Registration of Securities Issued in a Business-Combination Transaction — Form S-4
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-4 Registration of Securities Issued in a HTML 1.05M
Business-Combination Transaction
2: EX-4.1 Instrument Defining the Rights of Security Holders 2 10K
3: EX-5.1 Opinion re: Legality 2 15K
4: EX-8.1 Opinion re: Tax Matters 2 12K
5: EX-10.1 Material Contract 17 60K
13: EX-10.10 Material Contract 4 15K
14: EX-10.11 Material Contract 5 21K
15: EX-10.12 Material Contract 16 61K
16: EX-10.13 Material Contract 16 41K
17: EX-10.14 Material Contract 2 12K
6: EX-10.2 Material Contract 13 65K
7: EX-10.3 Material Contract 3 20K
8: EX-10.4 Material Contract 3 19K
9: EX-10.5 Material Contract 8 45K
10: EX-10.6 Material Contract 9 33K
11: EX-10.7 Material Contract 11 42K
12: EX-10.9 Material Contract 33 99K
18: EX-23.3 Consent of Experts or Counsel 1 9K
19: EX-23.4 Consent of Experts or Counsel 1 9K
20: EX-24.1 Power of Attorney 2 15K
21: EX-99.1 Miscellaneous Exhibit 111 204K
22: EX-99.2 Miscellaneous Exhibit 1 9K
23: EX-99.3 Miscellaneous Exhibit 1 10K
EX-10.2 — Material Contract
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MLA No. BO51
MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT is entered into as of September 15, 1995,
between CoBANK, ACB ("CoBank") and SOUTH DAKOTA SOYBEAN PROCESSORS, Volga, South
Dakota (the "Company").
BACKGROUND
From time to time CoBank may make loans to the Company. In order to reduce
the amount of paperwork associated therewith, CoBank and the Company would like
to enter into a master loan agreement. For that reason, and in consideration of
CoBank making one or more loans to the Company, CoBank and the Company agree as
follows:
SECTION 1. SUPPLEMENTS. In the event the Company desires to borrow from
CoBank and CoBank is willing to lend to the Company, or in the event CoBank and
the Company desire to consolidate any existing loans hereunder, the parties will
enter into a Supplement to this agreement (a "Supplement"). 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. The parties agree that the first two
Supplements hereunder shall be executed herewith for the purpose of funding the
construction of a soybean processing plant located at Volga, South Dakota ("the
Improvements).
SECTION 2. AVAILABILITY. Loans will be made available on any day on which
CoBank 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 CoBank a duly completed and executed copy of a CoBank Delegation and
Wire Transfer Authorization form, and CoBank 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.
SECTION 3. 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 CoBank may require. CoBank 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 or by
check. Wire transfers shall be made to ABA No. 307088754 for advice to and
credit of CoBank (or to such other account as CoBank may direct by notice). The
Company shall give CoBank 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, Department 167, Denver, Colorado 80291-0167 (or to such other
place as CoBank may
direct by notice). Credit for payment by check will not be given until the
latter of: (a) the day on which CoBank receives immediately available funds;
or (b) the next business day after receipt of the check.
SECTION 4. 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 CoBank and by a first lien
mortgage on the Improvements. As additional security for those obligations, the
Company agrees to grant to CoBank, by means of such instruments and documents as
CoBank shall require, a first lien on such of its other assets, whether now
existing or hereafter acquired, as CoBank may from time to time require,
including an Assignment of Project Documents Agreement in form and substance
satisfactory to CoBank.
