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GREEN PLAINS RENEWABLE ENERGY, INC. | AGFIRST FARM CREDIT BANK | CONFINA FINANCIAL, LLC | FEDERAL AGRICULTURAL MORTGAGE CORPORATION | FIRST NATIONAL BANK OF OMAHA | GREEN PLAINS CENTRAL CITY LLC | GREEN PLAINS HOLDINGS LLC | RBF Acquisition II, LLC | Transmountain Land & Livestock Company. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 10.6
CREDIT AGREEMENT
by and among
GREEN PLAINS CENTRAL CITY LLC, as a Borrower,
and
GREEN PLAINS HOLDINGS LLC, as a Borrower,
and
AGSTAR FINANCIAL SERVICES, PCA, as Administrative Agent,
and
the Banks named herein,
dated as of July 2, 2009
TABLE OF CONTENTS
Page
DEFINITIONS AND ACCOUNTING MATTERS AMOUNTS AND TERMS OF THE LOANS Changes in Law Rendering Certain LIBOR Rate Loans Unlawful Farm Credit System Entity Equity Interests Conditions Precedent to Funding Conditions Precedent to All Advances REPRESENTATIONS AND WARRANTIES Representations and Warranties of the Borrower EVENTS OF DEFAULT AND REMEDIES
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Obligations Several, Not Joint Obligations Absolute; Failure to Fund Pro Rata Share Non-Receipt of Funds by the Agent Binding Effect; Successors and Assigns; Participations Indemnification by the Borrower
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LIST OF SCHEDULES
Schedule 2.01 Commitments Schedule 2.18 Farm Credit System Entities Schedule 3.01(c) Real Property of Borrower Schedule 3.01(ee) Real Property of Green Plains Ord LLC Schedule 4.01(g) Description of Certain Threatened Actions, etc. Schedule 4.01(l) Location of Inventory and Farm Products; Third Parties in Possession; Crops Schedule 4.01(m) Office Locations; Fictitious Names, etc. Schedule 4.01(q) Intellectual Property Schedule 4.01(u) Environmental Compliance Schedule 4.01(x) Subsidiaries Schedule 5.01(m) Management Schedule 5.02(a) Description of Certain Liens, Lease Obligations, etc. Schedule 5.02(b) Description of Certain Transactions Related to the Borrower’s Membership Interests (Units) Schedule 5.02(k) Transactions with Affiliates Schedule 5.02(l) Management Fee and Compensation Schedule 8.02 Notices, Etc.
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this “ Agreement ”), is entered into as of July 2, 2009, by and among GREEN PLAINS CENTRAL CITY LLC , formerly known as RBF Acquisition II, LLC, a Delaware limited liability company (“ GPCC ”), GREEN PLAINS HOLDINGS LLC , a Delaware limited liability company (“ Holdings ” and together with GPCC the “ Borrowers ”), AGSTAR FINANCIAL SERVICES, PCA (“ AgStar ”), the additional commercial, banking or financial institutions whose signatures appear on the signature pages hereof or which hereafter become parties hereto pursuant to Section 8.12 (AgStar and such other additional commercial, banking or financial institutions are sometimes hereinafter collectively as the “ Banks ” and individually as a “ Bank ”), and AGSTAR FINANCIAL SERVICES, PCA, as administrative agent (the “ Agent ”) for itself and the other Banks.
RECITALS
A. Borrowers have requested that the Banks extend to them various credit facilities for the purposes of acquiring and operating an ethanol production facility located in Ord, Nebraska (the “ Project ”).
B. The Banks have agreed to make such loans to the Borrowers pursuant to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, intending to be legally bound hereby, and in consideration of the Banks making one or more loans to the Borrowers, the parties hereto agree as follows:
ARTICLE I DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01. Certain Defined Terms . All capitalized terms used in this Agreement shall have the following meanings. Terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code, in effect in the State of Minnesota, as amended from time to time (the “ UCC ”). All references to dollar amounts shall mean amounts in lawful money of the United States of America. The terms “ include ”, “ including ” and similar terms are to be construed as if followed by the phrase “without being limited to”.
“ Accounts ” means all of GPCC’s accounts, as such term is defined in the UCC, including, without limitation, the aggregate unpaid obligations of customers and other account debtors to GPCC arising out of the sale or lease of goods or rendition of services by GPCC on an open account or deferred payment basis.
“ Acquired Interests ” means the membership interests of RBF Acquisition II, LLC, a Delaware limited liability company acquired by Holdings on the terms and subject to the conditions set forth in the Acquisition Agreement and the other Acquisition Documents.
“ Acquisition ” means the acquisition of the Acquired Interests by Holdings pursuant to the Acquisition Agreement and the other Acquisition Documents.
“ Acquisition Agreement ” means that certain Membership Interest Purchase Agreement, dated as of May 20, 2009, by and among Holdings, the Seller and the Sellers’ agent, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof and hereof.
“ Acquisition Documents ” means the Acquisition Agreement and all other documents related thereto and executed in connection therewith.
“ Adjustment Date ” has the meaning specified in Section 2.02(e).
“ Advances ” means the Loans, Letters of Credit, or Protective Advances provided to the Borrowers pursuant to this Agreement.
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“ Affiliate ” means, as to any Person, any other Person: (a) that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such Person; (b) that directly or indirectly beneficially owns or holds ten percent (10%) or more of any class of voting stock or membership interests (units) of such Person; or (c) ten percent (10%) or more of the voting stock or membership interests (units) of which is directly or indirectly beneficially owned or held by the Person in question. The term “ control ” means the possession, directly or indirectly, of the power to direct or cause direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise; provided, however, in no event shall the Banks or any Bank be deemed an Affiliate of the Borrowers or any of their subsidiaries.
“ Affiliated Borrower” means Green Plains Ord LLC.
“ Affiliate Mortgage ” means that certain Deed of Trust, Security Agreement, Assignment of Rents and Leases and Fixture Filing of even date herewith, as may be amended from time to time, pursuant to which a mortgage interest shall be given by Green Plains Ord LLC to the Agent, for the benefit of the Banks, in the Affiliate Real Property to secure payment to the Agent and the Banks of the Loan Obligations.
“ Affiliate Real Property ” means that real property and improvements located in Merrick County, Nebraska, owned by Green Plains Ord LLC, and which is described in Schedule 3.01(ee).
“ Affiliate Security Agreement ” means that certain Security Agreement of even date herewith as may be amended from time to time executed by Green Plains Ord LLC in favor of the Agent, for the benefit of the Banks, and includes any agreements, promises, covenants, arrangements, understandings, or other agreements, whether created by law, contract, or otherwise, which evidence, govern, represent, or create a Security Interest, as the same has been and may hereafter be amended or otherwise modified.
“ Agent ” means AgStar, or any successor Agent, in its capacity as Agent under any of the Loan Documents.
“ Agreement ” means this Agreement, as amended, modified or supplemented from time to time, together with all exhibits and schedules attached or made a part hereof or thereof.
“ Amortization Date ” has the meaning specified in Section 2.02(g).
“ Applicable Rate ” means the interest rates as stated for each Loan.
“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor statute.
“ Banks ” has the meaning specified in the preamble hereto and shall include the Swingline Bank and the Issuer.
“ Bank Supplement ” has the meaning specified in Section 8.12(b).
“ Borrower ” means Green Plains Central City LLC, a Delaware limited liability company and Holdings, except as the context otherwise requires; providing that upon completion of the transactions contemplated under the Acquisition, Holdings shall be the sole member of Green Plains Central City LLC, and Green Plains Central City LLC shall own all of the Real Property and Personal Property associated with and related to the Project.
“ Borrower’s Equity ” means funds, consisting of GPCC and Affiliated Borrower cash equity, equal to $10,000,000.00 which will fund Working Capital.
“ Borrower’s Parent” means Green Plains Renewable Energy, Inc., an Iowa corporation.
“ Borrowing Base ” means on the Closing Date, Eleven Million and No/100 Dollars ($11,000,000.00), and upon the delivery of the Borrowing Base Certificate as required hereunder, the lesser of: (i) Eleven Million and No/100 Dollars ($11,000,000.00), or (ii) the sum of: (A) sixty percent (60%) of GPCC’s Eligible Accounts Receivable, plus (B) sixty percent (60%) of GPCC’s Eligible Inventory.
“ Borrowing Base Certificate ” means a certificate, in form and substance acceptable to the Agent, properly completed and duly executed by an authorized officer of GPCC.
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of the State of Minnesota, or are in fact closed in the State of Minnesota.
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“ Capital Expenditures ” means, for any period, the sum of all amounts that would, in accordance with GAAP, be included as additions to property, plant and equipment on a statement of cash flows for GPCC during such period, with respect to: (a) the acquisition, construction, improvement, replacement or betterment of land, buildings, machinery, equipment or of any other fixed assets or leaseholds; or (b) other capital expenditures and other uses recorded as capital expenditures having substantially the same effect.
“ CERCLA ” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, and the regulations and published interpretations thereunder.
“ Change of Control ”: (a) at any time a “change of control” occurs under any Material Contract; (b) any “person” or “ group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is, or becomes, the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Capital Stock of any Borrower representing more than 50% of the voting power of the total outstanding Capital Stock of such Borrower; (c) any “person” or “ group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) is, or becomes, the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of Capital Stock of Borrower’s Parent representing more than 50% of the voting power of the total outstanding Capital Stock of Borrower’s Parent, other than any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) which already is currently a beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, an owner of Capital Stock of Borrower’s Parent, representing more than 3% of the voting power of the total outstanding Capital Stock of Borrower’s Parent; (d) individuals who, on the Closing Date, constituted the board of directors of GPCC cease for any reason to constitute a majority of the board of directors of GPCC; (e) any “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) obtains the power (whether or not exercised) to elect a majority of the board of directors of GPCC ; or (f) any Borrower at any time ceases to own, directly or indirectly, 100% of the Capital Stock of any of its Subsidiaries. “Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all similar ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“ Closing Date ” means July 2, 2009.
“ Code ” means the Internal Revenue Code, as amended, and the regulations and published interpretations thereunder.
“ Collateral ” means and includes all property and assets granted as collateral security for the Loans or other indebtedness, in favor of the Agent and the Banks, whether real or Personal Property, whether granted directly or indirectly, whether granted now or in the future, and whether granted in the form of a security interest, mortgage, assignment of rents, deed of trust, assignment, pledge, account control agreement, chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever; whether created by law, contract or otherwise.
“ Commitments ” means the respective amounts committed to the Borrowers by the Banks under this Agreement, including the Term Loan Commitment, the Term Revolving Loan Commitment, the Revolving Line of Credit Commitment and the Swingline Commitment.
