lapse of time, or both, would constitute
an Event of Default.
“Default Interest” has the meaning set forth in Section 1.04.
“Deposit Accounts” means all demand, time, savings, passbook or similar depository accounts of Borrower with any
Person, including Borrower’s operating, payroll, and other bank or depository accounts.
“EBITDA” for any
period means an amount equal to (a) Net Income plus (b) to the extent deducted in determining Net Income, the sum of (i) Interest Expense, (ii) income taxes, (iii) depreciation and amortization, and (iv) all other
“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters.
“Environmental Liability” means any
liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, related attorneys’ fees, natural resource damages, penalties or
indemnities), directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials,
(c) any actual or alleged exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials, or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
“ERISA Affiliate” means any trade
or business (whether or not incorporated), which, together with Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for the purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.
“ERISA Event” means (a) any
“reportable event,” as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of
an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA
with respect to the termination of any Plan; (e) the receipt by Borrower or the ERISA Affiliate from the PBGC or a plan administrator appointed by the PBGC of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.
“Event of Default” has the meaning set forth in Section 7.01.
“Farm Products” has the meaning ascribed thereto in the UCC.
“First Supplement” means the First Supplement to the Master Credit Agreement (Revolving Term Facility) between
Borrower and Lender dated the date hereof, as amended, restated, supplemented, or otherwise modified from time to time.
Charge Coverage Ratio” means for any fiscal year, the ratio of (a) EBITDA to (b) Fixed Charges.
Charges” means, for any period determined on a consolidated basis in accordance with GAAP, the sum of (a) interest expense, (b) scheduled mandatory principal payments on Total Debt, (c) income tax expense for such period,
(d) Restricted Payments declared or otherwise allocated, and (e) Non-Financed Maintenance Capital Expenditures.
“Food Security Act” means the Food Security Act of 1985, 7 U.S.C. § 1631, as amended, and the regulations
“GAAP” means generally accepted accounting principles as in effect
from time to time in the United States applied on a consistent basis.
“Governmental Authority” means the
government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
“Guarantee” of or by any Person, including without limitation any Governmental Authority providing a guarantee of any
portion of the Obligations, (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (d) as an account party in respect of any letter of credit
or letter of guarantee issued in support of such Indebtedness or obligation. The term “Guarantee” does not include endorsements for collection or deposits in the ordinary course of business. The amount of any Guarantee is deemed to be an
amount equal to the stated or determinable amount of the primary obligation in respect of which Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required
to perform thereunder) as determined by such Person in good faith. The term “Guarantee” used as a verb has a corresponding meaning.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances,
wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
“Hedging Agreements” means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency future or option contracts, commodity agreements and other similar agreements or arrangements designed to protect against fluctuations in interest rates, currency values or
commodity values, in each case to which Borrower is a party.
“Indebtedness” of any Person means, without
duplication (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person in respect of the deferred
purchase price of property or services (other than trade payables incurred in the ordinary course of business; provided, that for purposes of Section 7.01(e), trade payables overdue by more than 120 days are included in this
definition except to the extent that any of such trade payables are being disputed in good faith and by appropriate measures), (d) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to
property acquired by such Person, (e) all Capital Lease Obligations of such Person, (f) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances or similar extensions of credit, (g) all
Guarantees of such Person, (h) the lesser of (X) all Indebtedness of a third party secured by any Lien on property owned by such Person, whether or not such Indebtedness has been assumed by such Person, and (Y) the greater of
(1) the book value of such property and (2) the amount by which such Indebtedness is debt of such Person under GAAP, (i) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for
value any common stock, membership unit or other capital interest of such Person, (j) Off-Balance Sheet Liabilities, and (k) all capital interests of such person (such as preferred units) which call for a fixed or formulaic amount to be
paid to the holder thereof or that have a maturity date. The Indebtedness of any Person includes the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms
of such Indebtedness provide that such Person is not liable therefor.
“Interest Expense” shall mean, for Borrower
and its Subsidiaries for any period determined on a consolidated basis in accordance with GAAP, the sum of (i) total cash interest expense, including without limitation the interest component of any payments in respect of
Capital Lease Obligations capitalized or expensed during such period (whether or not actually paid during such period), plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not actually paid or received during such period).
“Inventory” has the meaning ascribed thereto in the UCC, and shall include, without limitation, grain, grain sorghum,
corn, soybeans, wheat, ethanol, dried distiller’s grains and solubles, corn oil, and other goods, held by Borrower for sale or for processing and sale.
“Investment Accounts” means all securities or investment accounts of Borrower with brokerage firms and other Persons.
“Investments” has the meaning set forth in Section 6.04.
“Lender,” means AgCountry Farm Credit Services, PCA, and its successors and assigns.
“Lien” means any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).
“Loan” means a loan, commitment, credit facility or accommodation made or available to Borrower under this Agreement
as more fully described in a Supplement.