SECTION 5. CONDITIONS PRECEDENT. CoBank's obligation to extend credit
under the initial Supplement hereto is subject to the receipt by CoBank of a
duly executed copy of this agreement and all instruments and documents
contemplated hereby. CoBank's obligation to extend credit under each Supplement
is subject to the condition that CoBank receive, in form and substance
satisfactory to CoBank (a) a duly executed copy of the Supplement and all
instruments and documents contemplated thereby; (b) such certified board
resolutions, evidence of incumbency, and other evidence as CoBank may require
that the Supplement, all instruments and documents executed in connection
therewith, and (in the case of the initial Supplement hereto) this agreement and
all instruments and documents executed in connection herewith, have been duly
authorized and executed; (c) all fees and other charges provided for herein or
in the Supplement; (d) such evidence as CoBank may require that CoBank has, as
of the date of the Supplement, a duly perfected first priority lien on all
security for the Company's obligations, (e) an opinion of CoBank counsel
determining the Company to be eligible to borrow from CoBank; (f) a duly
executed copy of each consulting and construction contract entered into by the
Company, with satisfactory maximum "not-to-exceed" cost provisions, and any
change in scope which may increase the cost above said satisfactory maximum/"not
to exceed" provision requiring CoBank's prior written approval; (g) a duly
executed copy of the engineering contract entered into by the Company with
satisfactory maximum/"not to exceed" cost provisions and an acceptable
"process/yield" guarantee by the engineering firm, and any change in the scope
which may increase the cost above the satisfactory maximum/"not to exceed"
provision requiring CoBank's prior written approval; (h) copies of performance
bond(s) or supply and maintenance bonds issued to the Company by insurers
satisfactory to CoBank, in amounts not less than the amounts of the construction
contracts, except for the contract with DeSmet Process and Technology, Inc.,
which performance and payment bonds shall be in the sum of forty percent (40%)
of the contract price of $4,200,000.00, and except for contracts under the sum
of $100,000.00 deemed in writing by Lightowler Johnson Associates to be
immaterial to successful operation of the construction project; for which no
bonds will be required; (i) evidence that the Company has obtained funding from
equity capital in an amount of no less than $19,750,000; (j) evidence of the
employment of a third-party consulting engineer, Lightowler Johnson Associates,
Inc.; (k) evidence that all required permits (i.e. construction, environmental,
etc.) have been obtained; (l) evidence of the employment and presence of a
General Manager/Chief Executive Officer; except that said person does not need
to be employed and present before CoBank issues the DeSmet Letter of Credit, (m)
an ALTA lender's form of title insurance (non-extended coverage form) in the
face amount of $15,000,000.00 insuring the mortgage covering the
property as first lien on the Property, subject only to exceptions approved in
writing by CoBank. In the event any construction of the improvements has
commenced prior to issuance of such title policy, the Company will obtain any
and all indemnification agreements and/or lien waiver agreements required by the
title insurer for issuance of such title insurance policy; (n) two sets of any
original plan in existence at the initiation of the project, with a
certification from the Company and from the Company's architect or engineer, or
with other evidence satisfactory to CoBank, as to the following matters: (i)
that the Improvements can be completed by September 30, 1996 (the "Completion
Date"), (ii) that the construction contracts satisfactorily provide for the
construction of the Improvements, (iii) that the Improvements upon completion
will comply with all applicable laws, permits, licenses, ordinances and
regulations related to the construction of the improvements; (o) soil tests
satisfactory to CoBank; and (p) an Assignment of Project Documents.
In addition, CoBank's obligation to extend or to continue to extend credit under
each Supplement is subject to the Company being in compliance with the terms of
this agreement, the Supplements, and all security and other instruments and
documents related hereto or thereto (collectively, at any time, the "Loan
Documents").
SECTION 6. REPRESENTATIONS AND WARRANTIES. The execution by the Company of
each Supplement shall constitute a representation and warranty to CoBank that:
(a) each representation and warranty and all information set forth in any
application or other document submitted in connection with, or to induce CoBank
to enter into, such Supplement, is correct in all material respects as of the
date of such Supplement; (b) the Loan Documents do not conflict with any other
agreement to which the Company is a party or with any provision of the Company's
bylaws, articles of incorporation or other organizational documents; (c) the
Company is in compliance with all of the terms of the Loan Documents (including,
without limitation, Section 7(a) of this agreement on eligibility to borrow from
CoBank); and (d) the Loan Documents create legal, binding, and enforceable
obligations of the Company, except as enforceability may be limited by
bankruptcy and similar laws affecting creditors' rights generally.
