Exhibit
10.1


 


LOAN/FORGIVABLE LOAN AGREEMENT BETWEEN IDED AND


GOLDEN GRAIN ENERGY, LLC


Loan/Forgivable
Loan #04-VAP-09


TABLE OF
CONTENTS


 


	
  ARTICLE 1

  DEFINITIONS

  	
   

  
	
   

  	
  1.1

  	
  AGREEMENT EXPIRATION
  DATE

  	
   

  
	
   

  	
  1.2

  	
  AWARD
  DATE

  	
   

  
	
   

  	
  1.3

  	
  FORGIVABLE
  LOAN

  	
   

  
	
   

  	
  1.4

  	
  LOAN

  	
   

  
	
   

  	
  1.5

  	
  LOAN
  AGREEMENT OR AGREEMENT

  	
   

  
	
   

  	
  1.6

  	
  PROJECT

  	
   

  
	
   

  	
  1.7

  	
  PROJECT COMPLETION DATE

  	
   

  
	
  ARTICLE 2

  FUNDING

  	
   

  
	
   

  	
  2.1

  	
  FUNDING
  SOURCE

  	
   

  
	
   

  	
  2.2

  	
  RECEIPT
  OF FUNDS

  	
   

  
	
   

  	
  2.3

  	
  PRIOR
  EXPENSES

  	
   

  
	
   

  	
  2.4

  	
  DISBURSEMENT
  OF LESS THAN THE TOTAL AWARD AMOUNT

  	
   

  
	
  ARTICLE 3

  TERMS OF THE LOAN

  	
   

  
	
   

  	
  3.1

  	
  LOAN

  	
   

  
	
   

  	
  3.2

  	
  PROMISSORY NOTE

  	
   

  
	
   

  	
  3.3

  	
  OTHER
  TERMS

  	
   

  
	
   

  	
  3.4

  	
  PREPAYMENT

  	
   

  
	
   

  	
  3.5

  	
  ACCELERATION UPON
  DEFAULT

  	
   

  
	
  ARTICLE 4

  TERMS OF FORGIVABLE LOAN

  	
   

  
	
   

  	
  4.1

  	
  FORGIVABLE
  LOAN

  	
   

  
	
   

  	
  4.2

  	
  OTHER
  TERMS

  	
   

  
	
   

  	
  4.3

  	
  FORGIVABLE LOAN
  AMORTIZATION

  	
   

  
	
  ARTICLE 5

  CONDITIONS TO DISBURSEMENT OF FUNDS

  	
   

  
	
   

  	
  5.1

  	
  AUTHORITY

  	
   

  
	
   

  	
  5.2

  	
  LOAN
  AGREEMENT EXECUTED

  	
   

  
	
   

  	
  5.3

  	
  RECORDING

  	
   

  
	
  ARTICLE 6

  REPRESENTATIONS AND WARRANTIES OF BUSINESS

  	
   

  
	
   

  	
  6.1

  	
  AUTHORITY

  	
   

  
	
   

  	
  6.2

  	
  FINANCIAL INFORMATION

  	
   

  
	
   

  	
  6.3

  	
  APPLICATION

  	
   

  
	
   

  	
  6.4

  	
  CLAIMS AND PROCEEDINGS

  	
   

  
	
   

  	
  6.5

  	
  EFFECTIVE
  DATE

  	
   

  
	
  ARTICLE 7

  COVENANTS OF BUSINESS

  	
   

  
	
   

  	
  7.1

  	
  AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
  (a)

  	
  PROJECT WORK AND
  SERVICES

  	
   

  
	
   

  	
   

  	
   

  	
  (b)

  	
  RECORDS AND ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  	
  (c)

  	
  ACCESS TO RECORDS/INSPECTIONS

  	
   

  
	
   

  	
   

  	
   

  	
  (d)

  	
  USE OF LOAN
  AND FORGIVABLE LOAN FUNDS

  	
   

  
	
   

  	
   

  	
   

  	
  (e)

  	
  DOCUMENTATION

  	
   

  
	
   

  	
   

  	
   

  	
  (f)

  	
  NOTICE OF PROCEEDINGS

  	
   

  
	
   

  	
   

  	
   

  	
  (g)

  	
  REPORTS

  	
   

  
	
   

  	
   

  	
   

  	
  (h)

  	
  NOTICE OF BUSINESS
  CHANGES

  	
   

  
	
   

  	
   

  	
   

  	
  (I)

  	
  NOTICE OF MEETINGS

  	
   

  



 


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  (j)

  	
  MAINTENANCE
  OF PROJECT PROPERTY AND INSURANCE

  	
   

  
	
   

  	
   

  	
   

  	
  (k)

  	
  INDEMNIFICATION

  	
   

  
	
   

  	
   

  	
   

  	
  (l)

  	
  PROJECT
  FEES

  	
   

  
	
   

  	
   

  	
   

  	
  (m)

  	
  INTEREST AND SURPLUS
  PROCEEDS

  	
   

  
	
   

  	
  7.2

  	
  NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  	
  (a)

  	
  BUSINESS’ INTEREST

  	
   

  
	