“Loan Documents” means collectively this Master Agreement, the
Supplements, the Mortgage, the Security Agreement, the Notes, the Collateral Assignments, all UCC financing statements filed by Lender in connection with perfection of Lender’s security interest in the Collateral, and any Control Agreements,
draw requests, and any and all other instruments, agreements, documents and writings executed pursuant to any of the foregoing which have been delivered in fulfillment of a condition precedent to effectiveness or to Lender’s obligations under
any of the foregoing, or which have otherwise been executed by Borrower and delivered to Lender in connection with the Obligations or the Collateral.
“Master Agreement” means solely this Master Credit Agreement, not including the Supplements, as amended, restated, or
otherwise modified (other than by Supplements entered into pursuant to Section 1.02) from time to time.
Adverse Effect” means, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singularly or
in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, a material adverse change in, or a material adverse effect on, (a) the business, results of operations,
financial condition, assets, or liabilities, of Borrower, (b) the ability of Borrower to perform any of its obligations under the Loan Documents, (c) the rights and remedies of Lender under any of the Loan Documents or (d) the
legality, validity or enforceability of any of the Loan Documents.
“Material Contract” means an agreement to which
Borrower is or hereafter becomes a party to which (a) has a term of more than two years, (b) calls for payment to or from Borrower in any calendar year in excess of $1,000,000, or (c) is material to the conduct of the Business as
determined by Lender with notice to Borrower.
“Material Indebtedness” means Indebtedness (other than the
Loans) or obligations in respect of one or more Hedging Agreements in an aggregate principal amount of $500,000 or more. For purposes of determining Material Indebtedness, the “principal amount” of the obligations in respect to any Hedging
Agreement at any time is the maximum aggregate amount (giving effect to any netting agreements) that Borrower would be required to pay if such Hedging Agreement were terminated at such time.
“Maximum Rate” has the meaning set forth in Section 1.05.
“Mortgage” means the Future Advance Mortgage and Security Agreement and Fixture Financing Statement and Assignment of
Leases and Rents between Borrower and Lender dated December 29, 2015, as amended from time to time.
Plan” has the meaning set forth in Section 4001(a)(3) of ERISA.
“Net Income” means net income
(or loss) determined on a consolidated basis in accordance with GAAP, but excluding (a) extraordinary gains or losses, (b) gains attributable to write-up of assets, (c) any equity interest in unremitted earnings of any Person that is
not a Subsidiary, and (d) income (or loss) of any Person which accrued prior to the date such Person becomes a Subsidiary or is merged into or consolidated with Borrower or any Subsidiary on the date such Person’s assets are acquired by
the Borrower or a Subsidiary.
“Non-Financed Maintenance Capital Expenditures” shall mean the sum of Capital
Expenditures paid during the period related to maintenance of Borrower’s property and plant and equipment, except the term shall not include Capital Expenditures to the extent Borrower or any Subsidiary incurred Indebtedness in
“Notes” means, collectively, all notes of Borrower in favor of Lender issued pursuant to a
“Obligations” means all amounts owed by Borrower to Lender pursuant to or in connection with this
Agreement or any other Loan Document, and any other obligation of Borrower to Lender of any nature whatsoever, including without limitation, all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or
the commencement of any insolvency, reorganization or like proceeding relating to Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, prepayment premiums,
expenses, indemnification and reimbursement payments, costs and expenses (including all fees and expenses of counsel to Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, together with all renewals, extensions, modifications or refinancings thereof.
“Off-Balance Sheet Liabilities” of any Person means (a) any
repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any liability of such Person under any sale and leaseback transactions which do not create a liability on the balance sheet
of such Person, (c) any liability of such Person under any so-called “synthetic” lease transaction, or (d) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the balance sheet of such Person.
Ratio” means the product of Tangible Net Worth divided by Tangible Total Assets, expressed as a percentage of total assets.
“Participant” has the meaning set forth in Section 8.04(c).
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity
performing similar functions.
“Permits” means all of the material licenses, consents, approvals, authorizations
and permits of Governmental Authorities which Borrower is required to maintain in connection with the Project and the operation of the Business, including but not limited to any of the foregoing related to Environmental Laws, zoning and land-use
laws (including any requirement to obtain a special exception, if applicable), water use laws, waste disposal laws, laws requiring construction permits, and occupancy certificates.
“Permitted Encumbrances” means:
(a) Liens securing Indebtedness permitted under Section 6.01 but only to the extent such Indebtedness is secured at the
time it is incurred.
