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Investors complaint against Northern Beef Packers in bankruptcy proceedings

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This is a copy of the complaint filed by two rounds of EB-5 immigrant investors (LP 6 and LP 9) against Northern Beef Packers as part of the shuttered plant's bankruptcy proceedings. The complaint and subsequent credit agreements (exhibits A and C) detailed how the plant took three founds of EB-5 immigrant investor money.
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1 UNITED STATES BANKRUPTCY COURT DISTRICT OF SOUTH DAKOTA In re: ) Bankr. No. 13-10118 ) Chapter 11 NORTHERN BEEF PACKERS ) LIMITED PARTNERSHIP ) Tax ID/EIN: 26-2530200 ) Adversary No. ) Debtor. ) ) SDIF LIMITED PARTNERSHIP 6 AND ) COMPLAINT TO DETERMINE SDIF LIMITED PARTNERSHIP 9, ) VALIDITY, EXTENT AND South Dakota Limited Partnerships, ) PRIORITY OF LIENS ) Plaintiffs, ) ) vs. ) ) NORTHERN BEEF PACKERS ) LIMITED PARTNERSHIP; ) WHITE OAK GLOBAL ADVISORS, LLC; ) OFFICIAL COMMITTEE OF ) UNSECURED CREDITORS OF NORTHERN ) BEEF PACKERS LIMITED PARTNERSHIP; ) SCOTT OLSON DIGGING, INC.; ) EPOCH STAR LIMITED; ) NORTHWEST PIPE FITTINGS, INC.; ) HOUSE OF GLASS, INC.; ) CLIMATE MAKERS, INC.; ) DIAMOND VOGEL PAINTS; ) AXIS CAPITAL, INC.; ) BEST BUSINESS PRODUCTS; ) CRYOVAC, INC.; ) FARNAM STREET FINANCIAL, INC.; ) LENOVO FINANCIAL SERVICES; ) MARCO; ) VAR RESOURCES; ) US BANK EQUIPMENT FINANCE; ) JARVIS PRODUCTS CORPORATION; ) DAEWOO INTERNATIONAL AMERICA ) CORP.; ) TWIN CITY HIDE, INC.; ) WELLS FARGO BANK, NATIONAL ) ASSOCIATION ; ) MADGID GLOVE & SAFETY MFG. CO. LLC;) HARMS OIL; ) WESTERN EQUIPMENT FINANCE; ) A-D SERVICES INC.; ) ROCKTENN CP LLC, ) BROWN COUNTY, SOUTH DAKOTA, ) Defendants. Case: 13-01016 Document: 1 Filed: 11/05/13 Page 1 of 7
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Page 1: Investors complaint against Northern Beef Packers in bankruptcy proceedings

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UNITED STATES BANKRUPTCY COURT DISTRICT OF SOUTH DAKOTA

In re: ) Bankr. No. 13-10118 ) Chapter 11 NORTHERN BEEF PACKERS ) LIMITED PARTNERSHIP ) Tax ID/EIN: 26-2530200 ) Adversary No. ) Debtor. ) ) SDIF LIMITED PARTNERSHIP 6 AND ) COMPLAINT TO DETERMINE SDIF LIMITED PARTNERSHIP 9, ) VALIDITY, EXTENT AND South Dakota Limited Partnerships, ) PRIORITY OF LIENS ) Plaintiffs, ) ) vs. ) ) NORTHERN BEEF PACKERS ) LIMITED PARTNERSHIP; ) WHITE OAK GLOBAL ADVISORS, LLC; ) OFFICIAL COMMITTEE OF ) UNSECURED CREDITORS OF NORTHERN ) BEEF PACKERS LIMITED PARTNERSHIP; ) SCOTT OLSON DIGGING, INC.; ) EPOCH STAR LIMITED; ) NORTHWEST PIPE FITTINGS, INC.; ) HOUSE OF GLASS, INC.; ) CLIMATE MAKERS, INC.; ) DIAMOND VOGEL PAINTS; ) AXIS CAPITAL, INC.; ) BEST BUSINESS PRODUCTS; ) CRYOVAC, INC.; ) FARNAM STREET FINANCIAL, INC.; ) LENOVO FINANCIAL SERVICES; ) MARCO; ) VAR RESOURCES; ) US BANK EQUIPMENT FINANCE; ) JARVIS PRODUCTS CORPORATION; ) DAEWOO INTERNATIONAL AMERICA ) CORP.; ) TWIN CITY HIDE, INC.; ) WELLS FARGO BANK, NATIONAL ) ASSOCIATION ; ) MADGID GLOVE & SAFETY MFG. CO. LLC;) HARMS OIL; ) WESTERN EQUIPMENT FINANCE; ) A-D SERVICES INC.; ) ROCKTENN CP LLC, ) BROWN COUNTY, SOUTH DAKOTA, ) Defendants.

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Come now the Plaintiffs herein, SDIF Limited Partnership 6 and SDIF Limited

Partnership 9, sometimes hereinafter referred to as “Plaintiffs,” and state and allege as follows: 1. This is an action to determine the validity, extent and priority of liens in real and

personal property of the Debtor, Northern Beef Packers Limited Partnership, sometimes hereinafter referred to as the “Debtor.” The Court has jurisdiction over this adversary matter pursuant to 28 U.S.C. § 157 and 1334. This case arises under 11 U.S.C. § 506, 507 and 510, and is brought as an adversary proceeding under Bankruptcy Rule 7001 et seq. This is a core proceeding under 28 U.S.C. § 157(b)(2)(K).

2. The Debtor herein filed a voluntary petition for relief under 11 U.S.C. Chapter 11 of the Bankruptcy Code on July 19, 2013, which case is pending before this Court. The Debtor continues as a debtor-in-possession of the property of the Bankruptcy estate.

3. Included in the property of the estate is real property legally described as follows:

Parcel I: NBP Lagoon Lot 1 in the Southwest Quarter of Section 7, Township 122 North, Range 63 West of the 5th P.M., according to the plat thereof of record, Brown County, South Dakota; and Parcel II: Blocks 1, 2, 3, 4, 5, and Lots 1, 2, and 3, Block 6, H & S First Subdivision in the North Half of Section 36, Township 123 North, Range 64 West of the 5th P.M., according to the plat thereof of record, Brown County, South Dakota.

Said real property is not the subject of any motion for relief of the automatic stay or for abandonment, and remains the property of the estate under the jurisdiction of this Court.

4. Also included in property of the estate is personal property generally described as follows:

All equipment, inventory including but not limited to livestock, machinery, furniture, furnishings, accounts receivables, supplies, cash, inventory, and vehicles, now owned or hereafter acquired, by borrower, a South Dakota Limited Partnership, engaged in the operation of beef plant and other related ancillary structures, together with all accessions, parts, attachments, accessories, or appurtenances, appertaining, attached, kept, used or intended for use, and all substitutions, improvements, replacements and additions: all accounts and general intangibles, now existing or subsequently arising; all interests of Borrower [Debtor], now existing or subsequently arising, from the sale or rendition of services to its customers which give rise to any accounts or general intangibles now held or hereafter acquired; all contract rights, now existing or subsequently arising, all chattel paper, documents or instruments relating to accounts; all fixtures now or hereafter affixed, attached or located on the real property described in the Mortgage of even date unless listed as an exception; and the proceeds, products and accessions of and to any and all of the foregoing.

5. On or about November 4, 2010, the Debtor entered into a Credit Agreement with

SDIF Limited Partnership 6 for the purpose of obtaining a loan or loans in the principal sum of up to Sixty Million Dollars ($60,000,000.00). A true and correct copy of such Credit Agreement

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is marked Exhibit A, attached hereto and incorporated herein by this reference. In order to evidence the loan or loans to be made pursuant to said Credit Agreement, the Debtor made in favor of, executed and delivered to SDIF Limited Partnership 6 its Promissory Note, also dated as of November 4, 2010 in the original principal sum of up to Sixty Million Dollars ($60,000,000.00). A true and correct copy of said Promissory Note is marked Exhibit B, attached hereto and incorporated herein by this reference.

6. The Credit Agreement contemplated investments by up to One Hundred Twenty

(120) investors participating in the EB-5 Program more specifically known as the Immigration and Nationality Act, § 203(b)(5) et seq. Said Credit Agreement was subsequently amended by an Amended Credit Agreement dated March 4, 2011, a true and correct copy of which is marked Exhibit C, attached hereto and incorporated herein by this reference.

7. By Agreement dated as of the 30th day of August, 2011, the Debtor and both

Plaintiffs agreed that of the Sixty Million and 00/100 Dollars ($60,000,000.00) of loans to be made to Debtor, Thirty-Five Million Dollars ($35,000,000.00) would be made by SDIF Limited Partnership 6, and Twenty-Five Million Dollars ($25,000,000.00) would be made by SDIF Limited Partnership 9. As of the date of filing the indebtedness due SDIF Limited Partnership 6 was $34,837,890.41 and the indebtedness due SDIF Limited Partnership 9 was $25,605,613.23.

8. In order to secure the indebtedness due Plaintiffs, the Debtor made in favor of,

executed and delivered a Mortgage—One Hundred Eighty Day Redemption encumbering all the real property described in paragraph 3 above. Such Mortgage was dated November 4, 2010 and recorded as Instrument No. 201029445 in Book 546 of Mortgages, page 290 with the Register of Deeds of Brown County, South Dakota. This Mortgage named SDIF Limited Partnership 6 as Mortgagee. A true and correct copy of said Mortgage is marked Exhibit D, attached hereto and incorporated herein by this reference. In order to further secure such indebtedness, the Debtor made in favor of, executed and delivered a Mortgage—One Hundred Eighty Day Redemption encumbering all the real property described in paragraph 3 above. Such Mortgage was dated July 3, 2012 and recorded as Instrument No. 201204794 in Book 656 of Mortgages, page 388 with the Register of Deeds of Brown County, South Dakota. This Mortgage named SDIF Limited Partnership 9 as Mortgagee. A true and correct copy of said Mortgage is marked Exhibit E, attached hereto and incorporated herein by this reference.

9. To further secure repayment of the indebtedness due Plaintiff, Debtor made in

favor of, executed and delivered to Plaintiffs a Security Agreement dated November 4, 2010. A true and correct copy of said Security Agreement is marked Exhibit F, attached hereto and incorporated herein by this reference. By the terms of said Security Agreement, Debtor granted to Plaintiffs a security interest in all the personal property described in paragraph 4 above. As shown by the filing information maintained in the Office of the Secretary of State, State of South Dakota, attached hereto collectively as Exhibit G, the security interest granted by said Security Agreement is a perfected security interest.

10. In addition to the previously described real estate mortgages and security

agreement, Plaintiffs are the assignees of that certain Collateral Real Estate Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated March 18, 2010, originally made by Debtor in favor of EPOCH Star Limited and the Corrective and Confirmatory Mortgage—Collateral Real Estate Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated July 9, 2010, made by the Debtor in favor of EPOCH Star Limited, all pursuant to assignment dated November 4, 2010.

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11. By virtue of the Mortgages made in favor of Plaintiffs, and the Mortgage subsequently assigned to Plaintiffs, Plaintiffs are, subject to the matters set forth in paragraphs 12 and 13 below, the holders of the first priority mortgage lien upon the real property of the Debtor described in paragraph 3 above. Further, by virtue of the Security Agreement made in favor of Plaintiffs, and the Security Agreement assigned to Plaintiffs, and subject to the matters identified in paragraph 15 below, Plaintiffs are the holders of the first priority security interest in the personal property of the Debtors described in paragraph 4 above.

12. Defendant White Oak Global Advisors, LLC is the holder of a Mortgage—One

Hundred Eighty Day Redemption Mortgage and Security Agreement with Assignment of Rents and Fixture Filing encumbering all of the real and personal property described in paragraphs 3 and 4 above securing payment of Thirty-Five Million Dollars ($35,000,000.00) plus interest, which Mortgage would constitute a second lien priority, junior to that of the Plaintiffs. The Debtor, Plaintiffs and White Oak Global Advisors, LLC have, however, entered into certain Subordination Agreements by the terms of which Plaintiffs have subordinated their first priority position in favor of White Oak Global Advisors, LLC up to but not in excess of the sum of Forty-Five Million Dollars ($45,000,000.00). True and correct copies of such Subordination Agreements are marked Exhibit H, attached hereby. By the terms of the Stipulation entered into among the Debtor, White Oak Global Advisors, LLC and the Official Committee of Unsecured Creditors of Northern Beef Packers Limited Partnership, the claims and rights on account of indebtedness in excess of Forty Seven Million Dollars ($47,000,000.00) held by White Oak Global Advisors, LLC are to be assigned to an agent of the Official Committee of Unsecured Creditors of Northern Beef Packers Limited Partnership.

13. Scott Olson Digging, Inc. claims a mechanic’s lien on the real property described

in paragraph 3 above by virtue of the filing of a Mechanic’s Lien Statement dated March 26, 2008 pursuant to which a lien in the amount of Two Million One Hundred Fourteen Thousand Nine Hundred Seventy Five and 49/100 Dollars ($2,114,975.49) as of November 29, 2007 is claimed. Upon liquidation of said claim, and in the event any sums are found to be due Scott Olson Digging, Inc., and if it is determined that a lien was properly preserved by the timely filing of a proper mechanic’s lien statement as required by statute, any sums so secured by said mechanic’s lien statement would have a priority over the Mortgages held by Plaintiffs and White Oak Global Advisors, LLC.

14. Northwest Pipe Fittings, Inc. is the holder of a judgment in the amount of

$6,609.84, plus costs which was docketed May 30, 2013. House of Glass, Inc. is the holder of a judgment in the amount of $3,655.57, plus costs and interests docketed July 11, 2013. Diamond Vogel Paints has caused to be filed a lien statement claiming a mechanic’s lien in the amount of $2,819.00 which lien claim was filed for record May 3, 2013. Climate Makers, Inc., by and through its agent Perfekt, Inc. has caused to be filed a lien statement claiming a mechanic’s lien in the amount of $4,300.00 which lien claim was filed for record July 10, 2013. Any claim or interest held by Northwest Pipe Fittings, Inc.; House of Glass, Inc.; Diamond Vogel Paints; and Climate Makers, Inc. by and through its agent Perfekt, Inc. are junior and inferior to the liens of Plaintiff and Defendant White Oak against the real property described in paragraph 3 hereof.

15. It appears from a search of the Uniform Commercial Code filing records

maintained in the Office of the South Dakota Secretary of State, that the following parties may hold or claim a security interest in personal property of the Debtor. To the extent such filings evidence properly perfected purchase money security interests or leases of property, the same would be prior and superior to the security interests held by Plaintiffs. It appears that the following are the parties claiming leases or a security interest in personal property of the Debtor:

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A. Leases

(1) Axis Capital, Inc. holds a lease, reflected in the filing of a UCC-1 on May 8, 2012. The property leased consists of a 2008 OTTA Tractor. According to the Debtor the balance due as of the date of filing was $35,364.05;

(2) Axis Capital, Inc. holds a lease reflected in the filing of a UCC-1 November 6, 2012. The property leased consists of equipment from MBA and Lift Solutions. According to the Debtor the balance due as of the date of filing was $187,844.80;

(3) Best Business Products is the holder of a lease for which no UCC-1 filing was made. The property leased consists of a Canon Imageprofgraf 710 printer. According to the Debtor the balance due as of the date of filing was $1,549.34;

(4) Cryovac, Inc., a subsidiary of Sealed Air Corporation, holds a lease reflected in the filing of a UCC-1 on August 25, 2008. The property leased consists of 5 rotary vacuum chamber machines, 60 product supports, 5 45-KVA transformers, 2 semi-automatic packaging machines, 1 spare part kit for UV3500, 8 manual bag loaders, 7 manual bag dispensers, 1 manual bag dispenser of a different type, 24 tape wind up units, 5 vacuum installation kits, 16 Busch vacuum pumps, 6 Busch blower systems, 5 variable speed shrink tunnels, and 1 spare parts kit. According to the Debtor the balance due as of the date of filing was $2,104,779.94;

(5) Farnam Street Financial, Inc. holds a lease reflected in the filing of a UCC-1 filing dated January 17, 2012. The property leased consists of miscellaneous equipment from various vendors including a heating system, office furniture, GP enhancement, handheld with software and related equipment, security system, jug racks, associated software, flexwatch and other equipment related to the foregoing. According to the Debtor the balance due as of the date of filing was not known;

(6) Lenovo Financial Services holds a lease reflected in the filing of UCC-1 filings dated March 28, 2012 and March 31, 2012. The property leased consists of computer equipment. According to the Debtor the balance due as of the date of filing was $204,564.89;

(7) MARCO is the holder of a lease for which no UCC-1 filing was made. The property leased consists of 9 Canon IR-4035 copiers. According to the Debtor the balance due as of the date of filing was $97,916.74;

(8) VAR Resources is the holder of a lease for which no UCC-1 filing was made. The property leased consists of computer software. According to the Debtor the balance due as of the date of filing was $20,505.84;

(9) US Bank Equipment Finance holds a lease reflected in the filing of a UCC-1 dated January 3, 2013. The property leased consists of copiers. According to the Debtor the balance due as of the date of filing was $20,243.92.

B. Security Interests

(1) Daewoo International America Corp. claims a security interest evidenced by a

UCC-1 filing dated April 29, 2013 covering accounts receivable, inventory, contract rights, chattel paper, and general intangibles. The Debtor’s schedule reflects that the indebtedness was for inventory financing and that there are neither inventory nor accounts receivable included in the estate;

(2) Twin City Hide, Inc. claims a security interest evidenced by a UCC-1 filing dated April 26, 2013. The Debtor’s schedule reflects that no sums are due

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Twin City Hide, Inc. as of the date of filing; (3) Wells Fargo Bank, National Association claims a security interest evidenced

by a UCC-1 dated December 20, 2012 covering accounts receivable, inventory and equipment. Debtor’s schedules reflect that Wells Fargo Bank, National Association had no outstanding balance due it as of the date of filing;

(4) White Oak Global Advisors, LLC as agent claims a security interest evidenced by filings of UCC-1 dated September 7, 2012 and November 26, 2012 covering all assets. This creditor has filed a Proof of Claim;

(5) MADGID Glove & Safety Mfg. Co. LLC claims a security interest evidenced by a UCC-1 filing dated October 3, 2012 covering inventory consisting of work clothes, safety clothing and safety products. According to the Debtor’s schedules the balance due as of the date of filing was $58,872.96;

(6) Harms Oil claims a security interest evidenced by a UCC-1 filing dated March 12, 2012 covering general equipment as the collateral. According to the Debtor’s schedule no indebtedness was owed Harms Oil at the date of filing;

(7) Western Equipment Finance claims a security interest evidenced by a UCC-1 filing dated June 6, 2012 covering inventory. According to the Debtor’s schedule the balance due as of the date of filing was $2,727.53;

(8) A-D Services Inc. claims a security interest evidenced by a UCC-1 filing dated May 29, 2012 covering equipment. The Debtor’s schedule reflects no indebtedness was due A-D Services Inc. at the date of filing;

(9) EPOCH Star Limited claims a security interest evidenced by UCC-1 filings dated April 23, 2010 and August 2, 2010 covering all assets. The Debtor’s schedule reflects no indebtedness was due EPOCH Star Limited as there was an assignment of EPOCH Star Limited’s secured position to Plaintiffs;

(10) ROCKTENN CP LLC claims a security interest evidenced by UCC-1 filings dated January 13, 2012 and February 9, 2012 covering equipment. The Debtor’s schedule reflects the balance due ROCKTENN as of the date of filing was $88,229.91;

(11) Jarvis Products Corporation claims a security interest evidenced by a UCC-1 filing dated January 17, 2012 covering accounts receivable, inventory, contract rights, chattel paper, and general intangibles. According to the Debtor’s schedule no indebtedness was owed Jarvis Products Corporation at the date of filing.

16. Current information provided by Clark Title Company reflects that real property taxes for the year 2012, payable in 2013, and special assessments, are due Brown County, South Dakota. The statutory lien securing payment of such real property taxes and special assessments may not be disturbed or discharged by these proceedings.

WHEREFORE, Plaintiffs pray that the Court enter its judgment providing relief as

follows: 1. That the Court determine that the mortgage liens and security interests of the

Plaintiffs herein are the first and prior liens securing the sum of $60,443,503.64, and are prior and superior to the liens and claims of all other parties, including claims of the Official Committee of Unsecured Creditors of Northern Beef Packers Limited Partnership, save and except the claims of: White Oak Global Advisors, LLC to the extent of up to Forty-Five Million Dollars ($45,000,000.00); the interests of Scott Olson Digging, Inc. when the amount of any such claim is determined and in the event that a mechanic’s lien was properly preserved by the

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timely filing of a proper mechanic’s lien statement; by the claims of personal property lessors listed as defendants herein who are owed sums by the Debtor pursuant to valid leases; and to the security interests of creditors owed sums by the Debtor at the date of filing who hold properly perfected security interests entitled to purchase money priority in personal property of the Debtor; all pursuant to 11 U.S.C. § 506, 507 and 510; and

2. That the Court determine that the claims or interests of Diamond Vogel Paints;

Climate Makers, Inc.; Northwest Pipe Fittings, Inc.; and House of Glass, Inc. are junior and inferior to all other claims against the real property owned by the Debtor; and

3. That the Court determine the property subject to valid leases between the Debtor

and the lessors identified in Section 15. A. herein, and the sums due from the Debtor to each of such lessors;

4. That the Court determine whether the secured claims of any of the creditors

listed in Section 15. B. herein are property perfected purchase money security interests; and as to any such properly perfected purchase money security interests, the sum due such creditor;

5. That the Court order, adjudge and decree that Daewoo International America

Corp.; Twin City Hide, Inc.; Wells Fargo Bank, National Association; Harms Oil; A-D Services, Inc.; and EPOCH Star Limited are currently owed no indebtedness and do not have secured positions with respect to any property of the Debtor; and

6. That the Court grant such other, further or different relief as it may be just, proper

and equitable.

Dated this 5th day of November, 2013.

DAVENPORT, EVANS, HURWITZ &

SMITH, L.L.P. /s/ Robert E. Hayes

Robert E. Hayes Keith A. Gauer 206 West 14th Street P.O. Box 1030 Sioux Falls, SD 57101-1030 (605) 336-2880

Attorneys for SDIF Limited Partnership 6 and SDIF Limited Partnership 9

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,. t' .•

'·· ,. CREDIT AGREEMENT

This Credit Agreement (the "Agreement") is !lllllle and entered inlo as ofiile 4th of Noveml:er, 2010 by and between Nortbem Bea..fPaclrers, Lfmited Fartoersbip, a South Dakota limiied partoersbip, (lrereina:fter :refumd to as "Bm:rower") of38749 1351b Street, Ahenleen, South Dakota, 57401 and SDlF J:.imii<o..rl Pa.."!DerShip 6 of 416 Prodnclion Street Norlb, Abctrleen, South Dakota57401, {hereinsf\er refemd to as "Lender"):

WEEREAS, Borrower bas reqoested a Loan, as h=i:oafter defined, from Lemler in the }lrioclpal smount of up to Sixty Million Dollex:; ($60,000,000) to be filndBd by up to One Eimdred Twem:y (120) investors (EB-5 lll'Vestms) part!J:ipl!!ing In the EB-5 Program, m= specifically koQWJl as the Immig<Slan aJUl Nationslliy Act, Section 203(b )(5) et seq. (the "El>-5 Program"); eod

VIEEREAS, Lender bas egro..ed to mnlre the Loan to Botrower upon and subject to the teims and conditions set :furth herein aod the other docnments eviden.."ing and seou."iog the loan.

NOW, THER:EFORB, in cansidetation of the coverumts and Sjltee!D.ents cnniained hereir. the receipt and sofficlency of -which, when perful:med, are hereby et:l:nowledged, the BOJ:TOWer and Lender hereby agree as :follows:

SECl'IONl Loan Terms

1.1 Description of the Proiect. The projeot involved is a beef packing plaot c=tly under conStrUction io Aberdeen, Sonth bakota (Piojec!) loeo.-ted on land eescrlbed in Exluoit A uttaohe~ h<:m:to ((.and), which is 1o he owned and operated by Borrower

1.2 Lcm. B=wer aclmowiedges and agrees that lfu: Loao will be funded by Lender soleiy Ji:om investment proceeds arising out of the EB-5 Prognun and that the Lender shall have D!l obligation 1ll make or i\md the Loan unless and lliJl:il it receives investment proceeds arising out of the EB-5 Progt2!Il. Subject to the te!IIlS of fbls Agreemenl:, Lender agrellS to make the proceeds arising out of the EB-5 Prognun a\laih!ble to Bcn:ower as fullows:

A. Lender shallloilll up to Sixty Million DollE::s ($60,000,000) (the "Loan") as the same is taised pursaam to the offering b--ing eOll!incted by Lender llll.der tha EB-5 jltogrnm. The J<arties egree 1het Lender mey make the :first Lollll. disbUISelllent to Bo:rrawe.t only siler Lender bas xcceived funds 1lDlle1: the EB-5 Program in an iniiial. lllllOll!!t of Five Mllllon Dollro:s ($5,000,000). Disbtttsements sball· be !lllllle solely at Lender's cllscretioD-

-~ -·---···--- ···- ---- ......

!3. All subsequent ilisbursements or instlilll:nonts sblllJ be in the !l!inilllum amount of Three Million Dollats ($3,000,000) or higher,

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unless otherwise egxe.."t! upon by the parties. Said disborsements shall be mf!& BS soon prnt:!ieal.l!fter: Leoder has temcd said $tllli5.

1.3. Promissory Note, The Loan shall be evidenced by a promillsoey nOte in a :ii:u:m l!lld subsllmce smisi'actoty to Lender rmd its legal counsel (the "Promissory Note") attached as Exhibit B.

1.4 Collateral. A1l collateral fur the p!l)'lll.C!ll:, of all amoU!l!s 1lllll: become due !md owing to L.otlder under this Agreement, the Promissoxy :!:<ate, the S=rity Agreement, the Jvf.ort,aage, the Collateral Assignment and the Pledge Agreement, Bormwer agrees to grnnl Lender a security interest in and a fust l.!eo, {Stlbject to subordinations , to Leaders in. the amoU!ll3 listed on Exhibit C), upon all assets IWW cwned o:r berein.a:fter acquired by BOJ:rower, including, but not limited to, ell equipment, furniture, iixtures, s=unt; receivable, livestock, SUJljllies, cash aad inventory, es wcl.l as a mortgage an the reel estllte together wilh all tenements, hereditaments and appurtl:nlml:e!l ihemo and aJt fud:utes, equ!J?!Ilml aod improvemcnls attaellcd thereto or located thereon (the "R.cal Es!B!t"), !lild ell additions and proceeds thereof. Said securlty i:nl:m:sts shell be evidenced l!lld perfuct:ed as provided in a Security Ag=incnt (the "Sec:uri!y") and mcn:igage {the "Mortgage") in a fmm ami substance stisfactory to Lemler and i:ts legal couoseL ln addition to the fust lien. as specified herein, all ownership shares of Bonowerche!d by General Partoer and Lin:ill:ed Pmtners shall be pledged as adc'JjtJ~ col!.areral as outlined in. the Pledge Agtoement. Far purposes of this Agreement, the Secudty Agreea:teat, the l>Aartgege. the Collatarel Agteement, the Promissory Nan., and the Pledge Agreement are collectively ref=ed to herein as ihe "Loan Dot:U!llellls. ~

1.5 Security Interest Lender shell be gran!ed a :first se::urlty interesl in all colieteral of the plant es set fotth in. Exmclt D, (subject 1D subordin.a!ions as set furth in Exhlbit C only), and all ownership shams of BOl!OWer held by G~ Partner aod Limited Partoers as set forth. in tbe PJ.e.dge Agreement

1,5 Th!:m. The te.on of tb.e Lo>m sllall be for five (5) years from 'the date the initial L= Disbmsement is made, (hereinafter referred to as "Initial Funding Date,") The Promissory Note shall run fur soid five yem and be do: and payable in. full :five yem :from the Initial Funding Date, .

1.7 Interesi. Interest, shall •= at a yearly xate of Three and. One-hal!Perwnt (3.5%) on aey !Ulpllid principal belaoce until the fiill amount of prin.ci:pal bas be-...n peid. Tntetest shall be computed on a 365-day year. I:f nat paid when due, then the prineiPal and interest :rete sball BC~:roe at the defuult.tate.

1.& Origjnation Fee. Borrower shall pey an origination fee of One Percent (1 %) of 1he amount borrowed up to $60,000,000. The otigina!ion fue shall be paid after eacll disbursetlll:Ilt of the Loan on the emonnt disbursed as described in Section 1.2 above.

------- ---- --- 1.9 Fees. B<mower shlil.l-pey iut reasoMble atiorney fees and- ocists ineurred by Lender in furtherance of this Loan including, but not 1±miled to p~ ell documents and completing all items neeesssry :for closing this txansaction. Borrower shall also be responsible

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for any fees illcw:red by Lender .in mon.l1orlng all disblmements of :funds and lillY fu rmy costs incurred ill obf:l!lning investor s:ppiov!!ls. These fees include, but am not limited to my attomey fees paid to Siegel, Bamett & Schutz, LL.P. or o1her attomeys, any· b1lllk fees c:bBrged, consulting. mon!torillg or other fees cllllzged by any entity hired by Borrower or Landor to monitor 1he construction and DJl"ration of said beef plant during 1he tmn of ti:ils Agreement. Slrid fees shl!ll be paid fmm·diately upon dema;nd by Lender. Lender sball be entitl.ei! to wUbhnld from any disbtJ:tSem<mt any amonnt whicll it antici:pa!los will be charged fbrougbout tbe 1ifu oftlris Loan.

1.10 Prepayment. No prepaymeo.t Shall be an owed until an EB-5 investors have :receiv~d conditional :removal of an conditions a:ffi!ctblg tbeir pen:tlllllem xesideney statns by 1he D~t of Immigration or as agreed tlpOll by tbe parties. Once conditions.! temoval of an sueh condi:lions for eaoh individual investor bas b>..en reeeived. _piepayment shall be allowed m1he llis:retion of Borrower. Plepayments shall be applied first against any accrued and unpaid inte....,st, then any remaining sum sbs.ll be s:pplied against tbe UIIJlald prlncipal balance. Sucb prepaymen:ts sball not relieve Borrower ofth:: obligation to conlinue to_roake any regularly St:heduled or required repsymon! of1he outstRnding indebtedn<:SE bereund..-r.

1.11 Spending of Funds. Booower agrees and wm<mts that all mey it receives pursuant to this Agreement, shall be invested in 1he .fuljeot and only med for advancement of tbe Project, whlcll incindes paying off of any construction loans, satist'ying liens, p=hl!ses of equipment, supplies, land, building, or operation of 1he Project Saitl funds sbaU not be used :for any other purpose unless agreed upon ill writing by 1he pru:ties.

1.12 Title ~e. 'Within thirty (30) days fullowing the execution cif this Agreement, Borrower agrees to provide 1he Lender a ti'tle nommitmeat. obtained tb.1·ough Clark Tille Company, issued by a :reputable title~ company licensed to do bnsiness in 1he Stare of South Dakota and agreeing to insure title to 1he Real Estate in Lender in !be aggregate amaunt of Sixty Million Dollar.; ($6{),000,000), subject only to casonn::ntll and restrictions of record as of !h~ dete of 'this Agreemc<lt, liens fur unpaid real es!ate taxes fur cal entiaT years 2009 and 2010, if any, (fue "Title !nsonmce"), any lv.!echanic's Lien set forth an Exhibit C. BorroW<>~' sball canse socll policy of Title 'IDsurance to be issued to Lender at Borrower's sole cost and e><pense on or before the initial disbursement of the Lean as described in Section t.2(A) above.

