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RESTATED TERM LOAN AGREEMENT

Loan Agreement

RESTATED TERM LOAN AGREEMENT | Document Parties: EAST FORK BIODIESEL, LLC You are currently viewing:
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EAST FORK BIODIESEL, LLC

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Title: RESTATED TERM LOAN AGREEMENT
Governing Law: Colorado     Date: 6/23/2008

RESTATED TERM LOAN AGREEMENT, Parties: east fork biodiesel  llc
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EXHIBIT 10.1 –

Restated Term Loan Agreement by and between Farm Credit Services of America, FLCA and East Fork Biodiesel, LLC dated June 17, 2008

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:

 

 

 

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”).

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,


 
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