Filed by Bowne Pure Compliance



 




Exhibit 10.25




AMENDED AND RESTATED MASTER LOAN AGREEMENT




by and among




CENTRAL IOWA ENERGY, LLC




and




F & M BANK — IOWA




dated

as of

October 17, 2007




 


 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING MATTERS
	 	 	4	 
	 
	 	 	 	 
	Section 1.01 Certain Defined Terms
	 	 	4	 
	Section 1.02 Accounting Matters
	 	 	14	 
	Section 1.03 Construction
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II. AMOUNTS AND TERMS OF THE TERM LOANS
	 	 	14	 
	 
	 	 	 	 
	Section 2.01 Supplements
	 	 	14	 
	Section 2.02 Construction Loan
	 	 	14	 
	Section 2.03 Term Revolving Loan
	 	 	15	 
	Section 2.04 Revolving Line of Credit
	 	 	15	 
	Section 2.05 Conversion of Construction Loan Into Term Loan
	 	 	15	 
	Section 2.06 Letters of Credit Procedures/Fees/Reimbursement
	 	 	16	 
	Section 2.07 Adjustments to Interest Rate
	 	 	18	 
	Section 2.08 Default Interest.
	 	 	18	 
	Section 2.09 Late Charge
	 	 	18	 
	Section 2.10 Prepayment of Loans
	 	 	19	 
	Section 2.11 Changes in Law Rendering Certain LIBOR Rate Loans Unlawful
	 	 	19	 
	Section 2.12 Payments and Computations
	 	 	19	 
	Section 2.13 Maximum Amount Limitation
	 	 	20	 
	Section 2.14 Lender Records
	 	 	21	 
	Section 2.15 Loan Payments
	 	 	21	 
	Section 2.16 Compensation
	 	 	21	 
	Section 2.17 Excess Cash Flow
	 	 	22	 
	 
	 	 	 	 
	ARTICLE III CONDITIONS PRECEDENT
	 	 	22	 
	 
	 	 	 	 
	Section 3.01 Conditions Precedent to Funding
	 	 	22	 
	 
	 	 	 	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES
	 	 	26	 
	 
	 	 	 	 
	Section 4.01 Representations and Warranties of the Borrower
	 	 	26	 
	 
	 	 	 	 
	ARTICLE V. COVENANTS OF THE BORROWER
	 	 	30	 
	 
	 	 	 	 
	Section 5.01 Affirmative Covenants
	 	 	30	 
	Section 5.02 Negative Covenants
	 	 	38	 
	 
	 	 	 	 
	ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES
	 	 	41	 
	 
	 	 	 	 
	Section 6.01 Events of Default
	 	 	41	 
	Section 6.02 Remedies
	 	 	44	 
	Section 6.03 Remedies Cumulative
	 	 	45	 
	 
	 	 	 	 






 


2









 







	 	 	 	 	 
	 	 	 	Page	 
	 
	ARTICLE VII. MISCELLANEOUS
	 	 	45	 
	 
	Section 7.01 Amendments, etc.
	 	 	45	 
	Section 7.02 Notices, etc.
	 	 	46	 
	Section 7.03 No Waiver; Remedies
	 	 	47	 
	Section 7.04 Costs, Expenses and Taxes
	 	 	47	 
	Section 7.05 Right of Set-off
	 	 	47	 
	Section 7.06 Severability of Provisions
	 	 	48	 
	Section 7.07 Binding Effect; Successors and Assigns; Participations
	 	 	48	 
	Section 7.08 Consent to Jurisdiction
	 	 	49	 
	Section 7.09 Governing Law
	 	 	49	 
	Section 7.10 Execution in Counterparts
	 	 	49	 
	Section 7.11 Survival
	 	 	49	 
	Section 7.12 US Patriot Act
	 	 	49	 
	Section 7.13 Waiver of Jury Trial
	 	 	50	 
	Section 7.14 Entire Agreement
	 	 	50	 






LIST OF SCHEDULES AND EXHIBITS




	 	 	 
	Schedule 3.01(d)

	 	Real Property
	Schedule 4.01(a)

	 	Description of Certain Transactions Related to the Borrower’s Stock
	Schedule 4.01(f)

	 	Description of Certain Threatened
Actions, etc.
	Schedule 4.01(k)

	 	Location of Inventory and Farm Products; Third Parties in Possession; Crops
	Schedule 4.01(l)

	 	Office Locations; Fictitious Names;
Etc.
	Schedule 4.01(p)

	 	Intellectual Property
	Schedule 4.01(t)

	 	Environmental Compliance
	Schedule 5.01(o)

	 	Management
	Schedule 5.02(a)

	 	Description of Certain Liens, Lease
Obligations, etc.
	Schedule 5.02(k)

	 	Transactions with Affiliates
	 
	 	 
	Exhibit A

	 	Compliance Certificate
	Exhibit B

	 	Project Sources and Uses Statement
	Exhibit C

	 	Form of Opinion Letter
	Exhibit D

	 	Form of Letter of Credit
	 






 


3









 







AMENDED AND RESTATED MASTER LOAN AGREEMENT




THIS AMENDED AND RESTATED MASTER LOAN AGREEMENT (this “Agreement”), dated as of October 17,
2007, between F & M BANK — IOWA, a bank chartered under the laws of the State of Iowa (the
“Lender”) and CENTRAL IOWA ENERGY, LLC, an Iowa limited liability company (the “Borrower”).



RECITALS




A. On or about September 26, 2006, Borrower and Lender entered into a Master Loan Agreement,
First Supplement, Second Supplement and Third Supplement that provided for various credit
facilities for the purposes of acquiring, constructing, equipping and furnishing of a biodiesel
production facility to be located near the city of Newton, Jasper County, Iowa (the “Project”).



B. The Borrower has requested that Lender increase the Revolving Line of Credit Loan to
provide for additional working capital purposes related to the operation of the Project.



C. The Lender is willing to extend such financing to the Borrower upon the terms and subject
to the conditions set forth in this Agreement.



AGREEMENT




NOW, THEREFORE, in consideration of the foregoing, intending to be legally bound hereby, and
in consideration of Lender making one or more loans to the Borrower, Lender and the Borrower agree
as follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING MATTERS




Section 1.01. Certain Defined Terms. All capitalized terms used in this Agreement and
in the Supplements, shall have the following meanings. Terms not otherwise defined in this
Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code, as
amended from time to time. All references to dollar amounts shall mean amounts in lawful money of
the United States of America.




“Advance/Advances” means the Loans or Letters of Credit provided the Borrower pursuant
to this Agreement and the Supplements to this Agreement.




“Affiliate” means, as to any Person, any other Person: (a) that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or is under
common control with, such Person; (b) that directly or indirectly beneficially owns or holds
ten percent (10%) or more of any class of voting stock or membership interests (units) of
such Person; or (c) ten percent (10%) or more of the voting stock or membership interests
(units) of which is directly or indirectly beneficially owned or held by the Person in question. The term
“control” means the possession, directly or indirectly, of the power to direct or cause
direction of the management and policies of a Person, whether through the ownership of
voting securities, by contract, or otherwise; provided, however, in no event shall the
Lender or any Bank be deemed an Affiliate of the Borrower or any of their subsidiaries.


 


4









 








“Agreement” means this Agreement, as this Agreement may be amended, modified or
supplemented from time to time, together with all exhibits and schedules attached to or made
a part of this Agreement from time to time.




“Allowed Distributions” has the meaning specified in Section 5.02(b).




“Borrower” means Central Iowa Energy, LLC, an Iowa limited liability company.




“Borrower’s Equity” means funds of at least 46% of Project Costs consisting of
member cash equity of not less than $23,159,000.00 plus any grants received from any source
related to the construction or operation of the Project.




“Business Day” means any day other than a Saturday, Sunday, or other day on which
commercial banks are authorized to close under the Laws of the State of Iowa, or are in
fact closed in, the state where the Lender’s Office is located and, if such day relates to
any LIBOR Rate, means any such day on which dealings in dollar deposits are conducted by and
between banks in the applicable offshore dollar interbank market.




“Capital Expenditures” means, for any period, the sum of all amounts that would, in
accordance with generally accepted accounting principles consistently applied, be included
as additions to property, plant and equipment on a statement of cash flows for the Borrower
during such period, with respect to: (a) the acquisition, construction, improvement,
replacement or betterment of land, buildings, machinery, equipment or of any other fixed
assets or leaseholds; or (b) other capital expenditures and other uses recorded as capital
expenditures having substantially the same effect.




“Closing Date” means October 17, 2007.




“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended.




“Collateral” means and includes, without limitation, all property and assets granted
as collateral security for the Loans or other indebtedness, whether real or personal
property, whether granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security interest, mortgage, assignment of rents, deed of
trust, assignment, pledge, chattel mortgage, chattel trust, factor’s lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention contract, lease or
consignment intended
as a security device, or any other security or lien interest whatsoever, whether created by
law, contract or otherwise.


 


5









 






“Commitment” means the respective amounts committed to by Lender under this
Agreement, the Supplements and the Notes.




“Completion Date” means April 5, 2007.




“Compliance Certificate” means a certificate of the Treasurer, or any other officer
reasonably acceptable to the Lender, of the Borrower, substantially in the form attached
hereto as Exhibit A, setting forth the calculations of current financial covenants and
stating: (a) the Financial Statements are true and correct and, other than the unaudited
interim financial statements, have been prepared in accordance with generally accepted
accounting principles consistently applied; (b) whether they have knowledge of the
occurrence of any Event of Default under this Agreement, and if so, stating in reasonable
detail the facts with respect thereto; and (c) reaffirm and ratify the representations and
warranties, as of the date of the certificate, contained in this Agreement.




“Construction Advance” means any Advance for the payment of Project Costs.




“Construction Contracts” means any and all contracts, written or oral, between the
Borrower and any Contractor and any subcontractor and between any of the foregoing and any
other person or entity relating in any way to the construction of the Project, including the
performing of labor or the furnishing of standard or specially fabricated materials in
connection therewith.




“Construction Loan” means the loan from the Lender to the Borrower in the amount of
$27,000,000.00 and pursuant to the terms and conditions provided for in this Agreement and
in the First Supplement to this Agreement.




“Construction Note” means that certain promissory note of even date herewith
executed and delivered to the Lender by the Borrower in the amount of $27,000,000.00 and
pursuant to the terms and conditions provided for in this Agreement and the First Supplement
to this Agreement.




“Contractor” means and includes any person or entity, including, without
limitation, the General Contractor, engaged to work on or to furnish labor, materials or
supplies for the Project.




“Conversion Date” means May 1, 2007.




“Current Portion of Long Term Debt” means that portion of Funded Debt payable within
one year from the date of such determination, determined in accordance with generally
accepted accounting principles, consistently applied.


 


6









 






“Debt” means: (A) indebtedness for borrowed money or for the deferred purchase
price of property or services; (B) obligations as lessee under leases which shall have been
or should be, in accordance with generally accepted accounting principles, recorded as
capital leases; (C) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of others of the
kinds referred to in clause (A) or (B) above or (E) through (G) below; (D) liabilities in
respect of unfunded vested benefits under plans covered by Title IV of ERISA;
(E) indebtedness in respect of mandatory redemption or mandatory dividend rights on equity
interests but excluding dividends payable solely in additional equity interests; (F) all
obligations of a Person, contingent or otherwise, for the payment of money under any
noncompete, consulting or similar agreement entered into with the seller of a company or its
assets or any other similar arrangements providing for the deferred payment of the purchase
price for an acquisition permitted hereby or an acquisition consummated prior to the date
hereof; and (G) all obligations of a Person under any Hedging Agreement.




“Default Rate” means the lesser of: (a) the Maximum Rate; or (b) the rate per annum
which shall from day-to-day be equal to two percent (2%) in excess of the then applicable
rate of interest under any Supplement or Note.




“Disbursing Agent” means AgStar Financial Services, PCA, a United States
instrumentality, its successors and assigns.




“Disbursing Agreement” means the Disbursing Agreement, of even date herewith,
executed by the Disbursing Agent, the Borrower, and the Lender, as the same may be from
time to time amended, modified, or supplemented from time to time.




“Distribution” means any dividend, distribution, payment, or transfer of property by
the Borrower to any member of the Borrower.




“Environmental Laws” means all laws and regulations relating to environmental,
health, safety and land use matters applicable to any property.




“EBITDA” means for any period, the total of the following each calculated without
duplication for the Borrower for such period: (i) net income from operations; plus (ii) any
provision for (or less any benefit from) income taxes included in determining such net
income; plus (iii) Interest Expense deducted in determining such net income; plus
(iv) amortization and depreciation expense deducted in determining such net income.




“ERISA” means the Employee Retirement Income Security Act of 1974.




“Events of Default” has the meaning specified in Section 6.01.




“Excess Cash Flow” means EBITDA, less the sum of: (i) required payments in respect
of Funded Debt; and (ii) Maintenance Capital Expenditures.




“Excess Cash Flow Payment” has the meaning specified in Section 2.17.


 


7









 






“Excess Distributions” shall have the meaning specified in Section 5.02(b).




“Extraordinary Items” means items which are material and significantly different
from the Borrower’s typical business activities, determined in accordance with generally
accepted accounting principles, consistently applied.




“Fixed Charge Coverage Ratio” means the ratio of (EBITDA +/- Extraordinary Items)
divided by the sum of Current Portion of Long Term Debt + Interest Expense + Dividends +
Distributions + Tax Distributions + Maintenance Capital Expenditures).




“Fixed Rate Loan” means that portion of the unpaid principal balance of the
Construction Loan that is converted to a Term Loan and will accrue interest at a fixed rate
of interest pursuant to Section 2.05.




“Food Security Act” means the Food Security Act of 1985, 7 U.S.C. §1631, as amended,
and the regulations promulgated thereunder.




“Funded Debt” means the principal amount of all Debt of the Borrower having a final
maturity of more than one year from the date of origin thereof (or which is renewable or
extendible at the option of the obligor for a period or periods more than one year from the
date of origin) excluding, however, the principal amount due under any Term Revolving Note
or any other line of credit used by Borrower for working capital purposes, all determined in
accordance with generally accepted accounting principles, consistently applied for the
period in question.




“GAAP” means generally accepted accounting principles, consistently applied.




“General Contractor” means Renewable Energy Group, LLC, an Iowa limited liability
company, its successors and permitted assigns.




“Governmental Authority” means and includes any and all courts, boards, agencies,
commissions, offices, or authorities of any nature whatsoever for any governmental unit
(federal, state, county, district, municipality, city, or otherwise) whether now or
hereafter in existence.




“Income Taxes” means the applicable state, local or federal tax on the net income of
the Borrower.




“Inspecting Engineer” means BBI, Inc., and its successors and permitted assigns.




“Intellectual Property” has the meaning specified in Section 4.01(p).




“Interest Expense” means for any period, the total interest expense of the Borrower
calculated on a consolidated basis.


 


8









 






“Interest Period” means (for each Loan) (a) initially, the period beginning on (and
including) the date on which the Loan is made and ending on (but excluding) the first day of
the next calendar month thereafter; and (b) thereafter, each period commencing on the first
day of each succeeding calendar month thereafter and ending on the last day of such month.
Notwithstanding the foregoing: (a) any Interest Period which would otherwise extend beyond
the Maturity Date shall end on the Maturity Date, and (b) other than the initial Interest
Period and the final Interest Period, no Interest Period shall have a duration of less than
one (1) month.




“Inventory” means all of the Borrower’s inventory, as such term is defined in the
UCC, whether now owned or hereafter acquired, whether consisting of whole goods, spare parts
or components, supplies or materials, whether acquired, held or furnished for sale, for
lease or under service contracts or for manufacture or processing, and wherever located.




“Lender” means F & M Bank-Iowa, and its successors and assigns.




“Letter of Credit” means the Construction Letters of Credit and the Revolving
Letters of Credit issued by Lender pursuant to the terms and conditions of this Agreement
and Supplements.




“Letter of Credit Liabilities” means, at any time, the aggregate maximum amount
available to be drawn under all outstanding Letters of Credit (in each case, determined
without regard to whether any conditions to drawing could then be met) and all unreimbursed
drawings under Letters of Credit.




“LIBOR Rate” (London Interbank Offered Rate) means the rate (rounded upward to the
nearest sixteenth and adjusted for reserves required on Eurocurrency Liabilities (as
hereinafter defined) for banks subject to FRB Regulation D (as hereinafter defined) or
required by any other federal law or regulation), quoted by the British Bankers Association
(the “BBA”) at 11:00 a.m. London time two Banking Days (as hereinafter defined) before the
commencement of the Interest Period for the offering of U.S. Dollar deposits in the London
interbank market for an Interest Period of one month, as published by Bloomberg or another
major information vendor listed on BBA’s official website. “Banking Day” shall mean a day
on which Lender is open for business, dealings in U.S. dollar deposits are being carried out
in the London interbank market, and banks are open for business in New York City and London,
England. “Eurocurrency Liabilities” has the meaning as set forth in FRB Regulation D. “FRB
Regulation D” means Regulation D as promulgated by the Board of Governors of the Federal
Reserve System, 12 CFR Part 204, as amended from time to time.




“Loan and Carrying Charges” means all commitment fees to the Lender, brokerage fees,
standby fees, interest charges, service fees, attorneys’ fees, contractors’ fees,
developers’ fees, funding fees, title insurance fees and charges, recording fees,
registration taxes, real estate taxes, special assessments, insurance premiums, utility
charges incurred by the Borrower in the construction of the Project, all costs incurred in
acquisition of the Real Property and any other costs incurred in the development of the
Project and issuance of the Notes.


 


9









 






“Loan Documents” means this Agreement, any and all Supplements to this Agreement,
the Notes, Letters of Credit, the Security Agreement, the Mortgage and all other agreements,
documents, instruments, and certificates of the Borrower delivered to, or in favor of, the
Lender under this Agreement or in connection herewith or therewith, including, without
limitation, all agreements, documents, instruments, and certificates delivered in connection
with the extension of Advances by the Lender.




“Loan Obligations” means all obligations, indebtedness, and liabilities of the
Borrower to the Lender, including the Reimbursement Obligations, arising pursuant to any of
the Loan Documents, whether now existing or hereafter arising, whether direct, indirect,
related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint
and several, including, without limitation, the obligation of the Borrower to repay the
Advances, interest on the Advances, and all fees, costs, and expenses (including, without
limitation, attorneys’ fees and expenses) provided for in the Loan Documents.