“ Compliance Certificate ” means a certificate of the Treasurer or other officer of GPCC, reasonably acceptable to the Agent, substantially in form and substance satisfactory to the Agent, setting forth the current calculations of each of the financial covenants set forth therein, and: (a) stating the financial statements are true and correct and, other than the unaudited interim financial statements, have been prepared in accordance with GAAP; (b) stating whether such officer has knowledge of the occurrence of any Event of Default under this Agreement, and if so, stating in reasonable detail the facts with respect thereto; and (c) reaffirming and ratifying the representations and warranties, as of the date of the certificate, contained in this Agreement.
“ Debt ” means: (a) indebtedness for borrowed money or for the deferred purchase price of property or services; (b) obligations as lessee under leases which shall have been or should be, in accordance with GAAP, recorded as capital leases; (c) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clause (a) or (b) above or (e) through (g) below; (d) liabilities in respect of unfunded vested benefits under plans covered by Title IV of ERISA; (e) indebtedness in respect of mandatory redemption or mandatory dividend rights on Equity Interests but excluding dividends payable solely in additional Equity Interests; (f) all obligations of a Person, contingent or otherwise, for the payment of money under any noncompete, consulting or similar agreement entered into with the seller of a company or its assets or any other similar arrangements providing for the deferred payment of the purchase price for an acquisition permitted hereby or an acquisition consummated prior to the date hereof; and (g) all Hedging Obligations .
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“Debt Service Reserve Account ” means that certain account maintained by GPCC for the benefit of the Agent, for the purpose set forth in Section 2.22.
“Default ” means any event, fact, circumstance or condition that, after any requirement for the giving of applicable notice or passage of time or both has been satisfied, would constitute, be or result in an Event of Default.
“ Defaulting Bank ” means any Bank that (a) has failed to fund any portion of the Term Loan, the Term Revolving Loan, the Revolving Line of Credit Loan, including Letters of Credit, or the Swingline Loan required to be funded by it hereunder within two (2) Business Days of the date required to be funded by it hereunder, (b) has otherwise failed to pay over to the Agent or any other Bank any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, unless such amount is the subject of a good faith dispute, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
“ Default Rate ” means the lesser of: (a) the Maximum Rate; or (b) the rate per annum which shall from day-to-day be equal to two percent (2%) in excess of the then applicable rate of interest under this Agreement or any Note.
“ Distribution ” means any dividend, distribution, payment, or transfer of property by GPCC to any member of GPCC or subsidiary of GPCC, including, without limitation, Reinvestment Distributions and Excess Distributions, but excluding payments permitted by Sections 5.02(k) and 5.02(l).
“ EBITDA ” means for any period, the total of the following each calculated without duplication for GPCC for such period: (a) Net Income; plus (b) any provision for (or less any benefit from) Income Taxes included in determining Net Income; plus (c) Interest Expense deducted in determining Net Income; plus (d) amortization and depreciation expense deducted in determining Net Income; plus (e) non cash extraordinary items deducted in determining Net Income.
“ Eligible Accounts Receivable ” means all unpaid Accounts, net of any credits, except that the following shall not in any event be deemed Eligible Accounts Receivable:
(a) that portion of Accounts unpaid thirty (30) days or more after the invoice date;
(b) that portion of Accounts that is disputed or subject to a claim of offset or a contra account;
(c) that portion of Accounts not yet earned by the final delivery of goods or rendition of services, as applicable, by GPCC to the customer;
(d) Accounts owed by any unit of government, whether foreign or domestic, except Incentive Payments will be considered a part of Eligible Accounts Receivable as defined in this Agreement;
(e) Accounts owed by an account debtor located outside the United States;
(f) Accounts owed by an account debtor that is insolvent, the subject of bankruptcy proceedings or has gone out of business;
(g) Accounts owed by a guarantor, Affiliate, director, officer, employee, or member of GPCC, except accounts owed by Green Plains Trade Group, LLC, under its Long Term Marketing Agreement with GPCC, which are unpaid no more than 15 days after the invoice date for ethanol and unpaid no more than 25 days after the invoice date for distillers grain;
(h) Accounts not subject to a duly perfected security interest in favor of the Agent and the Banks or which are subject to any lien, security interest or claim in favor of any Person other than the Agent and the Banks, including any payment or performance bond;
(i) that portion of Accounts that has been restructured, extended, amended or modified; and
(j) that portion of Accounts that constitutes advertising, finance charges, service charges or sales or excise taxes.
“ Eligible Inventory ” means all Inventory held for ultimate sale or lease, or which has been or will be supplied under contracts of service, or which are raw materials, or materials used or consumed in GPCC’s business and that has been specifically identified and accepted by the Agent valued at the lower of GPCC’s cost or market value, excluding all of the following inventory:
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(a) covered by documents of title, instruments, or chattel paper when these documents, instruments and paper are not owned and held by GPCC or are subject to competing claims, liens or encumbrances;
(b) intended to be sold outside of the ordinary course of business;
(c) consigned, sold or leased to others or held on consignment or lease from others or subject to a bailment;
(d) subject to a competing claim, lien or encumbrance unless other than any Permitted Liens;
(e) paid for in advance with progress payments or any other sums to GPCC in anticipation of the sale and delivery of inventory;
(f) obsolete or unusable in the ordinary course of business; and
(g) inventory of work in progress.
“ Eligible Member ” means any member of GPCC deemed by the Agent to be an Eligible Member upon written request and at the reasonable discretion of the Agent.
“ Eligible Subordinate Debt ” means Debt held by an Eligible Member.
“ Environmental Affiliate ” means any Person, to the extent GPCC would reasonably be expected to have liability as a result of GPCC retaining, assuming, accepting or otherwise being subject to liability for Environmental Claims relating to such Person, whether the source of GPCC’s obligation is by contract or operation of Law.
“ Environmental Approvals ” means any Governmental Approvals required under applicable Environmental Laws.
“ Environmental Claim ” means any written notice, claim, demand or similar written communication by any Person alleging potential liability or requiring or demanding remedial or responsive measures (including potential liability for investigatory costs, cleanup, remediation and mitigation costs, governmental response costs, natural resources damages, property damages, personal injuries, fines or penalties) in each such case (x) either (i) with respect to environmental contamination-related liabilities and obligations that are, or could reasonably be expected to be, in excess of one hundred thousand and No/100 ($100,000.00) dollars in the aggregate or (ii) that has or would reasonably be expected to result in a Material Adverse Effect, and (y) arising out of, based on or resulting from (i) the presence, release or threatened release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by such Person; (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Laws or Environmental Approvals; or (iii) exposure to Materials of Environmental Concern.
“ Environmental Laws ” means all laws and regulations relating to environmental, health, safety and land use matters applicable to any property.
“ Equity Interest ” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination, in each such case including all voting rights and economic rights related thereto.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder.
“ ERISA Affiliate ” means any Person, trade or business that, together with GPCC, is or was treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
“ Events of Default ” has the meaning specified in Section 6.01.
“ Excess Cash Flow ” means EBITDA, less the sum of: (a) required payments in respect of Funded Debt, including the funding of the Debt Service Reserve Account; (b) Maintenance Capital Expenditures; and (c) payments for taxes permitted by Section 5.02(k); all as computed on a consolidated basis with Affiliated Borrower.
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“ Excess Cash Flow Payment ” has the meaning specified in Section 2.20.
“ Excess Distributions ” has the meaning specified in Section 5.02(b).
“ Extraordinary Items ” means items which are material and significantly different from GPCC’s typical business activities, determined in accordance with GAAP.
“ Federal Funds Rate ” means the Federal Funds Rate as announced from time to time by the Federal Reserve Board.
“ Financial Statements ” has the meaning specified in Section 5.01(c).
“ Fixed Charge Coverage Ratio ” means the ratio of EBITDA divided by the sum of (i) scheduled principal payments for the Loans, (ii) interest on the Loans, (iii) Distributions, and (iv) Maintenance Capital Expenditures, all as computed on a consolidated basis with Affiliated Borrower.
“ Fixed Rate Loan ” means that portion of the unpaid principal balance of the Term Loan which shall accrue interest at a fixed rate pursuant to Section 2.02(f).
“ Food Security Act ” means the Food Security Act of 1985, 7 U.S.C. § 1631, as amended, and the regulations promulgated thereunder.
“ Funded Debt ” means the principal amount of all Debt of GPCC having a final maturity of more than one year from the date of origin thereof (or which is renewable or extendible at the option of the obligor for a period or periods more than one year from the date of origin).
“ GAAP ” means generally accepted accounting principles of the United States of America, consistently applied.
“ Governmental Approval ” means any authorization, consent, approval, license, lease, ruling, permit, certification, exemption, filing for registration by or with any Governmental Authority.
“ Governmental Authority ” means and includes any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipality, city, or otherwise) whether now or hereafter in existence.
“ GPCC ” means Green Plains Central City LLC, a Delaware limited liability company.
“ Hedging Agreement ” means any interest rate swap, interest rate caps, interest rate collars or other similar agreements enabling a Person to fix or limit its interest expense or pursuant to any foreign exchange, currency hedging, commodity hedging, security hedging or other agreement enabling a Person to limit the market risk of holding currency, a security or a commodity in either the cash or futures markets.
“ Hedging Obligations ” means all obligations, indebtedness, and liabilities of GPCC arising under any Hedging Agreement entered into by GPCC, whether now existing or hereafter arising, and whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, including all fees, costs, and expenses (including attorneys’ fees and expenses) provided for in such Hedging Agreement.
“ Holdings ” means Green Plains Holdings LLC, a Delaware limited liability company.
“ Incentive Payments ” means any and all federal or state governmental subsidies, payments, transfers or other benefits, whether now or hereafter established, received or receivable by GPCC.
“ Income Taxes ” means the applicable state, local or federal tax on the Net Income of GPCC.
“ Inventory ” means all of GPCC’s inventory, as such term is defined in the UCC, whether now owned or hereafter acquired, whether consisting of whole goods, spare parts or components, supplies or materials, whether acquired, held or furnished for sale, for lease or under service contracts or for manufacture or processing, and wherever located.
“ Intellectual Property ” has the meaning specified in Section 4.01(q).
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“ Interest Expense ” means for any period, the total interest expense of GPCC.
“ Interest Period ” means the period commencing on the first day of each calendar month and shall remain in effect until and including the last day of each calendar month. Notwithstanding the foregoing: (a) each Interest Period which would otherwise end on a day which is not a Business Day shall end on the next succeeding Business Day or if such succeeding Business Day falls in the next succeeding calendar month, on the next preceding Business Day, (b) any Interest Period which would otherwise extend beyond the Maturity Date shall end on the Maturity Date, and (c) no Interest Period shall have a duration of less than one (1) month except the first and last month.
“ Issuer ” means (a) AgStar Financial Services, PCA, or (b) any successor Issuer under Section 2.07, in its capacity as the issuer of Letters of Credit hereunder.