1.13 El3-5 Program. The parties acknowledge that Borrowtll' bas previously received equity funding from. Sev=y (70) EB-5 Equity fuvestm:s (EB-5 Equ1ty Funding). The pa..1:ies further agree and understand that 1he original EB-5 Equity Funding in the Project is separate and disfulct from the Loan. The Loan is additional iimding to obtrun up to Sixty Million Dalkrs ($60,000,000) in OJ:W funds, which meet 1he Loan Criteria Program set forth by the United S!ales Departmem of Immigration and quall:!'ying for 1he EB-5 Program. ·

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SECriON2 Representations and WotTI!Ilfies of Borrower

Borrower represents and wammts to Lendef thBt each of the statemonts contained in this Sootion 2 is true, correct and complele as of the date of this Agreement, and will be i:nre, correct and COll:lplele at and as tile credit or loan proceeds are made !Mrllable to BOIIOW<:r. Bonower llClmowledges 1hBt Lender io relying en ot!Ch of the re.pre,.=etrtations and wammties set forth in t:bis Section 2 as a materiel inducement to enter into and petfm:m. :its obligations under this Agreement. Unless othe!wise ~y 1imill:O, all of tb.e tepmetrtafioPS and wmnnties set forth herein shall S!Jrl'lve execution and deliva.')' of fbe Promissory Note, other Loan Documents, and funding o:f the Loan. heo!ding!y, Bouower hereby represents end Vll!IIl3ll!s as follows:

2.1 Or!!!!ni?l!tion and Good Sttmding of Borrower. Botrower is a Sonth. Dakota limited partnership, duly ~d, vclldly e:dsting and in good standing under the laws of the State of South. Dalrots, and is anfucri2ed to do business in each state in whicb tb.e natme of il:3 business :requires that it be so licensed.

2.2 fl:othocitv ofBmrowe:r. Bocrower bas full right, power and authority necessary to ex""nte, en1er into and deliver t:bis Agreement, fbe l?romlssoty Note md the Loan Documents, and to perform the obligations requited to be observed and performed by the Boirower. The entry Urt:o t:bis Agreement, the Promissory Nate and tb.e Loan DQCllll16!l!s by Borrower and its pe:rfoz:maoce bas been approved by all necessery action, including the · approval o:f its partoers in acconlance with its Cerlifice..te of Limitad l'artnersblp, Partoetsblp Agreement, and the laws ofthc Stote ofSon!b.Dakota.

2.3 Valid Agreements. This Agreeme:nt, the Promissory Note, and the Loan Docum.ents wlJ!, wb.ei:J. fue same are signed and dellVered m Lender, constitute legal, valid and biJ:uling agreements fuat are en:iim::eahle against Borrower-in accordance with their !:elms.

2.4 Non-Conttayention. The =ution, delivery and peotformance of this Agree:nen:t, the Promissory Note and tire Loan Doom:nellt5 will nnt, with or wi!hollt nntice or

· tbe passage of fune, violllre any provision or an.y :reguin:mem of law or of an.y con1l:actual obligation to which Borrower is bound (except allfue obligations owed by Bormwerm Senior Lencl::r) and will oot :result in or require fue cres:tiOil or imposition of any lien OllllllY of fue properties on:eveo:ues ofBoz:rower plliSU!!llt to any _provision or requirement of applicable la:w or any cool:!:actual obligntion which Borrower or its properties are or Ill!l.Y in fue future be botti:Jd.

2.5 Third. Pllrty Consents. No consent, anthorlzatiml or waiver by or filing with any governmellllll agency or any otlru person, :fitm or entity not a party to '!his Agre.."ll!ent is reouired to be obtained or made by BotraWer in co=tian wifb.fue exel:tltion or petfun:oance 0 ( thiB .~~t, .. 1he P!OJ;llisl!Q!Y _l{_gn;. the Loan_];lo;::Jl!!!~n!§._oc.!!le o.QeeiYan.~- or

· --p;,cro;;:.,;,;,., of any obligation, unde:rlnking or ag:reemeut required to be observed or performed by the Borrower herem or tile:rein.

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2..6 Taxes, E=pt liS ill !be 1lllpl!id tllxe5 disclosed in Exm"bit E, BC!ti'OWel' :has :filed or =sed to be filed all fudend. lill!le, calmly and localtm:: n:bJ:tns "Which are required to be :filed, and have pcid or caused to be paid all pexsClllll property, !eal est1rte, income or oilier taxes, E!ld all specifl assessments, witbholdiog, conttibutions and govemmenml cberges and levies (collectiYa!y and individually refom:d to l!ll "Taxes") a5 shown on S1l!::b. ICturos and reports, or on any assessment received by Borrower, to ihe exl!:nt that such T= have become due C=ept fur =Taxes not delinquent and Ta:o:s being coil1l:Stl:d as prcivided by law, in good faith and by app.roprlate legal proceedings for wbinh ad~ reserves lmve been provided, and as to which oo foreclosuno, sale or similar ptoceedlngs have been commenced). .

2.. 7 Lienll. None.of !be Borrower's assets, properties or :real es!llle is SllbjectiD any !llOl'l:g!lg<;. pledge or other lien, encumbtancc or scenrlty interest, =Pt as set furlh in Exhibit c.

2..8 · Ad~ Contra$. Nciilier Bortower nor any of its properties· are a party to ·any agreeroent or instrutneat, (except all !be Loan DocumentB enteted into with Senior Lender), or subject to my cberter or oilier restriction, or any judgment, decree or order ofany comt or governmeni:El body, which could rea.'tlllJlhly be expected to l:mve a ma:tm:\111 adverse effect an ilie ability of Borrower to observe or pcriilnn any of :its ohl.igations, nndertakings or agreements under thls Agl:=ent, the 'l'rt>nDssoiy Note, or tho Loan DoOll!llo::z!s. BCJJ:I'O'Wer does not have knowledge of or notice that is in defmili an !be ped'mm!!llCe, observao<:e or fulfillment of any obligation, covenanfs, or conditions =tai.ned in any such agreemeot, instrument, cberter or oilier :restrlclion, judgment, d~ or order of any comt or govetDmentnl body, which could be reesonsbly ""JlOOted to llltve Sllllb. an effect.

2.9 Litigation. Except as disclosed in Exlrlb:it F, no litigatiOll, including derlvative actiCDS, arbitration proceedings, law snitS, governmental. proceedings or investigations, are .Pending or, to ilie )O!owledge of Borrower., 1:hrW:cned agsinst Borrow=

2..10 Sell. Convev and Tmnsfet. Except for sales, conveyances or ttansti:rs on commercially reasonable t=!lllS for adequate consideration made in ilie ordinary course of Borrower's bnsiness, BorrQWer has not sold, conveyed, lzaJJSferred, disposed of, or oilierwise , further encumbered. my of its properties or assets within the last ninety (90) days. ·

2..11 Lswful1nterest. The amaunts to be received by Leorler as inle . .'-est payments under !be Promissory Note 2JUJ/or oilier Loan Documents are lawful and are neither usw::ious nor illegal under tho laws of 1lle Sta:te t>f South Dakota.

. . 2.12 Environmental Como!iacce. Borrower is in compliance wilb. all envi:romnental

nrotection laws in each jadsdiction where it is presently doing business, except for a small diesel fuel spill, !be :remediation of wbicl]. is in ilie ctttrent budget and will be remedied.

. _Bo=:wer has nQt :r;;.::civ<;d m:ry )vn!te,umtic~)';n_lll, I!IU'. g_ov~_f!@CY ;r:eg~~-amr scticn or investigation, pending or c:ontewpla!:ed, per!Blning to any alleged YiolErtion of any eii'iironmental protectlon laws wilh Iespeet to m:ry relll or personal property presently ar previously owned by Botnlwer, ·

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2.13 ~ Borrower bas iiil:filled all obllgatians UDd..-r fue Employee Retirement Jncome Security Act of 1974, as amended, in ~ect of any emplo:r:e bcneiitpllm maintained for employees of Bo=wer, no repor!Ehle eVent or :prohibfn:d lr!lilSal:tion has occm:red with r~ to any suCh e!l:\i)loyee b=ftt plan, end all such employea benefit plans me fully fnruled.

2.14 Compliance wjth Laws. Bonower is not in violation of any federel, state or mnnicipal statute, law, anline:oce, code, notiCe, rnle or regulation, DOr has BOI!OWI:r :fil.iled to obtain any license, permit, frnnelrlse or otller govemmentel. authorization necessary to fue owne<Sbip of i:ts properties or fue caodnct of i:ts bnsin••ses in a 1imely = tD fue exteot fuet sncib. license, permit, frattclrlse or other governmental anfuori'Zlrtion has become obtailleble.

2.15 Defmilin. Borrower is not in deiimlt of any cc=t, agillemect or unded2Jcing to whlcb it .is a party, nor has any e~ent or cironmStance occ:urred wlrich, but fur the passage of time or the· giving 9f notice, or both, would coostitnm an event of ~t thereunder or an, Bveol ofDefault, as defined in Section 4 of this .Ag=ment. ,

2.16 Pericits. Borrower has obtained all n=sary local, siate and lbder.ll permits end licenses fur collS!ructlon of its project and fucilities to the extent 1fult such p=its and licenses are obll!inahle.

2.17 Pagkers and Stockvards Act 1921. Borrower has conm!ied in all marecia! respects with the Packers anii Stoclcyards f...ct, 1921, as lll:llellded (J U.s.C. § 181-229) end )he regulations promulgmed theretmd.e:r so that tho trust fur the benefit of ell unpllid cash sellers or. growers of beef thereby shall not arise in CO!lllection with its purcbe.se of lll!Y such liv.estock. :BorroWer bas not taken any action which wonld impair its ability to benefit from the trust established un!ler. such Act in connection with any sales by the Borrom:r of beef covered by suchAct ·

2.18 Job CJ:ea!ion. Borrower represents and wa:o:ants that it will meet all job creation requjremBnts I!B UldiC111ed by the direct end indlte<:t multiplier setfurth by lNS, which tl1mSlates to Three (3) jobs :fur every Five Hundred Tboummd D<lllms ($500,000) loaned to the Project. A toll!lloan amollllt of up to $60,000,000. will tequire the crea1inn of Three Sixty Hundred (360) jobs. Borrower agrees it v.ill meet the job ctea!ioc. of Three Hundred Sixty (360) jobs witbin Two and One-half (2.5) y= after the Initial Funding Date, as rettuired by the Ell-S Program. The parties agreetha:ttbese jobs nre in eddition to the origirulljob crea!ion required by the equity funding already in plane.

2.19 FirstSe:les ofLimi!edP!li'tnef!l.

--· _ .Priorto.Jhe date .of this A~-~·eh.PfJlle .. S~Y.r;llly. O.Q) EJ}.S l;!lv"l!!9r,;_@-5 Equity Investors) pun:hased and received one (I) Limited l?artnetshlp Unit in Borrower for Five Ht.wilred Thollsaod Dollms (.$500,000} per t1IJit. Neither the BOll'OWlOr, General Partner or any effiliate of BOIIOwer or Oenersl. Partner has any obligation to :repurohaser or redeem

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any offue Borrower's Limited Parlneishlp Units issued to the 2008 EB-S Equity Jnvestms by BoJ:rom:r nor any fmbilil;y conlingent or oiherwise to the 2008 EB-5 Equity Jn:vestor.s jlU!Stlalit to any agreement or lli!der Law. In addition, Borrower has made DO tepreSelltation, wmllllty or covenant to any 2008 BB-5 Equity Investor or c1her !bird party coMerning the completion date, ecst of c=trru::tion of 1he imprcvemeots, the date of cornmenrement of Bcn:rcwer's business es a pa.ckf:r, the property, the llU!Ilhcr of jobs to be ere!itecl, the continnaJ operational costs of the COlllJ)llD.'Y once the plant bes been completed. El=pt fur any rights provided under 1he Laws of the State of Smt<h Dakata, the Limited Partners of Borrower (aotb:lg individually or collectively) are not entitled to remove or :repfac<> the General Partner or any additional General Partnem.

2.20 Eooch Star.

No further borrowing shall be mede with Epoch Sll\r.

2.21 Plans and Specifi!JR!ians .

. The Plans =l Speaifu:atioDS are complete l!!ld adequate fur the Canst:ruction of the improvements. The Plans and Specifications have been approved by all' Gover:nmcn!al Ant.horities baying or claiming jurisdiction over lhe Prope..ty l!!ld by the beneficiary of escl:t restcictive _covenant affecting the Property whose approval is required. To the best of Borrower's .knowledge, the Improvcmenm, if coostructed substanfuilly In accordance with the Plans and Specifu:ations, will fully comply wilh all applicable Laws, im:luding those laws ~to access andfm:ili!ies fur disabled persons.

2.22 Utilities.

All utility servi= uecessary for the Coostructicn of the Improvements and the opcrafum tboreof for their intended purposes are available at the boundaries of the Land (or will be a:vldiable upon the completion of work show.a in the Plans and Specifications), including telepbane service, cable television, water supply, storm ll!ld sanltmy sewer facilities, nal:oiil1 gas and electric mcili:lies, inolnding cabling for telephonic and dElta commllllicstioo, and the capacity m semi f!Ild recei-ve wireless commllllicalion.

The :futegcing representations and v.'l!ll'anties are in addition to the representations and wammties of 1he BOIIower set furtlt in 1he Promissory Note em! c1her Loan Documents, all of which are .incorpotated herein by this refereooa, and ill of wbicll sball be deemed to have

· been made by Borrower at l!!ld as of 1he dlrte hereof wilh 1he same :fol'l!e and effect as. if the same were set fOrth in the body of this Agreemtllt in their ecli:rety, em! all· suoh representations and wmant!es shall illrewise 811rYive lhe funding of the Loan and the execution and delivery of the Promissory Note and other Loan Do=ents.

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SECTIONS Presentations nnd Wammtles ofLeoder

Lender represents and warrants to Borrower 1hat each of tbe stat:e.ments contained in this Section 3 is iroe, comet and complete as ofth" dille of this Agxeemeut and will be true, co=ct and CO!l1plete in all mal:erlal :respects at or 1lp0ll eacb. disl:n:u:semec.t of the Loan being made to BontJwer. Lender ankoowledges tbltt Borrower is relying oc. each of the r.>prereotations and wmanties set forth in this Secti0ll3 as a o:mterlal inducement to enter ic.lo and perlbml i1l! obligatiollS wder this Agre:mem. Unless otherwise expessly liz:nlzeO, all of fue repxesenlll!ions and warranties set furth herein. sball survive execution l!Ild delivery oftbe Promissory Note and the funding of the Loan. Accordingly, Lender hereby .represents and wammte as :5:>llows:

3.1 Organizmion and Good S!andlng of Leader. Lender is a South Dakota li:rnited partnership dc.ly organized, validly existing and in good standing onder the laWB of the Stille of South Dakota and is anfum:ized to do lmsiness in South Dalrota.

3.2 Authority of Lender. Loader has full right, power and au±b.orlty c.ecessary to execute, enter into and deliver this Agreement and all other Loan Docum~ots and to p:rform tho obligations required to be observed and per:forroed by L<>oder.

3.3 Valid Agreement. This Agreement and all oiher Loan Do=ents will, whee. the same are signed and delivered to Borrower, oonstitute legal, valid and binding agreements that are enfurceahle agalllSt Lender in ac<:ardancs with their terms.

3.4 Non-Coatrsvention. The exeOO!!on, delivery and petfurmrulce of this Agreement and any Loan Documents will not, with or withont notice or the pessege of time, Yioll!!e any provision or any o:mtedol :rcquiroment of Jaw or of any lllJ!!erial contrru::tual obligation to which Lander is b!llllJd.

3.5 Thirsl Pmv Consents. Except as pr<;>v.ided in this Agreement, oo CODSent, alllhoti2lltion or waiver by or filing with aoy govemmental egeocy or any other person, fum or entity not a pa.rcy to this Agr-...ement is required to be obtained or made by Lender in connection with the execution or perfil= of this Agreet!lllDl:, or the observance or peril:mn!ulce of any obligation, underlaki:ng or agreement required to be observed or perforroed by Lender here!:n orthat1>in.

3.6 EB-5 Program. The Loan qualliied under the EB·5 Progmm as an !:nvestment that woc.ld enable Lender to obtain immigra:rt ~.ses for its limited partners.

SECTION4 Afllrmatl1'c Covowurts :md Agreements

Until all oblig;.tioils of Borrower hereunder and lllldettlie Promissory Note ro:e paid and fulfilled in full, the Bottower agrees to comply wi:th esch of the following covenants and cooditions:

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-·-'--·---

4.1 Comttmetiog.

Borrower shcll cause ell of said funds advl!llced to be ...0 in con.struc!icn of the improvements at the beef pl1111t ro be commenced and praseauted in a .gnod and workmanlike manner and shell cause the same to be complered in aoeonlam:e with the Project Schedule and substantielly and in accordance with the plans and ~calion• sud Bud!!~'!;

A.n:ht!cot or Gerum!l Conl!actor shall deliver to Lender witllin ten(! 0) days of eao.q calendar montll end comme.ocing witlJ the mantli io which the fust advance of Ibis lcmn is made, a written montllly stnlus report regarding the sialus of construction of improvements and any deviations .from the proje<>t sc!Jedule and if dovialions are mad• the spooific !<'ason !h=for from the Proje<>t Schedule of Plans and Spenlficarions arul/cr Bud&et and if any davlaliODS ara made, specificeJiy expla1n and justify the reason for such deviatioru;

4.2 Aporoyu! ofCnnstnJction_

No work nssocio!ed with the Construction of the lmprovemcnts shell be commenced by Borrower unless and until the Plans anti Specificatior.s have beeo spproved by Lender, by lilt Govorrunema! Authorities having or olalming jurisdiction over the Land and !mproveaumts, by the benoficia.-y of any applicable restrictive cover_nnt wimse approval is requm.J. !!lld by any other :party whose approval is required under applicablo asreements, and unless and until all bulldin:;. constrUOdon and other f>=its necessary or required in connection with such work have beeo validly issued and all re.s, bonds and any other securiiy required in co=ticn thel<'wi!b have been paid or posh:d.

43 Qgmplian"" with Laws; En•maehmenl;;.

The Improvements sbnU be const:moted In aocon!nnce with all applicable Laws. The Improvements sball be construetad entirely on the Land and sbnU net eccroech upon any easement or rlgho.of-way, or upon the !anti of other.;. Cnnstructicn of the lmprovemonts sbnll occur wholly wtthin all appfioable building restriction lines and sat-backs, however eslnhUshed, and sbnJl be in strict compliaru:e with ell applicable use or other reslrictioss and the provisions of any prior agreements, decloratioos, coverumtsand all applicable mning and subdivision ordinWloes and regulntions.

4.4 Insusctjnns' Coeperation.

Borrower shall petmit representatives of Loader nnd the Consli\Iction Consullanttn enter upon the Land, to inspe::t the Improvemeots.and any and all !llll1erials to bc um:d in connection witlJ the development oftbe Land l!lld the constrUction of the Improvements, to cxmninellll detailed ple:ns and shop dmwings nnd sbnilarmsh:rialns welli!S all recools and books of account mainmined by or on beimlf of Borrower relafing thereto nnd to discuss tho affairs, finmices nnd au<:oW$ peru>ining. to the Lolli! and the !mprov=ents with r<:presentstives of J3arrower. Bazwwer sbnJl at all 1imes coopCl:ltte nnd cans: the General ContrectDr and each anti tsler'J one of its subcontractors, sub-subcontiOc!O<ll aod material suppliers 1o nooperae with the r-..pr.:s=ntlltives of Lender aod the Construction Consultwrt in connection wilh or in aid oftbe perfurmnnce ofLondor's functions under this Agreement Ex!:ept in the event of an em•'lJO'l•Y or during the occurrence anti continuance of a Dofiwlt or Event ofDeli!ult, L:nder shall give Borrower at least fcrty-eight hours' notice by telephone in each inBtance bofure

· -ciibi<iiig upen-tlJc1.anc andlo' to{eicisfiig ,cy-otflernjjiits~umii&Seetiiili. -·. -- ·-- --

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(a) B= shall furrjsh to Lender, promptly on dcml!llll, aey contra<:ts, subcontrru:ts, sub-sulx:on1:nlotors, bills of sale, 5tll!ements, reeeipted voncb:rn or other agreements relaling·to the development of the Land or the Construction of the!mp'rovemeuts, including aey such i-s ptmrullllt to which Borrower has aey ohrlm of title to aey malerlals, fuct:nres or other articles delivered or to bo delivered 1o the Land or lllcorporated or lo be incorpo!'llled into the lmp."ovements, Borrower shall furnlsh to Lender, prillllptly on demand, a yorl:fied Vllitten sta\llmerr'., in soch form and detail as Lender may require, setting filrth the nam<:S l!lld addresses of all conlrncltlrs, :robcontra<:tors, sub­subcontnv:!oOl nod suppliers furnishing labor or materials in tha development of the Lnnd or the · construction of tha Improvements end showing all amounts paid fui' labor Blld melcrials and all items of labor aod materials furnished or to be furnished fur whiob payment has not been made snd ths amounts to be pald tbetelbr.

(b) All oontr3cts for the performance of ~my ;;.'Ork. or the supplying of any Ish or, ma!Erlnls or services ibr the design or Construction of the Improvements, shall provlde !bat all rights and liens of the applicshle coo!nlclor, ar...hft<c~ engine::r, supplier, surveyor or other party and any right to

· re."l'!ove removable Improvements are subordinato to Lender's rights and lions, shall requ!se all subtontraots, sub-subcontracts and pmohase ordCIS to contain a piO'Iislon Wlrlving to the extent pennil!ed ,by appEcshle lltw and, to tho e;dent not waivable, subordinsting the subcontracllJrs', sub­subeonltaetors' snd mechanics' and marerialmcn's liens and 1!lJY right to remove removshle Improvements to Lnnder's rights and lions.

4.6 Pnvment gnd }letfonnence cf Contractual Obligations.

Borrower shalt perform in a timely zruumor all of hs obliglltioos under the Archltee~s Contmo~ the Cnnstruction Corrtract and any and all othar conttacls and llgteillllentll Niated to the constrUction or opemtion of tile Improvements, and Borrower will pay when due Ill! bill& ibr S<IVi= or labor performed and m.atorials supplied in connection with tho development of the l.aod end llw construction of the Improvements. Wrthin sixty (6ll} days after the filing of any mechanic's lien or oiher lion or encnmbrance against the Property, Borrower will promptly discharge lile same by payment or filing a. band or as otherwise as permitted by Law. So long as L<mder's first prlarily security interest in the Property snd all other assets pledged 1o Lander has bee!! pro-d by the filing of a bood or otherwise in a manner satisfuctory to Lender in iJs sole dio=:tion, Borrower shall have tho right to contest any chUm, lien or encumbrance, provided that Borrower does an diligently and without prejudice to Lender or delay ln completing construction oftholmpro\llO!llonts. BOO'OWer shall fhmish to Lender prior Ia cofumencement of work associated with Construction oflho Improvements e-.;idcnce, in fucrn, substance und amount satisfactory to Lender, of tho pcrfbrman~ bonds proeurnd fiJr all general contnv:tors and malcrial subcontractors and supplietS naming Lender as an obug<>e unl"""S ammgl'men!s satistkotory to Lender hove been made for payment by Landor directly to any such general contractor, sub:.ontrnctor or supplier.

4.7 Correction of Constracljop Defecls.

?romptly following any demand by Leader, Boirowor sboll correct or cause the canect!on of any sttuc1llnl defects in the Improvoments, any wotlt that !lu"ls to comply with the requirements of §"'tion 4.3 and. any m>l;riJll .. <:lcp~JJ!: !l!!Yi!J!!ons ii:o!ll the_ PliJ.'lS .,-.g .S~ecjj'jcatl'1!!!' n_ot SllPlJ!~ in wrilh>g by Londor.

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4.8 !nsurance.

Borrower shall maintl!ln the following lnsnnmce at its soli: cost and expense:

(c) Insurance. against Casnalzy to the Property un.W a policy or policies covering such rlsla! as aia presently includad In ";pccialfcrm• (alsa kna~ as "all risk") <<»'<:rage, includiJlg such rlsJa! as are ordin•1ily insured against by simll.r businesses, hut in my event including fue, lightnlng, windstorm, bail, explosion, riot, riot •.!tending a·strike. civl1 commotion, damage from aircreft. smola:, vandalism, mailoious mischief and acts af terrorism. Such lesurance sluilllll!!llo Lender as mot!ll"gee and loss payee. Unless otherwise agreed In wri1111g by Londer, •uoh insurance shall be fur the filU imrurablc wlue of the .Property, with" deduc!tole amoun~ lfany, sati:rliu:ttny to Lender. No policy of insurl!!lcc •hall be written such that tho proc=d51herecl' will produce Jess than the minimum OOVerngll

required by this Se<:tion by r::>tSOn of co--illSillnll= provisions or othorwise. The term ":full inSa!able value" means one hundred pen:;elll: (100%) of tho w:tu.al replacement cost of the .Proporty C=!nding foundation and el<e:a>/l!ll011 costs l!lld costs of underground flues, pipes, drains l!lld other uninsurable itoms),

(d) Compn:hwsive (also known as commerciRI) · gnnsral lishility ln=ce on . an "occurrence" hl!sis against claims fur "per.;onal injury" liability ar.rl liability fur death, bodi]y injwy and damage ro property, products ll!ld completed oper.t!ions, wtth respect tD covemga limits satisJi>ctOl)' to Lender wtth respect to any one ·occurrenc< and the aggregate af all occurren= during any gi•en annual policy period. Such inmmmce shell name Lender as an additional insured. ·

(e) Workets' coropetlS1llion insuzanec for ell employees ofBtlmlwer in such EillOUUtll! is required by Law and including employer'$ liability insmance, if required by Lender.

(f) Durin~' l!llJ' period of construction upon the .Property, Borrower shs.ll maintain, or =so others to mnlntain, builder's risk lnsurenco (non-tepar1111g tbnn) of tho type c=rnarily =led in the cese ofsillUlarcnnslnlotion fur one hundred pcn:ent(l(J{)'*) of tho filU replacement cost of work in place and mamrials stored at or upon the .Property.

(g) If I!! llilY time any portion of any structm:o on t!te Property is insurnble against Casualty by flood and is IOC!rted in a Special Flood Ea!ztf Area under the Flood Disaster Protection Act of 1973, as amended, a flood iosi!I1l!lce policy in furm and runount acc:::;>tl!ble to Lander but in no amount lesa dtan -rlte amount sufficient to meet tho requirements of epplicable Law as such requirements may from time to time be in effect.

(b) Loss of rental value insmance or business interruption Jnsuranco in an amount acceptable to Lendar.

(i) Such olh<r and further in= as may be required futm time to time by Lender in order to c<>mply with regular requirements and practlces ofLeoder in slmiiartmnsactions Including, lf required by Lender, wind insunmoe and eattllquake ins1m111oe, so long as l!llJ' stu:h insuzance Is generolly available at commercially reasonable premiums as <letermined by Lenderfutm time to time.

(i.J) Tn addltinn to the furegclng, Bom>Wer shall cause 1be Genentl Comrnctor 1o provide -· _sn~ _ntainll!in. com~r:h~ve (<:OmJI1ercial) gen=l liabUity insurant:: and wcrl=;' compensation

inSUI'l!l1CO fur all employees of the Generaf"Ctii!Lractor !ile."lfug,. ii:SpCi:ffircly;lho ""lUii'emelllS or·-·· Subsections (b} and (c), above.

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(i.2) Bach policy of insurance (i) shall be issued by on• or more insunm01> companies eech of which must ba"" anAM. Best Cmnpany fmencial and perli>rmance mtfng ofA·lX or better and = qualiiied or anthon zed by the Laws of the Slat<: 1o a.'lSUme tho risks covered by snc!t policy, (ii) with respect Ill the insurance dl:scrib•..d under !he preeedlng SubSect!Q!ll1 Cal, [d) Blld (e).sha!l have attaahed theretO standard non-ccntributmg, no!l-"'J)crting mortBagee clauses ln faVor of 2nd entitling Lender without contribution to colleot any end all prce=ls peyable under such inslltllllce, eilhor as solo payee or as joint payee with Borrower, (iii) shall provide that such policy shall not he cmleeled or moulfied without at least thirty (30) days prior written notice to Lender, and (iv) shall provide that any loss otherwise payable thtra~~nder sbllll he payable notwltilstllndlng any act or negligence of Borrower which migh~ absent such agreement, rco"lllt in a forl'eituro of all or a part of such insuranoa payment. Borrower shall promptly pay cll premiums when due on such inst!l'allCe and, not less then t!tirty (30) days prior to tho expiration dntes of each such policy, Borrower wlll deUver to Lender occoptsble evidence of insurance, such as a renewal policy or policies marked p,premium paid"~' ar other evidence

· salisliwiory to Lender reflecting thot all required insunmcc is current nnd In force. Borrower will imrned!mly give Notice to Lender of any CllilceTiatioa oi; or ohanga in, any insurance policy. Lender shall no~ because of accepting, rejecting, approving nr obllrining insnnmce, incur my liability for (A) the e><istence, nonexisteace, form or legal sufficiency lbereot; (B) !he solvency of any ins=, or {C) 1he payment of losses. l3onowor may slllisfY llll)' insurance requirement hereunder by providing one or more "bll!llkl!t" in.s= policies, subject ro Lenlkr's approve! in each instance 1!!l tn limim, coverages, forms, deductiblcs, incoption and expiratlon dates, and cmcollation provisions, A summary of the insurance cover-ages arc set forih on Sc:hednle 4 hereto.

4.9 Adfpstnjent ofCondem!llltion !Wd lll5ll"""" Claims.

llcuower shall give prompt Notice to Lander of any Casualty or any Condemnatlan nr t~Jreslened Coadernatio!L El<t:ept as provided below, Lender is anlborize<l, at its sole .,d sbsclute option, to commence, appear in and prosecute, in its own or Borrower's name, any action or proceadlng ndatlng to any Coad0!1UU1tlon or Casualty, and to lllB.ke proof of loss for and to settle or c<lmpromisc any Claim in C01!lle:itlon tl-.enmitb, In such case, Lender sbcll bave the right to ~e ull Condemnation Awards and Insnnn::e Proceeds, and may deduct 1hareftom nll l"'Yroents of its Expensas. HoweVer, so long as no Event of Delillllt haa oct:1ll'red and is lhen continuing, and

· Bomlwer is diligentiy pnrsuing Its rights and remedir:s with rr:spect to a Clcim, (I) Lander will obllrill Borrower's wiit!lln consent (which consent shall not bc Ullr':aSOnably withheld or delayed) befOI'e making proof of l= fur or settling or compromising such Claim and (ii) Leader ~ball allow Borrower within a =nablo per! ad of !fmc to mak<> proof cf!D!!lt, settle or ccmptQlllise any Claim below lhc Lass Tiu-..!lholrl. Bocrower agrees to diligantly l!SSt:rt ils rights and remedies with respect to each Clilim nnd to promptly pursue the. settlement and CO!tljlrcmise of each Claim, if !he Claim in excess of the Less Threshold, subject to Lenrler's eppreva~ which approval shall not he lll:!reaSOil1lbly wiJhheld or delayed. Notwilbstanding llll)' prevision to !he contruyin thls Agreement, if prior \O !he receipt by Lender of my COllden:nolicn Award or lr.st!l'llllce Proceeds, the Property shall have baen sold plll'SUilii! to tha provisions· of1he Mortgage, Lender shall have !he right to receive sucb. funds (a) to the e=nt of ony deficiency fonnd to be duo upon such sale with in-· thereon (wh•r or not a deficiency judgment 0111he Mortgsga shall have been sought cr recnvored or denied), and (b) to !he extent necessary to reimbnrse Lender fur ils Expenses. li any Condemna!ion Awards or !llS1ll1lllce Proceeds are paid to Borrower, Bom:!Wer shall recmva !he some,io trust fur Lender (other then Net Proceeds below tbe Loss 'Ilueshold so long as na Event ofDefauh has ocemtcd and i• continuing) and witltin .toll (10). deya Edlor Botrowet's receipt of any Coademna!lon Awards <ir Insurance l?rocaeds (allier than such Net Ptcc'e..-ds below fuc Loss Threshold), Bocrower shall deliver snch awards or proceeds 1D Lender irt the foon in which they we.e received, together wilh llll)' endorsements or dneumen!ll tlu!i may be necessary tl> affeetivcly negatil!tc or tr1!llsW fuo SllDle to Lender. Borrower agrees to ox<cute and deliver from tlrna to time, upm the reqoest ofi.endar, snch·lilttber instrun!ants

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or doouments as may bo requeslfxll:)y Lender to eoniirro the gnmt and 2SSlgnment to L011der of any Condemnation Awards or Insunmetl Proceeds.

