Exhibit 10.1


 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


dated
as of July 12, 2005


 


between


 


GREAT
PLAINS ETHANOL, LLC


as Borrower


 


and


 


AGCOUNTRY
FARM CREDIT SERVICES, FLCA


as Lender


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I. DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
   

  
	
  Section 1.02

  	
  Accounting
  Terms and Determination

  	
   

  
	
  Section 1.03

  	
  Terms
  Generally

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. AMOUNTS AND TERMS OF THE
  LOANS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  General
  Description of the Loans

  	
   

  
	
  Section 2.02

  	
  Term Loan
  Conversion

  	
   

  
	
  Section 2.03

  	
  Revolving
  Commitment

  	
   

  
	
  Section 2.04

  	
  Procedure
  for Revolving Borrowings

  	
   

  
	
  Section 2.05

  	
  Interest
  Rates

  	
   

  
	
  Section 2.06

  	
  2005 Term
  Loan

  	
   

  
	
  Section 2.07

  	
  Repayment
  of Loans

  	
   

  
	
  Section 2.08

  	
  Evidence
  of Indebtedness

  	
   

  
	
  Section 2.09

  	
  Prepayments

  	
   

  
	
  Section 2.10

  	
  Interest on Loans

  	
   

  
	
  Section 2.11

  	
  Fees

  	
   

  
	
  Section 2.12

  	
  Computation of Interest and Fees

  	
   

  
	
  Section 2.13

  	
  Increased Costs

  	
   

  
	
  Section 2.14

  	
  Taxes

  	
   

  
	
  Section 2.15

  	
  Payments Generally

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONDITIONS PRECEDENT TO
  LOANS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  Conditions To Effectiveness

  	
   

  
	
  Section 3.02

  	
  Each Loan

  	
   

  
	
  Section 3.03

  	
  Delivery of Documents

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Existence; Power

  	
   

  
	
  Section 4.02

  	
  Organizational Power; Authorization

  	
   

  
	
  Section 4.03

  	
  Governmental Approvals; No Conflicts

  	
   

  
	
  Section 4.04

  	
  Financial Statements

  	
   

  
	
  Section 4.05

  	
  Litigation and Environmental Matters

  	
   

  
	
  Section 4.06

  	
  Compliance with Laws and Agreements

  	
   

  
	
  Section 4.07

  	
  Investment Company Act, Etc.

  	
   

  
	
  Section 4.08

  	
  Taxes

  	
   

  
	
  Section 4.09

  	
  Margin Regulations

  	
   

  
	
  Section 4.10

  	
  ERISA

  	
   

  
	
  Section 4.11

  	
  Ownership of Property

  	
   

  
	
  Section 4.12

  	
  Disclosure

  	
   

  
	
  Section 4.13

  	
  Labor Relations

  	
   

  
	
  Section 4.14

  	
  Subsidiaries

  	
   

  



 





















 


	
  Section 4.15

  	
  Projections

  	
   

  
	
  Section 4.16

  	
  Material Contracts

  	
   

  
	
  Section 4.17

  	
  Permits

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Financial Statements and Other Information

  	
   

  
	
  Section 5.02

  	
  Notices of Material Events

  	
   

  
	
  Section 5.03

  	
  Existence; Conduct of Business

  	
   

  
	
  Section 5.04

  	
  Compliance with Laws, Etc.

  	
   

  
	
  Section 5.05

  	
  Payment of Obligations

  	
   

  
	
  Section 5.06

  	
  Books and Records

  	
   

  
	
  Section 5.07

  	
  Visitation, Inspection, Audit, Etc.

  	
   

  
	
  Section 5.08

  	
  Maintenance of Properties; Insurance

  	
   

  
	
  Section 5.09

  	
  Use of Proceeds

  	
   

  
	
  Section 5.10

  	
  Subsidiaries

  	
   

  
	
  Section 5.11

  	
  Assignment of Material Contracts

  	
   

  
	
  Section 5.12

  	
  Food Security Act Compliance

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI FINANCIAL COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Fixed Charge Coverage Ratio

  	
   

  
	
  Section 6.02

  	
  Owner’s Equity Ratio

  	
   

  
	
  Section 6.03

  	
  Capital Expenditures

  	
   

  
	
  Section 6.04

  	
  Current Ratio

  	
   

  
	
  Section 6.05

  	
  Working Capital

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Indebtedness

  	
   

  
	
  Section 7.02

  	
  Negative Pledge

  	
   

  
	
  Section 7.03

  	
  Fundamental Changes

  	
   

  
	
  Section 7.04

  	
  Investments, Loans, Etc.

  	
   

  
	
  Section 7.05

  	
  Restricted Payments

  	
   

  
	
  Section 7.06

  	
  Sale of Assets

  	
   

  
	
  Section 7.07

  	
  Transactions with Affiliates

  	
   

  
	
  Section 7.08

  	
  Restrictive Agreements

  	
   

  
	
  Section 7.09

  	
  Sale and Leaseback Transactions

  	
   

  
	
  Section 7.10

  	
  Lease Obligations

  	
   

  
	
  Section 7.11

  	
  Hedging Agreements

  	
   

  
	
  Section 7.12

  	
  Amendment to Material Documents

  	
   

  
	
  Section 7.13

  	
  Accounting Changes

  	
   

  
	
  Section 7.14

  	
  Deposit and Investment Accounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Events of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX MISCELLANEOUS

  	
   

  



 





















 


	
  Section 9.01

  	
  Notices

  	
   

  
	
  Section 9.02

  	
  Waiver; Amendments

  	
   

  
	
  Section 9.03

  	
  Expenses; Indemnification

  	
   

  
	
  Section 9.04

  	
  Successors and Assigns

  	
   

  
	
  Section 9.05

  	
  Governing Law; Jurisdiction; Consent to Service of Process

  	
   

  
	
  Section 9.06

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
  Section 9.07

  	
  Right of Setoff

  	
   

  
	
  Section 9.08

  	
  Counterparts; Integration

  	
   

  
	
  Section 9.09

  	
  Survival

  	
   

  
	
  Section 9.10

  	
  Severability

  	
   

  
	
  Section 9.11

  	
  Confidentiality

  	
   

  
	
  Section 9.12

  	
  Interest Rate Limitation

  	
   

  
	
  Section 9.13

  	
  Termination

  	
   

  
	
  Section 9.14

  	
  Other Agreements

  	
   

  



 


	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Original Form of Construction Loan Note

  
	
  Exhibit B

  	
  -

  	
  Form of Amended and Restated Revolving Credit Note

  
	
  Exhibit C

  	
  -

  	
  Form of 2005 Term Note

  
	
  Exhibit 2.04

  	
  -

  	
  Form of Revolving Draw Request

  
	
  Exhibit 2.05(c)

  	
  -

  	
  Form of Interest Election

  
	
  Exhibit 2.06(c)

  	
  -

  	
  Form of 2005 Term Loan Draw Request

  
	
  Exhibit 3.01(b)(vii)

  	
  -

  	
  Form of Secretary’s Certificate

  
	
  Exhibit 3.01(b)(viii)

  	
  -

  	
  Form of Officer’s Certificate

  



 





















 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


THIS AMENDED AND
RESTATED CREDIT AGREEMENT (this “Agreement”) is made and entered into effective as of July 12,
2005, by and between GREAT PLAINS ETHANOL, LLC, a South Dakota limited
liability company (“Borrower”)
and AGCOUNTRY FARM CREDIT SERVICES, FLCA (“Lender”).


 


RECITALS:


 


A.                                   On June 19,
2002, Borrower and Lender entered into a Credit Agreement which provided for a
$32,500,000 multiple advance loan facility in favor of Borrower for the
purposes of acquiring, constructing, equipping and furnishing of an ethanol
production facility to be located near Chancellor, Turner County, South Dakota
(the “Project”).


 


B.                                     On October 1,
2003, Borrower completed constructing, equipping and furnishing the Project.


 


C.                                     On September 1,
2004, Borrower and Lender entered into the First Amendment to the Credit
Agreement which, among other things, contained Lender’s consent to certain
additional Indebtedness, and added a new Section 6.05 to the Credit
Agreement.


 


D.                                    Borrower has
requested that Lender amend and restate its credit arrangement to, among other
things: (1) increase the Revolving Loan to $8,000,000, (2) establish
a new $5,000,000 loan to finance certain Capital Expenditures, (3) suspend
Free Cash Flow payments to Lender, (4) modify Borrower’s ability to make a
Restricted Payment under certain terms and conditions, (5) increase
Borrower’s allowance for annual Capital Expenditures, (6) approve Borrower’s
Capital Expenditures for 2005 in the amount of $6,000,000, and (7) modify
certain financial covenants of Borrower.


 


E.                                      Subject to the
terms and conditions of this Agreement, Lender is willing to amend and restate
the Credit Agreement and provide certain additional financing and
accommodations to Borrower.


 


AGREEMENT:


 


In consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:


 


ARTICLE I.


 


DEFINITIONS


 


Section 1.01                            Definitions.  In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):


 


“2005 Closing Date” shall mean the date on
which the conditions precedent set forth in Section 3.01(b) have
been satisfied or waived in accordance with Section 9.02.


 


1





















 


“2005 Closing Fee” shall have the meaning set
forth in Section 2.11(e).


 


“2005 Term Loan” shall have the meaning set
forth in Section 2.06.


 


“2005 Term Loan  Commitment” shall mean the obligation of
Lender to make the 2005 Term Loan to Borrower in accordance with the terms of Section 2.06.


 


“2005 Term Loan Commitment Termination Date”
shall mean the earliest of (i) December 31, 2005, (ii) the date
on which the 2005 Term Loan Commitment is fully drawn, and (iii) the date
on which all amounts outstanding under this Agreement have been declared or
have automatically become due and payable (whether by acceleration or
otherwise).


 


“2005 Term Loan Draw Request” shall have the
meaning set forth in Section 2.06.


 


“2005
Term Loan Funding Period” shall mean the period
from the 2005 Closing Date to the 2005 Term Loan Commitment Termination Date.


 


“2005 Term Loan Note” shall mean the note made
by Borrower payable to the order of Lender in substantially the form of Exhibit C.


 


“Affiliate” shall mean, as to any Person, any
other Person that directly, or indirectly through one or more intermediaries,
Controls, is Controlled by, or is under common Control with, such Person.


 


“Amended and Restated Revolving Credit Note”
shall mean the note made by Borrower payable to the order of Lender in
substantially the form of Exhibit B.


 


“Base Rate” shall mean the per annum
adjustable rate of interest, as of the applicable Determination Date, charged
by AgriBank FCB (or its successors or any other similar funding source
regularly used by Lender from time to time in Lender’s sole discretion) to
Lender for obligations of the same maturity related to the Interest Election
for the Term Loan selected by Borrower pursuant to Section 2.05(b).


 


“Board” shall mean the Board of Governors of
the Federal Reserve System, or its successor.


 


“Borrower” shall mean Great Plains Ethanol,
LLC, a South Dakota limited liability company, and any successor thereof.


 


“Borrowing” shall mean an advance of funds by
Lender to Borrower pursuant to Lender’s Commitments hereunder.


 


“Business Day” shall mean any day other than a
Saturday, Sunday or other day on which farm credit system banks or commercial
banks in Fargo, North Dakota are authorized or required by law to close.


 


“Capital
Expenditures” shall mean for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of Borrower and its Subsidiaries


 


2





















 


that are (or would be) set forth on a combined statement of cash flows
of Borrower for such period prepared in accordance with GAAP and (b) Capital
Lease Obligations incurred by Borrower and its Subsidiaries during such period.


 


“Capital Lease Obligations” of any Person
shall mean all obligations of such Person to pay rent or other amounts under
any lease (or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.


 


“Cash
Taxes” shall mean the sum of Taxes paid by
Borrower and its Subsidiaries during the related Period.


 


“Change in Control” shall mean the occurrence
of one or more of the following events: (a) the acquisition of Control of
Borrower by any Person who does not Control Borrower on the Closing Date, (b) any
sale, lease, exchange or other transfer (in a single transaction or a series of
related transactions) of all or substantially all of the assets of Borrower to
any Person or “group” (within the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder in
effect on the date hereof), (c) occupation of a majority of the seats
(other than vacant seats) on the board of managers of Borrower by Persons who
were neither (i) nominated by the immediately previous board of managers
or (ii) appointed by managers so nominated, or (d) any change in the
managing member of Borrower or the rights, duties or obligations of such
managing member as presently set forth in Borrower’s operating agreement.


 


“Change in Law” shall mean (i) the
adoption of any applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or regulation,
or any change in the interpretation or application thereof, by any Governmental
Authority after the date of this Agreement, or (iii) compliance by Lender
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.


 


“Charges” shall have the meaning set forth in Section 9.12.


 


“Class”, when
used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans or the Term Loans.


 


“Closing Date” shall mean June 19, 2002.


 


“Code” shall mean the Internal Revenue Code of
1986, as amended and in effect from time to time.


 


“Collateral”
shall mean all tangible and intangible property, real and personal, of Borrower
that is the subject of a Lien granted pursuant to a Loan Document to Lender for
the benefit of Lender to secure the whole or any part of the Obligations or any
Guarantee thereof, and shall include, without limitation, all casualty
insurance proceeds and condemnation awards with respect to any of the
foregoing.


 


3





















 


“Collateral Assignments” shall mean each
collateral assignment by Borrower (and such other parties as Lender may
require) to Lender, along with consents to such assignments as shall be deemed
appropriate by Lender, from time to time, of the Material Contracts.


 


“Commitment” shall mean the Revolving
Commitment or the 2005 Term Loan Commitment, or any combination thereof as the
context shall permit or require.


 


“Construction Loans” shall mean the loans made
by Lender to Borrower which have been converted to the Term Loan as described
in Section 2.02.


 


“Construction Note” and “Construction Loan Note”
shall each mean the Term Note.


 


“Control” shall mean the power, directly or
indirectly, either to (i) vote 5% or more of securities having ordinary
voting power for the election of directors (or persons performing similar
functions) of a Person or (ii) direct or cause the direction of the
management and policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. The terms “Controlling”, “Controlled by”, and “under common Control with”
have meanings correlative thereto.


 


“Control Agreements” shall mean the agreements as may be requested by Lender to
perfect Lender’s security interest in the Deposit Accounts and Investment
Accounts, in form and substance satisfactory to Lender, as the same may be
amended, restated, supplemented or otherwise modified from time to time.


 


“Default” shall mean any condition or event
that, with the giving of notice or the lapse of time, or both, would constitute
an Event of Default.


 


“Default Interest” shall have the meaning set
forth in Section 2.10(b).


 


“Deposit
Accounts” shall mean all demand, time, savings,
passbook or similar depository accounts of Borrower with financial
institutions, including but not limited to the Equity Deposit Account and
Borrower’s operating, payroll and other deposit accounts.


 


“Determination Date” shall mean, (a) with
respect to Loans subject to the Variable Rate or the Term Variable Rate, the
date three (3) Business Days prior to the Closing Date with respect to the
Interest Period immediately following the Closing Date, and the first Business
Day of each subsequent month thereafter, and (b) with respect to all other
Loans, the date three (3) Business Days prior to the first day of the
related Interest Period.


 


“Dollars” or “$” shall mean dollars denominated in the
currency of the United States of America.


 


“Draw
Request” shall mean a Revolving Draw Request or a
2005 Term Loan Draw Request.


 


“EBITDA”
shall mean, for Borrower and its Subsidiaries for any period determined on a
consolidated basis in accordance with GAAP, an amount equal to (a) Net
Income for such period plus (b) to
the extent deducted in determining Net Income for such period, the sum of (i) Interest


 


4





















 


Expense, (ii) income tax expense, (iii) depreciation and
amortization and (iv) all other non-cash charges, in each case for such
period.


 


“Environmental Laws” shall mean all laws,
rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by or with
any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters.


