EXHIBIT 10.3
CONSTRUCTION AND REVOLVING TERM LOAN
SUPPLEMENT
THIS SUPPLEMENT to the Master Loan Agreement dated
November 20, 2006, (the “MLA”), is entered into as
of November 20, 2006, and effective as of June 1, 2007,
(the “Effective Date”) between FARM CREDIT SERVICES
OF AMERICA, FLCA (“Farm Credit”) and ABE
FAIRMONT, LLC, Fairmont, Nebraska (the
“Company”).
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, $4,000,000.00 (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.
SECTION 2. Purpose. 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. 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
Effective Date hereof (or, if requested by Company, such earlier
date as Agent may, in its sole discretion, authorize in writing),
up to and including May 31, 2009, or such later date as Agent
may, in its sole discretion, authorize in writing.
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SECTION 4.
Disbursements of Proceeds. (A) Disbursement
Procedures.
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(1) Limits on Advances.
Agent shall not be required to
advance funds: (i) for any category or line item of
acquisition or construction cost an amount greater than the amount
specified therefor in the Project Budget (as defined in
Section 7(A)(xi) of the MLA); or (ii) for any services
not yet performed or for materials or goods not yet incorporated
into the Improvements or delivered to and properly stored on the
Property. No advance hereunder shall exceed 100% of the aggregate
costs actually paid or currently due and payable and represented by
invoices accompanying a Request for Construction Loan Advance
submitted pursuant to Section 9(B)( 1) herein less the amount
of retainage (“Retainage”) set out in the construction
contract between the Company and Fagen, Inc., and other
construction contracts of the Company for the
Improvements.
(2) Advance of Retainage.
The Retainage (but in no case
greater than the unused balance of the Commitment allocated for
construction) will be advanced by Agent to the Company pursuant to
the conditions set forth in such construction contracts, upon
written request by the Company certifying the satisfaction of such
conditions precedent for payment of Retainage.
(3) Advances for Working Capital
Purposes. Company may
request advances for pre-production expenses or working capital
purposes at any time upon written verification to Agent of the
purpose of such advance request.
(B) Payments to Third Parties.
If there is an Event of Default (as
defined in the MLA) at its option and without further authorization
from the Company, Agent is authorized to make advances under the
Commitment by paying, directly or jointly with the Company, any
person to whom Agent in good faith determines payment is due and
any such advance shall be deemed made as of the date on which Agent
makes such payment and shall be secured under the deed of
trust/mortgage securing the Commitment and any other loan documents
securing the Commitment as fully as if made directly to the
Company.
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) Agent Base Rate.
At a rate per annum equal at all
times to 1/2 of 1% above the rate of interest established by Agent
from time to time as its Agent Base Rate, which Rate is intended by
Agent to be a reference rate and not its lowest rate. The Agent
Base Rate will change on the date established by Agent as the
effective date of any change therein and Agent agrees to notify the
Company of any such change.
(2) Quoted Rate. At a fixed rate per annum to be quoted by Agent
in its sole discretion in each instance. Under this option, rates
may be fixed on such balances and for such periods, as may be
agreeable to Agent in its sole discretion in each instance,
provided that: (1) the minimum fixed period shall be
30 days; (2) amounts may be fixed in increments of
$500,000.00 or multiples thereof; and
(3) the maximum number of fixes in place at
any one time shall be five.
(3) LIBOR. At a fixed rate per annum equal to
“LIBOR” (as hereinafter defined) plus 3.40%. Under this
option: (1) rates may be fixed for “Interest
Periods” (as hereinafter defined) of 1, 2, 3, 6, 9, or
12 months as selected by the Company; (2) amounts may be
fixed in increments of $500,000.00 or multiples thereof;
(3) the maximum number of fixes in place at any one time shall
be five; and (4) rates may only be fixed on a “Banking
Day” (as hereinafter defined) on 3 Banking Days’ prior
written notice. For purposes hereof: (a) “LIBOR” shall
mean the rate (rounded upward to the nearest sixteenth and adjusted
for reserves required on “Eurocurrency Liabilities” (as
hereinafter defined) for banks subject to “FRB
Regulation D” (as herein defined) or required by any
other federal law or regulation) quoted by the British Bankers
Association (the “BBA”) at 11:00 a.m. London time 2
Banking Days before the commencement of the Interest Period for the
offering of U.S. dollar deposits in the London interbank market for
the Interest Period designated by the Company; as published by
Bloomberg or another major information vendor listed on BBA’s
official website; (b) “Banking Day” shall mean a day on
which Agent is open for business, dealings in U.S. dollar deposits
are being carried out in the London interbank market, and banks are
open for business in New York City and London, England; (c)
“Interest Period” shall mean a period commencing on the
date this option is to take effect and ending on the numerically
corresponding day in the next calendar month or the month that is
2, 3, 6, 9, or 12 months thereafter, as the case may be;
provided, however, that: (i) in the event such ending day is
not a Banking Day, such period shall be extended to the next
Banking Day unless such next Banking Day falls in the next calendar
month, in which case it shall end on the preceding Banking Day; and
(ii) if there is no numerically corresponding day in the
month, then such period shall end on the last Banking Day in the
relevant month; (d) “Eurocurrency Liabilities” shall
have meaning as set forth in “FRB Regulation D”;
and (e) “FRB Regulation D” shall mean
Regulation D as promulgated by the Board of Governors of the
Federal Reserve System, 12 CFR Part 204, as
amended.