4.10 ptilmon ofNeiPros:eeds.

Gl All Net Proceeds of tho L<lss 'l.'lueshold most. bo utilized either fat payment of tile Obligations orfor the restmation of tile Properly. Net Proceeds may be ul!1ized iortho restoration of the Property only i£ no Event ofn.fuuh shell Oldst and is then continuing, and only if in tho reasonable judgment of Lender {i) there has been no material ndv""• change in !he Borrower's abinty to complete Cor.slnlt:tion of tho Improvements in I!Ccordnnce with fuo Project Schedule, the Budget tmd Plan Spe::i:ficalioos or the financit!l viability of the openttioo of tho Improvcmcnts, (ii) the Net Proceeds, together with other funds deposiied with Lender fur that purpose, ""' sufficieot to P"Y !he cost of the rcstorntion pan;tUUJt to a budget aod plans nnd 5Jlcci:finatioos approved bY Leeder, and (ill) tha restoration can be co.-np!eted prior to Matnrity Date <Uld prior to the date required bY tho Me Out F!!lllllclng Arrangements. otherwise, Net Proceeds shell be utilized fur payment of the Ob!igatimlS.

(k) If Net Proc••ds ore to be ub'Ji:md fur the restorntica of tho Properl;y, the Net P.rocoWs m!lSC be deposited in an int:rest-bCMlng <=aunt established by Lender with a finnncial institution of Lender's choic:, which aecount will be assigned to Lender as additional security for the Loan. Disbur.;ements of fJnds from the account wiD be made in a =•r conaisl<mt with, and subj""t to, tha n>quiremants far ihe funding of advances of the Loan tmd tha leans of !his Agreement xegarding !he disbumement ofLoan proetleds.

4.11 t,§ooagement Kev Pern9nnel.

Borrowc: nt all times shall provid• fur competent and responsible lllllll"gelllent and operatUm of the Properl;y. Borrower shall natUY Lender, in writing. prior to the hiring of any new Senior Management Personnel of each of Borrowor or the G~ Partner or tha Amendment of any subst.antlal terms of the employment of sald Senior Management Personnel. The hiriug or chanJling tetmS of employmeot of any such Senior Management Perstlnnel shl1ll bo •nhject to Lender's prior written approval, not to be unreasonably withheld or delayed. Any Sonier Managemeot Per><>Dnel con- affecting the Properly must also be approved !a writing by Llmder prior to e=:ution of the same. Any termination of Seeler Management Personnel shall be subject to notice to Lender; however, Borrower need not obtain prior written approvt!l.

4.12 BO!?ks and Reconjs: Fineneja[ 8!a\j:m$ Thx Returns,

Borrower will ke-.p and maintain full ned BCeunde lxlol<J; and records administered in accordance wlth GAAP, consist<:utly appli:c<!, showing in detail the earnings and e;qJenses of the Property a.,d the ope:atlon lherco£ BomJWer will keep and maintain its lxlaks and records, including recorded data of any Jdnd and regmlless of !be med'lU!ll of' recording, at the address of Borrower set :fulth in Sectign U. Borrower s!nill permit Lender, or any Person aUihorized by Lander, to inap<ct and Bl<llilline such books and records (regardless of where main!aincrl) and all suppcrtlng vouchers and data and to llllllao copies and eodnlctl th""'from a1 all ~Oilllble times and as o:&n as. may be requesw:l by Lender. Borrower wru· fum ish or =• to be furnished to Lender annual fillllllcial .-mcru:s, ~ bala,n<:o _s~ts and ln"'?;D_• ~talll!llel!!; 10r Bo~wer,_ ".9ch Gu"""'!to~ .and tho ·Property, within nlnety (.90) days e:iler each f!SC3l year end fur the roapaotive reporting party. In addition, Borrower will furnish or causo to be furnished to Leeder, with reasonable pmmptn.ss (but in any evetrt withio. :five (5) Busineos Daye), such Interim financial 3!lltcmenis of Borrower, each Guaraotor lllld the Property, together with such addilfont!l Jnfurmat!an, reports or sl:alcmenm in

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connection thcrcw;tn, as Lender may from time to time request. All :financial stot=ents must be ln funn and detail acceptable to Lender and must be cemncd "" ro accumcy by Bon:owcr or the respective Guaranlor, as tho case may be, and mtist be [auditedirelli"""'d] by alllltionally =ognizcd independent cettifud public accountlng iimt. Borrower shall provide, upon Lender's reqnest, convenient facilities for the audit lll!d vecificalicm of any such sto!1oment. All certificailons and signatures on behJ1If of eorporati-, p211nernblps, limit«! tiebility companies !llld other entiti<:s eball be by a reprosenllltive of the .reporting party se.tlsfuctozy to lender. All :financial stnmments fur inrlividuals shall be en L~mder's then·cum!llt personal :financial statement ibrm or in another furm .satisfuctrrry to Lender.

4.13 Bsroppel C!:r!ificates,

Wrthln tl>n (1 0) da:f.i after any request by Lender or a proposed assignce or purcllaser of tho Loao or aoy lnw..stthetein. Borrower shall certify ir. writing to L,ender, or to such proposed assignee or putebaser, the then unpaid balance of !he Loa.~ l!lld wltcther Borrow-...r claims tray right of delimse or • setoff to the puymeot or perfurmaoce of aoy of the Obligations, and ifBoil'OWOl' claims any such right of defur.se or setoff, Borrower shail give a detniled written description of such claimnd right

4.15 Lenders Ri2hts to Pey and Perfonn.

If. afb:>r any required notice, Barrowor flnls to promptly puy or perform any o!!ha obllgntions owing or due to any third party in coon.,tion with Construction of the Improvements or otherwise re!Jtred to the lnulsaetiODS contemplctnd by !be Lonn Doouments Within any appliceblo grace or cure periods, L=nder,, wllhout Notice to or demand upon Bc<rOwcr, and witimut waiving or releasing nay snclt obligation or Dafiwlt, may (but shall ba tu1d,.. no obligation to) nt any time 1hereaftar makB ancb payment or purfumt such net fi:lr the ecooUDt and nt the <!X.pense ofBOtl'OWOr. Lender may onlxlr upon thlll'roperty tbr thet putpcso and bike sll action thereon l1S Lend,.. considers necessary or appropriate. N. the option of Lender, i'ollowing the o=ce and during the continuance of an Event ofDofunll. Lender may apply ;my uodisbur.red loan proceeds to ihe satisillctioo of the omufitions of the Loan Documents, irrespective of the allocation of such Loan pr=cds in tile Budget. Without limiting the generality of tho furcgoing, Lender may puy directiy from lhe proceeds of the LDU!l all inl=l bills rende<ed by L=nd:r in CO!Uleetion with tho Loan, end following !he =um:nce and dnrlog the oontilUJI!llce of an Event of Defuult Ill">' melle advllilces direotly to the General Contractor, the titla instmt.'lC~ ccmpzmy, any subccnt:r'!rotDr1 sulrsubcontractor or material supplier,. or to any c:if lhem jointly. The excoution , hereof by Borrower sbllll, and horaby does, ccmrtitullo an irrevocable l!lllhoriza!ion to so adv= th"' proceeds of tho loan. No further di,Uon or aulhorizotion from Borrower shsll be nocossary to wammt such di=t ndvaru:es. The Loan Amount sbaU be secured by tr.e Mortgsge and o1hcr Security Documeots end shall sa&fy 'the obligelions of Leader b::reunder to the extJ:nt of the amount of the dlsbll!Selllcnt.

4.16 Relmlrursement; Interest

If Lender sball incur any :&qrenses or pay any Claims by """'on of the Loan or tlte rights and r:!!lledies providnd under the L02ll Dcwumonts (reglll'dless of wbnd!er cr not noy of the Loan Documents o:<PI=ly prov!de fur an indemnillcation. by Borrower against such Claims), Lender's puyment of such E:cpensos and Claims shall co~ advances to Borrower whlcl> sba!l be paid by

. :Sorrowllr !0 ~r QQ~mll,;llj,_to]letiierwilh i~.~ :fi!1m .. the.d.ete jnCltlf.[lOd lll!lil pal~:ln full at the oo of inte= then appUcable to 'the loan under the llmns of lho :Noll>. Bach ndvaoce shall be '""""'d by the Mortgage and the other Se..."Urity Documents fuUy as if made to Bcm:>wer, regenlless of the disposition thercofby the party or parties to whom such ndvaoco is made. Nctwitbstnnding the fumgcinf!;, howavcr, in l!llY action or pn=nding to fureclose lhe Mortgnge, to =is• Lender's rights

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wltb respeot to any other Collateral or 1D =over or col!~ the ·obligatiOll!, the provisions of LAw governing the recovery of costs, disbursements end aliOVI!!tlC<:S shall prevail u!!.e.l'fu:te<l by this S"'tlon.

4.17 Notification hv Borrower.

BQriOwer wUJ promptly give Notice I:D Lender of the occurn:nz:e of any Default or Bvent of Default h=der or under any of the other l.oM Doouments. Bom>wer will alsc promptly aivo Notico lo Lender of !UlY claim of a defuult by Borrowe:, or any cleim by Borrovrer af a deflullt by "any other party, under the Architect's Conlroct, the Construction Contraet nnd any other contracts with J'l'SPec1 to tho Constru<:tion of tile Improvements. If none of the furegoing avenb! hns ot:ll1ll'rlid, tho chioffinnnnial officer ofBorrower shall certJzy thereto to t.ndl>r in writingwhlch sbsll be delivered to Lender, together with tho delivery of the annual Jinancial st:ateml:nt and any interim financial statoment refern:d to in Section 4.12.

4.18 lndemn!fieation by BOJtOWer.

Borrower agrees to indemnlfy Leruler and to hold .Lender b1lrmless from end against. and to defend Lender by counsolapprovnd by Lender aga!nsl; Jl.l1)' nnd all Claims direct!y ar indlR:ctly arising out of or resulting from anY transac-tion. s.~ omission, event or cirelJIJlStanCe in any WfrJ connected wlth the Property or the Lonn, including any CIWm arising out of or resulting from (a) const:ructlon of any rmprovcments, including any defeulive workmllllShlp or m.alerials; {h) any iaillll'Z> by &JroWer to oomplywith the requirements of any Laws or 1o cam ply with llDY agreement tintt applies or pemrns to the Property, including any agreem""t wlth a broker or "finder" in connection with the Loan or other fu:ancing of the 'Property; (c) "'"l' other Delilnlt ot Event.cf Doiault hereunder or under sny of the other Loan Documents; or (d) sny assertion or allegatlO!ll:iw.tLender is liable for any act or omission of Bo:rower or any other Pernon in conneetion with the ownership, developm.nt, Jinanclng, leasing, operation or sala of the Property; provided, howeyq. that Borrower shall not be obfigated to indemniJy Lender with respect to a.T;( Claim arising solely from the grosa negligo""' or willful miscooduct of Lender. Tits agreemen!S end lndernn!fieat.ions contained in this Section •hall apply to Claims arising both beibro and after tlJe repayment of lhc Loan ami shall survive the r<:Jl"yment of the Loan, any foreclosure or deel!, ll!!sigumeot or convey= in lieu tbeteaf and any other oetlon by Landedo enforce the rights and remedies of Lender h""'under or under tlJe other Lollll Documents.

4.19 fees !llld E;\pensos,

Borrower shall pay all fees, obazges. costs and exponst>s reqnit'd to satisfy tl\e condiaons of the Loan Documents. Without limitation of !he foregoing, Borrower mll pay, when due, m>d if paid by Londer will ra!mburne Len dar on demand fur, ail b and expenses oflhe Construction Consultant. the title Jnsurer, envltc!11Dental engineen;, apprahers, snrveyars lllld Lel>det's counsel in CllDDecticn with. the closing. adminlsttatloc, modi:lkatian, moailoring or sny "warlrouf' of the Lea.-, or the en:fur=neotof'I.Mder's cights 1Uld remedies under sny oftlie Loan Documents

4.20 Appraisal!;.

Lend or may obtain from time to time en apprai•al of all or any part af lh• Properl;y, praparnd in accordance with written inst:ructlons fu:>m Lender, from a tiird-party npproiser satisfilcloty to, and

- engS.gnd direclly by, l..cnder. 'Ihe cost of one siicli spprefsel ob1Bfued' by Lender in cal:li calenaBr year and !he cost of each Stloh appraisal obtained by Lender :tbUowing the occllliiOlloe of .an Event of :Oefenltshall be borne by Borrowennd shall be paid by Bo~ on demand.

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4.21 Prjrtgjpol Depository.

Borrower shall maintain wilil Great Western tmd Wells Fargo Ba.n.l<s all of its prillcipal deposit aecounts for the maintenance of business including the Borrowet's Deposit Account, wh · management, operating acd administrative deposit aocounts, all of which iiCCOIIliiS sball be subject to a Depcsi± Aci:oont Control Agrcomont ln favor of Lender. Borrower shall not maintain any other depository accocnts without Lender's prior written cnnsent thcmlo wbioh, if cnnse~ to, shall be subject to a DepositAc1:ount Control Agreement in favor nfLender.

4.22 Board Rcnressntation.

From end ofl:lor the Closillll Date durillg the il:nn ofihis Agreomeot, a rep=tntive ofl.euder will be notified of, and shall be ponnltted 1c attend, each of Borrower's and eocll Guarm>tor's boards of director meetings (or the eq1llvalontthoreof} ns an obs....,.,..

4.23 Compliance wjfu Paclcem and S!ook;yatrl Act Etn.

Borrower shall (a.) eootplete all Construction of Improvements l!Ild other pro=es tmd proceduros needed to commence Borrower's b!!Siness as a paclrer at the Property, (b)· upon comm!lilcement of BoTTOwer's busioess, oponrte es a packer in fall compliance with Chapil:r 40-ISA of the South Dakota Codified Laws, the applteahle regula!inns, ordem end directives of !he South Dala:rta Anima!lndus!Iy :Scam, the Packers and Stooky!!Us Act and its applieahle regulations, (c} obtain, maln!Wn end timely renew all licenses, pennits and bends necessary to opcr!!llon !he business as a paclwr, (d} timely Plo/ for all acquired !Ivestook so as not m griU!l', incur or BUffer the creation of arry lien in mvor of livestock seller.; that is unpald01Jlsida !he otrlinar,y COI!f'S:' ofbaslness, (c) maintain sell: title to all purchased livestoclc. (f) SlllisfY all ~entll of the Food S=il)' Act, tho Puck= and smclcyarns Aot sofficient to olrlllin clear title to all pUiclmsed livestock, (g) comply with all emplO)'Illeot end labor laws with nospeot to the Eoxrowet's lahar fon:o, (h) Sil!iszy and comply With nll procedtues, reguln:ioos, certification clements and dim:tives reqaired in the reeelp~ slnughter, processing, pallkaging. storing and shipping of livestock aod th• resulting meat products, wul (i} provide ccntemjlcreneous notice II1 Lender of llilY and all claims on any bond and any and nll wamfugs. comp!ience directives, order.;, adv<:rs<~ inspection reports, notice of violations orreyooation, and commenc..-ment of any administnu:ivc proccedillJl r.:laled to any pennlt, bond or license e:ffi:cting fue ful:ility or Borrower's opernlion as 4 packer.

4.26 Deoosits to Balance Loan.

If at any time Lender shall determine that (a) tba proceeds oftbe Loan remaining to be ad'll!llcerl for any fule item within the Budget are not or will not be sufficient to pay, in a timely = the amount of such line item n:l!lltining to be paid, and (b) tba deficiency CIU!OOt be :remedied by a reallocation of budgered amounts plliSllant to Seqtlon 2.2. than Botrowet shall daposit into BotroW!!l:'s Deposit Accoun:t ibr the bencilt of Lender, within ten (10) days from the effective dam of a Notice from Lender requesdllg such deposit, :limrls in.. an amount equal tn the deficiency. Suclt funds shall be held in su.ch Bom>WlOr's Deposit Account, which shall be an interest-bearing accounts, wi!h ell acc::ued inlarest to became part

... <lfJ:l_Om>Y&'S d~ ;a~ ~-tl!at it~ W,Cl~.1!il.\t!(!:te;;l:_and.~~gs <JD.l!n.Y such deposit as its lw::cmB· (and, ifBilt!mwt is a p!!Ilne!llblp or other pass-through enlity, the income Qfi1s partru:r.s, members or beneficiaries, as the ease may be(, and shall bo the owner of ell tiimls on deposit in. !he BotrCWbr's Deposit Account for fedeial. and applicable slate and lccsl tax p!IIJlOses. Lender shalllm.ve 1he =l.usiYC right to m!lllage and con.trot all funds in

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the Boo:ower's Deposit Acco!lllt, but Lender shall have no :fiduciazy iiu!y wilh respect tJ:i such funds. AdVllllCCS of the deposited funds will be msdo from time to thno fur lhe payment of deficient line item lllllOunls, prior to the sdv.mce of proceeds of the Loan ftrr such amounts. Advances of lhe deposited funds will be subject to the terms of this Agreeme:ll regarding adYances of lhe Loan. Aey accollllt :fues and charges may be deducted from the bsbmce, if any, in the Borrower's Deposit .AJ:count. Bonower grants to Lender a =rlty interest in the Bon:ower's Deposit Account and all sux:h deposited funds hereafter deposited to such dCJlosit account, and any proceeds thereof, as. security fur the Obligations. Sul:h setmrlty interest shall be governed by the Unifurm Commercial Code of the Stale, and Lender sl!all have available to it all of the rlgb:ts snd remedies available to a secured :party thereunder. The Borrower's Deposit Acoount may be established and held in such name or .names as Lender shall d= ap,prcpriate. incloding in the name of Lender. Borrower hereby cODS!itates and appoints Lender and any offu:er of a,gent of Lender its irUe and lawftll attomeys-in-:tilct wilh full power of substitution to open the Borrower's Deposit Account end to do any arul evazy act by Law, Borrower hereby 1'!!1i:fies all that said attotDeys shall Jawfblly do or Cause to be done by virtue hereof It ia Ullllerstood and agreed lhat this power ofeltolllflY, which shall be deemed to be a power coupled with an lnterest, ca:anot be revoked.

4:1.7 AECOM:Reoort.

As described more fully in the dtaft Phase I En.viromnen:tal Site Assessment and En.virownental Compliance Review ofNorthem BeefPacl:ers, AberdeetJ, SCltlthDal:oi2, dated May 7, 2010, :prepsn:d by AECOM Tecl:wi.eal. Sexvices, appitlXi.mately 800 gallons of diesel :fUel was released 011. the Land in August 2007. L!!D.der ondsrstends that fu" diesel imjlal:ted sell and cause such soil to be disposed of off-site in ru:eotthmce with applieahle Law and tako all other investigation and remedial actions (collectively, such =avation, o:ff'-site disposal, investigation arul remedial actions are refex:red to herein as "Response Actions" to the extent such RespO!lS<I Actions are (i) required pmsuil!ll to applicable Law or by a Governmentn! Authority or (il) :requested, in writing, by L!ill.der. Ill. ordarto COYer the cost of sut:h Response Actions, the amount of Thirty-one Thousand Dollars ($31,000} shall be included in fue Budget. . Tbe Borrower shaD not use the $31,000 for my pmpose other 1hlm to cover the cost of Response .Actioml as doscribed in thia Section 4.3 without the wril!en consent ofLander.

. . 4.23 E:dstence. To preserve and maiutaln the otglllli.za1iomd existence, tights,

franchises, licenses, ttademarks, copyrights and prlvilegos ofBm:rower.

4.29 Sale. Merger or Consoli<jclion. To not liquidate, dissolve, merge or otherwise ccnsclldate BOJ::rOWer with or into llilY other entity, or sell, lease, transfer or otherwise dispose of all or l!ll'J substatttial part of !he assets ofBorro'ivl:r, without Lender's approve!.

4.30 Finencjgl Staleznents. Borrower shall provide Lendllr with quarterly :fioancial statemelli.S, wbicb. set furth owner's equity, income md cash flow for each qUllr!er, certified

-1>y a.responsible officer. At t:b.e-end of the ye.sr. Borrower .shall pro\dde. a:udl!:e<L:finaudel statements tn . Lend..r which confoon with General Accepted Accounting Ptinciples. Ssid fulancial stlltemen1S sba!l be provided Do 1alctthan March 31 of each year.

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. 4.30.1 Borrower further agrees to prepare yea:rly Ie)lOrts as· specified by Lender setti:og furilJ. the operation, job creation aiJd other :iillancial infurmatioo. CQ.!lCe.[Il]ng the operation. Saiti zepoits are to be :provided at the s.ruo.e time as the !!lldited iinmlcW statemems.

4.31 L'!spection. To pemrit Lender, or my employee or agent of Lender, upon at least twerrty-ibur (24) hours telephonic notice, at any time during regular business holliS 10

inspect tbe:propert:ies and all books ofBor:rower.

4.32 Indebterlness. To noi incur, pennit to remain ou!lrtanding, assume or in any way beoome coi!lli1ittl;:d for indebtedness in respect of bon:owed money, except: (i) .indebtedness iDJ:urred hereunder; (!.l) tl:llde debt incur:recl fur edequate consideration, on oom:mercially reasonably t=, and in the usual ancl normal course of business; (lii) indebtedness approved to Senior Lender; and (IV) illdebtednesadiscl.osedinExblbit C.

4.33 · ~- To not =te. suffer or per:rnil. to e:dst any lJen or CllClilllbnlnce of any kind or rurtnre upon any af its assets now owned or hereina.trer o'M:led or ru:qnlred. except for (i) liens, mortgages, and =mbnuu:es in :illvur of Lender; ('U) indebtedlless OW"'...d to Senior Lender; (ill) liens for taxes, assessments and other governmental eh.axgea JJDt yet due orwmcb. are being contested in good :fuilh and for wlrlch reserves ha:ve beeu IIJllde as shall be reqnired by generally accepted accountii!g princip~ !!lld (iv) liens of landlords, vendors, esrrlers, warehousemen, mechanics, JabOiern and IIlldecia.lmen llliEi1lg at law ill the otdinary conrso of busines• for .urns not yet dne or being cootested in good faith and :for which reserves hs:ve been made as shall be required by generally accepted accounting principles.

4.34 Ta:res. To pay and discharge allmxes, essessmaom and govemme:n1Bl cJllu-ges or levies imposed oo Borio11<-er, upon its income or profit.> or upon rurt properties belonging to Bor:rower prior to the dRte on wmch penalties attach thereto; provided that Bor:ruwer shall not be re<J.tri:red to pay any snob tex, assessrncul, ci:large, levy or claim that is being coo:tested in good fuith and by appropriate legal proceedings and as to wbioh adequate reserves shall have been established, and as to wmch no fu:reclosure, sale or simllar proceedings ha:ve been commenc·d:

4.35 mvestrnen1s andLo!!ns. To notlllllkerurt loan, ailva:oce, extension of credit. or co:pital contribution :0 any person or legal entity.

4.36 Maintenance of Pmnerties. To meinlai!l, or cau:;a to be mslamined, in good :repl!ir, working order and .=di!ion (on:linary weor !!lld tear excepted), all of l!ozrowe:'s properties, whelher real or persooal, owned or held under l<!ase, and specifically inclncli.ng, without J.imite:tioo, lhe property SlObject to the Loan DocUI:Ilellts, end :from lime to time make or cause to be made all repaits, renewals, replal::ei!le!llS, additions, bettemlen1s and improvements that may be IeaSonallly required to keep· end malntsin such property in good

_ !!Qndi!io!),ancl rep_air an4_in ~OODg ~.:wear an~ teal:'~i!:d.

4.37 F=cbises and Intellectual Property. To lake all reasonable acts to preserve the Borrower's ownership rights to all af its fumcl:rlse ogreements and lntell.eetnal. property,

1ll

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includ!ng, but not limited to, trade Jlllllle$. entity llliilll:S, lnldemaiks, copyrights and patenl!;, websites, and website domainiUlllles, tmd tn take i!illgcnt action tn challenge any cancellation or infrlngemeut thereofbytlrlrd parties.

4.38 LaWS and RegplatiQilll. To comply in an respects with any Blld an applli:able federal, stare, ccnm1y end local laws, sllJtnte:!, ordioances, orders, roles, codes Blld :regulations with respect 1D its :real and persO!llll proport;y, businesses, assets, inventory, and employees.

4.39 Notifi!latiol! of Legal Actions. To notify Lender in wri!i.ng Vlithin Five (5) days of receipt of any infox:mstian indicating tba:l any legal action bas been or may be co!lllllllilC-=d or i:hr<:al:l:ned agajnst Boc:ower where the smonut·in controversy, either directly or indb:ect!y, elooe or in co!!!bioatiou with any other actions, suits or proceedings exceed the sum ofFif!y TholJSalldDcllars ($50,000).

4.40 Adverse Change. Upon olitaining llilY knowledge of any marerial adverse change in the financial condition or future prospocts ofBorrower, to promptly provide Lender with written notice desmibing in dellll11he nature of such adverse change.

4.41 Manaaers and Principal Pface of Business. To not chmige the ofiicetli, dhectors or lllJlillll!"'1 of Borrower or other employees el!Illing more 1han One Hundred Thousand Dollats (S100,000) per year,. or the location of the e>:ecutive office or principal place of business o:fBan:uwar without Lender's approval.

4.42 SelL Cort"Vev apd Transfer. To not sell, convey, transfer, dispose of, or further encumber the properties of Bon:ower or any part tl!ereof or lli!y interest therein ~pt as provided in this Agreement or any of the LOllil DQCUill.ellls, wi:tetber vollllltBril.y, i:nvoluutm!ly OI crtllerwise.

4.43 :Reeoriis. To keep and lillllirtain full end accutete books, e=unts and records of Borrower's opemtions in a manner tba:lls coDSi.stent wilh genero..fly accepted accounling ptinciple.'l.

4.44 T:nderonification. At Borrower's expense,. to protect, defund and inclemni:cy, and save and bold Lendl:u: hamlless from and against any and ell judgments, Jlab1li.ties, tosses, damages, costs cr c;:p=, including wilbout limi.tnti.on, court costs and reasonable attorney ii:es, which. arise out of; !U'8 caused by, or Telate to any claim, dernand, snit, cause of action, investigation or proceeding brought or asserted against Lender by rmy person or entity to the e:t:tent the s!lllle r:eJate to tbls Agreement, the Loan, the Promissory Note, any of the Lollll Docurcents and/or :my other. documents, cortfiicate or agreement delivered ·oy Borrower 1o Lander in COllllection hereVIith or therewith. Borrower shall immediately pay Lender upon deauwd all snch judgments, liabilities, losses, damages, costs and ell:pell.Ses, including court costs and rea&lllable attcmey f=, incurred by Lander as IeSUlt of any legal or other action .arising. out of this-~ an.y of the Loan.Dill:Ulllell!s. andlor ~-d~~g;tifi~ or agreement delivered by B= 1D Lend= in =tion lhert:with.

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4.45 Furtl!er Assurances. Following the making of the Lom or lillY ins:tallrnerrt thereof, the Borrower sbml pro!Ilptly, at the reqli<\St of the Lender, take such action and execute and dcliver to Lender snch further assignments, endmsemenls, consenls, blstrmnenlll, agreements andlor ofher documents as Lander may reasonably request in order to perfect Loader's security in~s and olhc:rwise CO!lS1llllmate and carry ant the tr:msaclions conlmlplated by thls Agreement, the l'tcllllssmy Note aod/or any of the Loan DocllD:lents for the ~enefit ofLeoder.

4.46 Third Partv Claims. Lender shall not be llnhle to, and Borrower shall SttVe

Lender h=less .from end against an claims of l!l1l!l:rialman, co!l!J:actors, subcontiactms, lllborem and otbets for goods and delivered by them to Bomwer or any of its properties or serv:i= perlbrmed by them for Boi!Ower or any of its properties or otherwise in connection with Borrower. Borrower shall not be considered to be ibe agent ofLander for any pnipose whatsoever.

4.47 Cllpital Expenditures. At. mzy thn.e fallowing the il:Uli.al. CO!Ilpletion of con.s1ruction of the Project, Barrowm- will not make any expenditure in excess of Five El:mdred Thousand Dollars ($500,000) without prior written =ent ofLender ..

4.48 :Restricted :Payments. Borrower shall not, and will not be :permitted to, declare· or llllllce, or agree to lill3ke, or pay, either dlre<:tly or indirectly, any distribution or dividend to any of its members or owners hereunder unless specifically approved by lender.

4.49 Compensation to Management Bonower shall not pay any bonus or JDllllagemcnt fees to any executive, employee, partner, member or di:rector in excess of any salary set forth at the time of the e:teeution of this Agreement end in 6\lllnt, nn suchpaymeuts shall exceed Two Hundred Fifty Thousand Pollms ($250,000) in aey aggregate roll.ing twal.ve-moofh period tm!ess such CO!Ilp=ation to !lllmagcment has been aFJ?IOved by Londar.

4.50 Paclters aod Smckyards Ac!:. 1921. The Bormwar shall comply in all material respects with the Penkers and Stockyards Act, 1921, as amended \J U.S.C. § 181-229) and the regulations prollllllgejed th~ so the.t: the trust for the hene:fi.t of all unpaid Cl!Sh sellers or growers ofbeefthereby sbriU not arise in cDll!leCiion with its purchase of ar:ry such Ii~ B=wer shall not tak:n any action w.irlch would impair its ability to benefit from the trust established undu such Act in connection wilh any sal.S by the Borrower of beef covered by such Act.

The foregoing co'lenants are in addition to the obliga±ioll5, undermkings and agreements of the Bor:wwer contained in the Promil!llory Note and ather Loan Documents, each of which are inCOiporated hllrein by this refureooe, and all of which shell be deemed to hs:ve been l!llllle oy Banovrer herein at and as of the dn!e hcnlof, end as though l!llllie hereuoder Ill: and as of the date hereofwilh the Sl!llle force and effe,t as if the BJmle were set

.. _ .-'forth in the body of-this. Agreenleot.in their enti.'"el;r~ md ell :;gclj obJiWiOll". wdermkings and agreem= shall :mrvi.ve the rlisbmsing of tbe Loan and the =ntion end delfvety of the Promissory Note and !he Loll!l Doctli!lents.

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451 Pemrlts. Borrower has seemed all necessary city, local, state or federal peo:nits required to operate said Pwject.