“Loan/Loans” means and includes the Construction Loan, the Term Loan, the Term
Revolving Loan, the Revolving Line of Credit Loan and any other financial accommodations
extended to the Borrower by the Lender pursuant to the terms of this Agreement and any
Supplements.




“Long Term Debt” means indebtedness that matures more than one year after the date
of determination thereof.




“Long Term Marketing Agreement” means any contract, agreement or understanding of
the Borrower having a term of one year or more after the date of determination thereof
relating to the sale of any raw materials, inventory, products or by-products of the
Borrower.




“Maintenance Capital Expenditures” means all Capital Expenditures made in the
ordinary course of business to maintain existing business operations of the Borrower in any
fiscal year, determined in accordance with generally accepted accounting principles,
consistently applied.




“Material Adverse Effect” means any set of circumstances or events which: (i) has
or could reasonably be expected to have any material adverse effect upon the validity or
enforceability of any Loan Documents or any material term or condition contained therein;
(ii) is or could reasonably be expected to be material and adverse to the condition
(financial or otherwise), business assets, operations, or property of the Borrower; or (iii)
materially impairs or could
reasonably be expected to materially impair the ability of the Borrower to perform the
obligations under the Loan Documents.


 


10









 






“Material Contract” means (i) any contract or any other agreement, written or oral,
or any of the Borrower or its Subsidiaries involving monetary liability of or to any such
person in an amount in excess of $250,000.00 per annum; and (ii) any other contract or
agreement, written or oral, of the Borrower or any of its Subsidiaries the failure to comply
with which could reasonably be expected to have a Material Adverse Effect on the Borrower or
its Subsidiaries; provided, however, that any contract or agreement which is terminable by a
party other than any of the Borrower or its Subsidiaries without cause upon notice of 90
days or less shall not be considered a Material Contract.




“Maturity Date” means the fifth anniversary of the Conversion Date.




“Maximum Rate” means the maximum nonusurious interest rate, if any, at any time, or
from time to time, that may be contracted for, taken, reserved, charged or received under
applicable state or federal laws.




“Mortgage” means that certain Amended and Restated Mortgage of even date herewith,
pursuant to which a mortgage interest shall be given by the Borrower to the Lender in the Real
Property to secure payment to the Lender of the Loan Obligations.




“Net Income” means net income as determined in accordance with GAAP.




“Note/Notes” means and includes the Construction Note, Term Revolving Note, Amended
and Restated Revolving Line of Credit Note and all other promissory notes executed and
delivered to the Lender by the Borrower pursuant to the terms of this Agreement and any
Supplements as the same may be amended, modified, supplemented, extended or restated from
time to time.




“Ordinary Trade Payable Dispute” means trade accounts payable, in an aggregate
amount not in excess of $100,000.00 with respect to the Borrower, and with respect to which:
(a) there exists a bona fide dispute between Borrower and the vendor;
(b) the Borrower is contesting the same in good faith by appropriate proceedings; and
(c) the Borrower has established appropriate reserves on its financial statements.




“Person” means any individual, corporation, business trust, association, company,
partnership, joint venture, governmental authority, or other entity.




“Personal Property” means all buildings, structures, equipment, fixtures,
improvements, building supplies and materials and other personal property now or hereafter
attached to, located in, placed in or necessary to the use of the improvements on the Real
Property including, but without being limited to, all machinery, fixtures, equipment,
furnishings, and appliances, as well as all renewals, replacements, additions, and
substitutes thereof, and all products and proceeds thereof, and including without limitation
all accounts, instruments,
chattel paper, other rights to payment, money, deposit accounts, insurance proceeds and
general intangibles of the Borrower, whether now owned or hereafter acquired.


 


11









 






“Plans and Specifications” means the final plans and specifications for the
construction of the Project, to be prepared by the General Contractor, and approved by the
Lender, and all amendments, modifications and supplements thereof approved by Lender.




“Project” means any and all buildings, structures, fixtures, and other improvements
made to the Real Property and other uses identified in the Project Sources and Uses
Statement as part of the acquisition and construction of bio-diesel production facility in
Newton, Iowa, for which the Loans to Borrower are being made hereunder.




“Project Costs” means the total of all costs of acquiring the Real Property and
constructing the Project as identified in the Project Sources and Uses Statement, together
with all Loan and Carrying Charges.




“Project Sources and Uses Statement” means the statement attached hereto as Exhibit
B which identifies the sources and uses of monies in a total amount of $50,000,000.00
related to the Project.




“Real Property” means that real property located in the County of Jasper, State of
Iowa, owned by the Borrower, upon which the Project is to be constructed and which is
described in Schedule 3.01(d).




“Reimbursement Obligation” means the obligation of the Borrower to reimburse the
Lender for any demand for payment or drawing under a Letter of Credit.




“Related Documents” means and includes without limitation all promissory notes,
credit agreements, loan agreements, supplements, guaranties, security agreements, mortgages,
deeds of trust, assignments and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.




“Revolving Loans” means the Revolving Line of Credit Loan and the Term Revolving
Loan and any other revolving loan provided by the Lender to the Borrower pursuant to the
terms and conditions provided for in this Agreement and in any revolving loan supplement.




“Revolving Line of Credit Loan” means that line of credit from the Lender to the
Borrower in the amount of $4,500,000.00 and pursuant to the terms and conditions provided
for in this Agreement and the Third Supplement to the Agreement.




“Amended and Restated Revolving Line of Credit Note” means that certain promissory
note to be executed and delivered to the Lender by the Borrower of even date herewith
pursuant to the terms and conditions provided for in this Agreement and the Third Supplement
to this Agreement.




“Revolving Line of Credit Loan Maturity Date” means the maturity date set forth in the
Third Supplement to this Agreement.


 


12









 






“SARA” means the Superfund Amendment and Reauthorizations Act of 1986, as amended.




“Security Agreement” means and includes, without limitation, any agreements,
promises, covenants, arrangements, understandings, or other agreements, whether created by
law, contract, or otherwise, which evidence, govern, represent, or create a Security
Interest, as the same has been and may hereafter be amended or otherwise modified.




“Security Interest” means and includes without limitation any type of collateral
security, whether in the form of a lien, charge, mortgage, assignment of rents, deed of
trust, assignment, pledge, chattel mortgage, chattel trust, factor’s lien, equipment trust,
conditional sale, trust receipt, lien or title retention contract, lease or consignment
intended as a security device, or any other security or lien interest whatsoever, whether
created by law, contract, or otherwise.




“Subordinated Debt” means Debt held by Iowa Department of Economic Development.




“Supplement” has the meaning set forth in Section 2.01 of this Agreement.




“Tangible Net Worth” means the excess of total assets over total liabilities except
Subordinated Debt, total assets and total liabilities each to be determined in accordance
with generally accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 5.01(c) for the Borrower,
excluding, however, from the determination of total assets: (i) goodwill, organizational
expenses, research and development expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses and rights in any thereof, and other similar intangibles; (ii)
treasury stock; (iii) securities which are not readily marketable; (iv) cash held in a
sinking or other analogous fund established for the purpose of redemption, retirement or
prepayment of capital stock or Debt; (v) any write-up in the book value of any asset
resulting from a revaluation thereof subsequent to the Closing Date; (vi) amortized start-up
costs; and (vii) any items not included in clauses (i) through (vi) above which are treated
as intangibles in conformity with generally accepted accounting principles.




“Tangible Owner’s Equity” means the Tangible Net Worth divided by total assets,
measured annually at the end of each fiscal year, and expressed as a percentage.




“Tax Distributions” has the meaning specified in Section 5.02(b).




“Term Loan” means any amortizing loan with a maturity of greater than one year
provided by the Lender to the Borrower pursuant to the terms and conditions of this Agreement and
the First Supplement to this Agreement.




“Term Revolving Loan” means that certain loan from the Lender to the Borrower in the
amount of $5,000,000.00 and pursuant to the terms and conditions provided for in this
Agreement and the Second Supplement.


 


13









 






“Term Revolving Note” means that certain promissory note to be executed and
delivered to the Lender by the Borrower on the Conversion Date pursuant to the terms and
conditions provided for in this Agreement and the Second Supplement to this Agreement.




“Working Capital” means current assets of the Borrower less current liabilities of the
Borrower as determined in accordance with GAAP. Working capital may include any unused commitment
in the Revolving Term Loan less any current portion due.



Section 1.02. Accounting Matters. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting principles consistently
applied, except as otherwise stated herein. To enable the ready and consistent determination of
compliance by the Borrower with its obligations under this Agreement, the Borrower will not change
the manner in which either the last day of its fiscal year or the last days of the first three
fiscal quarters of its fiscal years is calculated.



Section 1.03. Construction. Wherever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender shall include each other gender
where appropriate. The headings, captions or arrangements used in any of the Loan Documents are,
unless specified otherwise, for convenience only and shall not be deemed to limit, amplify or
modify the terms of the Loan Documents, nor affect the meaning thereof.



ARTICLE II

AMOUNTS AND TERMS OF THE LOANS




Section 2.01. Supplements. In the event the Borrower desires to borrow from Lender
and Lender is willing to lend to the Borrower, or in the event Lender and Borrower desire to
consolidate any existing loans hereunder, the Lender and Borrower will enter into a supplement to
this Agreement (each supplement, as it may be amended, modified, supplemented, extended or restated
from time to time, a “Supplement” and, collectively, the “Supplements”). Each Supplement will set
forth Lender’s commitment to make a Loan to the Borrower, the amount of the Loan(s), the purpose of
the Loan(s), the interest rate or rate options applicable to the Loan(s), the repayment terms of
the Loan(s), and any other terms and conditions applicable to the Loan(s). Each Supplement will
also be accompanied by a Note of the Borrower setting forth the Borrower’s obligation to make
payments of interest on the unpaid principal balance of the Loan(s), and fees and premiums, if any,
and to repay the principal balance of the Loan(s). Each Loan will be governed by the terms and
conditions contained in this Agreement and in the Note and the Supplement relating to that Loan.



Section 2.02. Construction Loan. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties set forth in this Agreement, the
Lender has agreed to lend to Borrower and Borrower has agreed to borrow from Lender the lesser of:
(i) $27,000,000.00; or (ii) 55% of the Project Costs. Such amount shall be loaned by Lender pursuant
to the terms and conditions set forth in this Agreement and the First Supplement to this Agreement.


 


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Section 2.03. Term Revolving Loan. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties set forth in this Agreement, the
Lender has agreed to lend to Borrower and Borrower has agreed to borrow from Lender, as of the
Conversion Date and from time to time thereafter, on a revolving basis an amount not to exceed
$5,000,000.00. Such amount shall be loaned by Lender pursuant to the terms and conditions set
forth in this Agreement and the Second Supplement to this Agreement. Pursuant to the terms and
conditions in this Agreement, the Lender may extend additional term Revolving Loans to the
Borrower. Any such future term Revolving Loans shall be provided by Lender pursuant to the terms
and conditions of a future term Revolving Loan Supplement.



Section 2.04 Revolving Line of Credit. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties set forth in this Agreement, the
Lender has agreed to lend to Borrower and Borrower has agreed to borrow from Lender, as of the
Closing Date and from time to time thereafter, on a revolving basis an amount not to exceed
$4,500,000.00. Such amount shall be loaned by Lender pursuant to the terms and conditions set
forth in this Agreement and the Third Supplement to this Agreement. Pursuant to the terms and
conditions in this Agreement, the Lender may extend additional Revolving Loans to the Borrower.
Any such future Revolving Loans shall be provided by Lender pursuant to the terms and conditions of
a future term Revolving Loan Supplement.



Section 2.05. Conversion of Construction Loan Into Term Loan and Term Revolving Loan.
The Lender agrees to convert the Construction Loan into a Term Loan and Term Revolving Loan on the
Conversion Date, provided all of the terms, conditions, warranties, representations, and covenants
of the Borrower set forth in this Agreement, the First Supplement and the Second Supplement are
satisfied. Any such amount shall be provided by Lender pursuant to the terms and conditions set
forth in this Agreement, the First Supplement and the Second Supplement to this Agreement setting
forth the terms and conditions of such Term Loan and Term Revolving Loan, provided, however, that
(i) all unpaid principal and all accrued interest on the Term Loan and the Term Revolving Loan
shall be due and payable on the Maturity Date and (ii) the Borrower shall have the right to convert
up to fifty percent (50%) of the Term Loan into a fixed rate loan, with the consent of the Lender,
which shall bear interest at a rate equal to the rate listed in the “Government Agency and Similar
Issues” section of the Wall Street Journal for the Federal Farm Credit Bank or the Federal Home
Loan Bank having a maturity approximately equal to the Maturity Date, which is in effect on the
Conversion Date plus 300 basis points, or another rate as agreed upon by the Lender and Borrower.
Should the Borrower elect such fixed rate option, such rate of interest shall not be subject to any
adjustments under Section 2.07 of this Agreement.



 


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Section 2.06. Letter of Credit Procedures / Fees / Reimbursement. All Letters of
Credit that are issued under this Agreement and any supplements to this Agreement are subject to
the following:



(a) Letter of Credit Request Procedure. The Borrower shall give the Lender
irrevocable prior notice (effective upon receipt) on or before 3:00 P.M. (Minneapolis, Minnesota
time) on the Business Day three Business Days prior to the date of the requested issuance of a
Letter of Credit specifying the requested amount, expiry date and issuance date of each Letter of
Credit to be issued and the nature of the transactions to be supported thereby. Any such notice
received after 3:00 P.M. (Minneapolis, Minnesota time) on a Business Day shall be deemed to have
been received and be effective on the next Business Day. Each Letter of Credit shall be in the
form of Exhibit D, have an expiration date that occurs on or before the expiration dates
established for Letters of Credit as provided for in the Supplements, shall be payable in U.S.
dollars, must be satisfactory in form and substance to the Lender, and shall be issued pursuant to
such documentation as the Lender may require, including, without limitation, the Lender’s standard
form letter of credit request and reimbursement agreement; provided that, in the event of any
conflict between the terms of such agreement and the other Loan Documents, the terms of the other
Loan Documents shall control.



(b) Letter of Credit Fees. The Borrower shall pay to the Lender for (i) all fees,
costs, and expenses of the Lender arising in connection with any Letter of Credit, including the
Lender’s customary fees for amendments, transfers, and drawings on Letters of Credit; and (ii) on
the date of the issuance of the Letter of Credit, and at the anniversary date of issuance of such
Letter of Credit, an issuance fee equal to two and one-half (2.5%) percent, on an annualized basis,
of the maximum amount available to be drawn under the Letter of Credit.



(c) Funding of Drawings. Upon receipt from the beneficiary of any Letter of Credit of
any demand for payment or other drawing under such Letter of Credit, the Issuer shall promptly
notify the Borrower as to the amount to be paid as a result of such demand or drawing and the
respective payment date. Any notice pursuant to the forgoing sentence shall specify the amount to
be paid as a result of such demand or drawing and the respective payment date.



(e) Reimbursements. After receipt of the notice delivered pursuant to clause (c) of
this Section 2.06 with respect to a Letter of Credit, the Borrower shall be irrevocably and
unconditionally obligated to reimburse the Lender for any amounts paid by the Lender upon any
demand for payment or drawing under the applicable Letter of Credit, without presentment, demand,
protest, or other formalities of any kind other than the notice required by clause (c) of this
Section 2.06. Such reimbursement shall occur no later than 3:00 P.M. (Minneapolis, Minnesota
time) on the date of payment under the applicable Letter of Credit if the notice under clause (c)
of this Section 2.06 is received by 2:00 P.M. (Minneapolis, Minnesota time) on such date or by
11:00 A.M. (Minneapolis, Minnesota time) on the next Business Day, if such notice is received after
2:00 P.M. (Minneapolis, Minnesota time). All payments on the Reimbursement Obligations (including
any interest earned thereon) shall be made to the Lender for the account of the Lender in U.S.
dollars and in immediately available funds, without set-off, deduction, or counterclaim.



 


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(f) Reimbursement Obligations Absolute. The Reimbursement Obligations of the Borrower
under this Agreement shall be absolute, unconditional, and irrevocable, and shall be performed
strictly in accordance with the terms of the Loan Documents under all circumstances whatsoever and
the Borrower hereby waives any defense to the payment of the Reimbursement
Obligations based on any circumstance whatsoever, including, without limitation, in any case, the
following circumstances: (i) any lack of validity or enforceability of any Letter of Credit or any
other Loan Document; (ii) any amendment or waiver of or any consent to departure from any Loan
Document; (iii) the existence of any claim, set-off, counterclaim, defense, or other rights which
any Borrower or any other Person may have at any time against any beneficiary of any Letter of
Credit, the Lender or any other Person, whether in connection with any Loan Document or any
unrelated transaction; (iv) any statement, draft, or other documentation presented under any Letter
of Credit proving to be forged, fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect whatsoever; (v) payment by the Lender
under any Letter of Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit; or (vi) any other circumstance whatsoever, whether or not
similar to any of the foregoing; provided that Reimbursement Obligations with respect to a Letter
of Credit may be subject to avoidance by a Borrower if the Borrower proves in a final
non-appealable judgment that it was damaged and that such damage arose directly from the Lender’s
willful misconduct or gross negligence in determining whether the documentation presented under the
Letter of Credit in question complied with the terms thereof.



(g) Issuer Responsibility. Borrower assumes all risks of the acts or omissions of any
beneficiary of any Letter of Credit with respect to its use of such Letter of Credit. Neither the
Lender, nor any of its respective officers or directors shall have any responsibility or liability
to the Borrower or any other Person for: (a) the failure of any draft to bear any reference or
adequate reference to any Letter of Credit, or the failure of any documents to accompany any draft
at negotiation, or the failure of any Person to surrender or to take up any Letter of Credit or to
send documents apart from drafts as required by the terms of any Letter of Credit, or the failure
of any Person to note the amount of any instrument on any Letter of Credit, each of which
requirements, if contained in any Letter of Credit itself, it is agreed may be waived by the
Lender; (b) errors, omissions, interruptions, or delays in transmission or delivery of any
messages; (c) the validity, sufficiency, or genuineness of any draft or other document, or any
endorsement(s) thereon, even if any such draft, document or endorsement should in fact prove to be
in any and all respects invalid, insufficient, fraudulent, or forged or any statement therein is
untrue or inaccurate in any respect; (d) the payment by the Lender to the beneficiary of any Letter
of Credit against presentation of any draft or other document that does not comply with the terms
of the Letter of Credit; or (e) any other circumstance whatsoever in making or failing to make any
payment under a Letter of Credit. The Lender may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any notice or information
to the contrary.



