EXHIBIT 10.1
MASTER LOAN AGREEMENT
by and between
COBANK, ACB,
and
ALLIANCE FARMS COOPERATIVE ASSOCIATION
DATED AS OF MARCH 18, 1998
MASTER LOAN AGREEMENT
Construction Loan No. E039T03
Term Loan No. E039T04
Alliance Farms Cooperative Association Revolving Loan No. E039T05
This MASTER LOAN AGREEMENT ("AGREEMENT") is entered into as of
the 18th day of March, 1998, by and between COBANK, ACB, whose mailing address
is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("COBANK"), and ALLIANCE FARMS
COOPERATIVE ASSOCIATION, a Colorado cooperative corporation, whose mailing
address is ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("BORROWER").
R E C I T A L S
A. CoBank and Borrower entered into that certain Loan Agreement dated
as of September 21, 1994, as amended by the Term Loan Amendment dated as of May
19, 1995 (collectively, the "ORIGINAL TERM LOAN AGREEMENT") pursuant to which
CoBank agreed to make a term loan to Borrower in an aggregate principal amount
up to $8,300,000 ("ORIGINAL TERM LOAN") for the purpose of financing a portion
of the construction costs of up to three 2,450-sow ▇▇▇▇▇▇ to feeder pig units
("FEEDER PIG UNITS"), the related support facilities and initial breeding stock
for such Feeder Pig Units and the start-up costs related to such facilities.
Borrower's obligation to repay the Original Term Loan is evidenced by a
promissory note dated May 19, 1995 in the original principal amount of
$8,300,000 made by Borrower payable to CoBank.
B. CoBank and Borrower entered into that certain Master Loan
Agreement dated as of May 19, 1995 ("ORIGINAL MASTER LOAN AGREEMENT") and that
certain Multiple Advance Term Loan Supplement dated as of May 19, 1995, as
amended by that certain Amendment dated as of February 11, 1997, that certain
Amendment dated as of August 6, 1997, and that certain Third Amendment to
Multiple Advance Term Loan Supplement dated as of December 29, 1997
(collectively, "TERM LOAN SUPPLEMENT"), pursuant to which CoBank agreed to make
a term loan to Borrower in an aggregate principal amount up to $9,680,000
("SUPPLEMENTAL TERM LOAN") for the purpose of financing a portion of the
construction costs of (i) up to three Feeder Pig Units, the related support
facilities and initial breeding stock for such Feeder Pig Units and the start-up
costs related to such facilities, and (ii) up to two 2,450-sow ▇▇▇▇▇▇ to weaned
pig units ("WEANED PIG UNITS"), the related support facilities and initial
breeding stock for such Weaned Pig Units and the start-up costs related to such
facilities.
C. Pursuant to the Original Master Loan Agreement, CoBank and
Borrower entered into that certain Revolving Term Loan Supplement dated as of
May 19, 1995, as amended by that certain First Amendment to Revolving Term Loan
Supplement dated as of December 29, 1997 (collectively, "REVOLVING LOAN
SUPPLEMENT") pursuant to which CoBank agreed to make a revolving loan to
Borrower in an aggregate principal amount up to $4,500,000 ("EXISTING REVOLVING
LOAN") for the purpose of (i) financing a portion of the construction costs of
Borrower's Feeder Pig Units and Weaned Pig Units, the related support facilities
and initial breeding stock for such Feeder Pig Units and Weaned Pig Units and
the start-up costs related to such facilities and (ii) issuing a letter of
credit to secure certain obligations of Borrower under an agreement granting
Borrower the option to acquire certain real property in ▇▇▇▇▇ County, Illinois.
D. CoBank and Borrower desire to consolidate the Original Term Loan
and the Supplemental Term Loan (collectively, the "EXISTING TERM LOAN") and to
increase the aggregate principal available, but not disbursed prior to the date
of this Agreement, to Borrower under the Existing Term Loan by up to $10,920,000
as well as to modify certain terms and conditions of the Existing Term Loan.
E. CoBank and Borrower desire to modify the Existing Revolving Loan
to increase the aggregate principal amount available under the Existing
Revolving Loan by up to $3,160,000 as well as to modify certain terms and
conditions of the Existing Revolving Loan.
F. CoBank and Borrower desire to provide for the availability to
Borrower of a construction loan facility of up to $18,400,000 for the purpose of
financing the construction of one or more Feeder Pig Units and one or more
Weaned Pig Units, the related support facilities and initial breeding stock for
such Feeder Pig Units and Weaned Pig Units and the start-up costs related to
such facilities and to set forth the terms and conditions governing such
construction loan facility.
G. CoBank and Borrower desire to amend, restate, replace, and
supersede the Original Term Loan Agreement, the Original Master Loan Agreement,
the Term Loan Supplement and the Revolving Loan Supplement in their entirety.
A G R E E M E N T S
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1 DEFINED TERMS
As used in this Agreement, the following terms shall have the meanings set
forth below (and such meanings shall be equally applicable to both the singular
and plural form of the terms defined, as the context may require):
ACTIVATION FEE: shall have the meaning set forth in Subsection 4.12.3.
ACTIVATION NOTICE: notice to Borrower of activation of the Construction
Loan Portion for construction of, and the purchase of Breeding Stock for, a
designated new Unit or a Unit Under Construction, as applicable.
ACTIVATION REQUEST: a written request in the form attached hereto as
Exhibit 1.3 which has been signed by an Authorized Officer for the activation of
the Construction Loan Portion for construction of, and the purchase of Breeding
Stock for, a new Unit or a Unit Under Construction, as applicable.
ADDITIONAL COLORADO PROPERTY: the real property located in Yuma County,
Colorado which was acquired by Borrower with the proceeds of the Colorado Real
Estate Acquisition Loan, as such real property is more particularly described on
Exhibit 1.4 hereto.
ADDITIONAL CONSTRUCTION LOAN: shall have the meaning set forth in
Subsection 2.1.4.
ADDITIONAL CONSTRUCTION LOAN NOTE: a promissory note substantially in the
form attached hereto as Exhibit 1.6.
ADDITIONAL COSTS: shall have the meaning set forth in Section 9.19.
ADDITIONAL LOANS: shall have the meaning set forth in Subsection 2.1.4.
ADDITIONAL LOAN APPROVAL DATE: shall have the meaning set forth in
Subsection 8.35.3.
ADDITIONAL LOAN EXPIRATION DATE: for each Additional Loan, the date after
which proceeds of such Additional Loan may no longer be drawn down by Borrower,
as such date is set forth in the MLA Supplement with respect to such Additional
Loan.
ADDITIONAL LOAN REQUEST: shall have the meaning set forth in Subsection
8.35.1.
ADDITIONAL NOTES: collectively, the Additional Construction Loan Notes,
the Additional Revolving Loan Notes and the Additional Term Loan Notes.
ADDITIONAL REVOLVING LOAN: shall have the meaning set forth in Subsection
2.14.
ADDITIONAL REVOLVING LOAN NOTE: a promissory note substantially in the
form attached hereto as Exhibit 1.14.
ADDITIONAL TERM LOAN: shall have the meaning set forth in Subsection 2.14.
ADDITIONAL TERM LOAN NOTE: a promissory note substantially in the form
attached hereto as Exhibit 1.16.
ADVANCE: CoBank's act of disbursing the proceeds of the Term Loan,
Revolving Loan, Construction Loan or an Additional Loan.
ADVANCE AMOUNT: shall have the meaning set forth in Subsection 4.10.4.
ADVANCE DATE: a day (which shall be a Business Day) on which an Advance is
made.
ADVANCE REQUEST: shall have the meaning set forth in Subsection 8.34.1.
AGGREGATE CONSTRUCTION LOAN COMMITMENT: $18,400,000.00.
AGGREGATE REVOLVING LOAN COMMITMENT: $7,660,000.00, as reduced from time
to time pursuant to Subsection 4.13.2 or Section 4.17 hereof.
AGGREGATE TERM LOAN COMMITMENT: $26,846,700.00.
AGREEMENT: shall have the meaning set forth in the Recitals.
APPRAISAL: shall have the meaning set forth in Subsection 8.25.11.
ARCHITECT: the architect, if any, providing architectural services in
connection with the construction of a particular Feeder Pig Unit or Weaned Pig
Unit.
ARCHITECT'S CONTRACT: shall have the meaning set forth in Subsection
8.25.12.
AUTHORIZED OFFICERS: shall have the meaning set forth in Subsection
8.23.11.
AVAILABILITY PERIOD: shall have the meaning set forth in Section 4.5.
AVERAGE ANNUAL CASH FLOW: the amount equal to Cash Flow for the eight
Fiscal Quarters most recently ended divided by two.
BANK DEBT: all amounts owing under the Notes, fees, Borrower's obligations
to purchase CoBank Equity Interests, Funding Losses and all interest, expenses,
charges and other amounts payable by Borrower pursuant to the Loan Documents.
BASE RATE: the rate of interest established by CoBank from time to time as
its National Variable Rate plus the applicable Base Rate Margin. The National
Variable Rate is intended to be a reference rate, and CoBank may charge other
borrowers at rates at, above, or below that rate. Any change in the National
Variable Rate shall take effect on the date established by CoBank as the
effective date of such change and CoBank agrees to notify Borrower promptly
after any change in the rate.
BASE RATE MARGIN: with respect to: (a) the Term Loan, 125 basis points;
(b) the Revolving Loan, 125 basis points, and (c) the Construction Loan, 225
basis points.
BORROWER: shall have the meaning set forth in the Recitals.
BORROWER BENEFIT PLAN: shall have the meaning set forth in Subsection
8.11.3.
BORROWER PENSION PLAN: shall have the meaning set forth in Subsection
8.11.2.
BORROWER'S REAL PROPERTY: shall have the meaning set forth in Section
8.13.
BREEDING STOCK: breeding sows, of a quality reasonably acceptable to
CoBank, purchased by Borrower for the production of feeder pigs and weaned pigs
in the Units.
BUSINESS DAY: any day other than a Saturday or Sunday and other than a day
which is a Federal legal holiday or a legal holiday for banks in the States of
Colorado, Missouri or Kansas.
CASH FLOW: Net Income plus depreciation and amortization, as determined in
accordance with GAAP.
CHANGE ORDER: shall have the meaning set forth in Section 8.74.
CLOSING DATE: the date of this Agreement.
COBANK: shall have the meaning set forth in the Recitals.
COBANK EQUITY INTERESTS: shall have the meaning set forth in Article 8.
COBANK'S INSPECTOR: shall have the meaning set forth in Subsection 8.31.1.
COBANK PRIORITY DATE: shall have the meaning set forth in Subsection
8.25.14.
COBRA: shall have the meaning set forth in Subsection 8.11.2.
CODE: shall have the meaning set forth in Subsection 8.11.1.
COLLATERAL: shall have the meaning set forth in Section 7.1.
COLORADO REAL ESTATE ACQUISITION LOAN: the loan in the original principal
amount of $760,000 from Farmland to Borrower for the purpose of enabling
Borrower to purchase the Additional Colorado Property, which loan is secured by
a Deed of Trust dated April 12, 1996 made by Borrower to the Public Trustee of
Yuma County, Colorado for the benefit of Farmland, which Deed of Trust was
recorded on April 19, 1996 in Book 761 at Page 185 of the real estate records of
Yuma County, Colorado, and is subordinated to the lien of CoBank on the
Additional Colorado Property to the extent specified in the Deed of Trust
Subordination Agreement dated June 18, 1996 executed by Farmland for the benefit
of CoBank which was recorded in the real estate records of Yuma County, Colorado
on June 27, 1996 in Book 764 at Page 172.
COMMITMENT REDUCTION: shall have the meaning set forth in Subsection
4.13.2.
COMPLIANCE CERTIFICATE: a properly completed certificate of the chief
financial officer of Borrower in the form attached hereto as Exhibit 1.52.
CONSTRUCTION ACCOUNT: shall have the meaning set forth in Subsection
8.25.2.
CONSTRUCTION BUDGET: shall have the meaning set forth in Subsection
8.25.9.
CONSTRUCTION CONTRACT: shall have the meaning set forth in Subsection
8.25.12.
CONSTRUCTION DEADLINE DATE: with respect to (a) a new Unit, that date
which is no more than 16 months after the date of the initial Advance of the
Construction Loan Portion with respect to the applicable Feeder Pig Unit or
Weaned Pig Unit, which date shall not be after the Construction Loan Expiration
Date, or (b) a Unit Under Construction, that date which is no more than 16
months after the date of the initial disbursement of the proceeds of the
Existing Term Loan with respect to such Unit Under Construction.
CONSTRUCTION LOAN: shall have the meaning set forth in Subsection 2.1.3.
CONSTRUCTION LOAN ADVANCE REQUEST: shall have the meaning set forth in
Subsection 8.26.2.
CONSTRUCTION LOAN EXPIRATION DATE: September 30, 2001.
CONSTRUCTION LOAN MATURITY DATE: that date on which the last Construction
Loan Portion becomes due and payable pursuant to Subsection 4.13.3 hereof, but
in no event later than December 31, 2001.
CONSTRUCTION LOAN NOTE: the Promissory Note (Construction Loan) of even
date herewith made by Borrower payable to CoBank in the maximum principal amount
of $18,400,000.
CONSTRUCTION LOAN PORTION: with respect to (a) a Feeder Pig Unit, the
Feeder Construction Portion, and (b) a Weaned Pig Unit, the Weaned Construction
Portion.
CONSTRUCTION PREMISES: shall have the meaning set forth in Subsection
8.25.4.
CONSTRUCTION SCHEDULE: shall have the meaning set forth in Subsection
8.25.10.
CURRENT DEBT: as of the date of determination, the portion of all long-
term debt of Borrower (determined in accordance with GAAP) which is due and
payable within one year or less from the date of determination.
DEFAULT INTEREST RATE: with respect to (a) a Quoted Rate Loan, a rate of
interest equal to 200 basis points plus the Quoted Rate being charged on such
Quoted Rate Loan, and (b) a Loan other than a Quoted Rate Loan, a rate of
interest equal to 200 basis points plus the Base Rate.
DEFICIT: shall have the meaning set forth in Subsection 8.32.5.
DISPUTED AMOUNT: shall have the meaning set forth in Section 4.6.
DISPUTING CONTRACTOR: shall have the meaning set forth in Section 4.6.
ELIGIBILITY REQUIREMENTS: shall have the meaning set forth in Subsection
8.23.1.
ENVIRONMENTAL LAWS: the Comprehensive Environmental Response, Compensation
and Liability Act of 1980; the Resource Conservation and Recovery Act of 1976;
the Federal Water Pollution Control Act; the Safe Drinking Water Act; the Toxic
Substances Control Act; the Clean Air Act; the Clean Water Act; the Solid Waste
Disposal Act; the Emergency Planning and Community Right-to-Know Act of 1986;
the Hazardous Materials Transportation Act; and any state superlien and
environmental clean-up statutes applicable to Borrower's Real Property, as each
of the foregoing are amended from time to time.
ENVIRONMENTAL REGULATIONS: as defined in the definition of Hazardous
Substances.
EQUITY LOAN: the loans made by Farmland to Borrower from time to time (a)
for the purpose of enabling Borrower to commence construction of a Feeder Pig
Unit or a Weaned Pig Unit, (b) in a principal amount equal to at least the
Feeder Pig Unit Equity Tranche, where the construction of a Feeder Pig Unit will
be commenced, and at least the Weaned Pig Unit Equity Tranche, where the
construction of a Weaned Pig Unit will be commenced, and (c) each of which
satisfies the conditions set forth in Subsection 4.1.2 of this Agreement and
thereby constitutes and is deemed to be a Feeder Pig Unit Equity Tranche or
Weaned Pig Unit Equity Tranche, as applicable.
ERISA: shall have the meaning set forth in Subsection 8.11.1.
EVENT OF DEFAULT: shall have the meaning set forth in Section 9.1.
EXCESS FEEDER PIG PURCHASE AGREEMENTS: the Excess Feeder Pig Purchase
Agreements, substantially in the form attached hereto as Exhibit 1.76, between
Borrower and Farmland pursuant to which Borrower shall sell its inventory of
feeder pigs meeting certain minimum health and weight requirements to Farmland
because, in lieu of Borrower selling additional shares of its Class A common
stock, Farmland has agreed to make an Equity Loan constituting a Feeder Pig Unit
Equity Tranche to Borrower and, in connection therewith, has committed to
purchase from Borrower a minimum quantity of feeder pigs equal to the quantity
of feeder pigs that would be purchased by members of Borrower owning 17 shares
of Borrower's Class A common stock, $.01 par value per share until the earlier
of the expiration of the ten year term of such Excess Feeder Pig Purchase
Agreement or the repayment of such Equity Loan with the proceeds of the sale of
at least 17 shares of Borrower's Class A common stock, $.01 par value per share,
where the purchasers of such stock have delivered executed Feeder Pig Purchase
Agreements as required pursuant to Borrower's bylaws in effect on the date
hereof or as subsequently amended with CoBank's prior written consent.
EXCESS CLASS C WEANED PIG PURCHASE AGREEMENTS: the Excess Weaned Pig
Purchase Agreements, substantially in the form attached hereto as Exhibit 1.77,
between Borrower and Farmland pursuant to which Borrower shall sell its
inventory of weaned pigs meeting certain minimum health and weight requirements
to Farmland because, in lieu of Borrower selling additional shares of its Class
C common stock, Farmland has agreed to make an Equity Loan constituting a Weaned
Pig Unit Equity Tranche to Borrower and, in connection therewith, has committed
to purchase from Borrower a minimum quantity of weaned pigs equal to the
quantity of weaned pigs that would be purchased by members of Borrower owning 24
shares of Borrower's Class C common stock, $.01 par value per share until the
earlier of the expiration of the ten year term of such Excess Class C Weaned Pig
Purchase Agreement or the repayment of such Equity Loan with the proceeds of the
sale of at least 24 shares of Borrower's Class C common stock, $.01 par value
per share, where the purchasers of such stock have delivered executed Weaned Pig
Purchase Agreements as required pursuant to Borrower's bylaws in effect on the
date hereof or as subsequently amended with CoBank's prior written consent.
EXCESS WEANED PIG PURCHASE AGREEMENTS: the Excess Weaned Pig Purchase
Agreements, substantially in the form attached hereto as Exhibit 1.78, between
Borrower and Farmland pursuant to which Borrower shall sell its inventory of
weaned pigs meeting certain minimum health and weight requirements to Farmland
because, in lieu of Borrower selling additional shares of its Class B common
stock, Farmland has agreed to make an Equity Loan constituting a Weaned Pig Unit
Equity Tranche to Borrower and, in connection therewith, has committed to
purchase from Borrower a minimum quantity of weaned pigs equal to the quantity
of weaned pigs that would be purchased by members of Borrower owning 18 shares
of Borrower's Class B common stock, $.01 par value per share until the earlier
of the expiration of the ten year term of such Excess Weaned Pig Purchase
Agreement or the repayment of such Equity Loan with the proceeds of the sale of
at least 18 shares of Borrower's Class B common stock, $.01 par value per share,
where the purchasers of such stock have delivered executed Weaned Pig Purchase
Agreements as required pursuant to Borrower's bylaws in effect on the date
hereof or as subsequently amended with CoBank's prior written consent.
EXISTING ADVANCE AMOUNT: shall have the meaning set forth in Subsection
8.29.2.
EXISTING BALANCE: the Existing Term Balance and the Existing Revolving
Balance.
EXISTING REVOLVING BALANCE: shall have the meaning set forth in Subsection
2.1.2.
EXISTING REVOLVING LOAN: shall have the meaning set forth in the Recitals.
EXISTING TERM BALANCE: shall have the meaning set forth in Subsection
2.1.1.
EXISTING TERM LOAN: shall have the meaning set forth in the Recitals.
EXISTING UNITS: Borrower's five Feeder Pig Units in operation in Yuma
County, Colorado, and two Feeder Pig Units in operation in ▇▇▇▇▇ County,
Illinois, on the date hereof.
FAIR MARKET VALUE: a valuation as determined (a) in a written appraisal
from an MAI certified appraiser, or (b) in some other manner mutually acceptable
to CoBank and Borrower.
FARMLAND: Farmland Industries, Inc.
FARMLAND NOTE: one or more promissory notes made by Borrower from time to
time payable to Farmland which evidences Borrower's payment obligations under
one or more Equity Loans.
FEEDER CONSTRUCTION PORTION: shall have the meaning set forth in
Subsection 4.1.1.
FEEDER PIG PURCHASE AGREEMENTS: the Feeder Pig Purchase Agreements,
substantially in the forms attached hereto as Exhibits 1.90(a), 1.90(b), or
1.90(c), between Borrower and each of its members owning shares of Borrower's
Class A common stock pursuant to which Borrower shall sell its inventory of
feeder pigs (exclusive of any excess production of feeder pigs as determined
pursuant to said Feeder Pig Purchase Agreements) meeting certain minimum health
and weight requirements to such members.
FEEDER PIG UNIT: shall have the meaning set forth in the Recitals
(notwithstanding the meaning ascribed to this term in the Recitals, CoBank and
Borrower acknowledge and agree that the capacity of any Feeder Pig Unit shall
not be limited to 2,450 sows).
FEEDER PIG UNIT EQUITY TRANCHE: shall have the meaning set forth in
Subsection 4.1.1.
FEEDER REVOLVING PORTION: shall have the meaning set forth in Subsection
4.1.1.
FEEDER TERM PORTION: shall have the meaning set forth in Subsection 4.1.1.
FINAL UNIT UNDER CONSTRUCTION ADVANCE: shall have the meaning set forth in
Section 8.30.
FISCAL QUARTER: the quarters of Borrower's fiscal year commencing as of
September 1, December 1, March 1 and June 1.
FORCE MAJEURE: shall mean acts or events beyond the reasonable control of
(and not caused by) the party relying thereon provided: (a) the occurrence of
such acts or events prevent the party relying thereon from the performance of
its duties under or in connection with the Construction Contract or any
subcontract or with respect to construction or testing of the applicable Feeder
Pig Unit or Weaned Pig Unit, and (b) such party has been unable to overcome such
acts or events by the exercise of reasonable due diligence; provided, however,
the following acts or events shall not be included in Force Majeure: economic
hardship, strikes, work stoppages or labor disturbances of or with respect to
Borrower or General Contractor.
FUNDING LOSSES: shall have the meaning set forth in Section 5.2.
GAAP: generally accepted accounting principles in the United States of
America, applied consistently by Borrower, as in effect from time to time.
GENERAL CONTRACTOR: the contractor in charge of the construction of a
particular Feeder Pig Unit or Weaned Pig Unit.
HAZARDOUS SUBSTANCES: dangerous, toxic or hazardous pollutants,
contaminants, chemicals, wastes, materials or substances, as defined in or
governed by the provisions of any Environmental Laws or any other federal, state
or local law, statute, code, ordinance, regulation, requirement or rule relating
to environmental matters ("ENVIRONMENTAL REGULATIONS"), and also including urea
formaldehyde, polychlorinated biphenyls, asbestos, asbestos-containing
materials, nuclear fuel or waste, and petroleum products, or any other waste,
material, substances, pollutant or contaminant which would subject an owner of
property to any damages, penalties or liabilities under any applicable
Environmental Laws or Environmental Regulations.
INDEMNIFIED PARTIES: shall have the meaning set forth in Section 8.82.
IRS: shall have the meaning set forth in Subsection 8.11.2.
LETTER OF CREDIT: the irrevocable letter of credit no. 611491 issued by
CoBank for the account of Borrower and for the benefit of ▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ in the face amount of $150,000, which letter of credit has an
expiry date of November 30, 1998.
LICENSING LAWS: shall have the meaning set forth in Section 8.4.
LIVESTOCK: shall have the meaning set forth in Section 8.46.
LOAN: any of the Loans.
LOANS: a collective reference to the Term Loan, the Revolving Loan, the
Construction Loan and all Additional Loans outstanding from time to time.
LOAN DOCUMENTS: this Agreement, the Notes, the Security Documents, the MLA
Supplements, and other documents executed by Borrower which are required to
grant to CoBank a perfected security interest in the Collateral.
LOAN PROCEEDS: shall have the meaning set forth in Section 4.5.
MATERIAL ADVERSE EFFECT: (a) a material adverse effect on the financial
condition, results of operation, business or property of Borrower; (b) a
material adverse effect on the ability of Borrower to perform its obligations
under this Agreement and the other Loan Documents; or (c) a material adverse
effect upon the ability of CoBank to enforce its rights and remedies under the
Loan Documents.
MATERIAL AGREEMENTS: shall have the meaning set forth in Section 8.15.
MATURITY DATE: with respect to (a) the Term Loan, the Term Loan Maturity
Date, (b) with respect to the Revolving Loan, the Revolving Loan Maturity Date,
(c) with respect to the Construction Loan, the Construction Loan Maturity Date,
and (d) with respect to any Additional Loan, the maturity date for such
Additional Loan set forth in the MLA Supplement executed by Borrower and CoBank
with respect to such Loan.
MEASUREMENT QUARTER: shall have the meaning set forth in Subsection
4.10.6.
MLA SUPPLEMENT: the Master Loan Agreement Supplement in the form attached
hereto: (a) with respect to an Additional Term Loan, as Exhibit 2.1.4(a), (b)
with respect to an Additional Revolving Loan, as Exhibit 2.1.4(b), and (c) with
respect to an Additional Construction Loan, as Exhibit 2.1.4(c).
MULTIEMPLOYER PLAN: shall have the meaning set forth in Subsection 8.11.3.
NET INCOME: Borrower's net income (excluding all Pig Production Margins),
determined in accordance with GAAP.
NOTES: the Term Loan Note, the Revolving Loan Note, the Construction Loan
Note, all Additional Term Loan Notes, all Additional Revolving Loan Notes and
all Additional Construction Loan Notes.
ORGANIZATIONAL DOCUMENTS: in the case of a corporation, its articles or
certificate of incorporation and bylaws; in the case of a partnership, its
partnership agreement and certificate of limited partnership, if applicable; in
the case of a limited liability company, its articles of organization and its
operating agreement.
ORIGINAL MASTER LOAN AGREEMENT: shall have the meaning set forth in the
Recitals.
ORIGINAL TERM LOAN: shall have the meaning set forth in the Recitals.
ORIGINAL TERM LOAN AGREEMENT: shall have the meaning set forth in the
Recitals.
PERMANENT FUNDING FEE: shall have the meaning set forth in Subsection
4.12.4.
PERMITS: shall have the meaning set forth in Subsection 8.25.15.
PERMITTED ENCUMBRANCE: shall have the meaning set forth in Section 8.13.
PERSON: any individual, corporation, limited liability company,
association, partnership, trust, organization, government, governmental agency,
or other entity.
PIG PRODUCTION MARGINS: the Production Margin (as such term is defined in
the Feeder Pig Purchase Agreements and the Weaned Pig Purchase Agreements), if
any, charged by Borrower under the Feeder Pig Purchase Agreements and the Weaned
Pig Purchase Agreements.
PLANS AND SPECIFICATIONS: the plans, architectural drawings, engineering
drawings, material lists, and other specifications for the construction of a
Unit as approved by CoBank and as modified from time to time by Change Orders
meeting the requirements of Section 8.74 of this Agreement.
POTENTIAL DEFAULT: any event, other than an event described in Section
9.1(a) hereof, which with the giving of notice or lapse of time, or both, would
become an Event of Default.
PRINCIPAL AGREEMENTS: the Feeder Pig Purchase Agreements, the Excess
Feeder Pig Purchase Agreements, the Weaned Pig Purchase Agreements, the Excess
Weaned Pig Purchase Agreements, the Excess Class C Weaned Pig Purchase
Agreements and the Swine Agreement.
PURCHASE MONEY REAL PROPERTY: shall have the meaning set forth in Section
8.64.
QUOTED RATE: the rate of interest determined and quoted by CoBank in its
sole and absolute discretion from time to time at the request of Borrower, which
may not necessarily be the lowest rate at which CoBank loans funds at that time.
QUOTED RATE LOAN: shall have the meaning set forth in Subsection 4.10.2.
QUOTED RATE REQUEST: shall have the meaning set forth in Subsection
4.10.2.
QUOTED RATE PERIOD: shall have the meaning set forth in Subsection 4.10.2.
REAL PROPERTY ACQUISITION LOAN: shall have the meaning set forth in
Section 8.64.
REGULATORY CHANGE: shall have the meaning set forth in Section 9.19.
REQUIRED LICENSES: shall have the meaning set forth in Section 8.10.
RESERVED DISPUTED AMOUNT: shall have the meaning set forth in Section 4.6.
RETAINAGE: shall have the meaning set forth in Subsection 8.32.1.
RETAINAGE RELEASE DATE: shall have the meaning set forth Subsection
8.32.1.
RETAINED AMOUNT: shall have the meaning set forth in Section 4.4.
REVOLVING LOAN: shall have the meaning set forth in Subsection 2.1.2.
REVOLVING LOAN EXPIRATION DATE: September 30, 2011.
REVOLVING LOAN MATURITY DATE: September 30, 2011.
REVOLVING LOAN NOTE: the Amended and Restated Promissory Note (Revolving
Loan) of even date herewith made by Borrower payable to CoBank in the maximum
principal amount of $7,660,000.
REVOLVING LOAN SUPPLEMENT: shall have the meaning set forth in the
Recitals.
REVOLVING LOAN TAKEOUT AMOUNT: with respect to (a) a Feeder Pig Unit, the
balance outstanding on the Feeder Construction Portion after the Feeder Term
Portion has been applied to the Feeder Construction Portion, or (b) a Weaned Pig
Unit, the balance outstanding on the Weaned Construction Portion after the
Weaned Term Portion has been applied to the Weaned Construction Portion.
RPTA: shall have the meaning set forth in Subsection 8.23.14.
SECURITY DOCUMENTS: the security agreements, mortgages and deeds of trust
and amendments thereto, financing statements, pledge agreements, leasehold
assignment and consents, assignments and/or other security documents executed by
Borrower in favor of CoBank to secure Borrower's performance of its obligations
under the Notes and other Loan Documents with a first lien on all assets, real
and personal, of Borrower, in form and substance reasonably acceptable to
CoBank.
SPREADING EASEMENT: an easement or other agreement providing access,
granted to Borrower by a third-party, on such third-party's leased or owned real
property, as the case may be, for the purpose of allowing Borrower to dispose
of the anticipated effluent from Borrower's operation of one or more Units.
SUPPLEMENTAL TERM LOAN: shall have the meaning set forth in the Recitals.
SWINE AGREEMENT: the Swine Production Services Agreement dated as of July
13, 1994 by and between Borrower and Farmland, as amended by the First Amendment
to Swine Production Services Agreement dated as of July 26, 1996 and by the
Second Amendment to Swine Production Services Agreement dated as of April 14,
1997, pursuant to which Farmland agrees to provide certain administrative,
advisory and consulting services to Borrower.
SWINE AGREEMENT CONSENT: the Consent to Collateral Assignment, in form and
substance reasonably satisfactory to CoBank, from Farmland.
TERM LOAN: shall have the meaning set forth in Subsection 2.1.1.
TERM LOAN EXPIRATION DATE: December 31, 2001.
TERM LOAN MATURITY DATE: that date which is ninety-nine (99 ) months after
the final Advance under the Term Loan which final Advance shall not be later
than the Term Loan Expiration Date
TERM LOAN NOTE: the Amended and Restated Promissory Note (Term Loan) of
even date herewith made by Borrower payable to CoBank in the maximum principal
amount of $26,846,700.
TERM LOAN SUPPLEMENT: shall have the meaning set forth in the Recitals.
TERM LOAN TAKEOUT AMOUNT: with respect to (a) a Feeder Pig Unit, the
Feeder Term Portion, and (b) a Weaned Pig Unit, the Weaned Term Portion.