4.52 E-vm. Bonower agrees ihat "U.s. law requires companias to employ only individuals who may legally work in 1he United States • with U.S. Citizens, or foreign cijizens who lmve the necessary employment !!llthotiza:tion. Tbls diverse woz:k:force conlribules.greatly to !he Vl'brancy and strangth of our ecoobmy, but ihat same strength also attrects unauthcrl2ed employment. E-VerlEy is an l!rn:met·based l!)'sletll that allows bllirlnesses to delemlin.e the eligibility of t!ieir employees to work in 'the Unlred States. E· V erlfy is fast, free and wr; to = -lllld it's 1he best way employers can = a legal worl<fun::e. n

"As a condition fur lllllintah:rlnglsatisiYJng the South Dakota Investment Furid 6 (SDIF6) Limited Pll!UlWhlp's loan to National BeefProcessors (N'ru') in good fuitb. and to avoid defan!ting on 1he lollll with respect to efli:otively detmni:ning that any lllld all persons bi.-ed and employed by NBP """ legal, NBP will register to parlicip!lle and abide by all the requitements for voluntarily participating in the U.S. G01lel:!llllellt'5 "E-Vedfy" employment auf:lmrlzat;OD ver:i:fication program, ~d by the U.S. Departmeat of Homeland Se=ity's (DRS) U.S. Citizensbip and Immigration Services (USCIS). Fall'!lre by NBP to register and tw1y ahlde by all the \l:Ims and coodi:tions fur= of B-Verify in verifying an employ6e's employment authorization will be reason or grounds fur declming 1he bou:ower to be in defirult of the !Dan, with !he full outstanding belance subj6et lo full and iromodiate paymeut to fue SDIF 6 LiinltedPar!Ill:rShip.

Article Y.

Negatiye Cnvcnants.

5.1 Cgntlitigpal Sal§.

Borrov.'<r shoJI oat lncorpo- in the Improvements any propecy w:quinld 1D!Oer a conditiooal sales cootract or leas;. or as to which Ule •entlor r<talns title or • security interl!St, without U1e prior writu:n co!!Sellt of Lender.

5.2 Changes to Plans gnd Spet:!fications.

Borrower sbllll not make or permit any chaoges in tho Plans and Speoifications, inclodlng any sut:h changes that alter, diminish or add m the work to be perli::rmetl or al!ango the design of the Improvccrnmts, without the prior writtan.cooseot of Lender ant! under sut:h reasonsh!o eonditions as Lender may establish. LenWs pricrwritu:n coosent shall not be ""!"ired. hawever,"" 1D IDlY change ootler which (a) individually does not cause tho filwi or guaranteed ma:ximu:m prico of tho Coll5lnlc!ion Conlract to be incJ:eased or d=used by more than SZS,OOO ant!, when eddetl. to all previous clwlg<o orders, does not ca!l!le suc!t price to be lne.reased or decreased by moro than SlOO,OOO in 1he aggregnte, (h) tlocs not result in a mater'.al change to the design of tho ImPI=cnts. ant! (c) itas be,:n·approved in·wrlting-by-the·An:himct and-anyGovern.tnenta! Authority; !l!nant or-olh.., party whose approval is required.

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5,3 Ins!l!illJce Policies 2Jlrl Bwd!!.

Borrower shall not do or permit to be done anylhing that would affuot lhe coverage or indemnities pro>rided for plll'SU!Utt to lhe provisions of any inSUlllllt>e polloy, per.fonnence bond, labor end matorial psymcnt bond or any other boad given in ~on with the devalnpment of lho Land or tbe construclicn oftbelmprovements.

5.4 Restrictions on lndeble!lne:;s.

Borrower will not creabo, Incur, llSSume, guarnnree or be or remain liable, contingenily or otherwise, wilh respect to any indebtedness otherthan: ·

(a) CusfotnlilY accounts payable paid prior to any delinquency to tude erodi!or.s incuned fur servicos or goods purchased in the ordinary colll!lO ofBorrower's boslness or in coonoction with the dcvelopmc:nt or O:msl:nledon of !helmproverneots in •=rdeiice witb lhol'lan.; and Specifications ond the Budge~ omyided !hot the aggregate amount of all such accounts shall not exceed [$50,000] stony tim10;

(b) :In<lebredness to Lender under any of the Loon. Documents;

{c) Endorsements for collection, deposit or negotietion 2Jlrl WBCr.!!lties of prodllllls or ser>rices, in ea<:b. case, lncuned in the ordinary course of business.

5.5 Restrictions on Liens.

Borrower will not (i) crwe or incur or suffer tn be =te<l or incurred or to exist ill!)' Hen or encumbmnc<~ (including, wilhout Jimftstiori, any lease) upon ill!)' of the Properly of arry chamc!or whether now OWDed or be!USfter acquired, or upon the income or profits thereftom; ('U) tran>fer arry of the Properly or the income or profits therefrom; Cui) acqulnl, or agNe or have an option to acquire, aoy prope:t)l or assets upon conditional sale or other title retention or purchase money =rity agr<emen; device or ilmlngemcn!; (rl) su:fier to O><ist for a period of mere tbon thirty ('30) days a:tler the sam.e shall have been incmed ony indebtedness or claim or d<:m!Jlrl against itlhat if unpald mil!,ht by law or upon bankruptcy or insol.,.,ncy, or otlt&Wise, bs givon ill!)' priority 1\!ha!soevl:r over its general· creditors; or (v) sel~ assign, pledge or atherwlse trm1l!ii:r arry =ivabl= with or without recaut:Se; provided that Borroi'I'Ol' aury creato or incur or sufiilr 1D be created or Incurred or lo oxisl:

{A) Deposits or pledges made In 01>nneotion with, or to secure payment o.t; worlanen's compensation, unemployment insumnco, old age pensioll! or other soo!al securicy obligations;

(B) Lions on thol'ropercy "".,d to the oxtent permitted by theMortgnge;

(C) Liens on the Fropc<W and any other B!ISOts of the Borrower granl!!d pursuant to the lcrlnS of any Thkc-Out Flnant:ing Amlllgement(s} which shall be sulijeotto Lender's prior wrltton ~ns:nt; und

(D) Llens in favor of L!Jlrler under the Loan Documents.

Borrower will not enter into or pcrolit to !Otist my ammg<:ment or agn:ement (excluding 1his Agreement 2Jlrl the other Loon Documents) which direttiy or iadln!ctly prohibits llamJwer or soy

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Guarantor 'from creating. assuming or inclmiog any lien upon i!s properties, revenues or assets wheti>er now owne<! or horeaftar acquired in favor ofi..nthlr unthlr the Lom Documents.

5.6 Restrictions on Investrnentt.

Boaower will not make or pei!Jlit to exist or to remain ou!standing aey investment =pt investments in:

(a) marketable direct or guaran!l:orl obligstiomJ of the United Statts of America that m!llllre within one (I) year from the due of pliiCh.se by the Borrower;

(b) demand deposits, e•rtificates of deposl~ bankeel ~"" and time deposits of United States banks having total assets in excess of $1,000,000,000; and ·

(e) securities commonly lrnawn as "commercial paper" issued by a cmporation organi:red and e><i.sting uncle<- the laws of tho United Strtes of America ar aey stall> thereof that· at the time of porohas<> have been rared and the ratings fur which are not less than "P 1 • lf t1lllld by Moody's, and not less than "A 1" If nttlld by S&P;

orovided, howeyer. that sucll !nvestinenlll (ol'OOr than dcml!:nd deposits referred to in Section 5.6(b) above) will be considered Investments permitted by this Section 5.6 only if all actions have been tt!.lren to the sati!!faetion ofLender lo provide to Lender a fu:st priority perl'ected security interest in all of sncll Investments fre:: of all liens.

5. 7 Memr. Consolidatign and Pl5t!ositian ofAsse!!i.

(a) Borrower will not become a pnrty to any merger, amalgamation or consolidation, or agree to or effect any asset acquisition or sleek acquisition (other tlmn the acquisition of assets in ihe O<dica.Iy course ofbusinessconsistlO!Itwith past practices).

(b) Borrower will not b=m• a paey to or agree to or effect any dispositioil of assets, oilier t!tan the sale of inventory and the disposition of ob:!olete essets, in each case In the erdillary course ofbcsiness consistent with pl!SI:p"'etices.

5.8 Sale 8!Jd L;asebnck.

Borrower will net enter into any ammgement, directly or indirectly, whereby Borrower shaU sell or trnnsti:r any property owned by it lit cmier then or !hereafter to lease suclt property or!ease other proptlli;Y that BorroW~:< intonds to use fur suhsmnt:ially the same purpose liS !ho property being sold or transiilm:d.

5.9 T!1!11S!!otions with AfiiliBles.

Borrower shall not engage in 'IJJlY 1ranseation wi1h any affiliate ( othet then for services as employe<>..s, offi.c:n;, end direclllrs jlll:Suant to eootracts disclosed previomey to Boxrower inclurl!ng ecy coniJ:a!lt agnoelllent en: other a.rzangcment providing for the furnisbings of

.. ;;ervi.Cl>l;.'!o or ]ly, P.n:Mding for r.:ntal of _rei3lof plltl!onal property to ot fr~§ or otJ;etwise requiring paYJI!enJs to or from rmy sucll afilliale or to tho knowledge of BllllO'I\'l!r, any omponttion. pmtnership, trust, or other entity in whicll such effili!!!e has ils substantiallnt!:resf: or is an otlicer, directlll; txnstl:e, or partner on tctma mere favorable to such petSOn than what would nave be6Il al!>linable on an SJ:!ll's lcngih basis in the. otdinm:y com:se of business or th.e

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value crf whlch 1bc aggregate amount exceeds One Hllildred 'Thousand Dollms ($100, 000) per fiscal. year of Bo!l1:1Wet. Bomlwer shall lJOt enb:r into Management Agrcetnents, Service Agreemenffi or other similar 8grcetnents with Genern! Partner.

5.10 Change in .'Natl.lre ofBminess; Nem Line nf:Bminess~

Borrower will not engage in lillY line of busincos substantmlly different ftnm the lines of business condtWted by Borrower an the date hereof or engage or entor inlll rmy new line ofbuslness,

5.11 FinnncW Qlvenents,

(a) Thn!!ible Net Worth.. Borrower will not pemtit Tangible Net Worth at any 'time to be less tban an lllllll1lllt equal to the unpilid principal amoont of !he Loan mulfiplied by 1.25.

(b) Funded Indeb!edness to Shareholder's Eguitv. Borrower will not permi:t Funded 1ndebterlness at any 'time to be more than 1.50 times Shmcl!older's Equity.

(~) Compensalion to Se."tior Managers. Bonuwer will not pay or become legally obligal!ld to pay any bonus, fees, salaries or other compensation to Senior Managers eKceeding Two Hrmdred Flfty 'Thousand Dollars ($250,000) in any rolling twelve-month :Period. "Senior Maoa:,cer" meaDS and :includes my executive, employee, officer, partnllr, lllC!llber cllret:tor, or manager Villose ancnal compensation is One Hlllldred Iboosand Dallar.s ($100,000) or=·

(d) IntcrnstCovaraJ!e Ratio. From andaflorsnch'tlme aslhe Property is opcmtional as a meatpacking plant, Borrower will net peonit the IDterest Coverage Ratio at lllly time to be less than 1.50.

5.12 Chann in Cmrtrol. Without the poor written consent of Lender, tbl:re sh.ell be no change in me day-to-de.y control and l!ll!llogement ofBoaower or Gcnen>l Pw:t:oer, and no change in the Organizatiancl Dacumenls of Borrower or General Partnllr. Genernll'artner sball not witbdmw or be removed from Bonowerwithaut the prlcr writf<m cO!lliellt of Lender, lt beiog acknowledged md agreed by Boxrovm and Genernl Partner that any putported withdrawal by onemoval of General Partner withontthe prior Wrltlell. consent ofLender shall be null. and void.

SECTION6 Defunlt

6.1 Events gfDefuolt. Each of !he :fullcw!ng occmrences or events shall constito!e an ''Event of Default" fur purposes of tbis Agreement: ·

6.1.1 Nonpayment. 'Ihe :!ldlu:re of Be= to mala: any payment of principal or :inb:rest as set forth on the Protnissory Note or any payment of

_any otb<ll:-amount payable_ to_ or.iot lhe.beoefit.of !he Lender by BorroW!!'!' under this Agreement. !he Promissory Note, other Loan Do=ents or any other docmnent, instrcment or agreement delivered by Boncwer to Lender in conne..-tion herewith, when and as doe.

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6.1.2 NotrlJerfurmance. The failure of BOirOwer to observe or perfunn my of the obligations, •nrulcrtl!ldngs or agt•ements 1h3t are requW:d tu be observed 9r . performed by 'it ui!rlcr tbe tarnl5 of Ibis Agreement, the Promissory Note, the Loan. Docin:nents or any other documents, instnm:ients, or .agreements delivered to Lender bY Barrawer in connection herewith or therewith (other tlum pey:tnellt) if su.ch failure confumes beyond the grace period applicable tb=to, or such shorter petiod as mey be · reasanahly speci:!'ied in a wrltten notice thereof from Lender in. the event suoh ftiliure could reasonably be expemed tu :result· in immediate loss or damege or il:repru:ab~ harm to Lender to amalerinl degree.

6.1.3 Dissolution or T.rnn:;fur. The dissolution, liquidation, merger or consolidation ofBOJIOwer with or i$ m:zy other entity, or the sale of sl1 or my substantial portion of the assets ofBonower.

. . 6.1.4 Warrantjes. AJry xepresetml!ion, Wili:tailty, sohedule; cer.fillcate, :!it)ancial s!lltement, report, notice or other writing .fi:mrlsbed by or on behalf. of Borrower to Lender or any !ep=tation or wsmn±y contained in this Agreement, the Promissory Note, the Loan Doc1l!Uenls .and/or any aocument, cclificafio or ag:reement fumlshed by Eon:ower to Lender in CQll1lection herewith or therewith being fulse or misl.erulillg as and when given or becO!Uing fuise and misleading at 1JIJY time in the:futme.

6.1.5 ERISA. The OCC'J!I<UCC of my reportable event under the Employee Retirement Income Security Act of 1974, as smeode<l, in respect of eny employee benefit 'pirui maln1ained fur employee a ofBom>wer.

6.1.6 L(tigatian. The entry of my financial judgment xeou!ting 'from judicial or administr.rtlve aciion aguinst Botr:OWer or with respect to il• assets, in which the amoont of such judgment alone or in combinal:lo.n with a:IlY other un..catisfied judgment exceeds Fifty Thononnd and Noll 00 D?llars_ (SSO,OOO.OO), if such judgment remaiml unrli.seharged for a period of sixty (60) days or moxe a:fler tbo date O!' which suth judgment becomes :final without any cigb:t of appeal to a higher court, and 1l1lless Bor.rower ohall have 1ake11 whatever action is tequired, inciuding without limitation, posting a.supenredeas band, to stay proceedings to etrfim:esuehjudgmeat.

6.1.1 Noncetfotmllilca on other Indebtedness. The occum.nce of any de:fimlt or c:vent of default, subject to curative rights, i{ anY. or any ovelit which xequire3 the prepayment of 1iorrowed men")' or the accelenrtion of the maturity or _paymetJi thereof, ttllder the tenns of any evidence of indebtedness or· other contracl: or sgreemect issued or assum.ed or entered

--into-by BoiiOwet with an}!-lhitd party where the..amount.:il!'Jnl'led, aloim or in combination with f!llY other default or event, crraJd reasOllllbly ba ~d to =eedFlfty ~llSaud endNo/100 Dollars ($50,000.00).

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. '

6.1.8 B!!nlguqtcy - Filing of Petjtion. The :filiug by Borrower of a petititlll seeking relief, or a consent qr answer ccoseoting to a petition seeking relief agai:ost Borrower lllldot'lbe Fekral Bankruptcy Code, as now const:ituted or h!mafter lli!lellded, or any other applicable fedetal, state, local or fbteign law reg:m:ling bankruptcy, insolvency or ll!llditanl rlgirts ge:nsrally, or the consent by BOIIOwer to the. institution of proci:edin,as thereunder nrlhe :filing of any &UCh petition or fur the appointment or takil:Jg possession of B:Jrf substantial pOrtion of B=wer's assets by n:ce!ver, liquidator, assignee, trustee, custodilm or similar of!icial.

6. 1.9 fun!mmtyy - Entry of Order fur RelieE The en1Iy of a d=ee or order by anY court for relief in respecrt of Borrowru- noder t1:u: :Fec!erel Blllllo:nptcy Cnde, as now constituted or hereafttt llJIIended, or tmy other oppllcable federal, state, local or foreign law regarding bankruptcy, insolvency or ctedltors rlg:lrts generally, or appointing or the tlking of possession of any substantial portion of !he Borrower's assets by receiver, llquidl<tur, assignee, trustee, custodilm or similar official, or orderjng the winding up of or liquide1ion of t1:u: a:fiili:r.l of !he Borrower and any snch decree or order shall con1ione '!l!lSteyed and in effect for a petiod of sixty ( 60) canse<:Utive days.

6;1.1 D Insolvency. BOI!'O?ru becoming msolvent or :fililing or being tl!ll!hle to pay their debts as they mature, or admitting in writing their inability to pey their debts as they became doe, or making a general assignment lbr 1he benefit of their cteditnrs, ·or enterhlg hlto any agreement suspeoding the· transaction. of all or a:o.y substantial portion of !heir llSlli!l and customary business oponilions. ·

5.1.11 Enyiromncntal Compliance, The iSS1lllllCe or receipt of any ilotice alleging vialatian of any environmental sta1ute, law, ordinance, :rule or regnlation relsling to the pr=llt, previCll!!}y or subsequently owned or· leased real pOl]lerties of Borrower, provided that such violiltinn :remains nncU!ed Sbd:y (60) days after the receipt of t1:u: relevant notice by BottOWer.

61.12 Other Default Tne occutrence of an event that cons litotes a default or Even. of Default Ullder eiiher the Prom:illsory Note, any of 1he Loan Da=ents, and/or any other document, certificate, instrmnent or agreement delivered by 1he Borrower to t1:u: Lender in com=tion with the l:l:anl!actions contemplated herein or t:hen:in.

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6.1.13 Curing !leiilu!L El=pt as otherwise stnted herein, if BorroWer is in defilult Wlder any of tile conditions se~ forth in Section 5, Borrower shill have Thirty (30) days fu:nn when notit:c of dllfault was given, to cure the same.

6.1.14Lapse g!'Permits or AJlfll'!1Yals. Ally permit, license, <:ertiiioate or upproval th~ Borrower iS required to obtnin with respect to the constru<:tion, operation, development, .leasing or malntenanoe of the !mprovemonis or the Property ·lapses or ceases to be in full force and effi:ct and the Sllllle is not cured within five (5) days of S!!llh lapso or cessation. ·

6.1.15 Material Adverse Ch!U!ge. In the reasonable opinion of Lender, the prospect of peyment or perfunnam:e of all or aey pnrt of the Obliga!ions has been impaired be<:1UIS!l of a matl:rial adverse clumga in lho iiDaru:inl coodltioo, IeSUlt:s of operations, bosiness or properties of Borrower, Owusntor or any other Person liable far the payment or performance of any of the Ob[ig!llions.

7.1 Rz!rnadies on Defuu!;.

SECTION7 ;Remedies on Default

Upon the happening and during tho conlimlance of any Event of Delimit, Lander shall hwe the right, ln addition to any other rights or remedies ave:ilable to Lander und<:r the MDrtgagc or ney of the other Lom Documents or under applicable Law, lo exeroise aey one or more of the lb!lowing rights IUld remetties:

(a) Lender may tenninare its obligJrtion to disburse any further principal of 1he Loan purstll!llt to this Agreement by Notice to-Bouower.

(b) Lender mey accelerate all of Borrower's Obliga!ions under the Loan Doouments whereupon sueh Obligalions shall become immedi!l!lliy duo md paynble, without notice of defunl~ aceeleratlon or intention to accel~ pt'lsentment or demand fur peyment, protest or notice of nonpe.yment cr disbaimr, or notices or demwds of any kind or cluuucror (all· of whieh nre hereby waived by Borrower).

(o) Lendor mey apply to ney eaurt of competent jurisdiction ior, and obtnin llppaintment at c. receiver forihc Property.

·(d) Lend<:r mey fur-..cltl"" the MOJ1gcgc and/or exeroise all~ with respect to any o1her Collateral.

(e) Lendar mey set off the llltlounts due tend<:r nndJ1r the Loan Dooumenls against ill accoUJJts, credits, money, securities or ofuu property ofllom:lwer now or hen:after under the oonlro!, maintained in an aecount, or In the pcssessinn of Lender to the ~"'dit or fur ihe acoonnt ofEorrower, without notice to or the consent ofBorrower •

. ---{f) Lander.-mQY-elltel' into possession of tho Property and perform aey and all work and. . labor neccssa<y to complete the development of 1he Land md the eonsttuetion of the

ImprOV'C!!lects (whether or not in =rdlln"" with tr.e Plans and Speeificalions) and to employ watJ:lui.en to JXI'!l"'t the PIOJ>er!y and tha j'mpmvements. AU sums e::pendad by Lander for sueh purposes sball be dllemad to bave b""" advan<:ed tc Borrower llllderihc Nc!io and shill

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be secured by the MartgBgo and the other Securil;y DocUinents; For this purpose, Borrower hereby constitutes BDd appoinl9 Lander its !rU1: and lawful llliumey-in-:fuet with full power of substitution, which power is coupled with an in=t, but without ony fidnciaey dnt;y, to complem the work in the name of Borrower, and hereby empowers sald lll!omey or attom~ys, in the !IB!lle ofBam>wer or Lender:

(.i) To use MY funds of Borrower including any balBDce which mey be under the contltll or maintained in an =ount of Lander and any fund• wbich may =in unadilanced hereunder for the purpose of completing ihe development of 1ha Land and ttu.· constnlCtion of tho Improvements, whether or not in the manner called fur in me Plans l!lld Specfficajjons;

(h) To make such additions and chanJlOS and =actiODS to tho Plans and Specifications as ahall bo necessary or dosinlble In the judgment of Lander In complete 1he development of tho L<!nd and the I<ODfltnlcticn ofthclmprovements;

(iii) To cmp loy such conlr\letors, scbcontrac!m3, agents, =hit:eets and inspec!m3 as shall be necessary or deslrable for said p\U')lO'le; ·

(lv) To pay, settle or ccmpromiso all e:tisting bills and claims which ere or mey be liens against the l'roperty, or may be necessmy or desirable for 1hc completion of the work or the cleamnce of title to the Property;

(v) To "'"ecuta all applications .and e<:rttiicales which may be required in the name ofBOlTOWU..

(vi) To file fur record, at Borrower's cost and "'"Pense aud in Borrower's" name, any notices of completion, notices of ::essalicn.oflobor, or any other notices tbnt Lender in Its sole and absolute discretion may consider ncressary or desirable to prot>:ct its securil;y; and

(vii) 't'a· do any and every act with respect to the development of the Land and the coru;trucUon of the Improvements which Borrower may do in its own behalf:

It Is nndmtood and agreed 1het this power of attorney shall be deemed to be a power coupled wiih an interest wi>Jch =at be Wlol-ed so long liS any Obligaticrul ere ouGtm!dfug. Said a!!omay-in­fact shall also have the power to prosecute and defend all actions or p~ga in con:neotion with the dev=lopmcnt of 1he L<!nd and the construction oflhelmprovernenlll and to tlke such aeticns and tD n:quira such porfosmanco as Lender me;' deem necessary.

(g) Jn the event B= is not able tQ pay all obligalions .in full, then. 1he amount immr:dlatety due and payable s1uill bear !merest at the iDJ:reased rate ofTwelve Percent (12%) per 1Ullllllll or, if105s, the 11UlXimum rate peonlti>:d by law U!lli1 all fllll!J1.lJlts due h=Ullller or thereunder are paid in full and 1he Lender shall. wilhout limilatian be enlit:led to immediate payment of such amountstoge1herwitb all of the interest accrued. thereon.

Se<:lion 7.2 No Rele11se or W"eivec Rqm«<fes CnmulativB and Concurrent.

Borrower shaD oat be relieved of any Obligation by =n of the fililure ofLender to· comply with. any reqt1l'St of Borrower or of anY other l'= to tlke action to furcolose on the Property UD!Ier the Mortgage or otherwise to enfurce sny prnvimon of the Loan Documents, or by reascn of the release. ~ess of ccostdermlon, ohll or any part of the Property. No delay or oruisoion of Lender to """"'""' say right, power or n:m.dY accruing 1lpCll tho happenjng of an Event of De.fuuLt shall

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impair any such right, pcwer or remedy ar shall be constttn:d to be a waiver of any such Event of Default or arry acquleserico themin. 'No daley or omission on 1he part of Lender to BlW1lisc any cption fur aocelezation of the matnrii;Y of lho Obllga!iODS, or for ibn:cloSIIT!l of the ~rtgage or tbe eo<ercise of any right or remedy under any of the other Loan Documents or applicable Low following my Event of Default as aforesaid, or any other option grnnted to Londa hereunder in any one or mora instances, or the ac<:eptallca bY under of any partial ps:ym.ent on account of the Obligaticcs shell constitute a wai~-er of any such Event of Oefuult and each Slll>h oplicn :;boll =uln ooolinuously in full force and effuct. No remedy herein coofened upon or =wved 1o Lender is i!llended to be exclusive of any other rnt'.edios provided for in the Losn Dctlllllents, and each and every such remedy

· shall be cumulative., and shall be in addition to every other remedy given hereunder, or under the Losn Document<, or now or hcreetlor codstlng at Law or in equity or by statute. Every right, power end remedy given bY the Loan Documents to Lender shail be corn:unent and nmy be pur.~ued separotely,

· ==ively or togother against Borrower or !he l'ropert,y or any pert !hereof, and <Nery right, power and remedy given bY lhe Lnan Documents mey be e>rercised from time to time as often as may be deemed expedient by under.

Sec:lion 8 Conditions ofLendlng

The obligation oftbe Lender to make !be Loan, or any installment thereof, is subject to the following conditions:

8.1 Docnmentrtion. fu addition tn the coniL'tio!lS pw:edent set forth in Section 6.2, the obligation of the l.<mder to make the Loan, or any installm.ent thereoi; is subject to the condition !bat Loruier shall have received, at tbe expense ofBorrower, each of the followlng, in each. duly execured and othetwise in fmm and substance salisfuctory tn Lender and its counsel. and in SllCh llllmher of slgned co!lllte!parl5 as Lender may request (except fur !be Promissory Note, cml.y one of each shall be signed):

8.1.1 Certificate of Limited Partnersbip and Certificate of Existence of Borrower. A copy of the Cerlificale of Lim1!:ed l'at:tnetship and a Certi:ficaie of Existence of Bm:roWlll', in each case certified by 1he Secretary of State fur1he State of its fotmation, to be true and correct

8.12. Certificate of No Defunlt. A certificate signed by Borrower c<II!i:!Ying that: (a) no Event of Deihult bas ocolll:J:l!:d, :is contin11ing or will· result :from the l1l!lking of tho Loll.li, or any applicable installment thereof; (b) tlurt Boltllwer !>.as observed and perfoaned all obligations, unde;Jaklngs and agrcemerrts rcquil:ed to be obs=d and perli:ttmed under this Agreement, the Promissory Note and the Loan Documents; and (c) that the ~ons and 'Wil!!l1llties of Borrower as conlllined herein ru:id 1herein Sill true and COJied: as of !he elate of 1:ba Loan, ar fu? applicable illstaJ1ment, as t1Jonal1 such represenlatibns and warnmties were lll!lde on and as of1l:at date.

8.1.3 Resolution of Borrower. A copy of the IOSolutlOn of tbe partners and di:rectors or D!ll!lagers of BOIIDwer autlwrlzing or

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retifyi:og the =cu1:ion. delivery and perl'ormaru:e, respectivcly, of this Agreement, the Promissocy Note, and each of the other Loan DOlltll!leats and each other documeot, certificate or agreement provided for herem ortharein.

8.1.4 Certffieates of Incumbency. A certificate of the partners of Borrower certifying the names of the Managers and Members of Borrower autbcitized to sign this AgreClllCI!t, the Promiasoty Note, the Loan Documents and ell ether agreements, docmnents 'and inst:r\lilleilt3 provided fur hetein and therein, together witli a sample of the t:ue signature of each such Manager and Member. Lender may coru:lasively rely on such Ct:Itilleates.

ll.\.5 Promissory Note. Tho Promissory Note, dcly exeou!ed by :Eon:ower. ·

8.1.6 Segurlty and Pledge Amement and Mortgage. The Seolirity and :Pledge Agteel!lent and :M:ortgage, dcly executed by Borrower.

8.1. 7 Lien Releases. Lender shell baw completed any and ell UCC searohes it lllll.Y de01:0 to be necessary or approprlnte in connection with. 1hls Agreement and the lrmlsac!i01l5 contemplatEd herein and Borrower slJa!J have prov.ided Lender with such fully executed UCC-3 Termination Staicmetrts and such other terminations and/or releases as nre necesssry in the opinion of Lender and its counsel, in their sole distttetion, to tetrninale or :release ell liens, claims, seourity intere:.ts, clmxges or encumbnmces affecting the :real estate or any other llZSets 0\Vlled by the Borrower, except as setforthinE:du'bi.t C.

8.1.& · _Miscell;mecus. Such other docrments and ce.-ii.ficales, as Lender lllllY reasonably request.

8.1.9 Eledge of Membership Unfu. Borrower agrees to ellow the pledge of all. of its Membership Units, Limited Partnership Shares, General Partner Shares, Stock Subscrlpfulos . or ather sucll. docwncnts to Lender as addiliooal collatenlllbr pa)IIDC!l! hereunder.

8.1.1 () Aoorais?). Borrower agrees to provide an appn;lsal of sufficient amount 1c sati.sf)' Lender aDd sm:h appraisal shall be in an amount such that all covenants herein are met.

. _.,ll.ll. S!irte Pledge. :Prior to. any disbursement of foods, Borrawer shall ob!llin a commitment from the State of Sonth Dekllta to lend at least Ten Million Dollars (.$10,000,000) throngb. various programs

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8.1.12. USDA. Prior to any disbUISement of :1\mds, Borrower shall provide to Lender proof from !he United States of America's Depamnent of Agriculture that .the USDA will loan e:t leas! Ten Mlllion Dollalll (SlO,OOO,OOO) tn be used in said Project.

8.1.13. EPOCH STAR. Prior to any disb\Il!lelli.ent of funds, B<mOWer shall provide to Lellder proof that an agreement to purchase Epoch Star has been agreed upon and all rlgh!B thereunder assigned to Lender.

8.1.14. J,ieriholdg. All licnbolders shall ~ve signed a tonsent as agreed upon by the parties.

8.1.15. Title .!nsnrnnce, Title insur.mce shall be obtained with a Lenders Poliay in fitvor of1endor.

8.2 Addjliotml Condilioos Precedeid: to Lender's Obligations. Each of the following ill an e:<pr= condition precedent to the obligation of the Lender to make the Loan, or my instllllment th=t; to Ben ower ;pmsuant to the !erms of this Agreement. In the event s:n.y one or more of the fullowing conditions are not satisfied to Lender's reasonable satis:fllclioo, the Lender mey e:t ito option: (i) waive said condition ami fund the Loan or !he applicable inat!lltment therea:t; (n') snspend pecfurma:acs and pursue such. other xemedles as may be otlu:Iwise a:vel.lab1e ll!lder this Agreement, at law or in equity; or (ill) tllmllnate this Agreement, in which event the Agreement shall be of no ftlrlhl:r :folCl: or e;ffect whatsoever as be:tWeeo the parties.

8.2.1 Bw=tations and Warranties. At the date of this Agreement and the timding of the Loan or any applicable insl:llllment thereat; the reoresentatlons and W!lmlllties set fuith in this Agreement, the Promfusory Note, the Loan DocWillmtS and all other documents, instnu:!ll:nts or agreements delivered tn Lender by Bonower in collilel'lion herewith or !herewith shall be true and conect as e:t such date with the same effect as though those representations and wll:tiimlies had been Ill8de on and as at sucll dste, UDl.osa such. represeulatiQDS specifically relate to an eadier date.

