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EXHIBIT
10.2
CONSTRUCTION
AND TERM LOAN SUPPLEMENT
THIS SUPPLEMENT
to the Master Loan Agreement dated
November 20, 2006, (the “MLA”), is entered into as of
November 20, 2006, between FARM CREDIT SERVICES OF AMERICA, FLCA (“Farm
Credit”) and ABE FAIRMONT, LLC, Fairmont, Nebraska (the
“Company”).
SECTION 1. The
Construction and Term Loan Commitment. On
the terms and conditions set forth in the MLA and this Supplement, Farm Credit
agrees to make construction 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, $6,500,000.00 (the “Commitment”). Under the
Commitment, amounts borrowed and later repaid may not be reborrowed. No advance
shall be made until evidence has been provided to the Agent (as that term is
defined in the MLA) as required in Section 7(A)(vii) of the MLA that all
requisite equity funds have been received by the Company and that such funds
shall have been utilized for the construction of the Improvements (as defined
herein).
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 the Company agrees to utilize the
proceeds of the Commitment for that purpose only.
SECTION 3.
Term. The term of the Commitment
shall be from the date hereof, up to and including September 1, 2007, or
such later date as Agent may, in its sole discretion, authorize in writing.
SECTION 4.
Disbursements of Proceeds.
(A) Disbursement
Procedures.
(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.
(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 50 Basis Points 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 180 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 ten.
(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
ten; 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) Loan
Origination Fee. In consideration of
the Commitment, the Company agrees to pay to Agent a loan origination fee in
the amount of $72,500.00 (less any payments already received by Agent) upon the
execution hereof.
SECTION 6.
Promissory Note. The Company promises
to repay the loans 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. Subject to the broken
funding surcharge provision of the MLA, the Company may on one Business
Day’s prior written notice prepay all or any portion of the loan(s).
Unless otherwise agreed, all prepayments will be applied to principal
installments in the inverse order of their maturity. However, in addition to
the foregoing, prepayment of any Loan 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, permission,
authorization, order, or license of any governmental authority is necessary in
connection with the execution, delivery, performance, or enforcement of the
loan documents to which the Company is a party, except such as have been
obtained and are in full force and effect. The Company is in compliance in all
material respects with all Project Approvals having application to the Property
or the Improvements except as the Company has disclosed to Agent in writing.
Without limiting the foregoing, there are no
unpaid or outstanding real estate or other
taxes or assessments on or against the Property or the Improvements or any part
thereof (except only real estate taxes not yet due and payable). The Company
has received no notice nor has any knowledge of any pending or contemplated
assessments against the Property or the Improvements which have not been
disclosed to Agent in writing.
(B) Environmental
Compliance. Without limiting the
provisions of the MLA, all property owned or leased by the Company, including,
without limitation, the Property and the Improvements, and all operations
conducted by it are in compliance in all material respects with all Laws and all
Project Approvals relating to environmental protection, the failure to comply
with which could have a material adverse effect on the condition, financial or
otherwise, operations, properties, or business of the Company, or on the
ability of the Company to perform its obligations under the loan documents,
except as the Company has disclosed to Agent in writing.
(C) Feasibility.
Each of the Project Budget, the
Project Schedule and the Disbursement Schedule is realistic and feasible.
SECTION 11.
Affirmative Covenants. In addition to
the affirmative covenants contained in the MLA, the Company agrees to:
(A) Reports
and Notices. Furnish to Agent:
(1) Regulatory
and Other Notices. Promptly after
receipt thereof, copies of any notices or other communications received from
any governmental authority with respect to the Property, the Improvements, or
any matter or proceeding the effect of which could have a material adverse
effect on the condition, financial or otherwise, operations, properties, or
business of the Company, or the ability of the Company to perform its
obligations under the loan documents.
(2) Notice
of Nonpayment. Promptly after the
filing or receipt thereof, a description of or a copy of any lien filed by or
any notice, whether oral or written, from any laborer, contractor,
subcontractor or materialman to the effect that such laborer, contractor,
subcontractor or materialman has not been paid when due for any labor or
materials furnished in connection with the construction of the Improvements.
(3) Notice
of Suspension of Work. Prompt notice
of any suspension in the construction of the Improvements, regardless of the
cause thereof, in excess of ten (10) days and a description of the cause
for such suspension.