 


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Section 2.07. Adjustments to Interest Rate. Notwithstanding any other provision of
this Agreement, the Supplements, the Notes, or the Related Documents, after the Conversion Date,
the rate of interest under any Loan which bears interest on a variable rate, shall be adjusted
according to the following schedule should the Tangible Owner’s Equity of the Borrower, achieve the
levels set forth below:




	 	 	 
	Tangible Owner’s Equity	 	Interest Rate
	 
	Less than 50.00%

	 	Applicable LIBOR Rate plus 325 basis points
	 
	 	 
	50.00%—59.99%

	 	Applicable LIBOR Rate plus 300 basis points
	 
	 	 
	Equal to or Greater Than 60.00%

	 	Applicable LIBOR Rate plus 275 basis points





Upon delivery of the quarterly financial statements and the Compliance Certificate pursuant to
Section 5.01(c)(iii) for each fiscal quarter beginning the first fiscal quarter after the
Conversion Date, the rate of interest shall automatically be adjusted in accordance with the
Tangible Owner’s Equity set forth therein and the rates set forth above. Such automatic adjustment
to the rate of interest shall take effect as of the first Business Day of the month following the
month in which the Lender received the related Compliance Certificate. The term “Adjustment Date”
shall mean each such Business Day when such rates, margins or fees change pursuant to the
immediately prior sentence or the next following sentence. If the Borrower fails to deliver such
Compliance Certificate which so sets forth the Tangible Owner’s Equity within the period of time
required by Section 5.01(c)(iii) hereof or if any Event of Default occurs, the rate of interest
shall automatically be adjusted to a rate equal to the applicable LIBOR Rate plus 325 basis points,
such automatic adjustments: (a) to take effect as of the first Business Day after the last day on
which the Borrower were required to deliver the applicable Compliance Certificate in accordance
with Section 5.01(c)(iii) hereof or in the case of an Event of Default, on the date the written
notice is given to the Borrower; and (b) to remain in effect until subsequently adjusted in
accordance herewith upon the delivery of such Compliance Certificate or, in the case of an Event of
Default, when such Event of Default has been cured to the satisfaction of the Lender.




Section 2.08. Default Interest. In addition to the rights and remedies set forth in
this Agreement and notwithstanding any Note: (i) if the Borrower fails to make any payment to
Lender when due, then at Lender’s option in each instance, such obligation or payment shall bear
interest from the date due to the date paid at 2% per annum in excess of the rate of interest that
would otherwise be applicable to such obligation or payment; (ii) upon the occurrence and during
the continuance of an Event of Default beyond any applicable cure period, if any, at Lender’s
option in each instance, the unpaid balances of the Loans shall bear interest from the date of the
Event of Default or such later date as Lender shall elect at 2% per annum in excess of the rate(s)
of interest that would otherwise be in effect on the Loans under the terms of the applicable Note;
(iii) after the maturity of any Loan, whether by reason of acceleration or otherwise, the unpaid
principal balance of the Loan (including without limitation, principal, interest, fees and
expenses) shall automatically bear interest at 2% per annum in excess of the rate of interest that
would otherwise be in effect on the Loan under the terms of the applicable Note. Interest payable
at the Default Rate shall be payable from time to time on demand or, if not sooner demanded, on the
last day of each calendar month.



Section 2.09. Late Charge. If any payment of principal or interest due under the
Supplements or the Notes is not paid within ten (10) days of the due date thereof, the Borrower
shall, in addition to such amount, pay a late charge equal to five percent (5%) of the amount of
such payment.


 


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Section 2.10. Prepayment of Term Loan. The Borrower may, by notice to the Lender,
prepay the outstanding amount of the Loans in whole or in part with accrued interest to the date of
such prepayment on the amount prepaid, without penalty or premium, except as provided in this
Section 2.10. In the event the Construction Loan or Term Loan is prepaid, in whole or in part, or
the outstanding principal balance of the Loans is prepaid in its entirety, from the Closing Date
through the first twenty-four (24) months after the Conversion Date, the Borrower shall pay a
prepayment premium equal to the following specified percentage of the amount of principal prepaid:



	 	 	 	 	 
	Closing through 12 months after Conversion Date
	 	 	2.00	%
	Months 13-24 after Conversion Date
	 	 	1.00	%





Notwithstanding the foregoing, no prepayment premium shall be required if such prepayment is made
pursuant to Section 2.17 of this Agreement. Any prepayment does not otherwise affect Borrower’s
obligation to pay any fees due under this Agreement. In addition, in the event any portion of the
Term Loan is converted to a fixed rate loan, the Borrower agrees that the prepayment premium
provided for in this Section 2.10 shall continue to be applicable to that portion converted to a
fixed interest rate loan.




Section 2.11. Changes in Law Rendering Certain LIBOR Rate Loans Unlawful. In the
event that any change in any applicable law (including the adoption of any new applicable law) or
any change in the interpretation of any applicable law by any judicial, governmental or other
regulatory body charged with the interpretation, implementation or administration thereof, should
make it (or in the good-faith judgment of the Lender should raise a substantial question as to
whether it is) unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then: (a) the
Lender shall promptly notify each of the other parties hereto; and (b) the obligation of the Lender
to make LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for
the duration of such unlawfulness. During the period of any suspension, Lender shall make loans to
Borrower that are deemed lawful and that as closely as possible reflect the terms of this
Agreement.



Section 2.12. Payments and Computations.



(a) Method of Payment. Except as otherwise expressly provided herein, all payments of
principal, interest, and other amounts to be made by the Borrower under the Loan Documents shall be
made to the Lender in U.S. dollars and in immediately available funds, without set-off, deduction,
or counterclaim, not later than 2:00 P.M. (Minneapolis, Minnesota time) on the date on which such
payment shall become due (each such payment made after such time on such due date to be deemed to
have been made on the next succeeding Business Day). The Borrower shall, at the time of making
each such payment, specify to the Lender the sums payable under the Loan Documents to which such
payment is to be applied and in the event that the Borrower fails to so
specify or if an Event of Default exists, the Lender may apply such payment and any proceeds of
any Collateral to the Loan Obligations in such order and manner as it may elect in its sole
discretion.


 


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(b) Application of Funds. Lender may apply all payments received by it to the Loan
Obligations in such order and manner as Lender may elect in its sole discretion; provided that any
payments received from any guarantor or from any disposition of any collateral provided by such
guarantor shall only be applied against obligations guaranteed by such guarantor.



(c) Payments on a Non-Business Day. Whenever any payment under any Loan Document
shall be stated to be due on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time shall in such case be included in the
computation of the payment of interest and fees, as the case may be.



(d) Proceeds of Collateral. All proceeds received by the Lender from the sale or
other liquidation of the Collateral when an Event of Default exists shall first be applied as
payment of the accrued and unpaid fees and expenses of the Lender hereunder, including, without
limitation, under Section 7.04 and then to all other unpaid or unreimbursed Loan Obligations
(including reasonable attorneys’ fees and expenses) owing to the Lender and then any remaining
amount of such proceeds shall be applied to the unpaid amounts of Loan Obligations, until all the
Loan Obligations have been paid and satisfied in full or cash collateralized. After all the Loan
Obligations (including without limitation, all contingent Loan Obligations) have been paid and
satisfied in full, all Commitments terminated and all other obligations of the Lender to the
Borrower otherwise satisfied, any remaining proceeds of Collateral shall be delivered to the Person
entitled thereto as directed by the Borrower or as otherwise determined by applicable law or
applicable court order.



(e) Computations. Except as expressly provided otherwise herein, all computations of
interest and fees shall be made on the basis of actual number of days lapsed over a year of 365 or
366 days, as appropriate. Interest shall accrue from and include the date of borrowing, but
exclude the date of payment.



Section 2.13. Maximum Amount Limitation. Anything in this Agreement, any Supplement,
any Note, or the other Loan Documents to the contrary notwithstanding, Borrower shall not be
required to pay unearned interest on any Note or any of the Loan Obligations, or ever be required
to pay interest on any Note or any of the Loan Obligations at a rate in excess of the Maximum Rate,
if any. If the effective rate of interest which would otherwise be payable under this Agreement,
any Note or any of the other Loan Documents would exceed the Maximum Rate, if any, then the rate of
interest which would otherwise be contracted for, charged, or received under this Agreement, any
Note or any of the other Loan Documents shall be reduced to the Maximum Rate, if any. If any
unearned interest or discount or property that is deemed to constitute interest (including, without
limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations to the
Lender under this Agreement, any Supplement, any Note, or any of the other Loan Documents are
deemed to constitute interest) is contracted for, charged, or received in excess of the Maximum
Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a mistake and
canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the option of
the holder of such Note, be either refunded to the Borrower, or credited on the principal of such Note.
It is further agreed that, without limitation of the foregoing and to the extent permitted by
applicable law, all calculations of the rate of interest or discount contracted for, charged or
received by the Lender under its Note, or under any of the Loan Documents, that are made for the
purpose of determining whether such rate exceeds the Maximum Rate applicable to the Lender, if any,
shall be made, to the extent permitted by applicable laws (now or hereafter enacted), by
amortizing, prorating and spreading during the period of the full terms of the Advances evidenced
by the Notes, and any renewals thereof all interest at any time contracted for, charged or received
by Lender in connection therewith. This Section 2.13 shall control every other provision of all
agreements among the parties to this Agreement pertaining to the transactions contemplated by or
contained in the Loan Documents, and the terms of this Section 2.13 shall be deemed to be
incorporated in every Loan Document and communication related thereto.


 


20









 





Section 2.14. Lender Records. All advances and all payments or prepayments made
thereunder on account of principal or interest may be evidenced by the Lender in accordance with
its usual practice in an account or accounts evidencing such advances and all payments or
prepayments thereunder from time to time and the amounts of principal and interest payable and paid
from time to time thereunder; in any legal action or proceeding in respect of the Notes, the
entries made in such account or accounts shall be prima facie evidence of the
existence and amounts of all advances and all payments or prepayments made thereunder on account of
principal or interest. Lender shall provide monthly statements of such entries to Borrower for the
purpose of confirming the accuracy of such entries.



Section 2.15. Loan Payments. During the continuance of an Event of Default, the
Lender may deduct any obligations due or any other amounts due and payable by the Borrower under
the Loan Documents from any accounts maintained with the Lender.



Section 2.16. Compensation. Upon the request of the Lender, the Borrower shall pay to
the Lender such amount or amounts as shall be sufficient (in the reasonable opinion of the Lender)
to compensate it for any loss, cost, or expense (excluding loss of anticipated profits incurred by
it) as a result of: (i) any payment, prepayment, or conversion of a LIBOR rate loan for any reason
on a date other than the last day of the Interest Period for such Loan; or (ii) any failure by the
Borrower for any reason (including, without limitation, the failure of any condition precedent
specified in Section 3.01 to be satisfied) to borrow, extend, or prepay a LIBOR rate loan on the
date for such borrowing, extension, or prepayment specified in the relevant notice of borrowing,
extension or prepayment under this Agreement.



Such indemnification may include any amount equal to the excess, if any, of: (a) the amount
of interest which would have accrued on the amount so prepaid, or not so borrowed, converted or
extended, for the period from the date of such prepayment or of such failure to borrow, convert or
extend to the last day of the applicable Interest Period (or in the case of a failure to borrow,
convert or extend, the Interest Period that would have commenced on the date of such failure) in
each case at the applicable rate of interest for such loan as provided for herein; over (b) the
amount of interest (as reasonably determined by the Lender) which would have accrued to the Lender
on such amount by
placing such amount on deposit for a comparable period with leading banks in the interbank LIBOR
market. The covenants of the Borrower set forth in this Section 2.16 shall survive the repayment of
the Loans and other obligations under the Loan Documents hereunder.


 


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Section 2.17. Excess Cash Flow. In addition to all other payments of principal and
interest required under this Agreement, the Supplements and the Notes, the Borrower shall annually
remit to Lender an amount equal to 50% of the Borrower’s Excess Cash Flow, calculated based upon
the immediately preceding fiscal year end audited financial statements, on or before 120 days after
the end of each fiscal year of the Borrower (the “Excess Cash Flow Payment”); provided, however,
that the total Excess Cash Flow Payments required hereunder shall not exceed $2,500,000.00 in any
fiscal year. Such payment shall be applied to the reduction of the outstanding principal of the
Term Loan or the Term Revolving Loan at the Lender’s discretion. Any Excess Cash Flow Payment
shall not be considered to be a prepayment with respect to which a prepayment premium would apply
under Section 2.10 of this Agreement. Notwithstanding the foregoing, the Excess Cash Flow Payment
is not required when the Borrower’s Tangible Owner’s Equity from the immediately preceding fiscal
year end is greater than 70%.



ARTICLE III.

CONDITIONS PRECEDENT




Section 3.01. Conditions Precedent to Funding. The effectiveness of this Agreement
and obligations of the Lender to make any Advance, are subject to the conditions precedent that the
Lender shall have received the following, in form and substance satisfactory to the Lender:



(a) This Agreement, duly executed by the Borrower and the Lender;



(b) The Supplements, duly executed by the Borrower and the Lender;



(c) The Construction Note, the Term Revolving Note and the Amended and Restated Revolving Line
of Credit Note duly executed by the Borrower;



(d) The Mortgage, fully executed and notarized, to secure the Loans encumbering on a first
lien basis the fee interest and/or leasehold interest of the Borrower in the Real Property and the
fixtures thereon described in Schedule 3.01(d);



(e) A Security Agreement duly executed by the Borrower and in a form as provided by the Lender
by which security agreement the Lender is granted a security interest by the Borrower in the
Collateral;



(f) A copy of the Construction Contract(s) and a complete set of the Plans and Specifications,
together with copies of all permits and government approvals relating to the construction and use
of the Project;



(g) An assignment of contract for each of the Construction Contracts and the Plans and
Specifications, duly executed by the Borrower and pursuant to which the Borrower shall have
assigned to the Lender all of the Borrower’s right, title and interest in and to each such
Construction Contract, and which assignment shall have been consented to and certified in writing
by the other party(ies) to each such Construction Contract;



(h) Copies of all Material Contracts between Borrower and third parties used in the normal
operations of Borrower, including but not limited to management agreements, risk management plan,
marketing agreements, and soybean oil delivery agreements;


 


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(i) Assignments of the Material Contracts between Borrower, duly executed by the Borrower and
pursuant to which the Borrower shall have assigned to the Lender all of the Borrower’s right, title
and interest in and to each such contracts, and which assignment shall have been consented to and
certified in writing by the other party(ies) to each such contract;



(j) Financing Statements in form and content satisfactory to the Lender and in proper form
under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of
the Lender, desirable to perfect the security interests created by the Security Agreement;



(k) Copies of UCC, tax and judgment lien search reports listing all financing statements and
other encumbrances which name the Borrower (under its present name and any previous name) and which
are filed in the jurisdictions in which the Borrower is located, organized or maintains collateral,
together with copies of such financing statements (none of which shall cover the collateral
purported to be covered by the Security Agreement);



(l) Evidence that all other actions necessary or, in the opinion of the Lender, desirable to
enable the Lender to perfect and protect the security interests created by the Security Agreement
have been taken;



(m) An ALTA mortgagee title insurance policy issued by a title insurance company acceptable to
Lender, with respect to the Real Property, assuring the Lender that the Mortgage creates a valid
and enforceable encumbrance on the Real Property, free and clear of all defects and encumbrances
except Permitted Liens and containing: (i) a comprehensive endorsement (ALTA form 9); (ii) a
zoning endorsement (ALTA form 3.1) specifying a biodiesel production facility as a permitted use
for all of the parcels included in the Real Property; and (iii) a restrictions, encroachments,
minerals-owners endorsement (ALTA Form 9.2) and (iv) such endorsements as the Lender shall
reasonably require. All such title insurance policies shall be in form and substance reasonably
satisfactory to the Lender and shall provide for affirmative insurance and such reinsurance as the
Lender may reasonably request, all of the foregoing in form and substance reasonably satisfactory
to the Lender;



(n) Maps or plats of the Real Property certified to the Lender and the title insurance company
issuing the policy referred to in Subsection 3.01(n) (the “Title Insurance Company”) in a manner
reasonably satisfactory to each of the Lender and the Title Insurance Company, dated a date
reasonably satisfactory to each of the Lender and the Title Insurance Company by an independent
professional licensed land surveyor, which maps or plats and the surveys on which they are based
shall be sufficient to delete any standard printed survey exception contained in the applicable
title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title
Surveys jointly established and adopted by the American Land Title Association and the American
Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing,
there shall be surveyed and shown on such maps, plats or surveys the following: (i) the locations
on such sites of all the buildings, structures and other improvements and the established building
setback lines; (ii) the lines of streets abutting the sites and width thereof; (iii) all access and
other easements appurtenant to the sites necessary to use the sites; (iv) all roadways, paths,
driveways, easements, encroachments and overhanging projections and similar encumbrances affecting
the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to
the surveyor; (v) any encroachments on any adjoining property by the building structures and
improvements on the sites; and (vi) if the site is described as being on a filed map, a legend
relating the survey to said map;


 


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(o) Evidence as to: (i) whether any portion of the Real Property is in an area designated by
the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood
Hazard Property”); and (ii) if any portion of the Real Property is a Flood Hazard Property:
(A) whether the community in which such Real Property is located is participating in the National
Flood Insurance Program; (B) the Borrower’s written acknowledgment of receipt of written
notification from the Lender (1) as to the fact that such Real Property is a Flood Hazard Property
and (2) as to whether the community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program; and (C) copies of insurance policies or
certificates of insurance of the Borrower evidencing flood insurance satisfactory to the Lender and
naming the Lender as sole loss payee on behalf of the Lender;