8.2.2 No Ddimlt AI tllf: time of tbls Agreement mtd the funding of !he Loan. or applicable inHtBllm<mt thereat; and inm:Iedistely after giving effect to the Loan or the applli:ahle installment thereoi;

· Bonower be m emnpllance with all the tetms and provlsicns set lbrth horeln aodfor in the PilJlllhsory Note, the Loan Documents and all oilier documents, iDStronleol1l or agreements delivered to Lender by ~ in coanectio!l-hll11!Witll (lr tberewiili, on their :parl..tn be obsemd or perfbtmed, and no Eveot of Defuult shall bave oo:mred and be coe:tlnuing a:t the time the Lollll is llll!de or W<>uld :result from waking the Loan or any sppf!cable installmeotthereo:t:

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8.2.3 Ahsenre of Materia! AdverSe E-v<mts. There shall not exist my ·slale of :l'ilci3 or c:ircumstsnl:es which could reasonably be expected to ha-ve a matmial ad-verse effect on 1he assets, financial condition, !eS1llts of opetlltioiJs or prospects of Borrowl:r or on 1he ahilily of Borrower to :repay 1he Loan in full when dne and/or obsme or petfonn my part of 1Im obligations, undertakings or agreements required to be observed or performed by 1hem under llrls Agreement, 1he PromissorY Note, 1he Loan Documents or any other docmnent, instnnnent or agreemenls given to lender in co:oneotion hetewith or 1herewith.

8.2.4 No Iniunctlon. No iiijunction, stay or restmining order sba1l be in e:f'rect prohlbiting !be CO!lSUIIllllJ!1on of 1he tnmsaclions contempla!ed by this Agreement.

·g,2.5 Absence of Litigation. Exc<:pt as disclosed in Exhibit F, no action, suit, in-vestigation or proceeding shall lutve been commenced· or 1hreatened by any governmental agency or my other person, fum or ei:rtity against !be Borrower and/or any of its or 1heir affiliates, members, officcrn, .!Illlllagers or directors, with respect to 1heir properties or wi1h :respect to 1he transactions contemplated hareby, challeoging the rights of 1he pertles hereto to .consummate snch traosaclions of which could reasonably be expected to hlrve a material adverse effect on 1he assets of the Bormwer or 1he :financial conditinn or =Its of opc:rnlions of pro.s:pect:f ofBorrower, or on 11m ability of !be Borrower to observe or perfoc:n my obligation, undertaking or agreeme.nt:IeqUhed. to be observed orpetformed by it under this Agreement, the Promissory Note, 1he Loan Documents or any other dccumeo!S, instrw:nen1s, certifications or agtllemenis delivered to Lender in connection herewith or 1herewith.

8.2.6 All Proc!Wljngs to be Satisfactory. All lll:tion and other proceedlogs to be 1Bken by Borrower in connection wi1h this Agreement sball be reasonably satisfucto:cy in form and substaoce to Leader md lender's legal counseL

SECTION9 MisceUaneol!ll

9.1 Liability c£ Lend!!r. Lellder shall In no evcnl: be respollsible or liable to any person o1!mr 1han Boi!OWer for 1he disbutsement or :failnre to disbtuse 1h~ Loan Proceeds or

. _.Jll!.y part !hereof and neitber !be C'1l!J.eral Con:rr!<:tor, .Consb:m:tfan Cm!snltanr, nor. any Subcontractor, Sub-!rubconlnlc!ct; Lsborer or Material Supplier, Vendor or pro\ider of services or seller of any commodities or cattle shall have my right or claim against Lender under thilt .Agre!mlellt or other Loan Docum<mts. ·

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9.2 Waiver of De:llru!t. Lender ma.y, by written. notice to Bonower, at any time ' and from time to time, waive any defirult in tbe :pedi>Illlanca or observance of any condition, covC!lllllt or other tetm hereof, wbich sball b" fur such period arul subject to such conditions as shall ba .specified in any S1!Ch notice. In the case of any such waiver, Lender and/or Botrower, as may be appropriate, sluill be restored to tbcir fo!lller :position and riglm llllder this Agreement, fue Promissory Note arul tbe Loan Documents, and an.y Event ofDeiimlt so waived slllill be deemed to be ctu:ed and not continuing; however, no such waiver sball <;l<fend. to or impair any rlght subsequent thereto or to any subsequent or olher Event ofDe!irolt.

9.3 Notices. Any Notice, request, demand, waiver, co=t. approval or olher coilllillJ!rlc:alion wbich is requin!d or p=itted hereunder sball be In writing. All snch Jl(ltiJ::es shall be delivered personally, by cer!iiied mall, retum receipt requested, or by reputable OY!l!llight courier (In either case costs prepaid and add!essed as _provided her:elu), and shall be deemed given or made upon receipt thereci Alllltlch notices arc w be given or mede to 1he parties at fuc follCIWing ad<l=es (or to such other address as any party may designate by a notice given luaccordancewitb the provisions of this Section): ·

If to Lender:

With a copy to:

Ifto Borrower:

With a copy to:

JoopBollen SDIF Limited :Pactnersbip 6 416 Production Street North Abeirlean, SD 57401

Jeffrey T. Sveen Si.egcl, Bamett & Schutz, LJ...P. 400 Capital Blli.lding 415 s. :MahJ. Street 1'.0. Box 4.90 Aberdeen, South Dakota 57402-0490 [email protected] (60S} 226-1911 Fax

David Palmer Nortbero.BeefPru:!=!LimitedPattnetship 31!749 135"' Street Ab<ml.een, South .Dakota 57401

RocyKlng Bantz, Gosch & Cremer, L.L.C. 305 Sixth. A ve.ntlll SE . Ab<mieen, Santh Dakota 57402

9.4 No Wuiyer; CJmmlati:<6 Reme;lies. Lender sball Ollt by .any act be deeme4 to have waivad any tight. or Icmedy hereunder.. No i'ailuxe to exercise, nor Bill' delay m exeroisiog, on fue part of Lender, any right, power or pti"Vilege hereunder sball operate as a wsiver tberccf. No single or partial ~a of any tight, power or privilege hereunder sball

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nreclude any other or further exen:ise thereof, or the entcise of any other right, power ll! Prlvllege. A waiver by Lender of any right or :remedy hereunder on any one occasion shall not be construed as e. ba:r to any right or remedy wlll<:h Lemler would otherwise have on any fuime occasion. The rights and remedies herem provided are cumnlative, may be exercised siugly or concm:rently and a:re not =Iusive of any rights or remedies provided at law or in equity.

9.5 Survival of Agreements. All coveoimts, agreements, undertikings, obligations e.ud all represen:tlltians and wammlies set forth or made herein shall survive delivery of the Promissory Note, the Loan Documents and the making of !he Loan, and shall nevertheless remain in effeci and be enforceable as between the parties and in accordance with their terms for the slatllte of.limitaiions period a:pplli:ahlc thereto.

9.6 Further Documents. Bo::rowor agrees "to do silch further acts and things, and to execute, acl::nowledg?: and deliver sucl!.additiOlll!i documents or instr.llllents as Lender may at any time =nably request in collllecl:ion wi:th the at!minlstretlon of this Agreement or related ro the Promissory Note or the Loan Documents or in order to better assure and coo:fum to Leader its rlgil!s and powers hereomier and thereunder.

9. 7 Binding Agreements: Asshrnmeuts. 'This Agreement and the re.t:ms, covenents and conditions h=f, shall be biDding upon B!ld inure to !he benefit of the parties hereto and their tespective heizs, successors, trustees, :receivers, admirdstra!ms, ood assigns, except thBt Borrower shall not be permitted to assign this Agreement or any interest herem or in !he Lollll. Docmnents or the collateral, or any part tbered; as described herein and therein, or otherwise pledge, erumrnber or grant any option with I"..5pect to the collamral govemeij. by the Loan Documents, or B!l'J part thereof; except to the extent a:peciilcally pemilited under !he tenus of the Lorul Documents.

9.8 Enti1:e Agrwnent. This Agreement, !he Promissory Note, the Lollll. Documents and any docllilltlllts, instrumei:rts, or agreerneots gi'Y<lll to the Lender by Borrower hereunder or thereunder represent "the comprete and exclusive agreements of the IJarties with respect to "the m1bject matter hereof and !hereof and replace and supet:~ede any and all prior agreements or anderstmldings, whether wt!tten or oral. with regen! !hereto and all negotil!Jicns leading up to !heir executian and delivery.

9.9 Amepdmenl Neither this P...greement nor llll.Y }liOVisio.os lhe:reof may be emended, modified, waived, lfsebarged or t!lmrin!!1ed generelly, except by an insftwnent in writing duly signed by or on behalf ofB0110wer and Lender.

9.10 Jncornoraticn by Refurence. Eecli of the recitals set furth at the beginciog of this Agreement. all of the exhibits whil:h ere llttru:hed hereto and all of the documents and agreements reii:reru:edhcieirl, speciflcally including, without llmita1ioo, the Promissory Note . and1he· Loan Documents,. are-mCiltj)Ol'-ated-l!ctein- by thl& reference .wifu. the same-force-and­e:fl\:ct as if the= were set:furth in the body ofthis.Agreementin their entfroty.

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9.11 ~an. Any 1lllllOl1aincy or ambiguity c:dsting herein shall not be interpreted a,aalnst a:ay party because such party prepared any portion of this Agreement, 00!. shall be intcl:p!cled acconling to !be applicaiicm. of rules of ilrterpretstion of contracts generally. The headings used in this Agreement ere inserted fur convenience and reference only and a:re not intended to be an integral part of or to affect the meaning or interpretation of this~

9.12 Seyerabilltv. Provided the same would not deprive the Lender of the benefit of its baxguin hereunder or lberennder, if any ti:tm or ]liOvision of this .Agreemenl; or the l'J:omisso:ry Note, the Loan Documents or any other document or instroroent exeeured. in connection therewith, il!cluding amendmcmll; and moififications ill: the applicati<Jll theteof to a:ay pmon or cht:umslance, shal1 to a:ay exteat lie invll1id or enfon:eahlc in any judsdiction in which enfurcemcot is sought, 1he terms and provisions or !be application of such t=s or pravislons or the a:pplication of such terms or provisions to persons or clreiJlllShmces shall be inefl:l:l<:1lve to !be ex1:eot of such invalidity or unenfurceability in such jurisdiction wr.hout invalidating the remaining provisions hereof, which shall ~•rtheless remain in ibroc and be enforceable as among the parties hereto and any such prohibition O'l' unenforceollility shall not invalidate or render unenfOrceable sucb provlsions in any other jurisdiction.

9.13 Time js of the Essence, Co!!lll1ll!ilion ofT'= T'.une is of ilia essence with respect til every covenant, conditi<Jll to be satisfied, aod action to be tllken :hereunder, and the parties slJall proceed accordingly with respect to every action necessary, proper or advisable to make effective the transactions contemplated by this Agreement. Whenever lbe last day for the exe.."cise of a:ay pmilege or the discharge of any dUty borcunder shall :IBll upon my day which is not a business day, the party having snell prlvilege or dnty may exe<cise such privilege or discharge such duty on the next sncceediog blJSineSs day.

9.14 Qhoice of Lgw; This Agreement shall be go~emed. by, and coostrued in BJJcorda.nce with, the iDtema1 laws of the State of South Dalwta. Any legal. action or proceeding w!lh respect to 1his Agreement or any doCilllleot reiared hereto shall be brought only in the Fiflh Judiclal Circuit Court in Aberdeell, Brown County, South Dakam, or the Uoited Siates District Court fur the Distdet of South Dllko1a, Northern Divisino, in Aberdeen, Brown Couo!y, South. Dalrota and, hy execctio.tt and dclivexy of 1his Agre=ent, each. party hereto hereby accepis 1hr itself and in respect of i!s property, generally and nncondifionally. tbe jurisdiction of the a:fbresa:id courts. The parties ~eto hereby !nev<lcably waive any objec!Jon, including, withoot limila!ion, any forum non conveniens, which a:ay of tbem may now or hereafter hlm to the bringing of such action or proceodiog in such respective jurlsdictiOI!S.

9.15 Waivero£JurvTriaL

Boaower and Lender waive trial by jUiy in respect of any dispote and any action on ~.such~diapute. T'.ulscwai:ver is.koowingly. willingly and voluntarily .wade by BOI:rower and I.mder, and Borrower and Lender herby represent that no repteSei~tatlons of :fact or opinion have been made by any pemon or entity to induce this waiver of ttial by jUiy or to in sny :my modify or Dllllify its affect Thill prevision is a material indncemeot fur the pru::ties entering

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• into this Loan DoctlllleJltS. B=wer ll!ld Lender are esch bore by antbrniwl ttl file a. copy of this section in 'iJJI'] proceeding es conclusive evidence of this waiver of jmy trll!l. Borrower furth~ represents and wm:rants that is h!!S been represented in this signing of this Agteement and i:n the making of this waiver by fndependent leglll collDSel, or ha.s had the opportunity to be represented by indepl;!ldem legal coU!ll!el. selected of im awn free wm, and that it has had tho opportunity to discuss this waiver wlth c01lnSel.

9.16 No Wnl!!!!Jtv by Lender.

By scoejlting or approving llll)'thing rnqu~ tn bo observed, perfonned or fulfilled by Borrower or to bo given tn Lender pun:uant tn lhis Agreement, including any certificate, Survey, receipt, apptaisal or insunmce policy, Lander shall uot be deemed to have Wlill'lDitel! or represented the suffioieney, tegelity, effeoti\leness or leglU eflect of tho smne, or of eoy term, provision or ooodition thereof and any such ac<:eptance or appmval thereof sball not be or constitun. any wllmlnly or represectation with respcw tberoto by Letulor.

9,17 Stnndan:l gfConduot ofLender.

Nothing contained in lhis Agreement or eoy otbor Loan Document sball limit tho right nf Lender to e.=cise its business judgmont or to act, in th: eontext of the granting or withboldiDg nf any advance or consont under this Agn:emeat or eoy other Loan Doemnent, in a sull.feetive =ner, wltetlter or not objectively reesonable under the clmnnslllllces, so long as Lender'! axercise of its businoss judgment or action is mailo or undertaken in good fuith. . Borrower and Lender intend by tho foregoing tD set furtb and affirm their entire understanding with respe« to 1h• 5ll!ndluU pumJaot to which Lendar's duties and obligalions are ttl bo judged and the plltl!metm witbin wblch Lender's discretion may bo o:tetcised bereunder and llDder ti1o other Loan Doc1lll1CiltS. A3 uo;od herein, "aood faith» me!!llS bonesl,y In met in the ccndll<lt and lrBnsru:ticn concerned.

9.18 CREDIT AGREEMENT NOTIGE. TO PROTECT BORROWER AND LENDER FROM P.liT MISUNDERSTANDING OR DISAPPOIN'I'MENTS, ANY CONTRACT, PROMISE, UNDERTAKING, OR OFFER TO FOREBEAR. REPAYMENT OF MONEY OR TO MAKE A.'N OTEER l'INANCIAI. ACCOMMODATION lN CONNECTION WI'IH TH!S LOAN OF MONEY OR GRANT OR E.X!ENSION OF ClmDIT, OR A..W AMENDMENT OF, CANCELLATION OF, WAIVER OF; OR SUBS'I'ITUTION FOR ANY OR ALL OF THE TERMS OR PROVISIONS OF ANY JNSTRUMENT OR DOCUMENT EXEctrrED JN CONNE.CTION wrrn: TH!S LOAN OF MONEY OR. GRANT OR EXTENSION OF CREDIT, MUST BE JN WRITlNG TO BE EFFECTIVE.

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ll'i! WTI,'NESS WHEREOF, the parties llereto have set their hanDs aru:l seBls lhe day BJJd year :fust above wrl.tom.

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PROMISSORY NOTE

On the 4th day of November. 2010. for value rcct.-ived. Northt:rn BeefPadcrs, LP., a St>uth Dakota Limiled Partnership or:ganim:l t.mdeT the laws of the Stale of South Dakota. (hereinafter referred to as -Borrower~) wh= principal place of business is 38749 !35th Strect, Aberdeen. Somh Dakota hereby promises to pay as follows:

ln return for a I= Bom>wer =~i,·ed, Borrower promises to pay tbe principal sum of up 10 U.S. Si''Y Million Dollars ($60,000,000) (this arnoW11 is calk'<! "principar}. plus interest to the order of L<:nder. Lender is S!>IF Limited Pa.-mei>lrip 6 of 416 Production Street North.. ~rdeen. South D-..kota 57 40 I.

Borrower under.;tands that if said loan is fWlded for less than $35.000.000. at the discretion of Lender, then said amount funded by A1Jb•U!;t 1, 2010 shall be the loan amounL

Borrower understands Llmt Lender may transfer this Note. Lender or anyone who tak~-s this Note by tr.msfer and who is entitled to rtteivc payments under this Note is to be called !he ~Lender."

Borrower understands tll:lt the amount funtk--J could be I= than 1he Slatc."<l amount above if tl1e U.S. lmmig.mtion and Natumfu:ation Service does not approve all eases. ln such an c>-cnt, ,;aid amount shall be considen:-d Ll>e amount aprrovcd and funded.

2. lnt .. n:st.

Interest accruing at a ye-arly rate of 3.5% shall be charged on any unpaid principal until the full amount of principallms b=1 paid. Borrower will pay interest at a Y"""IY rate of 3.5o/c.

3. PnymCI!Is.

{A} Time 2nd !'lace of Payments.

Borrou\.-r "ill pay interest yearly in arrears on the anni,·er.;ary date of tho first disbursement of said Loan runds ·and each anniversary date rhc'1L-after until paid in full. All interesl accrued during the given year shall be paid in full. The entire principal amount shall be due in full on the 5"' ye:rr :mniversal)' from the date of U>c funding of tlr.: tir>1 loan. Such paym:<nt shall be due on November 4. 2015.

Borrower's yearly payment will be in the amount of all interest earned for the year.

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4. Borrower's Righi to Prepay.

Goriuwor hb.S tit~ riglu to malw P"'l"')'m<:nt of principal only if all investors b.aYe n:cciYcd removal or any conditions impo.'>Cd by U.S. lmmigration and Naturali7.ation Service. pursuant to lhe EB-5 Program. Only wht:n that has .been.n.-cei\•ed. \\ill BorrO\\"t!f be entitled to make a...,y prepayment at lhe sole discretion of~/

v· Borrower may make u full prepaymem or partial prepayments "ithout paying ElllY

repayment charge. L~-nder "ill usc all of Borrower·s prepayments to reduce the amount of principal that Borrower owes undcr this Note. If Borrower makes a partial prepayment. there will be no changes in th~ due date or in the amoWll of Borrower•s yearly payment unless Lender agrees in writing to those changes. l..endcr shall notify Borrower when all conditions !rave been removed.

5. LoOln Charges.

If a law. which applies to this loan and whlcb sets nuOOmWll loan charge$. is linally interpreted so that the interest or other loan charges collected or to be collected in coooe<:tion with this loan ex<Xed the pcrroincd limits, then: ( J) any such loan chu:rge shall be reduced by the amount necessary to reduce the chu:rgc to the pcnnined limit. and (ii) any sums already collected from Borrower which exet=led permi11ed limits will be rciimded to Borrower. Lender may choose to make this refund by reducing the principal Borrower owes under lhis Note or by making a direct payment to Borrower. If n refund reduced principal. the reduction v.ill be treated as a panial prepaymenL

6. Borrower's Failure to Pu)· as Requit'ed.

(A) L:ate Charge for (h·crdue Payments

Lr Lender Ira.< not received the full payment of any yearly interest p:>ymcnt by the end. of t"n (10) calendar days after tbe same is due. Bomm-er will pay a late charge to Lender. The amount of the charge will be 10% ofthc o'crduc payment of interest

(IB) ikfeall

If Borrower does not pay the full amount of each annual paymc:nt on !he dale it is due, Borrower will be in d~fault.

(C) Notic-e of !}t:!3nh

If Borrower is in default. Lendc'T may sc-nd Borrower a writletl notic.: telling Borrower that if it does not pay the overdue amount by a certain date. Lender may require Borrov.-cr to pay inunedimely the full amoum of princip:ll which has no! been paid and all inleresl tha1 Borrower

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owe; on that amount. l1lat dare must be Ill least 30 days after the date on which the notice is delivered or mailed ro Borrowcr.

(D) No W:aiver by Leuder

EYc..ll if .. :It a time: when Borrowc:r is in dc::fault, Lender does ool n:quire Bom>W~'T to pay immediately in full as rl=ibed above. Lender will still have the right to do so if Borrower is in default at a later time.

1 f Lc:oder h."lS required Borrower to pay immediately in full as described above. Lender ";11 have the right to be paid back by Borrowet for ail of it-' costs am! exp::ns.es in enforcing this Note to the e.'<lent not prohibited l'r)' applicnble Jaw. Those c>.-pc'l!SCS inalude. but are not limited to. re350nablc attorneys• fees.

Unless applicable luw requires a different method. any notice that must be given to Borrower under this 1\otc .,.;n b:: given by delivering it or by rruilling it by fil"!>1 class mrulto Borrower at the l'ropcrty Address above or at a dilfcrent address if Borrower gives L<."nder a notice of Borrower's different address.

Any notice that mus1 be given to Lender under this Note: "ill be given by mailing it by first cl= mail to Under at the addn."SS stated in Section I above or at a different address if Lender gives a notice of that diffi."''CTTt address.

8. Obligntions of Persons UJgder this Nore.

/1.11)' person who is a guardlltor. surety or endorser of this Note is also ubligalcd to keep all of the promises m:ode in this Note. including lhe proruist: In pay the full amount owed to do these 1hings. 1\ny person "ho takes O\'er these obligations. inclu<ling th.: obligations of a glllll<l1lll>f. 'urety or endorser of this Note, is also obligated 1<> keep all of the promiS<:S made in this Note. Lender may enforce ils rights und~-r this Note against ench person individually or against all of them tos<:ther. 1his means that any one of above may be required to pay all of tl..: amounts owed under this Note.

i\.11y other person or entity who bas oblignticms Wlder this Note ·waive the rights of pr<:SL'tltm<:nt and notice of dish<>nor. ~Presentment~ means the right lo require Lender to dcm:md payment of amounts due. -Notice of Dishonor~ means the right to require Lender 10 give notice to other P"rsons thnt amounts due hn'·e not been paid.

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1&. Secared Note.

In addition to the pro!eCUons giveo to Lender under this Note, a Mortgage and Seeurity lot=:st (the usecuri!y loslrumentj, da!cd the smne date as this Note, protects Lender from possible losses which might result ifBotmwe.r does m>tlreq:l the promises which Borrower made in this Note. That Security lnst:rument descxibed bow and unde:r what conditions Borrower may be required to make lmm•diate payment io full of all amounts Borrower owes under this Non:.. Some of those ctmdrurms are described as follows:

(A) T.-aosf.er of the Propz:rty or a Bmclicial Interest in BoJTI!lWer

If all or any part of the Property as defined in the Mof1El!ge, or any interest in it is sold or lnlr'.sfr:m:d (or if a beneficial interest in Brurower is sold or transferred and Borro"'-.:r is not a n!!ll!ral person), without Lender's prior written conseot, Lender may, it its option, require immediate payment in full of all sums secured by this r:locuirn:nt. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this document

If Lender cxr:rciscs this option, Lender shall give Borrower ootice of acceleration. The notice shall provide a period of not less thao 30 days from the date the notice is delivered or mailed v.itbio which Borrower must pay aU sums secured by this documcnt 1f Borro""r fulls to pay these sunJS prior to the expiration of this period, Lemler may invoke any remedies peunittc:d by this document or under South Dakota law without further oatice or d=aod on Borrower.

WITNESS TilE HAND(S) AND SE.-".L{S) OF THE UJ-.iuERSIGNED.

Signatures ofBorrowcr:

c::;;:~ t::> ~ Northern Beei1"itders. L.P.

EN:: __ -=z~~D~~ __ zoo ____________ __

By· Oshi.k Song ·Its· Di.rec:tor mtd Sole iiSher of Wort:he..m.

. seei JSaCJiii'frs l&a.ltiagem:eu ~ • L .. L .. C .... i.U General Parc:oer

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AMENDED CREDIT AGREEMENT

1 This Amended Credit Agreement (the "Agreement~) is made and entered into as of the '1 of 1/Y\ ,;.,-< [., , 2011 by and between Northern Beef Packers, Limited

Partnership, a South Dakota limited partn~rship, (hereinafter relerred to as "Borrower") of 38749 135'h Street, Aberdeen, South Dakota. 57401 and SDlF Limited Partnership 6 of 416 Production Street North. Aberdeen. South Dakota 57401, (bereinaftcr referred to as '"Lender"):

WHEREAS, Borrower has requested a Loan, as hereinafter defined, from Lender in the principal amount of up to Sixty Million Dollars ($60,000,000) ro be funded by up to One Hundred Twenty ( 120) investors (EB-5 Investors) participating in the EB-5 Program, more sP.,cifically kno\\11 as the Immigration and Nationality Act, Section 203(b)(5) et seq. (the .. EB-5 Program"); and

WHEREAS, Lender has agreed to make the Loan to Borrower upon and subject to the terms and conditions set forth herein and the other documcrtts evidencing and securing the loan.

NOW. THEREfORE, in consideration of the covenants and agreements contained herein the receipt and sut11ciency of which, when performed, arc hereby acknowledged, 'the Borrower and Lender hereby agree as follows;

SECTION 1 Loan Terms

Ll Description of the Project The project involved is a beef packing plant currently under construction in Aberdeen, South Dakota (Project) located on land described in Exhibit A attached hereto (Land), which is to be owned and operated by Borrower

1.2 Loan. Borrower acknowledges and agrees that the Loan will be funded by Lender soldy from investment proceeds arising out of the EB-5 Program and that the Lender shall have no obligation to make or fund the Loan unless and until it receives investment proceeds arising out of the EB-5 Program. Subject to the terms of this Agreement, Lender agrees to makt the proceeds arising out or the EB·S Program available to Borrower as follows:

(a). Lender shall loan up to Sixty Million Dollars ($60,000.000) (the "Loan") as the same is raised pursuant to the o!Tering bein!l conducted by Lender under the EB-5 progran1. l11e parties agree that Lender may make the first Loan disbursement to Borrower only after Lender has received timds under the EB-5 Program in an initial amount or Five Million Dollars ($5,000,000). Disbursements shall be made solely at Lender's discretion.

(b). All subsequent disbursements or installments shall be in the minimum amount of Two Million Dollars ($2,000,000) or higher, unless otherwise agreed upon by the

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panies. Said disbursement.> shall be made as soon as practical after Lender has

received said sums.

!.3 Note. The Loan shall be evidenced by a Note in a form and substance satisfactory to Lender and its legal counsel (the "'Note") attached as Exhibit B.

1.4 Collateral. As collateral for the payment, of all amounts that become due and owing to Lender under this Agreement, the Note, the Security Agreement, the l\·iortgage, the Collateral Assignment., the Pledge Agreement. the previous Credit Agreement dated November 4. 20 I 0. except as amended herein. any and all other documents which Borrower, Guarantor or any other party or parties have executed and delivered, or may hereafter execute and deliver. to evidence. secure or guarantee the Obligations, or any part thereof. as the same may from time to time be extended, amended. restated, supplemented or otherwise modilled. Borrower agrees to grant Lender a security interest in and a first lien, (subject to subordinations. to Lender$ in the amounts listed on Exhibit C). upon all assets now owned or hereinafter acquired by Borrower. including. but not limited to. all equipment. furniture. fixtures. accounts receivable. livestock. supplies. cash and inventory. as well as a mortgage on the real estate together with all tenements, hereditaments and appUrtenances thereto and all fixtures, equipment and improvements attached thereto or located thereon (the "Real Estate"). and all additions and proceeds thereof. Said security interests shall be evidenced and perfected as provided in a Security Agreement (the "Security'") and mortgage (the "Mortgage'") in a form and substance satisfactory to Lender and its legal counsel. In addition to the first lien as specified herein, all 0\\11ership shares of Borrower held by General Partrier and Limited Partners shall be pledged as additional collateral as outlined in the Pledge Agre~ment. For purposes of this Agreement. the Security Agreement, the Mort!,'llge. the Collateral Agreement. the !\late. Pledge Agreement, the previous Credit Agreement dated November 4, 2010, except as amended herein, any and all other documents which Borrower. Guarantor or any other pany or parties have executed and delivered, or may hereafter execute and deliver. to evidence, secure or guarantee the Obligations. or any pact thereol: as the same may from time to time be extended. amended, restated, supplemented or otherwise modified. are collectively referred to herein as the "'Loan Documents."

t.5 Sccuritv Interest. Lender shall be granted a first security interest in ull collateral of the plant as set fonh in Exhibit D. (subject to subordinations as set forth in Exhibit C only). and all ownership shares of Borrower held by General Partner and Limited Partners as set forth in the Pledge AgrecmenL

1.6 Term. The term of the Loan shall be for live (5) years from the date the initial Loan Disbursement is made. {hereinafter referred to as "Initial Funding Date.") The Note shall run for said five years and be due and payable in full live years from the Initial Funding Date.

1.7 Interest. Interest shall accmc at a yeariv rate of Three and One-Half Percent (3.5%) on any unpaid principal balance until the fuli amount of principal has been paid. lnt.:rcst shall be computed on a 365-day year. Interest shall be paid annually an the anniversary of the initial Funding Date, which parties acknowledge such date to be November

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4, 2010. Therefore. interest shall be paid annually on said Anniversary Date for all interest then due and owing. If not paid when due. then principal and interest shall accrue interest at the default rate on both the unpaid principal and unpaid interest.

1.8 Orieination Fee. Borrower shall pay an origination fee of One Percent (1%) of the amount borrowed up to $60,000,000. ·n,e origination fee shall be paid within Five (5) days after each disbursement of the Loan on the amount disbursed as described in Section 1.2 above.

1.9 Fees. Borrower shall pay all reasonable attorney fees and costs incurred by Lender in furtherance of this Loan including, but not limited to preparing all documents and completing all items necessary for dosing this transaction. Borrower shall also be responsible for any lees incurred by Lender in monitoring all disbursements of funds and any reasonable costs incurred in obtaining investor approvals. 1l1esc fees include, but are not limited to any anomey fees paid to Siegel. Barnett & Schutz. L. L.P. or other attorneys, any bank fees charged, consulting, monitoring or other fees charged by any entity hired by Borrower or Lender to monitor the construction and operation of said beef plant during the term of this Agreement. Said t'ees shall be paid immediately upon demand by Lender. Lender shall be .:ntitlcd to withhold from any disbursement any amoum which it anticipates will be charged throughout the life of this Loan.

!.I 0 Prepavment. No prepayment shall be allowed until all EB·S investors have received conditional removal of all conditions a!Tecting their permanent residency status by the Department of Immigration or as agreed upon by the parries. Once conditional removal of all such conditions for each individual investor has been received, prepayment shall be allowed at the discretion of Borrower. Prepayments shall be applied first against any accrued and unpaid interest, then any remaining sum shall be applied against the unpaid principal balance. Such prepayments shall not relieve Borrower of the obligation to continue to make any regularly scheduled or required repayment of the outstanding indebtedness hereunder.

1.11 Spendim! of Funds. Borrower agrees and warrants that all money it receives pursuant to this Agreement, shall be invested in the Project and only used for advancement of the Project, which includes paying off of any construction loans, satisfying liens, purchases of equipment, supplies, land, building. operation of the Project. or any others listed in the Lender Approved BudgcL Said funds shall not be used for any other purpose unless agreed upon in writing by the parties.

1.12 Title Insurance. Within thirty (30) days following the execution of this Agreement, Borrower agrees to provide the Lender a title commitment obtained through Clark Title Company. issued by a reputable title insurance. company licensed to do business in the State of South Dakota and agreeing to insure title to the Real Estate in Lender in the aggregate amount of Sixtv Million Dollars ($60,000.000), subject only to easements and restrictions of record as of th; date of this Agreement, liens for unpaid real estate taxes for calcndirr years 2009 and 2010, if any. (the "Title Insurance"), any Mechanic's Lien set limh on Exhibit C. Borrower shall cause such policy ofTitle Insurance to be issued to Lender at Borrower's sole cost and expense.