(b) Liens imposed by law for taxes not yet due (or with respect to real estate taxes, not yet
delinquent) or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(c) statutory Liens of landlords and Liens of carriers, warehousemen, mechanic, materialmen and other Liens imposed by law
created in the ordinary course of business for amounts not yet due or which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(d) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment
insurance and other social security laws or regulations;
(e) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(f) judgment and attachment liens not giving rise to an Event of Default or Liens
created by or existing from any litigation or legal proceeding that are currently being contested in good faith by appropriate proceedings and with respect to which adequate reserves are being maintained in accordance with GAAP;
(g) easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or materially interfere with the ordinary conduct of business of Borrower and its Subsidiaries taken as a
(h) Liens in favor of Lender; and
(i) Farm Lease Agreement dated February 10, 2014 between Borrower, as lessor, and Vernon Schwab, as lessee, covering
certain land in Brown County, South Dakota, and any renewals and extensions thereof, and any subsequent lease involving the same property on substantially similar terms.
“Permitted Investments” means:
1. direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
2. commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moody’s and in either
case maturing within six months from the date of acquisition thereof;
3. certificates of deposit, bankers’
acceptances and time deposits maturing within 180 days of the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the
laws of the United States of America or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
4. fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause
(1) above and entered into with a financial institution satisfying the criteria described in clause (3) above;
5. mutual funds investing solely in any one or more of the Permitted Investments described in clauses (1) through
(4) above; and
6. Hedging Agreements approved in writing by Lender solely to hedge or mitigate risks to which
Borrower is exposed in the conduct of its business or management of its liabilities.
“Person” means any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV
of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“Real Estate” means all real property owned or leased by Borrower.
“Release” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge,
dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
“Responsible Officer” means Borrower’s chairman, vice chairman, president, chief operating officer, vice
president, secretary, general manager or chief financial officer, or such other duly authorized Person as may be designated in writing with the prior written consent of Lender.
“Restricted Payment” has the meaning set forth in Section 6.05.
“Required Stock” means the member stock or participation certificates in Lender in amounts as Lender may require
Borrower to purchase from time to time under the capital plan adopted by Lender.
“Second Supplement” means the
Second Supplement to the Master Credit Agreement (Term Loan) between Borrower and Lender dated the date hereof, as amended, restated, supplemented, or otherwise modified from time to time.
“Security Agreement” means the Security Agreement between Lender and Borrower dated the date hereof, as amended,
restated, supplemented or otherwise modified from time to time.
“Setoff” has the meaning set forth
in Section 8.07.
“Subsidiary” means, with respect to any Person (the “parent”),
any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any other corporation, partnership, joint venture, limited liability company, association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of
such date, otherwise Controlled (as set forth in clause (b) of the definition thereof), by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all
references to “Subsidiary” hereunder mean a Subsidiary of Borrower (including Subsidiaries formed after the Closing Date).
“Supplements” has the meaning set forth in Section 1.02.
“Tangible Total Assets” means, total assets less minority investment interests in other entities, less the amount of
appraisal surplus or any write-up in book value of any assets resulting from a revaluation thereof or any write-up in excess of the cost of such assets acquired reflected on the consolidated balance sheet of Borrower as of such date prepared in
accordance with GAAP, less the net book amount of all intangible assets.
“Tangible Net Worth” means, as of any
date, (a) the sum of (1) the total assets of Borrower that would be reflected on Borrower’s consolidated balance sheet as of such date prepared in accordance with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, and (2) subordinated indebtedness authorized in writing by Lender, less (b) the sum of (1) the total liabilities of Borrower that would be reflected on a consolidated
balance sheet of Borrower as of such date prepared in accordance with GAAP, (2) the amount of appraisal surplus or any write-up in the book value of any assets resulting from a revaluation thereof or any write-up in excess of the cost of such
assets acquired reflected on the consolidated balance sheet of Borrower as of such date prepared in accordance with GAAP, and (3) the net book amount of all intangible assets.
“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority arising from payment hereunder or from the execution, delivery, or enforcement of, any Loan Document, including, without limitation, all present or future stamp or documentary taxes or any other excise or
property taxes. “Taxes” does not include taxes based on (or determined solely by) Lender’s net income.
Company” means Old Republic National Title Insurance Company and its successors and assigns, and/or any other title insurance company selected by Lender from time to time.
“Total Debt” means all Indebtedness that should be reflected on Borrower’s consolidated balance sheet prepared in
accordance with GAAP.
“Total Outstanding Debt to EBITA Ratio” means the ratio of all interest bearing
Indebtedness to EBITDA.
“Uniform Commercial Code” or “UCC” means the
Uniform Commercial Code as in effect from time to time in the State of North Dakota.
“Utilities” means natural
gas, telephone, water, and electricity.
“Withdrawal Liability” means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Working Capital” means on the date of determination, the sum of
(i) current assets (excluding all reserves) and (ii) the undrawn portion of the Revolving Commitment Amount (as defined in the First Supplement), in each case as of such date, less current liabilities (including the current portion of the
Loans and other long term Indebtedness, except to the extent such liabilities are accounted for by reserves excluded from current assets.