(B) Construction
Liens. Pay or cause to be removed,
within fifteen (15) days after notice from Agent, any lien on the
Improvements or Property, provided, however, that Company shall have the right
to contest in good faith and with reasonable diligence the validity of any such
lien or claim.
(C) Identity
of Contractors, etc. Furnish to Agent
from time to time on request by Agent, in a form acceptable to Agent, correct
lists of all contractors, subcontractors and suppliers of labor and material
supplied in connection with construction of the Improvements and true and
correct copies of all executed contracts, subcontracts and supply contracts.
Agent may contact any contractor, subcontractor or supplier to verify any facts
disclosed in the lists and contracts. All contracts and subcontracts relating
to construction of the Improvements must
contain provisions authorizing or not prohibiting the Company to supply to
Agent the listed information and copies of contracts or not otherwise
prohibiting any transfers.
(D) Lien
Waivers. Furnish to Agent, at any
time and from time to time upon the request of Agent, lien waivers bearing a
then current date and prepared on a form satisfactory to Agent from such
contractor, subcontractor, or supplier as Agent shall designate.
(E) Operating
Permits. Furnish to Agent, unless as
otherwise consented to in writing by Agent, as soon as possible but prior to
the commencement of operation of the constructed facility, evidence of the
issuance of all necessary permits for such operation.
SECTION 12.
Negative Covenants. In addition to
the negative covenants contained in the MLA, the Company will not:
(A) Change
Orders. Allow any substantial
deviation, addition, extra, or change order to the Plans, Project Budget or
Project Schedule, the cost of which in the aggregate exceeds $100,000.00,
without Agent’s prior written approval. All requests for substantial
changes shall be made using a Change Order Request in the form of
Exhibit B attached hereto. Agent will have a reasonable time to evaluate
any requests for its approval of any changes referred to in this covenant, and
will not be required to consider approving any changes unless all other
approvals that may be required have been obtained. Agent may approve or
disapprove changes in its discretion. All contracts and subcontracts relating
to the construction of the Improvements must contain provisions satisfactory to
Agent implementing the above provisions of this covenant. Company shall
promptly provide to Agent copies of all change orders that, pursuant to the
above described procedures, did not require Agent’s prior written
approval.
(B) Materials.
Purchase or install any materials,
equipment, fixtures or articles of personal property for the Improvements if
such shall be covered under any security agreement or other agreement where the
seller reserves or purports to reserve title or the right of removal or
repossession, or the right to consider them personal property after their
incorporation in the Improvements.
SECTION 13.
Casualties.
(A) Right
to Elect to Apply Proceeds. In case
of material loss or damage to the Property or to the Improvements by fire, by a
taking by condemnation for public use or the action of any governmental
authority or agency, or the transfer by private sale in lieu thereof, either
temporarily or permanently, or otherwise, if in the sole judgment of Agent
there is reasonable doubt as to Company’s ability to complete
construction of the Improvements on or before August 31, 2007, by reason
of such loss or damage or because of delays in making settlements with
governmental agencies or authorities or with insurers, Agent may terminate its
obligations to make advances hereunder and elect to collect, retain and apply
to the Commitment all proceeds of the taking or insurance after deduction of
all expense of collection and settlement, including attorneys’ and
adjusters’ fees and charges. In the event such proceeds are insufficient
to pay the Commitment in full, Agent may declare the balance remaining unpaid
on the Commitment to be due and payable forthwith and avail itself on any of
the remedies afforded thereby as in any case of default.
(B) Election Not to Apply Proceeds. In case Agent does not elect to apply such proceeds to
the Commitment, Company will:
(1) Settle.
Proceed with diligence to make settlement
with the governmental agencies or authorities or the insurers and cause the
proceeds of insurance to be paid to Company.
(2) Resume
Construction. Promptly proceed with
the resumption of construction of the Improvements, including the repair of all
damage resulting from such fire or other cause and restoration to its former
condition.
(C) Use of
Proceeds. All such proceeds shall be
fully used before the disbursement of any further proceeds of the Commitment.
SECTION 14.
Other Rights of Agent.
(A) Right to Inspect. Agent or its agent may enter on the Property at any time and inspect the Improvements. If the construction of the Improvements is not reasonably satisfactory to Agent, Agent may reasonably and in good faith stop the construction and order its replacement or the correction thereof or additions thereto, whether or not said unsatisfactory construction has been incorporated in the Improvements, and withhold all advances hereunder until such construction is satisfactory to Agent. Such construction shall promptly be made satisfac