TITLE COMMITMENTS: shall have the meaning set forth in Subsection 8.23.5.
TITLE INSURERS: shall have the meaning set forth in Subsection 8.23.5.
TITLE POLICIES: shall have the meaning set forth in Subsection 8.23.5.
TOTAL EQUITY: Borrower's stockholders' equity, determined in accordance
with GAAP, plus the outstanding principal amount under the outstanding Farmland
Notes.
TOTAL ASSETS: all assets of Borrower determined in accordance with GAAP.
UNITS: collectively, the Feeder Pig Units and the Weaned Pig Units,
whether an Existing Unit, a new Unit or a Unit Under Construction.
UNITS UNDER CONSTRUCTION: those Units (one Weaned Pig Unit in Yuma County,
Colorado and one Weaned Pig Unit in ▇▇▇▇▇ County, Illinois) as to which
Borrower, as of the Closing Date, is entitled to further disbursements under the
Existing Term Loan and the Existing Revolving Loan.
UNIT UNDER CONSTRUCTION PREMISES: shall have the meaning set forth in
Section 8.17.
WATER RIGHTS: shall have the meaning set forth in Section 8.20.
WATER SUPPLY EASEMENTS: shall have the meaning set forth in Subsection
8.23.8.
WEANED CONSTRUCTION PORTION: shall have the meaning set forth in
Subsection 4.1.1.
WEANED PIG PURCHASE AGREEMENTS: (a) the Weaned Pig Purchase Agreements,
substantially in the form attached hereto as Exhibit 1.172 (a) between Borrower
and each of its members owning shares of Borrower's Class B common stock; and
(b) the Class C Weaned Pig Purchase Agreements, substantially in the form
attached hereto as Exhibit 1.172 (b) between Borrower and each of its members
owning shares of Borrower's Class C common stock pursuant to which Borrower
shall sell its inventory of weaned pigs meeting certain minimum health and
weight requirements to such members.
WEANED PIG UNIT: shall have the meaning set forth in the Recitals
(notwithstanding the meaning ascribed to this term in the Recitals, CoBank and
Borrower acknowledge and agree that the capacity of any Weaned Pig Unit shall
not be limited to 2,450 sows).
WEANED PIG UNIT EQUITY TRANCHE: shall have the meaning set forth in
Subsection 4.1.1.
WEANED REVOLVING PORTION: shall have the meaning set forth in Subsection
4.1.1.
WEANED TERM PORTION: shall have the meaning set forth in Subsection 4.1.1.
ARTICLE 1 CREDIT FACILITIES
FINANCIAL ACCOMMODATIONS. On the terms and conditions set forth in this
Agreement, CoBank agrees to make the following financial accommodations
available to Borrower:
TERM LOAN. A term loan in an aggregate principal amount up to the
Aggregate Term Loan Commitment ("TERM LOAN"). The outstanding amount of the
Existing Term Loan as of the date hereof ("EXISTING TERM BALANCE") shall
constitute part of the Term Loan, and this Agreement shall amend, restate,
replace and supersede the Original Term Loan Agreement, the Original Master Loan
Agreement and the Term Loan Supplement in their entirety.
REVOLVING LOAN A revolving loan ("REVOLVING LOAN") in an aggregate
principal amount up to the Aggregate Revolving Loan Commitment less the undrawn
face amount of the Letter of Credit until the Letter of Credit Expiration Date
(after which date, if not already made available to Borrower, the entire face
amount of the Letter of Credit shall be made available to Borrower as a part of
the Revolving Loan). The outstanding amount of the Existing Revolving Loan as
of the date hereof ("EXISTING REVOLVING BALANCE") shall constitute part of the
Revolving Loan, and this Agreement shall amend, restate, replace and supersede
the Original Master Loan Agreement and the Revolving Loan Supplement in their
entirety.
CONSTRUCTION LOAN. A construction loan ("CONSTRUCTION LOAN") in an
aggregate principal amount up to the Aggregate Construction Loan Commitment.
FUTURE LOANS. From time to time on or after the date hereof Borrower
may, (a) in accordance with the procedures set forth in Section 8.35 hereof,
request CoBank to make one or more additional term loans (each an "ADDITIONAL
TERM LOAN"), one or more additional revolving loans (each an "ADDITIONAL
REVOLVING LOAN"), or one or more additional construction loans (each an
"ADDITIONAL CONSTRUCTION LOAN"). CoBank will evaluate each such request and
determine, in its sole and absolute discretion, whether or not to make the
Additional Term Loan, Additional Revolving Loan or Additional Construction Loan
(collectively "ADDITIONAL LOANS") requested therein. In the event CoBank agrees
to make such Additional Loan, Borrower shall execute an MLA Supplement
substantially in the form attached hereto as Exhibit 2.1.4(a) (for an Additional
Term Loan), as Exhibit 2.1.4(b) (for an Additional Revolving Loan), or as
Exhibit 2.1.4(c) (for an Additional Construction Loan), and an Additional Term
Loan Note, Additional Revolving Loan Note or Additional Construction Loan Note,
as applicable, and such additional Security Documents, or amendments to existing
Security Documents, as CoBank shall require in its sole discretion and the terms
and conditions applicable to such Additional Loan shall be as set forth in this
Agreement as supplemented or modified by the MLA Supplement and/or the
Additional Term Loan Note, Additional Revolving Loan Note or Additional
Construction Loan Note, as applicable.
ARTICLE 2 PURPOSES
PURPOSE - TERM LOAN. The proceeds of the Term Loan shall be used (a) to
refinance the Existing Term Loan and (b) the balance only to pay off a portion
of the costs of Borrower's construction (including the cost of acquiring the
Construction Premises or Unit Under Construction Premises, as applicable, and
Breeding Stock), conducted in accordance with the terms of this Agreement, of
all Units Under Construction and one or more new Feeder Pig Units and new Weaned
Pig Units, as follows: (i) the proceeds of the Term Loan available to Borrower
upon receipt of a Feeder Pig Unit Equity Tranche (as defined below) may be used
by Borrower only to finance up to a maximum of $2,110,000 of the costs of
Borrower's construction (including the cost of acquiring the Construction
Premises or Unit Under Construction Premises, as applicable, and the Breeding
Stock), conducted in accordance with the terms of this Agreement, of a Feeder
Pig Unit, and (ii) the proceeds of the Term Loan available to Borrower upon
receipt of a Weaned Pig Unit Equity Tranche (as defined below) may be used by
Borrower only to finance up to a maximum of $1,675,000 of the costs of
Borrower's construction (including the cost of acquiring the Construction
Premises or Unit Under Construction Premises, as applicable, and the Breeding
Stock), conducted in accordance with the terms of this Agreement, of a Weaned
Pig Unit.
PURPOSE - REVOLVING LOAN. The proceeds of the Revolving Loan shall be used
(a) to refinance the Existing Revolving Loan and (b) the balance only (i) to pay
off the portion of the costs of Borrower's construction (including the cost of
acquiring the Construction Premises or Unit Under Construction Premises, as
applicable, and Breeding Stock) remaining after the funding of the Term Loan
Takeout Amount for all Units Under Construction and one or more new Feeder Pig
Units and new Weaned Pig Units, and (ii) to reimburse CoBank in the event that
draws are made on the Letter of Credit, and (iii) to fund the working capital
needs of Borrower.
PURPOSE - CONSTRUCTION LOAN. The proceeds of the Construction Loan
available to Borrower upon receipt of a Feeder Pig Unit Equity Tranche may be
used by Borrower only to finance a portion of the costs of Borrower's
construction (including the cost of acquiring the Construction Premises or Unit
Under Construction Premises, as applicable, and the Breeding Stock), conducted
in accordance with the terms of this Agreement, of a Feeder Pig Unit (whether
new or a Unit Under Construction). The proceeds of the Construction Loan
available to Borrower upon receipt of a Weaned Pig Unit Equity Tranche may be
used by Borrower only to finance a portion of the costs of Borrower's
construction (including the cost of acquiring the Construction Premises or Unit
Under Construction Premises, as applicable, and the Breeding Stock), conducted
in accordance with the terms of this Agreement, of a Weaned Pig Unit (whether
new or a Unit Under Construction).
PURPOSE - ADDITIONAL LOANS. The proceeds of any Additional Loan may be
used by Borrower only for the purposes specified in the MLA Supplement executed
by CoBank and Borrower with respect to such Additional Loan.
ARTICLE 3 AVAILABILITY; MANNER AND METHOD OF DISBURSEMENT; REBORROWING
AVAILABILITY. The proceeds of the Term Loan, the Revolving Loan and the
Construction Loan will be made available to Borrower as follows:
AVAILABILITY OF LOAN PROCEEDS DEPENDENT UPON LEVEL OF EQUITY
CONTRIBUTION. Subject to Subsection 4.1.2, the amount of Loan Proceeds
available to Borrower for disbursement on or after the Closing Date under the
Loans shall be dependent upon the amount of equity contributions received by
Borrower after December 31, 1997, as set forth below, and Borrower shall be
required to provide evidence reasonably satisfactory to CoBank, of the receipt
and amount of such equity contributions:
FEEDER PIG UNITS. For each $1,360,000 in equity contributions
received by Borrower after December 31, 1997 from the sale of at least 17 shares
of Borrower's Class A common stock, $.01 par value per share ("FEEDER PIG UNIT
EQUITY TRANCHE"), the following amounts shall become available for disbursement
to Borrower (the funding of which shall be subject to the fulfillment of all
applicable conditions precedent under Article 11 hereof) and shall be used for
the purposes permitted in Article 3 hereof and shall constitute the maximum
amount of Loan Proceeds available under the Construction Loan, Term Loan and
Revolving Loan, respectively, on account of the receipt of such Feeder Unit
Equity Tranche: (i) under the Construction Loan, $2,720,000 ("FEEDER
CONSTRUCTION PORTION"); (ii) under the Term Loan, $2,110,000 ("FEEDER TERM
PORTION"); and (iii) under the Revolving Loan, $610,000 ("FEEDER REVOLVING
PORTION"). Notwithstanding the foregoing, with respect to each Feeder Pig Unit
which is a Unit Under Construction, the Feeder Construction Portion, Feeder Term
Portion and Feeder Revolving Portion shall be available for disbursement to
Borrower (subject to the fulfillment of all applicable conditions precedent
under Article 11) if Borrower has previously provided CoBank with evidence of
the receipt of the Feeder Pig Unit Equity Tranche (including any Equity Loan
constituting and deemed to be a Feeder Pig Unit Equity Tranche), notwithstanding
the fact that Borrower received the equity contributions constituting such
Feeder Pig Unit Equity Tranche before December 31, 1997.
WEANED PIG UNITS. For each $1,080,000 in equity contributions
received by Borrower after December 31, 1997 from the sale of at least 18 shares
of Borrower's Class B common stock, $.01 par value per share, or at least 24
shares of Borrower's Class C common stock, $.01 par value per share ("WEANED PIG
UNIT EQUITY TRANCHE"), the following amounts shall become available for
disbursement to Borrower (the funding of which shall be subject to the
fulfillment of all applicable conditions precedent under Article 11 hereof) and
shall be used for the purposes permitted in Article 3 hereof and shall
constitute the maximum amount of Loan Proceeds available under the Construction
Loan, Term Loan and Revolving Loan, respectively, on account of the receipt of
such Weaned Unit Equity Tranche: (i) under the Construction Loan, $2,160,000
("WEANED CONSTRUCTION PORTION"); (ii) under the Term Loan, $1,675,000 ("WEANED
TERM PORTION") and (iii) under the Revolving Loan, $485,000 ("WEANED REVOLVING
PORTION"). Notwithstanding the foregoing, with respect to each Weaned Pig Unit
which is a Unit Under Construction, the Weaned Construction Portion, Weaned Term
Portion and Weaned Revolving Portion shall be available for disbursement to
Borrower (subject to the fulfillment of all applicable conditions precedent
under Article 11) if Borrower has previously provided CoBank with evidence of
the receipt of the Weaned Pig Unit Equity Tranche (including any Equity Loan
constituting and deemed to be a Weaned Pig Unit Equity Tranche), notwithstanding
the fact that Borrower received the equity contributions constituting such
Weaned Pig Unit Equity Tranche before December 31, 1997.
EQUITY LOAN SHALL FULFILL REQUIREMENT FOR AN EQUITY TRANCHE. Upon
satisfaction of the conditions set forth below, each loan to Borrower from
Farmland in lieu of the receipt by Borrower of equity funds in the amount of (a)
$1,360,000, shall constitute and be deemed to be a Feeder Pig Unit Equity
Tranche, and (b) $1,080,000, shall constitute and be deemed to be a Weaned Pig
Unit Equity Tranche. A maximum of eight Equity Loans may be outstanding at any
time. In order to constitute an Equity Loan, a loan from Farmland to Borrower
shall:
be in a principal amount equal to $ 1,360,000, if such loan is
intended to constitute a Feeder Pig Unit Equity Tranche;
be in a principal amount equal to $ 1,080,000, if such loan is
intended to constitute a Weaned Pig Unit Equity Tranche;
be made pursuant to loan documents reasonably satisfactory to CoBank;
not be secured by any assets of Borrower other than the Feeder Pig
Unit or Weaned Pig Unit to be constructed, in part, with the proceeds of such
loan from Farmland;
CoBank and Farmland shall have entered into a subordination agreement
in the form of Exhibit 4.1.2 hereto regarding the subordination of such loan,
and all liens securing such loan, to the Bank Debt; and
if such loan is intended to constitute (i) a Feeder Pig Unit Equity
Tranche, CoBank shall have received a copy of any executed Excess Feeder Pig
Purchase Agreements evidencing the obligation of the counterparties to such
agreements to purchase in the aggregate a minimum quantity of feeder pigs from
Borrower equal to the quantity of feeder pigs that would be purchased, pursuant
to Feeder Pig Purchase Agreements, by members of Borrower owning 17 shares of
Borrower's Class A common stock, $.01 par value per share, which obligation to
purchase feeder pigs shall commence when the first lot of feeder pigs meeting
minimum health and weight requirements specified in such agreements is produced
and available from the Feeder Pig Unit constructed, in part, with the proceeds
of such loan and shall continue in effect for so long as such loan is
outstanding, or (ii) a Weaned Pig Unit Equity Tranche, CoBank shall have
received a copy of any executed Excess Weaned Pig Purchase Agreements or Excess
Class C Weaned Purchase Agreements, as the case may be, evidencing the
obligation of the counterparties to such agreements to purchase in the aggregate
a minimum quantity of weaned pigs from Borrower equal to the quantity of weaned
pigs that would be purchased, pursuant to Weaned Pig Purchase Agreements, by
members of Borrower owning 18 shares of Borrower's Class B common stock, $.01
par value per share or 24 shares of Borrower's Class C common stock, $.01 par
value per share, which obligation to purchase weaned pigs shall commence when
the first lot of weaned pigs meeting minimum health and weight requirements
specified in such agreements is produced and available from the Weaned Pig Unit
constructed, in part, with the proceeds of such loan and shall continue in
effect for so long as such loan is outstanding.
RESERVATION REGARDING FEEDER PIG UNITS. At the time of the issuance of an
Activation Notice by CoBank with respect to the Feeder Construction Portion for
any Feeder Pig Unit (whether new or a Unit Under Construction), CoBank shall
reserve (a) the Feeder Term Portion against the Term Loan, and (b) the Feeder
Revolving Portion against the Revolving Loan, and the amounts so reserved shall
not be available for disbursement under this Agreement until such time as
payment of all outstanding principal of the Feeder Construction Portion for such
Feeder Pig Unit is due and payable under this Agreement. Upon the repayment of
the Feeder Construction Portion for a Feeder Pig Unit (whether new or a Unit
Under Construction) with the Term Loan Takeout Amount and the Revolving Loan
Takeout Amount and the reservation of the Retained Amount for such Feeder Pig
Unit against the Revolving Loan at the time of such repayment, the amount of the
Feeder Revolving Portion for such Feeder Pig Unit remaining, if any, shall no
longer be reserved against the Revolving Loan and shall be available to Borrower
upon the terms and conditions of this Agreement.
RESERVATION REGARDING WEANED PIG UNIT. At the time of the issuance of an
Activation Notice by CoBank with respect to the Weaned Construction Portion for
any Weaned Pig Unit (whether new or a Unit Under Construction), CoBank shall
reserve (a) the Weaned Term Portion against the Term Loan, and (b) the Weaned
Revolving Portion against the Revolving Loan, and the amounts so reserved shall
not be available for disbursement under this Agreement until such time as
payment of all outstanding principal of the Weaned Construction Portion for such
Weaned Pig Unit is due and payable under this Agreement. Upon the repayment of
the Weaned Construction Portion for a Weaned Pig Unit (whether new or a Unit
Under Construction) with the Term Loan Takeout Amount and the Revolving Loan
Takeout Amount and the reservation of the Retained Amount for such Weaned Pig
Unit against the Revolving Loan at the time of such repayment, the amount of the
Weaned Revolving Portion for such Weaned Pig Unit remaining, if any, shall no
longer be reserved against the Revolving Loan and shall be available to Borrower
upon the terms and conditions of this Agreement.
RESERVATION REGARDING RETAINAGE. The amount of the Retainage held by
CoBank pursuant to Subsection 8.32.1 of this Agreement with respect to the
construction of a Unit ("RETAINED AMOUNT") shall be reserved against the
Revolving Loan at the time that the Construction Loan Portion for such Unit is
repaid upon the funding of the Term Loan Takeout Amount and the Revolving Loan
Takeout Amount and such reservation shall continue until the Retainage Release
Date.
MANNER OF DISBURSEMENT. The proceeds of any Loan ("LOAN PROCEEDS") will be
made available to Borrower during the period ("AVAILABILITY PERIOD") commencing
upon satisfaction of the conditions set forth in Article 11 hereof applicable to
such Loan and continuing (a) with respect to the Term Loan, until the Term Loan
Expiration Date, (b) with respect to the Revolving Loan, until the Revolving
Loan Expiration Date, (c) with respect to the Construction Loan, until the
Construction Loan Expiration Date, and (d) with respect to an Additional Loan,
until the Additional Loan Expiration Date. Unless otherwise agreed, the Loan
Proceeds will be made available, in accordance with this Agreement, on Business
Days during the Availability Period by (x) credit to the account of CoBank where
(i) the Term Loan Takeout Amount and the Revolving Loan Takeout Amount for a
particular Unit are advanced hereunder for the purpose of repaying the
Construction Loan Portion for such Unit, (ii) proceeds of the Construction Loan
are advanced to repay the amount of the Existing Term Loan and Existing
Revolving Loan advanced with respect to a Unit Under Construction prior to the
Closing Date, or (iii) an Advance under the Revolving Loan is made hereunder due
to a draw under the Letter of Credit, and (y) by check or by wire transfer of
immediately available funds in accordance with written wire transfer
instructions to be furnished by Borrower on a form supplied by CoBank, or as
provided in Section 4.6 hereof.
DIRECT DISBURSEMENT OF CONSTRUCTION LOAN PROCEEDS.
At CoBank's discretion, all disbursements of the proceeds of the
Construction Loan under Section 4.5(y) hereof may be made directly to the
General Contractor, to any subcontractors, laborers and materialmen for a
particular Feeder Pig Unit or Weaned Pig Unit, or to any combination of the
foregoing. No further direction or authorization from Borrower shall be
necessary to warrant such direct advances. If CoBank receives notice from any
of the General Contractor, any subcontractor, laborer or materialmen to the
effect that such Person is owed payment for their services rendered or materials
provided in connection with the construction of a Unit and if the amount claimed
by such Person was not included in the itemization of the Advance amount
requested in the last Construction Loan Advance Request received by CoBank
relating to the construction of such Unit, CoBank shall notify Borrower of such
claim and shall not exercise its right to disburse the proceeds of the
Construction Loan directly to such Person until ten days have elapsed after the
giving of such notice to Borrower.
Notwithstanding subparagraph (a) of this Section, Borrower may provide
written notice to CoBank if it disputes any amount owing to the General
Contractor, any subcontractor, laborer or materialmen (the "DISPUTING
CONTRACTOR") and, if such written notice is received by CoBank prior to the
disbursement by CoBank of the amount disputed by Borrower ("DISPUTED AMOUNT") to
the Disputing Contractor and in sufficient time that CoBank could reasonably be
expected to act on such notice, CoBank shall:
(i) reserve an amount equal to 110% of the Disputed Amount ("RESERVED
DISPUTED AMOUNT") against the Construction Loan Portion for the applicable
Unit;
(ii) not disburse the Reserved Disputed Amount unless it receives:
(1) written notice from Borrower that it consents to
the disbursement of the Disputed Amount to the Disputing
Contractor, or
(2) a copy of a judgment in favor of the Disputing
Contractor awarding payment of the Disputed Amount, or
any portion thereof (in which case only such portion
shall be disbursed by CoBank to the Disputing
Contractor), and
upon receipt by CoBank of the notice referred to in (1) or the judgment
referred to in (2), then CoBank shall first deduct from the Reserved
Disputed Amount any costs incurred by it in connection with the dispute
between Borrower and the Disputing Contractor, and then shall disburse the
Disputed Amount or the applicable portion thereof to the Disputing
Contractor, and, thereafter, any remaining portion of the Reserved Disputed
Amount shall become available under the Construction Loan Portion for the
applicable Unit; and, further, if CoBank receives a copy of a judgment
against the Disputing Contractor stating that the Disputing Contractor is
not owed any payment, then CoBank shall first deduct from the Reserved
Disputed Amount any costs incurred by it in connection with the dispute
between Borrower and the Disputing Contractor, and, thereafter, any
remaining portion of the Reserved Disputed Amount shall become available
under the Construction Loan Portion for the applicable Unit;
(iii) if the Construction Loan Portion for the applicable Unit
becomes due and payable in accordance with Subsection 4.13.3 hereof and
neither of the conditions to disbursement of the Reserved Disputed Amount
set forth in subparagraph (ii) above have been satisfied, then the Reserved
Disputed Amount shall be reserved against the Revolving Loan at the time
the Construction Loan Portion for such Unit is repaid upon the funding of
the Term Loan Takeout Amount and the Revolving Loan Takeout Amount and such
reservation shall continue until one of the conditions for disbursement of
the Reserved Disputed Amount or the release of reservation of such amount
set forth in subparagraph (ii) is satisfied (in which event the Reserved
Disputed Amount shall be disposed of in accordance with subparagraph (ii),
except that any remaining portion of the Reserved Disputed Amount becoming
available to Borrower in accordance with subparagraph (ii) shall become
available under the Revolving Loan).
All proceeds of the Construction Loan shall be considered to be advanced to and
received by Borrower upon, and interest on such funds shall be payable by
Borrower from and after, their direct advance by CoBank to Borrower, or the
General Contractor and/or any subcontractors, laborers or materialmen for the
particular Feeder Pig Unit or Weaned Pig Unit.
AVAILABILITY FOR SPECIAL FACILITY. Notwithstanding any provision to the
contrary herein, including the provisions and limitations contained in Sections
4.1, 4.2, 4.3, 4.4, and 4.13 hereof, Borrower shall be entitled to borrow Loan
Proceeds under the Construction Loan, the Term Loan, and the Revolving Loan, in
connection with the construction of a Feeder Pig Unit or a Weaned Pig Unit
designed to accommodate between 4,900 and 5,000 sows upon Borrower's
satisfaction of the conditions and requirements for making a similar borrowing
of Loan Proceeds in connection with the construction of a Feeder Pig Unit or a
Weaned Pig Unit designed to accommodate between 2,450 and 2,500 sows, subject to
the following modifications (and corresponding modifications to the relevant
defined terms):
With respect to such a Feeder Pig Unit: (i) the required Feeder Pig
Unit Equity Tranche must be $2,720,000, (ii) the Feeder Construction Portion
will be $5,440,000, (iii) the Feeder Term Portion will be $4,220,000, (iv) the
Feeder Revolving Portion will be $1,220,000, (v) the reference in Subsection
4.1.2 hereof and subparagraph (a) thereof to $1,360,000 shall be deemed a
reference to $2,720,000, and (vi) Excess Feeder Pig Purchase Agreements will be
required evidencing the obligation of the counterparties to purchase in the
aggregate a minimum quantity of feeder pigs from Borrower equal to the quantity
of feeder pigs that would be purchased, pursuant to Feeder Pig Purchase
Agreements, by members of Borrower owning 34 shares of Borrower's Class A common
stock, $.01 par value per share.
With respect to such a Weaned Pig Unit: (i) the required Weaned Pig
Unit Equity Tranche must be $2,160,000, (ii) the Weaned Construction Portion
will be $4,320,000, (iii) the Weaned Term Portion will be $3,350,000, (iv) the
Weaned Revolving Portion will be $970,000, (v) the reference in Subsection 4.1.2
hereof and in subparagraph (b) thereof to $1,080,000 shall be deemed a reference
to $2,160,000, and (vi) Excess Weaned Pig Purchase Agreements or Excess Class C
Weaned Pig Purchase Agreements, as the case may be, will be required evidencing
the obligation of the counterparties to purchase in the aggregate a minimum
quantity of weaned pigs from Borrower equal to the quantity of weaned pigs that
would be purchased, pursuant to Weaned Pig Purchase Agreements, by members of
Borrower owning 36 shares of Borrower's Class B common stock, $.01 par value per
share or 48 shares of Borrower's Class C common stock, $.01 par value per share.
The Permanent Funding Fee with respect to either of such 4,900- to
5,000- sow Units will be $12,000.
The principal payments required under Subsection 4.13.1 (b) with
respect to such 4,900- to 5,000- sow Feeder Pig Unit will be $43,600 and the
principal payments required under Subsection 4.13.1 (c) with respect to such
4,900- to 5,000- sow Weaned Pig Unit will be $34,600.
ABILITY TO REBORROW LOAN PROCEEDS. Amounts borrowed under the Term Loan,
the Construction Loan, Additional Term Loans or Additional Construction Loans
and repaid may not be reborrowed. Amounts borrowed under the Revolving Loan and
any Additional Revolving Loan and repaid may be reborrowed until the Revolving
Loan Expiration Date or the Additional Loan Expiration Date, respectively.
DRAWS UNDER THE LETTER OF CREDIT. The payment by CoBank of a draft drawn
under the Letter of Credit shall automatically constitute, for all purposes of
this Agreement, the making by CoBank of an Advance under the Revolving Loan.
ARTICLE 4 INTEREST AND FEES
INTEREST. Interest on all Loans shall be calculated as follows:
BASE RATE OPTION. Except for outstanding principal amounts advanced
under the Term Loan or the Revolving Loan with respect to which Borrower has
requested and received a Quoted Rate Loan pursuant to Subsection 4.10.2and
except as provided in Subsection 4.10.4, the outstanding principal balance under
the Term Loan and the Revolving Loan, respectively, shall bear interest at the
Base Rate. The Construction Loan shall bear interest at all times at the Base
Rate.
QUOTED RATE OPTION. From time to time, and so long as no Event of
Default has occurred and is continuing, at the request of Borrower ("QUOTED RATE
REQUEST"), all or any part of the outstanding principal balance under the Term
Loan or the Revolving Loan may bear interest at the Quoted Rate ("QUOTED RATE
LOAN"). The Quoted Rate Request may be made to CoBank orally or in writing on
any Business Day (provided that if such request is made orally, Borrower must
furnish written confirmation of such request within one (1) Business Day) and is
effective as of the third Business Day after the Quoted Rate Request is received
if received by CoBank no later than 12 noon Central Time or as of the fourth
Business Day if received later than 12 noon Central Time. The Quoted Rate
Request must specify: (a) whether the amounts to be fixed at the Quoted Rate
were advanced under the Term Loan or the Revolving Loan; (b) the principal
amount that is to bear interest at the Quoted Rate; and (c) the period selected
by Borrower during which the Quoted Rate is to be applied ("QUOTED RATE
PERIOD"), which may be any period equal to or longer than 30-days but must
expire no later than the Term Loan Maturity Date (with respect to amounts
advanced under the Term Loan) or the Revolving Loan Maturity Date (with respect
to amounts advanced under the Revolving Loan), as applicable. CoBank shall
incur no liability in acting upon a request which it believed in good faith had
been made by a properly authorized employee of Borrower. Each Quoted Rate Loan
must have a Quoted Rate Period that will allow Borrower to make the principal
payments on the Loans required under Article 6 of this Agreement without
requiring Borrower to make a prepayment on any Quoted Rate Loan. Following the
expiration of the Quoted Rate Period for any Quoted Rate Loan, interest shall
automatically accrue on the outstanding principal amount thereof at the Base
Rate unless Borrower requests and receives another Quoted Rate Loan as provided
in this Subsection.
ADDITIONAL LOANS. The outstanding principal balance under each
Additional Loan shall bear interest at the rate specified in the MLA Supplement
executed by CoBank and Borrower with respect to such Additional Loan.
REQUIREMENT THAT INTEREST RATE ON TERM LOAN PROCEEDS BE FIXED. As of
May 1, 1998, the interest rate on the outstanding amount of the Existing Term
Balance will automatically bear interest at the Quoted Rate (subject to
reduction pursuant to Subsection 4.10.6) except for that portion of such amount
as to which Borrower, on or before such date, has entered into a swap, hedge or
other similar agreement, in form and substance satisfactory to CoBank, designed
to artificially fix the interest rate on such amount. As of the ninety-first
day after each Advance under the Term Loan made on or after the Closing Date,
the interest rate on the amount of such Advance ("ADVANCE AMOUNT") will
automatically bear interest at the Quoted Rate (subject to reduction pursuant to
Subsection 4.10.6) except for such portion of the Advance Amount as to which
Borrower, on or before such date, has entered into a swap, hedge or other
similar agreement, in form and substance satisfactory to CoBank, designed to
artificially fix the interest rate on such amount.
DEFAULT INTEREST RATE. All past due payments of any Bank Debt
(whether as a result of nonpayment by Borrower when due, at maturity, or upon
acceleration) shall bear interest at the Default Interest Rate from and after
the due date for the payment, or on the date of maturity or acceleration, as the
case may be.
PERFORMANCE PRICING ADJUSTMENTS. The rates of interest being charged
on the Term Loan and the Revolving Loan, respectively, pursuant to Subsections
4.10.1, 4.10.2and 4.10.4, shall be reduced by the amount indicated below on the
basis of the ratio of Total Equity to Total Assets, measured on a quarterly
basis as of the end of each Fiscal Quarter ("MEASUREMENT QUARTER"), all as set
forth below:
Ratio of Total Equity to Total Assets Interest Rate Reduction
< .375 0 basis points
> .375 and < .40 25 basis points
> .40 and < .45 50 basis points
> .45 75 basis points
Any such interest rate reduction for which Borrower qualifies shall be effective
as of the first day of the Fiscal Quarter immediately succeeding the Measurement
Quarter in which CoBank receives Borrower's financial statements and Compliance
Certificate, required pursuant to Section 8.38 hereof, demonstrating that
Borrower qualifies for a reduction of the interest rate charged on the Term Loan
and Revolving Loan, as described above. In the event that Borrower's financial
statements and Compliance Certificate required pursuant to Section 8.38 are not
received by CoBank after the end of a Measurement Quarter, when required
pursuant to Section 8.38, Borrower shall not be entitled to any interest rate
reduction pursuant to this Subsection during the Fiscal Quarter immediately
succeeding such Measurement Quarter.
INTEREST CALCULATION. Interest on all Loans shall be calculated on the
actual number of days the principal owing thereunder is outstanding with the
daily rate calculated on the basis of a year consisting of 360 days. In
calculating interest, the Advance Date shall be included and the date each
payment is received shall be excluded.