“ Law ” means, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, common law, holding injunction, Governmental Approval or requirement of such Governmental Authority. Unless the context clearly requires otherwise, the term “Law” shall include each of the foregoing (and each provision thereof) as in effect at the time in question, including any amendments, supplements, replacements, or other modifications thereto or thereof, and whether or not in effect as of the date of this Agreement.
“ Letter of Credit ” means the Revolving Letters of Credit issued by the Issuer pursuant to the terms and conditions of this Agreement.
“ Letter of Credit Liabilities ” means, at any time, the aggregate maximum amount available to be drawn under all outstanding Letters of Credit (in each case, determined without regard to whether any conditions to drawing could then be met) and all unreimbursed drawings under Letters of Credit.
“ LIBOR Rate ” means the One Month London Interbank Offered Rate (“ One Month LIBOR ”), rounded upward to the nearest ten thousandth of one percent, reported on the tenth day of the month immediately preceding the month for which interest is being calculated by the Wall Street Journal in its daily listing of money rates, defined therein as the average of interbank offered rates for dollar deposits in the London market. If One Month LIBOR is not reported on the tenth day of a month, the One Month LIBOR reported on the first Business Day preceding the tenth day of the month will be used. If this index is no longer available, Agent will select a new index which is based upon comparable information. For purposes of clarity, the parties hereto agree that it is their intention to utilize the One Month LIBOR rate described above for each one-month period with the applicable One Month LIBOR rate being reset for each successive one-month period as described above, including with respect to outstanding Advances.
“ LIBOR Rate Account ” means any portion of the Advances which bears interest at a rate determined by reference to the LIBOR Rate.
“ Loan and Carrying Charges ” means all commitment fees to the Banks, brokerage fees, standby fees, interest charges, service fees, attorneys’ fees, contractors’ fees, developers’ fees, funding fees, title insurance fees and charges, recording fees, registration taxes, real estate taxes, special assessments, insurance premiums, and utility charges incurred by the Borrowers in connection with the acquisition of the Project and issuance of the Notes, all costs incurred in acquisition of the Real Property and any other costs incurred in the development of the Project.
“ Loan Documents ” means this Agreement, the Notes, the Bank Supplements, the Letters of Credit, the Security Agreement, the Mortgage, the Issuer’s letter of credit requests and reimbursement agreements, and all other agreements, documents, instruments, and certificates of the Borrowers delivered to, or in favor of, the Agent or the Banks under this Agreement or in connection herewith or therewith, including all agreements, documents, instruments, certificates delivered in connection with the extension of Advances by the Banks, and all documents governing the Hedging Obligations.
“ Loan Obligations ” means all obligations, indebtedness, and liabilities of the Borrowers to the Agent or the Banks, including the Reimbursement Obligations, arising pursuant to any of the Loan Documents, whether now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint and several, including the obligation of the Borrowers to repay the Advances, interest on the Advances, and all fees, costs, and expenses (including reasonable attorneys’ fees and expenses) provided for in the Loan Documents.
“ Loan/Loans ” means and includes the Term Loan, the Term Revolving Loan, the Revolving Line of Credit Loan, the Swingline Loan and any other financial accommodations extended to the Borrowers by the Agent or the Banks pursuant to the terms of this Agreement.
“ Long Term Debt ” means indebtedness that matures more than one year after the date of determination thereof.
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“ Long Term Marketing Agreement ” means any contract, agreement or understanding of GPCC having a term of one year or more after the date of determination thereof relating to the sale of any raw materials, inventory, products or by-products of GPCC.
“ Maintenance Capital Expenditures ” means all Capital Expenditures, determined in accordance with GAAP, made in the ordinary course of business to maintain existing business operations of GPCC in any fiscal year.
“ Material Adverse Effect ” means any materially adverse impact on (a) the business, assets, operations, property, management, condition (financial or otherwise) or prospects of GPCC taken as a whole, (b) the validity or enforceability of this Agreement or any of the other Loan Documents or the rights or remedies of the Agent or the Banks hereunder or thereunder, (c) the ability of the Borrowers to fully and timely perform any of its obligations under the Loan Documents or (d) the Collateral or the Security Interests in favor of the Agent on such Collateral or the perfection or priority of such Security Interests.
“ Materials of Environmental Concern ” means chemicals, pollutants, contaminants, wastes, toxic substances and hazardous substances, any toxic mold, radon gas or other naturally occurring toxic or hazardous substance or organism and any material that is regulated in any way, or for which liability is imposed, pursuant to an Environmental Law.
“ Material Contract ” means (a) any contract or any other agreement, written or oral, of GPCC involving monetary liability of or to any such person in an amount in excess of Five Hundred Thousand and No/100 Dollars ($500,000.00) per year; and (b) any other contract or agreement, written or oral, of GPCC, the failure to comply with which could reasonably be expected to have a Material Adverse Effect on GPCC; provided, however, that any contract or agreement which is terminable by a party other than GPCC without cause upon notice of ninety (90) days or less shall not be considered a Material Contract.
“ Maturity Date ” means July 1, 2016.
“ Maximum Rate ” means the maximum nonusurious interest rate, if any, at any time, or from time to time, that may be contracted for, taken, reserved, charged or received under applicable state or federal laws.
“ Monthly Payment Date ” means the first day of each calendar month.
“ Mortgage ” means that certain Deed of Trust, Security Agreement, Assignment of Rents and Leases and Fixture Filing of even date herewith, as may be amended from time to time, pursuant to which a mortgage interest shall be given by GPCC to the Agent, for the benefit of the Banks, in the Real Property to secure payment to the Agent and the Banks of the Loan Obligations.
“ Multiemployer Plan ” means a Plan that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.
“ Net Income ” means net income of GPCC as determined in accordance with GAAP.
“ Note/Notes ” means and includes the Term Notes, the Term Revolving Note, the Revolving Line of Credit Note, the Swingline Notes, and all other promissory notes executed and delivered to the Agent or the Banks by the Borrowers pursuant to the terms of this Agreement, as the same may be amended, modified, supplemented, extended, replaced or restated from time to time.
“ Obligations ” means the Loan Obligations and/or the Hedging Obligations.
“ Ordinary Trade Payable Dispute ” means trade accounts payable, in an aggregate amount not in excess of One Hundred Thousand and No/100 Dollars ($100,000.00) with respect to GPCC, and with respect to which: (a) there exists a bona fide dispute between GPCC and the vendor, (b) GPCC is contesting the same in good faith by appropriate proceedings, and (c) GPCC has established appropriate reserves on its financial statements.
“ Outstanding Credit ” means, at any time of determination, the sum of (a) the aggregate amount of Advances then outstanding (or when calculated with respect to a Bank, the aggregate amount of Advances made by such Bank), plus (b) the aggregate amount of Letter of Credit Liabilities (or when calculated with respect to a Bank, including the Agent as a Bank, such Bank’s participation interest in such Letter of Credit Liabilities), if any.
“ Outstanding Revolving Advances” means the aggregate amount of Advances under Section 2.04 other than outstanding Letters of Credit Liabilities.
“ Outstanding Term Revolving Advances ” means the total Outstanding Credit under Section 2.03.
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“ Permitted Investments ” means: (i) investments in cash or cash equivalents; (ii) investments in deposit accounts or securities accounts so long as such deposit accounts or securities accounts are subject to a Security Interest to the Agent for the benefit of the Banks in accordance with this Agreement; (iii) customer receivables arising in the ordinary course of business to the extent that such arrangements would constitute an extension of credit; and (iv) customary security deposits and pledges made by GPCC under leases and other contracts and with utility companies made or otherwise arising in the ordinary course of business in accordance with the past practices of GPCC not to exceed $250,000.00 in the aggregate.
“ Permitted Liens ” has the meaning specified in Section 5.02.
“ Person ” means any individual, corporation, business trust, association, company, partnership, joint venture, Governmental Authority, or other entity.
“ Personal Property ” means all buildings, structures, equipment, fixtures, improvements, building supplies and materials and other personal property now or hereafter attached to, located in, placed in or necessary to the use of the improvements on the Real Property including all machinery, fixtures, equipment, furnishings, and appliances, as well as all renewals, replacements, additions, and substitutes thereof, and all products and proceeds thereof, and all accounts, chattel paper, payment intangibles, other rights to payment, inventory, farm products, equipment, investment property, money, deposit accounts, instruments, insurance proceeds and general intangibles of the Borrowers, whether now owned or hereafter acquired.
“ Plan ” means an employee pension benefit plan (as defined in Section 3(3) of ERISA) subject to Title IV of ERISA or Section 412 of the Code that is sponsored or maintained by GPCC or any ERISA Affiliate, or in respect of which any Borrower or any ERISA Affiliate has any obligations to contribution or liability.
“ Pro Rata Share ” means, with reference to any Bank at the time any determination thereof is to be made, a fraction, expressed as a percentage, the numerator of which shall be an amount equal to the Bank’s Commitment then in effect for the Term Loan, the Term Revolving Loan, the Revolving Line of Credit Loan, the Swingline Loan, the Letters of Credit and the denominator of which shall be an amount equal to the sum of all the Commitments of all the Banks for the Term Loan, the Term Revolving Loan, the Revolving Line of Credit Loan, the Swingline Loan, and/or the Letters of Credit as the case may be.
“ Project ” means any and all buildings, structures, fixtures, and other improvements made to the Real Property, and other uses so identified as part of the acquisition of the ethanol production facility in Merrick County, Nebraska, for which the Loans to the Borrowers are being made hereunder.
“ Protective Advances ” means all sums advanced for the purpose of payment of real estate taxes (including special payments in lieu of real estate taxes), personal property taxes (including special payments in lieu of personal property taxes), maintenance costs, insurance premiums, other items (including capital items) reasonably necessary to protect the Project, Real Property, or any other Collateral from forfeiture, casualty, loss or waste.
“ Real Property ” means that real property located in Merrick County, Nebraska, owned by GPCC, and which is described in Schedule 3.01(c).
“ Reimbursement Obligation ” means the obligation of GPCC to reimburse the Issuer or the Agent for any demand for payment or drawing under a Letter of Credit together with all associated costs, fees and expenses provided for under this Agreement.
“ Reinvestment Distributions ” has the meaning specified in Section 5.02(b).
“ Request for Advance ” means any request for a Revolving Loan Advance made pursuant to Section 2.03 or Section 2.04.
“ Required Banks ” means, at any date, (a) while the Commitments are outstanding, any combination of Banks whose Commitments aggregate at more than fifty percent of the aggregate Commitments and (b) at any other time, any combination of Banks whose Outstanding Advances; aggregate at more than fifty percent of the aggregate Outstanding Advances; provided that the Commitments or Outstanding Advances (as the case may be) of, held or deemed held, by any Defaulting Bank shall be excluded for purposes of making a determination of the Required Banks.
“ Required Debt Service Reserve Deposit Amount ” has the meaning specified in the Section 2.22.
“ Revolving Commitment ” means, with respect to any Bank, the total of such Bank’s Term Revolving Loan Commitment and Revolving Line of Credit Commitment, as amended from time to time.