SECTION 7. AFFIRMATIVE COVENANTS. Unless CoBank otherwise consents in
writing, while this agreement is in effect, the Company agrees to: (a) maintain
its status as an entity eligible to borrow from CoBank and its existence and
good standing in the jurisdiction of its incorporation or formation; (b) qualify
and remain qualified to transact business whenever such qualification is
required and obtain and maintain all licenses, certificates, permits, and like
authorizations which are material to its business or required by law, rule,
regulation, code, orders or the like (collectively, "Laws"); (c) comply in all
material respects with all applicable Laws, including all environmental Laws and
all Laws relating to any patron or member investment program that the Company
may have; (d) cause all persons occupying or present on any property of the
Company to comply in all material respects with all environmental Laws; (e)
maintain insurance with companies satisfactory to CoBank in such amounts and
covering such risks as are customarily carried by companies engaged in the same
or similar business and similarly situated, and make such increases in the
amount or type of coverage as CoBank may request; (f) cause all policies
covering any collateral provided for herein or in any Supplement to have loss
payable clauses or endorsements form and content acceptable to CoBank; (g)
maintain its property in good working condition, ordinary wear and tear
excepted; (h) keep books of account in accordance with generally accepted
accounting principles ("GAAP") consistently applied; (i) permit CoBank or its
agents to
inspect the Company's properties, books, and records, and to discuss the
Company's affairs, finances, and accounts with its directors, employees, and
independent certified public accountants; (j) purchase such equity in CoBank
as CoBank may from time to time require in accordance with its bylaws (except
that the maximum amount of equity which Company may be required to purchase
in connection with any loan may not exceed the amount permitted by the bylaws
at the time the Supplement relating to that loan is entered into or such loan
is renewed or refinanced by CoBank); (k) have an excess of current assets
over current liabilities (both as determined in accordance with GAAP
consistently applied) of not less than: (1) $500,000.00 on August 31, 1996;
and (2) $2,500,000.00 on August 31, 1997 and thereafter at the end of each
period for which financial statements are required to be furnished under
Section 8 hereof; (l) have at the end of each period for which financial
statements are required to be furnished under Section 8 hereof, an excess of
total assets over total liabilities (both as determined in accordance with
GAAP consistently applied) of not less than $16,500,000.00, increasing to not
less than $18,200,000.00 by August 31, 1998; (m) pay or cause to be removed
by the initiation of legal proceedings or otherwise, within sixty (60) days
after notice from CoBank, any lien on the Improvements or Property subject to
any security document unless said lien is covered by insurance or bond; and
(n) comply with and keep in effect all permits and approvals obtained from
any governmental bodies that relate to the lawful construction of the
Improvements. The Company will comply with all existing and future laws,
regulations, orders and requirements of all governmental, judicial or legal
authorities having jurisdiction over the Property or Improvements, and with
all recorded restrictions affecting the Property.
SECTION 8. REPORTING COVENANT. Unless CoBank otherwise consents in
writing, while this agreement is in effect, the Company agrees to furnish to
CoBank:
(a) ANNUAL FINANCIAL STATEMENTS. Within 120 days after the end of each
fiscal year of the Company occurring during the term hereof (i) annual financial
statements prepared in accordance with GAAP consistently applied and audited by
independent certified public accountants selected by the Company and acceptable
to CoBank; and (ii) a report of such accountants on such statements containing
an opinion acceptable to CoBank.
(b) INTERIM FINANCIAL STATEMENTS. Within 45 days after the end of each
month (other than the last month in each fiscal year), a balance sheet, a
statement of income for such month and for the period year to date, and such
other monthly statements as CoBank may specifically request, all prepared its
reasonable detail and in form and substance satisfactory to CoBank.
(c) NOTICE OF DEFAULT. Promptly after becoming aware thereof, notice of
the occurrence of a default or of any event which with the giving of notice and
the passage of time would become a default hereunder.
(d) NOTICE OF LITIGATION, ENVIRONMENTAL MATTERS, ETC. Promptly after
becoming aware thereof (i) notice of the commencement of all actions, suits, or
proceedings affecting the Company which, if determined adversely to the Company,
could have a material adverse effect on
the Company, and (ii) notice of the receipt of all pleadings, orders,
complaints, indictments, or any other communication alleging a condition that
may require the Company to undertake or to contribute to a cleanup or other
response under environmental Laws, or which seek penalties, damages, injunctive
relief, or criminal sanctions related to alleged violations of such Laws, or
which claim personal injury or property damage to any person as a result of
environmental factors or conditions.
(e) BYLAWS AND ARTICLES. Promptly after any change in the Company's bylaws
or articles of incorporation (or like documents), copies of all such changes,
certified by the Company's Secretary.