FEES. Borrower shall pay or cause to be paid the following fees:
REVOLVING LOAN COMMITMENT FEE. A commitment fee of 50 basis points on
the amount of the Aggregate Revolving Loan Commitment, payable in advance on the
Closing Date and, thereafter, on March 31 of each year commencing on March 31,
1999, except that the amount of the commitment fee payable on the Closing Date
shall be reduced by $23,000 (the amount of the commitment fee heretofore paid by
Borrower with respect to the Existing Revolving Loan pursuant to Section 8 of
the Revolving Loan Supplement).
CONSTRUCTION LOAN COMMITMENT FEE. A commitment fee payable in advance
on the Closing Date and, thereafter, on March 31 of each year commencing on
March 31, 1999. The amount of such commitment fee which shall be payable on the
Closing Date shall be 25 basis points on $14,080,000 and, thereafter, such
annual commitment fee shall be 25 basis points on the unadvanced amount of the
Aggregate Construction Loan Commitment.
ACTIVATION FEE. An origination fee payable at the time of issuance of
each Activation Notice with respect to the Construction Loan Portion for a new
Unit ("ACTIVATION FEE") equal to 100 basis points on the amount of the activated
Construction Loan Portion for such new Unit.
PERMANENT FUNDING FEE. A fee payable at the time of the advance
hereunder of each Term Loan Takeout Amount for each new Unit ("PERMANENT FUNDING
FEE") equal to $6,000.
ADDITIONAL LOANS. Those fees with respect to each Additional Loan as
are specified in the MLA Supplement executed by CoBank and Borrower with respect
to such Additional Loan.
ARTICLE 5 PAYMENTS/PERMANENT COMMITMENT REDUCTIONS
PRINCIPAL PAYMENTS. Principal shall be payable as follows:
TERM LOAN. Principal on:
the portion of the Term Loan equal to the Existing Term Balance shall
be payable in equal monthly installments of $128,600, commencing April 20, 1998
and on the 20th day of each succeeding month to and including August 20, 1998
and, thereafter, shall be payable in equal monthly installments of $151,000 on
the 20th day of each month, and reductions of the Existing Term Balance (on
account of the refinancing of the advances made under the Existing Term Loan for
the Units Under Construction with the proceeds of the Construction Loan)
pursuant to Subsection 8.29.2 shall be applied to discharge principal on the
Existing Term Balance in the inverse order in which the principal would
otherwise become due;
each Feeder Term Portion advanced under the Term Loan with respect to
construction of a Feeder Pig Unit (whether new or a Unit Under Construction)
shall be payable in equal monthly installments of $21,800 on the 20th day of
each month commencing in the second month after the date of the advance of the
Term Loan Takeout Amount for such Feeder Pig Unit, but in no event later than:
(i) with respect to a new Feeder Pig Unit, in the eighteenth month after the
date of the initial Advance under the Feeder Construction Portion for such Unit,
or (ii) with respect to a Unit Under Construction, in the eighteenth month after
the date of the initial advance under the Existing Term Loan for such Unit Under
Construction; and
each Weaned Term Portion advanced under the Term Loan with respect to
construction of a new Weaned Pig Unit (whether new or a Unit Under Construction)
shall be payable in equal monthly installments of $17,300 on the 20th day of
each month commencing in the second month after the date of the advance of the
Term Loan Takeout Amount for such Weaned Pig Unit, but in no event later than:
(i) with respect to a new Weaned Pig Unit, in the eighteenth month after the
date of the initial Advance under the Weaned Construction Portion for such Unit,
or (ii) with respect to a Unit Under Construction, in the eighteenth month after
the date of the initial advance under the Existing Term Loan for such Unit Under
Construction.
The entire unpaid principal balance owing under the Term Loan shall be
payable on or before the Term Loan Maturity Date.
REVOLVING LOAN. The Aggregate Revolving Loan Commitment shall be
reduced in forty (40) equal amounts (on the basis of the amount of the Aggregate
Revolving Loan Commitment existing as of August 30, 2001) on the last day of
each Fiscal Quarter, commencing on August 31, 2001 (each, a "COMMITMENT
REDUCTION") such that, after the fortieth Commitment Reduction, the Aggregate
Revolving Loan Commitment shall be equal to zero. If the outstanding principal
balance of the Revolving Loan exceeds the Aggregate Revolving Loan Commitment
after any such Commitment Reduction, Borrower shall immediately make a principal
payment on the Revolving Loan in an amount sufficient to reduce the outstanding
principal balance of the Revolving Loan to an amount not exceeding the Aggregate
Revolving Loan Commitment as reduced. The entire unpaid principal balance owing
under the Revolving Loan shall be payable on or before the Revolving Loan
Maturity Date.
CONSTRUCTION LOAN. The entire unpaid outstanding principal balance of
each Construction Loan Portion shall be due and payable on the earlier of (a)
that date which is (i) with respect to a new Unit, sixteen (16) months after the
date of the initial Advance under the Construction Loan Portion for such Unit,
or (ii) with respect to a Unit Under Construction, sixteen (16) months after the
date of the initial advance under the Existing Term Loan for such Unit Under
Construction, or (b) that date which is thirty (30) days after the final Advance
of such Construction Loan Portion, except that if the final Advance of such
Construction Loan Portion is on the Construction Loan Expiration Date, the
unpaid outstanding principal balance of such Construction Loan Portion shall be
due and payable on the Construction Loan Maturity Date. The entire unpaid
principal balance owing under the Construction Loan shall be payable on or
before the Construction Loan Maturity Date.
ADDITIONAL LOANS. Principal payments with respect to each Additional
Loan shall be made on the dates specified in the MLA Supplement executed by
CoBank and Borrower with respect to such Additional Loan.
INTEREST PAYMENTS. Interest shall be payable on each Loan (a) on the
twentieth (20th) day of each month commencing on the twentieth day of the month
following the month in which the first Advance is made under such Loan, and (b)
in the amount of all accrued and unpaid interest on the Maturity Date of such
Loan.
APPLICATION OF REGULAR PAYMENTS. Provided no Event of Default or Potential
Default has occurred, scheduled principal payments shall be applied to the Note
with respect to which such payment was made and shall be applied first to Loans
bearing interest at the Base Rate, then to Quoted Rate Loans. Upon the
occurrence and during the continuance of an Event of Default or Potential
Default, all amounts received by CoBank shall be applied, as CoBank in its sole
discretion shall determine (upon notification to Borrower), to fees, the
purchase of CoBank Equity Interests, interest or principal indebtedness under
the Notes, or to any other Bank Debt. The amount of Loan Proceeds advanced and
other Bank Debt, and all payments by or on behalf of Borrower, of such amounts,
shall be entered on the books of CoBank and such entries shall be, absent
evidence of manifest error, presumptive evidence of the unpaid amounts
outstanding from time to time under the Notes and other Loan Documents.
MANNER OF PAYMENT; PAYMENT ON BUSINESS DAYS. All payments, including
prepayments, that Borrower is required or permitted to make under the terms of
this Agreement shall be made to CoBank (a) in immediately available federal
funds, to be received no later than 2:00 Central Time of the Business Day on
which such payment is due by wire transfer through Federal Reserve Bank, Kansas
City, Routing Number: ▇▇▇▇▇▇▇▇▇, COBANK ENGWD (or to such other account as
CoBank may designate by notice); and (b) without setoff or counterclaim and free
and clear of and without deduction for any taxes, levies, impost, duties,
charges, fees, deductions, withholding, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
Borrower is compelled by law to make such deduction or withholding. Whenever
any payment required under this Article 6 is scheduled to be made on a date
other than a Business Day, such payment shall instead be due on the next
Business Day and shall not be delinquent if paid on such date.
BORROWER REDUCTION OF AGGREGATE REVOLVING LOAN COMMITMENT. Borrower shall
have the right, from time to time, to reduce the Aggregate Revolving Loan
Commitment in multiples of $100,000 upon two (2) Business Days prior written
notice to CoBank provided that the requested reduction shall not cause the
Aggregate Revolving Loan Commitment to be less than the aggregate amount of (a)
the outstanding principal balance owing under the Revolving Loan, plus (b) the
undrawn face amount of the outstanding Letter of Credit, plus (c) the amount of
each Feeder Revolving Portion and Weaned Revolving Portion which has been
reserved pursuant to Sections 4.2 and 4.3 hereof, respectively, plus (d) all
Retained Amounts reserved against the Revolving Loan pursuant to Section 4.4
hereof and all Reserved Disputed Amounts, if any, reserved against the Revolving
Loan pursuant to Section 4.6 hereof. Any reduction of the Aggregate Revolving
Loan Commitment pursuant to this Section shall be irrevocable.
ARTICLE 6 PREPAYMENTS
VOLUNTARY PREPAYMENTS. Borrower shall have the right to prepay all or any
part of the outstanding principal balance under any Loan which bears interest at
the Base Rate at any time. In addition, Borrower shall have the right to prepay
all (but not part) of the outstanding principal balance of any Quoted Rate Loan,
provided that: (a) Borrower shall, at least five (5) Business Days prior to
making any such prepayment, deliver to CoBank a written notice which sets forth
the amount of the prepayment, the date on which the prepayment will be made, and
the Quoted Rate Loan being prepaid; (b) Borrower shall pay all accrued and
unpaid interest relating to the amount prepaid through the date of prepayment;
and (c) on the prepayment date, Borrower shall pay the Funding Losses, if any,
resulting from the prepayment, as provided in Section 5.2 hereof. Any written
notice by Borrower of its election to prepay a Quoted Rate Loan under this
Section shall be irrevocable.
FUNDING LOSSE. CoBank shall determine "FUNDING LOSSES" for the purposes of
this Agreement as follows:
Determine the difference between: (i) the Quoted Rate in effect for
the first day of the Quoted Rate Period during which the prepayment occurs for
the Quoted Rate Loan being prepaid, minus (ii) the Quoted Rate in effect on the
day on which the prepayment occurs, provided the amount shall not be less than
zero.
Then add 1/2 of one percent (1/2%) to the amount determined in (a),
divide the amount so determined by 360 and multiply the result (i) by the amount
being prepaid, and (ii) by the number of days remaining in the Quoted Rate
Period of the Quoted Rate Loan being prepaid.
MINIMUM PREPAYMENT AMOUNT. Voluntary prepayments must be in amounts no
less than $100,000.00. Voluntary prepayments shall be applied to discharge
principal amounts in the inverse order in which the principal would otherwise
become due.
APPLICATION OF PREPAYMENTS. Provided no Event of Default or Potential
Default has occurred, Borrower shall have the right to designate whether a
prepayment of principal is to be applied to outstanding principal under the
Loans bearing interest at the Base Rate or to a Quoted Rate Loan. Upon the
occurrence and during the continuance of an Event of Default or Potential
Default, Borrower hereby agrees that all prepayments paid to CoBank shall be
applied, as CoBank in its sole discretion shall determine (upon notification to
Borrower), to fees, the purchase of CoBank Equity Interests, interest or
principal indebtedness under the Notes (in such order of maturity as CoBank
shall select), or to any other Bank Debt.
ARTICLE 7 COBANK EQUITY
Borrower agrees to purchase such equity interests in CoBank ("COBANK EQUITY
INTERESTS") as CoBank may from time to time require in accordance with its
bylaws and capital plan as applicable to cooperative borrowers generally. In
connection with the foregoing, Borrower hereby acknowledges receipt, prior to
the execution of this Credit Agreement, of CoBank's bylaws, a written
description of the terms and conditions under which the CoBank Equity Interests
are issued, CoBank's Loan-Based Capital Plan, CoBank's most recent annual
report, and if more recent than CoBank's latest annual report, its latest
quarterly report.
ARTICLE 8 SECURITY
BORROWER'S ASSETS. As security for the payment and performance of all
obligations of Borrower to CoBank, including but not limited to principal and
interest under the Notes, purchases of CoBank Equity Interests, fees,
reimbursements, and all other Bank Debt or obligations under any of the Loan
Documents, Borrower shall grant to, and maintain for, CoBank a first lien and
security interest, subject only to Permitted Encumbrances, in all of its assets,
both real and personal, tangible and intangible, whether now owned or hereafter
acquired, including, without limitation, the Feeder Pig Units, the Weaned Pig
Units, all real property interests owned by Borrower, all pigs, all feed, all
accounts, the Principal Agreements and all other agreements relating to the
construction or operation of each Unit ("COLLATERAL"), pursuant to the Security
Documents. Borrower shall execute and deliver to CoBank the Security Documents
to evidence the security interest of CoBank, together with such financing
statements or other documents as CoBank shall reasonably request. Borrower
shall also execute such further security agreements, mortgages, deeds of trust,
financing statements, assignments or other documents as CoBank shall reasonably
request, in form and substance as CoBank shall specify, to establish, confirm,
perfect or provide notice of CoBank's security interest in the Collateral. If
requested by CoBank: (a) Borrower and CoBank shall place a legend on any
chattel paper included in the Collateral showing CoBank's security interest
therein; and (b) Borrower shall deliver to CoBank possession of any instruments
and securities included in the Collateral (duly endorsed to CoBank's reasonable
satisfaction).
ARTICLE 9 REPRESENTATIONS AND WARRANTIES
To induce CoBank to make the Loans, and recognizing that CoBank is relying
thereon, Borrower represents and warrants as follows:
ORGANIZATION, GOOD STANDING, ETC. Borrower: (a) is duly organized,
validly existing, and in good standing under the laws of its state of
incorporation; (b) qualifies as a cooperative corporation under the laws of its
state of incorporation; and (c) is duly qualified to do business and is in good
standing in each jurisdiction in which the transaction of its business makes
such qualification necessary.
CORPORATE AUTHORITY, DUE AUTHORIZATION; CONSENT. Borrower has full power
and authority to own its assets and conduct its business as contemplated to be
operated from and after the Closing Date; to execute, deliver and perform its
obligations under the Loan Documents and all other documents and agreements as
contemplated by this Agreement; and to enter into and perform its obligations
under the Principal Agreements, all of which have been duly authorized. All
consents or approvals of any Person which are necessary for, or are required as
a condition of, the execution, delivery and performance by Borrower of the Loan
Documents and the Principal Agreements have been obtained.
LITIGATION. Except as described on Exhibit 8.3 hereto, there are, no
pending legal or governmental actions, proceedings or investigations to which
Borrower is a party or to which any property of Borrower is subject which
reasonably would be expected to result in any Material Adverse Effect and, to
Borrower's knowledge, no such actions or proceedings are threatened or
contemplated by any federal, state, county, or city (or similar unit)
governmental agency or any other Person.
NO VIOLATION. The execution, delivery and performance by Borrower of the
Loan Documents and the Principal Agreements will not: (a) violate any provision
of Borrower's articles of incorporation or bylaws, (b) violate any provision of
any law, rule, regulation, judgment, order or ruling of any court or
governmental agency binding on Borrower or affecting its property; (c) violate,
conflict with, result in a breach of, constitute a default under, or with the
giving of notice or the expiration of time or both, constitute a default under,
any existing mortgage, indenture, lease, security agreement, contract, note,
instrument or any other agreements or documents binding on Borrower or affecting
its property where such event could reasonably be expected to have a Material
Adverse Effect; or (d) violate, conflict with, result in a breach of, constitute
a default under, or result in the loss of, or restriction of rights under, any
Required License or any order, law, rule, or regulation under or pursuant to
which any Required License was issued or is maintained where such event could
reasonably be expected to have a Material Adverse Effect ("LICENSING LAWS").
BINDING AGREEMENT. Each of the Loan Documents to which Borrower is a party
is, or when executed and delivered, will be, the legal, valid and binding
obligation of Borrower, enforceable against Borrower in accordance with its
terms, subject only to limitations on enforceability imposed by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors' rights generally and by general principles of equity.
COMPLIANCE WITH LAWS. To the best knowledge of Borrower's corporate
officers, Borrower is in compliance with all federal, state, and local laws,
rules, regulations, ordinances, codes and orders, including without limitation
all Environmental Laws and all Licensing Laws, with respect to which
noncompliance would result in a Material Adverse Effect.
PRINCIPAL PLACE OF BUSINESS. Borrower's place of business, or chief
executive office if it has more than one place of business, and the place where
the records required by Section 8.37 hereof are kept, is located at ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
FINANCIAL STATEMENTS; NO MATERIAL ADVERSE CHANGE. The audited financial
statements of Borrower as of August 31, 1997 previously furnished to CoBank by
Borrower were prepared based upon Borrower's books and records and fairly
present in all material respects the financial condition, assets and liabilities
of Borrower as of the dates covered thereby and the financial results of
Borrower for the periods covered thereby and the results of operations of
Borrower for the periods then ended, in each case in conformity with GAAP.
Since August 31, 1997, there has been no material adverse change in the
financial condition, results of operations, business or prospects of Borrower.
PAYMENT OF TAXES. Borrower (a) has filed all required federal, state and
local tax returns and has paid all taxes as shown on such returns as they have
become due, and (b) has paid when due all other taxes, assessments or
impositions levied or assessed against Borrower or its business or properties.
LICENSES, PERMITS AND APPROVAL. Borrower has ownership of, or license to
use, or has been issued, all trademarks, patents, copyrights, franchises,
certificates, approvals, permits, authorities, agreements, and licenses used or
necessary to permit it to own its properties, to operate the Existing Units, and
to otherwise conduct its business as presently being conducted ("REQUIRED
LICENSES"). Exhibit 8.10 lists all Required Licenses presently in existence
with respect to Borrower. Each Required License is in full force and effect,
and there is no outstanding notice of cancellation or termination or, to
Borrower's knowledge, any threatened cancellation or termination in connection
therewith, nor has an event occurred with respect to any Required License which,
with the giving of notice or passage of time or both, reasonably would be
expected to result in the revocation or termination thereof or otherwise in any
impairment of Borrower's rights with respect thereto, which impairment could
reasonably be expected to have a Material Adverse Effect. No consent,
permission, authorization, order, or license of any governmental authority, is
necessary in connection with: (i) Borrower's execution or delivery of, or
Borrower's performance of its obligations under, the Loan Documents, or
enforcement of the Loan Documents to which Borrower is a party; or (ii)
Borrower's execution or delivery of, or Borrower's performance of its
obligations under, the Principal Agreements, except such as have been obtained
and are in full force and effect as described on Exhibit 8.10.
EMPLOYEE BENEFIT PLANS.
EMPLOYEE BENEFIT PLANS; MULTIEMPLOYER PLANS. Exhibit 8.11 sets forth:
(a) a true and complete list of each Borrower Pension Plan and each funded
"employee welfare benefit plan," as such term is defined in Section 3(1) of the
Employee Retirement Income Security Act of 1974, as amended, and the regulations
thereunder ("ERISA"), that is maintained by Borrower or in which Borrower
participates or to which Borrower is obligated to contribute; and (b) a true and
complete list of all "multiemployer plans," as defined in Section 3(37) of ERISA
to which Borrower currently has any obligation to contribute. Borrower has
received no notification that any "multiemployer plan" to which Borrower
currently has any obligation to contribute which is an "employee pension benefit
plan" as such term is defined in Section 3(2) of ERISA fails to qualify under
Section 401(a) of the Internal Revenue Code of 1986, as amended from time to
time ("CODE").
PENSION BENEFIT PLANS. To the knowledge of Borrower, each Borrower
Benefit Plan that is an "employee pension benefit plan" as defined in
Section 3(2) of ERISA that is intended to satisfy the requirements of Section
401(a) of the Code (each a "BORROWER PENSION PLAN"), and the trust, if any,
forming a part thereof, meets, and since its inception has met, the requirements
for qualification under Section 401(a) of the Code, and is, and since its
inception has been, exempt from taxation under Section 501(a) of the Code,
except to the extent any failure to comply with Section 401(a) or failure to be
exempt from tax would not have a Material Adverse Effect. Except as set forth
in Exhibit 8.11, the Internal Revenue Service ("IRS") has issued a favorable
determination letter with respect to the qualification of each Borrower Pension
Plan and the trust, if any, relating thereto, and, to the knowledge of Borrower,
the IRS has not taken any action to revoke any such letter.
PROHIBITED TRANSACTIONS. With respect to each "employee benefit
plan", as such term is defined in Section 3(3) of ERISA, sponsored or maintained
by Borrower or in which Borrower participates or to which Borrower is obligated
to contribute (with the exception of any "multiemployer plan" to which Borrower
is obligated to contribute) (each a "BORROWER BENEFIT PLAN"), neither Borrower
nor any Borrower Benefit Plan or a fiduciary thereof, is engaged or has engaged
in any transaction which is prohibited by Part 4 of Subtitle B of Title I of
ERISA or which reasonably would be expected to subject any such plan or related
trust, or any trustee or administrator thereof, to a tax or penalty imposed by
Section 4975 of the Code or Section 502(i) of ERISA or to liability under
Section 409 of ERISA, any of which would have a Material Adverse Effect. With
respect to each "multiemployer plan" as defined in Section 3(37) of ERISA to
which Borrower or a member of Borrower's "controlled group" (as that term is
defined in Section 414 of the Code and applied as of the date prior to the
Closing Date) has any obligation to contribute (each a "MULTIEMPLOYER PLAN"), to
the knowledge of Borrower, neither Borrower nor any Multiemployer Plan or a
fiduciary thereof is engaged or has engaged in any transaction which is
prohibited by Part 4 of Subtitle B of Title I of ERISA or which reasonably would
be expected to subject Borrower to a tax or penalty imposed by Section 4975 of
the Code or Section 502(i) of ERISA or to liability under Section 409 of ERISA,
any of which would have a Material Adverse Effect.
CIVIL/CRIMINAL ACTION. To the knowledge of Borrower, no civil or
criminal action brought pursuant to Part V of Subtitle B of Title I of ERISA is
pending, or, to the knowledge of Borrower, is threatened against Borrower, any
Borrower Benefit Plan or any fiduciary thereof with respect to any Borrower
Benefit Plan.
FUNDING. (a) Each of the Borrower Pension Plans is in compliance with
the minimum funding standards of Section 412 of the Code and Part 3 of
Subtitle B of Title I of ERISA, and (b) no waivers of the minimum funding
standards have been requested, and no Borrower Pension Plan has any "accumulated
funding deficiency" within the meaning of Section 412 of the Code.
COMPLIANCE WITH LAW. Borrower is in compliance in all material
respects with, and each Borrower Benefit Plan has been operated in all material
respects in accordance with, the provisions of such plan and in compliance in
all material respects with, ERISA, the Code and all other applicable law
governing each such Borrower Benefit Plan, including but not limited to rules
and regulations promulgated by the Department of Labor, the Pension Benefit
Guaranty Corporation, and the Department of the Treasury pursuant to the
provisions of ERISA and the Code, including without limitation, the bonding
requirements of Section 412 of ERISA and the disclosure and reporting
requirements of Part I of Subtitle B of Title I of ERISA, except to the extent
any such failure would not have a Material Adverse Effect.
MULTIPLE EMPLOYER PLAN. Borrower does not participate in any
"multiple employer plan" within the meaning of Section 413 of the Code.
PLAN TERMINATION LIABILITY; MULTIEMPLOYER PLAN WITHDRAWAL LIABILITY.
(a) Borrower has not incurred any liability under Title IV of ERISA arising in
connection with the termination of, or complete or partial withdrawal from, any
employee pension benefit plan (as defined in Section 3(2) of ERISA), covered or
previously covered by Title IV of ERISA, which liability, or any portion
thereof, will constitute a liability of Borrower at or after the Closing Date,
and (b) neither Borrower nor any member of Borrower's "controlled group" prior
to the Closing Date has incurred any liability under Title IV of ERISA arising
in connection with the complete or partial withdrawal from any "multiemployer
plan" (as defined in Section 3(37) of ERISA), which liability, or any portion
thereof, will constitute a liability of Borrower at or after the Closing Date.
PENSION PLAN TERMINATION. No proceedings to terminate any Borrower
Pension Plan have been instituted under Subtitle C of Title IV of ERISA.
REPORTABLE EVENT. No "reportable event" within the meaning of
Section 4043 of ERISA and the regulations thereunder other than a reportable
event for which notice or penalty for noncompliance has been waived by
regulation or otherwise has occurred with respect to any Borrower Pension Plan.
With respect to any Multiemployer Plan that is a defined benefit plan, to the
knowledge of Borrower, no such "reportable event" has occurred which would
materially and adversely affect such plan, and, to the knowledge of Borrower, no
such plan is in reorganization within the meaning of Part 3 of Subtitle E of
Title IV of ERISA.
PAYMENT OF CONTRIBUTIONS. In respect of each Borrower Benefit Plan,
Borrower has paid or will have paid as of the Closing Date (a) all contributions
or premiums required to be made by it for all plan years ending on or prior to
the Closing Date and, (b) for the plan year which includes the Closing Date, any
contributions or premiums required to be made by it by the Closing Date under
the terms of the Borrower Benefit Plan. Except as disclosed in Exhibit 8.11,
Borrower is not obligated to pay any contributions or premiums to a
Multiemployer Plan. Except as set forth in Exhibit 8.11, all contributions paid
or accrued by Borrower on or prior to the Closing Date in respect of any
Borrower Pension Plan that is a defined benefit plan have been based on the
actuarial assumptions and methods used for the last plan year ended on or before
the Closing Date, or if there is no prior plan year for any such plan,
contributions have been based upon reasonable actuarial assumptions and methods.
WELFARE BENEFIT PLANS. Borrower does not participate in a "multiple
employer welfare arrangement" within the meaning of Section 3(40) of ERISA.
Except as disclosed in Exhibit 8.11, Borrower does not maintain or contribute to
a "voluntary employees' beneficiary association" within the meaning of Section
501(a)(9) of the Code or a "welfare benefit fund" within the meaning of Section
419 of the Code, nor does Borrower maintain or contribute to any employee
welfare benefit plan within the meaning of Section 3(1) of ERISA for the benefit
of retired or former employees (other than as required by Section 4980B of the
Code and Sections 601 through 608 of ERISA ("COBRA") or other applicable law).
Borrower has complied in all material respects with the applicable provisions of
COBRA with respect to the Borrower Benefit Plans.
EQUITY INVESTMENTS. Borrower does not now own any stock or other voting or
equity interest, directly or indirectly, in any Person other than the CoBank
Equity Interests.
REAL AND PERSONAL PROPERTY; TITLE TO REAL AND PERSONAL PROPERTY. Borrower:
(a) has all real property interests, including without limitation, fee
interests, leasehold interests, Spreading Easements, other easements, licenses
and rights of way which currently are reasonably necessary for the conduct of
Borrower's business and the operation of all Existing Units; and (b) does not
own any fee interest or leasehold interest, or any other interest, including
without limitation any easements, rights of way or licenses, in real property,
other than as set forth on Exhibit 8.13 hereto ("BORROWER'S REAL PROPERTY").
Borrower has all personal property reasonably necessary for the conduct of
Borrower's business as presently conducted; Borrower has furnished adequate
feed, shelter, water and medication to the Breeding Stock for all Existing Units
and Borrower's existing feeder pigs and has cared for such animals in accordance
with commercially reasonable practices of animal husbandry; all other personal
property of Borrower is in good operating condition and repair except for
reasonable wear and tear and except as set forth on Exhibit 8.13; all personal
property of Borrower is suitable in all material respects for the uses for which
such property is utilized; and all personal property (other than titled motor
vehicles) of Borrower is described in a manner which reasonably identifies such
personal property in one or more of the Security Documents. Except as
specifically identified in Exhibit 8.13 attached hereto or as permitted by
Section 8.64 hereof ("PERMITTED ENCUMBRANCES"), Borrower holds good and
marketable title to all of Borrower's Real Property, owns all of its personal
property and all of its leases of real or personal property, in each case free
and clear of any lien, pledge, restriction, or encumbrance. All of Borrower's
leases of real or personal property which constitute Material Agreements are in
full force and effect and afford Borrower peaceful and undisturbed possession of
the subject matter thereof, subject, however to the terms of such leases.
FISCAL YEAR. Each fiscal year of Borrower begins on September 1 of each
calendar year and ends on August 31 of each calendar year.
MATERIAL AGREEMENTS. Exhibit 8.15 hereto sets forth all agreements of
Borrower, the termination or breach of which, based upon Borrower's knowledge as
of the date of making any representation with respect thereto, reasonably would
be expected to have a Material Adverse Effect ("MATERIAL AGREEMENTS"). Each
Material Agreement has been fully executed by all parties thereto. Neither
Borrower nor, to Borrower's knowledge, any other party to any Material
Agreement, is in default thereunder, and no facts exist which with the giving of
notice or the passage of time, or both, would constitute such a default by
Borrower or, to the knowledge of Borrower, by any other party thereto.
EXISTING TERM LOAN; EXISTING REVOLVING LOAN. The proceeds of the Existing
Term Loan were used for the purposes specified in the Original Term Loan
Agreement, the Original Master Loan Agreement and the Term Loan Supplement, and
the proceeds of the Existing Revolving Loan were used for the purposes specified
in the Original Master Loan Agreement and the Revolving Loan Supplement.
UNITS UNDER CONSTRUCTION. The real property description for each Unit
Under Construction is set forth on Exhibit 8.17 hereto. All construction
performed on or before the date of this Agreement with respect to construction
of each Unit Under Construction has been performed within the boundaries of that
portion of Borrower's Real Property on which such Unit Under Construction is
being constructed ("UNIT UNDER CONSTRUCTION PREMISES"). Such construction has
been fully paid for, to the extent due, and no lien for labor, material or
supplies has been asserted, or threatened, against any Unit Under Construction
or any Unit Under Construction Premises, except for liens constituting a
Permitted Encumbrance and liens that have been released. To the knowledge of
Borrower after due inquiry, there is no structural defect in the construction of
any Unit Under Construction. To the knowledge of Borrower after due inquiry, no
material violation of the laws, regulations, or requirements of any governmental
authority exists with respect to the construction of any Unit Under
Construction. The anticipated use of each Unit Under Construction complies, in
all material respects, with applicable zoning ordinances, regulations and
restrictive covenants affecting the Unit Under Construction Premises.
EXISTING UNITS. The construction of the Existing Units was performed
within the boundaries of Borrower's Real Property in Yuma County, Colorado and
▇▇▇▇▇ County, Illinois, as applicable. Such construction was fully paid for and
no lien for labor, material or supplies has been asserted, or threatened,
against the parcels of Borrower's Real Property on which the Existing Units are
located, except for liens constituting a Permitted Encumbrance and liens that
have been released. To the knowledge of Borrower after due inquiry, there is no
structural defect in the construction of the Existing Units. To the knowledge
of Borrower after due inquiry, no material violation of the requirements of any
governmental authority exists with respect to the construction of any of the
Existing Units. The use of the Existing Units complies, in all material
respects, with applicable zoning ordinances, regulations and restrictive
covenants affecting Borrower's Real Property on which the Existing Units are
located in all material respects, and all requirements for such use have been
satisfied.
PRINCIPAL AGREEMENTS. The Principal Agreements have been executed by all
parties thereto and neither Borrower nor, to Borrower's knowledge, the other
party to any such Principal Agreement is in default thereunder, nor, to
Borrower's knowledge, has there occurred any event which with the giving of
notice or the lapse of time, or both, would become a default under any such
Principal Agreement.
WATER RIGHTS. Borrower has ownership of all water rights, and has been
issued all well permits for all water rights used or necessary to permit it to
own its properties and to otherwise conduct its business as presently being
conducted ("WATER RIGHTS"), and including, without limitation, to operate the
Existing Units. Exhibit 8.20 lists all Water Rights owned by Borrower. Each
well permit and decree (if any) evidencing Borrower's Water Rights is in full
force and effect. Except as set forth on Exhibit 8.20, with respect to all
Water Rights on irrigated land purchased by Borrower, Borrower has obtained any
necessary approvals of all appropriate governmental authorities, including
without limitation the Colorado Ground Water Commission, to change the use of
such Water Rights in order to use such Water Rights for Borrower's operations,
and all such approvals are final and non-appealable. None of Borrower's Water
Rights are being contested or appealed and, to Borrower's knowledge, there is no
threatened contest or appeal of such Water Rights.