   

  	
   

  	
   

  	
  (b)

  	
  PROPERTY, COLLATERAL

  	
   

  
	
   

  	
   

  	
   

  	
  (c)

  	
  RESTRICTIONS

  	
   

  
	
   

  	
   

  	
   

  	
  (d)

  	
  REMOVAL OF COLLATERAL

  	
   

  
	
   

  	
   

  	
   

  	
  (e)

  	
  BUSINESS OWNERSHIP

  	
   

  
	
   

  	
   

  	
   

  	
  (f)

  	
  BUSINESS OPERATION

  	
   

  
	
  ARTICLE 8

  SECURITY

  	
   

  
	
   

  	
  8.1

  	
  SECURITY INSTRUMENTS

  	
   

  
	
  ARTICLE 9

  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
  9 .1

  	
  EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  	
  (a)

  	
  MATERIAL
  MISREPRESENTATION

  	
   

  
	
   

  	
   

  	
   

  	
  (b)

  	
  NONPAYMENT

  	
   

  
	
   

  	
   

  	
   

  	
  (c)

  	
  NONCOMPLIANCE

  	
   

  
	
   

  	
   

  	
   

  	
  (d)

  	
  PROJECT COMPLETION DATE

  	
   

  
	
   

  	
   

  	
   

  	
  (e)

  	
  BUSINESS
  CHANGES

  	
   

  
	
   

  	
   

  	
   

  	
  (f)

  	
  MISSPENDING

  	
   

  
	
   

  	
   

  	
   

  	
  (g)

  	
  INSOLVENCY OR BANKRUPTCY

  	
   

  
	
   

  	
   

  	
   

  	
  (h)

  	
  INSURANCE

  	
   

  
	
   

  	
   

  	
   

  	
  (I)

  	
  INSECURITY

  	
   

  
	
   

  	
  9.2

  	
  NOTICE OF DEFAULT

  	
   

  
	
   

  	
  9.3

  	
  REMEDIES UPON DEFAULT

  	
   

  
	
  ARTICLE 10

  DISBURSEMENT PROCEDURES

  	
   

  
	
   

  	
  10.1

  	
  REQUEST FOR
  REIMBURSEMENT

  	
   

  
	
  ARTICLE 11

  GENERAL TERMS AND PROVISIONS

  	
   

  
	
   

  	
  11.1

  	
  BINDING
  EFFECT

  	
   

  
	
   

  	
  11.2

  	
  COMPLIANCE
  WITH LAWS AND REGULATIONS

  	
   

  
	
   

  	
  11.3

  	
  TERMINATION FOR
  CONVENIENCE

  	
   

  
	
   

  	
  11.4

  	
  PROCEDURE UPON
  TERMINATION

  	
   

  
	
   

  	
  11.5

  	
  SURVIVAL OF AGREEMENT

  	
   

  
	
   

  	
  11.6

  	
  GOVERNING
  LAW

  	
   

  
	
   

  	
  11.7

  	
  MODIFICATION

  	
   

  
	
   

  	
  11.8

  	
  NOTICES

  	
   

  
	
   

  	
  11.9

  	
  INVESTMENT
  OF LOAN/FORGIVABLE LOAN FUNDS

  	
   

  
	
   

  	
  11.10

  	
  WAIVERS

  	
   

  
	
   

  	
  11.11

  	
  LIMITATION

  	
   

  
	
   

  	
  11.12

  	
  ENFORCEMENT EXPENSES

  	
   

  
	
   

  	
  11.13

  	
  HEADINGS

  	
   

  
	
   

  	
  11.14

  	
  FINAL AUTHORITY

  	
   

  
	
   

  	
  11.15

  	
  INTEGRATION

  	
   

  
	
   

  	
  11.16

  	
  COUNTERPARTS

  	
   

  
	
   

  	
   

  
	
  EXHIBIT A - LOAN
  APPLICATION

  	
   

  
	
  EXHIBIT B - PROMISSORY
  NOTE

  	
   

  



 


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IOWA
DEPARTMENT OF ECONOMIC DEVELOPMENT


 


VAAPFAP
LOAN/FORGIVABLE LOAN AGREEMENT


 


VAAPFAP
LOAN/FORGIVABLE LOAN NUMBER: 04-VAP-09


 


AWARD
DATE: December 18, 2003


 


KIND OF
AWARD:  LOAN/FORGIVABLE LOAN 


 


AWARD
AMOUNT: $400,000 ($300,000 loan/$100,000 forgivable loan)


 


AGREEMENT
EXPIRATION DATE: December 18, 2007


 


THIS VALUE-ADDED
AGRICULTURAL PRODUCTS AND PROCESSES FINANCIAL ASSISTANCE PROGRAM (“VAAPFAP”)
AGREEMENT is made by and among the IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT, 200
East Grand Avenue, Des Moines, Iowa 50309 (“Department” or “IDED”), and Golden
Grain Energy, LLC, P.O. Box 435, New Hampton, IA 50659 (“Business”).


 


The Department desires to
make a Loan/Forgivable Loan to the Business and the Business desires to accept
this Loan/Forgivable Loan, all upon the terms and conditions set forth in this
Agreement.


