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EXHIBIT 10.1 –
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Restated Term Loan Agreement by and between Farm
Credit Services of America, FLCA and East Fork Biodiesel, LLC dated
June 17, 2008
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RESTATED TERM LOAN AGREEMENT
This
Restated Term Loan Agreement is made and entered into this 17 day
of June, 2008, by and between Farm Credit Services of America, FLCA
(“Farm Credit”) and East Fork Biodiesel, LLC, Algona,
Iowa (the “Company”).
BACKGROUND
A. The
Company and Farm Credit are parties to a Master Loan Agreement
dated as of January 3, 2007, and numbered R10457 (the “Master
Loan Agreement”), pursuant to which Farm Credit has provided
credit and other financial accommodations to the Company for the
purpose of constructing a sixty million (60,000,000) gallon (annual
capacity) biodiesel facility situated in Kossuth County, Iowa (the
“Facility”) as well as for working capital
purposes;
B. There
are currently two loan supplements outstanding under the Master
Loan Agreement; a Construction and Term Loan Supplement dated as of
January 30, 2007, and numbered R10457T01 (the “Term
Loan”), and a Construction and Revolving Term Loan Supplement
dated as of January 30, 2007, and numbered R10457T02 (the
“Revolver” and together with the Master Loan Agreement
and the Term Loan, the “Loan Documents”);
C. Farm
Credit has previously appointed and authorized CoBank, ACB to act
as its agent under the Loan Documents
(“Agent”).
D. The
Facility has now been constructed and completed and the Company and
Farm Credit wish to restate the Term Loan in its entirety and
cancel the Master Loan Agreement and the Revolver. The Term Loan is
hereby restated in its entirety as set forth herein: the Master
Loan Agreement is hereby terminated and cancelled; and the Revolver
is hereby terminated and cancelled.
Accordingly,
in consideration of the terms and conditions hereinafter set forth
and for other good and valuable consideration, the receipt and
accuracy of which are hereby acknowledged, the parties hereby agree
as follows:
1.
The Loan . Farm Credit has
loaned the Company the principal sum of Twenty-Four Million Five
Hundred Thousand and 00/100 Dollars ($24,500,000.00) on a term
basis (the “Loan”). The parties hereto acknowledge as
follows:
A. Pursuant
to the Master Loan Agreement and the Term Loan, Farm Credit has
advanced and the Company has received, Nineteen Million Eight
Hundred Eighty-Nine Thousand Forty-Three and 62/100 Dollars
($19,889,043.62) of the Loan;
B. The
Agent shall credit the Loan in the sum of Two Hundred Sixty
Thousand Three Hundred Seventy-Seven and 95/100 Dollars
($260,377.95) together with accrued interest thereon, which is the
present outstanding balance of the Revolver owed by the Company to
Farm Credit and which credit shall satisfy in full the
Company’s outstanding balance under the Revolver together
with all accrued interest;
C. The
Agent shall hold in reserve the sum of Two Hundred Eighty-Nine
Thousand Ten and 00/100 Dollars ($289,010.00) which shall be used
by the Company exclusively for the Facility’s final
construction costs and retainage due the general
contractor;
D. The
Agent shall retain Six Hundred Thousand and 00/100 Dollars
($600,000.00)(the “Carve-Out”) which will be carved out
of the Loan and applied by the Agent on a pro rata monthly basis to
the monthly interest due by the Company for all funds drawn under
the Loan and thus outstanding and due Farm Credit commencing with
the month of July, 2008 and paid in August, 2008; and
E. After
the application of funds as set forth in Sections 1.A. thru 1.D.
above, the Company shall have until February 28, 2009 to draw, at
its discretion any and all of the balance of the Loan after which
such right to draw shall be terminated and the Company will have no
right to drawn any remaining unfunded balance.
2.
Interest . The Company
agrees to pay interest on the unpaid principal balance of the loans
in accordance with one or more of the following interest rate
options, as selected by the Company:
A.