 


“Environmental Liability” shall mean any
liability, contingent or otherwise (including any liability for damages, costs
of environmental investigation and remediation, costs of administrative oversight,
fines, related attorneys’ fees, natural resource damages, penalties or
indemnities), of Borrower or any Subsidiary directly or indirectly resulting
from or based upon (a) any actual or alleged violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) any actual
or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials, or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is
assumed or imposed with respect to any of the foregoing.


 


“Equipment” shall mean all equipment,
machinery, apparatus, fittings, fixtures and other tangible personal property
of every kind and description used in the business operations of Borrower or
owned by Borrower or in which Borrower has an interest, and all parts,
accessories, and special tools and all increases and accessions thereto and
substitutions and replacements therefor.


 


“ERISA” shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time, and any successor
statute.


 


“ERISA Affiliate” shall mean any trade or
business (whether or not incorporated), which, together with Borrower, is
treated as a single employer under Section 414(b) or (c) of the
Code or, solely for the purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.


 


“ERISA Event”
shall mean (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an “accumulated funding deficiency”  (as defined in Section 412 of the Code
or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by Borrower or the ERISA
Affiliate from the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by Borrower or any of
its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal


 


5





















 


Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.


 


“Event of Default” shall have the meaning
provided in Article VIII.


 


“Excluded Taxes” shall
mean with respect to Lender or any other recipient of any payment to be made by
or on account of any obligation of Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its Net Income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in which its
applicable lending office is located, and (b) any branch profits taxes
imposed by the United States of America or any similar tax imposed by any other
jurisdiction in which Lender or other recipient is located.


 


“Farm
Products” has the meaning given to it in the Food
Security Act.


 


“Five-Year Adjustable Rate” shall have the
meaning set forth in Section 2.05(b)(iii).


 


“Fixed Base Rate” shall mean the per annum
fixed rate of interest, as of the applicable Determination Date, charged by
AgriBank FCB to Lender for obligations with a maturity of ten (10) years
and subject to a prepayment penalty.


 


“Fixed Charge Coverage Ratio” shall mean, for any
period of four consecutive fiscal quarters of Borrower, the ratio of (a) EBITDA
for such period to (b) Fixed
Charges for such period.


 


“Fixed Charges” shall mean, for Borrower and
its Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (a) Interest Expense for such period, plus (b) scheduled principal payments
made on Total Debt (not including payments related to seasonal indebtedness for
which Lender has consented in writing to exclusion therefrom) for such period, plus (c) income tax expense for such
period, plus (d) Restricted
Payments paid during such period, plus
(e) Non-Financed Maintenance Capital Expenditures.


 


“Fixed Rate” shall have the meaning set forth
in Section 2.05(b)(v).


 


“Food
Security Act” shall mean the federal Food Security
Act of 1985, as amended from time to time (7 U.S.C. 1631, et seq.).


 


“Free
Cash Flow” shall mean for any period, the EBITDA
less the sum of Interest Expense, Mandatory Debt Retirement, Cash Taxes,
Non-Financed Maintenance Capital Expenditures.


 


“GAAP” shall mean generally accepted
accounting principles in the United States applied on a consistent basis and
subject to the terms of Section 1.02.


 


“Governmental Authority” shall mean the
government of the United States of America, any other nation or any political
subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity
exercising


 


6





















 


executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to government.


 


“Guarantee” of or by any Person (the “guarantor”) shall
mean any obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other obligation
of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly and
including any obligation, direct or indirect, of the guarantor (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation or to purchase (or to advance or supply
funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c) to
maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (d) as an account
party in respect of any letter of credit or letter of guaranty issued in
support of such Indebtedness or obligation; provided, that the term “Guarantee”
shall not include endorsements for collection or deposits in the ordinary
course of business. The amount of any Guarantee shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in respect
of which Guarantee is made or, if not so stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith. The
term “Guarantee” used as a verb has a corresponding meaning.


 


“Hazardous Materials” means all explosive or radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Hedging Agreements” shall mean interest rate
swap, cap or collar agreements, interest rate future or option contracts, currency
swap agreements, currency future or option contracts, commodity agreements and
other similar agreements or arrangements designed to protect against
fluctuations in interest rates, currency values or commodity values, in each
case to which Borrower or any Subsidiary is a party.


 


“Indebtedness” of any Person shall mean,
without duplication (i) all obligations of such Person for borrowed money,
(ii) all obligations of such Person evidenced by bonds, debentures, notes
or other similar instruments, (iii) all obligations of such Person in
respect of the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of business; provided,
that for purposes of Section 8.01(g), trade payables overdue by
more than 120 days shall be included in this definition except to the extent
that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any
conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) all Capital Lease Obligations of such Person,
(vi) all obligations, contingent or otherwise, of such Person in respect
of letters of credit, acceptances or similar extensions of credit, (vii) all
Guarantees of such Person of the type of Indebtedness described in clauses (i) through
(vi) above, (viii) all Indebtedness of a third party secured by any
Lien on property owned by such Person, whether or not such Indebtedness has
been assumed by such Person,


 


7





















 


(ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of
such Person, and (x) Off-Balance Sheet Liabilities. The Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture in which such Person is a general partner
or a joint venturer, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor.


 


“Indemnified Taxes” shall mean Taxes other
than Excluded Taxes.


 


“Interest Election” shall have the meaning set
forth in Section 2.05(b).


 


“Interest Expense” shall mean, for Borrower
and its Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without
limitation the interest component of any payments in respect of Capital Lease
Obligations capitalized or expensed during such period (whether or not actually paid during such
period), plus (ii) the net amount payable (or minus the net amount receivable) under
Hedging Agreements (other than Hedging Agreements related to commodities)
during such period (whether or not actually paid or received during such
period).


 


“Interest Period” shall mean:


 


(a)                                  with respect to Loans
subject to the Variable Rate or the Term Variable Rate, the initial Interest
Period shall be the period beginning on the date of the related Borrowing and
continuing through the last day of the month of such Borrowing, and all other
Interest Periods shall be the calendar month;


 


(b)                                 with respect to Loans
subject to the Three-Year Adjustable Rate, the Five-Year Adjustable Rate, or
the Ten-Year Adjustable Rate, the initial Interest Period shall be the period
beginning on the date of the related Borrowing and continuing until the date
three (3), five (5) or ten (10) years, as applicable, after the date
of such Borrowing, and all other Interest Periods shall be the period beginning
on the effective date of such interest rate pursuant to Section 2.05(c) and
continuing until the date three (3), five (5) or ten (10) years, as
applicable, following such effective date; and


 


(c)                                  with respect to Loans
subject to the Fixed Rate, the Interest Period shall be the period beginning on
the date of funding on any such Loan and
continuing until the date ten (10) years following the Closing Date;


 


provided, that no
Interest Period may extend beyond the Maturity Date.


 


“Investment Accounts” shall mean all securities or investment accounts of
Borrower with brokerage firms and others, including but not limited to the
Equity Deposit Account.


 


“Investments” shall
have the meaning set forth in Section 7.04.


 


“Lender” shall mean AgCountry Farm Credit
Services, FLCA, and its successors and assigns.


 


8





















 


“LIBOR” means the one month London interbank
rate reported on the tenth day of the month preceding the applicable Interest
Period by the Wall Street Journal
in its daily listing of money rates, defined therein as “the average of
interbank offered rates for dollar deposits in the London market based on
quotations at five major banks.”  If a one month LIBOR rate is not
reported on the tenth day of a month, the one month LIBOR rate reported on the
first Business Day preceding the tenth day of the month will be used.  If
this index is no longer available, Lender will select a new index which is
based on comparable information.


 


“License
Agreement” shall mean the Technology and Patent
Rights Licensing Agreement, dated as of April 5, 2005, between Borrower
and Broin and Associates, Inc., as the same may be amended, restated,
supplemented or otherwise modified from time to time


 


“Lien” shall mean any mortgage, pledge,
security interest, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other arrangement having the
practical effect of the foregoing or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having the same economic effect as any of the foregoing).


 


“Loan Documents” shall mean collectively this
Agreement, the Notes, all Notices of Borrowing, the Mortgage, the Security
Agreement, the Collateral Assignments, and any and all other instruments,
agreements, documents and writings executed in connection with any of the
foregoing.


 


“Loans” shall mean the Revolving Loans and the
Term Loans in the aggregate, or any of them, as the context shall require.


 


“Management
Contracts” shall mean those certain agreements and
contracts which are material to the management of Borrower’s business listed on
Schedule 4.16(a), as the same may be amended, restated,
supplemented or otherwise modified from time to time.


 


“Material Adverse Effect” shall mean, with
respect to any event, act, condition or occurrence of whatever nature
(including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singularly or in conjunction
with any other event or events, act or acts, condition or conditions,
occurrence or occurrences whether or not related, a material adverse change in,
or a material adverse effect on, (i) the business, results of operations,
financial condition, assets, liabilities, Projections or prospects of Borrower,
(ii) the ability of Borrower to perform any of its obligations under the
Loan Documents, (iii) the rights and remedies of Lender under any of the
Loan Documents or (iv) the legality, validity or enforceability of any of
the Loan Documents.


 


“Material
Contracts” shall mean the Management Contracts,
Supply Contracts, Off-Take Contracts, Transportation Contracts, Power
Contracts, the License Agreement, the Process Guarantee, and such other
agreements and contracts as may be material to operation of Borrower’s
business.


 


“Material Indebtedness” shall mean
Indebtedness (other than the Loans) or obligations in respect of one or more
Hedging Agreements of Borrower and its Subsidiaries in an aggregate


 


9





















 


principal amount exceeding $200,000. 
For purposes of determining Material Indebtedness, the “principal amount”
of the obligations of Borrower or any Subsidiary in respect to any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that Borrower or such Subsidiary would be required to
pay if such Hedging Agreement were terminated at such time.


 


“Maturity Date” shall mean the earlier of (i) October 1,
2013, or (ii) the date on which the principal amount of all outstanding
Loans have been declared or automatically have become due and payable (whether
by acceleration or otherwise).


 


“Maximum Rate” shall have the meaning set
forth in Section 9.12.


 


“Mortgage”
shall mean the Amended and Restated Mortgage delivered by Borrower in favor of
Lender, as amended, restated, supplemented or otherwise modified from time to
time, whereby Borrower pledges all of its right, title and interest in the Real
Estate to Lender as collateral for the Obligations.


 


“Mortgage
Properties” shall mean, collectively, the Real
Estate subject to the Mortgage.


 


“Multiemployer Plan” shall have the meaning
set forth in Section 4001(a)(3) of ERISA.


 


“Net Income” shall mean, for any period, the
net income (or loss) of Borrower and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, but excluding
therefrom (to the extent otherwise included therein) (i) any extraordinary
gains or losses, (ii) any gains attributable to write-ups of assets, (iii) any
equity interest of Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary, and (iv) any income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with Borrower or any Subsidiary on the date that such Person’s
assets are acquired by Borrower or any Subsidiary.


 


“Net Worth” shall mean, as of any date, (i) the
total assets of Borrower and its Subsidiaries that would be reflected on
Borrower’s consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, less (ii) the sum of (a) the
total liabilities of Borrower and its Subsidiaries that would be reflected on a
consolidated balance sheet of Borrower and its Subsidiaries as of such date
prepared in accordance with GAAP, (b) the amount of any write-up in the
book value of any assets resulting from a revaluation thereof or any write-up
in excess of the cost of such assets acquired reflected on the consolidated
balance sheet of Borrower and its Subsidiaries as of such date prepared in
accordance with GAAP, and (c) the net book amount of all assets of
Borrower and its Subsidiaries that would be classified as intangible assets on
a consolidated balance sheet of Borrower and its Subsidiaries as of such date
prepared in accordance with GAAP.


 


“Non-Financed
Maintenance Capital Expenditures” shall mean the
sum of Capital Expenditures made by Borrower in the ordinary course of business
related to maintenance of Borrower’s property, plant and equipment and paid during the related period, except the term shall not include Capital
Expenditures for which Borrower or any Subsidiary incurred Indebtedness in connection therewith.


 


10





















 


“Notes” shall mean, the Term Note, the Amended
and Restated Revolving Credit Note, and the 2005 Term Note, or any combination
thereof as the context shall permit or require.


 


“Obligations” shall mean all amounts owing by
Borrower to Lender pursuant to or in connection with this Agreement or any
other Loan Document, including without limitation, all principal, interest
(including any interest accruing after the filing of any petition in bankruptcy
or the commencement of any insolvency, reorganization or like proceeding
relating to Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), all reimbursement obligations, fees,
expenses, indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to Lender incurred pursuant to this
Agreement or any other Loan Document), whether direct or indirect, absolute or
contingent, liquidated or unliquidated, now existing or hereafter arising
hereunder or thereunder, together with all renewals, extensions, modifications
or refinancings thereof.


 


“Off-Balance Sheet Liabilities”
of any Person shall mean (i) any repurchase obligation or liability of
such Person with respect to accounts or notes receivable sold by such Person, (ii) any
liability of such Person under any sale and leaseback transactions which do not
create a liability on the balance sheet of such Person, (iii) any
liability of such Person under any so-called “synthetic” lease transaction, or (iv) any
obligation arising with respect to any other transaction which is the
functional equivalent of or takes the place of borrowing but which does not
constitute a liability on the balance sheet of such Person.


 


“Off-Take
Contracts” shall mean those certain agreements and
contracts which are material to the sale or disposal of products and
by-products produced by Borrower listed on Schedule 4.16(c), as the
same may be amended, restated, supplemented or otherwise modified from time to
time.


 


“Other Taxes” shall mean any and all present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder or from the
execution, delivery or enforcement of, or otherwise with respect to, this
Agreement or any other Loan Document.


 


“Owner’s Equity Ratio” shall mean owner’s
equity plus approved subordinated debt divided by total assets expressed as a
percent of total assets.


 


“Participant” shall have the meaning set forth
in Section 9.04(c).


 


“Payment Office” shall mean the office of
Lender located at 1749 38th Street Southwest, Post Office Box 6020, Fargo,
North Dakota 58108-6020 or such other location as to which Lender shall have
given written notice to Borrower.


 


“PBGC” shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA, and any successor entity
performing similar functions.


 


“Permits” shall mean all licenses, consents,
approvals authorizations and permits of Governmental Authorities which are
required of Borrower or useful for Borrower to obtain in connection with
operation of Borrower’s business, including but not limited to any of the
foregoing related to Environmental Laws, zoning and land-use laws (including
any requirement


 


11





















 


to obtain a special exception, if applicable), water use laws, waste
disposal laws and occupancy certificates.


 


“Permitted Encumbrances” shall mean:


 


(i)                                     Liens imposed by
law for taxes not yet due (or with respect to real estate taxes, not yet
delinquent) or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being maintained in
accordance with GAAP;


 


(ii)                                  statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law created in the ordinary course of business for amounts not
yet due or which are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves are being maintained in accordance
with GAAP;


 


(iii)                               pledges and deposits
made in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations;


 


(iv)                              deposits to secure the
performance of bids, trade contracts, leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature, in each
case in the ordinary course of business;


 


(v)                                 judgment and
attachment liens not giving rise to an Event of Default or Liens created by or
existing from any litigation or legal proceeding that are currently being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP; and


 


(vi)                              easements, zoning
restrictions, rights-of-way and similar encumbrances on real property imposed
by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the
affected property or materially interfere with the ordinary conduct of business
of Borrower and its Subsidiaries taken as a whole;


 


provided, that the
term “Permitted Encumbrances” shall not include any Lien securing Indebtedness.


 


“Permitted
Investments” shall
mean:


 


(i)                                     direct obligations
of, or obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States), in each case maturing within one year from the date of acquisition
thereof;


 


(ii)                                  commercial paper
having the highest rating, at the time of acquisition thereof, of S&P or
Moody’s and in either case maturing within six months from the date of acquisition thereof;


 


(iii)                               certificates of deposit,
bankers’ acceptances and time deposits maturing within 180 days of the date of
acquisition thereof issued or guaranteed by or placed with, and money


 


12





















 


market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or
any state thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000;


 


(iv)                              fully collateralized
repurchase agreements with a term of not more than 30 days for securities
described in clause (i) above and entered into with a financial
institution satisfying the criteria described in clause (iii) above; and


 


(v)                                 mutual funds investing
solely in any one or more of the Permitted Investments described in clauses (i) through
(iv) above.