INTELLECTUAL PROPERTY. Borrower has ownership of or the lawful right to
use all tradenames, trademarks, patents and other intellectual property which it
utilizes in its business as presently being conducted, and all such intellectual
property that is federally registered is described on Exhibit 8.21 hereto.
DISCLOSURE. The representations and warranties contained in this Article
10 and in the other Loan Documents do not contain any untrue statement of a
material fact or omit to state a material fact necessary to make such
representations not misleading.
ARTICLE 10 CONDITIONS TO CREDIT FACILITY AND ADVANCES
CONDITIONS TO AVAILABILITY OF CREDIT FACILITIES. The obligation of CoBank
to make available to Borrower the credit facilities described in Article 2
hereof is subject to satisfaction, in CoBank's sole discretion, of each of the
following conditions precedent:
ELIGIBILITY. Borrower shall be eligible, as determined by CoBank, to
borrow from CoBank under the eligibility requirements for cooperative entities
set forth in Section 3.8 of the Farm Credit Act of 1971, as amended (12 U.S.C.
Section 2129) and the regulations promulgated by the Farm Credit Administration,
set forth in Title 12 C.F.R. Part 13, Sections 613.3000 and 613.3100
(collectively, the "ELIGIBILITY REQUIREMENTS").
APPLICATION; COBANK EQUITY INTEREST PURCHASE OBLIGATION. Borrower
shall have: (a) completed the loan application form provided by CoBank; and (b)
purchased such CoBank Equity Interests as CoBank may require pursuant to Article
8 hereof.
LOAN DOCUMENTS; AND OTHER DOCUMENT. CoBank shall have received: (a)
duly executed originals of the Loan Documents; and (b) possession of all other
instruments and documents in which CoBank has been granted a security interest
and of which CoBank is to have possession under the terms of the Loan Documents.
SEARCHES; UCC FILINGS; RECORDING. CoBank shall have received: (a)
searches of appropriate filing offices showing that (i) no state or federal tax
liens have been filed which remain in effect against Borrower, (ii) except with
respect to Permitted Encumbrances, no financing statements have been filed by
any Person other than CoBank which remain in effect against Borrower with
respect to any of the Collateral, (iii) all financing statements necessary to
perfect the security interests granted to CoBank under the Loan Documents which
are capable of being perfected by filing have been filed or recorded, and (iv)
all of the Loan Documents required to be recorded or filed to perfect the
security interests and liens granted therein shall be so recorded and filed.
TITLE INSURANCE. CoBank shall have received mortgagees' title
insurance commitments ("TITLE COMMITMENTS") acceptable to CoBank from one or
more insurers acceptable to CoBank (the "TITLE INSURERS") committing to issue
one or more title policies (ALTA Loan Policy Form) (the "TITLE POLICIES")
insuring the lien in favor of CoBank on each parcel of Borrower's Real Property
owned in fee on the date hereof as a first priority lien on such real property
interest, subject only to Permitted Encumbrances, and (i) deleting the standard
printed exceptions and the gap exception, (ii) containing only such exceptions
to title as are reasonably acceptable to CoBank, and (iii) containing such
endorsements as CoBank may reasonably require; and, written confirmation from
the Title Insurers acceptable to CoBank confirming that the Title Insurers are
irrevocably committed to issue the Title Policies described above.
SURVEY. Borrower shall have provided CoBank with an ALTA improvement
survey of the real property on which each Existing Unit is located which is
acceptable to CoBank and the Title Insurer issuing the Title Policy for such
real property interest and which shows the legal description of such real
property interest as it will be insured by the Title Insurer. The survey must
be certified as accurate by a licensed surveyor in the state where such real
property interest is located and contain a certificate imprinted thereon in the
form approved by the American Land Title Association stating that the survey is
made for the benefit of CoBank, Borrower and the Title Insurer.
FLOOD PLAIN CERTIFICATION. CoBank shall (a) have received from the
independent contractor engaged by CoBank, one or more certificates indicating
that none of the fee or leasehold parcels of Borrower's Real Property containing
a structure are located in a flood plain, or (b) have received from Borrower,
proof of flood insurance satisfactory to CoBank with respect to each fee or
leasehold parcel of Borrower's Real Property containing a structure which is
located in a flood plain.
WATER RIGHTS; SPREADING EASEMENTS. CoBank shall have received surveys
indicating the location of (a) all ▇▇▇▇▇ for which Borrower, as of the Closing
Date, owns water rights and indicating all pipelines by which the water from
such ▇▇▇▇▇ is carried to the Existing Units or the Units Under Construction and
indicating any easements giving Borrower the right to access and maintain such
▇▇▇▇▇ and pipelines ("WATER SUPPLY EASEMENTS"), and (b) all Spreading Easements.
APPROVALS. CoBank shall have received evidence satisfactory to it
that all consents and approvals of governmental authorities and third parties
which are with respect to Borrower, necessary for, or required as a condition
of: (a) the validity and enforceability of the Loan Documents; (b) creation of,
and realization on, CoBank's lien on the Collateral; and (c) the execution of
and performance under the Principal Agreements, have been obtained and are in
full force and effect.
ORGANIZATIONAL DOCUMENTS. CoBank shall have received: (a) good
standing certificates, dated no more than thirty (30) days prior to the Closing
Date, for Borrower for its state of incorporation and for each state where its
operations require qualification or authorization to transact business; (b) a
copy of the articles of incorporation of Borrower certified by the Secretary of
State of its state of incorporation; and (c) a copy of the bylaws of Borrower,
certified as true and complete by the Secretary or Assistant Secretary of
Borrower.
EVIDENCE OF CORPORATE ACTION. CoBank shall have received in form and
substance satisfactory to CoBank documents evidencing all corporate action taken
by Borrower to authorize (including the specific titles of the persons
authorized to so act ("AUTHORIZED OFFICERS")) the execution, delivery and
performance of the Loan Documents to which it is a party, certified to be true
and correct by the Secretary or Assistant Secretary of Borrower.
LEGAL OPINION FOR BORROWER. CoBank shall have received an opinion of
counsel for Borrower (who shall be acceptable to CoBank), in form and content
reasonably acceptable to CoBank and addressed to CoBank.
EVIDENCE OF INSURANCE. Borrower shall have provided CoBank with
insurance certificates and such other evidence, in form and substance
satisfactory to CoBank, of all insurance required to be maintained by it under
the Loan Documents.
ILLINOIS RESPONSIBLE PROPERTY TRANSFER ACT. With respect to
Borrower's Real Property owned in fee simple and located in Illinois, Borrower
shall have provided CoBank with: (a) a certificate executed by an officer of
Borrower acceptable to CoBank stating that (i) the execution and delivery of the
mortgage(s) for Borrower's Real Property located in Illinois does not constitute
a transfer of "real property" under and as defined in the Illinois Responsible
Property Transfer Act (765 ILCS 90/1 et seq., as amended from time to time
("RPTA"), (ii) there are no underground storage tanks located on or under
Borrower's Real Property located in Illinois which are subject to the
notification requirements under Section 9002 of the Solid Waste Disposal Act, as
now or hereafter amended (42 U.S.C. Section 6991), and (iii) there is no
facility located on or at Borrower's Real Property located in Illinois which is
subject to the reporting requirements of Section 312 of the Emergency Planning
and Community Right to Know Act of 1986 (42 U.S.C. Section 11022) and the
federal regulations promulgated thereunder, as "facility" is defined in RPTA, or
(b) such environmental disclosure documents, in form and substance satisfactory
to CoBank, as may be required under the RPTA or other applicable Illinois law,
and such disclosure documents shall have been recorded with the Recorder of
Deeds in the county where Borrower's Real Property in Illinois is located and
filed with the Illinois Environmental Protection Agency.
COPIES OF AGREEMENTS; SWINE AGREEMENT CONSENT. CoBank shall have
received: (a) copies of the Principal Agreements and, upon CoBank's request,
any of the Material Agreements other than the Principal Agreements, and (b) an
original Swine Agreement Consent.
NO MATERIAL CHANGE. No change shall have occurred in the condition or
operations of Borrower since August 31, 1997 which reasonably would be expected
to result in a Material Adverse Effect.
FEES AND EXPENSES. Borrower shall have paid CoBank, by wire transfer
of immediately available federal funds all fees set forth in Section 4.12 of
this Agreement which are due on the Closing Date and all expenses owing pursuant
to Section 9.9 hereof.
APPOINTMENT OF THE CORPORATION COMPANY. CoBank shall have received
evidence satisfactory to it that The Corporation Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ has accepted Borrower's appointment to serve as its agent for
service of process in Colorado in accordance with Section 9.10 of this
Agreement.
FURTHER ASSURANCES. Borrower shall have provided and/or executed and
delivered to CoBank such further assignments, documents or financing statements,
in form and substance satisfactory to CoBank, that Borrower is to execute and
deliver pursuant to the terms of the Loan Documents or as CoBank may reasonably
request.
CONDITIONS TO ALL ADVANCES. CoBank's obligation to make Advances
hereunder, is subject to satisfaction, in CoBank's sole discretion, of (a) the
conditions set forth in Section 8.23 hereof, and (b) each of the following
conditions precedent as of the Advance Date:
REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Borrower contained in each of the Loan Documents, shall be true and correct in
all material respects on and as of the Advance Date as though made on and as of
such date.
NO EVENT OF DEFAULT. No Event of Default or Potential Default shall
have occurred and be continuing, and no Event of Default or Potential Default
would result from the making of the Advance.
NO MATERIAL ADVERSE CHANGE. No material adverse change shall have
occurred in the condition or operations of Borrower since the immediately
preceding Advance Date (or, in the case of the first Advance hereunder, since
the Closing Date).
FEES AND EXPENSES. Borrower shall have paid CoBank, by wire transfer
of immediately available federal funds all amounts owing pursuant to Section 9.9
hereof.
FURTHER ASSURANCES. Borrower shall have provided and/or executed and
delivered to CoBank such further assignments, documents or financing statements,
in form and substance satisfactory to CoBank, that Borrower is to execute and
deliver pursuant to the terms of the Loan Documents or as CoBank may reasonably
request.
CONDITIONS TO ACTIVATION OF CONSTRUCTION LOAN PORTION FOR A NEW UNI. Upon
satisfaction, in CoBank's sole discretion, of (a) the conditions set forth in
Sections 8.23 and 8.24 hereof and (b) each of the following conditions
precedent, CoBank will issue an Activation Notice to Borrower for the activation
of the Construction Loan Portion for construction of, and the purchase of
Breeding Stock for, a new Feeder Pig Unit or a new Weaned Pig Unit:
ACTIVATION REQUEST. Borrower shall have delivered to CoBank a
properly completed Activation Request.
DEPOSIT OF NEW EQUITY TRANCHE WITH COBANK. Borrower shall have
deposited into an interest-bearing investment account at CoBank new equity funds
constituting a Feeder Pig Unit Equity Tranche or a Weaned Pig Unit Equity
Tranche, as applicable. Each Feeder Pig Unit Equity Tranche and each Weaned Pig
Unit Equity Tranche shall be deposited into a separate investment account at
CoBank (each such CoBank investment account holding a Feeder Pig Unit Equity
Tranche or Weaned Pig Unit Equity Tranche shall be referred to herein as a
"CONSTRUCTION ACCOUNT"). All funds deposited into a Construction Account shall
be invested and reinvested in one or more of the investment options customarily
provided by CoBank to its patrons, which investment and reinvestment shall be
made pursuant to the instructions of Borrower. Notwithstanding the foregoing
sentence, where an Equity Loan constitutes the Feeder Pig Unit Equity Tranche or
a Weaned Pig Unit Equity Tranche, as applicable, Borrower need not deposit the
entire Equity Loan in the Construction Account for the applicable new Unit prior
to activation of the Construction Loan Portion for such new Unit. Rather,
Borrower shall provide CoBank with a copy of all executed documents meeting the
requirements of Subsection 4.1.2(c), (e) and (f) hereof prior to the issuance of
an Activation Notice with respect to the Construction Loan Portion for such new
Unit. Thereafter, if an Activation Notice is issued with respect to the
Construction Loan Portion for such new Unit, until such time as the Equity Loan
for such Unit has been fully advanced, at the time of Borrower's submission of
each Construction Loan Advance Request for such new Unit, sufficient Equity Loan
proceeds must be deposited in the Construction Account for such new Unit to
cover all monies for which Borrower requests disbursement pursuant to such
Construction Loan Advance Request.
AVAILABILITY OF AMOUNTS TO BE RESERVED AGAINST THE TERM LOAN AND
REVOLVING LOAN. The amounts to be reserved against the Term Loan and the
Revolving Loan, pursuant to Section 4.2 or 4.3, as applicable, for the new Unit
with respect to which activation of the Construction Loan Portion is requested,
must be available under the Term Loan and the Revolving Loan, respectively.
SURVEY. Borrower shall have provided CoBank with an ALTA improvement
survey of the real property owned by Borrower on which is to be constructed the
new Unit for which activation of the Construction Loan Portion is requested
("CONSTRUCTION PREMISES"), as well as a survey showing the location of each
Spreading Easement acquired by Borrower in order to dispose of the effluent from
the new Unit with respect to which an Activation Notice is requested (unless
such effluent is to be properly disposed of by Borrower on Borrower's Real
Property), each of which must be acceptable to CoBank and the Title Insurer
issuing the Title Policy for the Construction Premises and such Spreading
Easements and must show the legal description of each real property interest as
it will be insured by the Title Insurer. The survey must be certified as
accurate by a licensed surveyor in the state where the Construction Premises and
such Spreading Easements are located and contain a certificate imprinted thereon
in the form approved by the American Land Title Association stating that the
survey is made for the benefit of CoBank, Borrower and the Title Insurer. The
survey must show that the Construction Premises are not located in a flood
plain.
WATER RIGHTS. CoBank shall have received a survey acceptable to
CoBank indicating the location of all water ▇▇▇▇▇, the rights to which were
acquired by Borrower since the Closing Date, in order to provide water to the
new Unit with respect to which an Activation Notice is requested and further
indicating all pipelines by which the water from such ▇▇▇▇▇ is carried to the
Construction Premises, and indicating any Water Supply Easements.
ENVIRONMENTAL STUDIES. Borrower shall have submitted to CoBank such
studies, investigations and reports with respect to environmental matters for
the Construction Premises from consultants reasonably acceptable to CoBank as
may be reasonably requested by CoBank and the content and results of those
studies, investigations and reports shall be reasonably acceptable to CoBank.
LIEN ON CONSTRUCTION PREMISES; TITLE INSURANCE. Borrower shall have
(a) by execution of a deed of trust or mortgage, in form and substance as
reasonably specified by CoBank, granted to CoBank a first lien on the
Construction Premises (subject only to Permitted Encumbrances), and such
mortgage or deed of trust shall have been recorded in the proper place in order
to perfect CoBank's lien on the Construction Premises, and (b) provided to
CoBank a Title Policy from a Title Insurer reasonably acceptable to CoBank (i)
insuring the lien in favor of CoBank on the Construction Premises as a first
priority lien on such real property, subject only to Permitted Encumbrances,
(ii) deleting the standard printed exceptions and the gap exception, (iii)
containing only such exceptions to title as are reasonably acceptable to CoBank,
and (iv) containing such other endorsements as CoBank may reasonably require.
SPREADING EASEMENTS; WATER SUPPLY EASEMENTS; TITLE INSURANCE.
Borrower shall have (a) provided CoBank with evidence satisfactory to CoBank
that Borrower has obtained (i) all Spreading Easements sufficient to dispose of
the anticipated effluent from the operation of the new Unit with respect to
which an Activation Notice is requested (unless such effluent is to be properly
disposed of by Borrower on Borrower's Real Property) and (ii) all Water Supply
Easements sufficient to access and maintain all ▇▇▇▇▇ and pipelines from which
water is needed in order to operate the new Unit with respect to which an
Activation Notice is requested, (b) by execution of one or more deeds of trust
or mortgages in form and substance as reasonably specified by CoBank, granted to
CoBank a first lien on such Spreading Easements and Water Supply Easements
(subject only to Permitted Encumbrances), and such mortgages or deeds of trust
shall have been recorded in the proper place in order to perfect CoBank's lien
on such Spreading Easements and Water Supply Easements, and (c) provided to
CoBank a Title Policy from a Title Insurer acceptable to CoBank (i) insuring the
lien in favor of CoBank on such Spreading Easements and Water Supply Easements
as a first priority lien on such easement interests, subject only to Permitted
Encumbrances, (ii) deleting the standard printed exceptions and the gap
exception, (iii) containing only such exceptions to title as are reasonably
acceptable to CoBank, and (iv) containing such other endorsements as CoBank may
reasonably require.
CONSTRUCTION BUDGET. Borrower shall have provided to CoBank, and
CoBank shall have approved (which approval shall not be unreasonably withheld),
a construction budget ("CONSTRUCTION BUDGET") which specifies the cost of
construction of the new Unit on the Construction Premises in accordance with the
Plans and Specifications, as well as in accordance with the Construction
Contract and the Architect's Contract, if any, and the cost of purchasing the
Breeding Stock for such new Unit and maintaining such Breeding Stock until
construction of the new Unit has been completed, and all soft costs related to
the construction and financing of the new Feeder Pig Unit or Weaned Pig Unit, as
applicable.
CONSTRUCTION SCHEDULE; PLANS AND SPECIFICATIONS; OTHER REPORT.
Borrower shall have provided to CoBank, and CoBank shall have approved (which
approval shall not be unreasonably withheld), (a) a written construction
schedule setting forth the timeline for completion of each phase of construction
of the new Unit ("CONSTRUCTION SCHEDULE"), (b) a copy of the Plans and
Specifications for the new Unit, and (c) a true, correct and complete copy of
all engineering reports, land planning maps, soil tests, and other documents
prepared in connection with the construction of the new Unit.
APPRAISAL. With respect to the first new Feeder Pig Unit the
construction of which will be financed with Advances of the Loan Proceeds,
Borrower shall have provided to CoBank, and CoBank shall have approved (which
approval shall not be unreasonably withheld), an appraisal for such Feeder Pig
Unit prepared by an appraiser reasonably satisfactory to CoBank which appraisal
shall determine the market value of the Construction Premises both in its
current as-is condition and in its condition assuming completion of the new
Feeder Pig Unit in accordance with the Plans and Specifications for such Feeder
Pig Unit ("APPRAISAL").
CONSTRUCTION CONTRACT; ARCHITECT'S CONTRACT. Borrower shall have
provided to CoBank a true and complete copy of, and CoBank shall have approved
(a) the contract between Borrower and the General Contractor for the
construction of the new Unit with respect to which activation of the
Construction Loan Portion for such Unit is requested in accordance with the
Plans and Specifications for such Unit ("CONSTRUCTION CONTRACT"), and (b) the
contract, if any, between Borrower and the Architect, if any, for the provision
of architectural services in connection with the construction of the new Unit
with respect to which activation of the Construction Loan Portion for such Unit
is requested ("ARCHITECT'S CONTRACT").
CONSENTS TO ASSIGNMENT OF CONSTRUCTION CONTRACT AND ARCHITECT'S
CONTRACTS. Borrower shall have provided to CoBank with respect to the new Unit
for which activation of the Construction Loan Portion for such Unit is
requested, an original executed consent of the General Contractor and of the
Architect, if any, in form and substance satisfactory to CoBank, pursuant to
which the General Contractor and the Architect, if any, consent to the
collateral assignment by Borrower to CoBank of the Construction Contract and
Architect's Contract (if any), respectively, and agree to perform their
respective obligations under the Construction Contract and the Architect's
Contract for CoBank upon CoBank's request.
AFFIDAVIT REGARDING COMMENCEMENT OF CONSTRUCTION. With respect to all
Construction Premises located in the State of Colorado, Borrower shall have
provided to CoBank an affidavit of Borrower and General Contractor certifying
that no work with respect to the new Unit for which activation of the
Construction Loan Portion for such Unit is requested was commenced prior to the
date of the recording of the Deed of Trust in Colorado for such Construction
Premises ("COBANK PRIORITY DATE") and, further, certifying that no materials
were supplied, and no services were rendered, with respect to the Construction
Premises prior to such CoBank Priority Date.
PERMITS. Borrower shall have provided to CoBank evidence reasonably
satisfactory to CoBank that Borrower has obtained all building permits, zoning,
subdivision and environmental approvals and all commercial well permits and
water rights decrees, and any and all other permits, licenses, approvals,
authorizations and consents from any governmental entity or third party
("PERMITS") that must be obtained in order to construct the new Feeder Pig Unit
or Weaned Pig Unit, as applicable, to operate such Feeder Pig Unit or Weaned Pig
Unit for its intended purpose and for Borrower to perform its obligations under
the Loan Documents, including without limitation, all approvals necessary for
the use of all water rights owned by Borrower in the operation of such Unit.
UTILITIES. Borrower shall have provided to CoBank evidence reasonably
satisfactory to CoBank of the availability to the Unit to be constructed of all
utility services and facilities necessary for the construction of such Unit and
the operation thereof for its intended purpose, including without limitation,
water supply, storm and sewer facilities, gas and/or electric and telephone
facilities, and that Borrower's water well permits or other water rights are
sufficient to provide water of such quality and quantity necessary for the
operation of the new Unit for its intended purpose.
ROADS. Borrower shall have provided to CoBank evidence reasonably
satisfactory to CoBank of the existence and completion of all roads, accessible
by Borrower, that are necessary for the utilization of the new Unit for its
intended purposes and for access to a satisfactory public road or street.
ILLINOIS RESPONSIBLE PROPERTY TRANSFER ACT. With respect to all new
Units to be constructed in Illinois pursuant to this Agreement, Borrower shall
have provided CoBank with those certificates and, if necessary, those
environmental disclosure documents described in Subsection 8.23.14 of this
Agreement.
COPIES OF PIG PURCHASE AGREEMENTS. CoBank shall have received copies
of the Feeder Pig Purchase Agreements, Weaned Pig Purchase Agreements, Excess
Feeder Pig Purchase Agreements, or Excess Class C Weaned Pig Purchase
Agreements, as applicable, resulting from the sale of equity, or receipt of an
Equity Loan, constituting a Feeder Pig Unit Equity Tranche or a Weaned Pig Unit
Equity Tranche, as applicable.
FEES AND EXPENSES. Borrower shall have paid CoBank, by wire transfer
of immediately available federal funds the Activation Fee set forth in
Subsection 4.12.3 of this Agreement and all expenses owing pursuant to Section
9.9 hereof.
LOCAL LAW ITEMS. With respect to a new Unit to be constructed in a
State other than Colorado or Illinois, Borrower shall have satisfied such other
conditions precedent as CoBank may reasonably establish in light of the laws and
regulations of such State, and any agency or political subdivision thereof,
applicable to the construction of such Unit.
CONDITIONS TO ALL ADVANCES OF THE CONSTRUCTION LOAN PORTION FOR A NEW UNIT.
CoBank's obligation to make any Advance with respect to the Construction Loan
Portion applicable to any new Feeder Pig Unit or Weaned Pig Unit, is subject to
satisfaction, in CoBank's sole discretion, of: (a) the conditions set forth in
Sections 8.23 through 8.25 hereof, (b) the conditions and limitations set forth
in Sections 8.31 and 8.32, and (c) each of the following conditions precedent,
as of the Advance Date:
ACTIVATION NOTICE. CoBank shall have issued an Activation Notice with
respect to the Construction Loan Portion for which an Advance hereunder is
requested.
CONSTRUCTION LOAN ADVANCE REQUEST. Borrower shall have delivered to
CoBank a properly completed request for an Advance under the Construction Loan
Portion applicable to the particular new Unit on the form attached hereto as
Exhibit 8.26.2 ("CONSTRUCTION LOAN ADVANCE REQUEST") which has been signed by an
Authorized Officer. Each Construction Loan Advance Request shall be deemed to
have been received on the Business Day actually received by CoBank if delivered
before 2:00 p.m., Central Time, and as of the next Business Day if delivered
after such time or on other than a Business Day; provided that a Construction
Loan Advance Request shall not be deemed to have been received by CoBank until
it includes all information and documentation required to complete the form
attached hereto as Exhibit 8.26.2. Each Construction Loan Advance Request shall
state the Advance Date for the requested amount of the Construction Loan
Portion, which date shall not be after the Construction Deadline Date. CoBank
shall review the Construction Loan Advance Request and all information provided
by Borrower in conjunction with the Construction Loan Advance Request and, if
the Construction Loan Advance Request is not approved, CoBank shall advise
Borrower of its reasons for denying the Construction Loan Advance Request within
three (3) Business Days of CoBank's receipt of the Construction Loan Advance
Request. If CoBank approves the Construction Loan Advance Request, it shall
fund the requested Advance under the Construction Loan on the later of (a) the
third Business Day after CoBank's receipt of the Construction Loan Advance
Request or (b) the Advance Date requested by Borrower. Each Construction Loan
Advance Request received by CoBank shall be irrevocable.
COMMENCEMENT OF CONSTRUCTION. The Advance Date requested in a
Construction Loan Advance Request with respect to the initial Advance of each
Construction Loan Portion applicable to any new Unit must be a date which is at
least sixteen (16) months prior to the Construction Loan Expiration Date.
ADDITIONAL ITEMS. The following conditions precedent shall have been
satisfied; except that, upon provision to CoBank of assurance satisfactory to
CoBank in its sole discretion that (a) the new Unit will be built in accordance
with the Plans and Specifications, Construction Budget and Construction Schedule
for such Unit, and (b) CoBank will be adequately protected against all risk of
mechanics' or other liens for labor or services during construction of such Unit
(which assurance may include, without limitation, a payment and performance bond
that is satisfactory to CoBank), CoBank in its sole discretion may agree to
waive or modify one or more of the following conditions precedent:
CoBank shall have received from Borrower all fees then due under
Section 4.12 of this Agreement;
With respect to all new Units to be constructed in Colorado pursuant
to this Agreement, CoBank shall have filed the disburser's notice required under
C.R.S. ▇▇-▇▇-▇▇▇;
Borrower shall have provided to CoBank a date down endorsement to the
Title Policy for the Construction Premises, in form and substance satisfactory
to CoBank, which (i) updates such Title Policy to the date of the Advance and
shows that there has been no change in the state of the title on the
Construction Premises from that shown on the original Title Policy for the
Construction Premises, except such changes as have been approved in writing by
CoBank, and (ii) insures the priority of CoBank's lien on the Construction
Premises against claims for services or materials performed or supplied prior to
the date thereof;
Concurrently with Borrower's submission of the Construction Loan
Advance Request required pursuant to Subsection 8.26.2 hereof, Borrower shall
have submitted to CoBank the following:
(i) an itemization for the amount of the requested Advance supported
by copies of all bills, invoices and receipts which shall be attached
to such itemization, including identification of the parties
furnishing such work and materials and further including, where the
Construction Loan Advance Request is to fund payment of the
acquisition of the Construction Premises, a copy of the land purchase
agreement between Borrower and the seller of the Construction
Premises;
(ii) a written certificate of the Architect or, if there is no
Architect, the General Contractor to the effect that: (1) construction
of the new Feeder Pig Unit or Weaned Pig Unit, as applicable, can be
completed by the Construction Deadline Date, (2) construction of the
new Feeder Pig Unit or Weaned Pig Unit, as applicable, is proceeding
in accordance with the Plans and Specifications and the Construction
Schedule for such Unit, and (3) the undisbursed balance of the
Construction Loan Portion for such Unit is estimated to be sufficient,
on the basis of all facts and circumstances known to Borrower at that
time, to pay for the completion of such Unit on or before the
Construction Deadline Date; and
(iii) a written certificate of Borrower: (1) breaking down the costs
(for which reimbursement is requested pursuant to the Construction
Loan Advance Request) incurred in the construction of the new Feeder
Pig Unit or Weaned Pig Unit, as applicable, for the preceding month by
Construction Budget line items, (2) containing a summary of the costs
of construction of the new Feeder Pig Unit or Weaned Pig Unit, as
applicable, incurred through the date of the Construction Loan Advance
Request by Construction Budget line items, (3) estimating costs to
complete the new Feeder Pig Unit or Weaned Pig Unit, as applicable, as
well as explanations of assumptions used in formulating such
estimates, (4) stating that the new Feeder Pig Unit or Weaned Pig
Unit, as applicable, can be completed by the Construction Deadline
Date, and (5) containing a representation that the undisbursed balance
of the Construction Loan Portion is estimated to be sufficient on the
basis of all facts and circumstances known to Borrower at that time,
to pay for the completion of the new Feeder Pig Unit or Weaned Pig
Unit, as applicable;
(iv) duly executed lien waivers from the Architect, if any, the
General Contractor, and each subcontractor who has furnished labor
and/or material in the construction of the new Feeder Pig Unit or
Weaned Pig Unit, as applicable, for all amounts owing on account of
work performed and materials supplied to the Construction Premises
through the period for which payment on account of such work/materials
is applied for pursuant to the Construction Loan Advance Request;
(v) such documentation as the Title Insurer may require in order to
issue the interim mechanic's lien endorsement to the Title Policy for
the Construction Premises referred to in subparagraph (c) of this
Subsection 8.26.4; and
(vi) such other information or documentation as CoBank may request,
but
(vii) notwithstanding the foregoing, to the extent that the
Construction Loan Advance Request is for an Advance solely to fund the
purchase of Breeding Stock, only the items set forth in (d)(i) of this
Subsection 8.26.4 shall be required.
If CoBank has so requested, Borrower shall have submitted to CoBank
the lists referred to in Section 8.56 of this Agreement.
CoBank shall have received a written progress report from the General
Contractor for the new Unit as to which an Advance is requested, which report
shall include, without limitation, the following:
(i) an overall assessment of construction progress on the new Unit
for the period since the last Advance under the Construction Loan and
job-to-date;
(ii) a detailed description of problems encountered or anticipated,
and proposed solutions;
(iii) an analysis of progress as compared to the Construction
Schedule, noting any actual or anticipated problems in meeting
critical dates in the Construction Schedule;
(iv) the status of delivery of major equipment and the effect, if
any, that the anticipated delivery dates of such equipment has on the
overall Construction Schedule; and
(v) a statement from the General Contractor certifying that, to the
best of its knowledge, there are no defaults under the Construction
Contract.
FOUNDATION ENDORSEMENT. Prior to each disbursement, to the extent
such disbursement relates to the completion of a foundation, Borrower shall have
provided to CoBank a current foundation endorsement to the Title Policy on the
Construction Premises, in form and substance satisfactory to CoBank, at the sole
cost and expense of Borrower.
LOCAL LAW ITEMS. With respect to a new Feeder Pig Unit or Weaned Pig
Unit, as applicable, to be constructed in a State other than Colorado or
Illinois, Borrower shall have provided such other agreements, certificates or
documents and taken such other action as CoBank may reasonably request in light
of the laws and regulations of such State, and any agency or political
subdivision thereof, applicable to the construction of such Unit.
CONDITIONS TO FINAL ADVANCE OF THE CONSTRUCTION LOAN PORTION FOR A NEW
UNIT. CoBank's obligation to make the final Advance of the Construction Loan
Portion applicable to any new Feeder Pig Unit or Weaned Pig Unit, is subject to
satisfaction, in CoBank's sole discretion, of: (a) the conditions set forth in
Sections 8.23 through 8.24 hereof, and (b) each of the following conditions
precedent, as of the Advance Date:
AS-BUILT SURVEY. CoBank shall have received a final as-built survey
of the Construction Premises satisfactory to CoBank: (a) showing (i) the
location of the completed new Feeder Pig Unit or Weaned Pig Unit, as applicable,
and (ii) no encroachment by the new Feeder Pig Unit or Weaned Pig Unit, as
applicable, on any boundary line, easement, building setback line or other
restricted area, and (b) containing a certification of the surveyor in form and
substance satisfactory to CoBank.