 


THEREFORE, in
consideration of the mutual promises contained in this Agreement and other good
and valuable consideration, it is agreed as follows:


 


ARTICLE I


 


DEFINITIONS


 


As used in this Agreement,
the following terms shall apply:


 


1.1                                 AGREEMENT
EXPIRATION DATE.  “Agreement
Expiration Date” is and means the date the Agreement ceases to be in force and
effect. The Agreement expires upon the occurrence of one of the following: a)
the Loan is repaid in full or required part, including accrued interest, court
costs and any penalties; b) the Agreement is terminated by the Department due
to any default under Article X; c) no disbursement of VAAPFAP funds has
occurred within the twenty four months immediately following the Award Date; or
d) if the Agreement includes only a Forgivable Loan, at the Project Completion
Date during which the Business remains a viable operation.


 


1.2                                 AWARD DATE.  “Award Date” is December 18, 2003 and
means the date on which the Department and the Business execute the documents
incorporated within this Agreement.


 


1.3                                 FORGIVABLE LOAN. “Forgivable
Loan” means an award made by the Department to the Business for which repayment
is eliminated in part or entirely if the Business satisfies the terms of this
Agreement.


 


1.4                                 LOAN.  “Loan” means funds advanced by the Department
to the Business of which full repayment is expected.


 





















 


1.5                                 LOAN/FORGIVABLE
LOAN AGREEMENT or AGREEMENT.  “Loan/Forgivable Loan Agreement” or “Agreement”
means this Agreement and its Exhibits, including but not limited to the
following:


 


(a)                                  Exhibit
“A”, “Loan Application”


(b)                                 Exhibit
“B”, “Promissory Note”


(c)                                  Exhibit
“C”, “Commitment Letter”


(d)                                 Exhibit
“E”, “Uniform Commercial Code I (UCC I)”


(e)                                  Exhibit
“F”, “Subordination Agreement”


 


1.6                                 PROJECT.  “Project” means the detailed description of
the work, services, and other obligations to be performed or accomplished by
the Business as described in this Agreement and the VAAPFAP application
approved by the Department.


 


According to the business plan/application the
Business will build an ethanol production facility in the Mason City, Iowa area
that will produce and sell at least 40 million gallons of ethanol in the period
of time between the “Award Date” and the “Project completion Date”


 


1.7                                 PROJECT
COMPLETION DATE.  “Project
Completion Date” is December 18, 2007 and means the date by which the
Project tasks shall have been fully accomplished.


 


ARTICLE II


 


FUNDING


 


2.1                                 FUNDING SOURCE.  The source of funding for the Loan/Forgivable
Loan is 2004 Iowa Acts, 1st Extraordinary Session, Senate File 2311.


 


2.2                                 RECEIPT OF FUNDS.  All payments under this Agreement are subject
to receipt by the Department of sufficient State funds for the VAAPFAP program.
Any termination, reduction or delay of VAAPFAP funds to the Department shall,
at the option of the Department, result in the termination, reduction or delay
of VAAPFAP funds to the Business.


 


2.3                                 PRIOR COSTS.   No expenditures made prior to the Award Date
may be included as Project costs for the purposes of this Agreement.


 


2.4                                 DISBURSEMENT
OF LESS THAN THE TOTAL AWARD AMOUNT.  If substantial progress toward work
activities as specified in Exhibit “A” of this Agreement has not been made
within one hundred eighty (180) days of the Award Date, then the Department
shall be under no obligation for further disbursement.  The Business shall be obligated to the extent
of Loan/Forgivable Loan proceeds received.


 


ARTICLE III


 


TERMS OF
LOAN


 


3.1                                 LOAN.  The Department agrees to make a Loan in the
amount of  $300,000 with interest
at a rate of  0 % per annum ( zero per
cent per annum)  for  5 years (five years) to the Business to
assist in the financing of the Project.


 


3.2                                 PROMISSORY NOTES.  The obligation to repay the Loan portion of this
Agreement, if any, shall be evidenced by a Promissory Note(s) executed by the
Business.


 


2





















 


3.3                                 OTHER TERMS.


 


(a)                                  Funds
will be used for the construction of a 40 million gallon capacity ethanol plant
as stipulated in the business plan/application.


 


(b)                                 Repayments
on the loan to be deferred for twenty-four months after the “Award Date” with
no accrual of interest during that period. 
The loan will based on a 15 year amortization schedule with
repayments for 5 years and a balloon payment on the last payment of the 5th
year.


 


3.4                                 PREPAYMENT.  The outstanding principal and accrued
interest of this Loan or any part thereof, may be prepaid in part or in full at
any time without penalty.


 


3.5                                 ACCELERATION
UPON DEFAULT.  If there is a failure to pay any installment
of principal and interest when due, or only a portion is paid, or in the event
of any other default under this Loan, the Department may declare the entire
unpaid principal and all accrued interest immediately due and payable.


 


ARTICLE IV


 


TERMS OF
FORGIVABLE LOAN


 


4.1                                 FORGIVABLE LOAN.  The Department agrees to award a Forgivable
Loan in the amount of  $100,000 (One
hundred thousand and no/100 dollars)  to assist in the financing of the Project.


