Exhibit 10.2
MASTER LOAN AGREEMENT
THIS
MASTER LOAN AGREEMENT is entered into as of March 25, 2008, between
FARM CREDIT SERVICES OF AMERICA, FLCA ("Farm Credit") and GPRE
SHENANDOAH LLC, Shenandoah, Iowa (the "Company").
BACKGROUND
From time
to time Farm Credit may make loans to the Company. In order to
reduce the amount of paperwork associated therewith, Farm Credit
and the Company would like to enter into a master loan agreement.
For that reason, and in consideration of Farm Credit making one or
more loans to the Company, Farm Credit and the Company agree as
follows:
SECTION 1 . Supplements . In the event the Company
desires to borrow from Farm Credit and Farm Credit is willing to
lend to the Company, or in the event Farm Credit and the Company
desire to consolidate any existing loans hereunder, pursuant to a
Supplement to this agreement (a "Supplement") and other provisions
hereof. Each Supplement will set forth the amount of the loan, the
purpose of the loan, the interest rate or rate options applicable
to that loan, the repayment terms of the loan, and any other terms
and conditions applicable to that particular loan. Each loan will
be governed by the terms and conditions contained in this agreement
and in the Supplement relating to the loan. As of the date hereof,
the Company has formally assumed all of the obligations under the
following Supplements between Farm Credit and Green Plains
Renewable Energy, Inc. ("Green Plains") which are outstanding
hereunder and shall be governed by the terms and conditions hereof:
(a) the Statused Revolving Credit Supplement dated October 31, 2007
and numbered RI0355S0lA; (b) the Construction and Term Loan
Supplement dated January 30, 2006 and numbered RI0355TOl, as
amended; and (c) the Construction and Revolving Term Loan
Supplement dated January 30,2006 and effective February 1, 2007, as
amended.
SECTION 2 . Sale of Participation Interests and
Appointment of Administrative Agent . The Company acknowledges
that concurrent with the execution of this Master Loan Agreement
and related Supplements, Farm Credit is selling a participation
interest in this Master Loan Agreement and Supplements executed
concurrently herewith to CoBank, ACB ("CoBank") (up to a 100%
interest). Pursuant to ail Administrative Agency Agreement dated
January 30, 2006, (the "Agency Agreement"), Farm Credit and CoBank
appointed CoBank to act as Administrative Agent ("Agent") to act in
place of Farm Credit hereunder and under the Supplements and ally
security documents to be executed thereunder. All funds to be
advanced hereunder shall be made by Agent, all repayments by the
Company hereunder shall be made to Agent, and all notices to be
made to Farm Credit hereunder shall be made to Agent. Agent shall
be solely responsible for the administration of this agreement, the
Supplements and the security documents to be executed by the
Company thereunder and the enforcement of all rights and remedies
of Fann Credit hereunder and thereunder. Company acknowledges the
appointment of the Agent and consents to such appointment.
SECTION 3. Availability . Loans will be made
available on any day on which Agent and the Federal Reserve Banks
are open for business upon the telephonic or written request of the
Company. Requests for loans must be received no later than 12:00
Noon Company's local time on the date the loan is desired. Loans
will be made available by wire transfer of immediately available
funds to such account or accounts as may be authorized by the
Company. The Company shall furnish to Agent a duly completed and
executed copy of a Delegation and Wire and Electronic Transfer
Authorization Form of the Agent, and Agent shall be entitled to
rely on (and shall incur no liability to the Company in acting on)
any request or direction furnished in accordance with the terms
thereof.