GOVERNMENTAL APPROVALS. Borrower shall have provided to CoBank
evidence satisfactory to CoBank that Borrower has received such permanent
permits of occupancy for the new Unit as may be required by any applicable
public authority.
COMPLETION CERTIFICATE. Borrower shall have provided to CoBank a
certificate of completion signed by the Architect, if any, and the General
Contractor attesting to the completion of the new Unit in accordance with the
Plans and Specifications for such Unit.
FINAL LIEN WAIVERS. Borrower shall have provided to CoBank final lien
waivers and releases from the General Contractor for the new Unit, and all
subcontractors and other parties who have supplied labor, materials or services
in connection with the construction of such Unit.
FINAL TITLE INSURANCE DATE-DOWN ENDORSEMENT. Borrower shall have
provided to CoBank (a) a final title insurance date-down endorsement to the
Title Policy for the Construction Premises, effective as of the date of the
final Advance of such Construction Loan Portion (i) showing no change in the
status of the title to, or encumbrances on, the Construction Premises since the
effective date of the Title Policy for the Construction Premises, and (ii)
acknowledging completion of the new Unit without any encroachment or other
survey exception and deleting all standard survey exceptions and mechanics' lien
exceptions, and (b) such other endorsements as CoBank may require based on the
condition of the Unit "as built."
LOCAL LAW ITEMS. With respect to a new Feeder Pig Unit or Weaned Pig
Unit, as applicable, to be constructed in a State other than Colorado or
Illinois, Borrower shall have provided such other agreements, certificates or
documents and taken such other action as CoBank may reasonably request in light
of the laws and regulations of such State, and any agency or political
subdivision thereof, applicable to the construction of such Unit.
CONDITIONS TO ACTIVATION OF CONSTRUCTION LOAN PORTION FOR A UNIT UNDER
CONSTRUCTION. Upon satisfaction, in CoBank's sole discretion, of (a) the
conditions set forth in Sections 8.23 and 8.24 hereof and (b) each of the
following conditions precedent, CoBank will issue an Activation Notice to
Borrower for the activation of the Construction Loan Portion for construction
of, and the purchase of Breeding Stock for, a Unit Under Construction:
ACTIVATION REQUEST. Borrower shall have delivered to CoBank a
properly completed Activation Request.
DEPOSIT OF EQUITY TRANCHE WITH COBANK. Borrower shall have previously
provided to CoBank evidence of the receipt of equity funds constituting a Feeder
Pig Unit Equity Tranche or a Weaned Pig Unit Equity Tranche, as applicable (the
deposit of such equity funds into the Construction Account pursuant to
Subsection 8.25.2 shall be sufficient evidence for purposes of this Subsection
8.28.2).
AVAILABILITY OF AMOUNTS TO BE RESERVED AGAINST THE TERM LOAN AND
REVOLVING LOAN. If activation of the Construction Loan Portion is requested
with respect to a Feeder Pig Unit, there shall be funds available under (a) the
Term Loan equal to the Feeder Term Portion less the amount of all advances made
under the Existing Term Loan with respect to the Unit Under Construction for
which activation of the Construction Loan Portion is requested, and (b) the
Revolving Loan equal to the Feeder Revolving Portion less the amount of all
advances made under the Existing Revolving Loan with respect to the Unit Under
Construction for which activation of the Construction Loan Portion is requested.
If activation of the Construction Loan Portion is requested with respect to a
Weaned Pig Unit, there shall be funds available under (a) the Term Loan equal to
the Weaned Term Portion less the amount of all advances made under the Existing
Term Loan with respect to the Unit Under Construction for which activation of
the Construction Loan Portion is requested, and (b) the Revolving Loan equal to
the Weaned Revolving Portion less the amount of all advances made under the
Existing Revolving Loan with respect to the Unit Under Construction for which
activation of the Construction Loan Portion is requested.
SURVEY. Borrower shall have provided CoBank with an ALTA improvement
survey of the Unit Under Construction Premises for which activation of the
Construction Loan Portion is requested.
ENVIRONMENTAL STUDIES. Borrower shall have submitted to CoBank all
studies, investigations and reports obtained by Borrower with respect to
environmental matters for the Unit Under Construction Premises.
CONSTRUCTION BUDGET. Borrower shall have provided to CoBank the
Construction Budget for the Unit Under Construction specifying the cost by line
item of all labor, materials, and services necessary for the construction of the
Unit Under Construction on the Unit Under Construction Premises in accordance
with the Plans and Specifications, as well as in accordance with the
Construction Contract and the Architect's Contract, if any, and the cost of
purchasing the Breeding Stock for such Unit Under Construction and maintaining
such Breeding Stock until construction of the Unit Under Construction has been
completed, and all soft costs related to the construction and financing of the
Unit Under Construction.
CONSTRUCTION SCHEDULE; PLANS AND SPECIFICATIONS; OTHER REPORTS.
Borrower shall have provided to CoBank, (a) the Construction Schedule for the
Unit Under Construction setting forth the timeline for completion of each phase
of construction of the Unit Under Construction, (b) a copy of the Plans and
Specifications for the Unit Under Construction, and (c) a true, correct and
complete copy of all engineering reports, land planning maps, soil tests, and
other documents prepared in connection with the construction of the Unit Under
Construction.
CONSTRUCTION CONTRACT; ARCHITECT'S CONTRACT. Borrower shall have
provided to CoBank a true and complete copy (including all amendments) of (a)
the Construction Contract for the Unit Under Construction, and (b) the
Architect's Contract, if any, for the Unit Under Construction.
PERMITS. Borrower shall have provided to CoBank evidence satisfactory
to CoBank that Borrower has obtained all Permits that must be obtained in order
to construct the Unit Under Construction, operate the Unit Under Construction
for its intended purpose and for Borrower to perform its obligations under the
Loan Documents, including without limitation, all approvals necessary for the
use of all water rights owned by Borrower in the operation of such Unit Under
Construction.
UTILITIES. Borrower shall have provided to CoBank evidence
satisfactory to CoBank of the availability to the Unit Under Construction of all
utility services and facilities necessary for the construction of such Unit
Under Construction and the operation thereof for its intended purpose, including
without limitation, water supply, storm and sewer facilities, gas and/or
electric and telephone facilities, and that Borrower's water well permits or
other water rights are sufficient to provide water of such quality and quantity
necessary for the operation of the Unit Under Construction.
ROADS. Borrower shall have provided to CoBank evidence satisfactory
to CoBank of the existence and completion of all roads, accessible by Borrower,
that are necessary for the full utilization of the Unit Under Construction for
its intended purposes and for access to a satisfactory public road or street.
FEES AND EXPENSES. Borrower shall have paid CoBank, by wire transfer
of immediately available federal funds the Activation Fee set forth in
Subsection 4.12.3 of this Agreement and all expenses owing pursuant to Section
9.9 hereof.
CONDITIONS TO ALL ADVANCES OF THE CONSTRUCTION LOAN PORTION FOR A UNIT
UNDER CONSTRUCTION. CoBank's obligation to make any Advance with respect to the
Construction Loan Portion applicable to any Unit Under Construction is subject
to satisfaction, in CoBank's sole discretion, of: (a) the conditions set forth
in Sections 8.23 and 8.24 hereof, (b) the conditions and limitations set forth
in Sections 8.31 and 8.32, and (c) each of the following conditions precedent as
of the Advance Date:
ACTIVATION NOTICE. CoBank shall have issued an Activation Notice with
respect to the Construction Loan Portion for which an Advance hereunder is
requested.
CONSTRUCTION LOAN ADVANCE REQUEST. Borrower shall have delivered to
CoBank a properly completed Construction Loan Advance Request which meets the
requirements set forth in Subsection 8.26.2 of this Agreement, and the other
terms and provisions of Subsection 8.26.2 shall apply to all Units Under
Construction as though each such provision referred to a Unit Under Construction
rather than a new Unit, except that with respect to the first Advance of the
Construction Loan Portion for a Unit Under Construction made after Borrower's
receipt of an Activation Notice therefor, the amount of such Advance shall be at
least equal to the amount of all advances made under the Existing Term Loan and
Existing Revolving Loan prior to the Closing Date with respect to such Unit
Under Construction (collectively "EXISTING ADVANCE AMOUNT") and shall be used to
reduce the Existing Balance by the Existing Advance Amount by means of credit to
the account of CoBank in accordance with Section 4.5 of this Agreement.
COMMENCEMENT OF CONSTRUCTION. The Advance Date requested in a
Construction Loan Advance Request with respect to the initial Advance of the
Construction Loan Portion applicable to any Unit Under Construction must be a
date which is at least sixteen (16) months prior to the Construction Loan
Expiration Date.
ADDITIONAL ITEMS. The following conditions precedent shall have been
satisfied:
CoBank shall have received from Borrower all fees then due under
Section 4.12 of this Agreement;
With respect to all Units Under Construction located in Colorado,
CoBank shall have filed the disburser's notice required under C.R.S. ▇▇-▇▇-▇▇▇;
Concurrently with Borrower's submission of the Construction Loan
Advance Request required pursuant to Subsection 8.29.2 hereof, Borrower shall
have submitted to CoBank the following:
(i) an itemization for the amount of the requested Advance supported
by copies of all bills, invoices and receipts which shall be attached
to such itemization, including identification of the parties
furnishing such work and materials and further including, where the
Construction Loan Advance Request is to fund payment of the
acquisition of the Unit Under Construction Premises, a copy of the
land purchase agreement between Borrower and the seller of the Unit
Under Construction Premises;
(ii) a written certificate of the Architect or, if there is no
Architect, the General Contractor to the effect that: (1) construction
of the Unit Under Construction can be completed by the Construction
Deadline Date, (2) construction of the Unit Under Construction is
proceeding in accordance with the Plans and Specifications and the
Construction Schedule for such Unit Under Construction, and (3) the
undisbursed balance of the Construction Loan Portion for such Unit
Under Construction is sufficient to pay for the completion of such
Unit Under Construction on or before the Construction Deadline Date;
and
(iii) a written certificate of Borrower: (1) breaking down the costs
(for which reimbursement is requested pursuant to the Construction
Loan Advance Request) incurred in the construction of the Unit Under
Construction for the preceding month by Construction Budget line
items, (2) containing a summary of the costs of construction of the
Unit Under Construction incurred through the date of the Construction
Loan Advance Request by Construction Budget line items, (3) estimating
costs to complete the Unit Under Construction as well as explanations
of assumptions used in formulating such estimates, (4) stating that
the Unit Under Construction can be completed by the Construction
Deadline Date, and (5) containing a representation that the
undisbursed balance of the Construction Loan Portion is estimated to
be sufficient, on the basis of all facts and circumstances known to
Borrower at that time, to pay for the completion of the Unit Under
Construction;
(iv) duly executed lien waivers from the Architect, if any, the
General Contractor, and each subcontractor who has furnished labor
and/or material in the construction of the Unit Under Construction for
all amounts owing on account of work performed and materials supplied
to the Unit Under Construction Premises for the period for which
payment on account of such work/materials is applied for pursuant to
the Construction Loan Advance Request; and
(v) such other information or documentation as CoBank may request,
but
(vii) notwithstanding the foregoing, to the extent that the
Construction Loan Advance Request is for an Advance solely to fund the
purchase of Breeding Stock, only the items set forth in (d)(i) of this
Subsection 8.29.4 shall be required.
If CoBank has so requested, Borrower shall have submitted to CoBank
the lists referred to in Section 8.56 of this Agreement.
CoBank shall have received a written progress report from the General
Contractor for the Unit Under Construction as to which an Advance is requested,
which report shall include, without limitation, the following:
(i) an overall assessment of construction progress on the Unit Under
Construction for the period since the last Advance under the
Construction Loan and job-to-date;
(ii) a detailed description of problems encountered or anticipated,
and proposed solutions;
(iii) an analysis of progress as compared to the Construction
Schedule, noting any actual or anticipated problems in meeting
critical dates in the Construction Schedule;
(iv) the status of delivery of major equipment and the effect, if
any, that the anticipated delivery dates of such equipment has on the
overall Construction Schedule; and
(v) a statement from the General Contractor certifying that, to the
best of its knowledge, there are no defaults under the Construction
Contract.
FOUNDATION ENDORSEMENT. Prior to each disbursement, to the extent
such disbursement relates to the completion of a foundation, Borrower shall have
provided to CoBank a current foundation endorsement to the Title Policy on the
Unit Under Construction Premises, in form and substance satisfactory to CoBank,
at the sole cost and expense of Borrower.
CONDITIONS TO FINAL ADVANCE OF THE CONSTRUCTION LOAN PORTION FOR A UNIT
UNDER CONSTRUCTION CoBank's obligation to make the final Advance of the
Construction Loan Portion applicable to any Unit Under Construction ("FINAL UNIT
UNDER CONSTRUCTION ADVANCE"), is subject to satisfaction, in CoBank's sole
discretion, of: (a) the conditions set forth in Sections 8.23, 8.24, 8.28 and
8.29 hereof, and (b) each of the following conditions precedent, as of the
Advance Date:
AS-BUILT SURVEY. CoBank shall have received a final as-built survey
of the Unit Under Construction Premises satisfactory to CoBank: (a) showing (i)
the location of the completed Unit Under Construction, and (ii) no encroachment
by the Unit Under Construction on any boundary line, easement, building setback
line or other restricted area, and (b) containing a certification of the
surveyor in form and substance satisfactory to CoBank.
GOVERNMENTAL APPROVALS. Borrower shall have provided to CoBank
evidence satisfactory to CoBank that Borrower has received such permanent
permits of occupancy for the Unit Under Construction as may be required by any
applicable public authority.
COMPLETION CERTIFICATE. Borrower shall have provided to CoBank a
certificate of completion signed by the Architect, if any, and the General
Contractor attesting to the completion of the Unit Under Construction in
accordance with the Plans and Specifications for such Unit Under Construction. .
FINAL LIEN WAIVERS. Borrower shall have provided to CoBank final lien
waivers and releases from the General Contractor for the Unit Under
Construction, and all subcontractors and other parties who have supplied labor,
materials or services in connection with the construction of such Unit Under
Construction.
SPREADING EASEMENTS; WATER SUPPLY EASEMENTS; TITLE INSURANCE.
Borrower shall have (a) provided CoBank with evidence satisfactory to CoBank
that Borrower has obtained (i) all Spreading Easements sufficient to dispose of
the anticipated effluent from the operation of the Unit Under Construction with
respect to which the Final Unit Under Construction Advance is requested (unless
such effluent is to be properly disposed of by Borrower on Borrower's Real
Property) and (ii) all Water Supply Easements sufficient to access and maintain
all ▇▇▇▇▇ and pipelines from which water is needed in order to operate the Unit
Under Construction with respect to which the Final Unit Under Construction
Advance is requested, (b) by execution of one or more deeds of trust or
mortgages in form and substance as reasonably specified by CoBank, granted to
CoBank a first lien on such Spreading Easements and Water Supply Easements
(subject only to Permitted Encumbrances), and such mortgages or deeds of trust
shall have been recorded in the proper place in order to perfect CoBank's lien
on such Spreading Easements and Water Supply Easements, and (c) provided to
CoBank a Title Policy from a Title Insurer acceptable to CoBank (i) insuring the
lien in favor of CoBank on such Spreading Easements and Water Supply Easements
as a first priority lien on such easement interests, subject only to Permitted
Encumbrances, (ii) deleting the standard printed exceptions and the gap
exception, (iii) containing only such exceptions to title as are reasonably
acceptable to CoBank, and (iv) containing such other endorsements as CoBank may
reasonably require.
FINAL TITLE INSURANCE DATE-DOWN ENDORSEMENT. Borrower shall have
provided to CoBank (a) a final title insurance date-down endorsement to the
Title Policy for the Unit Under Construction Premises, effective as of the date
of the Final Unit Under Construction Advance (i) showing no change in the status
of the title to, or encumbrances on, the Unit Under Construction Premises since
the effective date of the Title Policy for the Unit Under Construction Premises,
(ii) deleting all standard exceptions including, without limitation, mechanics'
lien exceptions, if the Title Policy was issued with one or more of such
exceptions, and (b) such other endorsements as CoBank may require based on the
condition of the Unit Under Construction "as built."
ADDITIONAL CONDITIONS TO DISBURSEMENT OF CONSTRUCTION LOAN PORTION. At no
time and in no event shall CoBank be obligated to disburse the proceeds of the
Construction Loan for a particular new Unit or Unit Under Construction:
RECOMMENDATION OF COBANK'S INSPECTOR. For a particular Construction
Loan Advance Request, in excess of the amount recommended by CoBank's
architectural or engineering representative ("COBANK'S INSPECTOR"), who, at the
option of CoBank, will make periodic inspections of the Construction Premises
and Unit Under Construction Premises at Borrower's expense; provided, however,
that Borrower's liability for reimbursement of CoBank's costs and expenses
incurred in connection with inspections by CoBank's Inspector of each
Construction Premises or Unit Under Construction Premises shall be capped at
$7,500 per Construction Premises or Unit Under Construction Premises so long as
no Potential Default or Event of Default has occurred; or
CONSTRUCTION LOAN PORTION - AGGREGATE AMOUNT DISBURSED. For the
construction costs set forth in the Construction Budget for a new Unit or a Unit
Under Construction, in excess of an amount, which, when added to all prior
Advances under the Construction Loan for a particular new Unit or Unit Under
Construction plus all Reserved Disputed Amounts, if any, reserved pursuant to
Section 4.6, would exceed the Construction Loan Portion for such Unit or Unit
Under Construction; or
UNFUNDED DEFICIT. If in the sole opinion of CoBank, a Deficit exists
with respect to a new Unit or a Unit Under Construction and the amount of such
Deficit has not been deposited by Borrower in the Construction Account for such
Unit or Unit Under Construction in accordance with Subsection 8.32.5 of this
Agreement; or
NO NOTICE OF VIOLATION. If an order or notice by any governmental
agency having jurisdiction over the Constructions Premises or Unit Under
Construction Premises, as applicable, has been received by Borrower, CoBank,
CoBank's Inspector, the General Contractor or the Architect, if any, stating
that the work of construction on such Construction Premises or Unit Under
Construction Premises is or will be in violation of any law, ordinance, code or
regulation affecting the Construction Premises or Unit Under Construction
Premises, unless Borrower has taken sufficient action, satisfactory to CoBank in
its sole discretion, to correct such violation; or
NO NOTICE OF LIEN. If a lien or notice of intent to file a lien for
work or services performed in or on the Construction Premises or Unit Under
Construction Premises, as applicable, or materials or equipment delivered
thereto shall have been recorded in the real estate records of the county in
which the Construction Premises or Unit Under Construction Premises is located
or delivered to Borrower, the General Contractor or the Architect, if any, for
the Construction Premises or Unit Under Construction Premises, or to CoBank,
unless CoBank has received evidence satisfactory to it in its sole discretion,
that: (1) the validity thereof is being contested by Borrower in good faith and
in a diligent fashion by appropriate actions or legal proceedings, (2) such
contest shall have the effect of preventing the sale or forfeiture of any of the
Construction Premises or Unit Under Construction Premises, as applicable, or any
interest of Borrower therein, (3) Borrower establishes adequate reserves
therefor in accordance with GAAP, (4) Borrower furnishes to CoBank, promptly
upon CoBank's request, such additional security satisfactory to CoBank as CoBank
reasonably may request, (5) Borrower promptly furnishes CoBank with an
endorsement issued by the Title Insurer of the Construction Premises or Unit
Under Construction Premises insuring over such mechanic's lien if the lien has
been recorded, and (6) Borrower promptly pays all amounts claimed by such
mechanic, carrier, workman, or repairman in the event of a final, non-appealable
ruling or adjudication adverse to Borrower; or
DAMAGE TO CONSTRUCTION PREMISES. If the Construction Premises or Unit
Under Construction Premises, as applicable, have been damaged by fire or other
casualty and CoBank has not received insurance proceeds sufficient in its
judgment to effect the satisfactory restoration of the new Unit or Unit Under
Construction, as applicable, in accordance with the Plans and Specifications for
such Unit or Unit Under Construction and to permit the completion of such Unit
or Unit Under Construction on or before the Construction Deadline Date for such
Unit or Unit Under Construction; or
STORED MATERIALS. For stored materials until they are actually
delivered to the new Unit or Unit Under Construction, as applicable, except on
such conditions and on such occasions as may be approved in writing by CoBank in
its sole discretion; or
CONSTRUCTION DEADLINE DATE. After the Construction Deadline Date for
the new Unit or Unit Under Construction with respect to which an Advance under
the Construction Loan is requested.
ADDITIONAL REQUIREMENTS AFFECTING DISBURSEMENT OF CONSTRUCTION LOAN
PORTION.
RETAINAGE. Notwithstanding any other provision contained herein, upon
written notice from CoBank to Borrower, CoBank may retain a percentage, not to
exceed ten percent (10%), of all amounts approved by CoBank for disbursement
under the Construction Loan pursuant to each Construction Loan Advance Request
("RETAINAGE"), which Retainage CoBank shall not be obligated to advance until
the first Business Day after (a) completion of all construction of the new Unit
or Unit Under Construction with respect to which the Retainage was reserved, (b)
the passing of the deadline for the filing of mechanic's liens with respect to
such Unit or Unit Under Construction under the laws of the State where the
Construction Premises or Unit Under Construction Premises are located, and (c)
satisfaction of the conditions and requirements set forth in Section 8.27 (for a
new Unit) or Section 8.30 (for a Unit Under Construction) of this Agreement (the
"RETAINAGE RELEASE DATE").
PRIOR DISBURSEMENT OF EQUITY TRANCHE. Upon receipt of any
Construction Loan Advance Request, CoBank shall fund the amount requested
therein out of the Feeder Pig Unit Equity Tranche or Weaned Pig Unit Equity
Tranche monies in the Construction Account for such Feeder Pig Unit or Weaned
Pig Unit, as applicable, before advancing any of the Construction Loan Portion
for such Unit. CoBank shall have no obligation to disburse any of the
Construction Loan Portion for a Unit (whether new or a Unit Under Construction)
until all of the Feeder Pig Unit Equity Tranche or Weaned Pig Unit Equity
Tranche, as applicable, required by the terms of this Agreement shall have been
disbursed in accordance with the procedures and requirements of this Agreement
with respect to Advances of the proceeds of the Construction Loan or, as to the
Units Under Construction, disbursed under the requirements of the Existing Term
Loan or Existing Revolving Loan for the period prior to the Closing Date.
FREQUENCY AND MINIMUM AMOUNT OF DISBURSEMENTS. Disbursements of the
proceeds of the Construction Loan shall be made no more frequently than monthly
and in amounts of not less than $100,000.
ADVANCES DO NOT CONSTITUTE A WAIVER. No Advance of proceeds under the
Construction Loan hereunder shall constitute a waiver of any of the conditions
of CoBank's obligation to make further Advances.
DEPOSIT BY BORROWER OF AMOUNT OF DEFICIT. If CoBank at any time
determines that the undisbursed amount of the Construction Loan Portion for a
new Unit or Unit Under Construction, together with the amount on deposit in the
Construction Account for such Unit, shall not be sufficient to fully pay for all
costs required to complete such Unit in accordance with the Plans and
Specifications for such Unit as well as all financing and development costs to
be incurred by Borrower which are included in the Construction Budget for such
Unit, Borrower shall, upon the written request of CoBank, deposit or cause to be
deposited in the Construction Account for such new Unit or Unit Under
Construction funds equal to the amount of such deficiency ("DEFICIT") within
five (5) days after the date of CoBank's written demand, therefor, except that
where CoBank has not yet made an Advance of the Construction Loan Portion for
such Unit and the Feeder Pig Unit Equity Tranche or Weaned Pig Unit Equity
Tranche, as applicable, has not yet been fully disbursed and such undisbursed
amount is on deposit in the Construction Account for such Unit, Borrower must
deposit the amount of the Deficit no later than the time of the final
disbursement of such Equity Tranche monies. CoBank shall not be obligated to
make any disbursement of the Construction Loan Portion under this Agreement,
with respect to the new Unit or Unit Under Construction as to which a Deficit
exists, unless and until Borrower has deposited the amount of such Deficit in
the Construction Account for such Unit and the amount of the Deficit has been
completely disbursed by CoBank from such Construction Account. Borrower
irrevocably assigns to CoBank as security for the due performance of Borrower's
obligations under the Loan Documents all of Borrower's right, title and interest
in and to each Construction Account and the monies placed therein to be held
pursuant to the terms hereof.
ABILITY TO IMPOUND ADVANCES. Unless CoBank is provided with an
indemnification or other assurance satisfactory to CoBank, in its sole
discretion, CoBank may impound any Advance(s) as may be required to enable
CoBank to comply with the provisions of C.R.S. Section ▇▇-▇▇-▇▇▇, as amended.
CONDITIONS TO INITIAL ADVANCE OF THE TERM LOAN TAKEOUT AMOUNT OR THE
REVOLVING LOAN TAKEOUT AMOUNT FOR A NEW UNIT OR A UNIT UNDER CONSTRUCTION.
CoBank's obligation to make the initial Advance of the Term Loan Takeout Amount
or the Revolving Loan Takeout Amount applicable to any Unit or Unit Under
Construction, is subject to satisfaction, in CoBank's sole discretion, of: (a)
the conditions set forth in Sections 8.23 and 8.24 hereof, and (b) each of the
following conditions precedent, as of the Advance Date:
CONDITIONS TO FINAL ADVANCE OF CONSTRUCTION LOAN PORTION. Borrower
shall have satisfied (or CoBank shall have waived) each condition precedent to
the final advance of the Construction Loan Portion for a new Unit or a Unit
Under Construction in accordance with Section 8.27 (for a new Unit) or Section
8.30 (for a Unit Under Construction) of this Agreement; and
MATURITY OF CONSTRUCTION LOAN PORTION. The Construction Loan Portion
for such new Unit or Unit Under Construction shall be due and payable under the
terms of this Agreement.
CONDITIONS TO ALL ADVANCES OF THE TERM LOAN TAKEOUT AMOUNT OR THE REVOLVING
LOAN TAKEOUT AMOUNT FOR A UNIT AND TO ALL ADVANCES FOR WORKING CAPITAL PURPOSES.
CoBank's obligation to make any Advance of the Term Loan Takeout Amount or the
Revolving Loan Takeout Amount applicable to any new Unit or Unit Under
Construction or to make an Advance under the Revolving Loan to fund the working
capital requirements of Borrower, is subject to satisfaction, in CoBank's sole
discretion, of: (a) the conditions set forth in Sections 8.23, 8.24, and 8.33
hereof for Advances of the Term Loan Takeout Amount or Revolving Loan Takeout
Amount, or (b) the conditions set forth in Sections 8.23 and 8.24 for Advances
under the Revolving Loan to fund the working capital requirements of Borrower,
and (c) the following conditions precedent, as of the Advance Date:
ADVANCE REQUEST. CoBank shall have received (including by facsimile
transmission) a duly completed written request in the form attached hereto as
Exhibit 8.34.1 ("ADVANCE REQUEST") signed by an Authorized Representative. An
Advance Request shall be effective on the Business Day received if actually
received by CoBank before 12:00 noon Central Time, and as of the next Business
Day if received by CoBank after such time or on other than a Business Day. All
Advance Requests submitted by Borrower shall be irrevocable.
FEE. CoBank shall have received from Borrower all fees then due under
Section 4.12 of this Agreement.
WORKING CAPITAL ADVANCES - AVAILABILITY. With respect to all Advances
requested under the Revolving Loan for working capital purposes, CoBank shall
have determined that the requested Advance amount is available under the
Revolving Loan pursuant to Article 4 hereof.
CONDITIONS TO ADDITIONAL LOAN. Before CoBank will make an Additional Loan,
the following requirements shall have been satisfied in addition to those
contained in Sections 8.23 and 8.24 hereof:
ADDITIONAL LOAN REQUEST. CoBank shall have received (including by
facsimile transmission) a duly completed request in the form attached hereto as
Exhibit 8.35.1(a) (for an Additional Term Loan), Exhibit 8.35.1(b) (for an
Additional Revolving Loan), or Exhibit 8.35.1(c) (for an Additional Construction
Loan) (collectively "ADDITIONAL LOAN REQUEST") signed by an Authorized
Representative. The Additional Loan Request shall be accompanied by an
application package, containing such documentation and information as may be
required by CoBank in its sole discretion (including, as applicable and without
limitation, actual and pro-forma financial statements and cash flow projections
and other credit information on Borrower, and, where the Additional Loan Request
is for an Additional Construction Loan, a project description, a description of
the financing requirements for the proposed construction project, a draft
construction budget, a draft construction schedule, and a survey of the real
property on which the improvements are to be constructed) to enable CoBank to
determine (and advise Borrower) whether CoBank will make such Additional Loan.
The Additional Loan Request shall be deemed to have been received by CoBank on
the Business Day actually received by CoBank if delivered before 2:00 p.m.,
Central Time, and as of the next Business Day if delivered after such time or on
other than a Business Day. All Additional Loan Requests submitted by a Borrower
shall be irrevocable.
NOTICE OF APPROVAL OF ADDITIONAL LOAN. Within a reasonable time after
receipt of the Additional Loan Request and such information as CoBank, in its
sole discretion, shall request in connection therewith, CoBank will advise
Borrower whether or not it has approved the requested Additional Loan for
funding upon the condition that there are no material changes, as determined in
CoBank's sole discretion, in the material submitted with the Additional Loan
Request. If the requested Additional Loan is approved by CoBank, CoBank shall
extend the Additional Loan to Borrower on such date as Borrower and CoBank may
agree, and Advances under such Additional Loan shall be made in accordance with
this Agreement and the MLA Supplement executed in connection with such
Additional Loan.
REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Borrower contained in each of the Loan Documents, shall be true and correct in
all material respects on and as of the date of CoBank's approval of an
Additional Loan ("ADDITIONAL LOAN APPROVAL DATE") as though made on and as of
such date.
NO EVENT OF DEFAULT. No Event of Default or Potential Default shall
have occurred and be continuing, and no Event of Default or Potential Default
would result from the making of the Additional Loan.
NO MATERIAL ADVERSE CHANGE. No material adverse change shall have
occurred in the condition or operations of Borrower between the date of the
immediately preceding Advance Date and the Additional Loan Approval Date.
FEES AND EXPENSES. Borrower shall have paid CoBank, by wire transfer
of immediately available federal funds all fees and expenses, if any, owing
pursuant to Sections 4.12 and 9.9 hereof.
MLA SUPPLEMENT; FURTHER ASSURANCES. Borrower and CoBank shall have
entered into a MLA Supplement with respect to the Additional Loan and Borrower
shall have executed an Additional Note evidencing Borrower's obligations under
the Additional Loan, and Borrower shall have provided and/or executed and
delivered to CoBank such further mortgages, deeds of trust, amendments to
mortgages or deeds of trust, assignments, documents or financing statements, in
form and substance satisfactory to CoBank, that Borrower is to execute and
deliver pursuant to the terms of the Loan Documents or the MLA Supplement or as
CoBank may reasonably request.
EVIDENCE OF CORPORATE ACTION. CoBank shall have received in form and
substance satisfactory to CoBank evidence of all corporate action taken by
Borrower to authorize the Additional Loan, certified to be true and correct by
the Secretary or Assistant Secretary of Borrower.
