|
After-tax net income
|
| Add:
|
| Depreciation and Amortization Expense
Capital Retains
|
| Subtract:
|
| Non Cash Patronage Income
Cash Patronage or Dividend Payable in Subsequent Fiscal Year based on the Current Fiscal Year's Net Income
Extraordinary Gains or Losses, after taxes income or expense
Gain or (Loss) on Asset Sales
Retains Revolved
|
| Equal to:
|
| Adjusted Cashflows from Operations
|
| Divided by:
|
| Prior period current portion of Long Term Liabilities plus
Prior period current portion of Capitalized Leases
|
| Equals:
|
| Debt Service Coverage Ratio
GENERAL CONDITIONS
While this loan agreement is in effect, the Borrower agrees to comply with the following conditions:
A.Eligibility Status: The Borrower will maintain its status as an eligible borrower as defined in the Farm Credit Act of 1971, as
amended (12 U.S.C. 2129).
B.Stock Investment: The Borrower will purchase equities of the Bank in such amounts as prescribed by the Bank's capital plan and any
amendments to the plan.
C.Non-Patronage Loans: Term Loan, Note No. 39181NP and Letter of Credit Commitment, Note No. 39182NP shall be
non-patronage loans. The Borrower foregoes any opportunity to purchase Bank equities or receive allocations of patronage earnings on Term Loan, Note No. 39181NP and Letter of Credit Commitment,
Note No. 39182NP.
X.Xxxxxxxxx: The Borrower and PPI will maintain:
0.Xxxxxxxx
and property insurance with financially sound insurers, in amounts sufficient to protect the Loans.
2.Flood
insurance as may be required by the Bank in accordance with applicable law including, but not limited to, regulations of the Farm Credit Administration.
3.All
appropriate grain licenses and all required grain buyers' and warehouse bonds.
X.Xxxxxxxxx Information: The Borrower will furnish the Bank audited annual financial statements prepared in accordance with Generally
Accepted Accounting Principles ("GAAP"), and acceptable auditors' reports, within 120 days after the end of each fiscal year, annual operating budgets within 60 days after the end of
each fiscal year; monthly financial statements prepared in accordance with GAAP within 45 days after the end of each month, and such other information as the Bank may request relative to the
Borrower's business, and permit such examination of its books and records as the Bank may specify. The Borrower also agrees that parties preparing such financial information are authorized
to release to the Bank such financial information as the Bank may request.
7
F.Collateral Reports: The Borrower will furnish the Bank collateral reports to be submitted in such form and frequency as required by
the Bank.
G.Negative Pledge, Merger, etc.: The Borrower will not mortgage, pledge, assign, or grant security interests in any assets to any
other party without the prior written consent of the Bank, which consent will not be unreasonably withheld, or allow to exist any non-consensual or statutory lien or judgment against it or its assets.
The Borrower will not sell, lease or dispose of its assets except in the ordinary course of business. The Borrower will not merge or consolidate with any other entity, or form or create any new
subsidiary, or purchase all or a material part of the assets of any person or entity, or commence operations under any other name or organization.
H.Corporate Documents: The Borrower will not amend its articles of incorporation, by-laws, growers agreement, nor its grain delivery
payment policies without the prior written consent of the Bank, which consent will not be unreasonably withheld.
I.Environmental Representations, Conditions, and Indemnity Clause: Except as disclosed in writing to the Bank, the Borrower and PPI
represents and agrees to the following:
1.Hazardous Material Notice: The Borrower represents that it has not received a notice from any governmental agency or other persons
nor is there any present or threatened suit, investigation, or other proceeding, with regard to Hazardous Materials (defined in paragraph 7 below) on, in, or affecting its owned or leased
property. It shall immediately give the Bank oral and written notice if it receives such a notice.
0.Xx Violation of Environmental Laws: The Borrower has not and will not violate any federal, state, or local environmental laws
relating to or affecting its owned or leased property, which violation would have a material affect on the Borrower's business or materially affects the value of the collateral.
0.Xx Releases of Hazardous Material: There has been no release, nor shall the Borrower permit any release, of such nature requiring
notification to proper authorities of any Hazardous Material onto the Borrower's owned or leased property.
