Exhibit 10.23
REVOLVING LINE OF CREDIT NOTE
$1,190,500.00 Effective on the Conversion Date
1. FOR VALUE RECEIVED, SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa
limited liability company (the "Borrower"), hereby promises to pay to the order
of COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH (the "Bank"), the principal sum of One Million One Hundred
Ninety Thousand Five Hundred and No/100ths ($1,190,500.00) Dollars, or so much
thereof as may be advanced to, or for the benefit of, the Borrower and be
outstanding, with interest thereon, to be computed on each advance from the date
of its disbursement as set forth herein pursuant to that certain Credit
Agreement dated May 2, 2007, by and between the Borrower, the Bank and the other
commercial, banking or financial institutions from time to time parties thereto,
and AgStar Financial Services, PCA, as agent (the "Agent") (as it may be
amended, modified, supplemented, extended or restated from time to time, the
"Credit Agreement"), and which remains unpaid, in lawful money of the United
States and immediately available funds. This Revolving Line of Credit Note is
issued pursuant to the terms and provisions of the Credit Agreement and is
entitled to all of the benefits provided for in the Credit Agreement. All
capitalized terms used and not defined herein shall have the meanings assigned
to them in the Credit Agreement.
2. The outstanding principal balance of this Revolving Line of Credit Note
shall bear interest at a variable rate determined by Agent to be 295 basis
points above the LIBOR Rate in effect on the date of the first Advance made to
Borrower under this Revolving Line of Credit Note or as otherwise provided for
in the Credit Agreement. Notwithstanding the foregoing, the rate of interest
under this Revolving Line of Credit Note shall be subject to adjusted by Agent
pursuant to the provisions of the Credit Agreement and this Revolving Line of
Credit Note.
3. The "LIBOR Rate" (London Interbank Offered Rate) means the rate (rounded
upward to the nearest sixteenth and adjusted for reserves required on
Eurocurrency Liabilities (as hereinafter defined) for banks subject to FRB
Regulation D (as hereinafter defined) or required by any other federal law or
regulation), quoted by the British Bankers Association (the "BBA") at 11:00 a.m.
London time two Banking Days (as hereinafter defined) before the commencement of
the Interest Period for the offering of U.S. Dollar deposits in the London
interbank market for an Interest Period of one month, as published by Bloomberg
or another major information vendor listed on BBA's official website. "Banking
Day" shall mean a day on which Agent is open for business, dealings in U.S.
Dollar deposits are being carried out in the London interbank market, and banks
are open for business in New York City and London, England. "Eurocurrency
Liabilities" has the meaning as set forth in FRB Regulation D. "FRB Regulation
D" means Regulation D as promulgated by the Board of Governors of the Federal
Reserve System, 12 C.F.R. Part 204, as amended from time to time.
4. The rate of interest due hereunder shall initially be determined as of
the Availability Date and shall thereafter be adjusted, as and when, the LIBOR
Rate changes. All such adjustments to the rate of interest shall be made and
become effective as of the first day of the month following the date of any
change in the LIBOR Rate and shall remain in effect until and including the day
immediately preceding the next such adjustment (each such day hereinafter being
referred to as an "Adjustment Date"). All such adjustments to said rate shall be
made and become effective as of the Adjustment Date, and said rate as adjusted
shall remain in effect until and including the day
immediately preceding the next Adjustment Date. Interest hereunder shall be
computed on the basis of a year of three hundred sixty-five (365) days, but
charged for actual days principal is outstanding.
5. Notwithstanding anything to the contrary in the Credit Agreement and
this Revolving Line of Credit Note, no advances will be made to the Borrower
under this Revolving Line of Credit Note until the Availability Date as
specified in the Credit Agreement.
6. Beginning on the first (1st) day of the first calendar month following
the Availability Date and continuing on the first (1st) day of each succeeding
month thereafter until the Revolving Line of Credit Loan Maturity Date, the
Borrower shall make monthly payments of accrued interest.
7. ▇▇▇▇▇▇▇▇ agrees to pay to the Agent for the account of the Bank an
Unused Commitment Fee on the average daily unused portion of Bank's Revolving
Line of Credit Commitment from the Availability Date until the Revolving Line of
Credit Loan Maturity Date at the rate of 0.35% per annum, payable in arrears in
quarterly installments payable on the first (1st) day of each third month after
the Availability Date.
8. The outstanding principal balance hereof, together with all accrued
interest, if not paid sooner, shall be due and payable in full on the 364th day
from the Conversion Date (the "Revolving Line of Credit Loan Maturity Date").
9. All payments and prepayments shall, at the option of the Agent for the
account of the Bank, be applied first to any costs of collection, second to any
late charges, third to accrued interest and the remainder thereof to principal.
