CONSTRUCTION AND REVOLVING TERM
LOAN SUPPLEMENT
THIS
SUPPLEMENT to the Master Loan Agreement dated November 20,
2006, (the “MLA”), is entered into as of
December 24, 2008 between FARM CREDIT SERVICES OF AMERICA,
FLCA (“Farm Credit”) and ABE FAIRMONT, LLC,
Fairmont, Nebraska (the “Company”), and amends and
restates the Supplement dated February 17, 2006 and numbered
RI0340T02, as amended.
SECTION 1. The
Construction and Revolving Term Loan Commitment. On the terms
and conditions set forth in the MLA and this Supplement, Farm
Credit agrees to make loans to the Company from time to time during
the period set forth below in an aggregate principal amount not to
exceed, at any one time outstanding, $25,000,000.00 less the
amounts scheduled to be repaid during the period set forth below in
Section 6 (the “Commitment”). Requests for
advances which are for the purpose of paying the costs to construct
the ethanol plant described below shall be accompanied by
documentation evidencing such costs. Within the limits of the
Commitment, the Company may borrow, repay and reborrow.
The Company may,
in its sole discretion, elect to permanently reduce the amount of
the Commitment by giving Agent (as that term is defined in the MLA)
ten (10) days prior written notice. Said election shall be
made only if the Company is not in default at the time of the
election and will remain in compliance with all financial covenants
after such reduction. Any such reduction shall be treated as an
early, voluntary reduction of the Commitment amount and shall not
delay or reduce the amount of any scheduled Commitment reduction
under Section 6 hereof (which reductions shall continue in the
increments and on the dates determined in accordance with
Section 6), but rather shall result in an earlier expiration
of the Commitment and final maturity of the loans.
SECTION 2.
Purpose and Transfer. The purpose of the Commitment is to
partially finance the Company’s construction of a
100 million gallon (annual) ethanol plant (the
“Improvements”) identified in the plans and
specifications provided to and approved by Agent pursuant to
Section 7(A)(xi) of the MLA (as the same may be amended pursuant to
Section 12(A) herein, the “Plans”), on real
property owned by the Company near Fairmont, Nebraska (the
“Property”) and to provide working capital to the
Company. In addition, the purpose of the Commitment is to
consolidate under this Supplement the Company’s existing
indebtedness to CoBank under the Construction and Revolving Term
Loan Supplement dated November 20, 2006 and numbered
RI0475T02, as amended (the “Existing Agreement”). The
Company agrees that on the date when all conditions precedent to
Agent’s obligation to extend credit hereunder have been
satisfied: (A) the principal balance outstanding under the
Existing Agreement shall be transferred to and charged against the
Commitment; (B) all accrued obligations of the Company under
the Existing Agreement for the payment of interest or other charges
shall be transferred to and become part of the Company’s
obligations under this Supplement as if fully set forth herein; and
(C) the Existing Agreement and the promissory note set forth
in or executed in connection therewith shall be deemed replaced and
superseded, but the indebtedness evidenced by such note shall not
be deemed to have been paid off, by this Supplement and the MLA. In
addition, in the event any balances bearing interest at a fixed
rate are outstanding on the date such loans are being transferred
hereto, then such balances shall continue to be subject to such
rates for the remaining agreed upon fixed rate periods but shall
otherwise be subject to the terms hereof. The Company agrees to
utilize the proceeds of the Commitment for these purposes
only.
SECTION 3.
Term. The term of the Commitment shall be from the date hereof,
up to and including December 1, 2016, or such later date as
Agent may, in its sole discretion, authorize in writing.
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Construction
and Term Loan Supplement RI0340T02C
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ABE Fairmont,
LLC
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Fairmont,
Nebraska
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SECTION 5.
Interest and Fees.
(A) Interest. The Company agrees to pay interest on the
unpaid principal balance of the loans in accordance with one or
more of the following interest rate options, as selected by the
Company:
(1) One-Month LIBOR Index Rate. At a rate (rounded
upward to the nearest 1/100 th and adjusted for reserves required on
“Eurocurrency Liabilities” [as hereinafter defined] for
banks subject to “FRB Regulation D” [as
hereinafter defined] or required by any other federal law or
regulation) per annum equal at all times to 340 basis points above
the annual rate quoted by the British Bankers Association (the
“BBA”) at 11:00 a.m. London time for the offering
of one (1)-month U.S. dollars deposits, as published by Bloomberg
or another major information vender listed on BBA’s official
website on the first U.S. Banking Day (as hereinafter defined) in
each week with such rate to change weekly on such day. The rate
shall be reset automatically, without the necessity of notice being
provided to the Company or any other party, on the first U.S.
Banking Day of each succeeding week, and each change in the rate
shall be applicable to all balances subject to this option.
Information about the then-current rate shall be made available
upon telephonic request. For purposes hereof: (1) “U.S.
Banking Day” shall mean a day on which CoBank is open for
business and banks are open for business in New York, New York; (2)
“Eurocurrency Liabilities” shall have the meaning as
set forth in “FRB Regulation D”; and (3)
“FRB Regulation D” shall mean Regulation D as
promulgated by the Board of Governors of the Federal Reserve
System, 12 CFR Part 204, as amended.
(2) Quoted Rate. At a fixed rate per annum to be quoted
by Agent in its sole discretion in each instance. Under this
option, rates may be fixed on such balances and for such periods,
as may be agreeable to Agent in its sole discretion in each
instance, provided that: (1) the minimum fixed period shall be
30 days; (2) amounts may be fixed in increments of
$500,000.00 or multiples thereof; and (3) the maximum number
of fixes in place at any one time shall be five.
(3) LIBOR. At a fixed rate per annum equal to
“LIBOR” (as hereinafter defined) plus 3.40%. Under this
option: (1) rates may be fixed for “Interest
Periods” (as hereinafter defined) of 1, 2, 3, 6, 9, or
12 months as selected by the Company; (2) amounts may be
fixed in increments of $500,000.00 or multiples thereof;
(3) the maximum number of fixes in place at any one time shall
be five; and (4) rates may only be fixed on a “Banking
Day” (as hereinafter defined) on 3 Banking Days’ prior
written notice. For purposes hereof: (a) “LIBOR”
shall mean the rate (rounded upward to the nearest sixteenth and
adjusted for reserves required on “Eurocurrency
Liabilities” (as hereinafter defined) for banks subject to
“FRB Regulation D” (as herein defined) or required
by any other federal law or regulation) quoted by the British
Bankers Association (the “BBA”) at 11:00 a.m. London
time 2 Banking Days before the commencemen
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