Master Loan Agreement RI0355C -2
GPRE Shenandoah LLC
Shenandoah,
Iowa
SECTION 4 . Repayment . The Company's
obligation to repay each loan shall be evidenced by the promissory
note set forth in the Supplement relating to that loan or by such
replacement note as Agent shall require. Agent shall maintain a
record of all loans, the interest accrued thereon, and all payments
made with respect thereto, and such record shall, absent proof of
manifest error, be conclusive evidence of the outstanding principal
and interest on the loans. All payments shall be made by wire
transfer of immediately available funds, by check, or by automated
clearing house or other similar cash handling processes as
specified by separate agreement between the Company and Agent. Wire
transfers shall be made to ABA No. 307088754 for advice to and
credit of Agent (or to such other account as Agent may direct by
notice). The Company shall give Agent telephonic notice no later
than 12:00 Noon Company's local time of its intent to pay by wire
and funds received after 3:00 p.m. Company's local time shall be
credited on the next business day. Checks shall be mailed to
CoBank, ACB, Department 167, Denver, Colorado 80291-0167 (or to
such other place as Agent may direct by notice). Credit for payment
by check will not be given until the later of: (a) the day on which
Agent receives immediately available funds; or (b) the next
business day after receipt of the check.
SECTION 5 . Capitalization . The Company
agrees to purchase voting (Class D) or non-voting (Class E) stock
in Farm Credit Services of America, ACA (currently a minimum of
$1,000.00 worth of stock consisting of at least 200 shares of $5.00
par value stock) as required under the policy of Farm Credit at the
time of acquisition. Farm Credit policy may change from time to
time. Farm Credit shall have a first lien on the stock for payment
of any liability of the Company to Farm Credit. Said stock shall be
owned as follows:
Owner Name: GPRE Shenandoah LLC SSN/TIN:
26-1905438
The Company authorizes and appoints the following to act
on behalf of all owners, to vote the Class D stock, and to accept,
receive and receipt for any dividends declared on the stock:
Wayne Hoovestol, voter
SECTION 6. Security . The Company's obligations
under this agreement, all Supplements (whenever executed), and all
instruments and documents contemplated hereby or thereby, shall be
secured by a statutory first lien on all equity which the Company
may now own or hereafter acquire in Farm Credit. In addition, the
Company agrees to grant to Farm Credit, by means of such
instruments and documents as Agent shall reasonably require, a
first lien (subject only to exceptions approved in writing by
Agent) on all personal property of the Company, and on all real
property of the Company, whether now existing or hereafter
acquired. As additional security for those obligations: (i) the
Company agrees to grant to Farm Credit, by means of such
instruments and documents as Agent shall reasonably require, a
first priority lien on such of its other assets, whether now
existing or hereafter acquired, as Agent may from time to time
require; and (ii) the Company agrees to grant to Farm Credit, by
means of such instruments and documents as Agent shall require, a
first priority lien on all realty which the Company may from time
to time acquire after the date hereof. Farm Credit may at its
discretion assign collateral to the Agent under the Agency
Agreement.
Master Loan Agreement RI0355C - 3
GPRE
Shenandoah LLC
Shenandoah,
Iowa
SECTION 7. Conditions Precedent .
(A) Conditions to Initial Supplement . Farm Credit's
obligation to extend credit under the initial Supplement hereto is
subject to the conditions precedent that Agent receive, in form and
substance satisfactory to Agent, each of the following:
(i) This Agreement, Etc. A duly executed copy of this Agreement and
all instruments and documents contemplated hereby.
(ii) Security Agreement. A security agreement granting to Farm
Credit a first lien (subject only to exceptions approved in writing
by Agent) on all personal property of the Company, whether now
owned or hereafter acquired.
(iii) Mortgage/Deed of Trust. A mortgage or deed of trust granting
to Farm Credit a first lien (subject only to exceptions approved in
writing by Agent) on the Company's Property (as that term is
defined in the applicable Supplements) located near Shenandoah,
Iowa.
(iv) Title Commitment/Policy. A commitment from a title insurance
company acceptable to Agent to issue an ALTA lender's policy of
title insurance in the face amount of $47,000,000.00 insuring the
Company's Mortgage or Deed of Trust to Farm Credit as a first
priority lien on the property encumbered thereby, subject only to
exceptions approved in writing by Agent. The Company agrees to pay
the cost of such commitment and the related policy, together with
such endorsements as may be reasonably requested by Agent, and also
agrees that if, for any reason, a final policy is not issued by the
date that is ninety (90) days after the date of this agreement or
such later date as may be agreeable to Agent, then au "Event of
Default" shall be deemed to have occurred under this agreement.