ADDITIONAL DISBURSEMENT CONDITIONS. In addition to the conditions
contained in the other Sections of this Article 11, at no time and in no event
shall CoBank be obligated to make Advances:
AGGREGATE COMMITMENT AMOUNT. In excess of an amount, which (a) with
respect to Advances under the Term Loan, when added to all previous Advances
under the Term Loan, plus any amounts which are currently reserved against the
Term Loan pursuant to Sections 4.2 or 4.3 hereof, would exceed the Aggregate
Term Loan Commitment, (b) with respect to Advances under the Revolving Loan,
when added to the outstanding principal balance under the Revolving Loan, plus
the undrawn face amount of the Letter of Credit, plus any amounts which are
currently reserved against the Revolving Loan pursuant to Sections 4.2 or 4.3
hereof, plus any Retained Amounts reserved against the Revolving Loan pursuant
to Section 4.4 hereof, plus any Reserved Disputed Amounts reserved against the
Revolving Loan pursuant to Section 4.6 hereof, would exceed the Aggregate
Revolving Loan Commitment, (c) with respect to Advances under the Construction
Loan, when added to all previous Advances under the Construction Loan plus any
Reserved Disputed Amounts reserved against the Construction Loan pursuant to
Section 4.6 hereof, would exceed the Aggregate Construction Loan Commitment, (d)
with respect to each Additional Loan, when added to all previous Advances under
any such Additional Loan, would exceed the maximum principal amount thereof as
set forth in the applicable MLA Supplement.
DISBURSEMENT PERIOD. If the Advance would be made other than during
the Availability Period applicable to such Loan.
DISBURSEMENT CONDITIONS SET FORTH IN MLA SUPPLEMENT. With respect to
any Additional Loans, unless any and all conditions to such Advance set forth in
the MLA Supplement applicable to such Additional Loan have also been satisfied.
ARTICLE 11 AFFIRMATIVE COVENANTS
From and after the date of this Agreement and until the Bank Debt is
indefeasibly paid in full and CoBank has no obligation to make any Advance
hereunder, Borrower agrees that it will observe and comply with, the following
covenants for the benefit of CoBank:
BOOKS AND RECORDS. Borrower shall at all times keep proper books of record
and account, in which correct and complete entries shall be made of all its
dealings, in accordance with GAAP.
REPORTS AND NOTICES. Borrower shall provide to CoBank the following
reports, information and notices:
ANNUAL FINANCIAL STATEMENTS. As soon as available, but in no event
later than one hundred and twenty (120) days after the end of any fiscal year of
Borrower occurring during the term hereof, Borrower shall provide to CoBank the
annual financial statements of Borrower, prepared in accordance with GAAP which
shall: (a) be audited by independent certified public accountants selected by
Borrower which are reasonably acceptable to CoBank; (b) be accompanied by a
report of such accountants containing an opinion reasonably acceptable to
CoBank; (c) be accompanied by a Compliance Certificate; (d) be prepared in
reasonable detail and in comparative form; and (e) include a balance sheet, a
statement of operations, a statement of cash flows, a statement of shareholders
equity, and all notes and schedules relating thereto.
MONTHLY FINANCIAL STATEMENTS. As soon as available, but in no event
more than forty-five (45) days after the end of each month, Borrower shall
provide to CoBank the following internally prepared financial statements of
Borrower as of the end of such month, prepared in reasonable detail and in
comparative form in accordance with GAAP, subject to year-end adjustments that
may be required as a result of an audit or otherwise: (a) a balance sheet of
Borrower as of the end of such month, (b) a statement of operations of Borrower
for such month and for Borrower's fiscal year to date, and (c) such other
interim financial statements as CoBank reasonably may specifically request.
Monthly financial statements required pursuant to this Subsection shall be
accompanied by a Compliance Certificate.
MANAGEMENT LETTERS. Promptly upon receipt thereof, Borrower shall
provide CoBank with copies of any reports submitted to Borrower by independent
certified public accountants in connection with the examination of Borrower's
financial statements.
NOTICE OF DEFAULT. As soon as the existence of any Event of Default
or Potential Default becomes known to any corporate officer of Borrower,
Borrower shall promptly give CoBank written notice of such Event of Default or
Potential Default, the nature and status thereof, and the action being taken or
proposed to be taken with respect thereto.
NOTICE OF CERTAIN CHANGES. Borrower shall: (a) notify CoBank at least
thirty (30) Business Days prior to the occurrence of any change in the name or
business form of Borrower; and (b) take all actions necessary or reasonably
requested by CoBank in order to maintain the perfected status of CoBank's first
lien and security interest (subject only to Permitted Encumbrances) in the
Collateral.
NOTICE OF LITIGATION. Borrower shall promptly notify CoBank in
writing of the commencement of all actions, suits, or proceedings before any
court, arbitrator or governmental department, commission, board, bureau, agency
or instrumentality to which Borrower is a party which reasonably would be
expected to have a Material Adverse Effect on Borrower.
NOTICE OF MATERIAL CHANGE. Promptly after Borrower obtains knowledge
thereof, Borrower shall give CoBank written notice of any matter which has
resulted or reasonably would be expected to result in a Material Adverse Effect
on Borrower.
NOTICE OF ENVIRONMENTAL LITIGATION. Without limiting the provisions
of Subsection 8.38.6 of this Agreement, promptly after Borrower's receipt
thereof, Borrower shall give CoBank prompt written notice of the receipt of all
pleadings, orders, complaints, indictments, or other communication alleging a
condition that may require Borrower to undertake or to contribute to a cleanup
or other response under any Environmental Law or Environmental Regulation
(together with copies of all such written documents received by Borrower), or
which seeks penalties, damages, injunctive relief, or criminal sanctions related
to alleged violations of such laws, or which claims personal injury or property
damage to any person as a result of environmental factors or conditions or
which, if adversely determined, reasonably would be expected to have a Material
Adverse Effect on Borrower.
ADVERSE ACTION REGARDING REQUIRED LICENSES. In the event Borrower
learns that any petition, action, investigation, notice of violation or apparent
liability, notice of forfeiture, order to show cause, complaint or proceeding is
pending, or, to the best knowledge of any corporate officer of Borrower,
threatened, to seek to revoke, cancel, suspend, modify, or limit any of the
Required Licenses, Borrower shall provide CoBank with prompt written notice
thereof and shall take, or cause to be taken, all reasonable measures to contest
such action in good faith.
MANAGEMENT AND POLICIES. Promptly after any corporate officer of
Borrower obtains knowledge thereof, Borrower shall promptly give CoBank written
notice of any change in the executive management personnel, board of directors,
business and/or financial policies, or formation of any subsidiary corporations
or other entities, of or by Borrower.
NOTIFICATION OF CLAIMS BY SUBCONTRACTORS AND MATERIALMEN. Borrower
shall promptly advise CoBank in writing of any notice to Borrower from any
laborer, subcontractor or materialman to the effect that such laborer,
subcontractor or materialman has not been paid when due for any labor or
materials furnished in connection with the construction of any new Unit or Unit
Under Construction.
DEFAULT UNDER PRINCIPAL AGREEMENTS. As soon as the existence of any
event of default or default which, with the giving of notice and/or the passage
of time reasonably would be expected to become an event of default, under any of
the Principal Agreements becomes known to any corporate officer of Borrower,
Borrower shall promptly give CoBank written notice of such event of default or
potential default, the nature and status thereof, and the action being taken or
proposed to be taken with respect thereto.
NOTICE OF INTENT TO TERMINATE OR TERMINATION OF FEEDER PIG PURCHASE
AGREEMENT, EXCESS FEEDER PIG PURCHASE AGREEMENT, WEANED PIG PURCHASE AGREEMENT,
EXCESS WEANED PIG PURCHASE AGREEMENT OR EXCESS CLASS C WEANED PIG PURCHASE
AGREEMENT; NOTICE OF FAILURE TO PURCHASE LOT. Promptly after receipt thereof,
Borrower shall provide CoBank with a copy of any notice it has received from any
counterparty to a Feeder Pig Purchase Agreement or Weaned Pig Purchase
Agreement, or any Excess Feeder Pig Purchase Agreement, Excess Weaned Pig
Purchase Agreement or Excess Class C Weaned Pig Purchase Agreement executed in
connection with an Equity Loan, indicating that such counterparty intends to
terminate such agreement. Promptly after the occurrence thereof, Borrower shall
give CoBank written notice of (a) the failure of any counterparty to a Feeder
Pig Purchase Agreement or Weaned Pig Purchase Agreement, or any Excess Feeder
Pig Purchase Agreement, Excess Weaned Pig Purchase Agreement or Excess Class C
Weaned Pig Purchase Agreement executed in connection with an Equity Loan, to
purchase any Lot (as such term is defined in the applicable agreement) made
available by Borrower to such counterparty, or (b) the termination (whether
initiated by Borrower or the other party) of any Feeder Pig Purchase Agreement
or Weaned Pig Purchase Agreement, or any Excess Feeder Pig Purchase Agreement,
Excess Weaned Pig Purchase Agreement or Excess Class C Weaned Pig Purchase
Agreement executed in connection with an Equity Loan, and the action to be taken
by Borrower in order to find a replacement customer; provided, however, that
Borrower shall not be obligated to notify CoBank of any termination of any
Excess Feeder Pig Purchase Agreement, Excess Weaned Pig Purchase Agreement or
Excess Class C Weaned Pig Purchase Agreement executed in connection with an
Equity Loan where any such agreement is terminated due to the repayment of such
Equity Loan with the proceeds of the sale of the capital stock of Borrower so
long as the purchasers of such stock have delivered executed Feeder Pig Purchase
Agreements or Weaned Pig Purchase Agreements as required pursuant to Borrower's
bylaws in effect on the date hereof or as subsequently amended with CoBank's
prior written consent.
COPIES OF FEEDER PIG PURCHASE AGREEMENTS, EXCESS FEEDER PIG PURCHASE
AGREEMENTS, WEANED PIG PURCHASE AGREEMENTS, EXCESS WEANED PIG PURCHASE
AGREEMENTS AND EXCESS CLASS C WEANED PIG PURCHASE AGREEMENTS. Promptly upon
execution thereof, Borrower shall provide CoBank with (a) copies of all Feeder
Pig Purchase Agreements, Excess Feeder Pig Purchase Agreements, Weaned Pig
Purchase Agreements, Excess Weaned Pig Purchase Agreements and Excess Class C
Weaned Pig Purchase Agreements entered into after the Closing Date.
COPIES OF AMENDMENTS TO CONSTRUCTION DOCUMENTS. Borrower shall
provide CoBank with copies of all amendments and modifications to the
Construction Budget, Construction Schedule or Plans and Specifications for each
new Unit and Unit Under Construction (including without limitation copies of all
Change Orders).
PIG REPORTS. As soon as available, but in no event more than forty-
five (45) days after the end of each month, Borrower shall provide CoBank with a
report on its feeder pigs and weaned pigs substantially in the form of, and
containing the types of information set forth in, the sample report attached
hereto as Exhibit 8.38.16.
BUSINESS PLAN. No later than sixty days before the end of Borrower's
fiscal year, Borrower shall submit its business plan for the forthcoming fiscal
year to CoBank.
ADDITIONAL INFORMATION. With reasonable promptness, such additional
financial information or documentation as CoBank may reasonably request.
ELIGIBILITY. Borrower shall maintain its status as an entity eligible to
borrow from CoBank in accordance with the Eligibility Requirements, as amended
from time to time.
MAINTENANCE OF EXISTENCE AND QUALIFICATION. Borrower shall maintain its
existence as a cooperative corporation and shall remain in good standing under
the laws of Colorado. Borrower will qualify and remain qualified as a foreign
corporation in each jurisdiction in which such qualification is necessary in
view of its business, operations and properties.
COMPLIANCE WITH LEGAL REQUIREMENTS AND AGREEMENTS. Borrower shall: (a)
comply with all laws, rules, regulations and orders applicable to Borrower or
its business; and (b) comply with all agreements, indentures, mortgages, and
other instruments to which it is a party or by which it or any of its property
is bound; provided, however, that the failure of Borrower to comply with this
sentence in any instance not directly involving CoBank shall not constitute an
Event of Default unless such failure would have a Material Adverse Effect.
COMPLIANCE WITH ENVIRONMENTAL LAWS. Without limiting the provisions of
Section 8.41 of this Agreement, Borrower shall comply in all material respects
with, and take all reasonable steps necessary to cause all persons occupying or
present on any properties owned or leased by Borrower to comply with, all
Environmental Laws and Environmental Regulations, the failure to comply with
which would have a Material Adverse Effect.
USE OF LOAN PROCEEDS. Borrower shall use the Loan Proceeds only for those
purposes permitted under Article 3 of this Agreement.
TAXES. Borrower shall cause to be paid when due all taxes, assessments,
and other governmental charges upon it, its income, its sales, its properties,
and federal and state taxes withheld from its employees' earnings, unless (a)
the validity thereof is being contested by Borrower in good faith and in a
diligent fashion by appropriate actions or legal proceedings, (b) such contest
shall have the effect of preventing the sale or forfeiture of any of the
Collateral or any interest of Borrower therein, (c) Borrower establishes
adequate reserves therefor in accordance with GAAP, (d) Borrower furnishes to
CoBank, promptly upon CoBank's request, such additional security satisfactory to
CoBank as CoBank reasonably may request, and (e) Borrower promptly pays such tax
in the event of a final, non-appealable ruling or adjudication adverse to
Borrower.
INSURANCE. Borrower shall maintain, at a minimum, the following insurance
coverages:
BUILDER'S RISK AND HAZARD. All peril builder's risk and such other
hazard insurance as CoBank may reasonably require, with standard noncontributing
mortgagee clauses and standard subrogation clauses, and providing for a
deductible of not more than $1,000 together with a "builder's risk completed
value" endorsement, issued on a non-reporting basis, with a "right to occupy"
endorsement and including, if requested by CoBank, coverage of materials in
storage and while in transit and such other endorsements as CoBank may require
in connection with the construction of the Units. Such insurance shall be in
such amounts and forms and issued by such companies as shall be approved by
CoBank, such approval to not be unreasonably withheld, and certified copies of
such policies (together with a full replacement cost endorsement and other
appropriate endorsements thereto, evidence of payment of premiums thereon and
written agreement by the insurer or insurers therein to give CoBank forty-five
(45) days' prior written notice of intention to cancel except cancellation for
non-payment in which case ten (10) days prior notice shall be required) shall be
promptly delivered to CoBank. Such insurance coverage shall be kept in full
force and effect at all times until the later to occur of (a) completion of the
construction of all Feeder Pig Units and Weaned Pig Units to be financed
pursuant to this Agreement, or (b) the end of the Availability Period for the
Construction Loan.
GENERAL. Borrower shall at all times keep all of its assets,
including without limitation Breeding Stock, insured at all times by an
insurance carrier having an A rating by the current BEST Key Rating Guide,
against all risks covered by a special form policy (and including flood,
earthquake and windstorm coverage) in the amount of the full replacement cost
(other than with respect to motor vehicles) of the Collateral as well as
comprehensive general public liability, worker's compensation, business
interruption, and such other insurance as CoBank may reasonably require, or in
the absence of any such requirement by CoBank, in amounts and with deductibles
(up to $100,000 per occurrence) or maximum payouts customarily carried by
entities engaged in comparable businesses and comparably situated. Borrower
shall also maintain fidelity coverage (including employee dishonesty) on such
officers and employees and in such amounts as is customarily carried by entities
engaged in comparable businesses and comparably situated. All liability
policies shall name CoBank as an additional insured as its interests may appear.
All casualty insurance policies shall be endorsed with a mortgagee's or loss
payable clause, as appropriate, in favor of CoBank, and shall provide that
CoBank shall be paid regardless of any act or omission by Borrower. The policy
or policies evidencing all insurance referred to in this Section and receipts
for the payment of premiums thereon, or certificates of such insurance
satisfactory to CoBank, shall be delivered to and held by CoBank. All such
insurance policies shall contain a provision requiring at least ten (10) days'
notice to CoBank prior to any cancellation for non-payment of premiums and at
least forty-five (45) days' notice to CoBank of cancellation for any other
reason or of modification or non-renewal. No later than twenty (20) days prior
to expiration, Borrower shall give CoBank satisfactory written evidence of
renewal of all such policies with premiums paid. Borrower agrees to pay, or
cause to be paid, all premiums on such insurance as they become due, and will
not permit any condition to exist on or with respect to its assets which would
wholly or partially invalidate any insurance thereon. Effective upon the
occurrence of an Event of Default, all of Borrower's right, title and interest
in and to all such policies and any unearned premiums paid thereon are hereby
assigned to CoBank who shall have the right, but not the obligation, to assign
the same to any purchaser of the Collateral at any foreclosure sale. Borrower
shall give immediate written notice to the insurance carrier and CoBank of any
loss. Borrower hereby authorizes and empowers CoBank upon the occurrence and
during the continuation of an Event of Default, at CoBank's option and in
CoBank's sole discretion, to act as attorney-in-fact for Borrower to make proof
of loss, to adjust and compromise any claim under insurance policies, to collect
and receive insurance proceeds, and to deduct therefrom CoBank's expenses
incurred in the collection of such proceeds, and all insurance policies of
Borrower shall provide that CoBank may act as Borrower's attorney-in-fact for
such purposes.
COBANK MAY PURCHASE INSURANCE. Unless Borrower provides CoBank with
evidence of the insurance coverage required by this Agreement, CoBank, after
reasonable notice to Borrower, may purchase insurance coverage required by this
Agreement at Borrower's expense to protect CoBank's interests in the Collateral.
This insurance may, but need not, protect Borrower's interest. The coverage
that CoBank purchases may not provide for payment of any claim that Borrower may
make or any claim that is made against Borrower in connection with the
Collateral. Borrower may later cancel any insurance purchased by CoBank, but
only after providing CoBank with evidence that Borrower has obtained insurance
as required by this Agreement. If CoBank purchases insurance for the
Collateral, Borrower will be responsible for immediately reimbursing CoBank for
the costs of such insurance, including interest and any other charges that may
be imposed in connection with the placement of such insurance, until the
effective date of the cancellation or expiration of such insurance. Without
limitation of any other provision of this Agreement, the cost of such insurance
shall be immediately due and payable and shall be added to the Bank Debt and
shall be secured by the Collateral. The cost of the insurance purchased by
CoBank may be more than the cost of insurance Borrower may be able to obtain on
its own.
TITLE TO ASSETS AND MAINTENANCE. Borrower shall defend and maintain title
to all Collateral. Borrower shall (a) furnish adequate feed, shelter, water and
medication for its Breeding Stock, feeder pigs and weaned pigs (collectively,
"LIVESTOCK"), (b) protect the Livestock from disease, damage, injury, death,
theft or other hazard, and (c) otherwise care for the Livestock, in each case,
in accordance with commercially reasonable practices of animal husbandry.
Borrower shall keep its other assets, both real and personal, in good order and
condition, except for reasonable wear and tear and except for casualties which
are fully covered by insurance (except for Borrower's deductible in an amount
approved by CoBank) consistent with industry practice and shall make all
necessary repairs, replacements and improvements so that its business may be
properly and advantageously conducted.
PAYMENT OF LIABILITIES. Borrower shall pay all liabilities (including,
without limitation: (a) any indebtedness for borrowed money or for the deferred
purchase price of property or services; (b) any obligations under leases which
have or should have been characterized as capitalized leases, as determined in
accordance with GAAP; and (c) any contingent liabilities, such as guaranties,
for the obligations of others relating to indebtedness for borrowed money or for
the deferred purchase price of property or services or relating to obligations
under leases which have or should have been characterized as capitalized leases,
as determined in accordance with GAAP, as they become due beyond any period of
grace under the instrument creating such liabilities, unless (with the exception
of the Bank Debt): (i) the validity thereof is being contested by Borrower in
good faith and in a diligent fashion by appropriate actions or legal
proceedings, (ii) such contest shall have the effect of preventing the sale or
forfeiture of any of the Collateral or any interest of Borrower therein, (iii)
Borrower establishes adequate reserves therefor in accordance with GAAP, (iv)
Borrower furnishes to CoBank, promptly upon CoBank's request, such additional
security satisfactory to CoBank as CoBank reasonably may request, and (v)
Borrower promptly pays such liability in the event of a final, non-appealable
ruling or adjudication adverse to Borrower.
FURTHER ASSURANCES. Borrower shall, as may be required from time to time by
CoBank, provide such documents as may be necessary or desirable in the
reasonable judgment of CoBank to confirm the security interest in and lien on
the Collateral granted to CoBank and the first priority of such security
interest or lien, subject only to Permitted Encumbrances.
REAL PROPERTY SECURITY. Promptly after the purchase or other acquisition of
any fee interest in real estate, any Spreading Easement or any Water Supply
Easement, Borrower shall provide CoBank with written notice of such acquisition
and shall grant to CoBank a first deed of trust or mortgage on such real estate
or easement interest (subject to liens permitted by Section 8.64 hereof), such
deed of trust or mortgage to be in form and substance as reasonably specified by
CoBank. In connection with the delivery of any mortgage or deed of trust
covering a fee interest in real estate, a Spreading Easement or a Water Supply
Easement, Borrower shall deliver to CoBank a mortgagee's title policy reasonably
satisfactory to CoBank insuring CoBank's lien on such real estate, Spreading
Easement or Water Supply Easement, as applicable at Borrower's sole cost. In
connection with entering into, as lessee, any lease of an interest in real
property which lease calls for a rental payment equal to or in excess of
$50,000.00 per annum, Borrower shall deliver to CoBank a leasehold deed of trust
or mortgage in form and content reasonably satisfactory to CoBank, together with
such consents or estoppels of lessor as CoBank shall specify. In connection
with the acquisition by Borrower of any easement, license, right of way or
similar interest not covered above in this Section, Borrower shall provide to
CoBank (a) written notification of such acquisition, and (b) a copy of such
title opinion, if any, as Borrower may obtain in connection with such
acquisition, which title opinion shall provide that CoBank may rely thereon.
REQUIRED LICENSES; PERMITS; ETC. Borrower shall duly and lawfully obtain
and maintain in full force and effect all Required Licenses.
ERISA. Borrower shall: (a) cause Borrower's Benefit Plans to comply in all
material respects with the Code and ERISA, including but not limited to
preparing and delivering each material report, statement or other document
required by ERISA and the Code within the period specified therein and
conforming in form and substance to the provisions thereof; (b) cause any
Borrower Benefit Plan that is intended to satisfy the requirements of Section
401(a) of the Code to satisfy such requirements including, but not limited to
obtaining a favorable determination letter with respect to each such Borrower
Benefit Plan; and (c) administer each Borrower Benefit Plan in all material
respects in accordance with the terms of such plan and with ERISA, the Code, and
any other applicable law, except to the extent any failure to comply with the
preceding clauses (a), (b) or (c) would not have a Material Adverse Effect.
Within ten (10) Business Days after receiving such notice, Borrower shall
furnish to CoBank any notice received by Borrower relating to an assertion of
withdrawal liability imposed by any Multiemployer Plan upon Borrower or
Borrower's controlled group prior to the Closing Date, or relating to any
violation of the provisions of the Code or ERISA asserted by the Department of
Labor, the Pension Benefit Guaranty Corporation or the Department of the
Treasury with respect to any Borrower Benefit Plan that could reasonably be
expected to have a Material Adverse Effect.
FINANCIAL COVENANTS. Borrower shall maintain the following financial
covenants measured as of the dates specified below:
TOTAL EQUITY TO TOTAL ASSETS. The amount of Total Equity divided by
Total Assets shall be measured as of the end of each month and shall be not less
than the following for the period indicated:
Period Required Ratio
Through August 31, 1998 .25
Thereafter .35
DEBT SERVICE COVERAGE RATIO. Commencing on March 31, 1998, Average
Annual Cash Flow divided by Current Debt shall be measured as of the end of each
Fiscal Quarter and shall be no less than 1.0.
INSPECTION. Upon four hours' prior notice, Borrower shall permit CoBank or
its agents, during normal business hours or at such other times as the parties
may agree, to examine Borrower's properties, books, and records, and to discuss
Borrower's affairs, finances, operations, and accounts with its respective
officers, directors, employees, and independent certified public accountants.
ANNUAL LIVESTOCK AUDIT. Bank shall have a right from time to time to audit
Borrower's inventory of animals at Borrower's expense; provided, that (a)
Borrower shall not be required to pay for more than one such audit in any twelve
month period, unless an Event of Default has occurred, and (b) so long as no
Event of Default has occurred, Borrower shall not be required to pay more than
$1,500 per audit by CoBank of Borrower's inventory of animals.
CONSTRUCTION. With respect to each Unit (whether a new Unit or a Unit
Under Construction), Borrower shall comply with each of the following
provisions:
The Plans and Specifications for each Unit will include all
mechanical, electrical, structural and such other drawings as may be required to
complete such Unit in accordance in all material respects with applicable
building codes and recorded plats and will be a true, complete and accurate
reflection of the Unit that Borrower will construct.
The Construction Budget will be a good faith estimate of the necessary
costs and expenses to be incurred by Borrower in the construction of each Unit
and the Construction Schedule for any such Unit will be a good faith estimate of
the time of completion of each phase of construction of such Unit in accordance
with the Plans and Specifications for such Unit.
Borrower shall cause the construction of each such Unit to be
performed with diligence and continuity and in substantial accordance with the
Plans and Specifications for such Unit and shall cause construction on all such
Units to be commenced no later than that date which is sixteen (16) months prior
to the Construction Loan Expiration Date. All public utility services and
facilities necessary for the construction of each such Unit and the operation
thereof for its intended purpose, including without limitation water supply,
storm and sanitary sewer facilities, gas and/or electric and telephone
facilities, will either be available at the boundaries of the Construction
Premises for such Unit at the time of commencement of construction of such Unit
or all necessary steps will have been taken by Borrower to assure the complete
installation and availability thereof when needed for construction and/or
occupancy and operation of such Unit.
Each such Unit shall be completed on or before the Construction
Deadline Date for such Unit in accordance with the terms and provisions of the
Loan Documents. All of such construction work shall be completed without liens,
claims or assessments (actual or contingent) asserted against the Construction
Premises or Unit Under Construction Premises, as applicable, for such Unit for
any material, labor or other items furnished in connection therewith, except for
Permitted Encumbrances. The construction of such Units, and the use of such
Units upon completion of construction, shall comply in all material respects
with all construction, use, building, zoning and other similar requirements of
any applicable governmental jurisdiction. Borrower will provide CoBank with
satisfactory evidence of such compliance upon CoBank's request.
If, as a result of Force Majeure, Borrower is prevented from
completing a Unit by the original Construction Deadline Date for such Unit,
Borrower can, upon complying with the procedures set forth below, obtain an
extension, up to a maximum aggregate of two (2) months, of said original
Construction Deadline Date for each day during which construction or material
delivery is prevented on account of Force Majeure but in no event shall the
Construction Deadline Date be extended beyond the Construction Loan Expiration
Date. In order to be eligible for an extension of the Construction Deadline
Date, Borrower must, promptly upon the occurrence of such Force Majeure, furnish
to CoBank a written certification signed by Borrower, the General Contractor,
and any subcontractor whose performance is prevented by the Force Majeure
setting forth: (a) the event or events which constitute the claimed Force
Majeure, (b) how the Force Majeure has prevented or will prevent performance,
and (c) the number of days such performance was or it is anticipated will be,
prevented by Force Majeure; and CoBank reasonably will determine the length of
extension appropriate.
LISTS OF CONTRACTORS, SUBCONTRACTORS AND MATERIALMEN. With respect to each
Unit (whether a new Unit or a Unit Under Construction) as to which construction
is commenced after the date hereof:
Borrower shall furnish to CoBank, promptly upon the request of CoBank
from time to time, a list of, and Borrower's records with respect to, all
contractors, subcontractors, suppliers or materialmen employed or retained in
connection with the construction of any such Unit; and
Each such list and all records shall show the name, address, telephone
number and, if available (after Borrower's request), social security number or
employer identification number, as applicable, of each such person, a general
statement of the nature of the work to be done, the labor and materials to be
supplied, and the approximate dollar value of such labor or work with respect to
each; CoBank shall have the right to telephone or otherwise communicate with
each contractor, subcontractor and materialmen to verify the facts disclosed by
said list or by any Construction Loan Advance Request or for any other purpose;
and, all contracts of Borrower or Borrower's contractors relating to
construction of any Feeder Pig Unit or any Weaned Pig Unit shall require
disclosure to CoBank of information sufficient to make said verification.
CORRECTION OF DEFECTS AND NONCOMPLIANCE WITH PLANS AND SPECIFICATIONS.
With respect to each Unit (whether a new Unit or a Unit Under Construction):
Borrower will promptly correct any material defect in any Unit or any
material departure from the Plans and Specifications for any Unit not previously
approved in writing by CoBank; and
Borrower shall indemnify and hold CoBank harmless from any liability,
claim or loss, including reasonable attorneys' fees, arising by reason of the
claim of any person for any such defective workmanship or materials, and the
advance of any Loan Proceeds shall not constitute a waiver of the right of
CoBank to require compliance with this covenant with respect to any such defects
or departures from the Plans and Specifications for any Unit.
ACCESS TO CONSTRUCTION PREMISES AND UNIT UNDER CONSTRUCTION PREMISES;
COOPERATION WITH COBANK'S INSPECTOR. Borrower will permit CoBank and its
representatives and agents, including CoBank's Inspector, from time to time,
after reasonable notice to Borrower, to enter upon the Construction Premises and
Unit Under Construction Premises and inspect the construction of the Unit
(whether a new Unit or a Unit Under Construction) and all materials to be used
in the construction thereof. CoBank's Inspector may monitor and inspect all
aspects of the construction of such Units. Borrower shall cooperate with
CoBank's Inspector and use its best efforts to cause the General Contractor, the
other contractors, and subcontractors and the employees of each of them to
cooperate with CoBank's Inspector and furnish it with whatever information or
documents CoBank's Inspector might consider reasonably necessary or useful in
connection with the performance of its duties. Borrower acknowledges that the
duties of CoBank's Inspector run solely to CoBank and that CoBank's Inspector
shall have no obligations or responsibilities whatsoever to Borrower, any
General Contractor, or any other contractor or any subcontractor.
DEPOSIT BY BORROWER OF AMOUNT OF DEFICIT. If CoBank at any time determines
that the undisbursed amount of the Construction Loan Portion for a Unit (whether
new or a Unit Under Construction) together with the amount on deposit in the
Construction Account for such Unit shall not be sufficient to fully pay for all
costs required to complete the Unit in accordance with the Plans and
Specifications for such Unit including all soft costs and other costs to be
incurred by Borrower which are included in the Construction Budget for such
Unit, Borrower shall, upon the written request of CoBank, deposit the Deficit or
cause the Deficit to be deposited in the Construction Account for such Unit
within five (5) days after the date of CoBank's written demand, therefor, except
that where CoBank has not yet made an Advance of the Construction Loan Portion
for such Unit and the Feeder Pig Unit Equity Tranche or Weaned Pig Unit Equity
Tranche, as applicable, has not yet been fully disbursed and such undisbursed
amount is on deposit in the Construction Account for such Unit, Borrower must
deposit the amount of the Deficit no later than the time of the final
disbursement of such Equity Tranche monies. CoBank shall not be obligated to
make any further disbursement under this Agreement of the Construction Loan
Portion, with respect to the Unit as to which a Deficit exists, unless and until
Borrower has deposited the amount of such Deficit in the Construction Account
for such Unit and the amount of the Deficit has been completely disbursed by
CoBank from such Construction Account. Borrower irrevocably assigns to CoBank
as security for the due performance of Borrower's obligations under the Loan
Documents all of Borrower's right, title and interest in and to each
Construction Account and the monies placed therein to be held pursuant to the
terms hereof.
PERFORMANCE UNDER PRINCIPAL AGREEMENTS. Borrower shall perform in a timely
manner all of its obligations under the Principal Agreements.