(f) PROGRESS REPORTS. Progress reports completed by a third-party
consulting engineer acceptable to CoBank as of the first day of each month or
more frequently as CoBank may request, and delivered to CoBank no later than
five business days following the reporting date.
(g) OTHER INFORMATION. Such other information as CoBank may from time to
time request, including plan drafts and redrafts.
SECTION 9. NEGATIVE COVENANTS. Unless CoBank otherwise consents is
writing, while this agreement is in effect, the Company will not: (a) create,
assume or allow to exist any indebtedness or liability for borrowed money or for
the deferred purchase price of property or services (including capitalized
leases), except for indebtedness to CoBank, indebtedness under the Company's
member or patron investment program, (provided such indebtedness is expressly
stated to be subordinated to all indebtedness to CoBank); indebtedness to any
local, state or federally sponsored developmental agencies in an aggregate
principal amount not to exceed $3,000,000.00 but no extensions and refinancings
thereof; capitalized leases existing on the date hereof or as authorized herein,
accounts payable to trade creditors, and current operating liabilities (other
than for borrowed money) incurred in the ordinary course of business;
capitalized leases or financing for approximately 75 railroad hopper cars, and
other capitalized leases and financings not to exceed in any one calendar year
the sum of Two Hundred Thousand and No/100 Dollars ($200,000.00); (b) grant,
assume or allow to exist any security interest, mortgage, deed of trust or other
consensual lien on any of its property, except liens in favor of CoBank and
liens in existence on the date hereof in favor of any local, state or federally
sponsored developmental agencies to secure indebtedness permitted hereunder, and
except in support of the financing permitted under Section 9(a) above; (c) allow
to exist any non-consensual or statutory liens that secure obligations that are
past due or any judgment liens; unless said liens are subject to and covered by
insurance or bonds or are being contested by the Company in legal proceedings or
on appeal; (d) merge or consolidate with any other entity, or form or create any
new subsidiary, or purchase all or a material part of the assets of any person
or entity, or commence operations under any other name or organization; (e)
sell, lease, or otherwise dispose of any assets, except in the ordinary course
of business; (f) lend money or otherwise extend credit, except for trade credit
extended in the ordinary course of business; (g) assume, guarantee, or otherwise
become liable (directly or indirectly) for the debts of another; (h) engage in
any business activities substantially different from the Company's present
business activities; (i) declare or pay any dividends or retire capital equities
or other written notices of allocation, or make any other distribution or
allocation of its earnings, surplus or assets to any holder of stock, allocated
equities or other written notices of allocation, except that the Company
may distribute patronage-sourced earnings annually in the form of cash and
value-added payments and qualified written notices of allocation, so long as the
Company is operating on a profitable basis and is in full compliance with all
loan covenants, and such written notices constitute equity and not debt; (j)
create, incur, assume, or permit to exist any obligation as lessee under
operating leases or leases which should be capitalized in accordance with GAAP
for the rental or hire of any real or personal property, except leases which do
not in the aggregate require the Company to make scheduled payments to the
lessors in any fiscal year of the Company occurring during the term hereof in
excess of $100,000.00; (k) allow substantial extras to any contractor,
subcontractor, architect or engineer and will not make any material change in
any contract or subcontract without CoBank's prior written approval. For the
purposes hereof, the term "substantial" shall mean an addition or extra which
exceeds $25,000.00 in amount or which causes the total approved construction
costs of the improvements, as reflected in the most recently approved cost
breakdown, to be increased by five percent (5%) or more. CoBank will have a
reasonable time to evaluate any requests for its approval of any changes
referred to in this covenant, and will not be required to consider approving any
changes unless all other approvals that may be required have been obtained.
CoBank may approve or disapprove changes in its discretion. All contracts and
subcontracts relating to the construction of the Improvements must contain
provisions satisfactory to CoBank implementing the above provisions of this
covenant. The Company shall promptly provide to CoBank copies of all change
orders that, pursuant to the above-described procedures, did not require
CoBank's prior written approval; and (l) purchase or install any materials,
equipment, fixtures or articles of personal property of the Company placed in
the Improvements if such shall be covered under any security agreement or other
agreement where the seller reserves or purports to reserve title or the right of
removal or repossession, or the right to consider them personal property after
their incorporation in the work of construction, unless authorized by CoBank in
writing, except in support of financing permitted under Sections 9(a) and 9(j).