 


“Person” shall mean any individual,
partnership, firm, corporation, association, joint venture, limited liability
company, trust or other entity, or any Governmental Authority.


 


“Plan” means any employee pension benefit plan
(other than a Multiemployer Plan) subject to the provisions of Title IV of
ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “
employer” as defined in Section 3(5) of ERISA.


 


“Power
Contracts” shall mean those certain contracts and
agreements which are material to the provision to Borrower of electricity,
natural gas, water, fuel oil, coal and other energy resources in connection
with the operation of Borrower’s plant, equipment and offices listed on Schedule 4.16(e) as
the same may be amended, restated, supplement and or otherwise modified from
time to time.


 


“Process
Guarantee” shall mean the Process Guarantee
provided by Broin and Associates, Inc. in favor of Borrower dated November 20,
2001.


 


“Projections”
shall mean Borrower’s forecasted (a) balance sheets; (b) profit and
loss statements; and (c) cash flow statements; all prepared on a combined
basis and otherwise consistent with the historical financial statements of
Borrower, together with appropriate supporting details and a statement of
underlying assumptions which are believed by Borrower to be reasonable and fair
in light of the current condition and past performance of Borrower and to
reflect a reasonable estimate of the projected balance sheets, results of
operations, cash flows and other information presented therein for five (5) years
following the Closing Date.


 


“Real
Estate” shall mean all real property owned or
leased by Borrower or its Subsidiaries.


 


“Real
Estate Documents” shall mean collectively, the
Mortgage and all other documents, instruments, agreements and certificates
executed and delivered by Borrower to Lender in connection with the Mortgage.


 


“Release” means any release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal,
leaching or migration into the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.


 


13





















 


“Required
Stock” shall mean the member stock or
participation certificates in Lender, in amounts as Lender may require Borrower
to purchase (without using proceeds of a Loan) from time to time under the
capital plan adopted by the board of directors of Lender (currently 2% of the
amount borrowed up to $1,000) pursuant to bylaws applicable to Lender.


 


“Responsible Officer” shall mean any of the
president, the chief executive officer, the chief operating officer, the chief
financial officer, the treasurer or a vice president of Borrower or such other
representative of Borrower as may be designated in writing by any one of the
foregoing with the consent of Lender; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of Borrower.


 


“Restricted Payment”
shall have the meaning set forth in Section 7.05.


 


“Revolving
Borrowing” shall mean a Borrowing pursuant to Section 2.03.


 


“Revolving  Commitment” shall mean the obligation of
Lender to make Revolving Loans to Borrower in accordance with the terms of Section 2.03
in an amount not to exceed $8,000,000, as reduced from time to time pursuant to
Section 2.09(c).


 


“Revolving Commitment Termination Date”
shall mean the Maturity Date.


 


“Revolving Credit Availability Period”
shall mean the period from October 1, 2003, to the Revolving Commitment
Termination Date.


 


“Revolving Draw Request” shall have the
meaning set forth in Section 2.04.


 


“Revolving Loan” shall mean a loan made by
Lender to Borrower under the Revolving Commitment.


 


“Security Agreement” shall mean that certain
Amended and Restated Security Agreement, dated as of the date hereof, executed
by Borrower in favor of Lender as amended, restated, supplemented or otherwise
modified from time to time.


 


“Security Documents” shall mean, collectively,
the Security Agreement, the Collateral Assignments, the Mortgage, the other
Real Estate Documents, and all other instruments and agreements now or
hereafter securing the whole or any part of the Obligations, all UCC-1
financing statements, fixture financing statements, stock powers, and all other
documents, instruments, agreements and certificates executed and delivered by
Borrower or any other person to Lender in connection with the foregoing.


 


“Simple Interest” shall mean interest that is
computed only on the outstanding principal balance.


 


“Subsidiary” shall
mean, with respect to any Person (the “parent”), any corporation, partnership, joint
venture, limited liability company, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation,
partnership, joint venture, limited liability company, association


 


14





















 


or other entity (i) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, Controlled or held,
or (ii) that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or more
subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary”
hereunder shall mean a Subsidiary of Borrower (including subsidiaries formed
after the Closing Date).


 


“Supply
Contracts” shall
mean those certain agreements and contracts related to the supply of inputs
material to operation of Borrower’s business listed on Schedule 4.16(b),
as the same may be amended, restated, supplemental or otherwise modified from
time to time.


 


“Taxes” shall mean any and all present or
future taxes, levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.


 


“Ten-Year Adjustable Rate” shall have the
meaning set forth in Section 2.05(b)(iv).


 


“Term Loan” shall have the meaning set forth
in Section 2.02.


 


“Term Loans” shall mean the Term Loan and the
2005 Term Loan.


 


“Term Note” shall mean the Construction Loan
Note of Borrower payable to the order of Lender dated June 19, 2002, the
original form of which is attached hereto as Exhibit A.  If there is a discrepancy between the
original form of the Construction Loan Note and the original Construction Loan
Note as executed by Borrower, the original Construction Loan Note will control.


 


“Term Variable Rate” shall have the meaning
set forth in Section 2.05(b)(i).


 


“Three-Year Adjustable Rate” shall have the
meaning set forth in Section 2.05(b)(ii).


 


“Title Company”
shall mean Homestead Escrow and Exchange Company, a South Dakota corporation,
and its successors and assigns, and/or any other title or escrow company
selected by Lender from time to time.


 


“Total
Debt” shall mean, as of any date of determination,
all Indebtedness of Borrower and its Subsidiaries that would be reflected on a
consolidated balance sheet of Borrower prepared in accordance with GAAP as of
such date.


 


“Transportation Contracts” shall mean those
certain agreements and contracts related to the provision of transportation or
shipping services which are material to the operation of Borrower’s business
listed on Schedule 4.16(d), as the same may be amended, restated,
supplemented or otherwise modified from time to time.


 


“Uniform Commercial Code” or “UCC” means the
Uniform Commercial Code as in effect from time to time in the State of North
Dakota.


 


15





















 


“Variable Rate” shall mean the per annum
floating rate of interest equal to LIBOR, as determined on the applicable
Determination Date, plus 300
basis points (3.00%) during the related Interest Period.


 


“Withdrawal Liability” shall mean liability to
a Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of
Title IV of ERISA.


 


Section 1.02                            Accounting
Terms and Determination.  Unless
otherwise defined or specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by Borrower’s independent public
accountants) with the most recent audited combined financial statement of
Borrower delivered pursuant to Section 5.01(a); provided,
that if Borrower notifies Lender that Borrower wishes to amend any covenant in Article VI
to eliminate the effect of any change in GAAP on the operation of such
covenant, then Borrower’s compliance with such covenant shall be determined on
the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant is
amended in a manner satisfactory to Borrower and Lender.


 


Section 1.03                            Terms
Generally.  The definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include,” “includes”
and “including” shall be deemed to be followed by the phrase “without
limitation”.  The word “will” shall be
construed to have the same meaning and effect as the word “shall”.  In the computation of periods of time from a
specified date to a later specified date, the word “from” means “from and
including” and the word “to” means “to but excluding.” Unless the context
requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as it was originally executed or as it
may from time to time be amended, supplemented or otherwise modified (subject
to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and permitted assigns, (iii) the words “hereof,”
“herein” and “hereunder” and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof, (iv) all
references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement, and (v) all references to a specific time shall be construed to
refer to the time in the city and state of Lender’s principal office, unless
otherwise indicated.


 


ARTICLE II.


 


AMOUNTS AND TERMS OF THE LOANS


 


Section 2.01                            General
Description of the Loans. 
Subject to and upon the terms and conditions herein set forth, (i) Lender
hereby establishes in favor of Borrower a term loan facility pursuant to which
Lender agrees to make a Term Loan to Borrower in accordance with Section 2.02;


 


16





















 


(ii) Lender agrees to establish in favor
of Borrower a revolving credit facility in accordance with Section 2.03;
and (iii) Lender hereby establishes in favor of Borrower the 2005 Term
Loan facility in accordance with Section 2.06.


 


Section 2.02                            Term
Loan Conversion.  On October 1,
2003, Lender converted $26,500,000 to a term loan (the “Term Loan”) pursuant
to the terms of the credit agreement between Borrower and Lender dated June 19,
2002.  Lender and Borrower acknowledge
that after taking into account the transactions contemplated herein, the total
principal amount outstanding on the Term Loan is $20,984,846.77, of which
Borrower has previously determined pursuant to Section 2.05(b) that
the principal amount of $20,984,846.77 is subject to the Term Variable
Rate.  There is no availability for
additional Borrowings under the Term Loan.


 


Section 2.03                            Revolving
Commitment.  Borrower and Lender
acknowledge that Borrower’s Revolving Commitment is $8,000,000.  During the Revolving Credit Availability
Period, Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans from time to time in accordance with the terms and conditions of this
Agreement; provided, that Borrower may not borrow or reborrow should
there exist a Default or Event of Default; and provided further, that at
no time shall the aggregate principal amount of Revolving Loans outstanding
exceed the amount of the Revolving Commitment.


 


Section 2.04                            Procedure
for Revolving Borrowings.   The
Borrower shall give Lender written notice (or telephonic notice promptly
confirmed in writing) of each Revolving Borrowing substantially in the form of Exhibit 2.04
attached hereto (a “Revolving
Draw Request”) prior to 11:00 a.m. one (1) Business
Day prior to the requested date of each Revolving Loan.  Each Revolving Draw Request shall be
irrevocable and shall specify: (i) the
aggregate principal amount of the related Borrowing and (ii) the date of
the related Borrowing (which shall be a Business Day).  The aggregate principal amount of each
Revolving Borrowing shall be not less than $100,000 or a larger multiple of
$100,000.  No advance under the Revolving
Loan will be made by Lender to the extent the aggregate amount of all Loans
outstanding exceeds 60% of Borrower’s net book value pursuant to the most
recent financial statement delivered under Section 5.01(a) or (b).


 


Section 2.05                            Interest
Rates


 


(a)                                  Revolving Loans.  Interest on the Revolving Loans shall accrue
at the Variable Rate, as determined on the applicable Determination Date,
during the related Interest Period.


 


(b)                                 Term Loan. 
With respect to the Term Loan, Borrower may elect (an “Interest Election”),
from time to time, any one or more (as limited by Section 2.05(c))
of the variable, adjustable or fixed interest rates to be applied to amounts of
not less than $1,000,000 owing on the Term Loan, as set forth in (i) and (ii) below,
and interest on such amounts shall accrue at such rate selected by Borrower
during the related Interest Period. 
Interest on the Term Loan shall accrue at the Term Variable Rate for
such portion of the Term Loan for which no Interest Election shall be in
effect.


 


17





















 


(i)                                     the per annum
floating rate of interest equal to LIBOR, as determined on the applicable
Determination Date, plus 264
basis points (2.64%) during the related Interest Period (the “Term Variable Rate”);
or


 


(ii)                                  the
per annum rate of interest equal to the Base Rate as determined on the
applicable Determination Date plus
300 basis points (3.00%) during the period commencing on the effective date of
the applicable Interest Election and continuing thereafter until the date three
(3) years following such date (the “Three-Year Adjustable Rate”), and thereafter
at the Term Variable Rate;


 


(iii)                               the
per annum rate of interest equal to the Base Rate as determined on the
applicable Determination Date plus
300 basis points (3.00%) during the period commencing on the effective date of
the applicable Interest Election and continuing thereafter until the date five (5) years
following such date (the “Five-Year
Adjustable Rate”), and thereafter at the Term Variable Rate;


 


(iv)                              the
per annum rate of interest equal to the Base Rate as determined on the
applicable Determination Date plus
300 basis points (3.00%) during the period commencing on the effective date of
the applicable Interest Election and continuing thereafter until the date ten (10) years
following such date (the “Ten-Year
Adjustable Rate”), and thereafter at the Term Variable Rate;


 


(v)                                 the
per annum rate of interest equal to the Fixed Base Rate as determined on the
applicable Determination Date plus
300 basis points (3.00%) during the period commencing on the Closing Date and continuing thereafter until the date
ten (10) years following the Closing Date (the “Fixed Rate”), and
thereafter at the Term Variable Rate.


 


The interest rate applicable to the Term Loan will be reduced by twenty
five basis points (0.25%) per annum at such time as Borrower has reached, and
has maintained as of the next fiscal year end, 50% owners equity, and by an
additional twenty five basis points (0.25%) per annum at such time the Borrower
has reached, and has maintained as of the next fiscal year end, 60% owners
equity, in each case based on audited financials statements after consideration
of the reduction for an annual dividend declaration; provided, that
subsequent to any interest rate reduction pursuant to this Section 2.05(b),
the interest rate applicable to the Term Loan will be increased by (x) twenty
five basis points (0.25%) per annum if Borrower’s owners equity falls below 60%
as of any subsequent quarterly period, and (y) an additional twenty five basis
points (0.25%) per annum if Borrower’s owners equity falls below 50% as of any
subsequent quarterly period.


 


(c)                                  Procedure for Election of Interest Rate.  To make an election pursuant to subsection (b) above,
Borrower shall give Lender prior written notice (or telephonic notice promptly
confirmed in writing) of its Interest Election, in the form of Exhibit 2.05(c) attached
hereto, no later than five (5) Business Days prior to the desired
effective date (which shall be a Business Day) of such election.  Borrower may make such Interest Elections at
any time and from time to time, without penalty, except as provided in Section 2.11(c);
provided, that Borrower may not elect an interest rate in which the
related Interest Period for such interest rate would extend beyond the Maturity
Date.  Borrower acknowledges that the
terms of this


 


18





















 


Agreement may require Borrower to pay a prepayment fee, and that
payments received pursuant to Section 2.10 may be subject to such
prepayment fee.  Lender shall determine
the rate of interest pursuant to this Section 2.05 and shall notify
Borrower of the same, in writing, upon any request by Borrower.  Lender’s determination of the rate of
interest hereunder shall be deemed conclusive, absent manifest error.


 


Section 2.06                            2005
Term Loan.


 


(a)                                  2005 Term Loan. The Lender agrees to lend
to Borrower an amount up to $5,000,000.00 for the purpose of funding certain
Capital Expenditures as set forth on Schedule 2.06 (the “2005 Term Loan”).  The 2005 Term Loan shall be loaned pursuant
to the terms and conditions set forth in this Agreement.


 


(b)                                 Interest Rate.  Subject to the provisions of Section 2.10,
the 2005 Term Loan shall bear interest at a rate equal to the Variable Rate
until the earlier of (i) December 31, 2005, or (ii) the 2005
Term Loan Commitment has been fully funded, and then Borrower may elect the
Variable Rate, the Three-Year Adjustable Rate, the Five-Year Adjustable Rate,
the Ten-Year Adjustable Rate, or the Fixed Rate to be applied to the amounts
owing on the 2005 Term Loan, but may not elect the Term Variable Rate to be
applied to the amounts owing on the 2005 Term Loan.  Borrower shall make such interest election by
following the procedures set forth in Section 2.05(c).  Borrower must elect an interest rate provided
for in this Section 2.06(b) to apply to the entire amount of
the 2005 Term Loan outstanding and may not designate a different rate for any
partial amount of the 2005 Term Loan outstanding.  The computation of interest, amortization,
maturity and other terms and conditions of 2005 Term Loan shall be as provided
in a promissory note of Borrower payable to the order of Lender in substantially
the form of Exhibit C.