Agent Base Rate . At a rate per annum equal at all times to
¾ of 1% above the rate of interest established by Agent from
time to time as its Agent Base Rate, which Rate is intended by
Agent to be a reference rate and not its lowest rate. The Agent
Base Rate will change on the date established by Agent as the
effective date of any change therein and Agent agrees to notify the
Company of any such change.
B.
LIBOR . At a fixed rate per annum equal to
“LIBOR” (as hereinafter defined) plus 3.25%. Under this
option: (1) rates may be fixed for “Interest Periods”
(as hereinafter defined) of 1, 2, 3, 6, 9 or 12 months as selected
by the Company; (2) amounts may be fixed in increments of
$500,000.00 or multiples thereof; (3) the maximum number of fixes
in place at any one time shall be 10; and (4) rates may only be
fixed on a “Banking Day” (as hereinafter defined) on 3
Banking Days’ prior written notice. For purposes hereof: (a)
“LIBOR” shall mean the rate (rounded upward to the
nearest sixteenth and adjusted for reserves required on
“Eurocurrency Liabilities” (as hereinafter defined) for
banks subject to “FRB Regulation D” (as herein defined)
or required by any other federal law or regulation) quoted by the
British Bankers Association (the “BBA”) at 11:00 a.m.
London time 2 Banking Days before the commencement of the Interest
Period for the offering of U.S. dollar deposits in the London
interbank market for the Interest Period designated by the Company;
as published by Bloomberg or another major information vendor
listed on BBA’s official website; (b) “Banking
Day” shall mean a day on which Agent is open for business,
dealings in U.S. dollar deposits are being carried out in the
London interbank market, and banks are open for business in New
York City and London, England; (c) “Interest Period”
shall mean a period commencing on the date this option is to take
effect and ending on the numerically corresponding day in the month
that is 2, 3, 6, 9 or 12 months thereafter, as the case may be;
provided, however, that: (i) in the event such ending day is not a
Banking Day, such period shall be extended to the next Banking Day
unless such next Banking Day falls in the next calendar month, in
which case it shall end on the preceding Banking Day; and (ii) if
there is no numerically corresponding day in the month, then such
period shall end on the last Banking Day in the relevant month; (d)
“Eurocurrency Liabilities” shall have meaning as set
forth in “FRB Regulation D”; and (e) “FRB
Regulation D” shall mean Regulation D as promulgated by the
Board of Governors of the Federal Reserve System, 12 CFR Part 204,
as amended.
The
Company shall select the applicable rate option at the time it
executes this Agreement hereunder and may, subject to the
limitations set forth above, elect to convert balances bearing
interest at the variable rate option to one of the fixed rate
options. Upon the expiration of any fixed rate period, interest
shall automatically accrue at the variable rate option unless the
amount fixed is repaid or fixed for an additional period in
accordance with the terms
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hereof. Notwithstanding the foregoing, rates may not be fixed
in such a manner as to cause the Company to have to break any fixed
rate balance in order to pay any installment of principal. All
elections provided for herein shall be made electronically (if
applicable), or in writing and must be received by Agent not later
than 10:00 A.M. Agent’s local time in order to be considered
to have been received on that day; provided, however, that in the
case of LIBOR rate loans, all such elections must be confirmed in
writing upon Agent’s request. Interest shall be calculated on
the actual number of days each loan is outstanding on the basis of
a year consisting of 360 days and shall be payable monthly in
arrears by the 20th day of the following month or on such other day
in such month as Agent shall require in a written notice to the
Company; provided, however, in the event the Company elects to fix
all or a portion of the indebtedness outstanding under the LIBOR
interest rate option above, at Agent’s option upon written
notice to the Company, interest shall be payable at the maturity of
the Interest Period and if the LIBOR interest rate fix is for a
period longer than 3 months, interest on that portion of the
indebtedness outstanding shall be payable quarterly in arrears on
each three- month anniversary of the commencement date of such
Interest Period, and at maturity.
3.