 


4.2                                 OTHER TERMS.


 


(a)                                  Funds
will be used by the company for the construction of a 40 million gallon
capacity ethanol plant as stipulated in the business plan/application.


 


(b)                                 The
criteria for loan forgiveness are given in section 1.6 and 4.3 of this
Agreement.


 


4.3                                 FORGIVABLE
LOAN REPAYMENT. 
The Department will, in its sole discretion, determine if the Business
has satisfied the terms of this Agreement by the Project Completion Date and
has operated in a manner consistent with the Application/Business Plan including
expectations in section 1.6 of this Agreement.  If the Department determines that the
Business has satisfied said terms and has been consistent in its operation
according to the Application/ Business Plan, then repayment of the Forgivable Loan
shall be permanently waived.  Should the
Department determine that the Business has not satisfied the terms of this
Agreement, or has operated in a manner substantially inconsistent with the
Application/Business Plan under which the terms of the award was made, the
Business may be required to repay all or part of the Forgivable Loan
funds.  This repayment would be a loan
repayable over a five year period at 8.5% interest.


 


ARTICLE V


 


CONDITIONS
TO DISBURSEMENT OF FUNDS


 


Unless and until the
following conditions have been satisfied, the Department shall be under no
obligation to disburse to the Business any amounts under this Agreement:


 


5.1                                 AUTHORITY.   The Business shall have submitted the
following documents to the Department:


 


(a)                                  Certificate
of Good Standing of the Limited Liability Company from the Secretary of State.


(b)                                 Certified
copy of the Articles of -Organization and Operating Agreement.


(c)                                  Certificate
of Incumbency naming the current directors of the company.


 


3





















 


(d)                                 Resolution of the Board of Directors
authorizing the company’s execution and delivery of this Loan/Forgivable Loan
Agreement and the Note and borrowing hereunder, and such other papers as the
Department may reasonably request; and specifying the officer(s) authorized to
execute the Loan/Forgivable Loan Agreement and bind the corporation.


 


(e)                                  Funds
to be released when all other financing for the project is secured.


 


5.2                                 LOAN/FORGIVABLE
LOAN AGREEMENT EXECUTED.   The Loan/Forgivable Loan Agreement shall have
been properly executed and, where required, acknowledged.


 


5.3                                 RECORDING.   The Business shall have paid the fees
necessary to properly record in the appropriate office of the Recorder of Deeds
and/or the Secretary of State any mortgage, security agreement, financing
statement or similar document required by the Department under the Agreement.


 


ARTICLE VI


 


REPRESENTATIONS
AND WARRANTIES OF BUSINESS


 


To induce the Department
to make the Loan and/or Forgivable Loan referred to in this Agreement, the
Business represents, covenants and warrants that:


 


6.1                                 AUTHORITY.   The Business is a limited liability company
duly organized and validly existing under the laws of the state of
incorporation and is in good standing, and has complied with all applicable laws
of the State of Iowa. The Business is duly authorized and empowered to execute
and deliver the Agreement.  All action on
the Business’ part, such as appropriate resolution of its Board of Directors
for the execution and delivery of the Agreement, has been effectively taken.


 


6.2                                 FINANCIAL
INFORMATION.   All
financial statements and related materials concerning the Business and the
Project provided to the Department are true and correct in all material
respects and completely and accurately represent the subject matter thereof as
of the effective date of the statements and related materials, and no material
adverse change has occurred since that date.


 


6.3                                 APPLICATION.  The contents of the application/business plan
submitted by the Business to the Department for VAAPFAP funding is a complete
and accurate representation of the Business and the Project as of the date of
submission and there has been no material adverse change in the organization,
operation, business prospects, fixed properties or key personnel of the
Business since the date the Business submitted its VAAPFAP application to the
Department.


 


6.4                                 CLAIMS
AND PROCEEDINGS.   There are no actions, lawsuits or proceedings
pending or, to the knowledge of the Business, threatened against the Business
affecting in any manner whatsoever its right to execute the Agreement or the
ability of the Business to make the payments required under the agreement, or
to otherwise comply with the obligations of the Business contained under the
Agreement.  There are no actions,
lawsuits or proceedings at law or in equity, or before any governmental or
administrative authority pending or, to the knowledge of the Business,
threatened against or affecting the Business or any property or collateral
pledged as security for the Loan.


 


6.5                                 EFFECTIVE DATE.  The covenants, warranties and representations
of this Article are made as of the date of this Agreement and shall be
deemed to be renewed and restated by the Business at the time of each advance
or request for disbursement of funds.


 


4





















 


ARTICLE VII


 


COVENANTS
OF BUSINESS


 


7.1                                 AFFIRMATIVE
COVENANTS.   Until
payment in full of the Loan and satisfaction of terms of the Forgivable Loan,
the Business covenants to IDED that:


 


(a)                                  PROJECT WORK
AND SERVICES.  The
Business shall complete the work and services detailed in its VAAPFAP
application by the Project Completion Date.