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1.13 EB-5 Program. The parties acknowledge that Borrower has previously received equity funding from Sixty-nine (69) EB-5 Equity Investors (EB-5 Equity Funding). The parties further agree and understand that the original EB-5 Equity Funding in the Project is separate and distinct from the Loan. The Loan is additional funding to obtain up to Sixty tvlillion Dollars ($60.000,000) in new funds. which meet the Loan Criteria Program set fonh by the United States Department of Immigration and qualifying for the EB-5 Program.

!.14 Non-Revolving Loan.

The parties acknowledge that the above Loan is a Non-Revolving Loan.

The panies acknowledge that during the tcrrn of !his Agreement and any disbursements being made by Lender, Borrower shall meet all conditions set forth in Sections 2, 4 and 8 of this Agreement, unless any conditions are waived by Lender.

SECTION2. Representations and \Varranties of Borrower

Borrower represents and warrants to Lender that each of the statements contained in this Section 2 is true, correct and complete as of the date of this Agreement. and will be true. correct and complete at and as the credit or loan proceeds are made available to Borrower and throughout the term of this Agreement. Borrower acknowledges that Lender is relying on each of the representations and warranties set forth in this Section 2 as a material inducement to enter into and perform its obligations under this Agreement. Unless otherwise expressly limited. all of the representations and warranties set forth herein shall survive execution and delivery of !he Note, other Loan Documents, and funding of the Loan. Accordingly. Borrower hereby represents and warrants as follows:

2.1 Organization and Good Standina of Borrower. Borrower is a South Dakota limited partnership, duly organized, validly existing and in good standing under the laws of the State of South Dakota. and is authorized to do business in each state in which the nature of its business requires that it be so licensed.

2.2 AuthoritY of Borrower. Borrower has full right, power and authority necessary to execute, enter into and deliver this Agreement. the Note and !he Loan Documents. and to perform the obligations required to be observed and performed by the Borrower. The entry into this Agreement. the Note and the Loan Documents by Borrower and its performance has been approved by all necessary action, including the approval of its partners in accordance with its Certificate of Limited Partnership. Pannership Agreement. and the laws of the State of South Dakota.

2.3 ValiJ Agreements. This Agreement, the Note. and the Loan Documents will, wllen the same arc signed and delivered to Lt!nder, constitute legal. valid and binding agreements that are enforceable against Borrower in accordance with their terms.

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2.4 Non-Contravention. The execution, deliwry and performance of this Agreement, the Note and ihe Loan Documents will not, with or without notice or the passage of time, violate any provision or any requirement of law or of any conu-actual obligation to which Borrower is bound and will not result in or require the creation or imposition of any lien on any of ihe properties or revenues of Borrower pursuant to any provision or requircmcm of applicable law or any comractual obligation which Borrower or its properties are or may in the future be bound.

2.5 Third Partv Consents. No consent. authorization or waiYer by or filing \\·ith any governmental agency or any other person. firm or entity not a party to this Agreement is required to be obtained or made by Borrower in connection with the execution or performance of this Agreement, the Note. ihe Loan Documents, or the observance or performance of any obligation, undertaking or agreement required to be observed or performed by the Borrower herein or therein.

2.6 Taxes. Except as to the unpaid ta"<es disclosed in Exhibit E. Borrower has filed or caused to be tiled ol! federal, state, county and local tax returns which are required to be filed. and have paid or caused to be paid all personal property, real estate. income or other =~. and all special assessments. \\iihholding. conuibutions and governmental charges and levies (collectively and individually referred to as "Taxes") as shown on such returns and reports. or on ony assessment received by Borrower. to the extent thot such Ta'<cs have become due (except for current Tax<.'S not delinquent and Ta"<es being contested as provided bv law. in gocxi faith and by appropriate legal proceedings lor which adequate reserves have b~n provided, and as to which no foreclosure, sale or similar proceedings hav~ been commenced).

2.7 Liens. None of the Borrower's assets. properties or real estate is subject to any mortgage. pledge or other lien. encumbrance or security interest, e!<ccpt as set tanh in Exhibit c.

2.8 Adverse Contracts. Neither Borrower nor any ot' its properties are a party to anv aarcemcnt or instrument, (except all the Loan Documents entered into with Senior L;ndc~). or subject to any charter or other restriction, or any judgment, decree or order of any court or governmental body, which could reasonably be expected to have a material adverse etTect on the ability of Borrower to observe or pert'onn any of its obligations. undertakings or agreements under this Agreement, ihe Note. or the Loan Documents. Borrower does not haw knowledge of or notice that is in default on the performance, observance or fulfillment of any ·obligation. covenants, or conditions contained in any such agreement. instrument, charter or other resrriction. judgmenL decree or order of any court or goverrunenta! body. which could be reasonably expected to b.ave such an ct'fect.

2.9 Litigation. Except as disclosed in Exhibit F. no litigation, including derivative actions, arbitration proc~edings. law suits, govcmmental proceedings or investigations, arc pending or. to the knowledge of Borrower, threatened against Borrower.

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2.1 () Sell. Convev and Transfer. Except for sales. conveyances or transfers on commercially reasonable terms for adequate consideration made in the ordinary course of Borrower's business, Borrower has not sold, conveyed, transferred, disposed of, or otherwise further encumbered any of its propenies or assets within the last ninety (90) days.

2.11 Lawful Interest. The amounts to be received by Lender as interest paymt:nts under the Note and/or other Loan Documents are lawful and are neither usurious nor illegal under the laws of the Stale of South Dakota.

2.12 Environmental Compliance. Borrower is in compliance with all environmental protection laws in each jurisdiction where it is presently doing business, except for a small diesel fuel spill. the remediation of which is in the current budget and v,111 be remedied. Borrower has not received any written notice from any governmental agency regarding any action or investigation, pending or contemplated, pertaining to any alleged violation of any environmental protection laws with respect to any real or personal property presently or previously owned by Borrower.

2.13 ERISA. Borrower has fulfilled all obligations under the Employee Retirement Income Security Act of 1974. as amended, in respect of any employee benefit plan maintained for employees of Borrower, no reportable event or prohibited transaction has occurred with respect to any such employee benefit plan. and ull such employee benelit plans are fully funded.

2.14 Compliance with Laws. Borrcwer is not in violation of any federal. state or municipal statui<:. law, ordinance, code. notice, rule or regulation, nor has Borrower failed to obtain any license, permit, ti'anchise or other governmental authorization necessary to the ownership of its properties or the conduct uf its businesses in a timely manner to the extent that such license. permit, franchise or other governmental authorization has become obtainable.

2.15 Defaults. Borrower is not in default of any contract. agreement or undertaking to which it is a pany. nor has any event or circumstance occurred which, but lor the passage of time or the giving of notice, or both, would constirute an event of default thereunder or an Event of Default, as defined in Section 6 of this Agreement.

2.16 Permits. Borrower has obtained all necessary local, state and federal pem1its and licenses tor construction of its project and facilities to the extent that such permits and licenses are obtainable. In th~ event parties bt.~omc aware of any other pcrmiL"i or licenses that are required then Borrower shall promptly obtain such permits and licenses. In the event such pcnnits and licenses arc not immediately obtained when required, then Lender shall have the option of withholding any further disbursements until said permits and/or licenses have been obtained.

2.17 Packer:,; and Stockvards Act. J 921. Borrower has complied in all material respects with the Packers and Siockyards Act, 1921, as amended (7 U.S.C. § 181-229) and the regulations promulgated thereunder so that the trust for the benefit of all unpaid cash sellers or

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growers of beef thereby shall not arise in connection with its purchase of any such livestock. Borrower has not taken any action which would impair its ability to benefit from the trust established under such Act in connection with any sales by the Borrower of beef c"vercd by such Act.

2.18 Job Creation. Borrower represents and warrants that it will meet all job creation rcquirem<:nts as indicated by the direct and indirect multiplier set forth by fNS, which translates to Three (3) jobs tor every Fiw Hundred Thousand Dollars ($500,000) loaned to the Project. A total loan amount of up to $60,000.000 v.ill require the creation of Three Hundred Sixty (360) jobs. Borrower agrees it will meet the job creation of Three Hundred Sb:ty (360) jobs or the number of jobs required based upon the final Loan Amount. within Two and One-half(2.5) years after the Initial Funding Date, as required by the EB-5 Program. The parties agree that these jobs are in addition to the original job creation required by the equity funding already in place.

2. 19 First Series of Limited Partners.

Prior to the date of this Agreement, each of the Sixty-nine (69) EB-5 Investors (EB-5 Equity Investors) purchased and received one (l) Limited Partnership Unit in Borrower for Five Hundred Thousand Dollars ($500,000) per uniL Neither the Borrower. General Partner or any atliliate of Borrow<::r or General Partner has any obligation to repurchase or redeem any of the Borrower's Limited Partnership Units issued to the 2008 EB-5 Equity Investors by Borrower nor any liability contingent or otherv.ise to the :!008 EB-5 Equity lnv<::stors pursuant to any agreement or under Law. In addition. Borrower has made no representation, warranty or covenant to any 2008 EB-5 Equity Investor or other third party concerning the completion date. cost of construction of the improvements, the date of commencement of Borrower's business as a packer. the property. the number of jobs to be created, the continual operational cost.s of the company once the plant has been completed. Except tor any rights provided under the Laws of the State of South Dakota. the Limited Partners of Borrower (acting · individually or collectively) are not entitled to remove or replace the General Partner or any additional General Partners.

2.20 Eooch Star Limited.

No lurther borrowing shall be made v,.ith Epoch Star Limited.

2.21 Plans anJ Spccitications.

The Plans and Specifications are complete and adequate for the Construction of the Improvements. TI1c Plans and Specifications have been approved or will be approved when needed by all Governmental Authorities having or claiming jurisdiction over the Property and by the bcncliciary of each restrictive covenant atTecting the Property whose approval is required. To the best of Borrower's knowledge. the Improvements, if constructed substantially in accordance with the Plans and Specifications. will fully comply with all applicable Laws, including those Laws relating to access and facilities for disabled persons.

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2.22 Utilities.

All utility services necessary for the Construction of the Improvements and the operation thereof for their intended purposes arc available at the boundaries of the Land (or will be available upon the completion of work shown in the Plans and Speci!ications), including telephone service, cable television, water supply. storm and sanitary sewer facilities, nantral gas and electric facilities, including cabling for telephonic and data communication. and the capacity to send and receive wireless communication.

The toregoing representations and warranties arc in addition to the representations and warranties of the Borrower set lorth in rhe Note and other Loan Documents. all of which are incorporated herein by this reference, and all of which shall be deemed to have been made by Borrower at and as of the date thereof with the same force and effect as if the same were set forth in the body of this Agreement in their entirety. and all such representations and \Varranties shall likewise sun~ve the funding of the Loan and the execution and delivery of the Note and other Loan Documents.

., ., ' -·--" Separate Taxation of Propertv of Borrower .

Borrower represents .that Borrower owns the real and personal property subject to this Agreement and that said property is taxed separately from any other property of Borrower.

SECTION3 Representations and Warranties of Lender

Lender represents and warrants to Borrower that each of the statements contained in this Section 3 is true, com.'Cl and complete as of the dale of this Agreement and will be true. correct and complete in all material respects at or upon each disbursement of the Loan being made tn Borrower. Lender acknowledges that Borrower is relying on each of the representations and warranties set forth in this Section J as a material inducement to enter into and pertonn its obligations under this Agreement. Unless otherwise expressly limited, all of the representations and warranties set forth herein shall survive execution and delivery of the Note and the funding of the Loan. Accordingly, Lender hereby represents and "-arrants as follows:

3.1 Organization and Good Standing of Lender. Lender is a South Dakota limited partnership duly organized. validly existing and in good standing under the laws of the State of South Dakota and is authorized to do business in South Dakota.

3.2 Authoritv of Lender. Lender has full right, power and authority necessary to execute. enter into and deliver this Agreement and all other Loan Documents and to perform the obligations required to be observed and perlormcd by Lender.

3.3 Valid A~reemcnt. This Agreement and all other Loan DocumenL' wilL when the same are signed and delivered to Borrower, constitute legal, valid and binding agreements that are enforceable against Lender in accordance with their tenns.

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3.4 Non-Contravention. 1l1e execution, delivery and perlbrmancc of this Agreement and any Loan Documents will not. with or without notice or the passage of time. violate any provision or any material requirement of law or of anv material contractual obligation to which Lender is bound. •

3.5 1l1ird l'artv Consents. Except as provided in this Agreement, no consent, authorization or waiver by or tiling with any governmental agency or any other person, finn or entity not a party to this Agreement is required to be obtained or made by Lender in connection "'irh the execution or performance of this Agreement, or lhe observance or perfommnce of any obligation, undertaking or agreement required to be observed or pcrfom1ed by Lender herein or lhcrein. If any consent hereinafter is determined to be necessary, Lender shall immediately obtain !he same.

3.6 EB-5 Program. The Loan qualified under the EB-5 Program as an investment that would enable Lender to obtain immi!,'fallt visas for its limited partners.

SECfiON4 Affirmative Covenants and Agr..,mcnts

Until all obligations of Borrower hereunder and under the Note are paid and fullillcd in full, the Borrower agrees to comply with each of the following Co\'enanrs and conditions:

4.1 Construction.

Borrower shall cause all of said funds advanced to be used in con51ruction or related Lender approved budgeted expenses oi the improvements at the beef plant and to be commenced and prosecuted in a good and workmanlike manner and shall cause the same to be completed in accordance with the Project Schedule and substantially and in accordance with the plans and specifications nnd Budget:

Architect or Project Manager shall deliver to Lender within ten (10) days of each calendar month ~nd commencing with the month in which the tirst advance of this loan is made. a wrinr:n monthly status report regarding tht: status of construction of improvements and any deviations from the project schedule and if deviations arc made the specific reason rhen:tbre from tht! Project Schedule of Plans and Spcciiications and/or Budget and if any deviations are made, sp<leifically explain and justify the reason for 'uch deviations

(a) Purpose. Reallocation. Revenues from Propertv. Funds shall be advanced by Lender in otr.:curdancc with the terms of this Agreement to pay those expenses related to the Loan and the Property that are described in the Budget provided by Borrower, but not, in the aggregate with respect to any line item set forth in the Budget, in excess of the amount of the Loan to be disbursed for such line item. as set forth in the Budget without Lender's prior written consent. Borrower will receive each advance in trust Cor the purpose of paying onJy those costs for which the advance is made and wBI utilize the funds advanced lor no other purpose. With the prior approval of Lender not to be unrellSonably withheld or delayed, any cost savings, actual or estimated, affecting any approved line item within the Budget may be reallocated by Borruwc::r to any ather line item within d1c Budgcl. Upon completion of the lmprovcmc::nts and the payment of all costs in c.onnection therewith, any undisbursed proceeds of the Loan shall be allocated to the interest reserve or to such other line item liS Lender shall approve.

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Each disbursement from a contingency reserve shall he subject to approval by Lender as to the amount and purpose for which such disbursement will he used, which approval shall not he unreasonably withheld or delayed. No prior approval is needed for itt:rns less than Twenty .. five Thousand Dollars ($25.000).

(b) Draw Rcouests. Unless otherwise agreed by Lender. advnnt.-es shall be made us funds become available in increments of not Jess than Two Million Dollars ($2.000,000) based on Draw Requests signed by an authoril.ed signor in the form attached hereto as Exhibit H or in another fom1 approved by Lender. Each draw request lor hard costs shall be set forth on AlA Forms G702 and G703 or another form approved by Lender, and shall be reviewed by the Loan Monitor,. signed by the Project Manager and approved by the Architect. Draw requests for hard costs shall snow the percentage of completion of construction and shall set forth in trade breakdown form and in such detail a> may be required by Lender the amounts expended and/or costs incurred for work done and materials incorporated in the Improvements. Rctainage will be withheld and released in accordance with the terms of Exhibit I. Each draw request shall be supported by such inlom1ation and documentation (such as paid receipt. invoices. statements of accounts, contracts. lien releases, etc.) as Lender may reasonably require to assure that amounts requested are to be used to reimburse Borrower tor costs previously paid by Borrower or to pay costs incurred or to be incurred by Borrower that are to be paid !rom proceeds of the Loan, as set forth in the Budget.

(c) Liabilitv of Lender. Lender shall in no event be responsible or liable to any Person other than Borrower for the disbursement of or failure to disburse the Luan proceeds or any part thereof and neither the Project Manager. Loan Monitor. Contractor nor any subcontractor. sub-subcontractor, laborer or material supplier shall have any right or claim against Lender under this Agreement or the other Loan Documents.

(d) Loan M<>nitor Fee. Borrower agrees to pay to reimburse SDRC. Inc. or SDIF LP 6 any reasonable fee for the Loan Monitor. or any otller consultant hired by Lender to overse-e said Project for tho term of the Loan. Said ft:c shall be payable monthly and either shall he withheld from any construction advance sums prior to full disbursement or promptly paid upon request.

(e) After any advance being made. Loan Monitor shall provide a written report indicatin~ tltat the work for which payment is heing funded, hilS been completed in accordance with the Plans and Specifications using the AlA Contractor Payment Documents.

(f) All payments pursuant to this Section (b) shall be handled through the title insurance company and the title insumnce company shall be required to obtain all lien waivers and perform any other customary and usual duties title companie; are usually required to perfonn.

4 .:! Approval \'>f Construction.

No work a.sociated with the Construction of the Improvements shall he commenced by Borrower unless and until the Plans and Specifications have been approved by Lender, by all

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Governmental Authorities having or claiming jurisdiction over the Land and Improvements, bv the beneficiary of any applicable restrictive covenant whose approval is required, and by any other party whose approval is required under applicable agreements. and unless and until all building, construction and other penn its n~cessary or required in connection with such work have been validlv issued and all fees. bonds and any other security required in connection therewith have been paid ~r posted.

4.3 Compliance \Vith Laws: Encroachments.

1l1e Improvements shall be constructed in accordance with all applicable Laws. The lmprovt:ments shall be constructed entirely on the Land and shall not encroach upon any easement or right-of-wny. or upon the land or others. Construction of the lmprovc,nenls shall occur wholly within all applicable building restriction lines and set-backs, however established, and shall be in strict compliance with all applicable use or other restrictions and the provisions of any prior agreements. declarations. covenants and aJI applicable zoning and subdivision ordinances and regui:Jtions.

4.4 lnsoections; Cooperation.

Borro'\,·er shall penn it representatives of Lender and the Loan Monitor to enter upon the Land. to inspect the Improvements and any and all materials to be used in connection with the development of the Land and the construction of the Improvements. to examine all detailed plans and shop drawings and similar materials as well as all records and books of account maintained by or on behalf of Borrower relating thereto and to discuss the affairs, tinances and accounts pertaining to the Loan and the lmpro\'emcnts \\·ith representatives of Borrower. Borrower shall at ~Ill times coLlpernte and causl! the Contractor and each and every one of its subcontractors.. sub-subcontractors and material suppliers to coop<!ralt: with the representatives of Lender and the Luan ivtonitor in connection with or in aid of the performance of Lender's functions under this Agreement. Except in the event of an cmcrgencv or durin a tht: occurrence and continuance of a Default or Event of Default. Lender shall give Borr~wt:r at le;st t\v·enty-four hours· notice by telephone in each instance before entering upon the Land and/or t:xercising any other rights grunted in this Section.

4.5 Contracts. Vouchers and Receipts.

(a) 13orrower shall furnish to Lender, promptly on demand. any contracts, subcontracts, sulP.subcontracrors~ bill::; of sale, statements, receipted vouchers or other agreements relating to the development ,,f the Land or the Construction of the Improvements, including any such items pursuant to which Borrower has any claim of title to any materials. fixtures or other artidl!5 delivered or to be delivered to the Land or incorporated or to be incorporated into thi!' lmpro,·cmcnts. Borrower shall furnish to Lender, promptly on domand, a verified written statement. in such form tlnd detail as Lender may require, setting forth the names and addrcss~o:s of all contractors. subcontractors, sub·subcont.raciOrs and suppliers f11mishing labor or materials in the development of the Land or Lhe construction of the Improvements and showing all amounLS paid lOr labor and materials and all items of labor and materials furnished or to be .... furnished for which payml;!nt has not been made and the amounrs to be paid therefor.

{b) All contra~ts for the pt:rfonnancc of any work or the supplying of any labor. materials or services for the design or Construction of the Improvements, shall provide that all rights and liens oftht: applicable contractor~ architect. l!ngim::er, supplier~ surveyor or other party and any right to remove removable Improvements are subordinate to Lender's rights and liens, shall require all subcontrncts. sub-subcontracts and purchase orders to contain n provision waiving £o thl! extent permiUt..'d by .applicable law and. to the extent not waivablc.

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subordinating the subcontractors'. sub-subcontractors' and mechanics· and materialmen·s liens and any right to remove removable Improvements to Londd s rights and liens for all work perf on ned for which payments are made to the applicable contractor. architect, engineer. suppliers. sun•cyor or other party. -

{c) The parties agree that the Construction Contract.. Architectural Contract, and any other contracts entered into by Borrower shall be coltatcrd!ly assigned to Lemler at Lender's request.

4.6 Pavmenl and Performance of Contmct~al Obligations.

Borrower shall perform in a iimely manner all of it5 obligations under the Architect's Contract, the Construction Contract and any and all other contracts and agreements related to rhe construction or operation of the lmprovemems. and Borrower will pay when due all bills tor services or labor performed and materials supplied in C<Jnnection with the development of the Land and the construction of the Improvements. Within sixty (60) dnys after the filing of any mechanic's lien or other lien or encumbrance against the Propetty. Borrower will promptly discharge the same by payment or filing a bond or as otherwise as permitted by Law. So long as Lender's first priority security interest in the Property and all other assets pledged to Lender has been protected by the filing of a bond or othcrwis~ in a manner satisfactorv w Lender in its solt: dis\:rction~ Borrowt!r shall have the right ro contest any claim. lien or encumbrance. provided that Borrower does so diligently and \Vithout prejudice to Lt:ndcr or delay in completing construction of the Improvements. Borrower shall furnish to Lender prior to commencement of work associated with Construction of the .lmproverm:nts evidence. in fom1, substance and amount satisfactory to Lender. of the performance bonds procured for all contractors and material subcontractors and suppliers of construction hard costs naming Lender as an obligee unless arrangements sadsfactOI)' to Lender have bt.-en made for payment by Lender directly to any such contractor. subcontn1ctor or supplier.

4.7 Correction of Construction Defects.

Promptly following any demand by Lender. Borrower shall correct or cause the correction of any structural defects in the Improvements, any work that fails to comply with the requirements of Section 4.3 and any material departures or deviations from the Plans and Specifications not "pproved in writing by Lender.

4.8 Insurance.

Borrower shall maintain the following insurance at its sole cost and expense:

(a) Insurance against Casualty to the Property under a policy or policies covering such risks as are presently included in "special form" (also known as ·'all risk") coverage. includin!l such risks as are ordinarily insured against by similar businesses. bur in any event including tire~ lightning, wind~'tonn, hail. cxplosiont riot, riot auending a strike, civil commotion. damage from aircrafi, smoke, vandalism, malicious mischief and acts of terrorism. Such insurance shall nome Lender as mortgagee and loss payee. Unless otherwise agreed in \\Titing bv Lender. such insuronce shall be for the full insurable value of the Property. wirh a d~duc'tiblc amount. if any. satisfactory ro Lender. No policy ot' insurance shall be written such that the procee-ds thereof will produce less than the minimwn coverage required by this Section by reason of co-insurance provisions or othenvise. The term "full insurable value" means one hundred percent (I 00%) of the actual replacement cost of the Property (~xcluuing

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foundation and excavation costs and costs of underground fiue:s. pipes. drains and orher uninsurable items).

(b) Comprehensive (also known as commercial) general liability insurance on an -·occurrence·· basis against claims for "personal injury- liabilhy and liability ror dcmh~ bodily injury and damage to propeny. products and <'omplcred operations. with respect to coverage lim its satisfactory to Lcndor with respect to any one occurrence and the aggregate of all occurrences during any given annual policy period. Such insurance: shall name Lender as an additional insured.

(c) Workers compensation insurance for all employees of Borrower in such amount as is required by Low and including employer's liability insurance. if required by Lender.

(d) During any period of construction upon the Propeny. Borrower shall maintain, or cnusc others to maintain. builder's risk insorancc (non-reponing foml) of the type customarily carried in the case ofsimilarcom.itruction for one hundred percent (100%) of the full rcplocem•111 cost of work in place and materials stored at or upon the Propeny.

\C) If ut any time any portion of any s!ructure on the Pn.1pe11y is insurable against Casualty b~· tlood and is located in a Special Flood Hazard Area under the Flood Disaster Protection Act of 1973, as amended. a flood insurance policy in form and amount acceptable to Lender but in no amount less than the amount suflicient to meet lhe n."quiremcnts of applicable Law n.s. such requirements may from time to time be in cffecL

(0 LOss of rental value insurance or business interruption insurance in an amount accL'Ptablc to Lender.

(g) Such other and further insurance as may be required trom time to time by Lender in order to comply with regular rctjuiremems and practices of Lender in similar transactions including. if required by Lender. wind insurance and earthquake insurance, so long as any such insurance is gcnerntly availablt: at conum.:rcially reasonable premiums as dt::tem1incd by Lc:ndcr ti·om time to lime.

(h) In addition to the foregoing. Borrowor shall cause the Contractor to provide and maintain compn!hensivl! {comn1cn.::ial) gl!ncml liability insurance and workers• compensation insurance: tOr nil employees of the Contractor mecling, respectively. the requirem~nrs of Subsections (b) and (c). above.

(j) Each policy of insurance (i') shall be issued by one or more insurance companies each of which musl have an A.M. Best Company financial and pcrtOmHmce rating ofA-lX or better and urc qualified or authorized by the Laws of the State to assume the risks co>~red by such policy, (ii) with n:spcct to the insurance de!:tcribcd under the preceding Subsections (a). (b) and w~ shall have attached thereto standard non--contributing_ nonMreporting mortgagee clauses in favor of and entitling Lender without contribution to collect any and all proceeds payable under such insurance. either us sole payee or a:; joint payee with Borro\vcr. (iii) shall provide rhat such policy shall not be canceled or modified without at least 1hir1y (30} days prior written notice to Lender. and (iv) shall provide that any loss otherwise payable thereunder shall be payable notwithstanding any act or negligence of Borrower which might. absent such agret!rncnt~ resulr in a forfeiture of all or a part of such insurance payment. Borrower shall p~omptly pay all premiums when due on such insurance and, not less than thirty (30) days prior to the expiration dates of each such policy, Borrower will deliver to Lender acceptable

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evidence of insurance. such as a renewal policy or policies marked "premium paid .. or other evidence satisfactory to Lender rellecting that oil required insurance is current ond in force. BorrO\VCr will immediately give Notice to Lender of any cancellation of, or change in~ any insurance policy. Lender shall not, \x:cause of accepting, rejecting, approving or obtaining insurance. incur any liability for (A) the existence. nonexistence. form or legal sufiiciency thereo[ (B) the solvency of any insurer. ur (C) the payment of losses. Borrower may salis~~ any insurance requirement hereunder by providing one or more '"blanket" insurance policies. subject to Lender·s approval in each instance as to limits. coverages, forms. dcductibles, inception and expiration dates. and cnnce11ation provisions. A summary of the insurance coverages are set forth on Exhibit J hereto.

4.9 AditJstmcnt ofCondcmniltion and Insurance Claims.

Borrower shall give prompt Notice to Lender of any Casualty or any Condemnation or threatened Condemnation. Except as provided below. Lender is authorized, at its sole and absolute option. to commence. appear in and prosecute~ in its own or Borrower· s name. any action or proceeding relating to any Condemnation or Casualty. and to make proof of loss for and to senlc or compromise any Claim in connection therewith. In such case. Lend~r shall have the right to rec-eive all CondemmHion Awards and Insurance Proceeds. and may deduct therefrom all payments of its E.x.pcnses. Huwcver, so long as no Event of Default has occurred and is then continuing.. and Borrower is diligently pursuing its rights aJ\d remedies \vith respc:ct to a Claim. (i) L:::nder wiil obtain Borrower's wrinen consent (which consent shall not be unreasonably withheld or delayed) before making proof of los; for or settling or compromising such Claim and (ii) Lender shall allow Borrower within a reasonable period of time to make proof of loss, sen!e or compromise any Claim below the Loss Threshold. Borrov.·cr agrt!es to diligently assert irs rights and remedies with respect to each Clairn and to promptly pursue the settlement and compromise of each Claim~ if the Claim in t::Xcess of the Loss Threshold. subject to Lender's approval, which approval shall not be unreasonably withheld \X delayed. Notwithstanding any provision to the contrary in this Agreement if prior to the receipt by Lender or ~n)· Condemnation Award or Insurance Proceeds. the Property shall have been sold pursuant to the provisions of the Mortgage. Lender shall have the righl Ia receive such funds (a) to the cxtt:nl of any ddicicncy found tu be due upon such sale with interest thCrcon (whether or not a dcticiency judgment on the Mortgage shall have been sought or recovered or denied), and (b) to the c:\.tcnt necessary 10 reimburse Lender tOr its Expenses. If any Condemnation A "\.\tards or lnsumnce Prm:ecds arc paid lo Borrower, Borrowt:r shall receive the same in trust for. Lender (other than Net Proceeds below the Loss Threshold so long as 110 Event of Default has occum.-d and is continuing) and \Vithin ten (I 0) days after Borrov . .-er's receipt of any Condt!mnation Awards or Insurance Proceeds {other than such Net Proceeds bdow the Loss Threshold). Borrower shall deliver such awards or proceeds to Lender in the form in which they werl! received. togelhl!r with any endorsements or documenls lhat may be necessary to c!Tcctivcly negotiate or transfer the sam:: to Lender. Borrowt:r al!rces to execute and deliver from time to time~ upon the request of Lender. such further instruments u; documents as. may be requested by Lender to continn the grant and assignment lo Lender uf an) Condemnation :\''''trds or Insurance Proceeds.

4.10 Utilization l1fNet Proceeds.

(a) All Net Proceeds of the Loss Threshold must be utilized either for payment of the Oblik<ations or for the restoration of the Property. Net Proceeds may be utilized for the restoration of the Property only if no Event of Default shall exist and is then continuing. and only if in the reasonable judgment of Lender (i) there has been no material adverse change in thl! BorrO\Ver':i ability to complete Construction of the Improvements in accordance with 1ht: Projc'l:t S.:hcdul<; the l3udget and Plan Specifications nr the tinancial viability of the operation

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of the Improvements. (ii) the Net Proceeds. together with other funds deposited with Lender for that purpose. are sufticient to pay the cost of the restoration pursuant to a budget and plans and specifications approved by Lender. and (iii) the restoration can be completed prior to Maturity Date and prior 1<1 the date required by the Take Out Financing Arrangements. Othorwisc. Net Procet:ds shall be utilized for payment of the Obligations.

(b) If Net Proceeds are to be utilized for the restoration of the Property. the Net Proceeds must be deposited in an interest-bearing account established by Lender with a financial institution of Lender's choice, which account will be assigned tO Lender ns additional security for the Loan. Disbursements of funds from the account will be made in a manner consistent with, and subject to. the requirements for the funding of advances of the Loan and the terms of this Agrccmen.l regarding the disbursement of Loan proceeds.