(p) Evidence reasonably satisfactory to the Lender that the Real Property and the contemplated
use of the Real Property, are in compliance in all material respects with all applicable Laws
including without limitation health and Environmental Laws, including, but not limited to all
concentrated animal feedlot operations rules and regulations, erosion control ordinances, storm
drainage control laws, doing business and/or licensing laws, zoning laws (the evidence submitted as
to zoning should include the zoning designation made for the Real Property, the permitted uses of
the Real Property under such zoning designation and zoning requirements as to parking, lot size,
ingress, egress and building setbacks) and laws regarding access and facilities for disabled
persons including, but not limited to, the Federal Architectural Barriers Act, the Fair Housing
Amendments Act of 1988, the Rehabilitation Act of 1973 and the Americans with Disabilities Act of
1990;



(q) A certificate of the secretary of the Borrower together with true and correct copies of
the following: (i) the Articles of Organization of the Borrower, including all amendments thereto,
certified by the Office of the Secretary of State of the state of its incorporation and dated
within 30 days prior to the date hereof; (ii) the Operating Agreement of the Borrower, including
all amendments thereto; (iii) the resolutions of the Board of Directors of the Borrower authorizing
the execution, delivery and performance of this Agreement, the other Loan Documents, and all
documentation executed and delivered in connection therewith to which the Borrower is a party;
(iv) certificates of the appropriate government officials of the state of organization of the
Borrower as to its existence and good standing, and certificates of the appropriate government
officials in each state where each corporate Borrower does business and where failure to qualify as
a foreign corporation would have a material adverse effect on the business and financial condition
of the Borrower, as to its good standing and due qualification to do business in such state, each
dated within 30 days prior to the date hereof; and (v) the names of the officers of the Borrower
authorized to sign this Agreement and the other Loan Documents to be executed by each corporate
Borrower, together with a sample of the true signature of each such officer;


 


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(r) Legal opinion of Brown, Winick, Graves, Gross, Baskerville & Schoenebaum, P.L.C., legal
counsel for the Borrower, substantially in the form attached hereto as “Exhibit C”;



(s) An intercreditor and subordination agreement between the Lender and any holder of
Subordinated Debt as to the priority of the Lender’s security interests in the Collateral, rights
to payment following an Event of Default, and as to such other matters as reasonably requested by
the Lender;



(t) Evidence that the costs and expenses (including, without limitation, attorney’s fees)
referred to in Section 7.04, to the extent incurred and invoiced, shall have been paid in full;



(u) The results of the Lender’s inspection of the Collateral, and the Lender’s receipt of an
appraisal of the Collateral acceptable to Lender in its sole discretion;



(v) Satisfactory review by the Lender of any pending litigation relating to the Borrower;



(w) A Phase I Environmental Assessment in form and substance acceptable to the Lender;



(x) The Borrower shall have ordered the General Contractor to begin construction of the
Project, and construction shall have commenced;



(y) A schedule, certified by Borrower as accurate and complete, setting forth: (i) the
necessary licenses, permits and consents required by applicable federal, state, and local
governmental entities required for the lawful construction and operation of the Project; and (ii)
the deadlines to obtain such licenses, permits and consents so that the Completion Date occurs as
scheduled;



(z) Lender shall have received in form and substance acceptable to Lender, an agreement with
an Inspecting Engineer of recognized standing and acceptable to Lender, by which agreement such
Inspecting Engineer agrees to assist Lender in its inspection of the Project during construction,
review and approve requests for Advances on the Construction Loan on behalf of Lender, and provide
such additional services as Lender may reasonably require at the sole expense of Borrower;



(aa) The Borrower shall have provided commitment to the Lender of its Borrower’s Equity;



(bb) A Commodity Account Control Agreement for all commodity accounts kept and maintained by
the Borrower;



(cc) Evidence that the insurance required by Sections 5.01(j) and 5.01(r)(xii) has been
obtained by the Borrower; and



(dd) An assignment of the Borrower’s business interruption insurance policy, duly executed by
the Borrower and pursuant to which the Borrower shall have assigned to the Lender all of the
Borrower’s right, title and interest in and to it’s business interruption insurance policy, and
which assignment shall have been consented to and certified in writing by the other party(ies) to
the insurance policy;


 


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ARTICLE IV.

REPRESENTATIONS AND WARRANTIES




Section 4.01 Representations and Warranties of the Borrower. The Borrower represents
and warrants as follows:



(a) Borrower. The Borrower is a limited liability company duly organized and validly
existing and in good standing under the laws of the State of Iowa and is qualified to do business
in all jurisdictions in which the nature of its business makes such qualification necessary and
where failure to so qualify would have a Material Adverse Effect on its respective financial
condition or operations. The Borrower has the power and authority to own and operate its assets
and to carry on its business and to execute, deliver, and perform its obligations under the Loan
Documents to which it is or may become a party. There are no outstanding subscriptions, options,
warrants, calls, or rights (including preemptive rights) to acquire, and no outstanding securities
or instruments convertible into, membership interests (units) of the Borrower, except for those
transactions set forth on Schedule 4.01(a);



(b) The Loan Documents. The execution, delivery and performance by the Borrower of
the Loan Documents are within the Borrower’s powers, have been duly authorized by all necessary
action, do not contravene: (i) the articles of organization or operating agreements of the
Borrower; or (ii) any law or any contractual restriction binding on or affecting the Borrower, and
do not result in or require the creation of any lien, security interest or other charge or
encumbrance (other than pursuant to the terms of the Loan Documents) upon or with respect to any of
its respective properties;



(c) Governmental Approvals. No consent, permission, authorization, order or license
of any Governmental Authority or of any party to any agreement to which the Borrower is a party or
by which it or any of its respective property may be bound or affected, is necessary in connection
with the project, acquisition or other activity being financed by this Agreement, the execution,
delivery, performance or enforcement of the Loan Documents or the creation and perfection of the
liens and security interest granted thereby, except as such have been obtained and
are in full force and effect or which are required in connection with the exercise of remedies
hereunder;



(d) Enforceability. This Agreement is, and each other Loan Document to which the
Borrower is a party when delivered will be, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
the enforcement of creditor’s rights generally and by general principles of equity;


 


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(e) Financial Condition and Operations. The balance sheet of the Borrower , as of
August 31, 2007, and, with respect to the period ended August 31, 2007, the related statement of
cash flow of the Borrower for the fiscal period then ended, copies of which have been furnished to
the Lender, fairly present in all material respects the financial condition of the Borrower as at
such date, and the results of the operations of the Borrower for the period ended on such dates and
since August 31, 2007, there has been no material adverse change in such condition or operations;



(f) Litigation. Except as described on Schedule 4.01(f), there is no pending or
threatened action or proceeding affecting the Borrower or any of the transactions contemplated
hereby before any court, governmental agency or arbitrator, which may materially adversely affect
the financial condition or operations of the Borrower. As of the Closing Date, there are no
outstanding judgments against the Borrower;



(g) Use of Proceeds of Advances, etc. (i) No proceeds of the Loans will be used to
acquire any security in any transaction which is subject to Sections 13 and 14 of the Securities
Exchange Act of 1934 (provided, however, that this provision shall not prohibit Borrower from
investing in certain value added cooperatives for the purposes of carrying out its overall business
operations); (ii) the Borrower is not engaged in the business of extending credit for the purpose
of purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board of
Governors of the Federal Reserve System); and (iii) no proceeds of the Loans will be used to
purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock;



(h) Liens. Except as created by the Loan Documents, there is no lien, security
interest or other charge or encumbrance, and no other type of preferential arrangement, upon or
with respect to any of the properties or income of the Borrower, which secures Debt of any Person,
except as described in Schedule 5.02(a);



(i) Taxes. The Borrower has filed or caused to be filed all federal, state and local
tax returns that are required to be filed and has paid all other taxes, assessments, and
governmental charges or levies upon it and its property, income, profits and assets which are due
and payable, except where the payment of such tax, assessment, government charge or levy is being
contested in good faith and by appropriate proceedings and adequate reserves in compliance with
GAAP have been set aside on the Borrower’s books therefore;



(j) Solvency. As of and from and after the date of this Agreement, the Borrower:
(i) owns and will own assets the fair saleable value of which are: (A) greater than the total
amount of liabilities (including contingent liabilities); and (B) greater than the amount that will
be required to pay the probable liabilities of its then existing debts as they become absolute and
matured considering all financing alternatives and potential asset sales reasonably available to
it; (ii) has capital that is not unreasonably small in relation to its business as presently
conducted or any contemplated or undertaken transaction; and (iii) does not intend to incur and
does not believe that it will incur debts beyond its ability to pay such debts as they become due;


 


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(k) Location of Inventory and Farm Products; Third Parties in Possession; Crops. The
Borrower’s inventory and farm products pledged as collateral under the Security Agreement are
located at the places (or, as applicable, jurisdictions) specified in Schedule 4.01(k) for the
Borrower, except to the extent any such inventory and farm products are in transit.
Schedule 4.01(k) correctly identifies, as of the date hereof, the landlords or mortgagees, if any,
of each of its locations identified in Schedule 4.01(k) currently leased or owned by the Borrower.
Except for the Persons identified on Schedule 4.01(k), no Person other than the Borrower and the
Lender has possession of any of the Collateral. Except as described in above, none of its
Collateral has been located in any location within the past four months other than as set forth on
Schedule 4.01(k) for the Borrower;



(l) Office Locations; Fictitious Names; Predecessor Companies; Tax I.D. Number. The
Borrower’s chief place of business, its chief executive office, and its jurisdiction of
organization is located at the place identified for the Borrower on Schedule 4.01(l). Within the
last four months it has not had any other chief place of business, chief executive office, or
jurisdiction of organization. Schedule 4.01 (l) also sets forth all other places where the
Borrower keeps its books and records and all other locations where the Borrower has a place of
business. The Borrower does not do business nor has the Borrower done business during the past
five (5) years under any trade-name or fictitious business name except as disclosed on
Schedule 4.01(l). Schedule 4.01(l) sets forth an accurate list of all names of all predecessor
companies of the Borrower including the names of any entities it acquired (by stock purchase, asset
purchase, merger or otherwise) and the chief place of business and chief executive office of each
such predecessor company. For purposes of the foregoing, a “predecessor company” shall mean any
Person whose assets or equity interests are acquired by the Borrower or who was merged with or into
the Borrower within the last four months prior to the date hereof. The Borrower’s United States
Federal Income Tax I.D. Number and state organizational identification number are identified on
Schedule 4.01(l);



(m) Title to Properties. The Borrower has such title or leasehold interest in and to
the Real Property owned or leased by it as is necessary or desirable to the conduct of its business
and valid and legal title or leasehold interest in and to all of its Personal Property, including
those reflected on the financial statements of the Borrower previously delivered to Lender, except
those which have been disposed of by the Borrower subsequent to the date of such delivered
financial statements which dispositions have been in the ordinary course of business or as
otherwise expressly permitted hereunder;



(n) Disclosure. All factual information furnished by or on behalf of the Borrower or
its subsidiaries in writing to the Lender (including, without limitation, all factual information
contained in the Loan Documents) for purposes of or in connection with this Agreement, the other
Loan Documents or any transaction contemplated herein or therein is, and all other such factual
information hereafter furnished by or on behalf of the Borrower to the Lender, will be true and
accurate in all material respects on the date as of which such information is dated or certified
and not incomplete by omitting to state any fact necessary to make such information not misleading
in any material respect at such time in light of the circumstances under which such information was
provided;


 


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(o) Operation of Business. The Borrower possesses all licenses, permits, franchises,
patents, copyrights, trademarks, and tradenames, or rights thereto, necessary to conduct its
business substantially as now conducted and will obtain all such licenses, permits, franchises,
patents, copyrights, trademarks, and tradenames, or rights thereto necessary to conduct its
business as presently proposed to be conducted except those that the failure to so possess could
not reasonably be expected to have a Material Adverse Effect on its financial condition or
operations, and the Borrower is not in violation of any valid rights of others with respect to any
of the foregoing except violations that could not reasonably be expected to have such a Material
Adverse Effect;



(p) Intellectual Property. The Borrower owns, or has the legal right to use, all
patents, trademarks, tradenames, copyrights, technology, know-how and processes necessary for it
to conduct its business as currently conducted and will own or obtain the legal right to use all
patents, trademarks, tradenames, copyrights, technology, know-how and processes necessary for it to
conduct its business as currently conducted (collectively the “Intellectual Property”), except for
those the failure to own or have such legal right to use could not reasonably be expected to have a
Material Adverse Effect. As of the Closing Date, set forth in Schedule 4.01(p) is a list of all
Intellectual Property registered with the United States Copyright Office or the United States
Patent and Trademark Office and owned by the Borrower or that the Borrower has the right to use.
Except as provided in Schedule 4.01(p), no claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Borrower know of any such claim, and,
to the knowledge of the Borrower, the use of such Intellectual Property by the Borrower does not
infringe on the rights of any Person, except for such claims and infringements that, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect;



(q) Employee Benefit Plans. The Borrower is in compliance in all material respects
with the applicable provisions of the Employee Retirement Income Security Act of 1974, as amended,
and the regulations and published interpretations thereunder, the failure to comply with which
could have a Material Adverse Effect on the Borrower;



(r) Investment Company Act. The Borrower is not required to be registered as an
“investment company” within the meaning of the Investment Company Act of 1940, as amended;



(s) Compliance with Laws. The Borrower is in compliance in all material respects with
all laws, rules, regulations, ordinances, codes, orders, and the like, the failure to comply with
which could have a Material Adverse Effect on the Borrower;



(t) Environmental Compliance. Borrower, except as set forth in Schedule 4.01(t), is
in material compliance with all applicable Environmental Laws;



(u) Material Change. The Borrower has performed all of its material obligations,
other than those obligations for which performance is not yet due, under all Material Contracts
and, to the best knowledge of the Borrower, each other party thereto is in compliance with each
such Material Contract. Each such Material Contract is in full force and effect in accordance with
the terms thereof. The Borrower has made available a true and complete copy of each such Material
Contract for inspection by Lender; and


 


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(v) Member Investment. Any investment in the Borrower made by a member of the
Borrower is in the form of equity and shall not constitute a loan to the Borrower.



ARTICLE V.

COVENANTS OF THE BORROWER




Section 5.01. Affirmative Covenants. So long as any Loan Obligations remain unpaid or
the Lender shall have any commitment hereunder, the Borrower shall, unless the Lender shall
otherwise consent in advance in writing:



(a) Compliance with Laws, etc. Comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include, without limitation, (i) all
applicable zoning and land use laws; (ii) all employee benefit and Environmental Laws, and
(iii) paying before the same become delinquent all taxes, assessments and governmental charges
imposed upon it or upon its property except to the extent contested in good faith;



(b) Visitation Rights; Field Examination. At any reasonable time and from time to
time, permit the Lender or representatives, to (i) examine and make copies of and abstracts from
the records and books of account of the Borrower, and (ii) enter onto the property of the Borrower
to conduct unannounced field examinations and collateral inspections, with such frequency as Lender
in its sole discretion may deem appropriate, and (iii) discuss the affairs, finances, and accounts
of the Borrower with any of Borrower’s officers or directors. Borrower consents to and authorizes
Lender to enter onto the property of Borrower for purposes of conducting the examinations,
inspections and discussions provided above. Upon and during the occurrence of an Event of Default
or in the event that there are deemed by the Lender upon reasonable grounds to be any material
inconsistencies and/or material noncompliance with respect to any financial or other reporting on
the part of the Borrower, any and all visits and inspections deemed necessary or desirable on
account of such Event of Default, inconsistency and/or noncompliance shall be at the expense of the
Borrower. In addition to the foregoing, at any reasonable time and from time to time, the Borrower
also shall permit the Lender or representatives thereof, at the expense of the Lender, to
examine and make copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrower, and to discuss the affairs, finances and accounts of the Borrower with
any of its respective officers or directors;



(c) Reporting Requirements. Furnish to the Lender:



(i) As soon as available, but in no event later than 120 days after the end of each fiscal
year of the Borrower occurring during the term hereof, annual consolidated financial statements of
the Borrower, prepared in accordance with GAAP consistently applied and in a format that
demonstrates any accounting or formatting change that may be required by the various jurisdictions
in which the business of the Borrower is conducted (to the extent not inconsistent with GAAP).
Such financial statements shall: (i) be audited by independent certified public accountants
selected by the Borrower and acceptable to Lender; (ii) be accompanied by a report of such
accountants containing an certified opinion, without qualification, thereon acceptable to Lender;
(iii) be prepared in reasonable detail, and in comparative form; and (iv) include a balance sheet,
a statement of income, a statement of stockholders’, members’ or partner’s equity, a statement of
cash flows, and all notes and schedules relating thereto and any management letter;


 


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(ii) Beginning with the first (1st) month following the Closing Date, as soon as
available and in any event within 30 days after the end of each month, balance sheets of the
Borrower as of the end of such month and statement of income of the Borrower for the period
commencing at the end of the previous fiscal year and ending with the end of such month, prepared
in accordance with GAAP and certified by an authorized officer of the Borrower;



(iii) As soon as available but in no event later than 30 days after the end of each of the
first three fiscal quarters of each fiscal year of the Borrower occurring during the term hereof,
unaudited quarterly consolidated financial statements of the Borrower, in each case prepared in
accordance with GAAP consistently applied (except for the omission of footnotes and for the effect
of normal year-end audit adjustments) and in a format that demonstrates any accounting or
formatting change that may be required by various jurisdictions in which the business of the
Borrower is conducted (to the extent not inconsistent with GAAP). Each of such financial
statements shall (i) be prepared in reasonable detail and in comparative form, including a
comparison of actual performance to the budget for such quarter and year-to-date, delivered to
Lender under Subsection 5.01(c)(vi) below, and (ii) include a balance sheet, a statement of income
for such quarter and for the period year-to-date, and such other quarterly statements as Lender may
specifically request which quarterly statements shall include any and all supplements thereto.
Such quarterly statements shall be certified by an authorized officer of the Borrower, and
be accompanied by a Compliance Certificate which: (A) states that no Event of Default, and no
event or condition that but for the passage of time, the giving of notice or both would constitute
an Event of Default, has occurred or is in existence; and (B) shows in detail satisfactory to the
Lender the calculation of, and the Borrower’ compliance with, each of the covenants contained in
Sections 5.01(d), 5.01(e), 5.01(f), and 5.01(g);



(iv) promptly upon the Lender’s request therefor, copies of all reports and notices which the
Borrower or any of its subsidiaries files under ERISA with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor or which the Borrower or any
its subsidiary receives from such Corporation;



(v) notwithstanding the foregoing Section 5.01(c)(iv), provide to Lender within 30 days after
it becomes aware of the occurrence of any Reportable Event (as defined in Section 4043 of ERISA)
applicable to the Borrower or any of its Subsidiaries, a statement describing such Reportable Event
and the actions it proposes to take in response to such Reportable Event;



(vi) by November 1 of each fiscal year of the Borrower, an annual (with monthly break out)
operating and capital assets budget of the Borrower for the immediately succeeding fiscal year
containing, among other things, pro forma financial statements and forecasts for all planned lines
of business;



(vii) as soon as available but in any event not more than 30 days after the end of each month,
production reports for the immediately preceding calendar month setting forth
soybean oil inputs, biodiesel output, feedstock and glycerin output, and natural gas usage,
together with such additional production information as requested by Lender;


 


31









 





(viii) promptly, upon the occurrence of an Event of Default or an event or condition that but
for the passage of time or the giving of notice or both would constitute an Event of Default,
notice of such Event of Default or event;



(ix) promptly after the receipt thereof, a copy of any management letters or written reports
submitted to the Borrower by its independent certified public accountants with respect to the
business, financial condition or operation of the Borrower;



(x) promptly after the receipt thereof, a copy of any notice of default under any Long-Term
Marketing Agreement;



(xi) promptly after transmittal or filing thereof by the Borrower, copies of all proxy
statements, notices and reports as it shall send to its members and copies of all registration
statements (without exhibits) and all reports which it files with the Securities and Exchange
Commission (or any governmental body or agency succeeding to the functions of the Securities and
Exchange Commission), and promptly after the receipt thereof by the Borrower, copies of all
management letters or similar documents submitted to the Borrower by independent certified public
accountants in connection with each annual and any interim audit of the accounts of the Borrower or
of the Borrower and any of its Subsidiaries.