“ Revolving Letters of Credit ” has the meaning specified in Section 2.04(h).
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“ Revolving Letter of Credit Liabilities ” means, at any time, the aggregate maximum amount available to be drawn under all outstanding Revolving Letters of Credit (in each case, determined without regard to whether any conditions to drawing could then be met) and all unreimbursed drawings under all Revolving Letters of Credit.
“ Revolving Line of Credit Advance ” means any Advance made under Section 2.04.
“ Revolving Line of Credit Commitment ” means, with respect to any Bank, the amount set forth as the “Revolving Commitment” of such Bank opposite such Bank’s name on: (a) Schedule 2.01 hereto; or (b) after the execution of a Bank Supplement, the signature page of the then most recent Bank Supplement to which such Bank is a party, as amended from time to time.
“ Revolving Line of Credit Loan ” means that line of credit loan from the Banks to GPCC in the amount of Eleven Million and No/100 Dollars ($11,000,000.00) pursuant Section 2.04.
“ Revolving Line of Credit Loan Maturity Date ” means July 1, 2011.
“ Revolving Line of Credit Note ” means a promissory note in the form and substance satisfactory to the Agent executed by GPCC pursuant to the terms and conditions of this Agreement.
“ Revolving Line of Credit Termination Date ” has the meaning specified in Section 2.04(a).
“ Revolving Loans ” means the Term Revolving Loan, the Revolving Line of Credit Loan and any other revolving loan provided by the Banks to the Borrowers pursuant to this Agreement.
“ SARA ” means the Superfund Amendment and Reauthorizations Act of 1986, as amended, and all regulations promulgated thereunder.
“ Security Agreement ” means that certain Security Agreement of even date herewith as amended from time to time executed by the Borrowers in favor of the Agent, for the benefit of the Banks, and includes any agreements, promises, covenants, arrangements, understandings, or other agreements, whether created by law, contract, or otherwise, which evidence, govern, represent, or create a Security Interest, as the same has been and may hereafter be amended or otherwise modified.
“ Security Interest ” means and includes any type of collateral security, whether in the form of a lien, charge, mortgage, assignment of rents, deed of trust, assignment, pledge, account control agreement, chattel mortgage, chattel trust, factor’s lien, equipment trust, conditional sale, trust receipt, lien or title retention contract, lease or consignment intended as a security device, or any other security or lien interest whatsoever, whether created by law, contract, or otherwise.
“ Seller ” means the entities identified as sellers on Schedule 1 of the Acquisition Agreement..
“ Supermajority Banks ” means, at any date, (a) while the Commitments are outstanding, any combination of Banks whose Commitments aggregate at least sixty-six and two thirds percent (66.67%) of the aggregate Commitments and (b) (b) at any other time, any combination of Banks whose Outstanding Advances aggregate at least sixty-six and two thirds percent (66.67%) of the aggregate Outstanding Advances; provided that the Commitments or Outstanding Advances (as the case may be) of, held or deemed held, by each Defaulting Bank shall be excluded for purposes of making a determination of the Supermajority Interest.
“ Swingline Advances ” means any Advance made under Section 2.05(b).
“ Swingline Bank ” means AgStar in its capacity as the Swingline Bank under Section 2.05.
“ Swingline Commitment ” has the meaning specified in Section 2.05(a).
“ Swingline Loan ” means the loan made to GPCC pursuant to Section 2.05, in the amount of the Swingline Advances.
“ Swingline Maturity ” has the meaning specified in Section 2.05(d).
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“Tangible Net Worth ” means the excess of total assets over total liabilities, total assets and total liabilities each to be determined in accordance with GAAP consistent with those applied in the preparation of the financial statements referred to in Section 5.01(c) for GPCC, excluding, however, from the determination of total assets: (a) goodwill, Accounts owed by Affiliates of GPCC; organizational expenses, research and development expenses, trademarks, trade names, copyrights, patents, patent applications, licenses and rights in any thereof, and other similar intangibles; (b) treasury stock; (c) securities which are not readily marketable; (d) cash held in a sinking or other analogous fund established for the purpose of redemption, retirement or prepayment of capital stock or Debt (e) any write-up in the book value of any asset resulting from a revaluation thereof subsequent to the Closing Date; (f) amortized start-up costs; and (g) any items not included in clauses (a) through (f) above which are treated as intangibles in conformity with GAAP, acquired by GPCC after the Closing Date.
“ Tangible Owner’s Equity ” means the Tangible Net Worth divided by total assets of GPCC, measured annually at the end of each fiscal year, and expressed as a percentage.
“ Term Loan ” means the loan from the Banks to the Borrowers in the amount of Fifty Five Million and No/100 Dollars ($55,000,000.00), pursuant to Section 2.02.
“ Term Note ” means a promissory note in form and substance satisfactory to the Agent executed by the Borrowers pursuant to the terms and conditions of this Agreement.
“ Term Revolving Loan ” means the loan from the Banks to the Borrowers in the amount of Thirty Million Five Hundred Thousand and No/100 Dollars ($30,500,000.00), pursuant to Section 2.03.
“ Term Revolving Loan Advance ” means any Advance made under Section 2.03.
“ Term Revolving Loan Commitment ” means, with respect to any Bank, the amount set forth as the “Term Revolving Loan Commitment” of such Bank opposite such Bank’s name on: (a) Schedule 2.01 hereto; or (b) after the execution of a Bank Supplement, the signature page of the then most recent Bank Supplement to which such Bank is a party, as amended from time to time.
“ Term Revolving Loan Maturity Date ” means July 1, 2016.
“ Term Revolving Loan Termination Date ” has the meaning specified in Section 2.03(a).
“ Term Revolving Note ” means a promissory note in form and substance satisfactory to the Agent executed by the Borrowers pursuant to the terms and conditions of this Agreement.
“ Working Capital ” means the current assets of GPCC less the current liabilities of GPCC as determined in accordance with GAAP excluding current portion of Long Term Debt from current liabilities but including the unused commitment of the Term Revolving Loan, all as computed on a consolidated basis with Affiliated Borrower.
Section 1.02. Accounting Matters .. All accounting terms not specifically defined herein shall be construed in accordance with GAAP, except as otherwise stated herein. To enable the ready and consistent determination of compliance by the Borrowers with its obligations under this Agreement, the Borrowers will not change the manner in which either the last day of its fiscal year or the last days of the first three fiscal quarters of its fiscal years is calculated without prior written notice to the Agent.
Section 1.03. Construction .. Wherever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate. The headings, captions or arrangements used in any of the Loan Documents are, unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or modify the terms of the Loan Documents, nor affect the meaning thereof.
ARTICLE II AMOUNTS AND TERMS OF THE LOANS
Section 2.01. The Loans . Subject to the terms and conditions of this Agreement and in reliance upon the representations and warranties set forth in this Agreement, the Banks have agreed to lend to Borrowers and Borrowers have agreed to borrow from the Banks the following amounts, for the purposes as further described below:
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(a) Term Loan . The Banks agree to lend to the Borrowers and the Borrowers agree to borrow from the Banks a Term Loan in the amount of Fifty Five Million and No/100 Dollars ($55,000,000.00) pursuant to the terms and conditions set forth in Section 2.02 and the Term Note;
(b) Term Revolving Loan . The Banks agree to lend to the Borrowers and the Borrowers agree to borrow from the Banks, on the Closing Date, and from time to time thereafter on a revolving basis, an amount not to exceed Thirty Million Five Hundred Thousand and No/100 Dollars ($30,500,000.00), pursuant to the terms and conditions set forth in Section 2.03 and the Term Revolving Note;
(c) Revolving Line of Credit Loan . The Banks agree to lend to GPCC and GPCC agrees to borrow from the Banks, on the Closing Date, and from time to time thereafter on a revolving basis, an amount not to exceed Eleven Million and No/100 Dollars ($11,000,000.00), pursuant to the terms and conditions set forth in Section 2.04 and the Revolving Note.
(d) Swingline Loan . The Swingline Bank agrees to lend to GPCC and GPCC agrees to borrow from the Swingline Bank, from the Closing Date, and from time to time thereafter on a revolving basis, an amount not to exceed One Million and No/100 Dollars ($1,000,000.00), pursuant to the terms and conditions set forth in Section 2.05 and the Swingline Note.
Section 2.02 Term Loan .. Subject to the terms and conditions contained in this Agreement, the Banks agree to make a Term Loan to the Borrowers.
(a) Term Loan . Subject to the terms and conditions set forth in this Agreement, the Banks agree to make the Term Loan to the Borrowers on the Closing Date in the original principal amount of Fifty Five Million and No/100 Dollars ($55,000,000.00).
(b) Purpose . The Term Loan shall be used for the purpose of acquiring the Project and related assets.
(c) Conditions Precedent . The Banks’ obligations to make the Term Loan under the Term Note shall be subject to the terms, conditions and covenants set forth in Section 3.01 of this Agreement.
(d) Term Loan Term . The Term Loan shall run for a period beginning on the Closing Date and ending on the Maturity Date.
(e) Term Loan Interest Rate .
(i) Subject to the provisions of Section 2.08 and 2.11, the Term Loan shall bear interest, at a rate per annum equal to three percent (3.0%) plus the greater of (a) the LIBOR Rate, or (b) two percent (2.0%); or, at the option of the Borrowers, the Term Loan shall bear interest at a fixed rate of five and one half percent (5.5%) for a period of two (2) years following the Closing Date, provided the Borrowers shall give written notice to the Agent of such action at least three (3) Business Days prior to the Closing Date.
(ii) The rate of interest due hereunder shall initially be determined as of the Closing Date and shall thereafter be adjusted as and when the LIBOR Rate changes. All such adjustments to the rate of interest shall be made and become effective as of the first day of the month following the date of any change in the LIBOR Rate and shall remain in effect until and including the day immediately preceding the next such adjustment (each such day hereinafter being referred to as an “ Adjustment Date ”). All such adjustments to the rate of interest shall be made and become effective as of the first Adjustment Date following such change in the LIBOR Rate. All such adjustments to said rate shall be made and become effective as of the Adjustment Date, and said rate as adjusted shall remain in effect until and including the day immediately preceding the next Adjustment Date. Interest hereunder shall be computed on the basis of a year of three hundred sixty five (365) days, but charged for actual days principal is outstanding. In no event shall the Applicable Rate exceed the Maximum Rate.
(f) Conversion to Fixed Rate Loan . At any time the interest on the Term Loan is computed on a basis other than a fixed rate, the Borrowers may convert the Term Loan to a Fixed Rate Loan, bearing interest at a rate equal to the rate listed in the “Government Agency and Similar Issues” section of the Wall Street Journal for the Federal Farm Credit Bank or AgStar’s fixed rate as offered for loans of similar size and term and having a maturity approximately equal to the Maturity Date, which is in effect at the time the request to convert the interest rate to a fixed rate is made, plus 300 basis points, or another rate agreed upon by the Agent and the Borrowers. The Borrowers shall provide written notice to the Agent at least thirty (30) days prior to the date of any requested conversion of its intention to convert any portion of the Term Loan to a Fixed Rate Loan. Such written notice shall specify the specific dollar amount that Borrowers are electing to convert to a Fixed Rate Loan. Any amount subject to a fixed rate of interest pursuant to this Section shall not be subject to any adjustments under Section 2.08.