4.11 Manrrgemcnt; Kcv Personnel.

Borrower al all times shall provide for competent and responsible management and operation of the Property. Borrower shall notify Lender, in writing, prior to the hiring of any new Senior Management Per;onncl of each of Borrower or the General Partner or the Amendment of any substantial terms of the employment of said Senior Management Personnel. The hiring or changing rcm1s of employment of any such Senior Managc:ment Personnel shall be subject to Lender's prior written nppruvnl. not to be unrcasonabl)• \vhhhcld or ddayed. Any Senior Management Personnel contracts a!l'ccting thl! Pn1perty mu!:!l also be approved in writing by Lt::ndcr prior to execution of the sumc. Any termination of Senior Managcm~nt Personnel shall be subject to notice to Lender; however. Bofro,,.·er need not obtain prior "WTitten approvaL

4.12 Books and Rt.-cL"lrds: Financial Statements: Tax Returns.

Borrower will keep ami maintain full and accumtc: books and records administered in accordance with GAAP. consistently applied, showing in detail the earnings and expenses of the Property and the operation thereof. Borrower will keep and maintain its books and records, including recorded clara of any kind and regardless of the medium of recording, at the address of Borrower set forth in Section 9.3. Borrower shall pem1it Lender, or any Person authorized by Lr:nder. to inspect and cxamlnc such books 011d records (regnrdless ofwhe:rl! maintained) and all supporting vouchers and data and to make copies and extracts therefrom at all reasonable times and as allen as may be requested by Lender. Borrower will furnish or cause to be furnished to Lender annual linancial stateml!nts., including bah;rncc s.hce:ts and income stotements, for Borrower, each Guarantor and the Property, within ninety (90) days atl.er cuch fiscal year end for the respective repcrting party. In addition., Borrower will fumish or cause to be fumishcd 10 Lender, with reasonable promptness (but in any t.-v~nt \Vithin f'ive (5) Business Days}. such imcrim financial statements of Borrov.'CrT each Guarantor and the Property, together with su~h additional infonnation. reports or s1alements in connection therewith. as Lender may from time to time request All financial statements must be in fonn and detail acceptable lo Lender and must be certified as to accuracy by Borrower or the respective Guanmtor. as the case may be. and must be audited by a nationally recognized independent certilled public accounting tim1. Borrowt:r shn!J provide .. upon Lender's request. convenient facilities lor the audit and vcrilication of any such statement. All certifications and signatures on behalf of corporations. partnerships. limited liability companies and other entities shall be by a representative of the reporting party satisfactory to Lender. All linancial statements for individuals shall be on Lendei's then-eurrent pcrsonallinancial statement form or in another tbrm satisfactory to Lender.

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4.13 Estoppel Certificates.

Within ten ( 10) days after any request by Lender or a proposed assignee or purchaser of the Loan or any interest therein, Borrower shall cet1ify in writing to Lender, or to such proposed assignee or purchaser, the then unpaid balance of the Loan and whether Borrower claims any right of defense or setoff to the payment or performance of any of the Obligations, and if Borrower claims any such right of defense or set ofT. Borrower shall give a detailed written description of such c !aimed right.

4.14 Lender"s Rit!hts to Pav and Perform.

H: after any required nmice. Borrower fails lo promptly pay or periom1 any of the obligations owing or due to any third party in connection with Construction of the Improvements or otherwise related to tltc transactions contemplated by the Loan Documents within any applicable grace or cure periods~ Lender. without Notice to or demand upon Borrower. and v .. ·ithoul waiving or releasing any such obligation or Default, may (but shall be under no obligation to) at any time thereafter make such payment or pcrforn1 such acr for the account and at the expense of Borrmvcr. Lender may enter upon the Property for that purpose and take all action thcn.-on as Lender considers necessary or appropriate. At the option of Lender, In I lowing the occurrence and during the continuance of an Event of Default. Lender may apply any undisbursed Loan proceeds to the satisfaction of the conditions of the Loan Documents, irrespective of the allocation of such Loan proceeds in the Budget. Without limitit)g the generality of the foregoing. Lender may pay directly from the proceeds of the Loan all interest bills rendered by Lender in connection with the Loan, and following the occurrence and during the continuance of an Event of Default may make advances directly to the Contractors, the title insurance company: any subcontractor, sub-subcontr..s.ctor or material supplier. or to an)' of them joint!)'- The execution hereof by Borrower shall, and hereby does, constitule an irrevocable authorization to so advance the proceeds of the Loan. No further direction or authori>.ation from Borrower shall be necessary to warrant such direct advances. The Loan Amount shall be secured by the Mortgage and other Security Documents and shall satisfy the obligations of Lender hereunder to the extent of the amount ofthc disbursement

4.15 Reimbursement; lntcrtst.

If Lender shall incur any Expenses or pay any Claims by reason of the Loan or the rights and remedies provided under the Loan Documents (r"gardless of whether or not any of the Loan Documents expressly provide tOr an indemnification by Borrower against such Claims). Lender"s payment of such Expc:nscs and Claims shall constitute advances to Borrower vd1ich shal.l be: paid by Borrower to Lender on demand. together with interest thereon from the date incurred until paid in full at the rate of interest then applicable to the Loan under the tcrins of the Note. Each advance shall be secured by the Mort gag~ and tht: other Security Documents fully as if rriadc to Borrower. regardless of tht! disposition thereof by the pnrty or pa11ies to whom such advance is made. Notwithstanding_ the foregoing, however, in any action or proceeding to foreclose the Mortgage, to exercise Lender's rights with respect to any other Collateral or to recover or collect the Obligation<, the provisions or Law goventing the recovery of costs, disbursements and allowances shall prevail unaffected by this Section.

4.16 Notilication by Borrowl!r.

Borrower will promptly give Notice to Lender of the occurrence of any Default or Event of Default hereunder or under any of the other Loan Documents. Borrower will also promptly give Notice to Lender of any claim of a default by Borrower, or any claim by Borrower of a default by any other party, under the Architect's Contract the Construction Contract and any other contmcts with

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respect to the Construction of the Improvements. If none of the foregoing cvetlls has occurred, the chief financial officer of Borrower shall certify thereto to Lender in writing which shall be delivered to Lender, together with the delivery of the annual financial statement and any interim financial statement referred to in Section 4 .12.

4.17 lndcmnitication~_Qy Borrower,

Borrower aerees to indemnify Lender and to hold Lender hanmless from and against and to defend Lender by c;unsel approved by Lender against, any and all Claims directly or indirect!; arising out of or resulting from any tnmsaclion. net. om iss ion, event or circumstance in any way connected with the Property or thf!' Loan, including any Claim arising out or or resulting from (a) construction of any Improvements, including any defective workmanship or materials~ (b) any failure by Borrower to comply with the requirt:mcnts of any Lav.··s or to comply with any agreement that applies or pertains to the Property. including any agreement with a broker or ~iindei-.. in connection with the Loan or other linancing of the Property: (c) any other Ddault or Event of Default hereunder or under any of the other Loan Docurncms; or (d) any asst:nion or alleSntion that Lender is liabh:- for any aCt or omission of BoiTO\\'cr or any other Person in connection with the ownership. development: financin& leasing. opcmtion or sale of the Property: providcg, however, that Borrower shall not. be obligated to indemnify Lender with respect to any Claim arising solely from the gross negligence or willful misconduct of Lender. The agreements and indemnifications contained in this Scc:rion shall apply to Claims arising both before and nftcr thl! repayment of the Loan and shall survive the reps.yrmmt of the Loan. any foreclosure or deed, assignment or conveyance in lieu tht!reof and any other action by Lender to enforce the rights and remedies of Lender hereunder or under the other Loan Documents .

. us Fees and Expenses.

B<lrrower shall pay all fees, charges, costs and expenses reasonably required to satisfy the conditions of the Loan Docum~nls. \Vithout limitation of the foregoing. Borrower will.pay, when due. and if paid by Lender \1.dll reimburse Lender ·on demand for. all reasonable;: f~:t:s ruid t:xpcnses of the Lt,an Monitor. the title insurt!r, environmental enginet:rs, appraisers, surveyors and Lender's counsel in connection with the closing. administration, modification, monitoring or any ··workout" of the Loan, or the enforcement of Lender"s rights and remedies under any of the Loan Documents

4.19 1\ppraisals.

Lender nlll)' <>btnin from time to time an appraisal of all or any pan or the Propert)', prepareJ in -accordance with wrilten instructions from Lender, from a third-party appraiser satisfactory to, and ongagcd directly by, Lender. The cost of one such appraisal obtained by Lender and the cost of each such appraisal obtained b; Lender following the occurrence of an Event of Default shall be borne by Borrower and shall be paid by Borrower on demand.

4.20 Principal Depository.

Borrower shall maintain with Wells Fargo Bank all of its principal deposit accounts for the maintenance of business including the Borrower's Deposit Account~ cash management. operating and administrative deposit accounts. Borrower shall nol maintain any other depository accounts without Lender's prior written conscnl.

4.21 Board Representation.

(n the event BorTower opemtcs· with a Board of Directors, then from and after lh!! Clo;:;ing

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Date during the term of this Agreement, a representative of Lender will be notified of, and shall be pennitted to attend. each of Borrowers and each of Guarantor's Board of Directors meetings (or the cquivalen1 thereof) as an observer.

4.22 CQ!I!pliancc with Packers and Stockvard Act Etc.

Borrower .shall (a) complete all Construction of lmprovements and orher processes and procedures needed to commence Borrower's business as a packer at the Property, (b) upon commencement of Borrmver's business. opcnllt! as a packer in full compliance with Chapter 40· J 5A of the South Dakota Codified Laws. the applicable regulations, orders and directives or the South Dako!.ll Animal Industry Board. the Packers and Stockyards Act and its applicable regulations, (c) obtain. maintnin and timely renew all licenses, pemtits and bonds necessary to operation the business as a packer, (d) timely pay for all acquired livestock so as not to granL incur or suffer the creation of any lien in favor of livt$!ock sellers that is unpaid outside the ordinary course of business. (e) maintain sole title to all purchased livostock, (I) satisfy all requirements of the Food Security Act. the Packers and Stockyards Act suflicicnt to obtain clear title to all purchased livestock, (g) comply with all employment and labor laws with respect to the Borrower's labor force, (h) satisfy nnd comply with all proct:durcs. regulations. certification elements and directives required in the receipt. slaughter. processing, packaging, storing and shipping of livestock and the rc!Sulting meat products, and (i) provide t..':Onlt:tnporaneous notice lo Lender of any and all claims on any bond and any nnd all warnings. compliance directives, orders, adverse inspection reports. notice of violations or revocation. and commencement of any admini:strntive proceeding related to any pcm1it,. bond or licensl! affecting the facilit) or Borrower's operation as a packer.

4.23 AF.COM Report.

As described more tully in the draft Phase I Environm~ntal Site Assessment and Environmental Compliance Review ofNonhem Beef Packers. Aberdeen, South Dakota. dated :>.1ay 7. 2010, prepared by AECOM Technical Services, approximately 800 gallons of diesel fuel was rdcascd on thc.Land in August 2007. Lender understands that the diesel impacted soil and cause such soil to be disposed of ciT-site in accordance with applicable Law and take all other investigation and remedial actions (collectively. such excavation. off-site disposal. investigation and remedial actions are referred to herein as "Response Actions'' to the extent such Response Actions arc (i) required pursuant to applicable Law or by a Governmental Authority or (ii) requested, in "Titing. by Lender. lri order to cover the cost of such Response Actions. tho amount of Thirty-one Thousand Dollars ($31.000) shall be included in the Budget. ·nle Borrower shall not usc the S31,000 tor any purpose other than to. cover the cost of Response Actions as described in this Section 4.24 without the written consent of Lender.

4.~4 Existence. To preserve and maintain the organizational existence. rights, franchises, licenses, trademarks, copyrights and privileges of Borrower.

4.25 Sale Mer2cr or Consolidation. To not liquidate. dissolve, merge or otherwise consolidate Borrower with or into any other entity, or sell, lease, transfer or otherwise dispose of all or any substantial part of the assets of Borrower, without Lender's approval.

4.26 Financial Statements. Borrower agrees to prepare yearly reports, as spcci lied bv Lender sening fonh the operation, job creation and other financial infonnarion concerning

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the operation. Said reports are to be provided at the same time as the audited financial statements.

4.27 Inspection. To permit Lender, or any employee or agent of Lender. upon at least twenty-four (24) hours telephonic notice, at any time during regular business hours to inspect the properties and all books of Borrower.

4.28 Indebtedness. To not incur, permit to remain outstanding; assume or in any way become committed for indebtedness in respect of borrowed money, except: (i) indebtedness incurred hereunder; (ii) trade debt incurred. for adequate consideration, on commercially reasonably terms, and in the usual and normal course of business: and (iii) indebtedness disclosed in Exhibit C.

4.29 Liens. To not create, suffer or permit to exist any lien or encumbrance of any kind or natur~ upon any of its assets now om1ed or hereinafter O\Vned or acquired, except for (i) liens. mortgages. and encumbrances in favor of Lender: (ii) indebtedness owed to Senior Lender previously incurred; (iii) liens for taxes. assessments and plher governmental charges not yet due or which ure being contested in good taith and for which reserves have been made as shall be required by gencmlly accepted accounting principles; and (iv) liens of landlords. vendors. carriers. wart:housemen, mechanics. laborers and materialmen arising at law in the ordinary course of business for sums not yet due or being contested in good faith and tor which reserves have been made as shall be required by generally accepted accounting principles.

4.30 Taxes. To pay and discharge all taxes, assessments and governmental charges or levies imposed on Borrower. upon its income or profits or upon any properties belonging to Borrower prior to the dale on whkh penalties attach thereto; provided that Borrower shall not be required to pay any such tax, assessment, charge, levy or claim that is being contested in good faith and by appropriate legal proceedings and as to which adequate reserves shall have been established. and as to which no foreclosure, sale or similar proceedings have been commenced.

4.31 Investments and Loans. To not make any loan, advance. extension of credit, or capital contribution to any person or legal entity.

4.32 Maintenance of Properties. To maintain, or cause to be maintained, in good repair. working order and condition [ordinary wear and tear exc.:-pted), all of Borrower's properties. whether roal or personal, O\\<ncd or held under lease, and specilically including. without limitation, the property subject to the Loan Documents, and from time to time make or cause to be made all repairs, renewals. replacements. addition5. betterments and impnwements tim may be reasonably required to keep and maintain such property in good condition and repair and in working order. wear and tear excepted.

4.33 Franchises and Intellectual Propertv. To take all reasonable acts to preserve the Borrower's ownership rights to all of its franchise agreements and intellectual property, including. but not limited to. trade names. entity names, trademarks, copyrights and patents.

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websites, and website domain names, and to take diligent action to challenge any cancellation or infringement thereof by third parties.

4.34 Laws and Reuulations. To comply in all respects with any and all applicable ti!deral, state, county and local laws, statutes, ordinances. orders. rules, codes and regulations with respect to its real and personal property, businesses, assets, inventory, and employees.

4.35 Notification of Leual Actions. To notify Lender in writing "ithin Five (5) days of receipt of any infonnation indicating that any legal action has been or may be commenced or threatened against Borrower where the amount in controversy, either directly or indirectly. alone or in combination with any other actions; suits or proceedings exceed the sum of Fifty Thousand Dollars ($50,000).

4.36 Adverse Chan>1c. Upon obtaining any knowledge of any material adverse change in the financial condition or future prospects of Borrower. to promptly provide Lender with wriuen notice describing in detail the nature of such adverse change.

4.3i Managers and Principal Place of Business. To not change the orticers. directors or managers of Borrower or other employees earning more than One llundred Thousand Dollars ($1 00,000) per year, or the location of the executive office or ·principal place of business of Borrower without Lender's approval.

4.38 Sell. Convev and Transfer. To not sell, convey, transfer, dispose of, or further encumber the properties of Borrower, pledge of partnership interests of Borr~wer, or any part thereof or any interest therein except as provided in this Agreement or any of the Loan Documents, whether voluntarily. involuntarily, directly, indirectly, or otherwise.

4.3~ Indemnification. At Borrower's expense, to protect. defend and indemnify. and save and hold Lender harmless from and against any and all judgments, liabilities, losses. damages. costs or expenses. including without limitation. court costs and reasonable anomey fees, which arise out of. arc c.aused by. or relate to any claim, demand, suit, cause of action. investigation or proceeding brought or asserted against Lender by any person or entity to the extent the same relate to this Agreement, the Loan, the Note, any of the Loan Docum<:nts and/or any other documents. certilicatc.:- or agreement deliver~d by Borrower to 'Lender in connection herewith or therewith. Borrower shall immediately pay l.cnder upon demand all such judgments. liabilities, losses, damages. costs and expenses, including court c:osts and reasonable attorney fees. incurred by Lender as result of any kgal or other action arising out of this Agreement, any of the Loan Documents, and/or any document, certiticatc or

· ameement delivered bv Borrower to Lenders in connection therewith. - . 4.40 Further Assurances. Following the mak.ing of the Loan or any installment

thcn:oC the Borrower shall promptly, at the request of the Lender, take such a<:tion and execute and delivt'T to Lender such further assignments, endorsements, consents, instruments. agreements and/or other documents as Lender may reasonably request in order ro perfect Lender's security interests and otherwise consummate and carry out the transactions

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contemplated by lhis Agreement, the Note and/or any of the Loan Documents for the benctit of Lender.

4.41 Third Pm1V Claims. Lender shall not be liable to. and Borrower shall save Lender harrnkss !rom and against all claims of materialmen, contractors, subcontractors. laborers and others for goods and delivered by them to Borrower or any of its properties or services perfonned by them lor Borrower or any of its properties or othern;se in connection with Borrower. Borrower shall not be considered to be lhe agent of Lender for any purpose whatsoever.

4.42 . Capital Expenditures. At any time following the initial completion of construction of lhe Project, Borrower will not make any capital expenditure in excess of Five Hundred Thousand Dollars ($500.000) without prior wrinen consent of Lender.

4.43 Restricted Pavments. Borrower shall not, and will not be permitted to, declare or make. or agree to make, or pay, either directly or indirectly, any distribution or dividend to any of its members or owners hereunder unless specifically approved by Lender.

4.44 Compensation to Manal!ement. Borrower shall not pay any bonus or management fees to any executive, employee, partner, member or director in excess or any salarv set forth at the time of the execution of this Agreement and in even~ no such payments shall· exceed Two Hundred Fifty Thousand Dollars ($250,000) in any aggregate rolling rwcl ve-month period unless such compensation to management has been approved by Lender.

4.45 Packers and Stockvards Act. 1921. The Borrower shall comply in all material respects with the Packers and Stockyards Act, 1921. as amended (7 U.S.C. § 181-229) and the regulations promulgated thereunder so that the trust for the benefit of all unpaid cash sellers or ~rowers of heef thereby shall not arise in connection with its purchase of any such livestock. Borrower shall not taken any action which would impair its ability to benefit from the trust established under such Act in connection with any sales by the Borrower of beef covered by

such Act.

The foregoing covenants are in addition to the obligations. undertakings and agreements of lhc Borrower cuntained in the Note and other Loan Documents, each of which are incorporated herein by this reference, and all of which shall be deemed to have been made bv Borrower herein at and as of the date hereof. and as though made hereunder at and as of the date hereof with the same force and e!Tect as if the same were set forth in the body of this Agreement in their entirety, and all such obligations, undertakings and agreements shall su".-vive the disbursing of' the Loan and the execution and delivery of the Note and the Loan

Documents.

4.46 Pennits. Borrower shall secure all necessary city, local, state or federal pcmtits required ro operate said Project.

4.47 E-Vcrifv. Borrower agrees that "U.S. law requires companies to employ ooly individuals who may legally work in the United States- with U.S. Citizens, or foreign

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citizens who have the necessary employment authorization. This diverse workforce contributes greatly to the ~ibrancy and strength of our economy, but that same strength also attracts unauthorized employment. E-VerifY is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. E­Veriry is fast, free and easy to use - and it's the best '.vay employers can ensure a legal workforce."

··As a condition for maintaining/satisfYing Lender's loan to Borrower in good faith and to avoid defaulting on the loan with respect to etTectivcly determining that any and all persons hired and employed by Borrower are legal. Borrower will register to panicipate and abide by all the requirements for voluntarily participating in the U.S. Government's. "E­Vcrify'" employment authorization veritication program, operated by the U.S. Department of Homeland Security's (OilS) U.S. Citizenship and Immigration Services (USCIS). Failure by Borrower to register and fully abide by all the terms and conditions for use of E-Verify in verifying an employee's employment authorization will be reason or grounds for declaring the borrower to be in ddault of the loan, with the full outstanding balance subject to full and immediate payment to Lender.

SECTION V. Negative Co,·enants.

5.1 CLtnditional Sales.

Borrower shall not incorporate in the Improvements any propeny acquired under a conditional :,-ales contract or h:asc or as to which lhc vendor retains title or a security interest that is not included in the Budget. without tht: prior \\Tittcn consent or Lender.

5.:!. Changes lo Plans. and Specifications.

Borro\vcr shall not make or permit any changes in the Plans and Spt!Cifications~ including nny such changes that alter, diminish or add to the work to be perfonned or change the design of the improvements. , .... ithout the prior written cr.)nse:nt of Lender and under such reasonable conditions as Lender mny establish. Lcnder~s prior written consent shall not be required. however, as to Dny change order which (a) individually docs not caust! the lixcd or guarantt:ed ma:".:imum price of the Construction Contract to be increased or decreased by more than $25,000 and, when added to all previous change orders. docs not cause such price to be increased or decreased by more than $100,000 in the aggregate, (b) d0¢S not result in a material change to the design of the hnprovcmcnls, and (c) has bce~-approved in writing by the Architect and any Governmental Autbority,tenant or other party whose approval is required.

5.3 Insurance Policies and Bonds.

Borrower shal1 not do or pennit to be done anything that would affect the coverage or indemnities pro...,.ided for pursuant to the provisions of any insurance policy~ perfonnance bolld. labor and material payment bond or any other bond given in connection with the development of the Land or the construction of the Improvements.

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5.4 Restrictions on lndebledncss.

Borrower will not create. incur. assume, guarantee or be or remain liable, contingently or othcnvise. with respecl to any indebtedness other than:

(a} Customary accounts payable pilid rrior to any delinquency to trade creditors incurred tOr services or goods purchased in the ordinary course of Borrmver"s business or in connection with the de,,;elopment or Constmction of the [mprovements in accordance with the Plans and Specifications and the Budge~ pmvided that the aggregate amount of all such accounts shall not c.,cced $50.000 at any time. other than approved product categories;

{b) Indebtedness to Lender under any of the LOlln Documents:

(c) Endorsements for collection. deposit or negotiation and warranties of products or services. in each case, incurred in the ordinary course of business.

5.5 Restrictions on Liens.

Borrower will m>t {i} create or incur or suffer to he created or incurn:d or to exist any lien or encumbrance (including. 'Vithout limitation, any lease) upon any of the Property of any character ,.,.·hether now O\\'ned or ht!rea.ftcr acquired. or upon the income or profits therefrom; (ii) transfer any of the Property or the income or profits therefrom~ (iii} acquire. or agree or have nn option to acquire~ any properry or t!Sscts upon conditional sale or other title rclcntion or purchase money security agreement, device or arrangement: (iv) suffer to exist for a period of more than thirty (30) days after the same shall have been incurred any indebtedness or claim or demand against it that if unpaid might by law or upon bankruptcy or insolvency. or otherwise. be given any priority whatsoever over its general creditors: or { v) sdl. assign. pledge or othcnvise transf!.!r any receivables with or without recourse: n.mvided that Borrower may create or incur or sufl'er lobe created or incurred or to exist:

(a) Deposits or pledges made iu connection with, or to secure payment ot: workmen's compensation. unemployment insunmcc. old age pensions or other social security obligations:

(b) Liens on the Pmperty :15 and to the extent permitted by the Mortgage: and

(c) Liens in favor of Lender under the Loan Documents.

Borrower will not enter into or pcnni1 to exist any arrangement or agreement (excluding this Agrcemt::nt and the othl!r Loan Documents) which directly or indirectly prohibits Borrower or any Guarantor from crcming. assuming or incurring_ any lien upon its properties, revenues or assets whether now owned or hereafter acquired in favor of Lender Utlder the Loan Documents.

5.6 Restrictions. on Investments..

Borrov.·er will not make or penn it to exist or to remain outstanding any investment excepr investments in:

(a) marketable direct or guaranteed obligations of the United States of America that mature within one (I) year from the date of purchase by the Bmrowcr;

(b) deman'd deposits. certilicatcs of deposit. bankers acceptances and time deposits or United States banks having tara! assets in excess of S 1.000,000.000; and

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(c) securities· commonly known as "commercial paper" issut:d by a corporation organized and existing under the laws of the United States of America or anv state thereof that at the time of purchase have been rated and the ratings fnr which are not less than "P 1" if rated b' Moody's. and not less than • A 1" if rated by S&P; •

provided, however. that such investments (other than demand deposits referred to in Section S.6(b) above) will be considen:d investments pcm1ined by this Section 5.6 only if all actions have been tnken to tht: :;;atisfaction of lender to provide to Lender a first priority perfected security interest in all of :;u..:h investments free of all Hens.

5.7 Memcr. ConsolidatiQD and Disoosition of Assets.

(a) Borrower will not become a party to any merger. amalgamation or consolidation. or agree to or effect any asset acquisition or stock acquisition (other than the acquisition of nssets in the ordinary course: of business consistent with past practices).

(b) Borrower will not become a party to or agree to or effect any disposilion or assets. other than the sale of inventory and the disposition of obsolete assets, in each case in the ordinary course of business consistent with past practices.

5.8 Sole and Le<l:!ebac]i.

Borrower will not enter into any arrangement, directly or indirectly. whereby Borrower shall sell or transfer any property owned by it in order then or thereafter to lease such property or lease other property that Borrower intends to usc for substantially the same purpose as the property being sold or transferred.

5.9 ~rrnnsactions with Affiliates.

Borrower shall not without prior approval engage in any transaction with any affiliate other than tor s~rviccs as employees. officers. and directors pursuant to contracts disclosed previously to Borro\ver including any contract agreement or other arrangcmc:nt providing for the furnishings ofscrvic~s to or by. providing lor rental of real or personal property to or from or otherwise requiring payments to or ti·om any such affiliate or to the knowledge of Borrower. any corporation, partnership. tflL'il. or other entity in which such affiliate has its substantial interest or is an otlicer. director. trustee, or partner on tenus more favorable to such person than what would have been attainable on an arm's length basis in the ordinary course of business or the value of which the aggregate amount exceeds One Hundred Thousand Dollars (S I 00.000) per tiscal year of Borrower. Borrower shall not enter into Management Agreements. Service· Agreements or other similar agreements with General Partner.

5 .l 0 Chan!!e in Nature of Busin~ct.;;;· New t .ine of Business.

Borrower will not engage in any line of business substantially different from the lines of business conducted by Borrower on the date hereof or engage or enter imo any new line of business.

5.11 financial Covenants.

{a) Tangible Net Worth. Borrower will not pcm1it Tangible Net Worth at any time to be tess than an amount equal to the unpaid principal amount of the Loan multiplied by 1.25.

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(b) Funded Indebtedness to Shareholders Equitv. Borrower will not permit Funded Indebtedness at any time to be more than 1.50 times Shareholder's Equity.

{c) Compensation to Senior ManagU?..,. Borrower will not pny or become legally obligated to pay any bonus~ fees. salaric:s or other compcnsudon to Senior Managers t:xcec:ding Two Hundred Fifty Titousand Dollars ($250,000) in any rolling. twelve-month period. '·Senio; Manager·· means and includt:s any executive:, employee. officer. partner~ member director, or manager whose annual compensation is One Hundred "ll10ltSand Dollars ($1 00,000) or more.

(d) Interest Coverage Ratio. From and after such time as the Property is operational as a mcatpacking plant, Borrowc:r will not permit the Interest Coverage Ratio at any time to be less than 1.50. ·

5.12 Chan2e in Control. Without the prior "-Tittcn consent of Lender, there shall be no change in the day-to-day control and management of Borrower or General Partner, and no chanue in the Organizational Documents of Borrower or General Partner. General Partner shall-nor withdraw or be removed from Borrower without the prior \\Titten consent of Lender, it being acknowledged and agreed by Borrower and General Partner that any purported withdrawal by or removal of General Partner without the prior written consent of Lender shall be null and void.

SECTION 6 Default

6.1 Events of Default. Each of the following occurrences or events shall constitute an .. Event of Default"' for purposes of this Agreement:

6.1.1 Nonpavment. The failure of Borrower to make any payment of principal or interest as set forth on the Note or any payment of any other amount payable to or for the benefit of the Lender by Borrower under this Agreement. the Note, other Loan Documents or any other document, instrument or agreement delivered by Borrower to Lender in connection herewith, when and as due.

6.1.2 Nonoerformance. The failure of Borrower to observe or perform anv of the obtit!ations, undcr1akines or aurccrncnts that are required to be ob~erved or pc;fom1cd by it undc; the te;ms of this Agreement. the Note, the Loan Documents or any other documents, instnunents, or agreements udivered to Lender by Borrower in connection herewith or therewith (other than payment) if such tailure continues beyond the grace period applicable thereto. or sw:h shorter period as may be reasonably specified in a written notice thereof from Lender in the event such failure could reasonably be expected to result in immediate loss or damage or irreparable harm to Lender to a material degree.

6.1.3 Dissolution or Tnmsfer. The dissolution, liquidation, merger or consolidation of Borrower with or into any other entity, or the sale of all or any substantial portion of the assets of Borrower.

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6.1 .4 Warranties. Any material representation, warranty, schedule, certificate. financial statement, report, notice or other V.Titing furnished by or on behalf of Borrower to Lender or any representation or warranty contained in this Agreement. the Note. the Loan Documents and/or any document, certificate or agreement furnished by Borrower to Lender in connection herewith or therewith being false or misleading as and when given or becoming false and misleading at any time in the future.

6.1.5 ERISA. The occurrence of any reportable event under the Employee Retirement Income Security Act of 1974, as amended, in respect of any employee benefit plan mainlilined for employees of Borrower.

6.1.6 Liti2ation. The entry of any linancial judgment resulting from judicial or administrati\'c action against Borrower or with respect lO its assets. in which th~ amount of such judgment alone or in. combination with anv other unsatisfied judgmcm exceeds Fiftv Thousand and No/100 Dollars (SSO,OOO.OO), if such judgment remains undischarged for a period of sixty (60) days or more after the date on which such judgment becomes final without any right of appeal to a higher court, and unless Borrower shall have taken whatever action is required. including v.ithout limitation, posting a supersedeas bond, to stay proceedings to enforce such judgment.

6.1. 7 Nonoerforrnance on other Indebtedness. The occurrence of any default or event of delault, subject to curative rights. if any. or any event which requires ihe prepayment of borrowed money or the acceleration of the maturity or payment thereat: under the terms of any evidence of indebtedness or other contract or agreement issued or assumed or entered into by Borrower with any third party where the amow1t involved, alone or in combination with any other default or cvcm, could reasonably be expected to exceed Fifty Thousand and No/100 Dollars ($50.000.00).

6.1.8 Bankruptcv - Filinc of Petition. The filing by Borrower of a petition seck ing relief. or a consent or answer consenting to a petition seeking relief against Borrower under the Federal Bankruptcy Code, as now constituted or hereafter amended, or any other applicable federal, state, local or foreign law regarding bankruptcy, insolvency or creditors rights gener.llly, or the consent by Borrower to the institution of proceedings thereunder or the filing of any such petition or for the appointment or taking possession of any substantial portion of Borrower's assets by receiver. liquidator, assignee, trustee. custodian or similar official.