REPLACEMENT OF COLORADO BREEDING STOCK. Borrower shall use the Pig
Production Margins accumulated during Borrower's fiscal year most recently ended
for the purpose of funding the repopulation of the Breeding Stock for all
Existing Units located in Colorado with Breeding Stock from Pig Improvement
Company, such repopulation to be completed no later than August 31, 1998.
ARTICLE 12 NEGATIVE COVENANTS
From and after the date of this Agreement until the Bank Debt is
indefeasibly paid in full and CoBank has no obligation to disburse Loan
Proceeds, Borrower agrees that it will observe and comply with the following
covenants:
BORROWING. Borrower shall not create, incur, assume or permit to exist:
(a) any indebtedness for borrowed money or for the deferred purchase price of
property or services; (b) any contingent liabilities, such as guarantees; or (c)
any obligations under leases which, if properly characterized under GAAP, would
be considered to be capital leases, except for: (i) indebtedness owing under
the Loan Documents, (ii) capitalized leases and purchase money financing of
property used in the ordinary course of Borrower's business the aggregate amount
of which does not exceed $100,000 at any one time; (iii) the Colorado Real
Estate Acquisition Loan; (iv) one or more Equity Loans up to a maximum of eight
Equity Loans outstanding at any time; (v) accounts payable to trade creditors
incurred in the ordinary course of Borrower's business; and (vi) indebtedness
constituting any refinancing or refunding of indebtedness described in
subparagraph (ii) of this Section 8.62, provided that the principal amount
thereof does not increase as a result of any such refinancing or refunding from
the balance owing on the date hereof or on the date of such refinancing or
refunding, whichever is lower.
NO OTHER BUSINESSES. Borrower shall not transact or engage in any business
other than the production of feeder pigs and weaned pigs for sale.
LIENS. Borrower will not create, incur, assume or suffer to exist any
mortgage, pledge, lien, charge or other encumbrance on, or any security interest
in, any of the Collateral, except:
the security interests, mortgages, pledges, liens, or other charges or
encumbrances resulting from the Loan Documents;
liens for taxes or other governmental charges which (i) are not yet
due, or (ii) if due, are being contested; provided that (1) the validity thereof
is being contested by Borrower in good faith and in a diligent fashion by
appropriate actions or legal proceedings, (2) such contest shall have the effect
of preventing the sale or forfeiture of any of the Collateral or any interest of
Borrower therein, (3) Borrower establishes adequate reserves therefor in
accordance with GAAP, (4) Borrower furnishes to CoBank, promptly upon CoBank's
request, such additional security satisfactory to CoBank as CoBank reasonably
may request, and (5) Borrower promptly pays such tax or other governmental
charge in the event of a final, non-appealable ruling or adjudication adverse to
Borrower;
deposits or pledges to secure workmen's compensation, unemployment
insurance, old age benefits or other social security obligations or in
connection with or to secure the performance of bids, tenders, trade contracts
or leases or to secure statutory obligations or surety or appeal bonds or other
pledges or deposits of like nature and all in the ordinary course of business;
with respect to constructed Units, mechanics', carriers', workmen's,
repairmen's or other like liens arising in the ordinary course of business in
respect of obligations not yet due or, if due, are being contested; provided
that (1) the validity thereof is being contested by Borrower in good faith and
in a diligent fashion by appropriate actions or legal proceedings, (2) such
contest shall have the effect of preventing the sale or forfeiture of any of the
Collateral or any interest of Borrower therein, (3) Borrower establishes
adequate reserves therefor in accordance with GAAP, (4) Borrower furnishes to
CoBank, promptly upon CoBank's request, such additional security satisfactory to
CoBank as CoBank reasonably may request, and (5) Borrower promptly pays all
amounts claimed by such mechanic, carrier, workman, or repairman in the event of
a final, non-appealable ruling or adjudication adverse to Borrower;
easements, rights-of-way, zoning restrictions and other similar
matters incidental to the ownership of property which do not in the aggregate
materially detract from the value of such property or assets or materially
impair their use in the operation of the business of Borrower;
the liens, pledges, restrictions, and encumbrances on Borrower's Real
Property specifically identified in Exhibit 8.13 attached hereto;
the lien of Farmland on the Additional Colorado Property which secures
the Colorado Real Estate Acquisition Loan and is subordinated to the lien of
CoBank on the Additional Colorado Property;
the lien of Farmland (satisfactorily subordinated to the lien of
CoBank) on the Feeder Pig Unit or Weaned Pig Unit to be constructed, in part,
with the proceeds of the Equity Loan;
the lien of Farmland on any additional fee interest in real property
acquired by Borrower with the proceeds of a purchase money loan made by Farmland
to Borrower ("REAL PROPERTY ACQUISITION LOAN") upon the prior written consent of
CoBank to such loan, so long as the lien of Farmland on the real property
acquired by Borrower with the proceeds of such Real Property Acquisition Loan
("PURCHASE MONEY REAL PROPERTY") is subordinated to the lien of CoBank on the
Purchase Money Real Property (which lien shall be granted promptly upon
acquisition of such Purchase Money Real Property pursuant to Section 8.49
hereof), on terms and conditions satisfactory to CoBank in its sole discretion,
prior to the activation of any Construction Loan Portion to be disbursed
hereunder in order to fund the construction of a Unit on the Purchase Money Real
Property;
leases, for the purpose of growing crops, of Borrower's excess real
property which is not needed in connection with the operation of the Units or
otherwise in the ordinary course of Borrower's business;
purchase money security interests in personal property; provided that:
(i) such personal property is used in the ordinary course of Borrower's business
and attaches only to the personal property so purchased, and (ii) the amount of
the purchase money financing so secured does not exceed the amount permitted
under Section 8.62; and
the prior lien of any financial institution on the capital stock of
Borrower issued to a member of Borrower where such financial institution
provided a purchase money loan to such member of Borrower for the purchase of
Borrower's capital stock and where such member of Borrower granted a security
interest in the capital stock of Borrower purchased with such purchase money
loan from such financial institution.
SALE OF ASSETS. Borrower will not sell, convey, assign, lease or otherwise
transfer or dispose of, voluntarily, by operation of law, or otherwise, any of
the Collateral to any Person, except that: (a) Borrower may sell feeder pigs
and weaned pigs in the ordinary course of its business, (b) Borrower may sell
Breeding Stock in the reasonable exercise of Borrower's business judgment, if
such Breeding Stock is promptly replaced with new Breeding Stock, and (c)
Borrower may dispose of equipment which is obsolete or no longer used or useful
by Borrower in its business so long as (i) the transfer is made in an arms
length transaction, and (ii) no Event of Default has occurred and is continuing.
LIABILITIES OF OTHERS. Borrower shall not assume, guarantee, endorse or
otherwise become directly or contingently liable in connection with any
obligation of any other Person.
PAYMENTS ON INDEBTEDNESS. Borrower shall not make any principal payment on
any indebtedness except the Bank Debt and, so long as no Event of Default or
Potential Default shall exist, indebtedness permitted by Section 8.62 of this
Agreement, except that payment on the Equity Loan may only be made to the extent
permissible under the terms of the subordination agreement between Farmland and
CoBank with respect to such Equity Loan.
MERGER; ACQUISITIONS; BUSINESS FORM; ETC. Borrower shall not merge or
consolidate with any entity, or acquire all or substantially all of the assets
of any person or entity, or form or create any new subsidiary or affiliate, or
commence operations under any other name, organization, or entity, including any
joint venture, or change its business form from a Colorado cooperative
corporation.
LOANS, ADVANCES AND INVESTMENTS. Except for the purchase of CoBank Equity
Interests and investments purchased through CoBank's investment program,
Borrower will not make or permit to remain outstanding any loan or advance to,
or own, purchase or acquire any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any Person, except that
Borrower may own, purchase or acquire:
commercial paper maturing not in excess of one year from the date of
acquisition and rated P1 by ▇▇▇▇▇'▇ Investors Service, Inc. or A1 by Standard &
Poor's Corporation on the date of acquisition;
certificates of deposit in North American commercial banks rated C or
better by ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. or 3 or better by ▇▇▇▇▇ Consulting
Analysts, maturing not in excess of one year from the date of acquisition;
obligations of the United States government or any agency thereof, the
obligations of which are guaranteed by the United States government, maturing,
in each case, not in excess of one year from the date of acquisition;
repurchase agreements of any bank or trust company incorporated under
the laws of the United States of America or any state thereof and fully secured
by a pledge of obligations issued or fully and unconditionally guaranteed by the
United States government; and
the Construction Accounts.
TRANSACTIONS WITH RELATED PARTIES. Borrower shall not purchase, acquire,
or sell any equipment, other personal property, real property or services from
or to any affiliate, except in the ordinary course of Borrower's business and
upon fair and reasonable terms no less favorable than would be obtained by
Borrower in a comparable arm's-length transaction with an unrelated Person.
ERISA. Borrower shall not: (a) engage in or permit any transaction which
could result in a "prohibited transaction" (as such term is defined in Section
406 of ERISA) or in the imposition of an excise tax pursuant to Section 4975 of
the Code; (b) engage in or permit any transaction or other event which could
result in a "reportable event" as such term is defined in Section 4043 of ERISA
for any Borrower Pension Plan; (c) fail to make full payment when due of all
amounts which, under the provisions of any Borrower Benefit Plan, Borrower is
required to pay as contributions thereto; (d) permit to exist any "accumulated
funding deficiency" (as such term is defined in Section 302 of ERISA) in excess
of $25,000.00, whether or not waived, with respect to any Borrower Pension Plan;
(e) fail to make any payments to any "multiemployer plan" that Borrower may be
required to make under any agreement relating to such "multiemployer plan" or
any law pertaining thereto; or (f) terminate any Borrower Pension Plan in a
manner which could result in the imposition of a lien on any property of
Borrower pursuant to Section 4068 of ERISA. Borrower shall not terminate any
Borrower Pension Plan so as to result in any liability to the Pension Benefit
Guaranty Corporation. As used in this Section, all terms enclosed in quotation
marks shall have the meanings set forth in ERISA. Borrower's failure to comply
with any of the foregoing provisions of this Section shall not constitute a
breach of this Agreement or an Event of Default unless such failure has a
Material Adverse Effect.
PAYMENT OF DIVIDENDS. Borrower shall not, directly or indirectly, declare
or pay any dividends on account of any shares of any class of its capital stock
now or hereafter outstanding, or set aside or otherwise deposit or invest any
sums for such purpose, or redeem, retire, defease, purchase or otherwise acquire
any shares of any class of its capital stock (or set aside or otherwise deposit
or invest any sums for such purpose) for any consideration other than common
stock or apply or set apart any sum, or make any other distribution (by
reduction or capital or otherwise) in respect of any such shares or retire
capital equities or other written notices of allocation, or make any other
distribution or allocation of its earnings, surplus or assets to any holder of
stock, allocated equities or other written notices of allocation, or agree to do
any of the foregoing; provided that Borrower may: (a) exercise its option, under
its bylaws, to repurchase a member's shares in accordance with the provisions of
Borrower's bylaws existing on the date hereof (and as amended if CoBank's
written consent is obtained prior to any amendment), or foreclose on Borrower's
security interest in a member's shares granted pursuant to a Feeder Pig Purchase
Agreement or a Weaned Pig Purchase Agreement; (b) distribute patronage-sourced
earnings annually in the form of cash and qualified written notices of
allocation, so long as (i) the cash portion is at least the minimum amount
required to qualify the distribution as a deductible patronage distribution for
federal income tax purposes, and (ii) such written notices constitute equity and
not debt; and (c) during any fiscal year of Borrower, retire written notices of
allocation issued during any previous fiscal year. Notwithstanding the
foregoing, the actions set forth in (a) through (c), may be taken by Borrower
only if, after taking into account any such payments, Borrower shall be in
compliance with each of the financial covenants set forth in Section 8.52 hereof
as of the end of the month during which such payments or refunds will be made.
CHANGE IN FISCAL YEAR. Borrower shall not change its fiscal year from a
year ending on August 31.
APPROVAL OF CHANGES TO PLANS AND SPECIFICATIONS. Borrower shall not
perform and shall not permit the performance of any work pursuant to any
amendment or modification to the Plans and Specifications for a Unit (whether
new or a Unit Under Construction), the Construction Contract for such Unit or
any subcontract for such Unit (each such amendment or modification a "CHANGE
ORDER") during construction of such Unit which would result in additional costs
to construct such Unit in excess of $40,000 or which would result, in
conjunction with other Change Orders, in additional costs to construct such Unit
in excess of $200,000 without the prior written approval of CoBank, which
approval shall not be unreasonably withheld.
CONSTRUCTION AND ARCHITECT'S CONTRACT. Borrower shall not, with respect to
the construction of any Unit (whether new or a Unit Under Construction):
(a) commit any default under the terms of the Construction Contract or the
Architect's Contract, if any, for such Unit; (b) waive any of the obligations of
the counterparty thereunder; (c) do any act which would relieve the General
Contractor from its obligation under such Construction Contract to construct
such Unit, according to the Plans and Specifications for such Unit; (d) do any
act which would relieve the Architect, if any, from its obligations under the
Architect's Contract, if any, with respect to such Unit; or (e) make any
amendment to such Construction Contract or Architect's Contract, if any,
resulting in additional costs which, by themselves or in conjunction with other
amendments, cause the remaining cost of completing such Unit to exceed the
Construction Budget for such Unit.
AMENDMENT OF FEEDER PIG PURCHASE AGREEMENTS, EXCESS FEEDER PIG PURCHASE
AGREEMENTS, WEANED PIG PURCHASE AGREEMENTS, EXCESS WEANED PIG PURCHASE
AGREEMENTS, OR EXCESS CLASS C WEANED PIG PURCHASE AGREEMENTS. Borrower shall
not, without the prior written consent of CoBank, (a) amend, or agree to amend,
the form of the Feeder Pig Purchase Agreements, Excess Feeder Pig Purchase
Agreements, Weaned Pig Purchase Agreements, Excess Weaned Pig Purchase
Agreements, or Excess Class C Weaned Pig Purchase Agreements, or (b) amend,
agree to amend, waive any material provision of, or give its consent with
respect to any material matter under, any of the existing Feeder Pig Purchase
Agreements, Excess Feeder Pig Purchase Agreements, Weaned Pig Purchase
Agreements, Excess Weaned Pig Purchase Agreements, or Excess Class C Weaned Pig
Purchase Agreements. Notwithstanding the foregoing, Borrower may, effective as
of September 1, 1998, (i) discontinue charging the Production Margin under the
Feeder Pig Purchase Agreements and the Weaned Pig Purchase Agreements, and (ii)
base the Operating Cost (as defined in the Feeder Pig Purchase Agreement)
portion of the purchase price for a Qualifying Pig under the Feeder Pig Purchase
Agreements on a rolling 5 month historical basis rather than a rolling 12 month
historical basis.
AMENDMENT OF SWINE AGREEMENT. Borrower shall not, without the prior
written consent of CoBank, amend, or agree to amend, the Swine Agreement, or
waive any material provision of, or give its consent with respect to any
material matter under, the Swine Agreement.
AMENDMENT OF CONSTRUCTION DOCUMENTS. Borrower shall not, without the prior
written consent of CoBank, amend the Construction Schedule, the Construction
Budget, or, except as permitted under Section 8.74 of this Agreement, the Plans
and Specifications for a Unit (whether new or a Unit Under Construction).
AMENDMENT OF ORGANIZATIONAL DOCUMENTS. Borrower shall not, without the
prior written consent of CoBank, amend any provision of its Organizational
Documents affecting (a) the manner in which Borrower's feeder pig and weaned pig
inventory shall be allotted for purchase by Borrower's members, (b) Borrower's
security interest in, or repurchase rights with respect to, the stock in
Borrower owned by each member, and (c) the obligation of the members to enter
into a Feeder Pig Purchase Agreement or a Weaned Pig Purchase Agreement
depending on the class of Borrower's stock owned by such members.
CONTRACT BY BORROWER ONLY WITH ARCHITECT AND GENERAL CONTRACTOR. Borrower
will not enter into any contract for the performance of work on the construction
of any new Unit except with the General Contractor and Architect, if any, for
such Unit, unless Borrower first causes the counterparty to such contract to
execute a consent, in form and substance reasonably satisfactory to CoBank, to
Borrower's collateral assignment of such contract to CoBank and to performance
in favor of CoBank upon the occurrence of an Event of Default.
NO REBATE OF PIG PRODUCTION MARGINS. Borrower shall not rebate to its
members the Pig Production Margins accumulated during Borrower's fiscal year
ended August 31, 1997 but, instead, shall use such accumulated Pig Production
Margins for the purpose required under Section 8.61 hereof.
ARTICLE 13 INDEMNIFICATION
GENERAL; STAMP TAXES; INTANGIBLES TAX. Borrower agrees to indemnify and
hold CoBank and its directors, officers, employees, agents, professional
advisers and representatives ("INDEMNIFIED PARTIES") harmless from and against
any and all claims, damages, losses, liabilities, costs or expenses whatsoever
which CoBank or any other Indemnified Party may incur (or which may be claimed
against any such Indemnified Party by any Person), including reasonable
attorneys' fees incurred by any Indemnified Party, arising out of or resulting
from: (a) the material inaccuracy of any representation or warranty of Borrower
in this Agreement or the other Loan Documents; (b) the material failure of
Borrower to perform or comply with any covenant or obligation of Borrower under
this Agreement or the other Loan Documents; or (c) the exercise by CoBank of any
right or remedy set forth in this Agreement or the other Loan Documents,
provided that Borrower shall have no obligation to indemnify any Indemnified
Party against claims, damages, losses, liabilities, costs or expenses to the
extent that a court of competent jurisdiction renders a final non-appealable
determination that the foregoing are mainly the result of the willful misconduct
or gross negligence of such Indemnified Party. In addition, Borrower agrees to
indemnify and hold the Indemnified Parties harmless from and against any and all
claims, damages, losses, liabilities, costs or expenses whatsoever which CoBank
or any other Indemnified Party may incur (or which may be claimed against any
such Indemnified Party by any Person), including reasonable attorneys' fees
incurred by any Indemnified Party, arising out of or resulting from the
imposition or nonpayment by Borrower of any stamp tax, intangibles tax, or
similar tax imposed by any state, including any amounts owing by virtue of the
assertion that the property valuation used to calculate any such tax was
understated. Borrower shall have the right to assume the defense of any claim
as would give rise to Borrower's indemnification obligation under this Section
with counsel of Borrower's choosing so long as such defense is being diligently
and properly conducted and Borrower shall establish to the Indemnified Party's
reasonable satisfaction that the amount of such claims are not, and will not be,
material in comparison to the liquid and unrestricted assets of Borrower
available to respond to any award which may be granted on account of such claim.
So long as the conditions of the preceding sentence are met, Indemnified Party
shall have no further right to reimbursement of attorneys' fees incurred
thereafter. The obligation to indemnify set forth in this Section shall survive
the termination of this Agreement and other covenants.
INDEMNIFICATION RELATING TO HAZARDOUS SUBSTANCES. Borrower shall not
locate, produce, treat, transport, incorporate, discharge, emit, release,
deposit or dispose of any Hazardous Substance in, upon, under, over or from any
property owned or held by Borrower, except in accordance with all Environmental
Laws and Environmental Regulations; Borrower shall not permit any Hazardous
Substance to be located, produced, treated, transported, incorporated,
discharged, emitted, released, deposited, disposed of or to escape in, upon,
under, over or from any property owned or held by Borrower, except in accordance
with all Environmental Laws and Environmental Regulations; and Borrower shall
comply with all Environmental Laws and Environmental Regulations which are
applicable to such property. If CoBank reasonably believes that an
Environmental Regulation has been violated by Borrower's activities upon
property owned or held by Borrower, and if CoBank so requests, Borrower shall
have prepared an environmental review, audit, assessment and/or report relating
to the subject property, at Borrower's sole cost and expense, by an engineer or
other environmental expert reasonably acceptable to CoBank. Borrower shall
indemnify the Indemnified Parties against, and shall reimburse the Indemnified
Parties for, any and all claims, demands, judgments, penalties, liabilities,
costs, damages and expenses, including court costs and reasonable attorneys'
fees incurred by the Indemnified Parties (prior to trial, at trial and on
appeal) in any action against or involving the Indemnified Parties, resulting
from any breach of the foregoing covenants, or from the discovery of any
Hazardous Substance in, upon, under or over, or emanating from, such property in
violation of Environmental Laws or Environmental Regulations, it being the
intent of Borrower and the Indemnified Parties that the Indemnified Parties
shall have no liability or responsibility for damage or injury to human health,
the environmental or natural resources caused by, for abatement and/or clean-up
of, or otherwise with respect to, Hazardous Substances by virtue of the interest
of CoBank in the property created by any documents securing Bank Debt (including
without limitation the Loan Documents) or as the result of CoBank exercising any
of its rights or remedies with respect thereto, including but not limited to
becoming the owner thereof by foreclosure or conveyance in lieu of foreclosure.
The foregoing covenants of this Section shall be deemed continuing covenants for
the benefit of the Indemnified Parties, and any successors and assigns of the
Indemnified Parties, including but not limited to the holder of any certificate
of purchase, any transferee of the title of CoBank or any subsequent owner of
the property, and shall survive the satisfaction or release of any lien, any
foreclosure of any lien and/or any acquisition of title to the property or any
part thereof by CoBank, or anyone claiming by, through or under CoBank or
Borrower by deed in lieu of foreclosure or otherwise. Any amounts covered by
the foregoing indemnification shall bear interest from the date incurred at the
Default Interest Rate, shall be payable on demand, and shall be secured by the
Security Documents. The indemnification and covenants of this Section shall
survive the termination of this Agreement and other covenants.
ARTICLE 10 EVENTS OF DEFAULT; RIGHTS AND REMEDIES
EVENTS OF DEFAULT. The occurrence of any of the following events (each an
"EVENT OF DEFAULT") shall, at the option of CoBank, make the entire Bank Debt,
including the Notes, immediately due and payable (provided, that in the case of
an Event of Default under Section 9.1(f) all amounts owing under the Notes and
the other Loan Documents shall automatically and immediately become due and
payable without any action by or on behalf of CoBank), and CoBank may exercise
all rights and remedies for the collection of any amounts outstanding hereunder
and take whatever action it deems necessary to secure itself, all without notice
of default, presentment or demand for payment, protest or notice of nonpayment
or dishonor, or other notices or demands of any kind or character:
Failure of Borrower to pay within five (5) days of the date when due,
whether by acceleration or otherwise, any of the Bank Debt in accordance with
this Agreement or the other Loan Documents.
Any representation or warranty set forth in any Loan Document, any
Advance Request, or any Additional Loan Request or in connection with any
transaction contemplated by any such document, shall prove in any material
respect to have been false or misleading when made by Borrower.
Any default by Borrower in the performance or compliance with the
covenants, promises, conditions or provisions of Sections, 8.45, 8.52, 8.59,
8.65, 8.66, 8.68, 8.71, 8.72 , 8.74, or 8.76 through and including 8.78 of this
Agreement.
Any default by Borrower in the performance or compliance with the
covenants, promises, conditions or provisions of Sections 8.38, 8.39, 8.41,
through and including 8.44, 8.46, 8.47 (except as provided in Section 9.1(e)),
8.48 through and including 8.51, 8.53 through and including 8.56, 8.58, 8.60,
8.62, 8.64, 8.67, 8.69, 8.70, 8.73, 8.75, 8.79 or 8.80 of this Agreement, and
such failure continues for five (5) days after Borrower learns of such failure
to comply, whether by Borrower's own discovery or through notice from CoBank.
The failure of Borrower to pay when due, or failure to perform or
observe any other obligation or condition with respect to any of the following
obligations to any Person, beyond any period of grace under the instrument
creating such obligation: (i) any indebtedness for borrowed money or for the
deferred purchase price of property or services, (ii) any obligations under
leases which, if properly characterized under GAAP would be considered to be
capitalized leases, or (iii) any contingent liabilities, such as guaranties, for
the obligations of others relating to indebtedness for borrowed money or for the
deferred purchase price of property or services or relating to obligations under
leases which, if properly characterized under GAAP would be considered to be
capitalized leases; provided that no such failure will be deemed to be an Event
of Default hereunder unless and until the aggregate amount owing under
obligations with respect to which such failures have occurred and are continuing
is at least $50,000.00.
Borrower applies for or consents to the appointment of a trustee or
receiver for any part of its properties; any bankruptcy, reorganization, debt
arrangement, dissolution or liquidation proceeding is commenced or consented to
by Borrower; or any application for appointment of a receiver or a trustee, or
any proceeding for bankruptcy, reorganization, debt management or liquidation is
filed for or commenced against Borrower, and is not withdrawn or dismissed
within sixty (60) days thereafter.
Failure of Borrower to comply with any other provision of this
Agreement or the other Loan Documents not constituting an Event of Default under
any of the preceding provisions of this Section 9.1, and such failure continues
for thirty (30) days after Borrower learns of such failure to comply, whether by
Borrower's own discovery or through notice from CoBank.
In the event a judgment, decree or order for the payment of money
shall be issued against Borrower which are in the aggregate in excess of
$100,000.00 and either (i) enforcement proceedings shall have been instituted to
collect any such judgment, decree, or order, or (ii) any such judgment, decree
or order shall continue in effect unsatisfied for a period of 20 consecutive
days without being vacated, discharged, or stayed pending appeal.
Any material adverse change occurs, as reasonably determined by
CoBank, in Borrower's (i) condition (financial or otherwise), operations,
properties, or business, or (ii) ability to perform its obligations under the
Loan Documents, including without limitation the destruction of a material
portion of any Unit (whether an Existing Unit, a Unit Under Construction or a
new Unit).
Any of the new Units or Units Under Construction encroach over the
Construction Premises or Unit Under Construction Premises, as applicable, or
setback lines or upon any easement, or any structure upon an adjoining property
encroaches upon the Construction Premises or Unit Under Construction Premises,
as applicable, to an extent deemed material by CoBank and for which Borrower is
unable to provide title insurance covering a loss suffered as a result of the
forced removal thereof, and plans for the cure of which encroachment are not
provided to CoBank's satisfaction within twenty (20) days after written notice
thereof from CoBank to Borrower or Borrower shall fail to diligently pursue such
cure to completion within a reasonable time (not to exceed sixty (60) days).
The termination of the Swine Agreement by either Borrower or Farmland.
The termination of any Feeder Pig Purchase Agreement or Weaned Pig
Purchase Agreement or Excess Feeder Pig Purchase Agreement, Excess Weaned Pig
Purchase Agreement or Excess Class C Weaned Pig Purchase Agreement executed in
connection with an Equity Loan, as the case may be, by the party other than
Borrower to such agreement unless Borrower, within 20 days of such failure
provides CoBank with a copy of a new executed Feeder Pig Purchase Agreement,
Weaned Pig Purchase Agreement or Excess Feeder Pig Purchase Agreement, Excess
Weaned Pig Purchase Agreement or Excess Class C Weaned Pig Purchase Agreement,
as applicable, whereby the counterparty has agreed to buy the same number of
feeder pigs or weaned pigs, as applicable, on substantially the same terms and
conditions, as the party who terminated the Feeder Pig Purchase Agreement,
Weaned Pig Purchase Agreement or Excess Feeder Pig Purchase Agreement, Excess
Weaned Pig Purchase Agreement or Excess Class C Weaned Pig Purchase Agreement,
as applicable; provided, however, that the termination of any Excess Feeder Pig
Purchase Agreement, Excess Weaned Pig Purchase Agreement or Excess Class C
Weaned Pig Purchase Agreement executed in connection with an Equity Loan as the
result of the expiration of the ten year term of such agreement or the repayment
of such Equity Loan with the proceeds of the sale of capital stock of Borrower
where the purchasers of such stock have delivered Executed Feeder Pig Purchase
Agreements or Weaned Pig Purchase Agreements as required pursuant to Borrower's
bylaws in effect on the date hereof or as subsequently amended with CoBank's
prior written consent, shall not result in an Event of Default hereunder.
The failure of any party (other than Borrower) to any Feeder Pig
Purchase Agreement or any Weaned Pig Purchase Agreement or Excess Feeder Pig
Purchase Agreement, Excess Weaned Pig Purchase Agreement or Excess Class C
Weaned Pig Purchase Agreement executed in connection with an Equity Loan, as the
case may be, to purchase a Lot (as such term is defined in such agreement) when
such Lot is made available by Borrower to such party, unless Borrower, within 5
days of such failure, sells the Lot which such party failed to purchase at the
same price as such party would have been required to pay to Borrower under such
agreement.
NO ADVANCE. CoBank shall have no obligation to disburse Loan Proceeds if
an Event of Default or a Potential Default shall occur and be continuing.
RIGHT TO COMPLETE CONSTRUCTION. Upon the occurrence of an Event of
Default, CoBank shall have the right, in addition to all other rights and
remedies available to CoBank hereunder or under the other Loan Documents, acting
on its own or through agents of its choice, to enter into possession of all
Construction Premises and Unit Under Construction Premises and perform any and
all work according to the Plans and Specifications for the Units being
constructed thereon, and employ watchmen to protect the Construction Premises
and Unit Under Construction Premises from injury. All reasonable sums so
expended by CoBank shall be deemed to have been paid to, or on behalf of,
Borrower and shall be part of the indebtedness evidenced by the Construction
Loan Note and secured by the Collateral. Effective upon such a default,
Borrower hereby assigns to CoBank, absolutely and not merely as security, all of
Borrower's interest in contracts then in existence relating to the construction
of the Units (including without limitation the Construction Contracts for all
Units being constructed), but this assignment shall not be deemed to impose upon
CoBank any of Borrower's obligations under any such contract. Upon the
occurrence of an Event of Default, Borrower hereby constitutes and appoints
CoBank as Borrower's true and lawful attorney-in-fact, with full power of
substitution, to complete the Units being constructed on all Construction
Premises and Unit Under Construction Premises in the name of Borrower. Borrower
hereby empowers said attorney-in-fact as follows: (a) to use any funds of
Borrower, including any funds remaining in the Construction Account for any such
Unit or any proceeds of the Construction Loan Portion for any such Unit which
may remain undisbursed hereunder, for the purpose of completing such Unit; (b)
to make such additions, changes, and corrections in the Plans and Specifications
for any such Unit as CoBank reasonably believes is necessary or appropriate to
complete such Unit in an economically sound manner; (c) to employ such
contractors, subcontractors, agents, architects, and inspectors as shall be
required for said purposes; (d) to pay, settle, or compromise all existing bills
and claims which may be liens against any of the Construction Premises or Unit
Under Construction Premises or the Units being constructed thereon, or as may be
necessary or desirable for the completion of such Units or for clearance of
title thereto, and all such sums shall be deemed to be Advances under the
Construction Loan and shall be secured by the Collateral; (e) to execute all
applications and certificates in the name of Borrower which may be required by
any of the contracts pertaining to any of the Construction Premises or Unit
Under Construction Premises or the Units to be built thereon; (f) to prosecute
and defend all actions or proceedings in connection with the Construction
Premises or Unit Under Construction Premises or the construction of the Units
thereon and to take such action and require such performance as CoBank deems
necessary under any payment and performance bond or guaranty of completion, if
any; and (g) to do any and every act which Borrower might do on Borrower's own
behalf. It is further understood and agreed that this power of attorney, which
shall be deemed to be a power coupled with an interest, cannot be revoked except
upon payment in full of the Bank Debt to CoBank.