SECTION 10. EVENTS OF DEFAULT. The Company shall be in default hereunder
if any of the following occur: (a) any payment required to be made hereunder or
under any Supplement is not made where due; (b) any representation or warranty
made or deemed made by the Company herein or in any other Loan Document shall
prove to have been false or misleading in any material respect on the date made
or deemed made; (c) the Company should fail to comply with Subsection (7) (a)
through (7) (i) hereof, or Subsections 8 (a), (b), (e), and (f) hereof or any
reporting covenant set forth in any Supplement hereto, and such breach continues
for 30 days after written notice thereof shall have been given to the Company;
(d) any other covenant or agreement set forth herein or in any other Loan
Document is breached or the Company uses the proceeds of any loan for any
unauthorized purpose; (e) the Company should breach or be in default under any
other agreement between the Company and CoBank; (f) the Company should fail to
pay when due any indebtedness to any other person or entity for borrowed money
or any long-term obligation for the deferred purchase price of the property
(including any capitalized lease), or any other event occurs which constitutes
or would, with the giving of notice and/or the passage of time, constitute a
default under any agreement relating to such indebtedness or obligation; (g) the
Company becomes insolvent or does not pay its debts as they come due or suspends
its business operations or a material part thereof or makes an assignment for
the benefit of creditors or has commenced against it any proceeding for the
appointment of a receiver, trustee, or other custodian for it or any of its
property or any proceeding under any bankruptcy, reorganization, dissolution, or
similar Law; and (h) any
material adverse change occurs in the Company's financial condition, results of
operation, or ability to perform its obligations to CoBank under this agreement
and the other Loan Documents.
SECTION 11. REMEDIES. Upon the occurrence of a default or of any event
which with the giving of notice and the passage of time would become a default
hereunder, CoBank shall have no obligation to continue to extend credit to the
Company and may discontinue doing so at any time without prior notice. In
addition, upon the occurrence of each and every default hereunder, CoBank may
declare a default, in which case, CoBank shall give the Company thirty (30)
days' written notice of default. If the Company fails to cure the default within
the time provided, CoBank may: (a) terminate any commitment; (b) declare the
unpaid principal of the loans, all accrued interest thereon, and all other
amounts payable under this agreement and the other Loan Documents to be
immediately due and payable (whereupon the same shall become immediately due and
payable without presentment, demand, or further notice of any kind, all of which
are hereby waived); (c) proceed to protect, exercise, and enforce such rights
and remedies as may be provided by agreement or under Law; (d) apply all
payments received by CoBank to the Company's obligations in such order and
manner as CoBank may elect; and (e), hold and/or set off and apply against the
Company's obligations to CoBank, the proceeds of any equity in CoBank, any cash
collateral held by CoBank, or any balances held by CoBank for the Company's
account (whether or not such balances are then due). The Company acknowledges
that each and every one of CoBank's rights and remedies shall be cumulative and
may be exercised from time to time, and no failure on the part of CoBank to
exercise, and no delay in exercising, any right or remedy shall operate as a
waiver thereof, nor shall any single or partial exercise of any right or remedy
preclude any other or future exercise thereof, or the exercise of any other
right or remedy.
In addition to the rights and remedies set forth above: (a) if the Company fails
to purchase any equity in CoBank when required or fails to make any payment to
CoBank when due, then at CoBank's option in each instance, such obligation or
payment shall bear interest at 4% per annum in excess of CoBank's National
variable rate; and (b) after the maturity of any loan, whether by reason of
acceleration or otherwise, the unpaid balance of the loan shall automatically
bear interest at 4% per annum in excess of the rates that would otherwise be in
effect on such loan. All interest provided for herein shall be payable on demand
and shall be calculated from the date such payment was due to the date paid on
the basis of a year consisting of 360 days.
SECTION 12. BROKEN FUNDING SURCHARGE. Notwithstanding any provision
contained in any Supplement giving the Company the right to repay any loan
prior to the date it would otherwise be due and payable, the Company agrees
that in the event it repays any fixed rate balance prior to its scheduled due
date or prior to the last day of the fixed rate period applicable thereto
(whether such payment is made voluntarily, as a result of an acceleration, or
otherwise), the Company will pay to CoBank a surcharge is an amount which
would result in CoBank being made whole (on a present value basis) for the
actual or imputed funding losses incurred by CoBank as a result thereof.