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(g) Repayment of Term Loan . On January 1, 2010, the Borrowers shall pay to the Agent for the account of the Banks all accrued interest on the Term Loan. Beginning on the first (1 st ) day of February, 2010, and continuing on each Monthly Payment Date thereafter until June 1, 2011, the Borrowers shall pay to the Agent for the account of the Banks monthly payments of accrued interest on the Term Loan. Beginning on the first (1 st ) day of June 2011, (the “ Amortization Date ”), and continuing on each Monthly Payment Date thereafter until the Maturity Date, the Borrowers shall pay to the Agent for the account of the Banks equal monthly payments of principal and accrued interest in such amounts as would be required to fully amortize the entire outstanding principal balance of the Term Note, together with accrued interest thereon, over a period commencing on the Amortization Date and ending on the tenth (10 th ) anniversary of the Closing Date. The outstanding principal balance, together with all accrued interest, if not paid sooner, shall be due and payable in full on the Maturity Date. In addition to all other payments of principal and interest required under this Agreement and this Term Note, GPCC shall annually remit to the Agent for the account of the Banks the Excess Cash Flow Payment pursuant to Section 2.20. Notwithstanding the foregoing, in the event Fixed Charged Coverage Ratio is less than 1.00 to 1.00, and no Event of Default exists, principal payments due on the Term Loan may be suspended by the Borrowers for a period of six months from the time that Agent is notified of the Fixed Charge Coverage Ratio.
Section 2.03. Term Revolving Loan .. Subject to the terms and conditions contained in this Agreement, the Banks agree to make a Term Revolving Loan to the Borrowers.
(a) Term Revolving Loan . Subject to the terms and conditions set forth in this Agreement, the Banks agree to make one or more Term Revolving Loan Advances to the Borrowers on a revolving basis, during the period beginning on the Closing Date and ending on the Business Day immediately preceding the Term Revolving Loan Maturity Date (the “ Term Revolving Loan Termination Date ”), in an aggregate principal amount outstanding at any one time not to exceed Thirty Million Five Hundred Thousand and No/100 Dollars ($30,500,000.00). The Term Revolving Loan shall mature and be due and payable in full at 12:00 P.M. (Minneapolis, Minnesota time) on the Term Revolving Loan Maturity Date. Term Revolving Loan Advances borrowed, repaid or prepaid may be reborrowed at any time prior to the Term Revolving Loan Termination Date.
(b) Purpose . Term Revolving Loan Advances may be used for the purchase of the Project and related assets by the Borrowers and for cash and inventory management purposes of GPCC, including payment of the commitment fee required by Section 2.03(l). The Borrowers agree that the proceeds of the Term Revolving Loan are to be used only for the purposes set forth in this Section 2.03(b).
(c) Conditions Precedent to Advances . The Banks’ obligation to make each Term Revolving Loan Advance under the Term Revolving Note shall be subject to the terms, conditions and covenants set forth in Sections 3.01 and 3.02 of this Agreement.
(d) Availability . Subject to the provisions of this Agreement, during the period commencing on the Closing Date and ending on the Term Revolving Loan Termination Date, Advances under the Term Revolving Loan will be made as provided in Section 2.03(e).
(e) Making the Advances . Each Term Revolving Loan Advance shall be made by GPCC delivering a Request for Advance to the Agent specifying the amount of such Advance. Each Request for Advance must be delivered to the Agent by GPCC before 12:00 P.M. (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of such Term Revolving Loan Advance; provided however that no such Term Revolving Loan Advance shall be made while an Event of Default exists or if the interest rate for such LIBOR Rate loan would exceed the Maximum Rate. Any Request for Advance received by the Agent after 12:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have been received and be effective on the next Business Day. The amount of the Term Revolving Loan Advance requested from the Banks shall, subject to the terms and conditions of this Agreement, be made available to the Borrowers by: (i) depositing the same, in same day funds, in an account of the Borrowers; or (ii) wire transferring such funds to a Person or Persons designated by the Borrowers in writing.
(f) Requests for Advances Irrevocable . Each Request for Advance shall be irrevocable and binding on the Borrowers and the Borrowers shall indemnify the Agent and the Banks against any loss or expense any of them may incur as a result of any failure to borrow any Term Revolving Loan Advance after a Request for Advance (including any failure resulting from the failure to fulfill on or before the date specified for such Advance the applicable conditions set forth in this Agreement), including any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Banks to fund such Term Revolving Loan Advance when such Advance, as a result of such failure, is not made on such date.
(g) Minimum Amounts . Each Term Revolving Loan Advance shall be in a minimum amount equal to Fifty Thousand and No/100 Dollars ($50,000.00).
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(h) Interest Rate .
(i) Subject to the provisions of Section 2.08 and 2.11, from the Closing Date through December 31, 2010, the Term Revolving Loan shall bear interest at a rate per annum equal to one and one-half percent (1.5%) plus the greater of (a) the LIBOR Rate, or (b) two percent (2.0%). Effective January 1, 2011 and continuing thereafter, subject to the provisions of Section 2.08 and 2.11, the Term Revolving Loan shall bear interest, at a rate per annum equal to three percent (3.0%) plus the greater of (a) the LIBOR Rate, or (b) two percent (2.0%).
(ii) The rate of interest due hereunder shall initially be determined as of the date of the initial Advance and shall thereafter be adjusted as and when the LIBOR Rate changes. All such adjustments to the rate of interest shall be made and become effective as of the first Adjustment Date following such change in the LIBOR Rate. All such adjustments to said rate shall be made and become effective as of the Adjustment Date, and said rate as adjusted shall remain in effect until and including the day immediately preceding the next Adjustment Date. Interest hereunder shall be computed on the basis of a year of three hundred sixty five (365) days, but charged for actual days principal is outstanding. In no event shall the applicable rate exceed the Maximum Rate.
(i) Funding of Advances . Upon receipt by the Agent from GPCC of any Request for Advance for any Term Revolving Loan Advance, the Agent shall promptly notify GPCC and the other Banks as to the amount to be paid as a result of such Request for Advance. Not later than 12:00 P.M. (Minneapolis, Minnesota time) on the applicable payment date each Bank will make available to the Agent, in immediately available funds, an amount equal to such Bank’s Pro Rata Share of the amount to be paid as a result of such Request for Advance.
. (j) Repayment of the Term Revolving Loan . On January 1, 2010, the Borrowers shall pay to the Agent for the account of the Banks all accrued interest on the Term Revolving Loan. Beginning on the first (1st) day of February, 2010, and continuing on each Monthly Payment Date thereafter until the Term Revolving Loan Maturity Date, the Borrowers shall pay to the Agent for the account of the Banks accrued interest. On the Term Revolving Loan Maturity Date, the amount of the then unpaid principal balance of the Term Revolving Loan and any and all other amounts due and owing hereunder or under any other Loan Document relating to the Term Revolving Loan shall be due and payable. If any Monthly Payment Date is not a Business Day, then the principal installment then due shall be paid on the next Business Day and interest shall continue to accrue until paid.
(k) Reduction in Revolving Loan Commitment . In the event the Borrowers and the Required Banks have agreed in writing to reduce the maximum amount of the Term Revolving Loan available to Borrowers, the Term Revolving Loan Commitment of each Bank holding such Commitment shall be reduced on a pro rata basis according to each Bank’s respective Pro Rata Share. (l) Unused Commitment Fee . The Borrowers agree to pay to the Agent for the account of each Bank a commitment fee on the average daily unused portion of such Bank’s Revolving Commitment from the Closing Date until the Term Revolving Loan Termination Date, at the rate of twenty-five (25) basis points on a per annum basis, payable in arrears in quarterly installments payable on the first (1 st ) day of each third month after the Closing Date during the term of such Bank’s Revolving Commitment, and on the Term Revolving Loan Termination Date. For purposes of this Agreement, the unused portion of a Bank’s Revolving Commitment for any measurement period shall be the positive difference, if any, of (a) the average daily amount of such Bank’s Revolving Commitment, minus (b) the Bank’s Pro Rata Share of the average daily outstanding Term Revolving Loan Advances, but shall not, for purposes of this Section 2.03(l) only, be deemed utilized by any Swingline Advances unless the Banks’ participations therein are funded in accordance with Section 2.05. Section 2.04. Revolving Line of Credit Loan . Subject to the terms and conditions contained in this Agreement, the Banks agree to make a Revolving Line of Credit Loan to GPCC.
(a) Revolving Line of Credit Loan . Subject to the terms and conditions set forth in this Agreement, the Banks agree to make one or more Revolving Line of Credit Advances to GPCC on a revolving basis, during the period beginning on the Closing Date and ending on the Business Day immediately preceding the Revolving Line of Credit Loan Maturity Date (the “ Revolving Line of Credit Termination Date ”), in an aggregate principal amount outstanding at any one time not to exceed Eleven Million and No/100 Dollars ($11,000,000.00); provided, however, that at no time shall the Outstanding Revolving Advances exceed the Borrowing Base. The Revolving Line of Credit Loan shall mature and be due and payable in full at 12:00 P.M. (Minneapolis, Minnesota time) on the Revolving Line of Credit Maturity Date. The Revolving Line of Credit Loan shall automatically renew for a period not to exceed 364 days from the Revolving Line of Credit Loan Maturity Date, provided, however, that no Event of Default has occurred. Subject to Section 2.04(h), Revolving Line of Credit Advances borrowed and repaid or prepaid may be reborrowed at any time prior to the Revolving Line of Credit Termination Date.
(b) Purpose . Revolving Line of Credit Advances may be used for general business and operating purposes, including closing costs and fees associated with the Revolving Line of Credit Loan. GPCC agrees that the proceeds of the Revolving Line of Credit Loan are to be used only for the purposes set forth in this Section 2.04(b).
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(c) Conditions Precedent to Advances . The Banks’ obligation to make each Revolving Line of Credit Advance under the Revolving Line of Credit Note shall be subject to the terms, conditions and covenants set forth in Sections 3.01 and 3.02 of this Agreement.
(d) Availability . Subject to the provisions of this Agreement, during the period commencing on the Closing Date and ending on the Revolving Line of Credit Termination Date, Revolving Line of Credit Advances under the Revolving Line of Credit Loan will be made as provided in this Agreement.