 


(c)                                  2005 Term Loan  Advances.  The
Borrower shall give Lender written notice (or telephonic notice promptly
confirmed in writing) of each 2005 Term Loan advance substantially in the form
of Exhibit 2.06(c) attached hereto (a “2005 Term Loan Draw Request”)
prior to 11:00 a.m. five (5) Business Days prior to the requested
date of advance.  Each 2005 Term Loan
Draw Request shall be irrevocable and shall
specify: (i) the aggregate principal amount of the related Borrowing, and (ii) the
date of the related Borrowing (which shall be a Business Day).  In addition, Borrower shall attach to its
written, notice lien waivers relating to all construction-related expenses paid
from the proceeds of the immediately preceding 2005 Term Loan advance.  The aggregate principal amount of each 2005
Term Loan advance shall be not less than $100,000 or a larger multiple of
$100,000.  No advance under the 2005 Term
Loan will be made by Lender to the extent the aggregate amount of all Loans
outstanding exceeds 60% of Borrower’s net book value pursuant to the most
recent financial statement delivered under Section 5.01(a) or (b).


 


(d)                                 Use of Proceeds.  The proceeds of 2005 Term Loan Advances shall
be used by the Borrower to finance certain Capital Expenditures set forth on Schedule 2.06.


 


(e)                                  Multiple Advances Under 2005 Term Loan.  Multiple advances will be permitted during
2005 Term Loan Funding Period; provided however, that the aggregate amount of
2005 Term Loan advances shall not exceed $5,000,000.00. During the 2005 Term
Loan


 


19





















 


Funding Period, Borrower may borrow and
prepay, but may not reborrow, the 2005 Term Loan in accordance with the terms
and conditions of this Agreement; provided, that Borrower may not borrow
should there exist a Default or Event of Default.


 


(f)                                    Incentive Interest Rate Reduction.  The interest rate applicable to the 2005 Term
Loan will be reduced by twenty five basis points (0.25%) per annum at such time
as Borrower has reached, and has maintained as of the next fiscal year end, 50%
owners equity, and by an additional twenty five basis points (0.25%) per annum
at such time the Borrower has reached, and has maintained as of the next fiscal
year end, 60% owners equity, in each case based on audited financials
statements after consideration of the reduction for an annual dividend
declaration; provided, that subsequent to any interest rate reduction
pursuant to this Section 2.06(f), the interest rate applicable to
the 2005 Term Loan will be increased by (x) twenty five basis points (0.25%)
per annum if Borrower’s owners equity falls below 60% as of any subsequent
quarterly period, and (y) an additional twenty five basis points (0.25%) per
annum if Borrower’s owners equity falls below 50% as of any subsequent
quarterly period.


 


Section 2.07                            Repayment
of Loans.


 


(a)                                  Term Loans.  With respect to the Term Loan, Borrower shall
pay, on the first day of each calendar quarter, beginning on October 1,
2003, 40 level amortized quarterly payments of principal and interest based on
the applicable interest rate in effect from time to time pursuant to Section 2.05(b).  The amount of such payments shall be adjusted
from time to time as the interest rate is changed or adjusted pursuant to Section 2.05(b) or
Section 2.10(b).  All
remaining principal and accrued interest outstanding on the Term Loan shall be
due and payable on the Maturity Date. 
With respect to the 2005 Term Loan, Borrower shall pay, on the first day
of each calendar quarter, beginning on January 1, 2006, a principal
payment of $156,250 plus accrued interest at the applicable interest rate in
effect from time to time pursuant to Section 2.06(b).  All remaining principal and accrued interest
outstanding on the 2005 Term Loan shall be due and payable on the Maturity
Date.


 


(b)                                 Revolving Facility.  During the Revolving Credit Availability
Period, Borrower shall pay in arrears, not later than the first day of each
month, interest at the rate in effect from time to time pursuant to Section 2.05(a) based
on the average daily balance of the Revolving Loans outstanding during the
related monthly period.  Borrower shall
pay, not later than October 1 of 2012 and 2013, annual principal payments
of $4,000,000, and the amount of the Revolving Commitment shall be permanently
reduced by the amount of such annual principal payments.  All remaining principal and accrued and
unpaid interest on the Revolving Loans shall be due and payable on the Maturity
Date.


 


Section 2.08                            Evidence
of Indebtedness.  Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of Borrower to Lender resulting from each Loan made by Lender
from time to time, including the amounts of principal and interest payable
thereon and paid to Lender from time to time under this Agreement. Lender shall
also maintain appropriate records in which shall be recorded (i) the
Revolving Commitment and the 2005 Term Loan Commitment (ii) the amount of
each Loan made hereunder by Lender, the Class thereof and, in the case of
the Term Loan, the interest rate election (pursuant to Section 2.05(b))
applicable thereto, (iii) the date of each conversion Interest Election of
all or a


 


20





















 


portion thereof to another pursuant to Section 2.05,
(iv) the date and amount of any principal or interest due and payable or
to become due and payable from Borrower to Lender hereunder in respect of such
Loans and (v) both the date and amount of any sum received by Lender from
Borrower in respect of the Loans.  The
entries made in such records shall be prima
facie evidence of the existence and amounts of the obligations of
Borrower therein recorded; provided, that the failure or delay of Lender
in maintaining or making entries into any such record or any error therein
shall not in any manner affect the obligation of Borrower to repay the Loans
(both principal and unpaid accrued interest) of Lender in accordance with the
terms of this Agreement.


 


Section 2.09                            Prepayments.


 


(a)                                  Borrower may at any
time and from time to time prepay any Loan, in whole or in part, without
premium or penalty (except as provided in Section 2.11(c)), by
giving irrevocable written notice (or telephonic notice promptly confirmed in
writing) to Lender no later than 11:00 a.m. (Central Time) not less than
three (3) Business Days prior to any such prepayment; provided,
that the amount of any such prepayment shall not be less than $100,000.  Each such notice shall be irrevocable and
shall specify the proposed date of such prepayment and the principal amount of
each Loan or portion thereof to be prepaid. 
If such notice is given, the aggregate amount specified in such notice
shall be due and payable on the date designated in such notice, together with
accrued interest to such date on the amount so prepaid in accordance with Section 2.10(a) and
any prepayment fee pursuant to Section 2.11(c).


 


(b)                                 If Borrower issues any
membership interests, any other equity interests, or any debt securities, then
no later than the Business Day following the date of receipt of the proceeds
thereof, Borrower shall prepay the Loans in an amount equal to all such
proceeds, net of underwriting discounts and commissions and other reasonable
costs paid to non-Affiliates in connection therewith provided, that no
such prepayment shall be required in the event Borrower issues membership
interests or other equity interests and the proceeds of such issuance are
invested in assets that constitute either plant or equipment of Borrower and
such assets become Collateral subject to Lender’s security interest
hereunder.  Any such prepayment shall be
applied in accordance with paragraph (c) below.


 


(c)                                  Any prepayment made
by Borrower shall be applied as follows: first, to fees and reimbursable
expenses of Lender then due and payable pursuant to any of the Loan Documents; second,
to interest then due and payable on Loans made to Borrower; third, to
the principal balance of the Term Loan, in inverse order of maturity, until the
same shall have been paid in full; fourth, to the principal balance of
the 2005 Term Loan, in inverse order of maturity, until the same shall have
been paid in full; and fifth, to the principal balance of the Revolving
Loans until the same shall have been paid in full. The applicable Commitments
shall be permanently reduced by the amount of any prepayments made pursuant to
clauses fourth and fifth above.


 


21





















 


Section 2.10                            Interest
on Loans.


 


(a)                                  Interest on the
principal amount of all Loans shall accrue from and including the date such
Loans are made to but excluding the date of any repayment thereof.  Interest on all outstanding Loans shall be
payable pursuant to Section 2.07. 
All Default Interest shall be payable on demand.


 


(b)                                 While an Event of
Default exists or after acceleration, Borrower shall pay interest (“Default Interest”)
with respect to all Loans at the rate otherwise applicable plus an additional 2% per annum.  All Default Interest shall be payable on
demand.


 


Section 2.11                            Fees.


 


(a)                                  Commitment Fee. Borrower agrees to pay to
Lender a commitment fee, which shall accrue at a rate of one-half of one
percent (0.50%) per annum on the daily amount of the unused amount of the
Revolving Commitment during the Revolving Credit Availability Period.  Accrued commitment fees shall be payable in
arrears on the last day of each of March, June, September and December of
each year and on the Revolving Commitment Termination Date, commencing on the
first such date after the Closing Date; provided, that any commitment
fees accruing after the Revolving Commitment Termination Date shall be payable
on demand.


 


(b)                                 Fee Letter.  Borrower agrees to pay Lender the fees described
in the Fee Letter from Lender to Borrower dated as of the 2005 Closing Date.


 


(c)                                  Prepayment Fee.  If Borrower refinances or otherwise prepays
any Loan with sources other than funds internally generated by Borrower’s
operations, in whole or in part, Borrower agrees to pay a prepayment fee as
follows (i) if the prepayment is received within one year from the date
hereof, 2.0% of the amount prepaid, and (ii) if the prepayment is received
more than one year following the date hereof but less than two years from the
date hereof, 1.0% of the prepaid amount. 
In all other cases, in the event any Loan subject to the Three-Year
Adjustable Rate, Five-Year Adjustable Rate or Fixed Rate is paid, in whole or
in part, whether voluntarily or involuntarily, or if Borrower changes its
Interest Election with respect to such Loan, prior to the end of the related
Interest Period, Borrower shall pay to Lender a prepayment fee in an amount
which would result in Lender being made whole (on a present value basis) for
the actual or imputed funding losses incurred by Lender as a result
thereof.   Notwithstanding the
foregoing, in the event any Loan subject to the Three-Year Adjustable Rate,
Five-Year Adjustable Rate or Fixed Rate is paid as a result of the Borrower
refinancing the Loan with another lender or by other means, then in lieu of the
foregoing, Borrower shall pay to Lender a fee in an amount sufficient (on a
present value basis) to enable Lender to maintain the yield it would have
earned during the applicable interest period on the amount paid.  Such
fees will be calculated in accordance with methodology established by Lender (a
copy of which will be made available to the Borrower upon request).


 


(d)                                 Out-of-Pocket Costs.  Borrower shall pay, on demand, all of Lender’s
out-of-pocket costs in connection with the Loans, including but not limited to (i) fees,
charges and disbursements of Lender’s counsel related to the negotiation,
documentation, closing and


 


22





















 


collection of the Loans in an amount not to exceed $10,000, (ii) fees,
charges and disbursements of the Inspecting Architect, and (iii) fees,
charges and disbursements of the Title Company.


 


(e)                                  2005 Closing Fee.  Borrower shall pay to Lender a closing fee
equal to $20,000 (the “2005
Closing Fee”) on or before the 2005 Closing Date.


 


Section 2.12                            Computation
of Interest and Fees.  All
computations of interest and fees hereunder shall be made on a Simple Interest
basis and on the basis of a year of 360 days for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable (to the extent computed on the
basis of days elapsed).  Each
determination by Lender of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.


 


Section 2.13                            Increased
Costs.


 


(a)                                  If Lender shall have
determined that on or after the date of this Agreement any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on Lender’s capital as a consequence of its obligations hereunder to a
level below that which Lender could have achieved but for such Change in Law
(taking into consideration Lender’s policies with respect to capital adequacy)
then, from time to time, within five (5) Business Days after receipt by
Borrower of written demand by Lender, Borrower shall pay to Lender such
additional amounts as will compensate Lender for any such reduction suffered.


 


(b)                                 A certificate of
Lender setting forth the amount or amounts necessary to compensate Lender
specified in paragraph (a) of this Section shall be delivered to
Borrower, together with the written demand referred to in paragraph (a) of
this section, and shall be conclusive, absent manifest error.


 


(c)                                  Failure or delay on
the part of Lender to demand compensation pursuant to this Section shall
not constitute a waiver of Lender’s right to demand such compensation.


 


Section 2.14                            Taxes.


 


(a)                                  Any and all payments
by or on account of any obligation of Borrower hereunder shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided,
that if Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) Lender shall receive
an amount equal to the sum it would have received had no such deductions been
made, (ii) Borrower shall make such deductions and (iii) Borrower
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.


 


(b)                                 In addition, Borrower
shall pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


 


(c)                                  Borrower shall
indemnify Lender, within five (5) Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by


 


23





















 


Lender, as the case may be, on or with respect to any payment by or on
account of any obligation of Borrower hereunder (including Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority.  A certificate as
to the amount of such payment or liability delivered to Borrower by Lender,
shall be conclusive absent manifest error.


 


(d)                                 As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by Borrower to a
Governmental Authority, Borrower shall deliver to Lender the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to Lender.


 


Section 2.15                            Payments
Generally.


 


(a)                                  Borrower shall make
each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of amounts payable under Section 2.11,
2.13 or 2.14, or otherwise) prior to 11:00 a.m. (Central Time),
on the date when due, in immediately available funds, without set-off or
counterclaim.  Any amounts received after
such time on any date may, in the discretion of Lender, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments
shall be made to Lender at the Payment Office. 
If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall
be made payable for the period of such extension.  All payments hereunder shall be made in
Dollars.


 


(b)                                 If at any time
insufficient funds are received by and are available to Lender to pay fully all
amounts of principal, interest and fees then due hereunder, such funds shall be
applied first to payment of interest and fees then due hereunder.


 


ARTICLE III.


 


CONDITIONS PRECEDENT TO LOANS


 


Section 3.01                            Conditions
To Effectiveness.


 


The obligations of Lender to make Loans
hereunder shall not become effective until the date on which each of the
following additional conditions is satisfied (or waived in accordance with Section 9.02):


 


(a)                                  Lender has received
all fees and other amounts due and payable on or prior to the 2005 Closing
Date, including the 2005 Closing Fee and amounts for reimbursement or payment
of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to Lender) required to be reimbursed or paid by
Borrower hereunder, under any other Loan Document and under any agreement with
Lender.


 


(b)                                 Lender (or its
counsel) shall have received the following:


 


24





















 


(i)                                     a counterpart of
this Agreement signed by or on behalf of Borrower or written evidence
satisfactory to Lender (which may include telecopy transmission of a signed
signature page of this Agreement) that Borrower has signed a counterpart
of this Agreement;


 


(ii)                                  the Amended and
Restated Revolving Credit Note, duly executed by Borrower payable to the order
of Lender, and the 2005 Term Loan Note, duly executed by Borrower payable to
the order of Lender;


 


(iii)                               the duly executed
Security Agreement, together with (A) UCC-1 financing statements and other
applicable documents under the laws of the jurisdictions with respect to the
perfection of the Liens granted under the Security Agreement, as requested by
Lender in order to perfect such Liens, duly executed by Borrower and all other
parties, (B) copies of favorable UCC, tax, judgment and fixture lien
search reports in all necessary or appropriate jurisdictions and under all
legal and trade names of Borrower and all other parties requested by Lender,
indicating that there are no prior Liens on any of the Collateral other than
Permitted Encumbrances, (C) duly executed landlord waivers and/or
warehouseman, or bailee agreements with respect to all inventory of Borrower or
any Subsidiary located at leased locations or other locations not owned by
Borrower in fee simple, and (D) a certified copy of all leases of Borrower
and each Subsidiary.


 


(iv)                              the duly executed
Mortgage covering all of the Real Estate owned or leased by Borrower and duly
executed counterparts of the other Real Estate Documents together with: (A) appropriate
endorsements to update the title insurance policies issued in favor of Lender
on the Closing Date; and (B) evidence that counterparts of the Mortgage
have been recorded in all places to the extent necessary or desirable, in the
judgment of Lender, to create a valid and enforceable first priority lien
(subject to Permitted Encumbrances) on the fee simple estate of each Mortgage
Property in favor of Lender for the benefit of Lender (or in favor of such other
trustee as may be required or desired under local law);


 


(v)                                 Collateral Assignments
of all Material Contracts in existence as of the 2005 Closing Date, together
with executed copies of the Material Contracts, other than those which have
previously been provided to Lender;


 


(vi)                              certificates of good
standing or existence, as may be available from the Secretary of State of the
jurisdiction of organization of Borrower and each other jurisdiction where
Borrower is required to be qualified to do business as a foreign entity;


 


(vii)                           a certificate, substantially
in the form of Exhibit 3.01(b)(vii), dated as of the 2005 Closing
Date and signed by an appropriate Responsible Officer, attaching and certifying
copies of the appropriate resolutions authorizing the execution, delivery and
performance of the Loan Documents and certifying the name, title and the
signature of each officer executing the Loan Documents.