(xii) such other information respecting the condition or operations, financial or otherwise,
of the Borrower or any of its respective subsidiaries as the Lender may from time to time
reasonably request;



(xiii) promptly after the commencement thereof, notice of the commencement of all actions,
suits, or proceedings before any court, arbitrator, or government department, commission, board,
bureau, agency, or instrumentality affecting the Borrower or any of its subsidiaries which, if
determined adversely, could have a Material Adverse Effect on any of the Borrower or its
subsidiaries;



(xiv) without limiting the provisions of Section 5.01(c)(xiii) above, promptly after receipt
thereof, notice of the receipt of all pleadings, orders, complaints, indictments, or any other
communication alleging a condition that may require the Borrower or any of its subsidiaries to
undertake or to contribute to a cleanup or other response under all laws relating to environmental
protection, or which seek penalties, damages, injunctive relief, or criminal sanctions related to
alleged violations of such laws, or which claim personal injury or property damage to any person as
a result of environmental factors or conditions;



(xx) promptly after filing, receipt or becoming aware thereof, copies of any filings or
communications sent to and notices or other communications received by the Borrower or any of its
subsidiaries from any Governmental Authority, including, without limitation, the Securities and
Exchange Commission, the FCC, the PUC, or any other state utility commission relating to any
material noncompliance by the Borrower or any of its subsidiaries with any laws or with respect to
any matter or proceeding the effect of which, if adversely determined, could have a Material
Adverse Effect on any of the Borrower of its subsidiaries;


 


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(xxi) promptly after becoming aware thereof, notice of any matter which has had or could have
a Material Adverse Effect on any of the Borrower or its subsidiaries



(d)  Working Capital. Achieve and maintain, Working Capital of at least $4.0 million
at the Closing Date and continually thereafter;



(e) Tangible Net Worth. On the Closing Date, the Borrower’s Tangible Net Worth shall
be not less than $21,500,000.00. After the Closing Date, the Borrower shall maintain Tangible Net
Worth, measured at the end of each fiscal year, in an amount equal to the lesser of: (i) the
Borrower’s Tangible Net Worth at the end of the immediately preceding fiscal year plus
$500,000.00; or (ii) the Borrower’s Tangible Net Worth at the end of the immediately preceding
fiscal year plus the Borrower’s retained earnings at the end of the current fiscal year;



(f) Tangible Owner’s Equity. Achieve and maintain Tangible Owner’s Equity of at least
50% beginning at the end of the 24th month following the Completion Date and maintained
and measured annually thereafter;



(g) Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio of not less
than 1.25 to 1.00, measured initially at the end of the 12th month following the
Completion Date and maintained and measured annually thereafter at each fiscal year end.



(h) Liens. There shall be no lien, security interest or other charge or encumbrance,
and no other type of preferential arrangement, upon or with respect to any of the properties or
income of the Borrower, which secures Debt of any Person, except for the security interests of the
Security Agreement or except as described in Schedule 5.02(a);



(i) Landlord and Mortgagee Waivers. Obtain and furnish to the Lender as soon as
available, waivers, acknowledgments and consents, duly executed by each: (i) real property owner,
landlord and mortgagee having an interest in any of the premises owned or leased by the Borrower or
in which any Collateral of the Borrower is located or to be located (and if no Collateral of
Borrower is located at a parcel of property not owned or leased by a Borrower, no such waivers,
acknowledgments or consents will be required); and (ii) each third party holding any Collateral,
all in form and substance acceptable to the Lender, except as otherwise agreed to by the Lender;



(j) Insurance. Maintain insurance with financially sound and reputable insurance
companies in such amounts and covering such risks as are usually carried by entities engaged in
similar businesses and owning similar properties in the same general areas in which the Borrower
operates, and make such increases in the type of amount or coverage as Lender may reasonably
request, provided that in any event the Borrower will maintain and cause each of its subsidiaries
to maintain workers’ compensation insurance, property insurance and comprehensive general liability
insurance reasonably satisfactory to the Lender. The Borrower shall maintain, at a minimum,
directors and officers liability insurance, commercial liability insurance, business interruption
insurance, builder’s risk insurance, and general commercial property insurance. All such policies
insuring any collateral for the Borrower’s obligations to Lender shall have lender or mortgagee
loss payable clauses or endorsements in form and substance acceptable to Lender. Each insurance
policy covering Collateral shall be in compliance with the requirements of the Security Agreement;


 


33









 





(k) Property and Insurance Maintenance. Maintain and preserve all of its property and
each and every part and parcel thereof that is necessary to or useful in the proper conduct of its
business in good repair, working order, and condition, ordinary wear and tear excepted, and in
compliance with all applicable laws, and make all alterations, replacements, and improvements
thereto as may from time to time be necessary in order to ensure that its properties remain in good
working order and condition and compliance. The Borrower agrees that upon the occurrence and
continuing existence of an Event of Default, at Lender’s request, which request may not be made
more than once a year, the Borrower will furnish to Lender a report on the condition of the
Borrower’s and any of its subsidiaries’ property prepared by a professional engineer satisfactory
to Lender;



(l) Keeping Books and Records. Maintain and cause each of its subsidiaries to,
maintain proper books of record and account in which full, true, and correct entries in conformity
with generally accepted accounting principles shall be made of all dealings and transactions in
relation to its business and activities;



(m) Food Security Act Compliance. If the Borrower acquires any Collateral which may
have constituted farm products in the possession of the seller or supplier thereof, such 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 reasonable actions necessary, as prescribed by the Food Security Act, to
purchase farm products free of liens (except the liens granted pursuant hereto); provided, however,
that such 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
generally accepted accounting principles. Upon the Lender’s request made, the Borrower agrees to
forward to the Lender promptly after receipt copies of all notices of liens and master lists of
Effective Financing Statements delivered to the Borrower pursuant to the Food Security Act, which
notices and/or lists pertain to any of the Collateral. Upon the Lender’s request, the Borrower
agrees to provide the Lender with the names of Persons who supply the Borrower with such farm
products and such other information as the Lender may reasonably request with respect to such
Persons;


 


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(n) Warehouse Receipts. If any warehouse receipt or receipts in the nature of a
warehouse receipt is issued in respect of any portion of the Collateral, then the Borrower:
(i) will not permit such warehouse receipt or receipts in the nature thereof to be “negotiable” as
such term is used in Article 7 of the Uniform Commercial Code; and (ii) will deliver all such
receipts to the Lender (or a Person designated by the Lender) within five (5) days of the Lender’s
request and from time to time thereafter. If no Event of Default exists, the Lender agrees to
deliver to such Borrower any receipt so held by the Lender upon such Borrower’s request in
connection with such sale or other disposition of the underlying inventory, if such disposition is
in ordinary course of such Borrower’s business;



(o) Management of Borrower. Management of the Borrower shall be maintained as set
forth on Schedule 5.01(o) hereto, unless otherwise approved in Lender’s reasonable discretion;



(p) Compliance with Other Agreements. Borrower will perform in all material respects
all obligations and abide in all material respects by all covenants and agreements contained in the
following agreements: (i) any and all Long Term Marketing Agreements; and (ii) any other Material
Contracts; and



(q) Commodity Account Control Agreement. The Borrower shall execute and deliver to
the Lender a Commodity Account Control Agreement for any commodity accounts maintained by the
Borrower.



(q) Additional Assurances. Make, execute and deliver to Lender such promissory notes,
mortgages, deeds of trust, financing statements, control agreements, instruments,
documents and other agreements as Lender or its counsel may reasonably request to evidence and
secure the Loans and to perfect all Security Interest; and



(r) Construction of Project. Borrower shall:



(i) diligently proceed with construction of the Project in accordance with the Plans and
Specifications and in accordance with all applicable laws and ordinance and will complete the
Project on or before the Completion Date;



(ii) use the proceeds of all Advances solely to pay the Project Costs as specified in the
Project Sources and Uses Statement;



(iii) use its best efforts to require the Contractor(s) to comply with all rules, regulations,
ordinances and laws relating to work on the Project;



(iv) obtain the Lender’s prior written approval of any change in the Plans and Specifications
for the Project approved by the Lender which might materially adversely affect the value of the
Lender’s security, and has a cost of $50,000.00 or greater. The Lender will have a reasonable time
to evaluate any requests for its approval of any changes referred to in this paragraph. The Lender
may approve or disapprove changes in its discretion, subject to the foregoing provisions of this
Section 5.01(r)(iv). If it reasonably appears to the Lender that any change may increase the
Project Costs, the Lender may require the Borrower to deposit additional funds with the Lender
pursuant to the provisions of this Agreement in an amount sufficient to cover the increased costs
as a condition to giving its approval;


 


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(v) comply with and keep in effect all necessary permits and approvals obtained from any
Governmental Authority relating to the lawful construction of the Project. The Borrower will
comply with all applicable existing and future laws, regulations, orders, and requirements of any
Governmental Authority, judicial, or legal authorities having jurisdiction over the Real Property
or Project, and with all recorded restrictions affecting the Real Property;



(vi) furnish to the Lender from time to time on request by the Lender, in a form acceptable to
the Lender, correct lists of all contractors and subcontractors employed in connection with
construction of the Project and true and correct copies of all executed contracts and subcontracts.
The Lender may contact any contractor or subcontractor to verify any facts disclosed in the lists,
Borrower must consent to the disclosure of such information by the contractors and subcontractors
to Lender or its agents upon Lender’s request, and Borrower must assist Lender or its agents in
obtaining such information upon Lender’s request;



(vii) upon completion of the building foundation of the Project, deliver to the Lender an
“as-built” survey of the Real Property which: (a) sets forth the location and exterior lines and
egress and other improvements completed on the Real Property and demonstrates compliance with all
applicable setback requirements; (b) demonstrates that the Project is entirely within the exterior
boundaries of the Real Property and any building restriction lines and does not
encroach upon any easements or rights-of-way; and (c) contains such other information as the
Lender may reasonably request;



(viii) not purchase any materials, equipment, fixtures, or articles of personal property
placed in the Project prior to the Conversion Date under any security agreement or other agreement
where the seller reserves or purports to reserve title or the right of removal or repossession, or
the right to consider them personal property after their incorporation in the work of construction,
unless authorized by the Lender in writing;



(ix) provide the Lender and its representatives with access to the Real Property and the
Project at any reasonable time and upon reasonable notice to enter the Real Property and inspect
the work or construction and all materials, plans, specifications, and other matters relating to
the construction. The Lender will also have the right to, at any reasonable time and upon
reasonable notice, examine, copy, and audit the books, records, accounting data, and other
documents of the Borrower and its contractors relating to the Real Property or construction of the
Project;



(x) pay and discharge all claims and liens for labor done and materials and services furnished
in connection with the construction of the Project. The Borrower will have the right to contest in
good faith any claim or lien, provided that it does so diligently and without prejudice to the
Lender or the ability to obtain title insurance in the manner required by this Agreement and the
Disbursing Agreement. Upon the Lender’s request, the Borrower will promptly provide a bond, cash
deposit, or other security reasonably satisfactory to the Lender to protect the Lender’s interest
and security should the contest be unsuccessful;


 


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(xi) at the Lender’s request and expense, post signs on the Real Property for the purpose of
identifying the Lender as the “Lender.” At the request of the Lender, or the participating local
community banks, the Borrower will use its best efforts to identify the Lender as the lender in
publicity concerning the Project;



(xii) maintain in force until full payment of the builder’s risk insurance in such amounts,
form, risk coverage, deductibles, insurer, loss payable and cancellation provisions as reasonably
required by the Lender. The Lender’s approval, however, will not be a representation of the
solvency of any insurer or the sufficiency of any amount of insurance;



(xiii) cooperate at all times with the Lender in bringing about the timely completion of the
Project, and resolve all disputes arising during the work of construction in a manner which will
allow work to proceed expeditiously. With respect to such disputes, the Borrower will have the
right to contest in good faith claims resulting in disputes, provided that it does so diligently
and without prejudice to the Lender. Upon the Lender’s request, the Borrower will promptly provide
a bond, cash deposit, or other security reasonably satisfactory to the Lender to protect the
Lender’s interest and security should the contest be unsuccessful;



(xiv) pay the Lender’s and the Disbursing Agent’s out-of-pocket costs and expenses incurred in
connection with the making or disbursement of the Loans or in the exercise of any of its rights or
remedies under this Agreement, including but not limited to title insurance and escrow charges,
disbursing agent fees, recording charges, and mortgage taxes, reasonable legal fees and
disbursements, and reasonable fees and costs for services which are not customarily performed by
the Lender’s salaried employees and are not specifically covered by the fees charged to originate
the Loan, if any. The provision of this paragraph will survive the termination of this Agreement,
the Supplements and the repayment of the Loans;



(xv) keep true and correct financial books and records on a cash basis for the construction of
the Project and maintain adequate reserves for all contingencies. If required by the Lender, the
Borrower will submit to the Lender at such times as it requires (which will in no event be more
often than monthly) a statement which accurately shows the application of all funds expended to
date for construction of the Project and the source of those funds as well as the Borrower’s best
estimate of the funds needed to complete the Project and the source of those funds. The Borrower
will promptly supply the Lender with any financial statements or other information concerning its
affairs and properties as the Lender may reasonably request, and will promptly notify the Lender of
any material adverse change in its financial condition or in the physical condition of the Property
or Project;



(xvi) comply with the requirements of any commitment or agreement entered into by Borrower
with any Governmental Authority to assist the construction or financing of the Real Property and/or
Project and with the terms of all applicable laws, regulations, and requirements governing such
assistance;


 


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(xvii) indemnify and hold the Lender harmless from and against all liabilities, claims,
damages, reasonable costs, and reasonable expenses (including but not limited to reasonable legal
fees and disbursements) arising out of or resulting from any defective workmanship or materials
occurring in the construction of the Project. Upon demand by the Lender, the Borrower will defend
any action or proceeding brought against the Lender alleging any defective workmanship or
materials, or the Lender may elect to conduct its own defense at the reasonable expense of the
Borrower. The provisions of this paragraph will survive the termination of this Agreement, the
Supplements and the repayment of the Loans; and



(xviii) obtain and deliver to the Lender copies of all necessary occupancy certificates
relating to the Project.