 


(b)                                 RECORDS AND ACCOUNTS.   The Business shall maintain books, records,
documents and other evidence pertaining to all costs and expenses incurred and
revenues received under this Agreement concerning the project, in sufficient
detail to reflect all costs, direct and indirect, of labor, materials,
equipment, supplies, services and other costs and expenses of whatever nature,
for which payment is claimed under this Agreement. The Business shall retain
all records for a period of three (3) years from the Agreement Expiration Date.


 


(c)                                  ACCESS TO
RECORDS/INSPECTIONS.   The Business shall, without prior notice and
at any time (during normal business hours), permit the Department, its
representatives or the State Auditor to examine, audit and/or copy (I) any
plans and work details pertaining to the Project, (ii) all of the Business’
books, records and accounts, and (iii) all other documentation or materials
related to this Agreement; the Business shall provide proper facilities for
making such examination and/or inspection.


 


(d)                                 USE OF
LOAN AND FORGIVABLE LOAN FUNDS.  The Business shall expend funds received
under the Loan and/or Forgivable Loan only for the purposes and activities
described in its VAAPFAP Application and approved by the Department.


 


(e)                                  DOCUMENTATION.   The Business shall deliver to the IDED, upon
request, (I) copies of all contracts or agreements relating to the Project,
(ii) invoices, receipts, statements or vouchers relating to the Project, (iii)
a list of all unpaid bills for labor and materials in connection with the
Project, (iv) budgets and revisions showing estimated Project costs and funds
required at any given time to complete and pay for the Project, and (v) current
and year-to-date operating statements, including but not limited to a Profit
and Loss and Balance Sheet, not older than sixty (60) days from the date of
request.


 


(f)                                    NOTICE OF PROCEEDINGS.  The Business shall promptly notify IDED of
the initiation of any claims, lawsuits, bankruptcy proceedings or other
proceedings brought against the Business which would adversely impact the
project, including, but not limited to, any proceedings to assert or enforce
liens against collateral securing the Loan.


 


(g)                                 REPORTS.   The Business shall prepare, sign and submit
the following reports to the Department when required:


 


(1)                                  Financial
statements on an annual basis within 90 days after the Business’ fiscal year
end.   A project progress report will be
due annually, except in the last year of the project when a final project
report will be due 90 days after the Project Completion Date. Depending on the
situation the Department may request more frequent reports and/or audited
financial statements.


 


(h)                                 NOTICE OF
BUSINESS CHANGES. 
The Business shall provide prompt advance notice to the Department of
any proposed change in the Business ownership, structure or control which would
materially affect the Project.


 


5





















 


(I)                                    NOTICE OF MEETINGS.  The Business shall notify the Department at
least ten (10) working days in advance of all Board of Directors and Members
meetings at which the subject matter of this Agreement or Project is proposed
to be discussed. The Business shall provide the Department with copies of the
agenda and minutes of such meetings and expressly agrees that a representative
of the Department has a right to attend any and all such meetings for the
purposes of the discussion of the Project and the Loan and/or Forgivable Loan.


 


(j)                                     MAINTENANCE OF PROJECT PROPERTY AND INSURANCE.
 The Business shall maintain the
Project property in good repair and condition, ordinary wear and tear excepted,
and shall not suffer or commit waste or damage upon the Project property.  At the Department’s request, the Business
shall pay for and maintain insurance against loss or damage by fire, tornado,
and other hazards, casualties, and contingencies and all risks from time to
time included under “extended coverage” policies. This insurance shall be in an
amount not less than the full insurable value of the Project property.  The Business shall name the Department as a
mortgagee and/or an additional loss payee as appropriate and submit copies of
the policies to the Department.


 


(k)                                  INDEMNIFICATION.  The Business shall indemnify and hold
harmless the Department, its officers and employees, from and against any and
all losses, except those losses incurred by the Department resulting from willful
misconduct or negligence on its or their part.


 


(l)                                     PROJECT FEES.   The Business shall promptly pay all appraisal,
survey, recording, title, license, permit and other fees and expenses incurred
incident to the Loan/Forgivable Loan.


 


(m)                               INTEREST
AND SURPLUS PROCEEDS. 
The Business shall return all unexpended Loan/Forgivable Loan proceeds
and interest accrued on Loan proceeds to the Department within thirty (30) days
after the Project Completion Date.


 


7.2                                 NEGATIVE
COVENANTS.   So long
as the Business is indebted to IDED, the Business shall not, without prior
written disclosure to IDED and prior written consent of IDED (unless IDED prior
approval is expressly waived below), directly or indirectly:


 


(a)                                  BUSINESS’ INTEREST.   Assign, waive or transfer any of Business’
rights, powers, duties or obligations under this Agreement.


 


(b)                                 PROPERTY/COLLATERAL.   Sell, transfer, convey, assign, encumber or
otherwise dispose of any of the real property or other collateral securing the
Loan other than in ordinary course of business provided that the substituted
collateral is of equal or greater value.


 


(c)                                  RESTRICTIONS.   Place or permit any restrictions, covenants or
any similar limitations on the real property and/or other collateral securing
the Loan.