0.Xxxxxxx Tank Registered; No Leaks: All above ground and underground storage tanks have been duly registered with all applicable
federal, state and local government authorities. The Borrower has no knowledge of any leaks from any of its above ground or underground storage tanks.
5.Investigation of Released Hazardous Materials: If there is a suspected release of Hazardous Materials, the Borrower shall, at its
own expense conduct all investigations, testing, and other actions, including an environmental audit made at the Bank's request, necessary to determine the extent (if any) of the release of Hazardous
Materials and to clean up and remove all Hazardous Material in accordance with environmental laws.
6.Indemnity: The Borrower agrees to indemnify, hold harmless, and defend the Bank against all claims of whatever kind (including
attorneys', consultants', and experts' fees) paid or asserted against the Bank as a direct result of the Borrower's violation of any environmental law. This indemnity shall continue for the benefit of
the Bank after the termination of this loan agreement or other loan or security documents.
7.Definition: Hazardous Material is defined as any toxic, radioactive, or hazardous substance, material, waste, pollutant, emission,
or contaminant, including but not limited to: (a) asbestos, (b) urea formaldehyde, (c) the group of organic compounds known as polychlorinated biphenyls (PCBs), (d) any
petroleum product and byproduct including but not limited to gasoline, fuel oil, crude oil, and the various constituents of such products, and (e) pesticides, fertilizers, and other
agricultural chemicals.
8
REPAYMENT
The indebtedness arising from the Loans shall be repaid as follows:
A.The
Seasonal Loan, Note No. A637S01, of not to exceed $15,000,000 shall mature on December 31, 2000; provided, however, the Borrower shall make such payments from time to
time as may be required to maintain the loan within the limits set forth in the "LIMITATION ON ADVANCES" section of this loan agreement; provided further, any balances outstanding under the fixed rate
seasonal loan provisions shall mature as specified in the statement. Any outstanding fixed amounts as of December 31, 2000 shall be repaid no later than June 30, 2001.
B.The
present Term Loan, Note No. 39181NP, of $10,800,000, shall be repaid by annual principal payments of One Million Two Hundred Thousand Dollars ($1,200,000) each, to be
remitted to the Bank on or before September 30 of each year. All outstanding balances shall be repaid by September 30, 2008.
C.Advances
made in support of Letter of Credit Commitment, Note No. 39182NP, of not to exceed $10,800,000, shall be payable on demand.
D.The
present Term Loan, Note No. 33061, of $9,500,000 shall be repaid by quarterly principal payments of Six Hundred Eighty-Five Thousand Dollars ($685,000) each, to be
remitted to the Bank on or before March 31, June 30, September 30, and December 31 of each year, commencing on September 30, 2001; provided, however, that if the
Borrower is not in default, it shall not be required to make payments that would accelerate the repayment of fixed interest rate balances. All outstanding balances shall be repaid by
December 31, 2004.
E.The
present Construction Term Loan, Note No. 35062, of $13,000,000 shall be repaid by quarterly principal payments of Six Hundred Twenty-Five Thousand Dollars ($625,000)
each, to be remitted to the Bank on or before March 31, June 30, September 30, and December 31 of each year; provided, however, that if the Borrower is not in default, it
shall not be required to make payments that would accelerate the repayment of fixed interest rate balances. All outstanding balances shall be repaid by December 31, 2004.
In
the absence of instructions from the Borrower, or if the Borrower is in default, the Bank, at its discretion, may apply repayments to the reduction of any of the indebtedness
outstanding between the Bank and the Borrower.
LATE FEE PENALTY
Payments received twenty (20) calendar days after the scheduled repayment date are subject to a late payment penalty equal to 1% of the past due amount
but not less than $25.00 per transaction.
EXPIRATION
The unadvanced portion of the Loans shall be cancelled as indicated below; provided, however, the Bank may, at its option, extend the expiration date of the
Loans and the maturity date of the Seasonal Loan without notice to or consent of the Borrower.
Seasonal
Loan, Note No. A637S01—December 31, 2000
Letter
of Credit Commitment, Note No. 39182NP—December 31, 2008, subject to decreased amounts provided for in the letter of credit.