Section 5.02. Negative Covenants. So long as any of the Loan Obligations remain
unpaid or the Lender shall have any commitment hereunder, the Borrower will not, without the prior
written consent of the Lender:



(a) Liens, etc. Create or suffer to exist, or permit any of its subsidiaries to
create or suffer to exist, any lien, security interest or other charge or encumbrance, or any other
type of preferential arrangement, upon or with respect to any of its properties, whether now owned
or hereafter acquired, or assign, or permit any of its subsidiaries to assign, any right to receive
income, in each case to secure any Debt (as defined below) of any Person, other than:



(i) those described on Schedule 5.02(a) hereto and renewals and extensions on the same or
substantially the same terms and conditions and at no increase in the debt or obligation; or



(ii) liens or security interests which are subject to an intercreditor and subordination
agreement in form and substance reasonably acceptable to Lender in Lender’s sole discretion; or



(iii) the liens or security interests of the Security Agreement; or



(iv) liens (other than liens relating to environmental liabilities or ERISA) for taxes,
assessments, or other governmental charges that are not more than 30 days overdue or, if the
execution thereof is stayed, which are being contested in good faith by appropriate proceedings
diligently pursued and for which adequate reserves have been established; or



(v) liens of warehousemen, carriers, landlords, mechanics, materialmen, or other similar
statutory or common law liens securing obligations that are not yet due and are incurred in the
ordinary course of business or, if the execution thereof is stayed, which are being contested in
good faith by appropriate proceedings diligently pursued and for which adequate reserves have been
established in accordance with generally accepted accounting principles; or


 


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(vi) liens resulting from good faith deposits to secure payments of workmen’s compensation
unemployment insurance, or other social security programs or to secure the performance of tenders,
leases, statutory obligations, surety, customs and appeal bonds, bids or contracts (other than for
payment of Debt); or



(vii) any attachment or judgment lien not constituting an Event of Default; or



(viii) liens arising from filing UCC financing statements regarding leases not prohibited by
this Agreement; or



(ix) customary offset rights of brokers and deposit banks arising under the terms of
securities account agreements and deposit agreements; or



(x) any real estate easements and easements, covenants and encumbrances that customarily do
not affect the marketable title to real estate or materially impair its use; or



(b) Distributions, etc. Declare or pay any dividends, purchase or otherwise acquire
for value any of its membership interests (units) now or hereafter outstanding, or make any
distribution of assets to its stockholders, members or general partners as such, or permit any of
its subsidiaries to purchase or otherwise acquire for value any stock, membership interest or
partnership interest of the Borrower, provided, however, the Borrower may: (i) declare and pay
dividends and distributions payable in membership interests (units); (ii) purchase or otherwise
acquire shares of the membership interests (units) of the Borrower with the proceeds received from
the issuance of new membership interests (units); (iii) pay redemptions, dividends or distributions
in an amount not to exceed, in the aggregate, 50% of the Borrower’s immediately preceding fiscal
year’s Net Income (“Allowed Distributions”); (iv) pay dividends or distributions which are
immediately reinvested in the Borrower (“Reinvestment Distributions”); (v) complete the
transactions reflected on Schedule 4.01(a) and (vi) after payment of the Excess Cash Flow Payment
required by Section 2.17, if any, pay additional distributions in an amount reasonably acceptable
to Lender (“Excess Distributions”), provided, however, that immediately prior to the proposed
payment of any dividends or distributions permitted by this Section 5.02(a), or after giving effect
thereto, no Default or Event of Default shall exist; or



(c) Capital Expenditures. Except for costs identified in the Project Costs and Uses
Statement, make any investment in fixed assets in the aggregate amount of $500,000.00 during any
fiscal year during the term of this Agreement; or



(d) Consolidation, Merger, Dissolution, Etc. Directly or indirectly, merge or
consolidate with any other Person or permit any other Person to merge into or with or consolidate
with the Borrower or any of its subsidiaries; or



(e) Indebtedness, etc. Create, incur, assume or suffer to exist any Debt or other
indebtedness, liabilities or obligations, whether matured or unmatured, liquidated or unliquidated,
direct or contingent, joint or several, without the prior written consent of the Lender, except:
(i) the liabilities of the Borrower to the Lender hereunder; (ii) trade accounts payable and
accrued liabilities (other than Debt) arising in the ordinary course of the Borrower’s business;
(iii) Subordinated Debt; and (iv) the liabilities of the Borrower described on Schedule 5.02(a); or


 


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(f) Organization; Name; Chief Executive Office. Change its state of organization,
name or the location of its chief executive office without the prior written consent of the
Lender, except that the principal office shall be moved to the plant site when construction of the
administration office is substantially complete; or



(g) Loans, Guaranties, etc. Make any loans or advances to (whether in cash, in-kind,
or otherwise) any Person, or directly or indirectly guaranty or otherwise assure a creditor against
loss in respect of any indebtedness, obligations or liabilities (contingent or otherwise) of any
Person; or



(h) Subsidiaries; Affiliates. Form or otherwise acquire any subsidiary or affiliated
business, or acquire the assets of or acquire any equity or ownership interest in any Person,
unless such subsidiary, affiliate or Person executes and delivers to the Lender: (i) a guaranty of
all of the Loan Obligations, in form and substance acceptable to the Lender in its sole discretion;
(ii) security agreements in form substantially similar to the Security Agreement; and (iii) such
other documents and amendments to this Agreement and the other Loan Documents as the Lender shall
reasonably require; or



(i) Transfer of Assets. Sell, lease, assign, transfer, or otherwise voluntarily
dispose of any of its assets, or permit any of its subsidiaries to sell, lease, assign, transfer,
or otherwise voluntarily dispose of any of its assets except: (i) dispositions of inventory in the
ordinary course of business; and (ii) dispositions of: (A) obsolete or worn out equipment;
(B) equipment or real property not necessary for the operation of its business; or (C) equipment or
real property which is replaced with property of equivalent or greater value as the property which
is disposed;



(j) Lines of Business. Engage in any line or lines of business activity other than
the production of biodiesel and related by products;



(k) Transactions with Affiliates. Directly or indirectly enter into or permit to
exist any transaction (including the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate or with any director, officer or employee of the
Borrower or any Affiliate, except (i) transactions listed on Schedule 5.02(k), (ii) transactions in
the ordinary course of and pursuant to the reasonable requirements of the business of the Borrower
or any of its subsidiaries and upon fair and reasonable terms which are fully disclosed to Lender
and are no less favorable to the Borrower or such subsidiary than would be obtained in a comparable
arm’s length transaction with a person or entity that is not an Affiliate, and (iii) payment of
compensation to directors, officers and employees in the ordinary course of business for services
actually rendered in their capacities as directors, officers and employees, provided such
compensation is reasonable and comparable with compensation paid by companies of like nature and
similarly situated. Notwithstanding the foregoing, upon the election of Lender, no payments may be
made with respect to any items set forth in clauses (i) and (ii) of the preceding sentence upon the
occurrence and during the continuation of a Potential Default or an Event of Default; or


 


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(l) Management Fees and Compensation. Directly or indirectly pay any management,
consulting or other similar fees to any person, except legal or consulting fees paid to persons or
entities that are not Affiliates of the Borrower or its subsidiaries for services actually rendered
and in amounts typically paid by entities engaged in the Borrower’s or such subsidiary’s business.



(m) Material Control or Management. At any time allow to exist circumstances such
that: (i) One or more of the members of the Borrower as of the date hereof shall fail, in the
aggregate, to own, directly or indirectly, 100% of the common (voting) membership interests in the
Borrower, or (ii) there should be any change in the chief executive officer of the Borrower, unless
within 90 days of such event a person reasonably acceptable to Lender is appointed to such
position.



(o) Amendments to Organizational Documents. Amend its operating agreement, management
agreement or any other organizational documents in any respect without the prior written consent of
the Lender.



ARTICLE VI.

EVENTS OF DEFAULT AND REMEDIES




Section 6.01. Events of Default. Each of the following events shall be an “Event of
Default”:



(a) The Borrower shall fail to pay any installments of principal or interest, fees, expenses,
charges or other amounts payable hereunder or under the other Loan Documents or to make any deposit
of funds required under this Agreement when due; or



(b) Any representation or warranty made by the Borrower, or any of its officers or directors
under or in connection with any Loan Document shall prove to have been incorrect in any material
respect when made; or



(c) The Borrower shall fail to perform or observe any term, covenant or agreement contained in
Sections 5.01(d), (e), (f) or (g) or take any action as prohibited by Section 5.02; or



(d) The Borrower shall fail to deliver the financial statements or Compliance Certificate
under Section 5.01(c) within 5 days of the date due; or



(e) The Borrower shall fail to perform or observe any term, covenant or agreement contained in
any Loan Document (other than those listed in clauses (a) through (d) of this Section 6.01) on its
part to be performed or observed (other than the covenants to pay the Loan Obligations) and any
such failure shall remain unremedied for ten (10) days after written notice thereof shall have been
given to the Borrower by the Lender, provided, however, that no Event of Default shall be deemed to
exist if, within said ten (10) day period, Borrower have commenced appropriate action to remedy
such failure and shall diligently and continuously pursue such action until such cure is completed,
unless such cure is or cannot be completed within thirty (30) days after written notice shall have
been given; or


 


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(f) The Borrower shall fail to pay any indebtedness in an amount in excess of $100,000.00
(either in any individual case or in the aggregate) excluding indebtedness evidenced by the Notes
and excluding Ordinary Trade Payable Disputes, or any interest or premium thereon, when due
(whether by 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 relating to such indebtedness; or any other default under any agreement or instrument
relating to any such indebtedness, or any other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if the effect of such
default or event is to accelerate, or to permit the acceleration of, the maturity of such
indebtedness (excluding Ordinary Trade Payable Disputes); or any such indebtedness shall be
declared to be due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof (excluding Ordinary Trade Payable
Disputes); or



(g) The Borrower shall generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against the Borrower seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee or other similar official for it or
for any substantial part of its property, and, in the case of any such proceeding instituted
against it (but not instituted by it) either such proceeding shall remain undismissed or unstayed
for a period of 30 days or any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against it or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its property) shall
occur; or the Borrower shall take any corporate action to authorize any of the actions set forth
above in this subsection; or 



(h) Any one or more judgment(s) or order(s) for the payment of money in excess of $100,000.00
in the aggregate shall be rendered against the Borrower and either: (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or order; or (ii) there shall be any
period of 10 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



(i) Any provision of any Loan Document shall for any reason cease to be valid and binding on
the Borrower or the Borrower shall so state in writing; or



(j) The Mortgage or the Security Agreement shall for any reason, except to the extent
permitted by the terms thereof, cease to create a valid lien, encumbrance or security interest in
any of the property purported to be covered thereby; or


 


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(k) The termination of any Long Term Marketing Agreement prior to its stated expiration date,
unless such Long Term Marketing Agreement is replaced by another Long Term Marketing Agreement
acceptable to the Lender, within thirty (30) days of the termination of such Long Term Marketing
Agreement; or



(l) The Borrower dissolves, suspends, or discontinues doing business; or



(m) Construction of the Project is halted or abandoned prior to completion for any period of
thirty (30) consecutive days for any cause which is not beyond the reasonable control of the
Borrower, its contractors and subcontractors; or



(n) The construction of the Project shall be delayed for any reason and for such period that,
in the reasonable judgment of the Lender, the Project will not be completed by the Completion Date.
If such delay is curable and if Borrower has not been given a notice of a similar breach within
the preceding twelve (12) months, it may be cured (and no Event of Default will have occurred) if
Borrower cures the failure within thirty (30) days, which shall include advancing the
progress of the Project to the point that, in the reasonable judgment of the Lender, the
Project will be completed by the Completion Date; or



(o) Any event, change or condition not referred to elsewhere in this Section 6.01 should occur
which results in a Material Adverse Effect on the Borrower, any subsidiary or any guarantor of the
Borrower’s obligations hereunder; or



(p) Any guarantee, suretyship, subordination agreement, maintenance agreement, or other
agreement furnished in connection with the Borrower’s obligations hereunder and under any Note
shall, at any time, cease to be in full force and effect, or shall be revoked or declared null and
void, or the validity or enforceability thereof shall be contested by the guarantor, surety or
other maker thereof, or the Guarantor shall deny any further liability or obligations thereunder,
or shall fail to perform its obligations thereunder, or any representation or warranty set forth
therein shall be breached, or the Guarantor shall breach or be in default under the terms of any
other agreement with Lender (including any loan agreement or security agreement); or



(q) The loss, suspension or revocation of, or failure to renew, any franchise, license,
certificate, permit, authorization, approval or the like now held or hereafter acquired by the
Borrower or any of its subsidiaries, if such loss, suspension, revocation or failure to renew could
reasonably be expected to have a Material Adverse Effect on the Borrower or (ii) any regulatory or
Governmental Authority replaces the management of the Borrower or any of its subsidiaries or
assumes control over the Borrower or such subsidiary; or



(r) The Borrower should breach or be in default under a Material Contract in any material
respect, including any material breach or default, or any termination shall have occurred, or any
other event which would permit any party other than the Borrower to cause a termination, or any
Material Contract shall have ceased for any reason to be in full force and effect prior to its
stated or optional expiration date; or


 


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(s) The Borrower should terminate, change, amend or restate, without the Lender’s prior
consent any Material Contract, or any material Construction Contract.



Section 6.02. Remedies. Upon the occurrence of an Event of Default and at any time
while such Event of Default is continuing, the Lender:



(a) may accelerate the due date of the unpaid principal balance of the Notes, all accrued but
unpaid interest thereon and all other amounts payable under this Agreement making such amounts
immediately due and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith immediately due and payable, without presentment, notice of intent to
accelerate or notice of acceleration, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to any of the Borrower under the Federal
Bankruptcy Code, the Notes, all such interest and all such amounts shall automatically become due
and payable,
without presentment, demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower;



(b) may withhold or direct the Disbursing Agent to withhold any one or more Advances in its
discretion, and terminate the Lender’s obligations, if any, under this Agreement to make any
Advances whereupon the commitment and obligations of the Lender to extend credit or to make
Advances hereunder shall terminate, and no disbursement of Loan funds by the Lender will cure any
default of the Borrower, unless the Lender agrees otherwise in writing;



(c) may, by notice to the Borrower, obtain the appointment of a receiver to take possession of
all Collateral of the Borrower, including, but not limited to all personal property, including all
fixtures and equipment leased, occupied or used by any of the Borrower. Borrower hereby
irrevocably consents to the appointment of such receiver and agrees to cooperate and assist any
such receiver as reasonably requested to facilitate the transfer of possession of the Collateral
to such receiver and to provide such receiver access to all books, records, information and
documents as requested by such receiver;



(d) in its discretion, enter the Real Property and take any and all actions necessary in its
judgment to complete construction of the Project, including but not limited to making changes in
Plans and Specifications, work or materials, and entering into, modifying, or terminating any
contractual arrangements, subject to the Lender’s right at any time to discontinue any work without
liability. If the Lender elects to complete the Project, it will not assume any liability to the
Borrower or any other person for completing the Project or for the manner or quality of
construction of the Project, and the Borrower expressly waives any such liability. The Borrower
irrevocably appoints the Lender as its attorney-in-fact, with full power of substitution, to
complete the Project in the Borrower’s name, or the Lender may elect to complete construction in
its own name. In any event, all sums expended by the Lender in completing construction will be
considered to have been disbursed to the Borrower and will be secured by the Mortgage and



 


44









 






any other instruments or documents securing the Loans, and any such sums that cause the principal amount of
the Loans to exceed the face amount of the Notes will be considered to be an additional loan to the
Borrower bearing interest at the rate provided in the Notes and will be secured by the Mortgage
and any other instrument or documents securing the Loans. The Lender will not have any obligation
under the Plans and Specifications prepared for the Project, any studies, data, and drawings with
respect thereto prepared by or for Borrower, or the contracts and agreements relating to the Plans
and Specifications, or the aforesaid studies, data, and drawings, or to the construction of the
Project unless it expressly hereafter agrees in writing. The Lender will have the right to
exercise any rights of the Borrower under those contracts and agreements or with respect to such
Plans and Specifications, studies, data, and drawings upon any default by the Borrower under this
Agreement, and shall have such other rights and remedies with respect thereto as are afforded a
secured creditor under applicable law; and



(e) may, by notice to the Borrower, require the Borrower to pledge to the Lender as security
for the Loan Obligations an amount in immediately available funds equal to the then outstanding
Letter of Credit Liabilities, such funds to be held in an interest bearing cash collateral account
at the Lender without any right of withdrawal by the Borrower; provided, however, that in
the event of an actual or deemed entry of an order for relief with respect to the Borrower or any
of its subsidiaries under the Federal Bankruptcy Code, the Borrower shall, without notice, pledge
to the Lender as security for the Loan Obligations an amount in immediately available funds equal
to the then outstanding Letter of Credit Liabilities, such funds to be held in such an interest
bearing cash collateral account at the Lender; and



(f) may exercise all other rights and remedies afforded to the Lender under the Loan Documents
or by applicable law or equity.



Section 6.03. Remedies Cumulative. Each and every power or remedy herein specifically
given shall be in addition to every other power or remedy, existing or implied, given now or
hereafter existing at law or in equity, and each and every power and remedy herein specifically
given or otherwise so existing may be exercised from time to time and as often and in such order as
may be deemed expedient by Lender, and the exercise or the beginning of the exercise of one power
or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any
other power or remedy. No delay or omission of Lender in the exercise of any right or power
accruing hereunder shall impair any such right or power or be construed to be a waiver of any
default or acquiescence therein.



ARTICLE VII.

MISCELLANEOUS




Section 7.01. Amendments, etc. No amendment or waiver of any provision of any Loan
Document to which the Borrower is a party, nor any consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be agreed or consented to by the
Lender and the Borrower in writing, and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.



 


45









 









Section 7.02. Notices, etc. All notices and other communications provided for under
any Loan Document shall be in writing and mailed, faxed, or delivered at the addresses set forth
below, or at such other address as such party may specify by written notice to the other parties
hereto:




	 	 	 
	If to the Borrower:

	 	Central Iowa Energy, LLC
	 

	 	2617 1st Ave East
	 

	 	Newton, IA 50208
	 

	 	Telephone: (641) 990-0423
	 

	 	Fax: (801) 912-1258
	 

	 	Attention: President






	 	 	 
	With a copy to:

	 	Brown Winick, Graves, Gross,
Baskerville & 
	 

	 	Schoenebaum, P.L.C.
	 

	 	Suite 2000 Ruan Center
	 

	 	Des Moines, IA 50309
	 

	 	Telephone: (515) 242-2409
	 

	 	Fax: (515) 249-1432
	 

	 	Attn. Harold Schneebeck






	 	 	 
	If to the Lender:

	 	F & M Bank-Iowa
	 

	 	11 North First Ave
	 

	 	Marshalltown, IA 50158
	 

	 	Telephone: (641) 754-6828
	 

	 	Facsimile: (801) 912-1258
	 

	 	Attention: Roger Holck






	 	 	 
	With copies to:

	 	AgStar Financial Services, PCA 
	 

	 	3555 9th Street NW Suite 400
	 

	 	Rochester MN 55903
	 

	 	Telephone: (507) 386-4242
	 

	 	Facsimile: (507) 344-5088
	 

	 	Attention: Mark Schmidt
	 
	 	 
	 

	 	Phillip L. Kunkel
	 

	 	Gray Plant Mooty
	 

	 	1010 West St. Germain, Suite 600
	 

	 	St. Cloud, MN 56301
	 

	 	Facsimile: (320) 252-4482





All such notices and communications shall have been duly given and shall be effective: (a) when
delivered; (b) when transmitted via facsimile to the number set forth above with transmission
electronically verified by the sending facsimile machine; (c) the Business Day following the day on
which the same has been delivered prepaid (or pursuant to an invoice arrangement) to a reputable
national overnight air courier service; or (d) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid. Any
confirmation sent by the Lender to the Borrower of any borrowing under this Agreement shall, in the
absence of manifest error, be conclusive and binding for all purposes.




 


46









 







Section 7.03. No Waiver; Remedies. No failure on the part of the Lender to exercise,
and no delay in exercising, any right under any Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right. The remedies provided in the Loan
Documents are cumulative and not exclusive of any remedies provided by law.



Section 7.04. Costs, Expenses and Taxes.