 


(viii)                        a certificate, substantially in
the form of Exhibit 3.01(b)(viii), dated the 2005 Closing Date and
signed by an appropriate Responsible Officer, confirming compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section 3.02;


 


25





















 


(ix)                                duly
executed Draw Requests, if applicable; and


 


(x)                                   the
Control Agreements.


 


(c)                                  The
revolving credit line of credit provided by AgCountry Farm Credit Services, PCA
shall have been terminated.


 


Section 3.02                            Each
Loan.   The obligation of Lender
to make a Loan on the occasion of any Borrowing is subject to the satisfaction
of the following conditions:


 


(a)                                  at the time of and
immediately after giving effect to such Borrowing, no Default or Event of
Default shall exist; and


 


(b)                                 all representations
and warranties of Borrower set forth in the Loan Documents are true and correct
in all material respects on and as of the date of such Borrowing before and
after giving effect thereto;


 


(c)                                  since the date of the
most recent financial statements of Borrower provided pursuant to Section 5.01(a),
there shall have been no change which has had or could reasonably be expected
to have a Material Adverse Effect; and


 


(d)                                 Lender shall have
received such other documents, certificates, information or legal opinions as
Lender may reasonably request, all in form and substance reasonably
satisfactory to Lender.


 


Each Borrowing shall be deemed to constitute
a representation and warranty by Borrower on the date thereof as to the
satisfaction of the matters specified in paragraphs (a), (b) and (c) of
this Section 3.02.


 


Section 3.03                            Delivery
of Documents.  All of the Loan
Documents, certificates, legal opinions and other documents and papers referred
to in this Article III, unless otherwise specified, shall be
delivered to Lender and shall be in form, substance and detail satisfactory in
all respects to Lender.


 


ARTICLE IV.


 


REPRESENTATIONS AND WARRANTIES


 


Borrower represents and warrants to Lender,
as of the 2005 Closing Date, and the date of each Borrowing, as follows:


 


Section 4.01                            Existence;
Power. Borrower and each Subsidiary (i) are duly organized,
validly existing and in good standing as a corporation, partnership or limited
liability company, as the case may be, in each case under the laws of the
jurisdiction of its organization, (ii) have all requisite power and
authority to carry on their businesses as now conducted, and (iii) have
duly qualified to do business, and are in good standing, in each jurisdiction
where such qualification is required, except where a failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect.


 


26





















 


Section 4.02                            Organizational
Power; Authorization.  The
execution, delivery and performance by Borrower of the Loan Documents to which
it is a party are within its organizational powers and have been duly
authorized by all necessary organizational, and if required, member
action.  This Agreement has been duly
executed and delivered by Borrower, and constitutes,
and each other Loan Document to which Borrower is a party, when executed and
delivered by Borrower, will constitute, valid and binding obligations of
Borrower, enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors’ rights
generally and by general principles of equity.


 


Section 4.03                            Governmental
Approvals; No Conflicts.  The
execution, delivery and performance by Borrower of this Agreement, (a) does
not require any consent or approval of, registration or filing with, or any
action by, any Governmental Authority, except those as have been obtained or
made and are in full force and effect or where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, (b) will not violate any applicable law or
regulation or the charter, by-laws or other organizational documents of
Borrower or any of its Subsidiaries or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture, material
agreement or other material instrument binding on Borrower or any of its
Subsidiaries or any of its assets or give rise to a right thereunder to require
any payment to be made by Borrower or any of its Subsidiaries and (d) will
not result in the creation or imposition of any Lien on any asset of Borrower
or any of its Subsidiaries, except Liens (if any) created under the Loan
Documents.


 


Section 4.04                            Financial
Statements. Borrower has furnished to Lender copies of Borrower’s (a) audited
financial statements (consistent with the requirements of Section 5.01(a))
as of its most recent fiscal year end, and (b) internally prepared
financial statements (consistent with the requirements of Section 5.01(b))
as of the last day of the most recent quarter. 
Such financial statements fairly present the financial condition of
Borrower and its Subsidiaries as of such dates and the results of operations
for such periods in conformity with GAAP consistently applied, subject to year
end audit adjustments and the absence of footnotes.  Since the date of such financial statements,
there have been no changes with respect to Borrower and its Subsidiaries which
have had or could reasonably be
expected to have, singly or in the aggregate, a material adverse effect on the
business, results of operations, financial condition, assets, liabilities or
prospects of Borrower and its Subsidiaries taken as a whole.


 


Section 4.05                            Litigation
and Environmental Matters.


 


(a)                                  No litigation,
investigation or proceeding of or before any arbitrators or Governmental
Authorities is pending against or, to the knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination that could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect or (ii) which in any manner draws into question
the validity or enforceability of this Agreement or any other Loan Document.


 


(b)                                 Except for the matters
set forth on Schedule 4.05(b), neither Borrower nor any Subsidiary (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental
Law,


 


27





















 


including without limitation, all permits, licenses and approvals
required by the state of South Dakota, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.


 


Section 4.06                            Compliance
with Laws and Agreements. 
Borrower and each Subsidiary is in compliance with (a) all
applicable laws, rules, regulations and orders of any Governmental Authority,
and (b) all indentures, agreements or other instruments (including but not
limited to the Material Contracts) binding upon it or its properties, except
where non-compliance, either singly or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.


 


Section 4.07                            Investment
Company Act, Etc.  Neither
Borrower nor any Subsidiary is (a) an “investment company”, as defined in,
or subject to regulation under, the Investment Company Act of 1940, as amended,
(b) a “holding company” as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935, as amended, or (c) otherwise
subject to any other regulatory scheme limiting its ability to incur debt.


 


Section 4.08                            Taxes.
Borrower and its Subsidiaries and each other Person for whose taxes Borrower or
any Subsidiary could become liable have timely filed or caused to be filed all
Federal income tax returns and all other material tax returns that are required
to be filed by any of them, and have paid all taxes shown to be due and payable
(or with respect to real estate taxes, have paid all taxes prior to the time
the same become delinquent) on such returns or on any assessments made against
it or its property and all Other Taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii) where
the same are currently being contested in good faith by appropriate proceedings
and for which Borrower or such Subsidiary, as the case may be, has set aside on
its books adequate reserves.  The
charges, accruals and reserves on the books of Borrower and its Subsidiaries in
respect of such taxes are adequate, and no tax liabilities that could be
materially in excess of the amount so provided are anticipated.


 


Section 4.09                            Margin
Regulations.  None of the
proceeds of any of the Loans will be used, directly or indirectly, for “purchasing”
or “carrying” any “margin stock” with the respective meanings of each of such
terms under Regulation U of the Board as now and from time to time hereafter in
effect, or for any purpose that violates the provisions of Regulation U, T or X
of the Board.


 


Section 4.10                            ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.  The present value of all accumulated benefit
obligations under each Plan (based on the assumptions used for purposes of
Statement of Financial Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Standards No. 87)
did not, as of the date of the most recent financial statements reflecting such
amounts, exceed by more than $50,000 the fair market value of the assets of all
such underfunded Plans.


 


28





















 


Section 4.11                            Ownership
of Property.


 


(a)                                  Borrower and each
Subsidiary have good title to, or valid leasehold interests in, all of their
real and personal property material to the operation of their businesses.


 


(b)                                 Borrower and each
Subsidiary own, or are licensed, or otherwise have the right, to use, all
patents, trademarks, service marks, tradenames, copyrights and other
intellectual property material to their businesses and the use thereof by
Borrower and any Subsidiary does not infringe on the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, would not have a Material Adverse Effect.


 


Section 4.12                            Disclosure.  Borrower has disclosed to Lender all
agreements, instruments, and corporate or other restrictions to which Borrower
or any of Subsidiary is subject, and all other matters known to any of them,
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.  None of
the reports, financial statements, certificates or other information furnished
by or on behalf of Borrower to Lender in connection with the negotiation of
this Agreement or any other Loan Document, or delivered hereunder or thereunder
(as modified or supplemented by any other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, taken as a whole, in light of the circumstances
under which they were made, not misleading.


 


Section 4.13                            Labor
Relations.  There are no strikes,
lockouts or other material labor disputes or grievances against Borrower or any
Subsidiary, or, to the knowledge of Borrower, threatened against or affecting
Borrower or any Subsidiary, and no significant unfair labor practice, charges
or grievances are pending against Borrower or any Subsidiary, or to the
knowledge of Borrower, threatened against any of them before any Governmental
Authority.  All payments due from
Borrower or any Subsidiary pursuant to the provisions of any collective
bargaining agreement have been paid or accrued as a liability on the books of
Borrower or any such Subsidiary, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


Section 4.14                            Subsidiaries.  As of the 2005 Closing Date, Borrower has no
Subsidiaries and as of any subsequent date, Borrower has no Subsidiaries other
than those for which Borrower has complied with the requirements of Section 5.10.


 


Section 4.15                            Projections.  The Projections fairly present Borrower’s
reasonable forecast of the most probable results of operations and changes in
cash flows for the periods covered thereby, based on the assumptions set forth
therein, which assumptions are reasonable based on historical experience and
presently known facts. Since the date of such Projections, there have been no
changes with respect to Borrower or its Subsidiaries which could reasonably be
expected to result in, singly or in the aggregate, a material discrepancy
between such Projections and Borrower’s actual results for the periods stated.


 


Section 4.16                            Material
Contracts.  There are no Material
Contracts other than the License Agreement, the Process Guarantee, and those
agreements and contracts disclosed to Lender pursuant to this Section 4.16.


 


29





















 


(a)                                  Management Contracts.  There are no agreements or contracts which
are material to the management of Borrower’s or any Subsidiary’s business other
than those listed on Schedule 4.16(a).


 


(b)                                 Supply Contracts.  There are no agreements or contracts which
are material to the provision or supply of inputs related to the operation of
Borrower’s or any Subsidiary’s business other than those listed on Schedule 4.16(b).


 


(c)                                  Off-Take Contracts.  There are no agreements or contracts which
are material to the sale or disposal of products or by-products produced by
Borrower or any Subsidiary other than those listed on Schedule 4.16(c).


 


(d)                                 Transportation Contracts.  There are no agreements or contracts related
to the provision of transportation or shipping services which are material to
the operation of Borrower’s or any Subsidiary’s business other than those
listed on Schedule 4.16(d).


 


(e)                                  Power Contracts.  There are no agreements or contracts related
to the provision of water, electricity, fuel oil, coal or other energy
resources which are material to the operation of Borrower’s or any Subsidiary’s
business other than those listed on Schedule 4.16(e).


 


Section 4.17                            Permits.  Each Permit is listed on Schedule 4.17.


 


ARTICLE V.


 


AFFIRMATIVE COVENANTS


 


Borrower covenants and agrees that until the
Commitments are permanently terminated and the principal of and interest on all
Loans and fees are indefeasibly paid:


 


Section 5.01                            Financial
Statements and Other Information. 
The Borrower will deliver to Lender:


 


(a)                                  as soon as available
and in any event (i) within 120 days after the end of each fiscal year of
Borrower, a copy of the annual audited report for such fiscal year for Borrower
and its Subsidiaries, containing a combined and combining balance sheet of
Borrower and its Subsidiaries as of the end of such fiscal year and the related
combined and combining statements of income, owners’ equity and cash flows
(together with all footnotes thereto) of Borrower and its Subsidiaries for such
fiscal year, (ii) setting forth in comparative form the figures for the
previous fiscal year, all in reasonable detail and reported on by Christianson &
Associates, PLLP, Willmar, Minnesota, or other independent public accountants
acceptable to Lender (without a “going concern” or like qualification,
exception or explanation and without any qualification or exception as to scope
of such audit) to the effect that such financial statements present fairly in
all material respects the financial condition and the results of operations of
Borrower and its Subsidiaries, for such fiscal year on a combined basis in
accordance with GAAP and that the examination by such accountants in connection
with such combined financial statements has been made in accordance with GAAP;


 


30





















 


(b)                                 as soon as available
and in any event within 45 days after the end of each calendar quarter, an
unaudited combined balance sheet of Borrower and its Subsidiaries as of the end
of such calendar quarter and the related unaudited combined statements of
income, stockholder’s equity and cash flow of Borrower and its Subsidiaries for
such calendar quarter and the then elapsed portion of such fiscal year, setting
forth in each case in comparative form the figures for the corresponding quarter
and the corresponding portion of Borrower’s previous fiscal year, all certified
by an appropriate Responsible Officer of Borrower as presenting fairly in all
material respects the financial condition and results of operations of Borrower
and its Subsidiaries on a combined basis in accordance with GAAP, subject to
normal year-end audit adjustments and the absence of footnotes;


 


(c)                                  concurrently with the
delivery of the financial statements referred to in clauses (a) and (b) above,
a certificate of a Responsible Officer, (i) certifying as to whether there
exists a Default or Event of Default on the date of such certificate, and if a
Default or an Event of Default then exists, specifying the details thereof and
the action which Borrower has taken or proposes to take with respect thereto, (ii) 
setting forth in reasonable detail calculations demonstrating compliance with Article VI
and (iii) stating whether any change in GAAP or the application
thereof has occurred since the date of Borrower’s audited financial statements
referred to in Section 4.04 and, if any change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;


 


(d)                                 concurrently with the
delivery of the financial statements referred to in clause (a) above,
a certificate of the accounting firm that reported on such financial statements
stating whether they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event of Default
(which certificate may be limited to the extent required by accounting rules or
guidelines);


 


(e)                                  promptly after the
same become available, copies of all periodic and other reports, and other
materials distributed by Borrower to its members generally, or to any
Governmental Authority or national securities exchange, as applicable; and


 


(f)                                    promptly following
any request therefor, such other information regarding the results of
operations, business affairs and financial condition of Borrower or any
Subsidiary as Lender may reasonably request.


 


Section 5.02                            Notices
of Material Events. Borrower will furnish to Lender prompt written
notice of the following:


 


(a)                                  the occurrence of any
Default or Event of Default;


 


(b)                                 the filing or
commencement of any action, suit or proceeding by or before any arbitrator or
Governmental Authority against or, to the knowledge of Borrower, affecting
Borrower or any Subsidiary which, if adversely determined, could reasonably be
expected to result in a Material Adverse Effect;


 


(c)                                  the occurrence of any
event or any other development by which Borrower or any Subsidiary (i) fails
to comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law,


 


31





















 


(ii) becomes subject to any Environmental Liability, (iii) receives
notice of any claim with respect to any Environmental Liability, or (iv) becomes
aware of any basis for any Environmental Liability and in each of the preceding
clauses, which individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect;


 


(d)                                 the occurrence of any
ERISA Event that alone, or together with any other ERISA Events that have
occurred, could reasonably be expected to result in liability of Borrower and
its Subsidiaries in an aggregate amount exceeding $100,000; and


 


(e)                                  any other development
that results in, or could reasonably be expected to result in, a Material
Adverse Effect.


 


Each notice delivered under this Section shall
be accompanied by a written statement of a Responsible Officer setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.


 


Section 5.03                            Existence;
Conduct of Business.  Borrower
will, and will cause each Subsidiary to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently
conducted or such other businesses that are reasonably related thereto.


 


Section 5.04                            Compliance
with Laws, Etc.  Borrower will,
and will cause each Subsidiary to, comply with all laws, rules, regulations and
requirements of any Governmental Authority applicable to its properties, except
where the failure to do so, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.