(e) Making the Advances . Each Revolving Line of Credit Advance shall be made by GPCC delivering a Request for Advance to the Agent specifying the amount of such Advance. Each Request for Advance must be delivered to the Agent by GPCC before 12:00 P.M. (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of such Revolving Line of Credit Advance; provided however that no such Revolving Line of Credit Advance shall be made while an Event of Default exists or if the interest rate for such LIBOR Rate loan would exceed the Maximum Rate. Any Request for Advance received by the Agent after 12:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have been received and be effective on the next Business Day. The amount of the Revolving Line of Credit Advance requested from the Banks shall, subject to the terms and conditions of this Agreement, be made available to GPCC by: (i) depositing the same, in same day funds, in an account of GPCC; or (ii) wire transferring such funds to a Person or Persons designated by GPCC in writing.
(f) Requests for Advances Irrevocable . Each Request for Advance shall be irrevocable and binding on GPCC and GPCC shall indemnify the Agent and the Banks against any loss or expense any of them may incur as a result of any failure to borrow any Revolving Line of Credit Advance after a Request for Advance (including any failure resulting from the failure to fulfill on or before the date specified for such Advance the applicable conditions set forth in this Agreement), including any loss (including loss of anticipated profits) or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by the Banks to fund such Revolving Line of Credit Advance when such Advance, as a result of such failure, is not made on such date.
(g) Minimum Amounts . Each Revolving Line of Credit Advance shall be in a minimum amount equal to Fifty Thousand and No/100 Dollars ($50,000.00).
(h) Letters of Credit . GPCC may utilize the Revolving Line of Credit Commitments by requesting that the Issuer issue, and the Issuer, subject to the terms and conditions of this Agreement, may, in its sole discretion, issue letters of credit for GPCC’s account (such letters of credit being hereinafter referred to collectively as the “ Revolving Letters of Credit ”); provided, however, that:
(i) the aggregate amount of all Revolving Letter of Credit Liabilities shall not at any time exceed the amount of One Million Five Hundred Thousand and No/100 Dollars ($1,500,000.00);
(ii) the sum of the outstanding Revolving Letters of Credit plus the outstanding Revolving Line of Credit Advances shall not at any time exceed the Revolving Line of Credit Commitment; and
(iii) the expiration date of a Revolving Letter of Credit advanced under the Revolving Line of Credit Loan shall be no later than the Revolving Line of Credit Loan Maturity Date;
(iv) such Letter of Credit shall be in such form and contain such terms as shall be satisfactory to the Issuer consistent with its then-current practices and procedures with respect to letters of credit of the same type;
(v) such Letter of Credit shall be issued solely for the purposes set forth in Section 2.04(b);
(vi) GPCC shall have executed and delivered such other instruments and agreements relating to such Letter of Credit as the Agent or Issuer shall have reasonably requested consistent with its then-current practices and procedures with letters of credit of the same type.
In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by GPCC to, or entered into by GPCC with, the Issuer or the Agent relating to any Letter of Credit, the terms and conditions of this Agreement shall control.
(i) Interest Rate .
Subject to the provisions of Section 2.08 and 2.11, the Revolving Line of Credit Loan shall bear interest at a rate per annum equal to four percent (4.0%) plus the greater of (a) the LIBOR Rate, or (b) two percent (2.0%).
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(ii) The rate of interest due hereunder shall initially be determined as of the date of the initial Advance and shall thereafter be adjusted as and when the LIBOR Rate changes. All such adjustments to the rate of interest shall be made and become effective as of the first Adjustment Date following such change in the LIBOR Rate. All such adjustments to said rate shall be made and become effective as of the Adjustment Date, and said rate as adjusted shall remain in effect until and including the day immediately preceding the next Adjustment Date. Interest hereunder shall be computed on the basis of a year of three hundred sixty five (365) days, but charged for actual days principal is outstanding. In no event shall the applicable rate exceed the Maximum Rate.
(j) Funding of Advances . Upon receipt by the Agent from GPCC of any Request for Advance for any Revolving Line of Credit Advance, the Agent shall promptly notify GPCC and the other Banks as to the amount to be paid as a result of such Request for Advance. Not later than 12:00 P.M. (Minneapolis, Minnesota time) on the applicable payment date each Bank will make available to the Agent, in immediately available funds, an amount equal to such Bank’s Pro Rata Share of the amount to be paid as a result of such Request for Advance.
. (k) Repayment of the Revolving Line of Credit Loan . On January 1, 2010, GPCC shall pay to the Agent for the account of the Banks all accrued interest on the Revolving Line of Credit Loan. Beginning on the first (1st) day of February, 2010 and continuing on each Monthly Payment Date thereafter until the Revolving Line of Credit Loan Maturity Date, GPCC shall pay to the Agent for the account of the Banks all accrued interest on the Outstanding Revolving Advances. On the Revolving Line of Credit Loan Maturity Date, the amount of the then Outstanding Revolving Advances and any and all other amounts due and owing hereunder or under any other Loan Document relating to the Revolving Line of Credit Loan shall be due and payable. If any Monthly Payment Date is not a Business Day, then the installment then due shall be paid on the next Business Day and interest shall continue to accrue until paid.
(l) Reduction in Revolving Loan Commitment . In the event GPCC and the Required Banks have agreed in writing to reduce the maximum amount of the Revolving Line of Credit Loan available to GPCC, the Revolving Line of Credit Commitment of each Bank holding such Commitment shall be reduced on a pro rata basis according to each Bank’s respective Pro Rata Share. (m) Unused Commitment Fee . GPCC agrees to pay to the Agent for the account of each Bank an unused commitment fee on the average daily unused portion of such Bank’s Revolving Commitment from the Closing Date until the Revolving Line of Credit Termination Date, at the rate of fifty (50) basis points on a per annum basis, payable in arrears in quarterly installments payable on the first (1 st ) day of each third month after the Closing Date during the term of such Bank’s Revolving Commitment, and on the Revolving Line of Credit Termination Date. For purposes of this Agreement, the unused portion of a Bank’s Revolving Commitment for any measurement period shall be the positive difference, if any, of (a) the average daily amount of such Bank’s Revolving Commitment, minus (b) the Bank’s Pro Rata Share of the average daily outstanding Revolving Line of Credit Advances and Revolving Letter of Credit Liabilities, but shall not, for purposes of this Section 2.04(m) only, be deemed utilized by any Swingline Advances unless the Banks’ participations therein are funded in accordance with Section 2.05.
(n) Mandatory Prepayments or Collateralization . GPCC shall, within five (5) days following the earlier of the delivery of each Borrowing Base Certificate hereunder or the day upon which such Borrowing Base Certificate was due, either (i) prepay the Revolving Line of Credit Advances in the amount, if any, by which the Outstanding Revolving Line of Credit Advances on the date of prepayment under this Section 2.04(n) exceeds the Borrowing Base at such time, together with accrued interest to the date of such prepayment on the amount prepaid, or (ii) pledge and assign to the Agent additional collateral acceptable to the Agent, in the Agent’s sole discretion, and deliver all documentation that the Agent, in its sole discretion, may require in connection with such pledge and assignment and the perfection of a first-priority Security Interest in such additional Collateral, so that the Borrowing Base plus the value assigned by the Agent, in its sole discretion, to such additional Collateral equals or exceeds the Outstanding Revolving Line of Credit Advances.
Section 2.05.
(a) Swingline Loan . Subject to the terms and conditions of this Agreement, the Swingline Bank agrees to make one or more Advances to GPCC from time to time, from and including the Closing Date to, but excluding, the Revolving Line of Credit Termination Date, in an aggregate principal amount at any time outstanding up to but not exceeding the Swingline Commitment; provided, however that after calculation of the participation interests of each Bank in such Advances:
(i) the aggregate amount of outstanding Swingline Advances shall not at any time exceed the amount of One Million and No/100 Dollars ($1,000,000.00) (the “ Swingline Commitment ”);
(ii) the Outstanding Credit applicable to a Bank shall not at any time exceed such Bank’s Revolving Line of Credit Commitment; and
(iii) the Outstanding Credit shall not at any time exceed the aggregate amount of the Commitments at such time.
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Subject to the foregoing limitations, and the other terms and provisions of this Agreement, GPCC may borrow, prepay, and reborrow hereunder the amount of the Swingline Commitment. The Swingline Bank may, by written notice given to the Agent not later than 10:00 A.M. (Minneapolis, Minnesota time) on any Business Day, require the Banks to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Banks will participate. Promptly upon receipt of such notice, the Agent will give notice thereof to each Bank specifying in such notice such Bank’s Pro Rata Share of such Swingline Loan or Loans. Each Bank hereby absolutely and unconditionally agrees upon receipt of notice as provided in this Section 2.05 to pay to the Agent for the account of the Swingline Bank such Bank’s Pro Rata Share of such Swingline Loan or Loans. Each Bank acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of an Event of Default or reduction or termination of the Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Bank shall comply with its obligation under this Subsection by wire transfer of immediately available funds, in the same manner as provided in Section 8.08 with respect to Loans made by such Bank (and Section 8.09 shall apply to the payment obligations of the Banks), and the Agent shall promptly pay to the Swingline Bank the amounts so received by it from the Banks. The Agent shall notify GPCC of any participations in any Swingline Loan acquired pursuant to this subsection, and thereafter payments in respect of such Swingline Loan shall be made to the Agent and not to the Swingline Bank. Any amounts received by the Swingline Bank from GPCC (or other party on behalf of GPCC) in respect of a Swingline Loan after receipt by the Swingline Bank of the proceeds of a sale of participations therein shall be promptly remitted to the Agent; any such amounts received by the Agent shall be promptly remitted by the Agent to the Banks that shall have made their payments pursuant to this Subsection and to the Swingline Bank, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this Subsection shall not relieve GPCC of any default in the payment thereof. Notwithstanding the foregoing, a Bank shall not have any obligation to acquire a participation in a Swingline Loan pursuant to this Subsection if an Event of Default shall have occurred and be continuing at the time such Swingline Loan was made and such Bank shall have notified the Swingline Bank in writing, at least one Business Day prior to the time such Swingline Loan was made, that such Event of Default has occurred and that such Bank will not acquire participations in Swingline Loans made while such Event of Default is continuing.
(b) Swingline Advances . Each Swingline Advance shall be made, to the extent that the Swingline Bank is so obligated under Section 2.05(a), on a Request for Advance from GPCC to the Agent delivered before 12:00 P.M. (Minneapolis, Minnesota time) on the date of such Swingline Advance, specifying the amount of such Swingline Advance. Any Request for Advance applicable to a Swingline Advance received after 12:00 P.M. (Minneapolis, Minnesota time) shall be deemed to have been received and be effective on the next Business Day. The amount of each Swingline Advance made hereunder shall, subject to the terms and conditions of this Agreement, be made available to GPCC by (i) depositing the same, in same day funds, in an account of GPCC or (ii) wire transferring such funds to a Person or Persons designated by GPCC in writing.
(c) Minimum Amounts . Each Swingline Advance shall be in a minimum amount equal to Fifty Thousand and No/100 Dollars ($50,000.00).