RIGHT TO REQUIRE APPRAISAL. If at any time (a) an Event of Default under
the Loan Documents has occurred, (b) CoBank determines, in its sole judgment,
that the collateral position of CoBank in relation to the credit extended for
the benefit of the Borrower has adversely changed as a consequence of material,
physical or economic impairment of the Collateral or that an appraisal is
necessary to establish the fair market value of the Units in connection with
CoBank's foreclosure on the Units; or (c) CoBank is required by law or
regulation to obtain an appraisal, CoBank may require, or cause, an appraisal
(including a new appraisal where CoBank obtained an appraisal in connection with
the construction of a Unit) of the Units in form and content reasonably
acceptable to CoBank to be prepared at Borrower's expense.
RIGHT TO ADVANCE OR POST FUNDS. Without regard to whether or not an Event
of Default has occurred, where disputes have arisen which, in the good faith
opinion of CoBank, may endanger timely completion of any Unit or fulfillment of
any condition precedent or covenant herein, CoBank may agree to advance funds
for the account of Borrower, and Borrower agrees to reimburse CoBank, upon
demand therefor by CoBank, for any such payments with interest at the rate then
applicable under the Construction Loan Note until the date of reimbursement.
All sums so advanced by CoBank shall be deemed to be Advances under the
Construction Loan and shall be secured by the Collateral.
STOPPAGE OF CONSTRUCTION BY COBANK. Without regard to whether or not an
Event of Default has occurred, where, in CoBank's good faith determination, any
material deviations from the Plans and Specifications for a Unit appear, or
defective or unworkmanlike labor or materials are being used in the construction
of such Unit, or upon receipt of knowledge of encroachments to which CoBank has
not consented, CoBank shall have the right to immediately order stoppage of
construction and demand that the condition be corrected. After issuance of such
an order in writing, no further work shall be done on such Unit without the
prior written consent of CoBank unless and until said condition has been fully
corrected. If corrective action reasonably satisfactory to CoBank is not
commenced within ten (10) days after written demand therefor by CoBank, CoBank
shall have the right but not the obligation to undertake such action at
Borrower's expense in the manner described in Section 9.3 above.
CURING OF DEFAULTS BY DISBURSEMENT. Upon the occurrence of an Event of
Default which may be cured by payment of money and without waiving any right of
acceleration or foreclosure hereunder or under any other Loan Document which
CoBank may have by reason of such default, CoBank shall have the right but not
the obligation to make such payment from the Loan Proceeds thereby curing the
default. If the payment of any such sums results or may, in CoBank's good faith
determination, result in the reduction in the amount of the undisbursed
Construction Loan Portion that is required to complete construction of any Unit
in accordance with the Plans and Specifications for such Unit and pay for any
other costs and expenses contemplated hereunder, the amount which CoBank
determines in good faith to be necessary to provide for such completion shall be
deposited by Borrower into the Construction Account for such Unit within five
(5) days after written demand by CoBank. The amount so deposited will be
disbursed by CoBank before any additional proceeds of the Construction Loan
Portion for such Unit are disbursed.
RIGHTS AND REMEDIES. In addition to the remedies set forth in Sections 9.1
through 9.7 of this Agreement, upon the occurrence of an Event of Default,
CoBank shall be entitled to exercise all the rights and remedies provided in the
Security Documents and other Loan Documents and by any applicable law,
including, without limitation, the Uniform Commercial Code as enacted in the
State of Colorado or the state where the Collateral is located at such time,
whichever provides CoBank with greater rights. Each and every right or remedy
granted to CoBank pursuant to this Agreement and the other Loan Documents, or
allowed CoBank by law or equity, shall be cumulative. Failure or delay on the
part of CoBank to exercise any such right or remedy shall not operate as a
waiver thereof. Any single or partial exercise by CoBank of any such right or
remedy shall not preclude any future exercise thereof or the exercise of any
other right or remedy.
ARTICLE 15 MISCELLANEOUS
COSTS AND EXPENSES. To the extent permitted by law, Borrower agrees to pay
to CoBank, on demand, all out-of-pocket costs and expenses (a) incurred by
CoBank (including, without limitation, the reasonable fees and expenses of
counsel retained by CoBank and, subject to Subsection 11.9.1, the reasonable
fees and expenses of CoBank's Inspector in connection with inspections of all
Construction Premises, and including fees and expenses incurred for consulting,
appraisal, engineering, inspection, and environmental assessment services) in
connection with the preparation, negotiation, and execution of the Loan
Documents and the transactions contemplated thereby and the administration of
the Loans; and (b) incurred by CoBank (including, without limitation, the
reasonable fees and expenses of counsel retained by CoBank) in connection with
the enforcement or protection of CoBank's rights under the Loan Documents upon
the occurrence of an Event of Default or upon the commencement of an action by
Borrower against CoBank (except that if the court makes a specific finding that
Borrower has prevailed on all or substantially all of its claims in such action
brought by Borrower, Borrower shall not be obligated to pay the out-of-pocket
costs and expenses of CoBank in connection with such action), including without
limitation collection of the Loans (regardless of whether such enforcement or
collection is by court action or otherwise).
SERVICE OF PROCESS AND CONSENT TO JURISDICTION. Borrower hereby agrees
that any litigation with respect to this Agreement or to enforce any judgment
obtained against Borrower for breach of this Agreement or under the Notes or
other Loan Documents may be brought in the courts of the State of Colorado and
in the United States District Court for the District of Colorado (if applicable
subject matter jurisdictional requirements are present), as CoBank may elect;
and, by execution and delivery of this Agreement, Borrower irrevocably submits
to such jurisdiction. With respect to litigation concerning this Agreement or
under the Notes or other Loan Documents within the jurisdiction of the courts of
the State of Colorado or the United States District Court for the District of
Colorado, Borrower hereby irrevocably appoints, until January 1, 2011, The
Corporation Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as the agent of
Borrower to receive for and on behalf of Borrower, service of process, which
service may be made by mailing a copy of any summons or other legal process to
Borrower in care of such agent; provided, however, a copy of such materials
shall also be furnished to Borrower pursuant to Section 9.12 hereof. Borrower
agrees that Borrower shall maintain a duly appointed agent in Colorado for
service of summons and other legal process as long as Borrower remains obligated
under this Agreement and shall keep CoBank advised in writing of the identity
and location of such agent. The receipt by such agent and/or by Borrower of
such summons or other legal process in any such litigation shall be deemed
personal service and acceptance by Borrower for all purposes of such litigation.
JURY WAIVER. IT IS MUTUALLY AGREED BY AND BETWEEN COBANK AND BORROWER THAT
THEY EACH WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT
BY EITHER OF THEM AGAINST THE OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT
OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE NOTES, OR THE OTHER LOAN
DOCUMENTS.
NOTICES. All notices, requests and demands required or permitted under the
terms of this Agreement shall be in writing and (a) shall be addressed as set
forth below or at such other address as either party shall designate in writing
and shall be given by personal delivery, telex, telegram, facsimile, overnight
courier or United States mail, certified and return receipt requested, and (b)
shall be deemed to have been given or made: (i) if delivered personally,
immediately upon delivery, (ii) if by telex, telegram or facsimile transmission,
immediately upon sending and upon confirmation of receipt, (iii) if by
nationally recognized overnight courier service with instructions to deliver the
next Business Day, one (1) Business Day after sending, and (iv) if by United
States Mail, certified mail, return receipt requested, five (5) days after
mailing.
BORROWER:
Alliance Farms Cooperative Association
P.O. Box 7305, Dept. 189
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (P.O. Box)
64153 (street address)
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
COBANK:
CoBank, ACB
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Vice President
SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of Borrower, CoBank, and their respective successors and assigns,
except that Borrower may not assign or transfer its rights or obligations
hereunder without the prior written consent of CoBank. CoBank shall, without
the need to obtain Borrower's consent with respect thereto, have the right to
assign all or any portion of its rights and interest in the Loan Documents or
any of the Notes, and any such assignee shall have all the rights and remedies
enjoyed by CoBank.
SEVERABILITY. The invalidity or unenforceability of any provision of this
Agreement or the other Loan Documents shall not affect the remaining portions of
such documents or instruments; in case of such invalidity or unenforceability,
such documents or instruments shall be construed as if such invalid or
unenforceable provisions had not been included therein.
ENTIRE AGREEMENT. This Agreement (together with all exhibits hereto, which
are incorporated herein by this reference) and the other Loan Documents
represent the entire understanding of CoBank and Borrower with respect to the
subject matter hereof and shall replace and supersede any previous agreements of
the parties with respect to the subject matter hereof.
APPLICABLE LAW. To the extent not governed by federal law, this Agreement
and the other Loan Documents, and the rights and obligations of the parties
hereto and thereto shall be governed by and interpreted in accordance with the
internal laws of the State of Colorado, without giving effect to any otherwise
applicable rules concerning conflicts of law.
CAPTIONS. The captions or headings in this Agreement and any table of
contents hereof are for convenience only and in no way define, limit or describe
the scope or intent of any provision of this Agreement.
AMENDMENTS. This Agreement may not be modified or amended unless such
modification or amendment is in writing and is signed by both Borrower and
CoBank. Borrower agrees that it shall reimburse CoBank for all reasonable fees
and expenses incurred by CoBank in retaining outside legal counsel in connection
with any amendment or modification to this Agreement requested by Borrower.
ADDITIONAL COSTS OF MAINTAINING LOAN. Borrower shall pay to CoBank from
time to time such amounts as CoBank reasonably may determine to be necessary to
compensate CoBank for any costs incurred by it which CoBank determines are
attributable to CoBank making or maintaining any Advances hereunder or its
obligation to make any such Advances, or any reduction in any amount receivable
by CoBank under this Agreement or the Notes in respect to any such Advances or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "ADDITIONAL COSTS"), resulting from any change after the
date of this Agreement in United States federal, state, municipal, or foreign
laws or regulations (including Regulation D), or the adoption or making after
such date of any interpretations, directives, or requirements applying to CoBank
of or under any United States federal, state, municipal, or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof ("REGULATORY CHANGE"), which: (a) changes the basis of
taxation of any amounts payable to CoBank under this Agreement or the Notes in
respect of any of such Advances (other than taxes imposed on the overall net
income of CoBank); or (b) imposes or modifies any reserve, special deposit, or
similar requirements relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of, CoBank; or (c) imposes any other
condition affecting this Agreement or the Notes (or any of such extensions of
credit or liabilities). CoBank will notify Borrower of any event occurring
after the date of this Agreement which will entitle CoBank to compensation
pursuant to this Section as promptly as practicable after it obtains knowledge
thereof and determines to request such compensation. CoBank shall include with
such notice, a certificate setting forth in reasonable detail the calculation of
the amount of such compensation. Determinations by CoBank for purposes of this
Section of the effect of any Regulatory Change on the costs of CoBank of making
or maintaining Advances or on amounts receivable by CoBank in respect of
Advances, and of the additional amounts required to compensate CoBank in respect
of any Additional Costs, shall be conclusive absent manifest error, provided
that such determinations are made on a reasonable basis.
CAPITAL REQUIREMENTS. In the event that the introduction of or any change
in (a) any law or regulation, or (b) the judicial, administrative, or other
governmental interpretation of any law or regulation, or (c) compliance by
CoBank or any corporation controlling CoBank with any guideline or request from
any governmental authority (whether or not having the force of law) has the
effect of requiring an increase in the amount of capital required or expected to
be maintained by CoBank or any corporation controlling CoBank, and CoBank
certifies that such increase is based in any part upon CoBank's obligations
hereunder, and other similar obligations, Borrower shall pay to CoBank such
additional amount as shall be certified by CoBank to Borrower to be the net
present value (discounted at the National Variable Rate in effect at that time)
of (a) the amount by which such increase in capital reduces the rate of return
on capital which CoBank could have achieved over the period remaining until the
Maturity Date but for such introduction or change, (b) multiplied by an amount
equal to the Aggregate Revolving Loan Commitment plus the Aggregate Term Loan
Commitment plus the Aggregate Construction Loan Commitment. CoBank will notify
Borrower of any event occurring after the date of this Agreement that will
entitle any CoBank to compensation pursuant to this Section as promptly as
practicable after it obtains knowledge thereof. CoBank shall include with such
notice, a certificate setting forth in reasonable detail the calculation of the
amount of such compensation. Determinations by CoBank for purposes of this
Section of the effect of any increase in the amount of capital required to be
maintained by any CoBank and of the amount of compensation owed to CoBank under
this Section shall be conclusive absent manifest error, provided that such
determinations are made on a reasonable basis.
NO THIRD PARTY BENEFICIARIES All conditions of the obligations of the
CoBank to make Advances pursuant to this Agreement are imposed solely and
exclusively for the benefit of CoBank and its assigns. No other person or
entity shall have standing to require satisfaction of such conditions in
accordance with their terms or be entitled to assume that CoBank will refuse to
make Advances in the absence of strict compliance with any or all of such
conditions. No other person or entity shall, under any circumstances, be deemed
to be a beneficiary of such conditions, any or all of which may be freely waived
in whole or in part by CoBank at any time if, in CoBank's sole discretion,
CoBank deems it advisable to do so.
LIBERAL CONSTRUCTION. This Agreement constitutes a fully negotiated
agreement between commercially sophisticated parties, each assisted by legal
counsel, and shall not be construed and interpreted for or against any party
hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
BORROWER:
ALLIANCE FARMS COOPERATIVE ASSOCIATION
By: ______________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
COBANK:
COBANK, ACB
By: _______________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
TABLE OF CONTENTS
Article 1 Defined Terms...................................3
Article 2 Credit Facilities...............................18
2.1 Financial Accommodations ........................16
2.1.1 Term Loan ....... . . . ..................16.
2.1.2 Revolving Loan ...........................16
2.1.3 Construction Loan ........................17
2.1.4 Future Loans ............................17
Article 3 Purposes.......................................17
3.1 Purpose - Term Loan .............................17
3.2 Purpose - Revolving Loan ........................18
3.3 Purpose - Construction Loan .....................18
3.4 Purpose - Additional Loans ......................18
Article 4 Availability; Manner and Method of Disbursement; Reborrowing
..........................................................18
4.1 Availability ....................................18
4.1.1 Availability of Loan Proceeds Dependent Upon Level of
Equity Contribution ..........................18
4.1.2 Equity Loan Shall Fulfill Requirement For An Equity
Tranche ......................................19
4.2 Reservation Regarding Feeder Pig Units ..........20
4.3 Reservation Regarding Weaned Pig Units ..........21
4.4 Reservation Regarding Retainage .................21
4.5 Manner of Disbursement ..........................21
4.6 Direct Disbursement of Construction Loan Proceeds 22
4.7 Availability for Special Facility ...............23
4.8 Ability to Reborrow Loan Proceeds ...............24
4.9 Draws Under the Letter of Credit ................24
Article 5 Interest And Fees..............................24
5.1 Interest ........................................24
5.1.1 Base Rate Option .........................24
5.1.2 Quoted Rate Option .......................25
5.1.3 Additional Loans .........................25
5.1.4 Requirement that Interest Rate on Term Loan Proceeds be
Fixed ........................................25
5.1.5 Default Interest Rate ....................26
5.1.6 Performance Pricing Adjustments ..........26
5.2 Interest Calculation ............................26
5.3 Fees ............................................26
5.3.1 Revolving Loan Commitment Fee ............26
5.3.2 Construction Loan Commitment Fee .........27
5.3.3 Activation Fee ...........................27
5.3.4 Permanent Funding Fee ....................27
5.3.5 Additional Loans .........................27
Article 6 Payments/Permanent Commitment Reductions......27
6.1 Principal Payments ..............................27
6.1.1 Term Loans ...............................27
6.1.2 Revolving Loan ...........................28
6.1.3 Construction Loan ........................28
6.1.4 Additional Loans .........................28
6.2 Interest Payments ...............................29
6.3 Application of Regular Payments .................29
6.4 Manner of Payment; Payment on Business Days .....29
6.5 Borrower Reduction of Aggregate Revolving Loan Commitment
..............................................29
Article 7 Prepayments....................................30
7.1 Voluntary Prepayments ...........................30
7.2 Funding Losses .............................30
7.3 Minimum Prepayment Amount .......................30
7.4 Application of Prepayments ......................30
Article 8 CoBank Equity..................................31
Article 9 Security.......................................31
9.1 Borrower's Assets ...............................31
Article 10 Representations And Warranties................31
10.1 Organization, Good Standing, Etc ...............31
10.2 Corporate Authority, Due Authorization; Consents 32
10.3 Litigation .....................................32
10.4 No Violations ..................................32
10.5 Binding Agreement ..............................32
10.6 Compliance with Laws ...........................32
10.7 Principal Place of Business ....................33
10.8 Financial Statements; No Material Adverse Change 33
10.9 Payment of Taxes ...............................33
10.10 Licenses, Permits and Approvals ...............33
10.11 Employee Benefit Plans ........................33
10.11.1 Employee Benefit Plans; Multiemployer Plans 33
10.11.2 Pension Benefit Plans ..................34
10.11.3 Prohibited Transactions ................34
10.11.4 Civil/Criminal Action ..................34
10.11.5 Funding ................................35
10.11.6 Compliance With Law ....................35
10.11.7 Multiple Employer Plan .................35
10.11.8 Plan Termination Liability; Multiemployer Plan
Withdrawal Liability .........................35
10.11.9 Pension Plan Termination ...............35
10.11.10 Reportable Event ......................35
10.11.11 Payment of Contributions ..............36
10.11.12 Welfare Benefit Plans .................36
10.12 Equity Investments ............................36
10.13 Real and Personal Property; Title to Real and Personal
Property .....................................36
10.14 Fiscal Year ...................................37
10.15 Material Agreements ...........................37
10.16 Existing Term Loan; Existing Revolving Loan ...37
10.17 Units Under Construction ......................37
10.18 Existing Units ................................38
10.19 Principal Agreements ..........................38
10.20 Water Rights ..................................38
10.21 Intellectual Property .........................38
10.22 Disclosure ....................................38
Article 11 Conditions To Credit Facility And Advances....39
11.1 Conditions to Availability of Credit Facilities 39
11.1.1 Eligibility ............................39
11.1.2 Application; CoBank Equity Interest Purchase
Obligation ...................................39
11.1.3 Loan Documents; and Other Documents .....39
11.1.4 Searches; UCC Filings; Recordings .......39
11.1.5 Title Insurance .........................39
11.1.6 Survey ..................................40
11.1.7 Flood Plain Certification ...............40
11.1.8 Water Rights; Spreading Easements .......40
11.1.9 Approvals ..............................40
11.1.10 Organizational Documents ...............40
11.1.11 Evidence of Corporate Action ...........40
11.1.12 Legal Opinion for Borrower .............41
11.1.13 Evidence of Insurance ..................41
11.1.14 Illinois Responsible Property Transfer Act 41
11.1.15 Copies of Agreements; Swine Agreement Consent 41
11.1.16 No Material Change ....................41
11.1.17 Fees and Expenses ......................41
11.1.18 Appointment of The Corporation Company .41
11.1.19 Further Assurances .....................42
11.2 Conditions to All Advances .....................42
11.2.1 Representations and Warranties ..........42
11.2.2 No Event of Default .....................42
11.2.3 No Material Adverse Change ..............42
11.2.4 Fees and Expenses .......................42
11.2.5 Further Assurances ......................42
11.3 Conditions to Activation of Construction Loan Portion for a
New Unit .....................................42
11.3.1 Activation Request ......................43
11.3.2 Deposit of New Equity Tranche with CoBank 43
11.3.3 Availability of Amounts to be Reserved Against the
Term Loan and Revolving Loan .................43
11.3.4 Survey ..................................43
11.3.5 Water Rights ............................44
11.3.6 Environmental Studies ...................44
11.3.7 Lien on Construction Premises; Title Insurance 44
11.3.8 Spreading Easements; Water Supply Easements; Title
Insurance ....................................44
11.3.9 Construction Budget .....................45
11.3.10 Construction Schedule; Plans and Specifications:
Other Reports ................................45
11.3.11 Appraisal ..............................45
11.3.12 Construction Contract; Architect's Contract 45
11.3.13 Consents to Assignment of Construction Contract and
Architect's Contract .........................45
11.3.14 Affidavit Regarding Commencement of Construction
..............................................46
11.3.15 Permits ................................46
11.3.16 Utilities ..............................46
11.3.17 Roads ..................................46
11.3.18 Illinois Responsible Property Transfer Act 46
11.3.19 Copies of Pig Purchase Agreements ......47
11.3.20 Fees and Expenses ......................47
11.3.21 Local Law Items ........................47
11.4 Conditions to All Advances of the Construction Loan Portion
for a New Unit ...............................47
11.4.1 Activation Notice .......................47
11.4.2 Construction Loan Advance Request .......47
11.4.3 Commence of Construction ................48
11.4.4 Additional Items ........................48
11.4.5 Foundation Endorsement ..................50
11.4.6 Local Law Items .........................50
11.5 Conditions to Final Advance of the Construction Loan Portion
for a New Unit ...............................50
11.5.1 As Built Survey .........................51
11.5.2 Governmental Approval ...................51
11.5.3 Completion Certificate ..................51
11.5.4 Final Lien Waivers ......................51
11.5.5 Final Title Insurance Date Down Endorsement 51
11.5.6 Local Law Items .........................51
11.6 Conditions to Activation of Construction Loan Portion for a
Unit Under Construction ......................51
11.6.1 Activation Request ......................52
11.6.2 Deposit of Equity Tranche with CoBank ...52
11.6.3 Availability of Amounts to be Reserved Against the
Term Loan and Revolving Loan .................52
11.6.4 Survey ..................................52
11.6.5 Environmental Studies ...................52
11.6.6 Construction Budget .....................52
11.6.7 Construction Schedule; Plans and Specifications: Other
Reports ......................................53
11.6.8 Construction Contract; Architect's Contract 53
11.6.9 Permits .................................53
11.6.10 Utilities ..............................53
11.6.11 Roads ..................................53
11.6.12 Fees and Expenses ......................53
11.7 Conditions to All Advances of the Construction Loan Portion
for a Unit Under Construction ................53
11.7.1 Activation Notice .......................54
11.7.2 Construction Loan Advance Request .......54
11.7.3 Commence of Construction ................54
11.7.4 Additional Items ........................54
11.7.5 Foundation Endorsement ..................56
11.8 Conditions to Final Advance of the Construction Loan Portion
for a Unit Under Construction ................56
11.8.1 As Built Survey .........................56
11.8.2 Governmental Approvals ..................56
11.8.3 Completion Certificate ..................56
11.8.4 Final Lien Waivers ......................57
11.8.5 Spreading Easements; Water Supply Easements; Title
Insurance ....................................57
11.8.6 Final Title Insurance Date Down Endorsement 57
11.9 Additional Conditions to Disbursement of Construction Loan
Portion ......................................57
11.9.1 Recommendation of CoBank's Inspector ....57
11.9.2 Construction Loan Portion - Aggregate Amount
Disbursed ....................................58
11.9.3 Unfunded Deficit ........................58
11.9.4 No Notice of Violation ..................58
11.9.5 No Notice of Lien .......................58
11.9.6 Damage to Construction Premises .........59
11.9.7 Stored Materials ........................59
11.9.8 Construction Deadline Date ..............59
11.10 Additional Requirements Affecting Disbursement of
Construction Loan Portion ....................59
11.10.1 Retainage ..............................59
11.10.2 Prior Disbursement of Equity Tranche ...59
11.10.3 Frequency and Minimum Amount of Disbursements 60
11.10.4 Advances Do Not Constitute a Waiver ....60
11.10.5 Deposit by Borrower of Amount of Deficit 60
11.10.6 Ability to Impound Advances ............60
11.11 Conditions to Initial Advance of the Term Loan Takeout
Amount or the Revolving Loan Takeout Amount for a New Unit
or a Unit Under Construction .................60
11.11.1 Conditions to Final Advance of Construction Loan
Portion ......................................61
11.11.2 Maturity of Construction Loan Portion ..61
11.12 Conditions to All Advances of the Term Loan Takeout Amount
or the Revolving Loan Takeout Amount for a Unit and to All
Advances for Working Capital Purposes ........61
11.12.1 Advance Request ........................61
11.12.2 Fees ...................................61
11.12.3 Working Capital Advances - Availability 61
11.13 Conditions to Additional Loan .................61
11.13.1 Additional Loan Request ................61
11.13.2 Notice of Approval of Additional Loan ..62
11.13.3 Representations and Warranties .........62
11.13.4 No Event of Default ....................62
11.13.5 No Material Adverse Change .............62
11.13.6 Fees and Expenses ......................62
11.13.7 MLA Supplement; Further Assurances .....62
11.13.8 Evidence of Corporate Action ...........63
11.14 Additional Disbursement Conditions ............63
11.14.1 Aggregate Commitment Amount ............63
11.14.2 Disbursement Period ...................63
11.14.3 Disbursement Conditions Set Forth in MLA Supplement
..............................................63
Article 12 Affirmative Covenants..........................63
12.1. Books and Records .............................64
12.2. Reports and Notices ...........................64
12.2.1 Annual Financial Statements .............64
12.2.2 Monthly Financial Statements ............64
12.2.3 Management Letters ......................64
12.2.4 Notice of Default .......................64
12.2.5 Notice of Certain Changes ...............64
12.2.6 Notice of Litigation ....................65
12.2.7 Notice of Material Change ...............65
12.2.8 Notice of Environmental Litigation ......65
12.2.9 Adverse Action Regarding Required Licenses 65
12.2.10 Management and Policies ................65
12.2.11 Notification of Claims by Subcontractors and Materialmen
..............................................65
12.2.12 Default Under Principal Agreements .....66
12.2.13 Notice of Intent to Terminate or Termination of
Feeder Pig Purchase Agreement, Excess Pig Purchase
Agreement, Weaned Pig Purchase Agreement, Excess Weaned Pig
Purchase Agreement or Excess Class C Weaned Pig Purchase
Agreement; Notice of Failure to Purchase Lot ...............66
12.2.14 Copies of Feeder Pig Purchase Agreements, Weaned Pig
Purchase Agreements, Excess Weaned Pig Purchase Agreements
and Excess Class C Weaned Pig Purchase Agreements .......66
12.2.15 Copies of Amendments to Construction Documents ......67
12.2.16 Pig Reports ............................67
12.2.17 Business Plan ..........................67
12.2.18 Additional Information .................67
12.3 Eligibility ....................................67
12.4 Maintenance of Existence and Qualification .....67
12.5 Compliance with Legal Requirements and Agreements 67
12.6 Compliance with Environmental Laws .............67
12.7 Use of Loan Proceeds ...........................67
12.8 Taxes ..........................................68
12.9 Insurance ......................................68
12.9.1 Builder's Risk and Hazard ...............68
12.9.2 General .................................68
12.9.3 CoBank May Purchase Insurance ...........69
12.10 Title to Assets and Maintenance ...............69
12.11 Payment of Liabilities ........................70
12.12 Further Assurances ............................70
12.13 Real Property Security ........................70
12.14 Required Licenses; Permits; Etc ...............71
12.15 ERISA .........................................71
12.16 Financial Covenants ...........................71
12.16.1 Total Equity to Total Assets ...........71
12.16.2 Debt Service Coverage Ratio ............72
12.17 Inspection ....................................72
12.18 Annual Livestock Audit ........................72
12.19 Construction ..................................72
12.20 Lists of Contractors, Subcontractors and Materialmen 73
12.21 Correction of Defects and Noncompliance with Plans and
Specifications ...............................74
12.22 Access to Construction Premises and Unit Under Construction
Premises; Cooperation with CoBank's Inspector 74
12.23 Deposit by Borrower of Amount of Deficit ......74
12.24 Performance Under Principal Agreements ........75
12.25 Replacement of Colorado Breeding Stock ........75
Article 13 Negative Covenants............................75
13.1 Borrowing ......................................75
13.2 No Other Businesses ............................75
13.3 Liens ..........................................75
13.4 Sale of Assets .................................77
13.5 Liabilities of Others ..........................77
13.6 Payments on Indebtedness .......................78
13.7 Merger; Acquisitions; Business Form; Etc .......78
13.8 Loans, Advances and Investments ................78
13.9 Transactions With Related Parties ..............78
13.10 ERISA .........................................78
13.11 Payment of Dividends ..........................79
13.12 Change in Fiscal Year .........................79
13.13 Approval of Changes to Plans and Specifications 80
13.14 Construction and Architect's Contract .........80
13.15 Amendment of Feeder Pig Purchase Agreements, Excess Feeder
Pig Purchase Agreements, Weaned Pig Purchase Agreements,
Excess Weaned Pig Purchase Agreements, or Excess Class C
Weaned Pig Purchase Agreements ...............80
13.16 Amendment of Swine Agreement ..................80
13.17 Amendment of Construction Documents ...........81
13.18 Amendment of Organizational Documents .........81
13.19 Contract by Borrower Only With Architect and General
Contractor ...................................81
13.20 No Rebate of Pig Production Margins ...........81
Article 14 Indemnification...............................81
14.1 General; Stamp Taxes; Intangibles Tax ..........81
14.2 Indemnification Relating to Hazardous Substances 82
Article 15 Events Of Default; Rights And Remedies........83
15.1 Events of Default ..............................83
15.2 No Advances ....................................85
15.3 Right to Complete Construction .................86
15.4 Right to Require Appraisal .....................86
15.5 Right to Advance or Post Funds .................87
15.6 Stoppage of Construction by CoBank .............87
15.7 Curing of Defaults by Disbursement .............87
15.8 Rights and Remedies ............................88
Article 16 Miscellaneous.................................88
16.1 Costs and Expenses .............................88
16.2 Service of Process and Consent to Jurisdiction .88
16.3 Jury Waiver ....................................89
16.4 Notices ........................................89
16.4.1 Borrower ................................89
16.4.2 CoBank ..................................89
16.5 Successors and Assigns .........................90
16.6 Severability ...................................90
16.7 Entire Agreement ...............................90
16.8 Applicable Law .................................90
16.9 Captions .......................................90
16.10 Amendments ....................................90
16.11 Additional Costs of Maintaining Loan ..........90
16.12 Capital Requirements ..........................91
16.13 No Third Party Beneficiaries ..................91
16.14 Liberal Construction ..........................92
EXHIBITS
Exhibit 1.3 Activation Request Form
Exhibit 1.4 Additional Colorado Property
Exhibit 1.6 Additional Construction Loan Note Form
Exhibit 1.14 Additional Revolving Loan Note Form
Exhibit 1.16 Additional Term Loan Note Form
Exhibit 1.52 Compliance Certificate
Exhibit 1.76 Excess Feeder Pig Purchase Agreements
Exhibit 1.77 Excess Class C Weaned Pig Purchase Agreements
Exhibit 1.78 Excess Weaned Pig Purchase Agreements
Exhibit 1.90 (a), (b) and(c) Feeder Pig Purchase Agreements
Exhibit 1.172 (a) & (b) Weaned Pig Purchase Agreements
Exhibit 2.1.4(a) MLA Supplement Form (Additional Term Loan)
Exhibit 2.1.4(b) MLA Supplement Form (Additional Revolving Loan)
Exhibit 2.1.4(c) MLA Supplement Form (Additional Construction Loan)
Exhibit 4.1.2 Subordination Agreement
Exhibit 10.3 Litigation
Exhibit 10.10 Required Licenses
Exhibit 10.11 Employee Benefit Plans; Multiemployer Plans
Exhibit 10.13 Borrower's Real Property and Permitted
Encumbrances
Exhibit 10.15 Material Agreements
Exhibit 10.17 Units Under Construction
Exhibit 10.20 Water Rights
Exhibit 10.21 Intellectual Property
Exhibit 11.4.2 Construction Loan Advance Request Form
Exhibit 11.12.1 Advance Request Form
Exhibit 11.13.1(a) Additional Loan Request Form (Term)
Exhibit 11.13.1(b) Additional Loan Request Form (Revolving)
Exhibit 11.13.1(c) Additional Loan Request Form (Construction)
Exhibit 12.2.16 Pig Reports