 


Section 5.05                            Payment
of Obligations.  Borrower will,
and will cause each Subsidiary to, pay and discharge at or before maturity, all
of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b) Borrower
or such Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP and (c) the failure to make payment
pending such contest could not reasonably be expected to result in a Material
Adverse Effect.


 


Section 5.06                            Books
and Records.  Borrower will, and
will cause each Subsidiary to, keep proper books
of record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities to the
extent necessary to prepare the combined financial statements of Borrower in
conformity with GAAP.


 


Section 5.07                            Visitation,
Inspection, Audit, Etc.


 


(a)                                  Borrower will, and
will cause each Subsidiary to, permit any representative of Lender to visit and
inspect its properties, to conduct audits of the Collateral (including without
limitation all Accounts and Inventory and all records relating thereto), to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its


 


32





















 


affairs, finances and accounts with any of its officers and with its
independent certified public accountants, all at such reasonable times and as
often as Lender, may reasonably request after reasonable prior notice to Borrower;
provided, if a Default or an Event of Default has occurred and is
continuing, no prior notice shall be required. 
All reasonable expenses incurred by Lender in connection with any such
visit, inspection, audit, examination and discussions shall be borne by
Borrower.


 


(b)                                 Borrower will, and
will cause each Subsidiary to, deliver to Lender such appraisals of the Real
Estate and other fixed assets of Borrower as Lender may reasonably request at
any time and from time to time, such appraisals to be conducted by an
appraiser, and in form and substance, reasonably satisfactory to Lender, in
each case conducted at the expense of Borrower if Lender requests such
appraisal in connection with a request for an accommodation, waiver or other
credit action by Borrower.


 


Section 5.08                            Maintenance
of Properties; Insurance. 
Borrower will, and will cause each Subsidiary to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear except where the failure to do so,
either individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect and (b) maintain with financially
sound and reputable insurance companies, insurance with respect to its
properties and business, and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by companies in
the same or similar businesses operating in the same or similar locations.


 


Section 5.09                            Use
of Proceeds. Borrower will use the proceeds of 2005 Term Loan to
finance certain Capital Expenditures as set forth in Schedule 2.06
of this Agreement.   No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate Regulation T, U or X of the Board.


 


Section 5.10                            Subsidiaries.  If any Subsidiary is acquired or formed after
the 2005 Closing Date, Borrower will, within ten (10) business days after
such Subsidiary is acquired or formed, notify Lender and will cause such Subsidiary
to execute a guarantee of the Obligations, a joinder to the Security Agreement,
and a joinder to such other Security Documents as Lender shall require, each in
form and substance satisfactory to Lender, and will cause such Subsidiary to
deliver simultaneously therewith similar documents applicable to such
Subsidiary required under Section 3.01 as requested by Lender.


 


Section 5.11                            Assignment
of Material Contracts.  Borrower
shall notify Lender of any Material Contract promptly upon entering into the same.  Borrower agrees to promptly execute and
deliver to Lender such Collateral Assignments and take such other actions as
Lender may reasonably request to perfect Lender’s security interest in Borrower’s
rights under such Material Contracts. 
Borrower authorizes Lender to file such Uniform Commercial Code
financing statements (and amendments to the same) and continuation statements
as Lender may deem necessary or appropriate from time to time to perfect Lender’s
security interest in such Material Contracts.


 


Section 5.12                            Food
Security Act Compliance.  If
Borrower acquires any Collateral which may have constituted Farm Products in
the possession of the seller or supplier thereof,


 


33





















 


Borrower shall, at its own expense, use its
best efforts to take such steps to insure that all Liens (except the Liens
granted pursuant hereto) in such acquired Collateral are terminated or
released, including, without limitation, in the case of such Farm Products
produced in a state which has established a Central Filing System (as defined
in the Food Security Act), registering with the Secretary of State of such
state (or such other party or office designated by such state) and otherwise
take such reasonably actions necessary, as prescribed by the Food Security Act,
to purchase Farm Products free of Liens (except the Liens granted pursuant
hereto); provided, that Borrower may contest and need not obtain the
release or termination of any Lien asserted by any creditor of any seller of
such Farm Products, so long as it shall be contesting the same by proper
proceedings and maintain appropriate accruals and reserves therefor in
accordance with the GAAP.  Upon Lender’s
request, Borrower agrees to forward to Lender promptly after receipt copies of
all notices of Liens and master lists of Effective Financing Statements
delivered to Borrower pursuant to the Food Security Act, which notices and/or
lists pertain to any of the Collateral. 
Upon Lender’s request, Borrower agrees to provide Lender with the names
of Persons who supply Borrower with such Farm Products and such other
information as Lender may reasonably request with respect to such Persons.


 


ARTICLE VI.


 


FINANCIAL COVENANTS


 


Borrower covenants and agrees that until the
Commitments are permanently terminated and the principal of and interest on all
Loans and fees are indefeasibly paid:


 


Section 6.01                            Fixed
Charge Coverage Ratio.  Borrower
will maintain a Fixed Charge Coverage Ratio
of not less than 1.15:1.00 tested annually at fiscal year end.  When an Owner’s Equity Ratio of 60% and
Working Capital of $6,000,000 is reached and maintained, then the minimum Fixed
Charge Coverage Ratio shall be maintained at 1.00:1.00.  Should the Owner’s Equity Ratio decline below
60% or Working Capital decline below $6,000,000 the minimum Fixed Charge
Coverage Ratio of 1.15:1.00 shall be reinstated.


 


Section 6.02                            Owner’s
Equity Ratio.  Borrower must
maintain an Owner’s Equity Ratio of at least (a) 40% on December 31,
2004, (b) 42% on December 31, 2005, (c) 44% on December 31,
2006, (d) 46% on December 31, 2007, (e) 48% on December 31,
2008, and (f) 50% on December 31, 2009, and at all times thereafter.


 


Section 6.03                            Capital
Expenditures.  In Borrower’s
fiscal year 2005, Borrower may finance certain Capital Expenditures as set
forth in Schedule 2.06 in an amount not to exceed $6,000,000
without Lender’s prior written approval. 
Borrower will not make Capital Expenditures in excess of $750,000 during
any fiscal year period following December 31, 2005, without Lender’s prior
written approval.


 


Section 6.04                            Current
Ratio.  Borrower will maintain a
ratio of current assets to current liabilities of not less than 1.2:1.  For purposes of this Section 6.04,
the current ratio calculation includes the un-advanced portion of the Revolving
Commitment other than amounts due under the Amended and Restated Revolving
Credit Note within 12 months following the date of determination.


 


34





















 


Section 6.05                            Working
Capital.  Borrower will maintain
working capital in an amount of not less than $5,000,000.  For purposes of this Section 6.05,
working capital includes the un-advanced portion of the Revolving Commitment
other than amounts due under the Amended and Restated Revolving Credit Note
within 12 months following the date of determination.


 


Compliance with the financial covenants set
forth in this Article VI shall be determined based on financial
statements dated as of the close of business on the last day of the quarter for
the related period.


 


ARTICLE VII.


 


NEGATIVE COVENANTS


 


Borrower covenants and agrees that until the
Commitments are permanently terminated and the principal of and interest on all
Loans and fees are indefeasibly paid:


 


Section 7.01                            Indebtedness.
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Indebtedness, except:


 


(a)                                  Indebtedness created
pursuant to the Loan Documents;


 


(b)                                 Indebtedness
acceptable to Lender in its sole discretion and existing on the date hereof and
set forth on Schedule 7.01(b) and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (immediately prior to giving effect to such extension,
renewal or replacement) or shorten the maturity or the weighted average life
thereof;


 


(c)                                  Indebtedness of
Borrower incurred to finance the acquisition, construction or improvement of
any fixed or capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such assets
secured by a Lien on any such assets prior to the acquisition thereof; provided,
that such Indebtedness is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvements or
extensions, renewals, and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or
the weighted average life thereof; provided further, that the aggregate
principal amount of such Indebtedness does not exceed $100,000 at any time
outstanding.


 


Section 7.02                            Negative
Pledge. Borrower will not, and will not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Lien on any of its assets or
property now owned or hereafter acquired, except:


 


(a)                                  Liens created in
favor of Lender pursuant to the Loan Documents;


 


(b)                                 Permitted
Encumbrances;


 


35





















 


(c)                                  Liens on any property
or asset of Borrower existing on the 2005 Closing Date set forth on Schedule 7.02(c);
provided, that such Lien shall not apply to any other property or asset
of Borrower;


 


(d)                                 purchase money Liens
upon or in any fixed or capital assets to secure the purchase price or the cost
of construction or improvement of such fixed or capital assets or to secure
Indebtedness incurred solely for the purpose of financing the acquisition,
construction or improvement of such fixed or capital assets (including Liens
securing any Capital Lease
Obligations); provided, that (i) such Lien secures Indebtedness
permitted by Section 7.01(c), (ii) such Lien attaches
to such asset concurrently or within 90 days after the acquisition, improvement
or completion of the construction thereof; (iii) such Lien does not extend
to any other asset; and (iv) the Indebtedness secured thereby does not
exceed the cost of acquiring, constructing or improving such fixed or capital
assets;


 


(e)                                  any Lien (i) existing
on any asset of any Person at the time such Person becomes a Subsidiary, (ii) existing
on any asset of any Person at the time such Person is merged with or into
Borrower or any Subsidiary or (iii) existing on any asset prior to the
acquisition thereof by Borrower or any Subsidiary; provided, that any
such Lien was not created in the contemplation of any of the foregoing and any
such Lien secures only those obligations which it secures on the date that such
Person becomes a Subsidiary or the date of such merger or the date of such
acquisition; and


 


(f)                                    extensions,
renewals, or replacements of any Lien referred to in paragraphs (a) through
(d) of this Section; provided, that the principal amount of the
Indebtedness secured thereby is not increased and that any such extension,
renewal or replacement is limited to the assets originally encumbered thereby.


 


Section 7.03                            Fundamental
Changes. Borrower will not, and will not permit any Subsidiary to,
engage in any business other than businesses of the type conducted by Borrower
and its Subsidiaries on the date hereof and businesses reasonably related
thereto.


 


Section 7.04                            Investments,
Loans, Etc. Borrower will not, and will not permit any Subsidiary to,
purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any common stock,
evidence of indebtedness or other securities (including any option, warrant, or
other right to acquire any of the foregoing) of, make or permit to exist any loans
or advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person (all of the foregoing
being collectively called “Investments”),
or purchase or otherwise acquire (in one transaction or a series of
transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except:


 


(a)                                  Investments (other
than Permitted Investments) existing on the date hereof and set forth on Schedule 7.04(a);


 


(b)                                 Permitted Investments
in which Lender maintains a first priority, perfected security interest
therein;


 


36





















 


(c)                                  loans or advances to
employees, officers or directors of Borrower or any Subsidiary in the ordinary
course of business for travel, relocation and related expenses; provided,
however, that the aggregate amount of all such loans and advances does not
exceed $100,000 at any time;


 


(d)                                 Investments in other
business organizations whose primary business is the production of ethanol and
byproducts related thereto and in which Lender maintains a first priority,
perfected security interest in such Investments; provided, at the time any such Investment is made, the
aggregate book value of the sum of all such Investments may not, without the
prior written consent of Lender, exceed five percent (5.0%) of the Net Worth of
Borrower;


 


(e)                                  other Investments
which in the aggregate do not exceed $100,000 in any fiscal year of Borrower.


 


Section 7.05                            Restricted
Payments. Other than dividends or distributions payable by Borrower
solely in units of any class of its membership interests, Borrower will not
declare or make, or agree to pay or make, directly or indirectly, any dividend
or distribution on any class of its membership interests, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, retirement, defeasance or other acquisition of, any
membership interest, or any options, warrants, or other rights to purchase any
of the foregoing, whether now or hereafter outstanding, or any payment in
respect of Indebtedness subordinated to the Obligations (each such dividend,
distribution, set aside or payment, a “Restricted Payment”), except Borrower
may, so long as no Default or Event of Default has occurred and is then
continuing or would result from such payment, declare and pay distributions to
its members in respect of their membership interests as follows:


 


(a)                                  Borrower may
distribute an amount of up to 75% of Net Income; and


 


(b)                                 So
long as Borrower achieves and maintains an Owner’s Equity Ratio that exceeds
60% and working capital that exceeds $6,000,000 (in each case as reported on
audited fiscal year end financial statements), Borrower may distribute up to
100% of Net Income; provided, the limitations set forth in (a) above will
be reinstated if Borrower’s Owner’s Equity Ratio falls below 60% or working
capital falls below $6,000,000 at any quarterly reporting period.


 


(c)                                  Distributions for any
prior fiscal year must be declared by Borrower’s board of managers within 120
days of such fiscal year end or allowance hereunder to declare and pay the
distribution for such prior fiscal year will be deemed waived by Borrower and
disallowed.  Distributions for any
current fiscal year may be declared and paid by Borrower’s board of managers at
any time during such fiscal year. 
Minutes of Borrower’s board of managers’ meeting, or a writing in lieu
of meeting signed by all members of the board of managers, for which any distribution
is declared must, at a minimum, state the fiscal year period for which any
distribution will be made.


 


Such distributions may not be paid until
after confirmation of Net Income in Borrower’s financial statements submitted
pursuant to Section 5.01(a). 
In addition, notwithstanding the


 


37





















 


foregoing, Borrower may make payments on subordinate Indebtedness to
the extent such payments are allowed under an intercreditor agreement between
Lender and the other lender or creditor to which such payments are made.


 


Section 7.06                            Sale
of Assets. Borrower will not, and will not permit any Subsidiary to,
convey, sell, lease, assign, transfer or otherwise dispose of, any of its
assets, business or property, whether now owned or hereafter acquired, or, in
the case of any Subsidiary, issue or sell any shares of such Subsidiary’s
common stock to any Person other than Borrower (or to qualify directors if
required by applicable law), except (a) the sale or other disposition for
fair market value of obsolete or worn out property or other property not
necessary for operations disposed of in the ordinary course of business; and (b) the
sale of inventory and Permitted Investments in the ordinary course of business.


 


Section 7.07                            Transactions
with Affiliates. Borrower will not, and will not permit any Subsidiary
to, sell, lease or otherwise transfer any property or assets to, or purchase,
lease or otherwise acquire any property or assets from, or otherwise engage in
any other transactions with, any of its Affiliates, except (a) in the
ordinary course of business at prices and on terms and conditions not less
favorable to Borrower or such Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties in comparable transactions, (b) transactions
between Borrower and its wholly owned Subsidiaries not involving any other
Affiliates and (c) any Restricted Payment permitted by Section 7.05.


 


Section 7.08                            Restrictive
Agreements. Borrower will not, and will not permit any Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the ability of
Borrower or any Subsidiary to create, incur or permit any Lien upon any of its
assets or properties, whether now owned or hereafter acquired, or (b) the
ability of any Subsidiary to pay dividends or other distributions with
respect to its common stock, to make or repay loans or advances to Borrower or
any other Subsidiary, to Guarantee Indebtedness of Borrower or any other
Subsidiary or to transfer any of its property or assets to Borrower or any
Subsidiary; provided, that (i) the foregoing shall not apply to
restrictions or conditions imposed by law or by this Agreement or any
other Loan Document, (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is sold and such sale is permitted hereunder, (iii) clause
(a) shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions and conditions apply only to the property or assets securing such
Indebtedness, and (iv) clause (a) shall not apply to customary
provisions in leases restricting the assignment thereof.


 


Section 7.09                            Sale
and Leaseback Transactions. 
Borrower will not, and will not permit any Subsidiary to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned
or hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred.


 


Section 7.10                            Lease
Obligations. Borrower will not, and will not permit any Subsidiary to,
create or suffer to exist any obligations for the payment under operating leases
or agreements


 


38





















 


to lease (but excluding any obligations under
leases required to be classified as capital leases under GAAP) having a term of
five years or more which would cause the direct or contingent liabilities of
Borrower and its Subsidiaries under such leases or agreements to lease, on a
consolidated basis, to exceed $200,000 in the aggregate in any year.