(d) Repayment of Swingline Loan . GPCC shall pay to the Agent for the account of the Swingline Bank the outstanding principal amount of each Swingline Advance on the earlier of (i) the Revolving Line of Credit Termination Date, or (ii) the date which is thirty (30) days after the Swingline Advance is made (the earliest of such date with respect to a Swingline Advance herein the “ Swingline Maturity ”). Subject to the other terms and conditions of this Agreement, GPCC may repay a Swingline Advance on its Swingline Maturity or at any time prior thereto by requesting a Revolving Advance in accordance with Sections 2.03(e) or 2.04(e) with the proceeds thereof payable to the Swingline Bank for its own account. The Swingline Bank, at any time in its sole and absolute discretion and whether or not a Swingline Maturity shall have occurred, may require that each other Bank fund its participation in the then outstanding principal amount of all Swingline Advances by giving each other Bank notice thereof as set forth herein below. Additionally, if GPCC shall not have repaid a Swingline Advance by 12:00 P.M. (Minneapolis, Minnesota time) on the corresponding Swingline Maturity, the Swingline Bank will notify each Bank of the aggregate principal amount of the Swingline Advance which has not been repaid. Upon the giving of any notice by the Swingline Bank under either of the preceding two sentences, each such Bank shall make available to the Swingline Bank, in immediately available funds, an amount equal to its Pro Rata Share of the aggregate principal amount of the Swingline Advance or Swingline Advances subject to such notice by not later than 3:00 P.M. (Minneapolis, Minnesota time) on the date such notice is received if such notice is received by 12:00 P.M., or by 11:00 A.M. (Minneapolis, Minnesota time) on the next Business Day if such notice is received after 12:00 P.M. (Minneapolis, Minnesota time), whether or not the conditions to an Advance under Article III are satisfied.
(e) Swingline Interest Rate .
(i) Subject to the provisions of Section 2.08 and 2.11, the Swingline Loan shall bear interest at a rate per annum equal to four percent (4.0%) plus the greater of (a) the LIBOR Rate, or (b) two percent (2.0%).
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(ii) The rate of interest due hereunder shall initially be determined as of the date of each Swingline Advance and shall thereafter be initially adjusted on the first day of the immediately succeeding calendar month. All such adjustments to the rate of interest shall be made and become effective as of the first Adjustment Date following each Swingline Advance. All such adjustments to said rate shall be made and become effective as of each subsequent Adjustment Date, and said rate as adjusted shall remain in effect until and including the day immediately preceding the next Adjustment Date. Interest hereunder shall be computed on the basis of a year of three hundred sixty five (365) days, but charged for actual days principal is outstanding. In no event shall the applicable rate exceed the Maximum Rate.
Section 2.06. Evidence of Debt . The extension of credit made by each Bank shall be evidenced by one or more accounts or records maintained by such Bank and by the Agent in the ordinary course of business. The accounts or records maintained by the Agent and each Bank shall be prima facie evidence of the amount of the credit extensions made by the Banks to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Bank and the accounts and records of the Agent in respect of such matters, the accounts and records of the Agent shall control in the absence of manifest error. Upon the request of any Bank made through the Agent, the Borrowers shall execute and deliver to such Bank, through the Agent, a promissory note, which shall evidence such Bank’s Loans to the Borrowers, in addition to the foregoing accounts and records. Each Bank may attach schedules to its Note and endorse thereon the date, amount and maturity of its loans and payments with respect thereto. Upon the termination of the Commitments and repayment of all Obligations hereunder, each Bank shall, at the request of the Borrowers (and at the Borrowers’ expense), return to the Borrowers the Note or Notes evidencing such Bank’s loans marked “cancelled.”
Section 2.07. Letters of Credit . All Letters of Credit that are issued under this Agreement are subject to the following:
(a) Letter of Credit Request Procedure . GPCC shall give the Agent and the Issuer irrevocable prior notice (effective upon receipt) on or before 12:00 P.M. (Minneapolis, Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of the requested issuance of a Letter of Credit specifying the requested amount, the beneficiary of each Letter of Credit to be issued, the expiry date and issuance date of each Letter of Credit to be issued, and the nature of the transactions to be supported thereby. Any such notice received after 12:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have been received and be effective on the next Business Day. Upon receipt of such notice, the Agent shall promptly notify each Bank of the face amount and expiry date of such Letter of Credit and of such Bank’s Pro Rata Share of the amount of the proposed Letter of Credit. The Issuer shall provide a Bank a copy of each Letter of Credit it has issued hereunder upon such Bank’s request. Each Letter of Credit shall be payable in U.S. dollars, shall be in form and substance satisfactory to the Agent and the Issuer, and shall be issued pursuant to such documentation as the Issuer may require, including the Issuer’s standard form letter of credit request and reimbursement agreement; provided that, in the event of any conflict between the terms of such credit request and reimbursement agreement and the other Loan Documents, the terms of the other Loan Documents shall control.
(b) Banks’ Pro Rata Shares . Upon the date of issue of a Letter of Credit, the Issuer shall be deemed, without further action by any party hereto, to have sold to each other Bank, and each other Bank shall be deemed, without further action by any party hereto, to have purchased from the Issuer a participation to the extent of such Bank’s Pro Rata Share in such Letter of Credit and the related Letter of Credit Liabilities.
(c) Letter of Credit Fees . GPCC shall pay to the Issuer an irrevocable letter of credit fee on each Bank’s Pro Rata Share of the maximum amount available for drawings under each Letter of Credit, such letter of credit fee (i) to be in an amount equal to two hundred fifty (250) basis points, on an annualized basis, of the maximum amount available to be drawn under such Letter of Credit, and (ii) to be paid on the date of issuance of such Letter of Credit and on each anniversary date of the date of issuance of such Letter of Credit for so long as such Letter of Credit remains outstanding. After receiving any payment of any letter of credit fees under this Subsection (c), the Agent will promptly pay to each Bank the letter of credit fees then due such Bank. With respect to each Letter of Credit, GPCC shall also pay to the Issuer for its account only all fees, costs, and expenses of the Issuer arising in connection with any Letter of Credit, including the Issuer’s customary fees for amendments, transfers, and drawings on Letters of Credit.
(d) Reimbursements . After receipt of the notice delivered pursuant to Section 2.07 with respect to a Letter of Credit, GPCC shall be irrevocably and unconditionally obligated to reimburse the Banks for any amounts paid by the Banks upon any demand for payment or drawing under the applicable Letter of Credit, without presentment, demand, protest, or other formalities of any kind other than the notice required by Section 2.07. Such reimbursement shall occur no later than 3:00 P.M. (Minneapolis, Minnesota time) on the date of payment under the applicable Letter of Credit if the notice under Section 2.07 is received by 12:00 P.M. (Minneapolis, Minnesota time) on such date or by 11:00 A.M. (Minneapolis, Minnesota time) on the next Business Day, if such notice is received after 12:00 P.M. (Minneapolis, Minnesota time). All payments on the Reimbursement Obligations (including any interest earned thereon) shall be made to the Agent for the account of the Banks in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim.
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(e) Reimbursement Obligations Absolute . The Reimbursement Obligations of the Borrowers under this Agreement shall be absolute, unconditional, and irrevocable, and shall be performed strictly in accordance with the terms of the Loan Documents under all circumstances whatsoever and the Borrowers hereby waive any defense to the payment of the Reimbursement Obligations based on any circumstance whatsoever, including, in any case, the following circumstances: (i) any lack of validity or enforceability of any Letter of Credit or any other Loan Document; (ii) any amendment or waiver of or any consent to departure from any Loan Document; (iii) the existence of any claim, set-off, counterclaim, defense, or other rights which the Borrowers or any other Person may have at any time against any beneficiary of any Letter of Credit, the Agent, the Issuer, the Banks or any other Person, whether in connection with any Loan Document or any unrelated transaction; (iv) any statement, draft, or other documentation presented under any Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any statement therein being untrue or inaccurate in any respect whatsoever; (v) payment by the Issuer under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit; or (vi) any other circumstance whatsoever, whether or not similar to any of the foregoing; provided that Reimbursement Obligations with respect to a Letter of Credit may be subject to avoidance by the Borrowers if the Borrowers prove in a final non-appealable judgment that they were damaged and that such damage arose directly from the Issuer’s willful misconduct or gross negligence in determining whether the documentation presented under the Letter of Credit in question complied with the terms thereof.
(f) Issuer Responsibility . GPCC assumes all risks of the acts or omissions of any beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. None of the Agent, the Issuer, the other Banks, or any of their respective officers or directors shall have any responsibility or liability to GPCC or any other Person for: (i) the failure of any draft to bear any reference or adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft at negotiation, or the failure of any Person to surrender or to take up any Letter of Credit or to send documents apart from drafts as required by the terms of any Letter of Credit, or the failure of any Person to note the amount of any instrument on any Letter of Credit, each of which requirements, if contained in any Letter of Credit itself, it is agreed may be waived by the Issuer; (ii) errors, omissions, interruptions, or delays in transmission or delivery of any messages; (iii) the validity, sufficiency, or genuineness of any draft or other document, or any endorsement(s) thereon, even if any such draft, document or endorsement should in fact prove to be in any and all respects invalid, insufficient, fraudulent, or forged or any statement therein is untrue or inaccurate in any respect; (iv) the payment by the Issuer to the beneficiary of any Letter of Credit against presentation of any draft or other document that does not comply with the terms of the Letter of Credit; or (v) any other circumstance whatsoever in making or failing to make any payment under a Letter of Credit. The Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary.
(g) Replacement of Issuer . The Issuer may be replaced at any time by written agreement among GPCC, the Agent, the Issuer and the successor Issuer. The Agent shall notify the Banks of any such replacement of the Issuer. At the time any such replacement shall become effective, GPCC shall pay all unpaid fees accrued for the account of the replaced Issuer pursuant to Section 2.07(c). From and after the effective date of any such replacement, (i) the successor Issuer shall have all the rights and obligations of the Issuer under this Agreement with respect to Letters of Credit to be issued thereafter, and (ii) references herein to the term “ Issuer ” shall be deemed to refer to such successor or to any previous Issuer, or to such successor and all previous Issuers, as the context shall require. After the replacement of an Issuer hereunder, the replaced Issuer shall remain a party hereto and shall continue to have all the rights and obligations of an Issuer under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.
Section 2.08. Adjustments to Interest Rate . Notwithstanding any other provision of this Agreement, the Notes, or the other Loan Documents, after the Closing Date, the rate of interest under any Loan which bears interest at a variable rate, shall be adjusted according to the following schedule should the Tangible Owner’s Equity of GPCC, achieve the levels set forth below:
Upon delivery of the financial statements pursuant to Section 5.01(c)(i) for each fiscal year end beginning with the first fiscal year end after the Closing Date, the rate of interest for any Loan which bears interest at a variable rate shall automatically be adjusted in accordance with the Tangible Owner’s Equity set forth therein and the rates set forth above. Such automatic adjustment to the rate of interest shall take effect as of the first Business Day of the month following the month in which the Agent received the related financial statements pursuant to Section 5.01(c)(i).