 


(d)                                 REMOVAL OF COLLATERAL.   Remove from the Project site or the State all
or any part of the collateral securing the Loan other than in ordinary course
of business provided that the substituted collateral is of equal or greater
value.


 


(e)                                  BUSINESS OWNERSHIP.   Materially change the ownership structure or
control of the business affecting the Project, including but not limited to,
entering into any merger or consolidation with any person, firm or corporation
or permitting substantial distribution, liquidation or other disposal of
business assets directly associated with the Project.  Changes in the business ownership, structure
or control which do not materially affect the Project shall require forty-five
(45) days prior written notice of the Department, but not written consent of,
the Department.  The materiality of the
change and whether or not the change affects the Project shall be determined by
the Department.


 


6





















 


(f)                                    BUSINESS OPERATION.   Materially change the nature of the business
being conducted, or proposed to be conducted, as described in the Business’
application for VAAPFAP funding.


 


ARTICLE VIII


 


SECURITY


 


8.1                                 SECURITY
INSTRUMENTS.  The
Business shall execute in favor of the Department all security agreements,
financing statements, mortgages, personal and/or corporate guarantees
(hereafter, “Security Instruments”) as required by the Department. The
following Security Instruments shall be executed by the Business:


 


(a)                                  UCC-1
all inclusive filing on all business assets, including, but not limited
to:  accounts receivable and inventory in
which IDED shall maintain a superior position not to exceed the amount owed on
any Loans outstanding in connection with this Agreement.  Said UCC-1 shall be filed with the Secretary
of State.


 


ARTICLE IX


 


DEFAULT
AND REMEDIES


 


9.1                                 EVENTS OF DEFAULT.   Each of the following shall constitute an
Event of Default under this Agreement:


 


(a)                                  MATERIAL
MISREPRESENTATION. 
If at any time any representation, warranty or statement made or
furnished to the Department by, or on behalf of, the Business in connection
with this Agreement or to induce the Department to make a Loan/Forgivable Loan
to the Business shall be determined by the Department to be incorrect, false,
misleading or erroneous in any material respect when made or furnished and
shall not have been remedied to the Department’s satisfaction within thirty
(30) days after written notice by the Department is given to the Business.


 


(b)                                 NON-PAYMENT.  If the Business fails to make a payment when due
under the terms of this Agreement within thirty (30) days following written
notice of such overdue payment is given to the Business by the Department.


 


(c)                                  NONCOMPLIANCE.  If there is a failure by the Business to
comply with any of the covenants, terms or conditions contained in this
Agreement or Security Instruments executed pursuant to this Agreement.


 


(d)                                 PROJECT
COMPLETION DATE. 
If the Project, in the sole judgment of the Department, is not completed
on or before the Project Completion Date.


 


(e)                                  BUSINESS CHANGES.   If there is a material change in the Business
ownership, structure or control which occurs without the prior written
disclosure to and if required, written permission of the Department.


 


(f)                                    MISSPENDING.   If the Business expends Loan/Forgivable Loan
proceeds for purposes not described in the VAAPFAP application or authorized by
the Department.


 


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(g)                                 INSOLVENCY
OR BANKRUPTCY   If
the Business becomes insolvent or bankrupt, or admits in writing its inability
to pay its debts as they mature, or makes an assignment for the benefit of
creditors, or the Business applies for or consents to the appointment of a
trustee or receiver for the Business or for the major part of its property; or
if a trustee or receiver is appointed for the Business or for all or a
substantial part of the assets of the Business and the order of such
appointment is not discharged, vacated or stayed within sixty (60) days after
such appointment; or if bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceedings or other proceedings for relief under any bankruptcy or
similar law or laws for the relief of debtors, are instituted by or against the
Business and, if instituted against the Business, is consented to, or, if
contested by the Business is not dismissed by the adverse parties or by an
order, decree or judgment within sixty (60) days after such institution.


 


(h)                                 INSURANCE.  If loss, theft, damage or destruction of any
substantial portion of the property of the Business occurs for which there is
either no insurance coverage or for which, in the opinion of the Department,
there is insufficient insurance coverage.


 


(I)                                    INSECURITY.  The Department shall deem itself insecure in
good faith and reasonably believes, after consideration of all the facts and
circumstances then existing, that the prospect of payment and satisfaction of
the obligations under this Agreement, or the performance of or observance of
the covenants in this Agreement, or the value of its collateral is or will be
materially impaired.


 


9.2                                 NOTICE OF DEFAULT.   The Department shall issue a written notice of
default providing therein a thirty (30) day period in which the Business shall
have an opportunity to cure, provided that cure is possible and feasible.


 


9.3                                 REMEDIES
UPON DEFAULT.  Upon
the happening of any Event of Default, the Department shall have the right, in
addition to any rights and remedies available to it under any of the Security
Instruments, to require immediate repayment of the full amount of funds
disbursed to the Business under the Agreement plus interest without
presentment, demand, protest, notice of protest, notice of intention to
accelerate or other notice of any kind, all of which are expressly waived by
the Business.