The Company shall select the
applicable rate option at the time it requests a loan hereunder and
may, subject to the limitations set forth above, elect to convert
balances bearing interest at the variable rate option to one of the
fixed rate options. Upon the expiration of any fixed rate period,
interest shall automatically accrue at the variable rate option
unless the amount fixed is repaid or fixed for an additional period
in accordance with the terms hereof. Notwithstanding the foregoing,
rates may not be fixed in such a manner as to cause the Company to
have to break any fixed rate balance in order to pay any
installment of principal. All elections provided for herein shall
be made electronically (if applicable), telephonically or in
writing and must be received by Agent not later than 12:00 Noon
Company’s local time in order to be considered to have been
received on that day; provided, however, that in the case of LIBOR
rate loans, all such elections must be confirmed in writing upon
Agent’s request. Interest shall be calculated on the actual
number of days each loan is outstanding on the basis of a year
consisting of 360 days and shall be payable monthly in arrears
by the 20th day of the following month or on such other day in such
month as Agent shall require in a written notice to the Company;
provided, however, in the event the Company elects to fix all or a
portion of the indebtedness outstanding under the LIBOR interest
rate option above, at Agent’s option upon written notice to
the Company, interest shall be payable at the maturity of the
Interest Period and if the LIBOR interest rate fix is for a period
longer than 3 months, interest on that portion of the
indebtedness outstanding shall be payable quarterly in arrears on
each three-month anniversary of the commencement date of such
Interest Period, and at maturity.
(B) Commitment Fee. In consideration of the Commitment, the Company
agrees to pay to Agent a commitment fee on the average daily unused
portion of the Commitment (as permanently reduced by the Company,
if applicable, under Section 1 above) at a rate of 5/8 of 1%
per annum (calculated on a 360 day basis), payable monthly in
arrears by the 20th day following each month. Such fee shall be
payable for each month (or portion thereof) occurring during the
original or any extended term of the Commitment.
SECTION 6. Promissory Note.
The Company promises to repay the
loans that are outstanding at the time the Commitment expires on
June 1, 2009. If any installment due date is not a day on
which Agent is open for business, then such installment shall be
due and payable on the next day on which Agent is open for
business. In addition to the above, the Company promises to pay
interest on the unpaid principal balance hereof at the times and in
accordance with the provisions set forth in Section 5
hereof.
SECTION 7. Prepayment. In addition to the broken funding surcharge
provision of the MLA, prepayment of any outstanding principal
balance due to refinancing, or refinancing of any unadvanced
Commitment, up to and including June 1, 2009, will result in a
3% prepayment charge in addition to any broken funding surcharges
which may be applicable, based on the amounts prepaid and on the
total amount of the Commitments in effect at such time.
SECTION 8. Security.
Security is set forth in the MLA.
SECTION 9. Additional Conditions Precedent.
(A) Initial Advance.
Agent’s obligation to make the
initial advance is subject to the satisfaction of each of the
following additional conditions precedent on or before the date of
such advance:
(1) List of Permits.
Receipt by Agent of a detailed list
of all permits required for both the construction of the
improvements and the operation of the facility setting forth for
each listed permit whether such permit is required for commencement
of construction or required for commencement of operation, and
identifying to Agent’s satisfaction whether such permits have
been issued or can reasonably be expected to be issued.
(2) Construction Permits.
Receipt by Agent of evidence of
issuance of all permits that are required to be obtained prior to
the commencement of construction of the improvements.
(3) Engineer’s
Certificate. Receipt by
Agent of a report of Agent’s retained engineer (pursuant to
the provisions of Section 14(D)) indicating that the current
plans and specifications of the Improvements and the related
contracts establish that the finished project will have adequate
natural gas, electricity, water and waste water treatment to
service the requirements of the project.
(B) Each Advance. Agent’s obligation to make each advance
hereunder, including the initial advance, is subject to the
satisfaction of each of the following additional conditions
precedent on or before the date of such advance:
(1) Request for Construction Loan
Advance. That Agent
receives an executed request for construction loan advance from the
Company in the form of Exhibit A attached hereto (the
“Request for Construction Loan Advance”), together with
all items called for therein.
(2) Construction Certificate.
If an independent inspector has been
employed by Agent pursuant to Section 14(D), a certificate or
report of such inspector to the effect that the construction of the
Improvements to the date thereof has been performed in a good and
workmanlike manner and in accordance with the Plans, stating the
estimated total cost of construction of the Improvements, stating
the percentage of in-place construction of the Improvements, and
stating that the remaining non-disbursed portion of the Commitment
is adequate to complete the construction of the
Improvements.
SECTION 10. Representations and
Warranties. In addition
to the representations and warranties contained in the MLA, the
Company represents and warrants as follows:
(A) Project Approvals; Consents;
Compliance. The Company
has obtained all Project Approvals relating to the construction and
operation of the Improvements, except those the Company has
disclosed to Agent in writing. All such Project Approvals
heretofore obtained remain in full force and effect and the Company
has no reason to believe that any such Project Approval not
heretofore obtained will not be obtained by the Company in the
ordinary course during or following completion of the construction
of the Improvements. To the extent that any Project Approval may
terminate or become void or voidable or terminable, upon any sale,
transfer or other disposition of the Property or the Improvements,
including any transfer pursuant to foreclosure sale under the
Mortgage, the Company will cooperate with Agent to obtain any
replacement Project Approvals. No consent, permissi