Notwithstanding the foregoing, in the event any fixed rate balance is repaid
as a result of the Company refinancing the loan with another lender or by
other means, then in lieu of the foregoing, the Company shall pay to CoBank a
surcharge in an amount sufficient (on a present value basis) to enable CoBank
to maintain the yield it would have earned during the fixed rate period on
the amount repaid. Such surcharges will be calculated in accordance with
methodology established by CoBank (a copy of which is attached hereto and
incorporated herein by reference).
SECTION 13. OTHER TYPES OF CREDIT. From time to time, CoBank may issue
letters of credit or extend other types of credit to or for the account of the
Company. In the event the parties desire to do so under the terms of this
agreement, such extensions of credit may be set forth in any Supplement hereto
and this agreement shall be applicable thereto.
SECTION 14. MISCELLANEOUS. The Loan Documents and any commitment letters
between the parties in existence on the date hereof are intended by the parties
to be a complete and final expression of their agreement. No amendment,
modification, or waiver of any provision nor any consent to any departure
therefrom, shall be effective unless in writing and signed by CoBank, and then
such waiver of consent shall be effective only in the specific instance and for
the specific purpose for which granted. In the event this agreement is amended
or restated, each such amendment and restatement shall be applicable to all
Supplements hereto. This agreement shall continue in effect until all
indebtedness or obligations of the Company shall have been paid, CoBank has no
further commitment to extend credit to or for the account of the Company under
any Supplement, and either party furnishes notice of termination to the other.
Except to the extent governed by applicable federal law, this agreement and each
Supplement shall be governed by the Laws of the State of Colorado, without
reference to choice of law doctrine. Any provision of this agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent thereof without
invalidating the remaining provisions hereof or thereof. The Loan Documents
shall be binding upon and inure to the benefit of the Company and CoBank and
their respective successors and assigns, except that the Company may not assign
or transfer its rights or obligations under the Loan Documents without the prior
written consent of CoBank. The parties further agree to negotiate in good faith
a third Supplement for a $10,000,000.00 seasonal line of credit to be made
available after the plant is operational.
SECTION 15. NOTICES. All notices provided for herein shall be in writing
(including facsimile) and shall be mailed or delivered to the following
addresses or facsimile numbers or to such other address or facsimile number as
either party may specify by notice to the other: (a) If to CoBank, to: 11837
Miracle Hills Drive, Suite 200, Omaha, Nebraska 68154-4404. Attention: Credit
Department, Fax No: (402) 492-2001; and (b) if to the Company, to: Box 500,
Volga, South Dakota 57071, Attention: Board President, Fax No: (605) 627-5867.
SECTION 16. TAXES AND EXPENSES. To the extent allowed by law, the Company
agrees to pay all reasonable out-of-pocket costs and expenses (including the
fees and expenses of counsel retained by CoBank) incurred by CoBank in
connection with the origination, administration, collection, and enforcement of
this agreement and the other Loan Documents, including, without limitation, all
costs and expenses incurred in perfecting, maintaining, determining the priority
of, and releasing any security for the Company's obligations hereunder or under
any supplement and any stamp, intangible, transfer, or similar tax payable in
connection with this agreement or any other Loan Document.
SECTION 17. NOTICE OF COMPLETION. The Company irrevocably appoints CoBank
as the Company's agent to file of record any notice of completion, cessation of
labor or any other notice that CoBank deems necessary to file to protect any of
the interests of CoBank. CoBank, however, shall have no duty to make such
filing.
SECTION 18. SIGNS AND PUBLICITY. At CoBank's request, the Company will
allow CoBank to post signs on the Property at the construction site far the
purpose of identifying CoBank as the "Construction Lender." At the request of
CoBank, the Company will use its best efforts to identify CoBank as the
construction lender in publicity concerning the project.
SECTION 19. COOPERATION. The Company will cooperate at all times with
CoBank in bringing about the timely completion of the Improvements, and the
Company will resolve all disputes arising during the work of construction in a
manner which will allow work to proceed expeditiously.