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Section 2.09. Changes in Law Rendering Certain LIBOR Rate Loans Unlawful . In the event that any change in any applicable law (including the adoption of any new applicable law) or any change in the interpretation of any applicable law by any judicial, governmental or other regulatory body charged with the interpretation, implementation or administration thereof, should make it (or in the good-faith judgment of the Agent should raise a substantial question as to whether it is) unlawful for the Banks to make, maintain or fund LIBOR Rate loans, then: (a) the Agent shall promptly notify each of the other parties hereto; and (b) the obligation of the Banks to make LIBOR Rate loans of such type shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness. During the period of any suspension, the Banks shall make loans to the Borrowers that are deemed lawful and that as closely as possible reflect the terms of this Agreement.
Section 2.10.
(a) Method of Payment . Except as otherwise expressly provided herein, all payments of principal, interest, and other amounts to be made by the Borrowers under the Loan Documents shall be made to the Agent for the account of the Banks in U.S. dollars and in immediately available funds, without set-off, deduction, or counterclaim, not later than 12:00 P.M. (Minneapolis, Minnesota time) on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). GPCC shall, at the time of making each such payment, specify to the Agent the sums payable under the Loan Documents to which such payment is to be applied and in the event that the Borrowers fail to so specify or if an Event of Default exists, the Agent may apply such payment and any proceeds of any Collateral to the Loan Obligations in such order and manner as it may elect in its sole discretion.
(b) Application of Funds . Except as otherwise provided herein, the Agent may apply all payments received for the benefit of the Borrowers to the Loan Obligations in such order and manner as the Agent may elect in its sole discretion; provided that any payments received from any guarantor or from any disposition of any collateral provided by such guarantor shall only be applied against obligations guaranteed by such guarantor.
(c) Payments on a Non-Business Day . Whenever any payment under any Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and fees, as the case may be.
(d) Pro Rata Treatment . Except to the extent otherwise provided herein: (i) each Advance shall be made by the Banks, and each payment of fees under Section 2.03(l), Section 2.04(m), and Section 2.07(c) shall be made for the account of the Banks pro rata according to their respective Pro Rata Share; (ii) each payment and prepayment of principal of or interest on Advances or Reimbursement Obligations by the Borrowers shall be made to the Agent for the account of the Agent or the Banks holding such Advances or Reimbursement Obligations (or participation interests therein) pro rata in accordance with the respective unpaid principal amounts of such Advances or funded participation interests held by such Banks (provided that only the Swingline Bank shall be entitled to principal and interest on the Swingline Advances unless the other Banks have funded their participations therein and the Issuer shall be entitled to principal and interest on the Reimbursement Obligations unless the other Banks have funded their participations therein); (iii) the Banks (other than the Issuer) shall purchase from the Issuer participations in the Letters of Credit pro rata according to their respective Pro Rata Share; and (iv) the Banks (other than the Swingline Bank) shall purchase from the Swingline Bank participations in the Swingline Advances pro rata according to their respective Pro Rata Shares.
(e) Proceeds of Collateral . All proceeds received by the Agent for the account of the Banks from the sale or other liquidation of the Collateral when an Event of Default exists shall first be applied as payment of the accrued and unpaid fees and expenses of the Agent and the Banks hereunder, including under Section 8.04 and then to all other unpaid or unreimbursed Loan Obligations (including reasonable attorneys’ fees and expenses) owing to the Agent or the Banks and then any remaining amount of such proceeds shall be applied to the unpaid amounts of Loan Obligations, until all the Loan Obligations have been paid and satisfied in full or cash collateralized. After all the Loan Obligations (including all contingent Obligations) have been paid and satisfied in full, all Commitments terminated and all other obligations of the Borrowers to the Banks otherwise satisfied, any remaining proceeds of Collateral shall be delivered to the Person entitled thereto as directed by the Borrowers or as otherwise determined by applicable law or applicable court order.
(f) Return of Proceeds . If at any time payment, in whole or in part, of any amount distributed by the Agent hereunder is rescinded or must otherwise be restored or returned by the Agent as a preference, fraudulent conveyance, or otherwise under any bankruptcy, insolvency, or similar law, then each Person receiving any portion of such amount agrees, upon demand, to return the portion of such amount it has received to the Agent.
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(g) Sharing of Payments . If a Bank shall obtain payment of any principal of or interest on any of the Loan Obligations owed to such Bank hereunder directly (and not through the Agent) through the exercise of any right of set-off, banker’s lien, counterclaim or similar right, or otherwise, such Bank shall promptly purchase from the other Banks participations in the Loan Obligations owed hereunder held by the other Banks in such amounts, and make such other adjustments from time to time as shall be equitable to the end that all the Banks shall share the benefit of such payment pro rata in accordance with the unpaid principal of and interest on the Loan Obligations then owed hereunder to each of them. To such end, all of the Banks shall make appropriate adjustments among themselves (by the resale of participations sold or otherwise) if all or any portion of such excess payment is thereafter rescinded or must otherwise be restored. The Borrowers agree, to the fullest extent they may effectively do so under applicable law, that any Bank so purchasing a participation in the Loan Obligations held by the other Banks may exercise all rights of set-off, banker’s lien, counterclaim, or similar rights with respect to such participation as fully as if such Bank were a direct holder of the Loan Obligations in the amount of such participation. Nothing contained herein shall require any Bank to exercise any such right or shall affect the right of any Bank to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrowers.
(h) Computations . Except as expressly provided otherwise herein, all computations of interest and fees shall be made on the basis of actual number of days lapsed over a year of three hundred sixty five (365) days, as appropriate. Interest shall accrue from and include the date of borrowing, but exclude the date of payment.
Section 2.11. Default Interest . In addition to the rights and remedies set forth in this Agreement and the other Loan Documents: (a) if the Borrowers fail to make any payment to the Agent for the account of the Banks when due, then at the Agent’s option in each instance, the Loan Obligations shall bear interest from the date due to the date paid at two percent (2%) per annum in excess of the Applicable Rate; (b) upon the occurrence and during the continuance of an Event of Default beyond any applicable cure period, if any, at the Agent’s option in each instance, the unpaid balances of the Loans shall bear interest from the date of the Event of Default or such later date as the Agent shall elect at two percent (2%) per annum in excess of the rate(s) of interest that would otherwise be in effect on the Loans under the terms of this Agreement; (c) after the maturity of any Loan, whether by reason of acceleration or otherwise, the unpaid principal balance of the Loan (including principal, interest, fees and expenses) shall automatically bear interest at two percent (2%) per annum in excess of the rate of interest that would otherwise be in effect on the Loan under the terms of this Agreement. Interest payable at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the last day of each calendar month.
Section 2.12. Late Charge . If any payment due under this Agreement is not paid within ten (10) days of the due date thereof, the Borrowers shall, in addition to such amount, pay on demand of the Agent a late charge equal to five percent (5%) of the amount of such payment.
Section 2.13. Prepayment of Loans . The Borrowers may, at anytime and from time to time, upon sixty (60) days advance written notice to the Agent, prepay the outstanding amount of the Loans in whole or in part with accrued interest to the date of such prepayment on the amount prepaid, without fee or premium, except as provided in Section 2.19. Any prepayment does not otherwise affect Borrowers’ obligation to pay any fees due under this Agreement or under any other Loan Document. In addition, in the event any Loan is converted to a Fixed Rate Loan, the Borrowers shall pay the prepayment fee applicable to that fixed interest rate, if any. In the event the Required Banks have agreed in writing to reduce the maximum amount of the Term Revolving Loan or the Revolving Line of Credit Loan available to Borrowers, the Term Revolving Loan Commitment or the Revolving Line of Credit Loan Commitment of each Bank holding such Commitment shall be reduced on a pro rata basis according to a each Bank’s respective Pro Rata Share.
Section 2.14. Withholding Taxes . All payments by the Borrowers of amounts payable under any Loan Document shall be payable without deduction for or on account of any present or future taxes, duties, or other charges levied or imposed by any Governmental Authority through withholding or deduction with respect to any such payments (but excluding any tax imposed on or measured by the net income or profit of a Bank) (all such taxes, duties or other charges, giving effect to the taxes excluded pursuant to the foregoing parenthetical herein the “ Non-Excluded Taxes ”). If any Non-Excluded Taxes are so levied or imposed, the Borrowers shall make additional payments in such amounts so that every net payment of amounts payable by it under any Loan Document, after withholding or deduction for or on account of any Non-Excluded Taxes, will be equal to the amount provided for herein or therein; provided that the Borrowers may withhold to the extent required by law and shall have no obligation to pay such additional amounts to any Bank to the extent that such Non-Excluded Taxes (a) are levied or imposed by reason of the failure or inability of such Bank to comply with the provisions of Section 2.15, or (b) are United States withholding taxes imposed (or branch profits taxes imposed in lieu thereof) on amounts payable to such Bank at the time the Bank becomes a party to the Loan Documents, except to the extent that such Bank’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Borrowers with respect to such Non-Excluded Taxes pursuant to this Section 2.14. The Borrowers shall furnish promptly to the Agent for distribution to each affected Bank, as the case may be, official receipts evidencing any such withholding or reduction.
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Section 2.15.
(a) Each Bank that is not incorporated or organized under the laws of the United States of America or a state thereof (a “ Non-U.S. Bank ”) agrees that it will deliver to the Borrowers and the Agent on the Closing Date (or, in the case of an assignee, on the date of assignment) two duly completed copies of either United States Internal Revenue Service Form W8-ECI or W8-BEN (or any applicable successor form), certifying in either case that such Non-U.S. Bank is entitled to receive payments from the Borrowers under any Loan Document without deduction or withholding of any United States federal income taxes. In the case of a Non-U.S. Bank claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(s) of the Code, with respect to payments of “ portfolio interest ”, it will deliver to the Borrowers and the Agent on the Closing Date (or, in the case of an assignee, on the date of assignment) two Form W-8 (or any subsequent versions thereof or successors thereto) properly completed and duly executed by such Non-U.S. Bank claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrowers under the Loan Documents. Each Non-U.S. Bank which so delivers such a form further undertakes to deliver to the Borrowers and the Agent two (2) additional copies of such form on or before the date such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form so delivered by it, and such amendments thereto or extensions or renewals thereof as may be reasonably requested by the Borrowers or the Agent, in each case certifying that such Non-U.S. Bank is entitled to receive payments from the Borrowers under any Loan Document without deduction or withholding of any United States federal income taxes, unless an event (including any change in treaty, law, or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Non-U.S. Bank from duly completing and delivering any such form with respect to |
AGREEMENTS / CONTRACTS
CLAUSES
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