(a) The Borrower agrees, jointly and severally, to pay on demand all costs and expenses in
connection with the preparation, execution, delivery, filing, recording and administration of the
Loan Documents and the other documents to be delivered under the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Lender (who may be in-house counsel), and local counsel who may be retained by said counsel, with
respect thereto and with respect to advising the Lender as to its respective rights and
responsibilities under the Loan Documents, and all costs and expenses (including reasonable counsel
fees and expenses) for the Lender in connection with the filing of the Financing Statements and the
enforcement of the Loan Documents and the other documents to be delivered under the Loan Documents,
including, without limitation, in the context of any bankruptcy proceedings. In addition, the
Borrower agrees to pay on demand the expenses described in Section 5.01(b). In addition, the
Borrower shall pay any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing and recording of the Loan Documents and the
other documents to be delivered under the Loan Documents, and agrees to save the Lender harmless
from and against any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes and fees.



(b) If, due to payments made by the Borrower pursuant to Section 2.10 or due to acceleration
of the maturity of the Advances pursuant to Section 6.01 or due to any other reason, the Lender
receives payments of principal of any Loan other than on the last day of an Interest Period
relating thereto, the Borrower shall pay to the Lender on demand any amounts required to compensate
the Lender for any additional losses, costs or expenses which it may incur as a result of such
payment, including, without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired
by the Lender to fund or maintain such Loan.



(c) Upon the request of Borrower, Lender shall provide copies of all invoices for costs and
expenses to be reimbursed by Borrower under this Agreement or under any of the Loan Documents.



Section 7.05. Right of Set-off. The Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and other indebtedness
at any time owing by the Lender to or for the credit or the account of the Borrower against any and
all of the Loan Obligations, irrespective of whether or not the Lender shall have made any demand
under such Loan Document and although deposits, indebtedness or such obligations may be unmatured
or contingent. The Lender agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the validity of such
set-off and application. The rights of the Lender under this Section 7.05 are in addition to other
rights and remedies (including, without limitation, other rights of set-off) which the Lender may
have.


 


47









 







Section 7.06. Severability of Provisions. Any provision of this Agreement or of any
other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or enforceability without
invalidating the remaining provisions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.



Section 7.07. Binding Effect; Successors and Assigns; Participations.



(a) This Agreement shall be binding upon and inure to the benefit of the Borrower, the Lender
and their respective successors and assigns, except that the Borrower shall not have the right to
assign or otherwise transfer its rights hereunder or any interest herein without the prior written
consent of the Lenders.



(b) Borrower agrees and consents to Lender’s sale or transfer, whether now or later, of one or
more participation interests in the Loans to one or more purchasers, whether related or unrelated
to Lender. Lender may provide, without any limitation whatsoever, to any one or more purchasers,
or potential purchasers, any information or knowledge Lender may have about Borrower or about any
other matter relating to the Loans, and Borrower hereby waives any rights to privacy it may have
with respect to such matters; provided, however, that any information received by any such
purchaser or potential purchaser under this provision which concerns the personal, financial or
other affairs of the Borrower shall be received and kept by the purchaser or potential purchaser in
full confidence and will not be revealed to any other persons, firms or organizations nor used for
any purpose whatsoever other than for determining whether or not to participate in the Loans and in
accord with the rights of Lender if a participation interest is acquired. Borrower additionally
waives any and all notices of sale of participation interests, as well as all notices of any
repurchase of such participation interest. Borrower also agrees that the purchasers of any such
participation interests will be considered as the absolute owners of such interests in the Loans
and will have all the rights granted under the participation agreement or agreements governing the
sale of such participation interests. Borrower further waives all rights of offset or counterclaim
that it may have now or later against Lender or against any purchaser of such a participation
interest arising out of or by virtue of the participation and unconditionally agrees that either
Lender or such purchaser may enforce Borrower’s obligation under the Loans irrespective of the
failure or insolvency of any holder of any interests in the Loans. Borrower further agrees that
the purchaser of any such participation interests may enforce its interests irrespective of any
personal claims or defenses that Borrower may have against Lender.



 


48









 







Section 7.08. Consent to Jurisdiction.



(a) The Borrower hereby irrevocably submits to the jurisdiction of any Iowa state court or
federal court over any action or proceeding arising out of or relating to this Agreement, the Note
and any instrument, agreement or document related hereto or thereto, and the Borrower hereby
irrevocably agrees that all claims in respect of such action or proceeding may be heard and
determined in such Iowa state court or federal court. The Borrower hereby irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Borrower irrevocably agrees to accept the service of
copies of the summons and complaint and any other process which may be served in any such action or
proceeding by the mailing of copies of such process to Borrower at its address specified in
Section 7.02. The Borrower 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.



(b) Nothing in this Section 7.08 shall affect the right of the Lender to serve legal process
in any other manner permitted by law or affect the right of the Lender to bring any action or
proceeding against the Borrower or its property in the courts of other jurisdictions.



Section 7.09. Governing Law. THIS AGREEMENT, THE SUPPLEMENTS AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF IOWA.



Section 7.10. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and on telecopy counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute but one and the same agreement.



Section 7.11. Survival. All covenants, agreements, representations and warranties
made by the Borrower in the Loan Documents and in the certificates or other instruments delivered
in connection with or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the execution and delivery of
the Loan Documents and the making of any Advances and issuance of any Letters of Credit, 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 Event of 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
any Loan Obligations are outstanding and unpaid and so long as the Lender has any unexpired
commitments under this Agreement or the Loan Documents. The expense reimbursement, additional
cost, capital adequacy and indemnification provisions of this Agreement shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loan Obligations or the termination of this Agreement or any provision hereof.



Section 7.12. USA PATRIOT ACT. Federal law requires all financial institutions to
obtain, verify and record certain information to verify the identity of each person or entity that
opens an account, including deposit accounts, treasury management accounts, loan account or other
extension of credit, or other financial services. The Lender will ask the Borrower for the
Borrower’s name, address, taxpayer identification number and such other information as will allow
the Lender to identify the Borrower. The Lender will verify and record the information and will
retain and maintain the record as required by the USA PATRIOT ACT and implementing regulations.
Borrower warrants and represents that the information it provides to Lender for these purposes is
and will be correct and accurate.


 


49









 








Section 7.13. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY
WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED
THEREUNDER.



Section 7.14. Entire Agreement. THIS AGREEMENT, THE SUPPLEMENTS, THE NOTES, AND THE
OTHER LOAN DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO
AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR
VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES THERETO.



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


IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT, THE SUPPLEMENTS, THE NOTES, AND THE
OTHER LOAN DOCUMENTS REFERRED TO HEREIN SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN
WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT
MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.



BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MASTER LOAN AGREEMENT, AND BORROWER
AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF THE DATE FIRST ABOVE STATED.




	 	 	 
	BORROWER:

	 	LENDER:
	 
	 	 
	CENTRAL IOWA ENERGY, LLC, an Iowa

	 	F & M BANK-IOWA, a bank chartered under
	limited liability company

	 	the laws of Iowa
	 
	 	 
	/s/ James Johnston

	 	/s/ Daniel J. Hassman
	 	 	 
	By: James Johnston

	 	By: Daniel J. Hassman
	Its: Chairman

	 	Its: President






 


50









 









EXHIBIT A

COMPLIANCE CERTIFICATE




TO:       F & M Bank-Iowa (the “Lender”)




Pursuant to that certain Amended and Restated Master Loan Agreement dated October 17, 2007, by
and between CENTRAL IOWA ENERGY, LLC, an Iowa limited liability company (the “Borrower”), and the
Lender, and any amendments thereto and extensions thereof (the “Loan Agreement”), the undersigned
hereby represents, warrants and certifies to the Lender as follows:




	 	1.	 	The financial statement(s) attached hereto are complete and correct in all
material respects and fairly present the financial condition of the Borrower as of the
date of said financial statement(s) and the result of its business operations for the
period covered thereby;

	 
	 	2.	 	Repeats and reaffirms to the Lender each and all of the representations and
warranties made by the Borrower in the Loan Agreement and the agreements referred to
therein or related thereto, and represents and warrants to the Lender that each and all
of said warranties and representations are true and correct as of the date hereof,
except as disclosed in writing to the Lender;

	 
	 	3.	 	No Event of Default (as that term is defined in the Loan Agreement), and no
event which with the giving of notice or the passage of time or both would constitute
an Event of Default, has occurred and is continuing as of the date hereof; and

	 
	 	4.	 	All the calculations set forth below are made pursuant to the terms of the Loan
Agreement and are true and accurate as of the date of the attached financial
statements:






	 	 	 	 	 	 	 
	1.
	 	Section 5.01(d) - Working Capital.	 	 	 	 
	 
	 	(tested annually)	 	 	 	 
	 
	 	 	 	 	 	 
	(a)	 	Required Working Capital (@ Completion Date & continually thereafter) 	 	$	4,000,000.00	 
	 
	 	 	 	 	 	 
	(a)
	 	Current Assets	 	$	                    	 
	(b)
	 	Current Liabilities	 	$	                    	 
	 
	 	 	 	 	 	 
	Line (a) less line (b)	 	$	                    	 
	 
	 	 	 	 	 	 
	In Compliance
	 	Yes _____ No _____	 
	 
	 	 	 	 	 	 
	2.
	 	Section 5.01(e) - Tangible Net Worth.	 	 	 	 
	 
	 	(tested annually)	 	 	 	 
	 
	(a)
	 	Required Tangible Net Worth ($21,500,000.00 @ Completion Date)	 	 	 	 
	 
	 	(annually thereafter, increases based on covenant)
	 	 	 	 
	 
	 	 	 	$	                    	 
	 
	 	 	 	 	 	 
	(b)
	 	Actual Tangible Net Worth	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	(1)  Total Assets	 	$	                    	 
	 
	 	(2)  Less Intangible Assets (per definition)	 	$	                    	 






 


 









 






	 	 	 	 	 	 	 
	 
	 	(3)  Total Tangible Assets	 	$	                    	 
	 
	 	(4)  Total Liabilities	 	$	                    	 
	 
	 	(5)  Tangible Net Worth	 	$	                    	 
	 
	 	(line (4) minus line (5))	 	 	 	 
	 
	 	 	 	 	 	 
	In Compliance
	 	Yes _____ No_____	 
	 
	 	 	 	 	 	 
	3.
	 	Section 5.01(f) - Owner Equity Ratio	 	 	 	 
	 
	 	(tested annually beginning at the end of second operating year)	 	 	 	 
	 
	 	 	 	 	 	 
	(a)
	 	Tangible Net Worth	 	$	                    	 
	(b)
	 	Total Assets	 	$	                    	 
	(c)
	 	Owner Equity Percentage	 	 	 	 
	 
	 	(percent of line (b) to (c))	 	 	—	%
	 
	 	 	 	 	 	 
	 
	 	Required Percentage of 50%	 	 	 	 
	 
	 	 	 	 	 	 
	In Compliance
	 	Yes _____ No_____	 
	 
	 	 	 	 	 	 
	4.
	 	Section 5.01(g) - Fixed Charge Ratio	 	 	 	 
	 
	 	 	 	 	 	 
	(a)
	 	EBITDA	 	$	                    	 
	(b)
	 	Extraordinary Items	 	$	                    	 
	(c)
	 	Numerator (sum of lines (a) and (b))	 	$	                    	 
	 
	 	 	 	 	 	 
	(d)
	 	Current Portion of Long Term Debt	 	$	                    	 
	(e)
	 	Interest Expense	 	$	                    	 
	(f)
	 	Dividends	 	$	                    	 
	(g)
	 	Tax Distributions	 	$	                    	 
	(h)
	 	Maintenance Capital Expenditures	 	$	                    	 
	(i)
	 	Denominator (sum of lines (d) through (h))	 	$	                    	 
	 
	 	 	 	 	 	 
	Ratio of line (c) to (i)
	                     to 1.00	 
	 
	 	 	 	 	 	 
	Required Ratio of 1.25 to 1.00	 	 	 	 
	 
	 	 	 	 	 	 
	In Compliance
	 	Yes _____ No_____	 






IN WITNESS WHEREOF, the undersigned has signed and delivered this Certificate to the Lender as
of the
 _____ 
day of
 _____ 
,
 _____.



BORROWER:




CENTRAL IOWA ENERGY, LLC

an Iowa limited liability company




By
                                        
                    

Its                                   
                         



 


 









 





EXHIBIT B

PROJECT SOURCE AND USE STATEMENT




Central Iowa Energy

Sources and Uses of Cash




	 	 	 	 	 	 	 
	Sources:
	 	 	 	 	 	 
	Owner Equity
	 	$	23,159,000.00	 	 	includes $1,000,000 (REG)
	Sub Debt/Mezzanine
	 	$	—	 	 	 
	Construction Loan
	 	$	27,000,000.00	 	 	 
	Grant Income
	 	$	10,000.00	 	 	 
	Low/zero interest loans
	 	$	400,000.00	 	 	 
	 
	 	 	 	 	 
	 
	 	$	50,569,000.00	 	 	 
	 
	 	 	 	 	 	 
	Uses:
	 	 	 	 	 	 
	General Contractor fees
	 	$	38,076,000.00	 	 	 
	Accounting fees
	 	$	36,130.00	 	 	 
	Consulting fees
	 	$	383,163.21	 	 	 
	Legal fees
	 	$	160,874.61	 	 	 
	Electric
	 	$	163,472.00	 	 	 
	Dues
	 	$	297.33	 	 	 
	Insurance
	 	$	70,478.00	 	 	 
	Real Estate
	 	$	224,400.00	 	 	 
	Office Equipment
	 	$	75,000.00	 	 	 
	Construction Contingency
	 	$	1,000,000.00	 	 	 
	Office Utilities
	 	$	6,405.06	 	 	 
	Performance Bond
	 	$	247,829.00	 	 	 
	Equity Drive
	 	$	130,688.96	 	 	 
	Office/Meeting/Board Expenses
	 	$	18,074.54	 	 	 
	Escrow Agent Fees
	 	$	1,400.00	 	 	 
	Sponsorship
	 	$	1,088.65	 	 	 
	Land Surveys
	 	$	11,221.00	 	 	 
	State Filing Fees
	 	$	1,005.00	 	 	 
	Land Option
	 	$	2,000.00	 	 	 
	Start up Costs/Working Capital
	 	$	9,959,472.64	 	 	 
	 
	 	 	 	 	 
	 
	 	$	50,569,000.00	 	 	 







 


 










 




EXHIBIT C

FORM OF OPINION LETTER




	 	 	 
	October                     , 2007

	 	direct phone: 515-242-2409
	 

	 	direct fax: 515-323-8509
	 

	 	email: schneebeck@brownwinick.com






F & M Bank-Iowa

11 N. First Avenue

Marshalltown, IA 50158




Re:    Amended and Restated Master Loan Agreement Dated as of October 17, 2007 between
Central Iowa Energy, LLC, as Borrower, and F & M Bank-Iowa, as Lender.



Ladies and Gentlemen:



We have acted as counsel to Central Iowa Energy, LLC, an Iowa limited liability company (the
“Borrower”), in connection with the preparation of the Loan Documents, as hereinafter defined, by
and between the Borrower and F & M Bank-Iowa (the “Lender” or “you”), each of the Loan Documents
set forth below, and the consummation of the transactions described herein. This opinion is
delivered pursuant to Section 3.01(r) of the Loan Agreement. Capitalized terms used but not
defined herein shall have the meanings assigned to them in the Loan Agreement.



In connection with this opinion, we have examined copies of the following documents (the “Loan
Documents”):




	 	(i)	 	Amended and Restated Master Loan Agreement dated October 17, 2007 (the “Loan
Agreement”);

	 
	 	(ii)	 	Amendment to First Supplement to the Master Loan Agreement;

	 
	 	(iii)	 	Second Supplement to the Master Loan Agreement;

	 
	 	(iv)	 	Amended and Restated Third Supplement to the Master Loan Agreement;

	 
	 	(v)	 	Construction and Term Note;

	 
	 	(vi)	 	Term Revolving Note;

	 
	 	(vii)	 	Amended and Restated Revolving Line of Credit Note;

	 
	 	(viii)	 	Security Agreement;

	 
	 	(ix)	 	Amended and Restated Mortgage;

	 
	 	(x)	 	Disbursing Agreement;





 


54









 





	 	(xi)	 	Financing Statement;

	 
	 	(xii)	 	Collateral Assignment of Design Build Contract;

	 
	 	(xiii)	 	Amended and Restated Assignment of Management & Operational Services Agreement;

	 
	 	(xiv)	 	Amended and Restated Assignment of Gas Sales Contract;

	 
	 	(xv)	 	Amended and Restated Assignment of Electric Service Agreement;

	 
	 	(xvi)	 	Amended and Restated Assignment of Water User’s Management Agreement;

	 
	 	(xvii)	 	Indemnity Agreement;

	 
	 	(xviii)	 	Environmental Indemnity Agreement;

	 
	 	(xix)	 	Post Closing Letter;

	 
	 	(xx)	 	Articles of Organization;

	 
	 	(xxi)	 	Operating Agreement;

	 
	 	(xxii)	 	records of proceedings and actions of the members and Board of Directors of the
Borrower with respect to matters pertaining to this opinion

	 
	 	(xxiii)	 	such other documents, agreements and materials as we have deemed necessary and
appropriate to render the opinions set forth in this letter, subject to the
limitations, assumptions and qualifications noted below.






The documents listed as items (i) through (xix) above are dated as of the first date written
above and are collectively referred to herein as the “Loan Documents.”



In addition, we have examined originals or copies, certified or otherwise identified to our
satisfaction, of such records, agreements, instruments and other documents, and have made such
other investigation, as we have deemed necessary for the purpose of this opinion. We have also
examined and relied upon representations and warranties as to matters of fact (other than facts
constituting conclusions of law) contained in and made pursuant to the Loan Documents. In addition
we have examined such other resolutions, documents, certificates and records and have made such
investigations of law and fact as we have deemed necessary or appropriate to enable us to render
the opinions expressed herein, all of which are subject to the limitations, assumptions and
qualifications noted below.