 


ARTICLE X


 


DISBURSEMENT
PROCEDURES


 


10.1                           REQUEST
FOR REIMBURSEMENT.   All disbursements of proceeds shall be subject
to receipt by the Department of requests for disbursement submitted by the
Business.  Requests for disbursement
shall be in form and content acceptable to the Department.


 


ARTICLE XI


 


GENERAL
TERMS AND PROVISIONS


 


11.1                           BINDING EFFECT.   This Agreement shall be binding upon and shall
inure to the benefit of the Department and Business and their respective heirs,
successors, legal representatives and assigns. 
The obligations, covenants, warranties, acknowledgments, waivers,
agreements, terms, provisions and conditions of this Agreement shall be jointly
and severally enforceable against the parties to this Agreement.


 


11.2                           COMPLIANCE
WITH LAWS AND REGULATIONS.   The Business shall comply with all applicable
State and federal laws, rules (including the administrative rules adopted by
the Department for the VAAPFAP Program), ordinances, regulations and orders.


 


8





















 


11.3                           TERMINATION
FOR CONVENIENCE. 
In addition to termination due to an Event of Default or
nonappropriation of VAAPFAP funds, this Agreement may be terminated in whole,
or in part, when the Department and the Business agree that the continuation of
the Project would not produce beneficial results commensurate with the future
disbursement of Loan/Forgivable Loan funds. 
The Department and the Business shall agree upon the termination
conditions.  The Business shall not incur
new obligations after the effective date of the termination and shall cancel as
many outstanding obligations as is reasonably possible.


 


11.4                           PROCEDURE
UPON TERMINATION.   If the Agreement is terminated for
convenience, an Event of Default or non-appropriation of VAAPFAP funds, disbursements
shall be allowed for costs up to the date of termination determined by the
Department to be in compliance with this Agreement.  The Business shall return to the Department
all unencumbered Loan/Forgivable Loan proceeds within one (1) week of receipt
of Notice of Termination.  Any costs
previously paid by the Department which are subsequently determined to be
unallowable through audit procedures shall be returned to the Department within
thirty (30) days of the disallowance.


 


11.5                           SURVIVAL
OF AGREEMENT.  If
any portion of this Agreement is held to be invalid or unenforceable, the
remainder shall be valid and enforceable. 
The provisions of this Agreement shall survive the execution of all
instruments herein mentioned and shall continue in full force until the Loan is
paid in full and the terms of the Forgivable Loan have been satisfied.


 


11.6                           GOVERNING LAW.  This Agreement and all Security Instruments
shall be interpreted in accordance with the law of the State of Iowa, and any
action relating to the Agreement shall only be commenced in the Iowa District
Court for Polk County or the United States District Court for the Southern
District of Iowa.


 


11.7                           MODIFICATION.  Neither this Agreement nor any provision of
the Security Instruments executed in connection with this Agreement may be
changed, waived, discharged or terminated orally, but only by a written
document signed by the party against whom enforcement of the change, waiver,
discharge or termination is sought.


 


11.8                           NOTICES.  Whenever this Agreement requires or permits
any notice or written request by one party to another, it shall be in writing,
enclosed in an envelope, addressed to the party to be notified at the address
heretofore stated (or at such other address as may have been designated by written
notice), properly stamped, sealed and deposited in the United States Mail.  Any such notice given hereunder shall be
deemed delivered upon the earlier of actual receipt or two (2) business days
after posting.  The Department may rely
on the address of the Business set forth heretofore, as modified from time to
time, as being the address of the Business.


 


11.9                           INVESTMENT
OF LOAN/FORGIVABLE LOAN FUNDS.  Temporarily idle Loan/Forgivable Loan
proceeds held by the Business may be invested provided such investments shall
be in accordance with State law, shall be controlled by the Business, and any
interest accrued shall be credited to and expended on the Project prior to the
expenditure of other Loan/Forgivable Loan proceeds.  All proceeds remaining, including accrued
interest, after all allowable Project costs have been paid or obligated shall
be returned to the Department within thirty (30) days after the Project
Completion Date.


 


11.10                     WAIVERS.   No waiver by the Department of any default
hereunder shall operate as a waiver of any other default or of the same default
on any future occasion.  No delay on the
part of the Department in exercising any right or remedy hereunder shall
operate as a waiver thereof.  No single
or partial exercise of any right or remedy by the Department shall preclude
future exercise thereof or the exercise of any other right or remedy.


 


9





















 


11.11                     LIMITATION.  It is agreed by the
Business that the Department shall not, under any circumstances, be obligated
financially under this Agreement except to disburse funds according to the
terms of the Agreement.


 


11.12                     ENFORCEMENT
EXPENSES.  The
Business shall pay upon demand any and all reasonable fees and expenses of the
Department, including the fees and expenses of their attorneys, experts and
agents, in connection with the exercise or enforcement of any of the rights of
the Department under the Agreement.


 


11.13                     HEADINGS.  The headings in this Agreement are intended
solely for convenience of reference and shall be given no effect in the
construction and interpretation of this Agreement.


 


11.14                     FINAL AUTHORITY.   The Department shall have the final authority
to assess whether the Business has otherwise complied with the terms of this
Agreement.