(v) Guaranty and Related Documents. (a) A guarantee of payment from
Essex Elevator, Inc.; and (b) snch certified board resolutions,
evidence of incumbency, and other evidence as CoBank may require
that the guarantee and all instruments and documents executed in
connection therewith have been dilly authorized and executed.
(vi) Principal Payment. A payment to Agent in the amount of
$2,000,000.00, to be applied to the principal installments, in the
inverse order oft heir maturity, of that certain Construction and
Term Loan Supplement dated January 30, 2006 and numbered RI0355TOl,
as amended, (the "Construction Loan"), in satisfaction of the "Free
Cash Flow" (as defined in the Construction Loan) for fiscal year
2008.
(B) Conditions to Each Supplement . Farm Credit's
obligation to extend credit under each Supplement, including the
initial Supplement, is subject to the conditions precedent that
Agent receive, in form and content satisfactory to Agent, each of
the following:
(i) Supplement. A duly executed copy of the Supplement and all
instruments and documents contemplated thereby.
(ii) Evidence of Authority. Such certified board
resolutions, evidence of incumbency, and other evidence that Agent
may require that the Supplement, all instruments and documents
executed in connection therewith, and, in the case of initial
Supplement hereto, this agreement and all instruments and
documents executed in connection herewith, have been duly
authorized and executed.
Master Loan Agreement RI0355C -4
GPRE
Shenandoah LLC
Shenandoah,
Iowa
(iii) Fees and Other Charges. All fees and other
charges provided for herein or in the Supplement.
(iv) Evidence of Perfection, Etc. Such evidence as Agent may
require that Farm Credit has a duly perfected first priority lien
on all security for the Company's obligations, and that the Company
is in compliance with Section 9(D) hereof.
(C) Conditions to Each Loan . Farm Credit's
obligation under each Supplement to make any loan to the Company
thereunder is subject to the condition that no "Event of Default"
(as defined in Section 12 hereof) or event which with the giving of
notice and/or the passage of time would become an Event of Default
hereunder (a "Potential Default"), shall have occurred and be
continuing.
SECTION
8 . Representations and Warranties.
(A) This Agreement . The Company represents and
warrants to Farm Credit and Agent that as of the date ofthis
Agreement:
(i) Compliance. The Company and, to the extent contemplated
hereunder, each "Subsidiary" (as defined below), is in compliance
with all of the terms of this agreement, and no Event of Default or
Potential Default exists hereunder.
(ii) Subsidiaries. The Company has the following "Subsidiary(ies)"
(as defined below); Essex Elevator, Inc. For purposes hereof, a
"Subsidiary" shall mean a corporation of which shares of stock
having ordinary voting power to elect a majority of the board of
directors or other managers of such corporation are owned, directly
or indirectly, by the Company.
(B) Each Supplement. The execution by the Company of
each Supplement hereto shall constitute a representation and
warranty to Agent that:
(i) Applications. Each representation and warranty and all
information set forth in any application or other documents
submitted in connection with, or to induce Farm Credit to enter
into, such Supplement, is correct in all material respects as of
the date of the Supplement.
(ii) Conflicting Agreements, Etc. This agreement, the Supplements,
and all security and other instruments and documents relating
hereto and thereto (collectively, at any time, the "Loan
Documents"), do not conflict with, or require the consent of any
party to, any other agreement to which the Company is a party or by
which it or its property may be bound or affected, and do not
conflict with any provision of the Company's operating agreement
and articles of organization.
(iii) Compliance. The Company and, to the extent
contemplated hereunder, each Subsidiary, is in compliance with all
of the terms of the Loan Documents (including, without limitation,
Section 9(A) of this agreement on eligibility to borrow from Farm
Credit).
(iv) Binding Agreement. The Loan Documents create
legal, valid, and binding obligations of the Company which are
enforceable in accordance with their terms, except to the
extent
Master Loan Agreement Rl0355C -·5
GPRE
Shenandoah LLC
Shenandoah,
Iowa
that enforcement may be limited by applicable
bankruptcy, insolvency, or similar laws affecting creditors' rights
generally.