Promissory Note . The Company
promises to repay the Loan as follows: (i) in 26 equal, consecutive
quarterly installments of $912,500.00 with the first such
installment due on February 20, 2009, and the last such installment
due on May 20, 2015; and (ii) followed by a final installment in an
amount equal to the remaining unpaid principal balance of the Loans
on August 20, 2015.
In
addition, for each fiscal year end, beginning with the fiscal year
ending 2008, and ending with the fiscal year ending 2014, the
Company shall also, within ninety (90) days after the end of such
fiscal year, make a special payment of an amount equal to 75% of
the “Free Cash Flow” (as defined below) of the Company,
not to exceed $2,000,000.00 per fiscal year; and provided, however,
that (i) if such payment would result in a covenant default, the
amount of the payment shall be reduced to an amount which would not
result in a covenant default; (ii) if such payment would result in
a breakage of a fixed interest rate, then applicable broken funding
surcharges would still apply; and (iii) the aggregate of such Free
Cash Flow payments shall not exceed $7,000,000.00. The term
“Free Cash Flow” is defined as the Company’s
annual profit net of taxes, plus the respective fiscal
year’s depreciation and amortization, minus allowed
capitalized expenditures for fixed assets, allowed distributions to
owners, and scheduled Loan payments to Agent and other long-term
debt creditors. This special payment shall be applied to the
principal installments in the inverse order of their maturity.
Additionally, the definition of Free Cash Flow applies to the
fiscal years ending in 2008, 2009, 2010, 2011, 2012, 2013 and
2014.
If
any installment due date is not a day on which Agent is open for
business, then such installment shall be due and payable on the
next day on which Agent is open for business. In addition to the
above, the Company promises to pay interest on the unpaid principal
balance hereof at the times and in accordance with the provisions
set forth in Section 2 hereof.
4.
Security.
A.
Mortgage . The parties acknowledge the Company has executed
in favor of Farm Credit that certain Mortgage in favor of Farm
Credit dated January 30, 2007, filed April 9, 2007, at 2007-1411 in
the records of Kossuth County, Iowa, (the “Mortgage”)
and that the Mortgage remains a first perfected security lien
against the Facility and as such security for this Restated Term
Loan Agreement.
B.
Personal Property . The Company hereby grants to Farm
Credit, a security interest in the following described personal
property of the Company, wherever located and
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whether now owned or hereafter acquired, together with all
accessions and additions thereto, and proceeds thereof:
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all equipment, fixtures, furniture, and articles of tangible
personal property (except inventory and supplies), now owned or
hereafter acquired by the Company and now or hereafter located on,
attached to or used on or about the Facility which are necessary
for the operation of the Facility for all purposes which it is
intended, or the activities conducted therein, and all renewals or
replacements thereof or substitutions therefor, whether or not the
same shall be attached to the Facility in any manner (the
“Collateral”).
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The Company shall, from time to time, upon request of the
Agent, provide Agent with a current inventory of all of the
personal property in which the Agent is granted a security interest
hereunder and such detail as Agent may require.
The
Company shall execute Amendment No. 1 to Security Agreement, a copy
of which is attached hereto as Exhibit 4.B and Agent shall file an
amendment to the UCC-1 Financing Statement previously filed of
record to reflect the Amendment to the Security
Agreement.
C.
Lien on Equity . The Company’s obligations under this
Restated Term Loan Agreement, the Master Loan Agreement, and all
Loan Documents and all instruments and documents contemplated
hereby and thereby, shall be secured by a statutory first lien on
all equity which the Company may now or hereafter require in Farm
Credit.
5. Affirmative
Covenants . Unless otherwise agreed to in writing by Agent
while this Restated Term Loan Agreement is in effect, the Company
agrees to:
A.
Eligibility . Maintain its status as an entity eligible to
borrow from Farm Credit.
B.
Company
Existence, Licences, 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 to comply
in all material respects with all environmental protection
Laws.
D.
Insurance .
Maintain insurance with insurance companies or associations
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 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.
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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 occurring during the term hereof, annual financial
statements of the Company, if any, 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 relating thereto.
ii.
Interim
Financial Statements . As soon as available,