 


11.15                     INTEGRATION.  This Agreement
contains the entire understanding between the Business and the Department and
any representations that may have been made before or after the signing of this
Agreement, which are not contained herein, are non-binding, void and of no
effect. None of the parties have relied on any such prior representation in
entering into this Agreement.


 


11.16                     COUNTERPARTS.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute but one and the same instrument.


 


IN WITNESS WHEREOF, the
parties have executed this Agreement on the latest day and year specified
below.


 


IOWA DEPARTMENT OF ECONOMIC
DEVELOPMENT:


 


	
  BY:

  	
   

  	
  /s/ Joseph Jones

  	
   

  	
   

  
	
   

  	
  Joseph
  Jones, VAAPFAP Mgr.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
   

  	
  10/14/04

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GOLDEN GRAIN ENERGY, LLC:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BY:

  	
   

  	
  /s/ Walter Wendland

  	
   

  	
   

  
	
   

  	
  Walter Wendlend,
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
   

  	
  10/11/04

  	
   

  	
   

  
						



 


10





















 


Exhibit “B”


Promissory Note


 


IOWA DEPARTMENT OF ECONOMIC DEVELOPMENT


VALUE-ADDED AGRIGULTURAL PRODUCTS AND PROCESSES


FINANCIAL ASSISTANCE PROGRAM


 


	
  Loan
  Number: 04-VAPIVF-09

  	
   

  	
  Amount:

  
	
  $300,000

  	
   

  	
   

  



 


Date:  January 9, 2004


 


FOR
VALUE RECEIVED, the undersigned, (hereafter called the “Maker” promises to pay
to the order of Iowa Department of Economic Development (hereafter called “Holder”),
at its offices at 200 East Grand Avenue, Des Moines, Iowa 50309, or upon notice
to the Maker, at such other place as may be designated from time to time by the
Holder, the principal sum of $300,000 (three hundred thousand dollars) at 0%
(zero percent) interest on loan Number 04-VAPIVF-09 dated, December 18,
2003 to be paid as follows and in accordance with the Amortization Schedule attached:


 


59
(Fifty-nine) payments of $1,666.67 (One Thousand Six Hundred Sixty-six and
67/100) to be paid monthly beginning January 18, 2006.


 


1(One)
payment in the estimated amount of $201,666.47 (Two Hundred One Thousand Six
Hundred Sixty-six and 47/100) due on or before January 18, 2010.


 


1. Payments.  All payments under the Note shall be applied
in this order: (1) to interest, (2) to unpaid late fees, and (3) to principal
in accordance with Amortization Schedule attached hereto as Attachment “A”.


 


2.  Loan Agreement; Acceleration
Upon Default.  This Note is issued by Maker to evidence and
an obligation to repay a loan according to the terms of Loan Agreement number
(04-VAPIVF-09) dated December 18, 2003 and any amendments thereof, between
the Holder and Maker and, at the election of the Holder without notice to the
Maker, shall become immediately due and payable in the event any payment is not
made when due or upon the occurrence of any event of default under the terms of
the Loan Agreement.


 


3.  Reduced Amounts.  In
the event the Maker fails to requisition and spend the full face amount of the
Note as set out above, then the amount of each installment payment shall be
reduced accordingly in equal amounts.


 


4.  Security. 
Payment of this Note is secured by a UCC-1.


 


In
case of a decline in the market value of the collateral, or any part thereof,
the Holder may demand that additional collateral of quality and value
satisfactory to Holder be delivered, pledged and transferred to Holder.


 


1





















 


5.  Waiver.  No
delay or omission on the part of the Holder in exercising any right under this
Note shall operate as a waiver of that right or of any other right under this
Note.  A waiver on any one occasion shall
not be construed as a bar to or waiver of any right and/or remedy on any future
occasion.


 


6.  Waiver of Protest.  Each
Maker, surety, endorser and guarantor of this Note, expressly waives
presentment, protest, demand, notice of dishonor or default, and notice of any
kind with respect to this Note.


 


7. Cost of Collection.  The Maker will pay on demand
all costs of collection, maintenance of collateral, legal expenses, and
attorneys fees incurred or paid by the Holder in collecting and/or enforcing
this Note on default.


 


8.  Meaning of Terms.  As used
in this Note, “Holder” shall mean the Iowa Department of Economic Development
or other endorsee of this Note, who is in possession of it, or the bearer
hereof, if this Note is at the time, payable to the bearer.  The word “Maker” shall mean each of the
undersigned.  If this Note is signed by
more than one person, it shall be the joint and several liabilities of such
persons.


 


9.  Miscellaneous.  The
captions of paragraphs in this Promissory Note are for the convenience of
reference only.  They shall not define or
limit the provisions hereof and shall not have any legal or other significance
whatsoever.


 


 


GOLDEN
GRAIN ENERGY, LLC


 


 


	
  BY:

  	
  /s/ Walter Wendland

  	
   

  	
  Date:

  	
    10/11/04

  	
   

  
	
   

  	
  Walter Wendlend, President

  	
   

  	
   

  



 


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