9
REINSTATEMENT
In order to facilitate repayments and reborrowings under this loan agreement, the Bank is authorized to reinstate all sums repaid on the Seasonal Loan through
the expiration date specified in this loan agreement; provided, however, that the total amount outstanding under this loan agreement shall not exceed the face amount of the Seasonal Loan; and
provided, further, that the right of the Borrower to such reinstatement may be denied and cancelled at any time at the option of the Bank.
DEFAULT PROVISION
If the Borrower shall fail to pay when due any amount on any of the Loans under this loan agreement, or on any other indebtedness of the Borrower to the Bank,
or fail to observe or perform any of the provisions or representations of this loan agreement, or of any security agreement, mortgage, or other security document, or shall be subject to the
jurisdiction of a bankruptcy court whether by a voluntary filing or involuntary action, or shall be in default of the Note Purchase Agreement executed by Borrower dated as of July 15, 1998, or
any of the documents evidencing such Note Purchase Agreement or securing the obligation thereunder, the Borrower shall be in default. When the Borrower is in default, the Bank may declare by written
notice to the Borrower that the Loans and other indebtedness are immediately due and payable. The Bank may then terminate its commitment to lend and cancel any reinstatement rights provided to the
Borrower under this loan agreement, and proceed to enforce payment and exercise any or all of the rights afforded to the Bank by law or agreement. Upon demand, and as permitted by law, the Borrower
shall reimburse the Bank for all attorneys' fees and costs incurred by the Bank in protecting or enforcing its rights or collateral, including reasonable attorneys' fees incurred by the Bank in a
bankruptcy or receivership proceeding or in enforcing any judgment against the Borrower.
ACCEPTANCE
This loan agreement is the full agreement under the terms and conditions of the Loans. It shall not be modified except in writing, and shall not become
effective unless the Borrower shall, within 90 days from date, signify its acceptance of these terms and conditions by signing and returning a copy of this loan agreement to the Bank.
BY
DIRECTION of the loan committee this 9th day of November, 1999.
| CoBank, ACB
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
Its
|
|
|
|
|
|
|
| ACCEPTED AND AGREED TO:
|
|
|
|
|
|
|
| DAKOTA GROWERS PASTA COMPANY
CARRINGTON, NORTH DAKOTA
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
Its
|
|
|
|
|
|
|
Date
|
|
10
|
|
|
|
| ACKNOWLEDGED BY AND AGREED TO
AS TO SECTION VIII; AND SECTION X.,
PARAGRAPHS D. AND I.:
|
|
|
|
|
|
|
| PRIMO PIATTO, INC.
NEW HOPE, MINNESOTA
|
|
|
|
|
|
|
By
|
|
|
|
|
|
|
Its
|
|
|
|
|
|
|
Date
|
|
11
NONNEGOTIABLE NOTE OF DAKOTA GROWERS PASTA COMPANY CARRINGTON, NORTH DAKOTA
Note No. A637S01
$15,000,000.00
November 9,
1999
For
value received, the undersigned ("Maker") promises to pay to CoBank, ACB, (the "Bank"), at its office in the City of Denver, Colorado, the sum of Fifteen Million and no/100
Dollars ($15,000,000.00) with interest on the unpaid balance at a variable rate of interest which may increase or decrease as the Bank may, from time to time, determine as provided in the Loan
Agreement of even date between the Maker and the Bank. The unpaid balance of this note, with accrued interest, and required equity purchases, may be paid at any time subject to a prepayment penalty,
if any, in accordance with the terms of the Loan Agreement between the Bank and Maker.
This
note shall at all times evidence and constitute prima facie proof of the indebtedness of the Maker to the Bank or its successors or assigns, of such amount of money (not in
excess of the amount of the principal indebtedness stated above plus accrued interest and required equity purchases) as shown to be owing by the records of the Bank, or its successors or assigns.
In
the event that suit is brought on this note, the Maker agrees to pay such reasonable attorneys' fees and costs of collection as permitted by law to be charged.
The
Maker hereby waives presentment for payment, demand, protest, notice of protest, and notice of dishonor and nonpayment of this note.
If
requested by the Bank, its successors or assigns, the Maker agrees to deliver in substitution for this note, a negotiable note for the amount of the unpaid balance of Maker's
indebtedness, plus accrued interest and required equity purchases.
| | |