10. This Revolving Line of Credit Note may be prepaid at any time, at the
option of the Borrower, either in whole or in part, subject to the obligation of
the Borrower to compensate the Bank for any loss, cost or expense as a result of
such prepayment as set forth in the Credit Agreement. This Revolving Line of
Credit Note is subject to mandatory prepayment, at the option of the Agent, as
provided in the Credit Agreement.
11. In addition to the rights and remedies set forth in the Credit
Agreement: (i) if the Borrower fails to make any payment to Bank when due under
this Revolving Line of Credit Note, then at Agent's option in each instance,
such obligation or payment shall bear interest from the date due to the date
paid at 2% per annum in excess of the rate of interest that would otherwise be
applicable to such obligation or payment under this Revolving Line of Credit
Note; (ii) upon the occurrence and during the continuance of an Event of Default
beyond any applicable cure period, if any, at Agent's option in each instance,
the unpaid balances under this Revolving Line of Credit Note shall bear interest
from the date of the Event of Default or such later date as Agent shall elect at
2% per annum in excess of the rate(s) of interest that would otherwise be in
effect under the terms of this Revolving Line of Credit Note; (iii) after the
Revolving Loan Maturity Date, whether by reason of acceleration or otherwise,
the unpaid principal balance of this Revolving Line of Credit Note (including
without limitation, principal, interest, fees and expenses) shall automatically
bear interest at 2% per annum in excess of the rate of interest that would
otherwise be in effect under this Revolving Line of Credit Note. Interest
payable at the Default Rate shall be payable from time to time on demand or, if
not sooner demanded, on the last day of each calendar month.
12. If the Borrower fails to make any payment to Agent within ten (10) days
of the due
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date thereof, the Borrower shall pay, in addition to such amount, a late charge
equal to five percent (5%) of the amount of such payment.
13. This Revolving Line of Credit Note is secured by, among other
instruments, a Mortgage, Security Agreement and Financing Statement covering
various parcels of real property, fixtures, and personal property located in
Pottawattamie County, Iowa. In the event any such security is found to be
invalid for whatever reason as provided for in the Credit Agreement, such
invalidity shall constitute an event of default hereunder. All of the
agreements, conditions, covenants, provisions, and stipulations contained in the
Mortgage, or any instrument securing this Revolving Line of Credit Note are
hereby made a part of this Revolving Line of Credit Note to the same extent and
with the same force and effect as if they were fully set forth herein. It is
agreed that time is of the essence of this Revolving Line of Credit Note.
14. Upon the occurrence at any time of an Event of Default or at any time
thereafter, the outstanding principal balance hereof plus accrued interest
hereon plus all other amounts due hereunder shall, at the option of the Agent,
be immediately due and payable, without notice or demand and Agent shall be
entitled to exercise all remedies provided in this Revolving Line of Credit
Note, the Credit Agreement, or any of the Loan Documents.
15. Upon the occurrence at any time of an Event of Default or at any time
thereafter, the Bank shall have the right to set off any and all amounts due
hereunder by the Borrower to the Bank against any indebtedness or obligation of
the Bank to the Borrower.
16. The Borrower promises to pay all reasonable costs of collection of this
Revolving Line of Credit Note, including, but not limited to, reasonable
attorneys' fees paid or incurred by the Agent on account of such collection,
whether or not suit is filed with respect thereto and whether or not such costs
are paid or incurred, or to be paid or incurred, prior to or after the entry of
judgment.
17. Demand, presentment, protest and notice of nonpayment and dishonor of
this Revolving Line of Credit Note are hereby waived.
18. This Revolving Line of Credit Note shall be governed by and construed
in accordance with the laws of the State of Minnesota.
19. The Borrower hereby irrevocably submits to the jurisdiction of any
Minnesota state court or federal court over any action or proceeding arising out
of or relating to this Revolving Lien of Credit Note, the Credit Agreement and
any instrument, agreement or document related hereto or thereto, and the
Borrower hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Minnesota state or federal court.
The Borrower hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. Nothing in this Revolving Line of Credit Note shall affect the right
of the Agent to bring any action or proceeding against the Borrower or its
property in the courts of any other jurisdiction to the extent permitted by law.
{SIGNATURE PAGE TO FOLLOW THIS PAGE}
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SIGNATURE PAGE TO
REVOLVING LINE OF CREDIT NOTE
EXECUTED BY
SOUTHWEST IOWA RENEWABLE ENERGY, LLC
DATED: Effective on the Conversion Date
SOUTHWEST IOWA RENEWABLE ENERGY, LLC an Iowa
limited liability company
By /s/ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇
Its: General Manager
By /s/ ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇
Its: Board Chairman
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