 


Section 7.11                            Hedging
Agreements. Borrower will not, and will not permit any Subsidiary to, enter
into any Hedging Agreement, other than Hedging Agreements entered into in the
ordinary course of business to hedge or mitigate risks to which Borrower or any
Subsidiary is exposed in the conduct of its business or the management of its
liabilities.


 


Section 7.12                            Amendment
to Material Documents.  Borrower
will not, and will not permit any Subsidiary to, amend, modify or waive any of
its rights under (i) its certificate of organization, operating agreement,
bylaws or other organizational documents, or (ii) any Material Contract.


 


Section 7.13                            Accounting
Changes. Borrower will not, and will not permit any Subsidiary to, make
any significant change in accounting treatment or reporting practices, except
as required by GAAP, or change the fiscal year of Borrower or any Subsidiary,
except to change the fiscal year of a Subsidiary to conform its fiscal year to
that of Borrower.


 


Section 7.14                            Deposit
and Investment Accounts. 
Borrower will not, and will not permit any Subsidiary to, maintain,
deposit or invest funds into any Deposit Account or Investment Account other
than those listed on Schedule 7.14 without the prior written
consent of Lender.


 


ARTICLE VIII.


 


EVENTS OF DEFAULT


 


Section 8.01                            Events
of Default.  If any of the
following events (each an “Event
of Default”) shall occur:


 


(a)                                  Borrower shall fail
to pay any principal of any Loan when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment or
otherwise and such failure shall continue unremedied for a period of ten (10) days;
or


 


(b)                                 Borrower shall fail to
pay any interest on any Loan or any fee or any other amount (other than an
amount payable under clause (a) of this Article) payable under this
Agreement or any other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of ten (10) days;
or


 


(c)                                  any representation or
warranty made or deemed made by or on behalf of Borrower in or in connection
with this Agreement or any other Loan Document (including the Schedules
attached thereto) and any amendments or modifications hereof or waivers
hereunder, or in any certificate, report, financial statement or other document
submitted to Lender by Borrower or any representative of Borrower pursuant to
or in connection with this Agreement or any other Loan Document shall prove to
be incorrect when made or deemed made or submitted; or


 


39





















 


(d)                                 Borrower shall fail to
observe or perform any covenant or agreement contained in Sections 5.01,
5.02, or 5.03 (with respect to Borrower’ existence) or Articles
VI or VII; or


 


(e)                                  Borrower shall fail
to observe or perform any covenant or agreement contained in this Agreement
(other than those referred to in clauses (a), (b) and (d) above) or
in any other Loan Document, and such failure shall remain unremedied for
30 days after the earlier of (i) any officer of Borrower becomes
aware of such failure, or (ii)  notice thereof shall have been given to
Borrower by Lender; or


 


(f)                                    any Default or
Event of Default (after giving effect to any grace period) shall have occurred
and be continuing under any Loan Document or Material Contract; or


 


(g)                                 Borrower or any
Subsidiary (whether as primary obligor or as guarantor or other surety) shall
fail to pay any principal of or premium or interest on any Material
Indebtedness that is outstanding, when and as the same shall become due and
payable (whether at scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument evidencing such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or permit the
acceleration of, the maturity of such Indebtedness; or any such Indebtedness
shall be declared to be due and payable; or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or redemption),
purchased or defeased, or any offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, in each case prior to the stated
maturity thereof; or


 


(h)                                 Borrower or any
Subsidiary shall (i) commence a voluntary case or other proceeding or file
any petition seeking liquidation, reorganization or other relief under any federal,
state or foreign bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its
property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (i) of
this Section 8.01(h), (iii) apply for or consent to the
appointment of a custodian, trustee, receiver, liquidation or other similar
official for Borrower or any such Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or


 


(i)                                     an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking
(i) liquidation, reorganization or other relief in respect of Borrower or
any Subsidiary or its debts, or any substantial part of its assets,  under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the
appointment of a custodian, trustee, receiver, liquidator or other similar
official for Borrower or any Subsidiary or for a substantial part of its
assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or


 


40





















 


(j)                                     Borrower or any
Subsidiary shall become unable to pay, shall admit in writing its inability to
pay, or shall fail to pay, its debts as they become due; or


 


(k)                                  an ERISA Event shall have
occurred that, in the opinion of the Lender, when taken together with other
ERISA Events that have occurred, could reasonably be expected to result in
liability to Borrower and its Subsidiaries in an aggregate amount exceeding
$100,000; or


 


(l)                                     any judgment or order for the payment of money
in excess of $100,000 in the aggregate shall be rendered against Borrower or
any Subsidiary, and either (i) such judgment or order is final and
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order, or (ii) there shall be a period of 30 consecutive
days during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; or


 


(m)                               any non-monetary judgment or order shall be rendered against Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect,
and there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or


 


(n)                                 a Change in Control
shall occur or exist; or


 


(o)                                 any event which could
reasonably be expected to result in a Material Adverse Effect shall occur and
be continuing;


 


then, and in every such event (other than an
event described in clause (h) or (i) of this Section) and at any time
thereafter during the continuance of such event, Lender may, by notice to
Borrower, take any or all of the following actions, at the same or different
times:  (i) terminate the Commitments, whereupon
the Commitments shall terminate immediately; (ii) declare the principal of
and any accrued interest on the Loans, and all other Obligations owing
hereunder, to be due and payable, whereupon the same shall become due and
payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by Borrower and (iii) exercise
all remedies provided for in any other Loan Document or as otherwise provided
by law; and that, if an Event of Default specified in either clause (h) or
(i) shall occur, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest
thereon, and all fees, and all other Obligations shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by Borrower.


 


ARTICLE IX.


 


MISCELLANEOUS


 


Section 9.01                            Notices.


 


Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications to any party herein to be effective shall be in


 


41





















 


writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:


 


	
  To Borrower:

  	
   

  	
  Great Plains Ethanol, LLC

  
	
   

  	
   

  	
  c/o Broin and Associates, Inc.

  
	
   

  	
   

  	
  Attention: Jeffrey S. Broin

  
	
   

  	
   

  	
  2209 East 57th Street North

  
	
   

  	
   

  	
  Sioux Falls, SD 57104

  
	
   

  	
   

  	
  Facsimile No. (605)
  965-2203

  
	
   

  	
   

  	
   

  
	
  With a Copy to:

  	
   

  	
  James M. Wiederrich, Esq.

  
	
   

  	
   

  	
  Woods, Fuller, Shultz & Smith P.C.

  
	
   

  	
   

  	
  300 South Phillips Avenue

  
	
   

  	
   

  	
  Post Office Box 5027

  
	
   

  	
   

  	
  Sioux Falls, South Dakota 57117

  
	
   

  	
   

  	
  Facsimile No. (605)
  339-3357

  
	
   

  	
   

  	
   

  
	
  To the Lender:

  	
   

  	
  AgCountry Farm Credit Services, FLCA

  
	
   

  	
   

  	
  Attention: Randolph L. Aberle

  
	
   

  	
   

  	
  Post Office Box 6020

  
	
   

  	
   

  	
  1749 38th Street Southwest

  
	
   

  	
   

  	
  Fargo, North Dakota 58108-6020

  
	
   

  	
   

  	
  Facsimile No. (701)
  282-9618

  



 


Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto.  All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mails or if
delivered, upon delivery; provided, that notices delivered to Lender shall not
be effective until actually received by such Person at its address specified in
this Section 9.01.


 


(a)                                  Any agreement of
Lender herein to receive certain notices by telephone or facsimile is solely
for the convenience and at the request of Borrower.  Lender shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by Borrower to
give such notice and Lender shall not have any liability to Borrower or other
Person on account of any action taken or not taken by Lender in reliance upon
such telephonic or facsimile notice.  The
obligation of Borrower to repay the Loans and all other Obligations hereunder
shall not be affected in any way or to any extent by any failure of Lender to
receive written confirmation of any telephonic or facsimile notice or the
receipt by Lender of a confirmation which is at variance with the terms
understood by Lender to be contained in any such telephonic or facsimile
notice.


 


Section 9.02                            Waiver;
Amendments.


 


(a)                                  No failure or delay
by Lender in exercising any right or power hereunder or any other Loan
Document, and no course of dealing between Borrower and Lender, shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power or


 


42





















 


any abandonment or discontinuance of steps to enforce such right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power hereunder or thereunder. 
The rights and remedies of Lender hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies
provided by law. No waiver of any provision of this Agreement or any other Loan
Document or consent to any departure by Borrower therefrom shall in any event
be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan shall not be construed as a
waiver of any Default or Event of Default, regardless of whether Lender may
have had notice or knowledge of such Default or Event of Default at the time.


 


(b)                                 No amendment or waiver
of any provision of this Agreement or the other Loan Documents, nor consent to
any departure by Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by Borrower and Lender and then such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given.


 


Section 9.03                            Expenses;
Indemnification.


 


(a)                                  The Borrower shall
pay (i) all reasonable, out-of-pocket costs and expenses of Lender,
including the reasonable fees, charges and disbursements of counsel for Lender
and in connection with the preparation and administration of the Loan Documents
and any amendments, modifications or waivers thereof (whether or not the
transactions contemplated in this Agreement or any other Loan Document shall be
consummated), and (ii) all reasonable out-of-pocket costs and expenses
(including, without limitation, the reasonable fees, charges and disbursements
of outside counsel and the allocated cost of inside counsel) incurred by Lender
in connection with the enforcement or protection of its rights in connection
with this Agreement, including its rights under this Section, or in connection
with the Loans made hereunder, including all such reasonable out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans.  Nothing in this Section 9.03
shall be deemed to obligate Borrower to pay costs of any Participant in any
Loan.


 


(b)                                 The Borrower shall
indemnify Lender against, and hold Lender harmless from, any and all costs,
losses, liabilities, claims, damages and related expenses, including the fees,
charges and disbursements of any counsel for Lender, which may be incurred by
or asserted against Lender arising out of, in connection with or as a result of
(i) the execution or delivery of this Agreement or any other agreement or
instrument contemplated hereby, the performance by the parties hereto of their
respective obligations hereunder or the consummation of any of the transactions
contemplated hereby, (ii) any Loan or any actual or proposed use of the
proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned by Borrower or any Subsidiary
or any Environmental Liability related in any way to Borrower or any Subsidiary or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and regardless
of whether any Lender is a party thereto; provided,  that
Borrower shall not be obligated to indemnify Lender for any of the foregoing
arising out of


 


43





















 


Lender’s gross negligence or willful misconduct as determined by a
court of competent jurisdiction in a final and nonappealable judgment.


 


(c)                                  The Borrower shall
pay, and hold Lender harmless from and against, any and all present and future
stamp, documentary, and other similar taxes with respect to this Agreement and
any other Loan Documents, any collateral described therein, or any payments due
thereunder, and save Lender harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to pay such taxes.


 


(d)                                 To the extent
permitted by applicable law, Borrower shall not assert, and Borrower hereby
waives, any claim against Lender, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to actual or direct
damages) arising out of, in connection with or as a result of, this Agreement
or any agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or the use of proceeds thereof.


 


(e)                                  All amounts due under
this Section 9.03 shall be payable promptly after written demand
therefor.


 


Section 9.04                            Successors
and Assigns.


 


(a)                                  The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, except that Borrower may
not assign or transfer any of its rights hereunder without the prior written
consent of Lender (and any attempted assignment or transfer by Borrower without
such consent shall be null and void).


 


(b)                                 Lender may at any time
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement and the other Loan Documents (including all or a portion
of its Commitment and the Loans at the time owing to it).


 


(c)                                  Lender may at any
time, without the consent of Borrower, sell participations to one or more banks
or other entities (a “Participant”)
in all or a portion of Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it); provided, that (i) Lender ‘s obligations
under this Agreement shall remain unchanged, (ii) Borrower shall continue
to deal solely and directly with Lender in connection with Lender’s rights and
obligations under this Agreement and the other Loan Documents.  Borrower agrees that each Participant shall
be entitled to the benefits of Section 2.13 to the same extent as
if it were the Lender hereunder and had acquired its interest by assignment
pursuant to paragraph (b).  To the
extent permitted by law, Borrower agrees that each Participant shall be
entitled to the benefits of Section 2.14 as though it were the
Lender.


 


(d)                                 Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement and the Notes without complying with this Section; provided,
that no such pledge or assignment shall release Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for Lender as
a party hereto.


 


44





















 


Section 9.05                            Governing
Law; Jurisdiction; Consent to Service of Process.


 


(a)                                  This Agreement and
the other Loan Documents shall be construed in accordance with and be governed
by the law (without giving effect to the conflict of law principles thereof) of
the State of North Dakota.


 


(b)                                 Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the
non-exclusive jurisdiction of the United States District Court of the District
of North Dakota, and of any state court of the State of North Dakota located in
Cass County and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document or the transactions contemplated hereby or thereby, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such North Dakota state
court or, to the extent permitted by applicable law, such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
any other Loan Document against Borrower or its properties in the courts of any
jurisdiction.


 


(c)                                  Borrower irrevocably
and unconditionally waives any objection which it may now or hereafter
have to the laying of venue of any such suit, action or proceeding described in
paragraph (b) of this Section and brought in any court referred to in
paragraph (b) of this Section. Each of the parties hereto irrevocably
waives, to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.


 


Section 9.06                            WAIVER
OF JURY TRIAL.  EACH PARTY HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.


 


Section 9.07                            Right
of Setoff.  In addition to any
rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, Lender shall have the right, at any time or from
time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to Borrowers, any such notice being expressly
waived by Borrower


 


45





















 


to the extent permitted by applicable law, to
set off and apply against all deposits (general or special, time or demand,
provisional or final) of Borrower at any time held or other obligations at any
time owing by Lender to or for the credit or the account of Borrower against
any and all Obligations held by Lender, irrespective of whether Lender shall
have made demand hereunder and although such Obligations may be unmatured.  Lenders agree promptly to notify the Lender
and Borrower after any such set-off and any application made by Lender; provided,
that the failure to give such notice shall not affect the validity of such
set-off and application.


 


Section 9.08                            Counterparts;
Integration.  This Agreement may
be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the other Loan Documents, and any separate letter agreement(s)
relating to any fees payable to the Lender constitute the entire agreement
among the parties hereto and thereto regarding the subject matters hereof and
thereof and supersede all prior agreements and understandings, oral or written,
regarding such subject matters.


 


Section 9.09                            Survival.  All covenants, agreements, representations
and warranties made by Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by Lender and shall survive the execution
and delivery of this Agreement and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated.  The provisions of
Sections 2.13, 2.14, and 9.03 shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, and the Commitments or the
termination of this Agreement or any provision hereof.  All representations and warranties made
herein, in the certificates, reports, notices, and other documents delivered
pursuant to this Agreement shall survive the execution and delivery of this
Agreement and the other Loan Documents, and the making of the Loans.


 


Section 9.10                            Severability.  Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such
illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


Section 9.11                            Confidentiality.
Lender agrees to take normal and reasonable precautions to maintain the
confidentiality of any information designated in writing as confidential and
provided to it by Borrower or any Subsidiary, except that such information may
be disclosed (i) to any Affiliate, participant or advisor of Lender,
including without limitation accountants, legal counsel and other advisors, provided
that Lender shall have taken reasonable steps to assure that such Affiliates,
participants, and advisors will maintain such information in confidence to the
same extent required of Lender hereunder, (ii) to the extent required by
applicable laws or


 


46





















 


regulations or by any subpoena or similar
legal process, (iii) to the extent requested by any regulatory agency or
authority, (iv) to the extent that such information becomes publicly
available other than as a result of a breach of this Section 9.11,
or which becomes available to Lender of any of the foregoing on a
nonconfidential basis from a source other than Borrower, (v) in connection
with the exercise of any remedy hereunder or any suit, action or proceeding
relating to this Agreement or the enforcement of rights hereunder, and (vi) subject
to provisions substantially similar to this Section 9.11, to any
actual or prospective assignee or Participant, or (vii) with the consent
of Borrower.  Any Person required to
maintain the confidentiality of any information as provided for in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.