IN WITNESS WHEREOF, the parties have caused this agreement to be executed
by their duly authorized officers as of the state shown above.
CoBANK, ACB SOUTH DAKOTA SOYBEAN PROCESSORS
By: /s/ Raymond D. Cusick By: /s/ Paul W. Casper
---------------------------- -------------------------------
Paul W. Casper
Title: Vice President Title: President
----------------------------
By: /s/ Corey D. Schnabel
--------------------------------
Corey D. Schnabel
Title: Secretary
EQUAL CREDIT OPPORTUNITY ACT NOTICE
In the event CoBank acts adversely on your credit application, you have a right
to a written statement of the specific reasons for the action taken within 30
days of your request, provided you make such a request in writing within 60 days
of the notification of adverse action, which notification may be given to you
orally or in writing. Any request for a statement of specific reasons should be
directed to CoBank, Omaha Banking Center, 11837 Miracle Hills Drive, Suite 200,
Omaha, Nebraska 68154-4404, Telephone (402) 492-2000.
The Federal Equal Credit Opportunity Act prohibits creditors from discriminating
against credit applicants on the basis of race, color, religion, national
origin, sex, marital status, age (provided the applicant has the capacity to
enter into a binding contract); because all or part of the applicant's income
derives from any public assistance program; or because the applicant has in good
faith exercised any right under the Consumer Credit Protection Act. The Federal
agency that administers compliance with this law concerning this creditor is the
Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090.
AMENDMENT NO. B051D
THIS AMENDMENT is entered into as of April 30, 1998 between CoBANK, ACB
("CoBank") and SOUTH DAKOTA SOYBEAN PROCESSORS, VOLGA, SOUTH DAKOTA (the
"Company").
BACKGROUND
CoBank and the Company are parties to a Master Loan Agreement dated
September 15, 1995 (such agreement, as previously amended, is hereinafter
referred to as the "MLA"). CoBank and the Company now desire to amend the MLA.
For that reason, and for valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), CoBank and the Company agree as follows:
1. Section 7(k) of the MLA is hereby amended and restated to read as
follows:
(k) have at the end of each period for which financial statements are
required to be furnished pursuant to Section 8 hereof, an excess of
current assets over current liabilities (both as determined in accordance
with GAAP consistently applied) of not less than $5,000,000.00, except
that in determining current assets, any amount available under the
Revolving Term Loan Supplement hereto may be included.
Section 9 (a) of the MLA is hereby amended and restated to read as follows:
(a) create, assume or allow to exist any indebtedness or liability for
borrowed money or for the deferred purchase price of property or services
(including capitalized leases), except for indebtedness to CoBank,
indebtedness under the Company's member or patron investment program
(provided such indebtedness is expressly stated to be subordinated to all
indebtedness to CoBank); indebtedness to any local, state or federally
sponsored developmental agencies in an aggregate principal amount not to
exceed $3,000,000.00 but no extensions and refinancings thereof;
capitalized leases existing on the date hereof or as authorized herein,
accounts payable to trade creditors, and current operating liabilities
(other than for borrowed money) incurred in the ordinary course of
business; leasing of 190 railroad hopper cars with terms and conditions
acceptable to CoBank;
3. Except as set forth in this amendment, the MLA shall continue in full
force and effect as written.
IN WITNESS WHEREOF, the parties have caused this amendment to be executed
by their duly authorized officers as of the date shown above.
CoBANK, ACB SOUTH DAKOTA SOYBEAN PROCESSORS
By: /s/ Bettina Amrein By: /s/ Rodney G. Christianson
----------------------------- ---------------------------------
Title: Asst. Secretary Title: CEO
-------------------------- --------------------------
AMENDMENT NO. B051G
THIS AMENDMENT is entered into as of May 17, 2001 between CoBANK, ACB
("CoBank") and SOUTH DAKOTA SOYBEAN PROCESSORS, VOLGA, SOUTH DAKOTA (the
"Company").
BACKGROUND
CoBank and the Company are parties to a Master Loan Agreement dated
September 15, 1995 (such agreement, as previously amended, is hereinafter
referred to as the "MLA"). CoBank and the Company now desire to amend the MLA.