SECTION 9 . Affirmative Covenants. Unless
otherwise agreed to in writing by Agent while this agreement is in
effect, the Company agrees to, and with respect to Subsections 9(B)
through 9(G) hereof, agrees to cause each Subsidiary to:
(A) Eligibility. Maintain its status as an entity
eligible to borrow from Farm Credit pursuant to the terms of the
Farm Credit Act of1971, as amended, 12 USC 2001, et seq.
(B) Company Existence, Licenses, Etc. (i) Preserve
and keep in full force and effect its existence and good standing
in the jurisdiction of its formation; (ii) qualify and remain
qualified to transact business in all jurisdictions where such
qualification is required; and (iii) obtain and maintain all
licenses, certificates, permits, authorizations, approvals, and the
like which are material to the conduct of its business or required
by law, rule, regulation, ordinance, code, order, and the like
(collectively , ("Laws").
(C) Compliance with Laws. Comply in all material
respects with all applicable Laws, including, without limitation,
all Laws relating to environmental protection. In addition, the
Company agrees to cause all persons occupying or present on any of
its properties, and to cause each Subsidiary to cause all persons
occupying or present on any of its properties, to comply in all
material respects with all environmental protection Laws.
(D) Insurance. Maintain insurance with insurance
companies or associations reasonably acceptable to Agent in such
amounts and covering such risks as are usually carried by companies
engaged in the same or similar business and similarly situated, and
make such increases in the type or amount of coverage as Agent may
reasonably request. All such policies insuring any collateral for
the Company's obligations to Farm Credit shall have mortgagee or
lender loss payable clauses or endorsements in form and content
acceptable to Agent. At Agent's request, all policies (or such
other proof of compliance with this Subsection as may be
satisfactory to Agent) shall be delivered to Agent.
(E) Property Maintenance. Maintain all of its
property that is necessary to or useful in the proper conduct of
its business in good working condition, ordinary wear and tear
excepted.
(F) Books and Records. Keep adequate records and
books of account in which complete entries will be made in
accordance with generally accepted accounting principles ("GAAP")
consistently applied.
(G) Inspection. Permit Agent or its agents, upon
reasonable notice and during normal business hours or at such other
times as the parties may agree, to examine its properties, books,
and records, and to discuss its affairs, finances, and accounts,
with its respective officers, directors, employees, and independent
certified public accountants.
(H) Reports and Notices. Furnish to Agent:
(i) Annual Financial Statements. As soon as available, but in no
event more than 90 days after the end of each fiscal year of the
Company and Green Plains Renewable Energy, Inc., ('Green Plains")
occurring during the term hereof, annual consolidated and
consolidating financial statements of
Master Loan Agreement RI0355C - 6
GPRE
Shenandoah LLC
Shenandoah,
Iowa
Green Plains and its consolidated Subsidiaries
prepared in accordance with GAAP consistently applied. Furthermore,
as soon as available, but in no event more the 90 days after the
end of each fiscal year of the Company and Green Plains occurring
during the term hereof, annual unconsolidated financial statements
of the Company and Green Plains, prepared in accordance with GAAP
consistently applied. Such financial statements shall: (a) be
audited by independent certified public accountants selected by the
Company and acceptable to Agent; (b) be accompanied by a report of
such accountants containing an opinion thereon acceptable to Agent;
(c) be prepared in reasonable detail and in comparative form; and
(d) include a balance sheet, a statement of income, a statement of
retained earnings, a statement of cash flows, and all notes and
schedules and consolidating schedules relating thereto as may
reasonably be requested by Agent.
(ii) Interim Financial Statements. As soon as available, but in no
event more than 30 days after the end of each month, a consolidated
balance sheet of the Company and its consolidated Subsidiaries, if
any, as of the end of such month, a consolidated statement of
income for the Company and its consolidated Subsidiaries, if any,
for such period and for the period year to date, and such other
interim statements as Agent may reasonably request, all prepared in
reasonable detail and in comparative form in accordance with GAAP
consistently applied and, if required by written notice from Agent,
certified by an authorized officer or employee of the Company
acceptable to Agent.
(iii) Notice of Default. Promptly after becoming
aware thereof, notice of the occurrence of an Event of Default
or a Pot