 


Section 9.12                            Interest
Rate Limitation.  Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which may be
treated as interest on such Loan under applicable law (collectively, the “Charges”), shall
exceed the maximum lawful rate of interest (the “Maximum Rate”) which may be contracted
for, charged, taken, received or reserved by Lender in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would
have been payable in respect of such Loan but were not payable as a result of
the operation of this Section shall be cumulated and the interest and
Charges payable to Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Maximum Rate to the date of
repayment, shall have been received by Lender.


 


Section 9.13                            Termination.  Upon satisfaction of all of Borrower’s
obligations hereunder and the related documents and instruments, Lender shall (a) mark
the Notes “PAID” and return the same to Borrower, (b) release its security
interests and file appropriate documentations of the same, and (c) redeem
the Required Stock.


 


Section 9.14                            Other
Agreements.  This Amended and
Restated Credit Agreement supercedes all prior credit agreements.


 


[Signature Page Follows]


 


47





















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  GREAT PLAINS ETHANOL, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Darrin Ihnen

  	
   

  
	
   

  	
  Name:

  	
  Darrin Ihnen

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  LENDER:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AGCOUNTRY FARM CREDIT SERVICES, FLCA

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Randolph L. Aberle

  	
   

  
	
   

  	
  Name:

  	
  Randolph L. Aberle

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  



 


48





















 


EXHIBIT A


 


CONSTRUCTION
NOTE


 


 


	
  $32,500,000

  	
   

  	
  Fargo, North Dakota

  
	
   

  	
   

  	
  June 19, 2002

  



 


FOR VALUE RECEIVED, the undersigned, Great Plains
Ethanol, LLC, a South Dakota limited liability company (“Borrower”), hereby
promises to pay to AgCountry Farm Credit Services, FLCA (together with any
subsequent holder hereof, “Lender”) or its successors and
assigns, at Post Office Box 6020, 1749 38th Street Southwest, Fargo, North
Dakota 58108, (i) on the Maturity Date (as defined in the Credit Agreement
dated as of June 19, 2002 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”),
between Borrower and Lender, the lesser of the principal sum of Thirty Two
Million Five Hundred Thousand and No/100 Dollars ($32,500,000.00) and the
aggregate unpaid principal amount of the Construction Loans (as defined in the
Credit Agreement) made by Lender to Borrower pursuant to the Credit Agreement,
and (ii) on each date specified in the Credit Agreement prior to the
Maturity Date, the principal amount of the Construction Loans payable to Lender
on such date as specified therein, in lawful money of the United States of
America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on such dates
as provided in the Credit Agreement. In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, Borrower
further promises to pay all costs of collection, including the reasonable
attorneys’ fees of Lender.


 


Borrower promises to pay Default Interest (as
defined in the Credit Agreement), on demand, on the terms and conditions set
forth in the Credit Agreement.


 


All borrowings evidenced by this Construction Loan
Note and all payments and prepayments of the principal hereof and the date
thereof shall be recorded by Lender in its internal records; provided,
that the failure of Lender to make such a notation or any error in such
notation shall not affect the obligations of the Borrowers to make the payments
of principal and interest in accordance with the terms of this Construction
Loan Note and the Credit Agreement.


 


This Construction Loan Note is issued in connection
with, and is entitled to the benefits of, the Credit Agreement which, among
other things, contains provisions for the acceleration of the maturity hereof
upon the happening of certain events, and for the amendment or waiver of
certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified.


 


THIS CONSTRUCTION LOAN NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NORTH DAKOTA AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.


 


	
   

  	
  GREAT PLAINS ETHANOL, LLC

   

   

  
	
   

  	
  By:

  	
   

  	
  /s/ Darrin Ihnen

  	
   

  
	
   

  	
  Name:

  	
  Darrin Ihnen

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  



 


A-1





















 


EXHIBIT B


 


AMENDED
AND RESTATED REVOLVING CREDIT NOTE


 


	
  $8,000,000

  	
   

  	
  Fargo, North
  Dakota

  
	
   

  	
   

  	
  July 12,
  2005

  



 


FOR VALUE RECEIVED, the undersigned, Great Plains
Ethanol, LLC, a South Dakota limited liability company (“Borrower”), hereby
promises to pay to the order of AgCountry Farm Credit Services, FLCA (together
with any subsequent holder hereof, “Lender”) or its successors and
assigns, at Post Office Box 6020, 1749 38th Street Southwest, Fargo, North
Dakota 58108 on the Revolving Commitment Termination Date (as defined in the
Amended and Restated Credit Agreement between Borrower and Lender dated as of July 12,
2005, as the same may be amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”), the lesser
of the principal sum of $8,000,000 and the aggregate unpaid principal amount of
all Revolving Loans (as defined in the Credit Agreement) made by Lender to
Borrower pursuant to the Credit Agreement, in lawful money of the United States
of America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on such dates
as provided in the Credit Agreement.  In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, Borrower further promises to pay all costs of collection,
including the reasonable attorneys’ fees of Lender.


 


Borrower promises to pay Default Interest (as
defined in the Credit Agreement), on demand, on the terms and conditions set
forth in the Credit Agreement.


 


All borrowings evidenced by this Amended and
Restated Revolving Credit Note and all payments and prepayments of the
principal hereof and the date thereof shall be recorded by Lender in its
internal records; provided, that the failure of Lender to make such a
notation or any error in such notation shall not affect the obligations of
Borrower to make the payments of principal and interest in accordance with the
terms of this Amended and Restated Revolving Credit Note and the Credit
Agreement.


 


This Amended and Restated Revolving Credit Note is issued in connection
with, and is entitled to the benefits of, the Credit Agreement which, among
other things, contains provisions for the acceleration of the maturity hereof
upon the happening of certain events, for prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified.


 


THIS AMENDED AND RESTATED REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NORTH DAKOTA AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.


 


	
   

  	
  GREAT PLAINS ETHANOL, LLC

   

   

  
	
   

  	
  By:

  	
   

  	
  /s/ Darrin Ihnen

  	
   

  
	
   

  	
  Name:

  	
  Darrin Ihnen

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  



 


B-1





















 


EXHIBIT C


 


2005
TERM LOAN NOTE


 


	
  $5,000,000

  	
   

  	
  Fargo, North
  Dakota

  
	
   

  	
   

  	
  July 12,
  2005

  



 


FOR VALUE RECEIVED, the undersigned, Great Plains
Ethanol, LLC, a South Dakota limited liability company (“Borrower”), hereby
promises to pay to the order of AgCountry Farm Credit Services, FLCA (together
with any subsequent holder hereof, “Lender”) or its successors and
assigns, at Post Office Box 6020, 1749 38th Street Southwest, Fargo, North
Dakota 58108 on the 2005 Term Loan Commitment Termination Date (as defined in
the Amended and Restated Credit Agreement between Borrower and Lender dated as
of July 12, 2005, as the same may be amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), the lesser
of the principal sum of $5,000,000 and the aggregate unpaid principal amount of
all 2005 Term Loans (as defined in the Credit Agreement) made by Lender to Borrower
pursuant to the Credit Agreement, in lawful money of the United States of
America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on such dates
as provided in the Credit Agreement.  In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, Borrower further promises to pay all costs of collection,
including the reasonable attorneys’ fees of Lender.


 


Borrower promises to pay Default Interest (as
defined in the Credit Agreement), on demand, on the terms and conditions set
forth in the Credit Agreement.


 


All borrowings evidenced by this 2005 Term Loan Note
and all payments and prepayments of the principal hereof and the date thereof
shall be recorded by Lender in its internal records; provided, that the
failure of Lender to make such a notation or any error in such notation shall
not affect the obligations of Borrower to make the payments of principal and
interest in accordance with the terms of this 2005 Term Loan Note and the
Credit Agreement.


 


This 2005 Term Loan Note is issued in connection with, and is entitled
to the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified.


 


THIS 2005 TERM LOAN NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NORTH DAKOTA AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.


 


	
   

  	
  GREAT PLAINS ETHANOL, LLC

   

   

  
	
   

  	
  By:

  	
   

  	
  /s/ Darrin Ihnen

  	
   

  
	
   

  	
  Name:

  	
  Darrin Ihnen

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  



 


C-1





















 


EXHIBIT 2.04


 


REVOLVING
DRAW REQUEST


 


[Date]


 


AgCountry Farm Credit Services, FLCA


Post Office Box 6020


1749 38th Street Southwest


Fargo, North Dakota 58108


Attention: 
David Rupp


 


Dear Sir:


 


Reference is made to the Amended and Restated
Credit Agreement dated as of July       ,
2005 (as amended and in effect on the date hereof, the “Credit Agreement”),
between the undersigned, as Borrower, and AgCountry Farm Credit Services, FLCA
as Lender.  Terms defined in the Credit
Agreement are used herein with the same meanings.  This notice constitutes a Revolving Draw
Request, and Borrower hereby requests a Revolving Borrowing under the Credit
Agreement, and in that connection Borrower specifies the following information
with respect to the Revolving Borrowing requested hereby:


 


(A)                              Aggregate principal
amount of Revolving Borrowin (1):                                   


 


(B)                                Date of Revolving
Borrowing  (which is a Business Day):                                                   


 


(C)                                Location and number of
Borrower’s account to which proceeds of Revolving Borrowing are to be
disbursed:                                                                              


 


Borrower hereby represents and warrants that
the conditions specified in Section 3.02 of the Credit Agreement are
satisfied.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  GREAT PLAINS ETHANOL, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 










(1)                                  Not less than
$100,000 and an integral multiple of $100,000.


 


1





















 


EXHIBIT 2.05(c)


 


INTEREST
ELECTION


 


[Date]


 


AgCountry Farm Credit Services, FLCA


Post Office Box 6020


1749 38th Street Southwest


Fargo, North Dakota  58108


 


Attention:  David Rupp


 


Dear Sir:


 


Reference is made to the Amended and Restated
Credit Agreement dated as of July      , 2005 (as
amended and in effect on the date hereof, the “Credit Agreement”), between the
undersigned, as Borrower,  and AgCountry
Farm Credit Services, FLCA, as Lender. 
Terms defined in the Credit Agreement are used herein with the same
meanings.  This notice constitutes an
Interest Election pursuant to Section 2.05 of the Credit Agreement, and
Borrower hereby elects the [Term Variable Rate](1) [Three-Year Adjustable
Rate] [Five-Year Adjustable Rate] [Ten-Year Adjustable Rate] [Fixed Rate] for
application to $                          
in principal amount now outstanding under the Term Loan, and in that connection
Borrower specifies the following information with respect to the amount to be
converted or continued as requested hereby:


 


The effective date of election (which is a
Business Day):                                                 


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  GREAT PLAINS ETHANOL, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 










(1)  The Term Variable Rate may not be applied to the 2005
Term Loan pursuant to Section 2.06(b) of the Credit Agreement.


 


1





















 


EXHIBIT 2.06(c)


 


2005
TERM LOAN DRAW REQUEST


 


[Date]


 


AgCountry Farm Credit Services, FLCA


Post Office Box 6020


1749 38th Street Southwest


Fargo, North Dakota 58108


 


Attention:  David Rupp


 


Dear Sir:


 


Reference is made to the Amended and Restated
Credit Agreement dated as of July         ,
2005 (as amended and in effect on the date hereof, the “Credit Agreement”),
between the undersigned, as Borrower, and AgCountry Farm Credit Services, FLCA
as Lender.  Terms defined in the Credit
Agreement are used herein with the same meanings.  This notice constitutes a 2005 Term Loan Draw
Request, and Borrower hereby requests an advance under the Credit Agreement,
and in that connection Borrower specifies the following information with respect
to the advance requested hereby:


 


(A)                              Aggregate principal
amount of Borrowing:


 


(B)                                Date of Borrowing  (which is a Business Day):


 


(C)                                Location and number of
Borrower’s account to which proceeds of Borrowing are to be disbursed:


 


Borrower hereby represents and warrants that
the conditions specified in Section 3.02 of the Credit Agreement are
satisfied.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  GREAT PLAINS ETHANOL, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  
						



 


1





















 


EXHIBIT 3.01(b)(vii)


 


FORM OF
SECRETARY’S CERTIFICATE


 


Reference is made to the Amended and Restated
Credit Agreement dated as of July 12, 2005 (the “Credit Agreement”), by
and between Great Plains Ethanol, LLC, a South Dakota limited liability company
(“Borrower”)
and AgCountry Farm Credit Services, FLCA (“Lender”). 
Terms defined in the Credit Agreement are used herein with the same
meanings.  This certificate is being
delivered pursuant to Section 3.01(b)(vii) of the Credit Agreement.


 


I, Steve Sinning, the Secretary of Borrower,
DO HEREBY CERTIFY that:


 


(a)           no
proceeding have been instituted or are pending or contemplated with respect to
the dissolution, liquidation or sale of all or substantially all the assets of
Borrower or threatening its existence or the forfeiture or any of its
organizational rights;


 


(b)                                 annexed hereto as Exhibit A
is a true and correct copy of the unanimous written consent of the board of
managers of Borrower, which consent is the only consent adopted by the board of
managers of Borrower or any committee thereof relating to the Credit Agreement
and the other Loan Documents to which Borrower is a party and the transactions
contemplated therein and have not been revoked, amended, supplemented or
modified and are in full force and effect on the date hereof; and


 


(c)                                  each of the persons
named below is as of the date hereof a duly elected and qualified officer of
Borrower holding the respective office set forth opposite his or her name and
the signature set forth opposite of each such person is his or her genuine
signature:


 


	
  Name

  	
   

  	
  Title

  	
   

  	
  Specimen Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Darrin Ihnen

  	
   

  	
  President

  	
   

  	
  /s/ Darrin Ihnen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Larry Ward

  	
   

  	
  Vice-President

  	
   

  	
  /s/ Larry Ward

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steve
  Sinning

  	
   

  	
  Secretary

  	
   

  	
  /s/ Steve
  Sinning

  	
   

  



 


1





















 


IN WITNESS WHEREOF, I have hereunto signed my
name this 12th day of July, 2005.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/ Steve
  Sinning

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Secretary

  



 


I, Darrin Ihnen, the President of Borrower,
do hereby certify that Steve Sinning has been duly elected, is duly qualified
and is the Secretary of Borrower, that the signature set forth above is his
genuine signature and that he has held such office at all times since April 16,
2003.


 


IN WITNESS WHEREOF, I have hereunto signed my
name this 12th day of July, 2005.


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/ Darrin
  Ihnen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  President

  



 


2





















 


Exhibit A


 


Board of Managers’
Consent


 


3





















 


EXHIBIT 3.01(b)(viii)


 


FORM OF
OFFICER’S CERTIFICATE


 


Reference is made to the Amended and Restated
Credit Agreement dated as of July 12, 2005 (the “Credit Agreement”), by
and between Great Plains Ethanol, LLC (“Borrower”) and AgCountry Farm Credit
Services, FLCA (“Lender”).  Terms defined in the Credit Agreement are
used herein with the same meanings.  This
certificate is being delivered pursuant to Section 3.01(b)(viii) of
the Credit Agreement.


 


I, Darrin Ihnen, the President of Borrower,
DO HEREBY CERTIFY that:


 


(a)                                  the representations
and warranties of Borrower set forth in the Loan Documents are true and correct
in all material respects on and as of the date hereof; and


 


(b)           no
Default or Event of Default has occurred and is continuing at the date hereof;
and


 


(c)                                  since December 31,
2004, which is the date of the most recent financial statements described in Section 5.01(a) of
the Credit Agreement, there has been no change which has had or could
reasonably be expected to have a Material Adverse Effect.


 


IN WITNESS WHEREOF, I have hereunto signed my
name this 12th day of July, 2005.


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/ Darrin Ihnen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Darrin Ihnen

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  President

  



 


1