 


55









 






In rendering these opinions, we have assumed, and have not independently verified:




(a) the genuineness of all signatures on all documents, the legal capacity and competency
for all purposes relevant hereto of all natural persons, the authenticity of all documents
submitted to us as originals, the conformity to the authentic originals of all documents
submitted to us as copies, the correctness, completeness and accuracy of all facts set forth
in all representations, warranties and certificates referred to or identified in this
opinion, and that there are no documents, agreements or understandings to which the Lender
is a party between the Lender, on the one hand, and the Borrower on the other hand, other
than the Loan Documents, which would have an effect on the opinions set forth below.




(b) In examining documents executed by parties other than the Borrower, we have assumed that
such parties had the requisite power, right and authority (corporate or otherwise) to
execute, deliver and perform all of their respective obligations thereunder and have also
assumed the due authorization by all requisite corporate action and execution and delivery
of such documents by such parties, and the validity, legality and binding effect of those
documents on those parties.




(c) As to questions of fact material to our opinions, we have relied upon the
representations and warranties made in the Loan Documents and upon certificates of officers
or other representatives of the Company and of public officials (“Certificates”). We have
not independently or through third parties verified such representations and warranties or
Certificates, or made any independent investigation as to the existence of agreements,
instruments or other documents, orders, judgments or decrees by which the Company or any of
its properties or assets may be bound.




(d) The Lender and each of the parties to the Loan Documents, other than Borrower, has duly
and validly executed and delivered each such instrument, document, and agreement to be
executed in connection with the Loan Agreement and the loan/financing to which such party is
a signatory, and such party’s obligations set forth in the Loan Documents are its legal,
valid, and binding obligations, enforceable in accordance with their respective terms.




(e) The Lender and each other person executing any of the Loan Documents, other than the
Borrower, whether individually or on behalf of an entity, is duly authorized to do so.




(f) Each natural person executing any of the Loan Documents is legally competent to do so.




(g) All documents submitted to us as originals are authentic; all documents submitted to us
as certified or photo copies conform to the original documents; and all public records
viewed are accurate and complete.




(h) The terms and conditions reflected in the Loan Documents have not been amended, modified
or supplemented by any other agreement or understanding of the parties or waiver of any of
the material provisions of the Loan Documents.


 


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(i) All applicable Loan Documents will be duly filed, indexed and recorded among the
appropriate official records, as set forth below, with all fees, charges and taxes having
been paid.




(j) There has not been any mutual mistake of fact or misunderstanding, fraud, duress or
undue influence.




(k) Lender and any agent acting for Lender have acted in good faith, and complied with the
requirement of fair dealing and conscionability, and without notice of any defense against
enforcement of any rights created by, or adverse claim to any property or security interest
transferred or created as part of the transaction.



When used herein, the term “our knowledge” shall mean that we have no actual knowledge of
facts which are contrary to the opinion rendered, without having undertaken independent
investigation or verification of any such facts, and shall be limited to our reliance upon the
actual present knowledge of the attorneys in our firm who have devoted substantive attention to the
transaction contemplated in the Loan Documents and not the knowledge of the firm generally. Except
as otherwise noted herein, we have undertaken no independent investigation or verification of such
matters.



Subject to the foregoing assumptions and the following qualifications and limitations, it is
our opinion that:



1. The Borrower (i) is a limited liability company, duly organized, validly existing, and in
good standing under the laws of the State of Iowa.



2. The Borrower has the power and authority to execute, deliver and perform its obligations
under the Loan Documents to which it is a party. The Borrower has taken all necessary
organizational action to authorize the execution, delivery, and performance of the Loan Documents
to which it is a party.



3. Borrower has duly authorized, executed and delivered the Loan Documents to which it is a
party and the Loan Documents constitute the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms, except that (a) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights, (b) the remedy of specific
performance and injunctive relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefore may be brought, (c) an implied covenant of good faith
and fair dealing may be imposed, and (d) as hereinafter specifically set forth. In expressing our
opinions herein regarding the enforceability of the Loan Documents, we assume Lender will at all
relevant times act in good faith and in a commercially reasonable manner in enforcing its rights
and remedies under the Loan Documents and will not at any relevant time be in material breach of
its obligations under the Loan Documents.


 


57









 





4. The execution and delivery by the Company of the Loan Documents do not, and the
consummation by the Company of the transactions contemplated by the Loan Documents and the
compliance by the Company with the provisions of the Loan Documents do not, (a) conflict with or
result in a breach of any provision of the Company’s Articles of Organization, or Operating
Agreement, (b) to our knowledge, conflict with or result in a material violation of any applicable
state or federal law or regulation, (c) to our knowledge, conflict with any order, judgment, or
decree to which the Company is a party or subject or by which any of its properties or assets are
bound, or (d) to our knowledge, conflict with any Material Contract to which the Company is a party
or by which the Company or any of its properties or assets are bound.



5. To our knowledge, except as expressly disclosed in the Loan Documents, there are no
actions, suits or proceedings pending or threatened in writing against or affecting the Company
before any court or arbitrator or by or before any administrative agency or government authority,
which, if adversely determined, would constitute an material adverse effect on the Company.



The foregoing opinions are based in part upon and subject to the assumptions, limitations,
qualifications and exceptions set forth below in addition to the qualifications, exceptions,
limitations and assumptions set forth above:



(a) Our opinions as they relate to the legality, validity, binding effect and/or
enforceability of the Loan Documents are subject to the limitations that might result from
bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent or preferential
transfer, fraudulent conveyance, and other state and federal laws relating to or affecting the
rights or remedies of creditors generally, now or hereafter, in effect.



(b) Our opinions as they relate to the legality, validity, binding effect and/or
enforceability of the Loan Documents are subject to the qualification that the availability of the
remedies of specific performance or injunctive relief, or any other equitable remedy, or provisions
purporting to provide for indemnification, exoneration, exculpation or limitation of liability of a
party for its action or inaction, or for liability due to its own fault, or attempting to modify or
waive any requirements of commercial reasonableness or notice arising under applicable state or
federal laws or the due process clause of the Unite States Constitution are subject to the
discretion of the court before which a proceeding therefor may be brought, equitable defenses and
the application of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law), including without limitation, concepts of
materiality, reasonableness, good faith, fair dealing and other similar doctrines affecting the
enforcement of agreements generally. Accordingly, certain provisions and remedies set forth in the
Loan Documents may be subject to equitable defenses and to the discretion of the court and may
require further notices and actions to be taken by the Lender prior to availing itself of such
rights and remedies.



(c) Except as expressly stated herein, we advise you that we have not conducted, nor do we
undertake to conduct, any independent review or investigation of, and no opinion is expressed or
implied as to the truth, accuracy or completeness of any of the representations, warranties or
other
statements of the Borrower, or the partners, directors, officers or employees of the Borrower,
or any other person contained in any of the Loan Documents or in any exhibit, schedule or
attachment thereto.


 


58









 





(d) We express or imply no opinion as to what actions the parties to the Loan Documents are
required to or may take or fail to take on or after the date hereof which, if taken or not taken,
would affect or impair the legality, validity, binding effect and/or enforceability of the Loan
Documents or the rights and remedies of the parties thereunder.



(e) With respect to the legality, validity, binding effect and enforceability of the remedies
available to the Lender under the Uniform Commercial Code in force in the State of Iowa (“UCC”), we
have assumed that the Lender will enforce such remedies in accordance with the UCC and under such
circumstances and in a manner in which it is commercially reasonable to do so. In addition,
because a claimant bears the burden of proof required to support its claim, our opinion assumes
that you will undertake the effort and expense necessary to present your claims in the prosecution
of any remedy accorded you under the Loan Documents.



(f) We express no opinion with respect to the legality, validity, binding effect and/or
enforceability of any provision of the Loan Documents: (i) stating that waivers of notice, or of
rights or remedies (or the delay in, omission of, or enforcement thereof) or the benefits of
statutory provisions or constitutional or common law rights will not operate as a waiver thereof,
or broadly or vaguely stated provisions waiving rights or waivers of unknown future rights or
duties imposed by law; (ii) purporting to waive any requirement of reasonable or diligent
performance or other care on Lender’s part with respect to the recognition or preservation of
Borrower’s rights to or interest in any property subject to any security interest or lien granted
thereby; (iii) providing that delays will not operate as a waiver; (iv) purporting to ratify any
action the Lender may take without specifying the standards for such action; and (v) certain other
provisions in the Loan Documents, including, without limitation, self-help provisions, provisions
that purport to establish evidentiary standards, provisions requiring the payment of a repayment
charge, fee, reinvestment charge, premium or penalty, however denominated, are or may be
unenforceable in whole or in part. We also express no opinion regarding the validity or
enforceability of the Loan Documents against any parties other than the Borrower.



(g) Certain rights, remedies, waivers, indemnities and other provisions contained in the Loan
Documents, in addition to those specifically enumerated above, may be limited or rendered
ineffective by applicable Iowa laws or judicial decisions governing such provisions, or by public
policy considerations of paramount public interest, but such laws and judicial decisions do not
render the Loan Documents invalid as a whole, or substantially prevent or impair the practical
realization of the benefits intended by the Loan Documents.



(h) We express no opinion as to zoning, subdivision or similar matters, the compliance of the
mortgaged property with building codes, restrictions or environmental laws, the title to or
ownership of any property of the Borrower, the sufficiency or accuracy of the description of any
collateral referred to in the Loan Documents, or the priority of any liens or security
interests purported to be created by the Loan Documents.


 


59









 





(i) We express no opinion as to the effect on the transactions contemplated by the Loan
Documents by reason of Section 548 of the United States Bankruptcy Code, if applicable.



(j) We express no opinion as to the effect of any federal or state tax lien on the rights and
remedies afforded under the Loan Documents or of the legal rights of governmental agencies of
attachment or forfeiture under various criminal statutes.



(k) We express no opinion as to the validity or enforceability of any documents which we have
not examined, but which might be referenced or incorporated as a matter of law in a document which
we have examined.



(l) We are members of the Bar of the State of Iowa and do not hold ourselves out as experts on
the law of any other state. Consequently, we have made no independent review of the laws of any
jurisdiction other than the State of Iowa and express no opinion as to the laws of any jurisdiction
other than the State of Iowa and the federal laws of the United States of America. We express no
opinion with respect to (i) the laws of any other jurisdiction nor any state or federal law or
regulation governing F & M Bank-Iowa or (ii) the impact of such laws on the Loan Documents or the
transactions contemplated thereby. For purposes of this opinion we have assumed that the internal
laws (as opposed to the choice of law rules) of the State of Iowa and applicable federal law would
apply and have rendered our opinion on that basis. To the extent that the law of another
jurisdiction applies, we have assumed that the law of that jurisdiction would be the same as Iowa
law. We render no opinion as to the enforceability of any choice of law provision.



(m) We have not examined and express no opinion with respect to title to any property, nor do
we express any opinion with respect to the existence of encumbrances upon any property or the
attachment, validity, perfection or priority of any liens or security interests.



(n) We express no opinion as to the solvency of the Borrower as of the date of this opinion
letter, and to the extent that any opinion herein is reliant upon the Borrower being solvent, such
opinion in limited accordingly.



This opinion is limited to the specific legal issues addressed herein and no opinion is
implied or may be inferred beyond the matters expressly set forth herein. Our opinion is rendered
to you, the Lender, solely for your benefit in connection with consummation of the transactions set
forth in the Loan Documents and may not be used, circulated, quoted in whole or in part, filed
publicly or delivered to, relied upon, or otherwise referred to by any other person or for an other
purpose without our prior written consent. Our opinion is based upon the state of facts and the
law existing and in effect on the date hereof, which are subject to change prospectively or
retroactively, and we assume no obligation to revise, supplement or update this opinion in any
respect at any time subsequent to the date hereof in order to account for any change in the law
(whether or not hereinafter enacted or
adopted) or future facts, events or circumstances affecting any of the transactions contemplated by
any of the Loan Documents.


 


60









 







This opinion constitutes our entire opinion regarding the subject matter hereof and supersedes
all prior opinions regarding such subject matter.



	 	 	 	 	 
	 	Very truly yours,




BROWN, WINICK, GRAVES, GROSS, BASKERVILLE & SCHOENEBAUM, P.L.C.

 	 
	 	By:  	__________________________________
 	 
	 	 	 	 
	 	 	 	 



 


61









 







	 	 	 	 	 



EXHIBIT D

FORM OF LETTER OF CREDIT




IRREVOCABLE STANDBY




LETTER OF CREDIT NO.                     




(Date)




 
                                      
                     




  
                                     
                     




 
                                      
                     

(Beneficiary)





Ladies and Gentlemen:



At the request of Central Iowa Energy, LLC,                     , Newton, IA
                    , we hereby
establish our Irrevocable Standby Letter of Credit in your favor in
the amount of $                     U.S. dollars.



We undertake that drawings under this Letter of Credit will be honored upon presentation of your
draft drawn on F & M Bank-Iowa, at 11 N First Avenue, Marshalltown, IA 50158 and the original of
this Letter of Credit prior to the expiration date set forth herein. All drafts submitted to F & M
Bank-Iowa must indicate the number and date of this credit.



This Letter of Credit expires on                     , but will
automatically renew on each anniversary
date of                      for an additional one (1) year if you have not received by registered mail
notification of our intention not to renew sixty (60) days prior to the original expiration date
and each subsequent expiration date. However, in no event will this Letter of Credit be extended
beyond                    . Unless F & M Bank-Iowa is notified of an address to the contrary the
notification will be sent to
                                   
                         . (italicized language applicable
for Letters of Credit issued under the Revolving Loan only).



Except as expressly stated herein, this undertaking is not subject to any conditions or
qualification. The obligation of F & M Bank-Iowa, under this Letter of Credit shall be the
individual obligation of F & M Bank-Iowa, and in no way contingent upon reimbursement with respect
thereto.



This credit is subject to the Uniform Customs and Practice for Documentary Credits, 1993 Version,
of the International Chamber of Commerce or any successor publication.



Sincerely,


 


62









 





Schedule 3.01(d)

Real Property




Parcel D of part of the Southwest Quarter of the Southwest Quarter of Section 13 and part of the
Northwest Quarter of the Northwest Quarter of Section 24, all in Township 80 North, Range 19 West
of the 5th P.M., Jasper County, Iowa, as appears in Plat of Survey filed in Book 970,
Page 321, and also as appears in Plat of Survey Retracement filed in Book 1153, Page 602, in the
Office of the Recorder of said County.


 


63









 





Schedule 4.01(a)

Description of Certain Transactions Related to the Borrowers’ Stock




Central Iowa Energy expects to issue 1,000 units of Central Iowa Energy, LLC ownership to REG, Inc.
In Exchange, REG, Inc., will credit the final $1,000,000 of construction cost to finance their
investment.



Each of the twelve directors of Central Iowa Energy will purchase an additional 100 units at $500
per unit.



Scot Farver, CIE Director, will be issued two units of CIE shares for every month of rent for the
current CIE office. CIE has been at that location for 12 months.


 


64









 





Schedule 4.01(f)

Description of Certain Threatened Actions, etc.




NONE



 


65









 





Schedule 4.01(k)

Location of Inventory and Farm Products; Third Parties in Possession; Crops




NONE.



 


66









 






Schedule 4.01(l)

Office Locations; Fictitious Names; Etc.





Office Address

Central Iowa Energy

2617 1st Ave E

Newton, IA 50208




Site Address

Central Iowa Energy

3426 East 28th St N

Newton, IA 50208



Central Iowa Energy also maintains a safe-deposit box at the local US Bank location in Newton to
store files.




US Bank

122 W 2nd St. S

Newton, IA 50208



Central Iowa Energy Federal EIN — 71-0988301

Central Iowa Energy State Organizational #-000309143


 


67









 





Schedule 4.01(p)

Intellectual Property




NONE.



 


68









 





Schedule 4.01(t)

Environmental Compliance




NONE



 


69









 





Schedule 5.01(o)

Management






Jim Johnston

Chairman

389 Hwy T-38N

Grinnell, IA 50112




John E. Van Zee

Vice-Chairman

8162 S. 68th Ave. W.

Prairie City, IA 50288




Jeremie Parr

Secretary

7840 11th Ave. Trail

Belle Plaine, IA 52208




Scot Farver

Treasurer

309 W. 9th St. S.

Newton, IA 50208





Warren L. Bush Director

101 Boyer St.

P.O. Box 159

Wall Lake, IA 51466




Craig Hamilton Director

P.O. Box 312

Newton, IA 50208




Bill Horan Director

3220 240th St.

Rockwell City, IA 50579








Don Huyser Director

6107 E. 48th St. S.

Newton, IA 50208




Dean Lane Director

3971 Maple St.

Newton, IA 50208





Denny Mauser Director

1940 190th St.

Early, IA 50535




Tom Schroeder Director

503 W. 7th St.

Wall Lake, IA 51466





Bill Talsma Director

913 W. 18th St. S.

Newton, IA 50208




Tobin Bush

Project Coordinator

3830 Kingman Blvd.

Des Moines, IA 50311




Derek Winkel

General Manager

1005 NE Banbury Rd.

Ankeny, IA 50021









Management of the biodiesel facility will be provided by REG, Inc. See Management Contract for
details.


 


70









 





Schedule 5.02(a)

Description of Certain Liens, Lease Obligations, etc.




Obligations of the Borrower under that certain Agreement for Private Redevelopment dated November
21, 2006, by and between Jasper County, Iowa and the Borrower.



Obligations of the Borrower under that certain Industrial New Jobs Training Agreement dated March
12, 2007, by and between Des Moines Area Community College and the Borrower.



 


71









 





Schedule 5.02(k)

Transactions with Affiliates




Directors of the company are reimbursed for their normal and reasonable expenses incurred in the
performance of their duties for the company.



A consulting agreement between Central Iowa Energy and the Biodiesel Group called for 100 units of
Central Iowa Energy to be issued to certain members of The Biodiesel Group who are also directors
of Central Iowa Energy. Those directors include Warren Bush, William J. Horan, Tom Schroeder and
Denny Mauser. Those units have been issued and the consulting agreement has expired. The
Biodiesel Group was also paid $75,000 for their services.



Management and Operational Services Agreement between Central Iowa Energy and Renewable Energy
Group, Inc.



Design-Build Contract between Central Iowa Energy and Renewable Energy Group.



Agreement of Renewable Energy Group, Inc., to accept 100 membership units of Central Iowa Energy in
exchange for the last $1,000,000 of design-build services rendered by REG.




 


72