For that reason, and for valuable consideration (the receipt and sufficiency of
which are hereby acknowledged), CoBank and the Company agree as follows:
1. Section 9(j) of the MLA is hereby amended and restated to read as
follows:
SECTION 9. NEGATIVE COVENANTS. Unless CoBank otherwise consents in
writing, while this agreement is in effect, the Company will not:
(j) create, incur, assume, or permit to exist any obligation as lessee
EXCEPT (1) OPERATING leases for the rental or hire of any real or personal
property (excluding rail road cars) which do not in the aggregate require the
Company to make scheduled payments to the lessors in any fiscal year of the
Company occurring during the term hereof in excess of $350,000.00, (2) leases
which should be CAPITALIZED in accordance with GAAP for the rental or hire of
any real or personal property which do not in the aggregate require the Company
to make scheduled payments to the lessors in any fiscal year of the company
occurring during the term hereof in excess of $200,000.00, (3) leases for the
rental or hire of up to 310 railroad cars under terms and conditions acceptable
to CoBank, (4) other railroad car leases, less than 18 months in maturity, at
the company's discretion, and (5) leases for soybean oil storage tank space,
with aggregate annual payments not to exceed $400,000.00.
2. Section 9(k) of the MLA shall be deleted in its entirety:
3. Section 11 of the MLA is hereby amended and restated to read as follows:
SECTION 11. REMEDIES. Upon the occurrence of a default or of any event
which with the giving of notice and the passage of time would become a default
hereunder, CoBank shall have no obligation to continue to extend credit to the
Company and may discontinue doing so at any time without prior notice. In
addition, upon the occurrence of each and every default hereunder, CoBank may,
upon notice to the Company: (a) terminate any commitment; (b) declare the unpaid
principal of the loans, all accrued interest thereon, and all other amounts
payable under this agreement and the other Loan Documents to be immediately due
and payable (whereupon the same shall become immediately due and payable without
presentment, demand, or further notice of any kind, all of which are hereby
waived); (c) proceed to protect, exercise, and enforce such rights and remedies
as may be provided by agreement or under Law; (d) apply all payments received by
CoBank to the Company's obligations in such order and manner as CoBank may
elect; and (e) hold and/or set off
and apply against the Company's obligations to CoBank, the proceeds of any
equity in CoBank, any cash collateral held by CoBank, or any balances held by
CoBank for the Company's account (whether or not such balances are then due).
The Company acknowledges that each and every one of CoBank's rights and remedies
shall be cumulative and may be exercised from time to time, and no failure on
the part of CoBank to exercise, and no delay in exercising, any right or remedy
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy preclude any other or future exercise thereof, or the
exercise of any other right or remedy.
In addition to the rights and remedies set forth above: (i) if the Company
fails to purchase any equity in CoBank when required or fails to make any
payment to CoBank when due, then at CoBank's option in each instance, such
payment shall bear interest from the date due to the date paid at 4% per annum
in excess of the rate(s) of interest that would otherwise be in effect on that
loan; and (ii) after the maturity of any loan (whether as a result of
acceleration or otherwise), the unpaid principal balance of such loan
(including, without limitation, principal, interest, fees and expenses) shall
automatically bear interest at 4% per annum in excess of the rate(s) of interest
that would otherwise be in effect on that loan. All interest provided for herein
shall be payable on demand and shall be calculated on the basis of a year
consisting of 360 days.
4. Except as set forth in this amendment, the MLA, including all effective
amendments thereto, shall continue in full force and effect as written.
IN WITNESS WHEREOF, the parties have caused this amendment to be executed
by their duly authorized officers as of the date shown above.
CoBANK, ACB SOUTH DAKOTA SOYBEAN PROCESSORS
By: /s/ Rebecca S. Kennedy By: /s/ Connie Kelly
------------------------------ ------------------------------
Title: Asst. Corporate Secretary Title: CFO
------------------------------ ------------------------------
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘S-4’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 12/21/01 | | | | | | | None on these Dates |
| | 5/17/01 | | 12 |
| | 8/31/98 | | 4 |
| | 4/30/98 | | 11 |
| | 8/31/97 | | 4 |
| | 9/30/96 | | 3 |
| | 8/31/96 | | 4 |
| | 9/15/95 | | 1 | | 12 |
| List all Filings |
16 Subsequent Filings that Reference this Filing
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