6.1.9 Bankruptcv ·- Entrv of Order for Rdief. The entry of a decree or order by any court tbr relief in respect of Borrower under the Federal Bankruptcy Code, as now constitut~d or h~rcalier amended, or any other Jpplicable federal. state. local or loreit,'ll law regarding bankruptcy,

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insolvency or creditors rights generally, or appomtmg or the taking of possession of any substantial ponion of the Borrowers assets by receiver, liquidator, assignL>e, trustee, custodian or similar official, or ord~ring the winding up of or liquidation of the affairs of the Borrower and any such decree or order shall continue unstaycd and in effect for a period of sixty ( 60) consecutive days. ·

6.1.1 0 lnsolwnc,·. £lorrowcr becoming insolvent or !ailing or being unable to pay their debts as they mature, or admitting in writing their inability to pay their debts as they become due, or making a general assignment for the benefit of their crcdiiors. or entering into any agreement suspending the transaction or all or any substantial portion of their usual and customary business operations.

6.1.11 Environmental Compliance. The is~;uance or receipt of any notice alleging violation of any environmental statute, law, ordinance. rule or regulation relating to the present. prcviotL>Iy or subsequently owned or leased real properties of Borrower. provided that such violation remains uncured Sixty (60) days after the r<!ceipt of the relevant notice by Borrower.

6.1.12 Construction Prol!ress. Borrower iails to progress the construction in accordance with the Project Schedule, other than for delays caused by Force Majeure. delay in loan disbursements, or a default by the Contractor under the Construction Contract pro,ided such delay is not the result ofthc actions of Borrower.

6.1.13 Other Default. The occurrence of an event that constitutes a default or Event or Default under either the Note. any of the Loan Documents, and/or any othr::r document, certificate, instrument or agreement delivered by the Borrower to the Lender in connection "ith the transactions contemplated herein or therein.

6.1.1-t Curing Ddault. Except as otherwise stated herein, ifBorrower is in default under any of the conditions set forth in Section 5. Borrower shall have Thiny (30) days from when notice of default was given. to cure the same.

6.1.15 Laose of Perm.its or Approvals. Any permit, license, certilicate or approvrrl that Borrower is required to obtain with respect to the construction. operntion. devdopment. leasing or maintenance of the Improvements or the Property lapses or ceases to be in full force and ellect and the same is not cured within live ( 5) days of such lapse or cessation.

6.1.16 ;>.·1:neria1 Adverse Change. In the reasonable opinion of Lender, the prospect of payment or performance of all or any pan of the Obligations has been impaired because of a material adverse change in the tirumcial

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condition. results of operations. business or properties of Borrower, Guarantor or any other Person liable lor the payment or perfommnce of any of the Obligations.

6.1.17 Mechanic's Lien. A lien for the performance of work or the supply of materials tiled against the Property, or any stop notice served on Borrower, the Contractor or Lender, remains unsatisfied or unbounded for a period of siKty (60) days aftc:r th~ date of filing or service.

6.1.18 Performance Enjoined or Prohibited. Borrower is enjoined or prohibited from performing any of its obligations under any of the Loan Documents for a period of more than fifteen ( 15) consecutive days.

6.1.19 Appointment of Receiver. T rustce. Liquidator. Borrower. Geneml Partner or any Guarantor applies for or consents in writing to the appointment of a receiver, trustee or liquidator of Borrower, any general partner of Borrower. any Guar,mtor. the l'ropeny. or all or substantially all of the other assets of Borrower. any general partner of Borrower or any Guarantor, or an order, judgment or decree is entered by any coun of competent jurisdiction on the application t1f u creditor appointing a receiver, trustee or liquidator of Borrower, any general partner of Borrower, any Guarantor, the Property, or all or substantially all or the other assets of Borrower. any general partner of Borrower or any Guarantor.

6.1.20 Judumcnt. A tina! nonappealable judgment tor the paymem of money involving more than Fifty-Thousand Dollars ($50,000) entered against Borrower or any Guarantor. and Borrower or such Guarantor fails to discharge the same, or causes it to be discharged or bonded otT to Lender's satisfaction. within thirty (30) days from the date of the entry of such judgment.

6.1.21 Dissolution: Change in Business Status. Unless the \vritten consent of Lender is previously obtained. all or substantially all of the business assets of Borrower or any Guarantor are sold, Borrower or any Guarantor is dissolved. or there occurs any change in the form of business entity through which Borrower or any Guarantor presently conducts its business or any merger or consolidation involving Harrower or any Guarantor.

6.!.22 Default Under Other Indebtedness. Borrower or any Guarantor fails to pay any indebtedness (other than the Loan) owed by Borrower or such Guarantor to Lender when and as due and payable (whether by acceleration or otherwise).

6.!.23 Change in Controlling Interest. Without the prior written consent of Lender. (i) Borrower's sole general partner fails to continue to be Northern Beer Packers Management, LLC or ceases to own and control at least F ony Percent (40%1 of the aggregate panner interests in Borrower, (ii) more than Fony-nine Percent (49%) of the limited partnership interests have been transferred to a Person other than Gen.;:ral Paru1er, or (iii) General Partner ceases to be owned and controlled solely by Mr. Oshik Song, or (iv) any general panners in addition to General Panner are admitted to Borrower.

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7.1 gemedies on Default.

SECTION7 Remedies on Default

Upon the huppening and during the. continuance of any Event of Default. Lender shall have the right. in addition to any other rights 9r remedies available to Lender under the Mortgage or any of the other Loan Documents or under applicable Law. to exercise any one or more of the followine rights and remedies: -

(a)· Lender may terminate its obligation to disburse any further principal of the Loan pursuant to this Agrccmc"t by Notice to Borrower.

(b) Upon thirty (30) days written notice Lender may accelerate all of Borrower's Obligations under the Loan Documents whcrcupcn such Obligations shall become due and payable,

(c) Lender may apply to any court of competent jurisdiction for. and obtain appointment of. a receiver forthe Property.

(d) Lender may foreclose the Mortgage and/or exercise nil remedies with respect to any other Collateral.

(e) Lender may set off the amounts due Lender under th.e Loan Documents against all accmmts. credits. money. securities or other property of Borrower now or hereafter under [he control. maimained in an account, or in the possession of Lender to the credit or for the accowlt of Borrower. v, .. ithout notice to or the consent of Borrower.

(f) Lender may enter into pcssession of the Property and perform any and all work and labor neccssal) to complete the development of the Land and the construction of the Improvements (whether or not in accordance with the Plans and Specifications) and to employ watchmc" to protect the Property and the Improvements. All sums expended by Lender for such purposes shall be deemed to have been advanced to Borrower under the Note and shall be secured by the Mortgage! and th...- olhcr Security Documt!nts. for this purpose. Borrower hereby constitutes and appoints Lender its true and !awful attomey~in-fact with full power of sub&1ilution. which power is coupled with an interest, but without any fiduciary duty~ to complete the work in the name of Borrower. and hereby empuwcrs said attorney or altomcys. in the name of Borrower or Lender:

{ i) ro use any funds of Bqrrowcr including any balanct! which may be under the control or maintained in an account of Lender and any funds which may remain unadvanccd hereunder for the purpose or completing the development of the Land and the construction or the! !rnpruvemj;!nts~ whether or not in the mJtmcr called for in the Plans and Specifications~

(ii) To make such additions and changes and corrections to the Plans and Specitications as shall be necessary or desirable in the judgment of Lender to complete the development of the Land and the construction of the Improvements:

(iii) Tu employ such conrractors. subcontractors. agents. architects and in::.-pt.-ctors ns shall be ncl.-essary 1.1r desirable-for .o:.atid purpose:

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(iv) To pay. s~ttl~ or compromise all existing bills and claims which are or mav be Hens against the Property, or may be neccssar:y or desirable for tlu: completion of tht! work or the clearance of title to the Property:

(v) To execute ali applicatitms and certificates which may be required in the name of Borro\ver;

(vi) To tile for record. at Borrower's co,;t and expense and in Borrower's name, any notices of completion, notices of cessation of labor. or any other notices that Lender in its sole and absolute discretion may consider necessary or desirable to protect its security: and

(vii) To do any and every act with respect to the development of the Land and the construction of the lmprov<.mcnts \Yhich Borrower may do in its own behalf.

It is under>toou and agreed that this power of anomcy shall be deemed to be a power coupled with an interest which connot be revoked so long as any Obligations are out>~anding. Said anomey-in­fact shall also have the power to prosecute and defend all actions or proceedings in conn.ction with the development of the Land and the construction of the Improvements and to take such actions and to require such perfomtance a!i Lender may deem necessary,

(g) ln the event Borrower is not able to pay all obligations in full, then the amount immediately due and payable shall bear interest at the increased mte ofTen Percent (10%) per annum or. if less. the maximum rate permiucd by law until all amounts due hereunder or thereunder arc paid in full and the Lender shall. without limitation be entitled to immediate payment of such amounts together with all of the interest accrued thereon. Any imen:st charged pursuant to this Par-dgraph shall be charged both as to any unpaid principal and unpaid interest pa}nlents "hich have not been made according to schedule.

Section 7.2 No Release or Waiver Remedies Cumulative and Concurrent.

Borrower shall not be relieved of any Obligation by reason of the failure of Lender to comply with any request of Borrower or of any other Person to take action to foreclose on the Propeny undor the Mortgage or otherwise to enforce any provision of the Loan Documents, or by reason of the release, regardless of consideration. of all or any part of the Property. No delay or omission of Lender to exercise any right, power or remedy accruing upon the happening of an Event of DeillUil shall Impair any such righL power or remedy or shall be construed to be a waiver of any such Evenl of Default or any acquit:sccnct: therein. No delay or omission on the part of Lender to exercise any option for accclt:rJ.tion of the maturity of the Obligations, or for foreclosure of the Mortgage or the exercise of any right or n::mcdy under any of the other Loan Documents or applica.bli.! Law follov .. ing any Event of Default as afor~said. or any orhcr option granted to Lender hereunder in any ·one or more instance..'. or the acct:ptance by Lender of any partial payment on account of !he Obligations shall constitute a waiver of any such Event of Defauh and each s.uch option shall remain continuously in full forct! and ciTcct. No remedy herein conferred upon or reserved to Lender is intended to be exclusive of anv other remedies provided for in rhe Loan Documt.-nts. and each and every sUch remedy shall be cu111ul~iive. and shall be in addition to every otht!r n:medy givt:::n hereunder. or under the Loan Do.::uments. or now or hereafter existing at Law or in equity or by statute. Every right. power and rcmcdv "h-·en bv the Loan Documents to Lender shall be concurrent and may be pursued separately.

• Q -successively or togt::ther against Borrower or the Property or any part thereof~ and every right. power and remedy given by the Loan Documents may be exercised from time to time as often as may he deemed expedient by Lender.

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SECTION 8 Conditions of Lending

The obligation of the Lender to make the Loan, or any installment thereof, is subjL-ct to the following conditions: .

8.1 Documentation. In addition to the condition.' precedent set forth in the Loan Document,. the obligation of the Lender to make the Loan, or any installment thereof. is subject to the condition that Lender shall have received. at the expense of Borrower. each of the following. duly executed and othC'l'Wise in fonn and substance satisfactory to Lender and its counseL and in such number of signed counterparts as Lender may request (except for the Note, only one or each shall be signed):

8.1.1 Certificate of Limited Partnership and Certiticate of Existence of Borrower. A copy of th~ Certificate of Limited Partnership and a Certificate of Existence or Borrower. in each case c~rtified by the Secretary of State for the State of its formation, to be true and correct.

8.1.1 Certificate or No Del'ault. A ccrtitkare signed by Borrower certifying that: (a) no Event of Default is continuing or "ill result from the making of the Loan. or any applicable installment thereof; (b) that Borrower has observed and perfomted all obligations. undertakings and agreements required to be observed and performed under this Agret:ment. the Note and the Loan Documents; and (c) that the representations and warranties of Borrower as contained herein and therein arc true and correct as of the date of the Loan, or the applicable installment, as though such representations and warranties were made on and as of that date.

8.1.3 Resolution of Borrower. A copy of the resolution of the partners and directors or managers of Borro\\cr authorizing or ratifying the execution, delivery and pcrt'omtancc. respectively. of this Agreement, the Note. and each of the other Loan Documents and each other document. ccrtificaie or agreement provided l(lr herein or therein.

8.1.4 Certilicates of lncumbencv. A ccrtitkare of the partners of Borrower ccrtifvino the names of the Managers and Members of Borrower authorized to - " sign this Agreement. the Note. the Loan Documents and all other agreements, documents and instruments provided lor herein and therein, together with a santpk of the true signature of each such Manager anti Member. Lender may conclusively rely on such certificates.

8.1.5 Note. The Note, duly e"ccutcd by Borrower.

8.1.6 Sccuritv and Pledge Agreement and Mortgage. The Security and Pledge Agreement and Mortgage, duly executed by Borrower.

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8.1.7 Lien Releases. Lender shall have completed any and all UCC searches it may deem to be necessary or appropriate in connection with this Agreement and the transactions contemplated herein and Borrower shall have provided Lender with such fully executed UCC-3 Tennination Statements and such otht::r tt:rmin3tions and/or re!t:ascs as are necessary in tht: opinion of Lender and its counsel. in their sole discretion. to tenninate or release all liens, claims, security interests. charges or encumbrances affecting the real estate or any other assets owned by the Borrower, except as set forth in Exhibit C.

8.1.8 Miscellaneous. Such other documents and certificates. a' Lender may reasonably request.

8.1.9 Pledue of Membership Units. Borrower agrees to allow the pledge of all of its Ownership Interests in Borrower to Lender as additional collateral for payment hereunder.

8.1.1 0 Apomisal. Borrower agrees to provide an appraisal of sufficient amount to satisfy Lender and such appraisal shall be in an amount such that all covenants herein arc met

8.1 .II. State Pledl!e. Prior to any disbursement of funds, Borrower shall obtain a commitment from the State of South Dakota to lend at least Ten Million Dollars ($1 0,000.000) through various programs

8.1.12. USDA. prior to any disbursement of funds. Borrower shall provide to Lender proof that Borrower is proceeding to obtain from the United States of America's Deparuncnt of Agriculture a loan guarantee of at least Ten Million Dollars($ I 0.000.000) to be used in said Project.

8.l.l3. EPOCH STAR LiMITED. Prior to any disbursement o!' funds. Borrower shall provide to Lender proof that an agreement to purchase Epoch Star Limited has been agreed upon and all rights thereunder assigned to Lender.

8.1.14. Lienholder. All lienholders shall have signed a consent as agreed upon by the partb.

8.1.15. Title Insurance. Title insurance shall be obtained with a Lender's Policy in favor of Lender.

8.1.16, Lien Holders. All previous lienholders, as set forth in Exhibit C have subordinutd their lien to Borrower for the first $30;000,000 loaned. Borrower al.!rees that all lienholders shall be paid in full and the liens satisfied trom the p;occcds of the first $30,000.000 loaned.

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8.2 Additional Conditions Precedent to Lender's Obligations. Each of the following is an express condition precedent to the obligation of the Lender to make the Loan, or any installment thereo[ to Borrower pursuant to the tenns of this Agreement. In the event any one or more of the !allowing conditions are not satisfied to Lender"s reasonable satisfaction. the L.:ndcr may at its option: (i) waive said condition and fund the Loan or the applicable installment thereof; (ii) suspend perfonnance and pursue such other remedies as may be otherwise available under this Agreement, at law or in equity; or (iii) terminate this Agreement, in which event the Agreement shall be of no further force or effect whatsoever as between the parties.

8.2.1 Reorcsentations and Warranties. At the date of this Agreement and the funding of the Loan and any applicable installment thereof. the representations and warmnti<:s set forth in this Agreement. the Note. the Loan. Documents and all other documents; instruments or agreements delivered to Lender by BotTowcr in connection herewith or therewith shall be true and correct as of such date with the same effect a' though those representations and warranties had been made on and as of such date and are continuing to be made.

8.2.2 No Default. At the time of this Agreement and the funding of the Loan or applicable installment thereof. and immediately after giving effect to the Loan or the applicable installment thereof, Borrower be in compliance with all the tenns and provisions set fi.mh herein and/or in the Note. the Loan Documents and all other documents, instruments or agreements delivered to Lender by Borrower in connection here\\~th or therewith. on their part to be observed or perlonned. and no Event of Default shall have occurred and be continuing at the time the Loan is made or would result from making the Loan or any applicable installment thereo[

8.2.3 Absence of Material Adverse Events. There shall not exist any state of facts or circumstances which could reasonably be expected to have a material adverse efl'ect on the assets, llnancial condition, results of operations or prospects of Borrower or on the ability of Borrower to repay the Loan in full when due and/or observe or pcrfonn any part of·the obligations, undertakings or a>!rccments required to be observed or pcrtonned by them under this Agrc~ment. the Note. the Loan Documents or any other document, instrument or agreements giwn to Lender in connection herewith or therewith.

8.2.4 No injunction. No injunction, stay or restraining order shall be in effect prohibiting the consummation of the transactions contemplated by this Agreement.

8.2.5 Absence of I.iti!.!ation. Except as distloscd in Exhibit F. no action. suit. investigation or proceeding shall have been commenced or threatened by any governmental agency or any other person. finn or entity against the Borrower andlor anv of its or their affiliates, members, oflicers. managers or directors, with res~ctto their propenies or \dth respect to the transactions contemplated

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hereby, challenging the rights of the parties hereto lo consummate such tr:msactiom; of which could reasonably be expected to have a material adverse eiTect on the assets of the Borrower or the tinancial condition or results of operations or prospects of Borrower. or .on the ability of the Borrower to observe or pcrlbrrn any obligation, undertaking or agreement required to be observed or pcrli>m1ed by it under this Agreement, the Note. the Loan Documents cir any other documents. instruments, certifications or agreements delivered to Lender in connection herewith or therewith.

8.2.6 All Proceedincs to be Satisfactorv. All action and other proceedings to be taken by Borrower in connection with this Agreement shall be reasonably satisfactory in form and substance to Lender and Lender's legal counseL

SECTION9 Miscellaneous

9.1 Liabilitv of Lender. Lender shall in no event be responsible or liable to any person oth.er than Borrower for the disbursement or failure to disburse the Loan Proceeds or any par! thereof and neither the Contractor. Loan Monitor. nor any Subcontractor, Sub­subcontractor, laborer or material supplier. vendor or provider of services or s~ll~:r of anv commodities or cattle shall have any right or claim against Lender under this Agreement a"r other Loan Documents.

9.2 Waiver of Default. Lender may. by w'li!len notice to Borrower, at any time and from time to time, waive any default in the perfonnancc or observance of any condition, covenant or other term hereof, which shall be for such period and subject to such conditions as shall be specified in any such notice. In the case of any such waiver, Lender and/or Borrower. as may be appropriate, shall be restored to their fanner position and rights under this Agreement. the Note and the Loan Documents, and any Event of Default so \Vaived shall be deemed to be cured and not continuing; however, no such waiver shall extend to or impair any right subsequent thereto or to any subsequent or other Event of Default.

9.3 Notices. Any Notice. request, demand, waiver. consent. approval or other communication which is required or permitted hereunder shall be in writing. All such notices shall be delivered personally, by certified mail, return receipt requested. or by reputable overnight courier (in either case costs prepaid and addresst:d as provided herein). and shall be deemed given or made upon receipt thcreo[ All such notices arc to be given or made to the parties at the following addresses (or to such other address as any party may designate by a notice given in accordance with the provisions of this Section):

If to Lender: Joop Bollen SDIF Limited Partnership 6 .416 Production Street North Aberdeen. SD 57401

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With a copy to:

lf to Borrower:

With a copy to:

JciTrcy T. Sveen Siegel. Barnett & Schutz. L.L.P. 400 Capital Building, 415 S. Main Street P.O. Box 490 Aberdeen. South Dakota 57402-0490 jsveen;fi}sbslaw.nel (605) 226-1911 FaK

David Palmer Northern Beef Packers Limited Partnership · 38749 135 11

' Street Aberdeen. South Dakota 57401

Rory King Bantz, Gosch & Cremer. L.L.C. 305 Sixth Avenue SE Aberdeen. South Dakota 57402

9.4 No Waiver: Cumulativ~ Remedies. Lender shall not by any act be deemed to have waived any right or remedy hereunder. No failure to exercise, nor any delay in exercising, on the part of Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right. power or privilege hereunder shall preclude any other or further exercise thereof, or the exercise of any other right, power or privilege. A waiver by Lender of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which Lender would other.vise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercise-d singly or concurrently and are not exclusive or any rights or remedies provided at law or in equity.

9.5 Survival of Aurecmcnts. All covenants, agreements. undertakings, obligations and all representations and warranties set forth or made herein shall survive delivery or the Note. the Loan Documents and. the making of the Loan. and shall nevertheless remain in dTcct and be enforceable as between the parties and in accordance with their terms for the statute oflimitations period applicable thereto.

9.6 Further Documents. Borrower agrees to do such limber acts and things, and to execute, acknowledge and deliver such additional documents or instruments as Lender may at any time reasonably request in connection with the administration of this Agreemem or related to the Note or the Loan Documents or in order to bener assure and conlirm to Lender its rights and powers hereunder and thereunder.

9.7 Binding Agreements: Assiunments. This Agreement and the tenns. covenants and conditions hereof. shall be binding upon and inure to the benefit of the parties hereto and their respective heirs. successors. trustees, receivers. administrators, and assigns. except that Borrower shall not be permitted to assign this Agreement or any interest herein or in the Loan DocumenL~ or the collateraL or any part thereof. as described herein and therein, or otherwise

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pledge, .:ncumber or grant any option with respect to the collateral governed by the Loan Documents, or any part thereof, except to the extent specifically permitted under the terms of the Loan Documents. Lender shall be entitled to sen or assign its interest or panicipation interest in the Loan with notice to Borrower.

9.8 Entire Agreement. This Agreement, the Note, the Loan Documents and any documents, instruments, or agreements given to the Lender by Borrower hereunder or thereunder represent the complete and exclusive agreements of the panies with respect to the subject matter hereof and thereof und replace and supersede any and all prior agreements or understandings. whether "Tillen or ora!, with regard thereto and all negotiations leading up to their execution and delivery.

9,9 Amendment. Neither this Agreement nor any provisions thereof may be amended, modi.ticd. waived, discharged or terminated generally, except by an instrument in writing duly signed by or on behalf of Borrower and Lender.

9.10 lncornoration bv Reference. Each of the recitals set forth at the beginning of this Agreement, all of the exhibits which are attached hereto and all of the documents and agreements referenced herdn, specifically including, v.ithout limitation, th" original Credit Agreement, escept as amended herein, the Note and the Loan Documents, are incorporated herein by this reference with the same Ioree and ct1cct as if the same were set forth in the body of this Agreement in their entirety.

9.!! Interpretation. Any uncertainty or ambiguity extstmg herein shall not be interpreted against any party because such pany prepared any portion of this Agreement, but shall be int.:rpret~d according to the application of rules of interpretation of contracts generally. The headings used in this Agreement are inserted for convenience and reference only and are not intended to be an integra! pan of or to atTcct the meaning or interpretation of this Agreement.

9.12 Scvcrabilitv, Provided the same would not deprive the Lender of the benetit of its bargain hereunder or thereunder, if any term or pro\~sion of this Agreement, or the Note, the Loan Documents or any other document or instrument executed in connection therewith, including amendments and modilications or the application thereof to any person or circumstance. shall to any extent be invalid or enforceable in any jurisdiction in which enforcement is sought, the terms and provisions or the application of such tem1s or provisions or the app!icatic>n of such tcm1s or provisions to persons or circumstances shall be ineffective to the extent of such invalidity or unenlorceability in such jurisdiction without invalidating the remaining provisions hereot', which shall ncvcnhelcss remain in force and be .:nforceable as among the parties hereto and any such prohibition or unenlorceabi!ity shall not invalidate or render unenforceable such provisions in any other jurisdiction.

9.! 3 Tim<: is of the Es.<;ence. Compul.ation of Time. Time is of the essence with respect to every covenant, condition to be satisfied, and action to be taken hereunder. and the panics shall proceed accordingly with rcsp<.>ct to every action necessary, proper or advisable to make eftective the transactions contemplated by this Agreement. Whenever the last day for

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the. cxe:cise of any privilege or the diseharg~ of any duty hereunder shall fall upon any day whtch ts not a busmess day. the party havmg such privilege or duty may exercise such privilege or discharge such duty on the next succeeding business day.

9.14 Choice of Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of South Dakota. Any legal action or proceeding with respect to this Agreement or any document related hereto shall be brought only in the rilih Judicial Circuit Court in Aberdeen, Brown County. South Dakota, or the United States District Court for the District of South Dakota, Northern Division, in /\.b~rdcen, Br0\\11 County, South Dakota and. by execution and delivery of this Agreement, each party hereto hereby accepts t'or itself and in respect of its property, gen~r.11ly and unconditionally, the jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably waive any objection. including. without limitation, any forum 11011 conveniens, which any of them may now or hereafter have to the bringing of such action or proceeding in such respective jurisdictions.

9.15 Waiv~-r of Jurv Trial.

Borrower and Lender waive triul by jury in respect of any dispute and any action on such dispute. This waiver is knowingly. willingly and voluntarily made by Borrower and Lender. and Borrower and Lender herby represent that no representations of fuct or opinion have be-en made by any person or entity to induce this waiver of trial by jury or to in any way modi!)' or nullify its effect. This provision is a material inducement for the parties entering into this Loan Documents. Borrower and Lender arc each hereby authorized to file a copy of this section in any proce~ding as conclusive evidence of this waiver of jury trial. Borrower further represents and warrants that is has been represented in this signing ofthis Agreement and in the making of this waiver by independent legal counsd, or has had the opportunity to be represented by independent legal counsel selected of its own free will, and that it has had the opportunity to discuss this waiver with counsel.

9.16 No Wammtv bv Lender.

By accepting nr approving a.nyfhing required to be observed. performed or fultil\cd by Borrower or t:o be gi\'cn lo Lt:onder pursuant to this Agrcem~nt. including any certificate~ Survey. receipt, appraisal or insurance policy, Lender shall not be deemed to have warranted or represented the sul1icicncy. legality, cffectivene!)S or legal effect of the same. or of any term, provision or condilion then.'Of and any such acceptance or approval thereof shall not be or ~onstitute any wamlnty or representation with respect thereto by Lender.

9. J 7 Standard of Conduct of Lender.

Nothing contained in this Agrce!llent or any other Loon Document shall limit the right of Lendi::r to exercise its business judgment or to act. in the context of the granting or withholding of any advance or consent under this Agre~ment or any olhcr Loan Document. in a subjective manner. "..,·hclher or nol objectively reasonable under the cil\:umstanccs. so long as Lender's exercise of its business judgment or action is made or undertaken in good faith. Borrower and Lender intend by the foregoing to set forth and affirm their entire understanding with respect to the Slandard pursuant to whi;h L~nder's duties and obligations ore to be judged and the parameters within which Lender's

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discretion may be exercised hereunder and under the other Loan Documents. As used herein~ .. good faith"' means honesty in fact in the conduct and transaction concerned.

9.18 CREDIT AGREEMENT NOTICE. TO PROTECT BORROWER AND LENDER FROM ANY MISUNDERSTANDING OR DISAPPOINTMENTS. ANY' CONTRACT. PRO!vi!SE. UNDERTAKING .. OR OfFER TO FOREBEAR REPAYMENT Of MONEY OR TO MAKE ANY OTHER FINANCIAL ACCOMMODATION IN CONNECTION Will~ THIS LOA.N OF i\·10NEY OR GRANT OR EXTENSION OF CREDIT. OR ANY AMENDMENT OF, CANCELLATION OF, WAIVER OF, OR SUBSTITUTION !'OR ANY OR ALL OF THE TE!L'v!S OR PROVISIONS OF ANY INSTRUMENT OR DOCUMENT EXECUTED IN CONNECTION WITH THIS LOAN OF MONEY OR GR.A.NT OR EXTENSION OF CREDIT, MUST BE IN WRITING TO BE EFFECTIVE.

.'iignalllre on Following Page

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£~ WffNESS WIIEREOF. 1~ parties hereto hnvc !>~I the-ir hands and ~ls the tia}' and ) J:'J.r lirsl abo\'C wriltl!n.

NORTHERN BEEF PACKERS. l.l~IITED P~TNERSHIP . tf

~- ·--~~ ,:;::-s:/~.-/_...t:.:..___ PY' ___ • - ---'""~

" hs: /I ):: . ... 7

, ·- ~ ..... ~ 4 /3 r' .!-LC, ·' / J·>·' ,.-t~ ~~,._-c: /""'A,.,r;.~;;·

SDif LIMITED PARTSERSIIII' 6

By;-;-:---,-,o-­lts: I.·

39

,-

~;, .. ~

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EXHIBIT A

REAL PROPERTY DESCRIP"nON

PARCEL I: NBP Lagoon Lot l in the Southwest Quarter of Section 7. Township 122 North. Range 63 West of the 5th P.M .. according to the plat thereof of record, Brown County. South Dakota

PARCEL II: Blocks I. 2, 3, 4. 5. and Lots L 2, and 3, Block 6, H & S First Subdivision in the North Half of Section 36. Township 123 North, Range 64 West of the 5th P.M., according to the plat thereof of record, Bro"n County, South Dakota.

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EXHIBIT B

NOTE

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EXHIBffC

SUBORDINATED AND SHARED DEBT

Subordinated:

None

Shared Collateral Position:

None

Liens which are subordinated to Lender are currently:

MNDak Concrete, Inc. Concrct~ Contractors. Inc. Industrial Builders, Inc. McNeil Refrigeration. Inc. Dakota Supply Group. Inc. Red Wilk Construction, Inc. llunlon Brothers Pierce and Harris Engineering, Inc. Artie Industries, Tnc. Fargo Tank & Steel Co. Pugleasa Company. Inc. Jen$en Rock and Sand, Inc.

42

$ 500,826.60 S3,702.000.00 s 349,782.30 s 669,855.4() s 54,049.04 $ 299,520.00 $ 29,887.15 $ 46,873.01 $ 21!,257.70 $ 132,982.83 $ 154,925.65 s 594,132.52

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EXHIBITD

COLLA TER.".L ASSIGNMENT

( 1) all equipment, including, but not limit~d to livestock, machinery, furniture. furnishings. accounts receivables. supplies. cash, inventory. and vehicles, now owned or hereafter acquired. by Borrower. a South Dakota Limited Partnership. engaged in the operation or beef plant and other related ancillary structures, together with all accessions. parts. attachments. accessories. or appurtenances. or appertaining, attached. kept, used or intended for usc, and all substitutions, improvements, replacements and additions; {2) all accounts and general int:mgiblcs. now existing or subsequently arising; (3) all interests of Borrower. now existing or subsequently arising. from the sale or rendition of services to its customers which give rise 10 any accounts or general intangibles now held or hereafter acquired; (4) all contract rights. now existing or subs~quently arising: (5) all chattel paper. documents or instruments rdating to accoun\5: (6) all fixtures now or hereafter affixed. altached or located on the real property described in the Mortgage of even date unless listed below as an exception; and (7) the proceeds. products and accessions of and to any and all of the foregoing.

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EXHIBITE

UNPAID TA.XES

Current

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EXHIBIT F

OUTSTANDING UTlGATION

Foreclosure action on a Mechanic's Lien of Scott Olson Digging's claim of$2.1 00,000.

Foreclosure action by SD Contractors. Inc. v. NBP lor a claim of approximately S600,000.

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EXHIBITG

Definitions

Unless me context otherwise specifies or requires, the following terms shall have the meanings herein specified, such definitions to be applicable equally to the singular and the plurJI forms of such terms and to all genders:

"'AAA'' means the American Arbitration Associatioft: or any successor thereof.

""Act" means the USA Patriot Act {Title HI of Pub. L. 107-56 signed into law October 26, :!00 I)).

-Aftilia~ .. mean$. ''-'ith respect to any Person, another Person thnt directly, or indirectly through one or more intcnnediaries. Controls or is Controlled by or is under I.!Ommon Control \Vith the Person specified.

~·Architecr· means an an:hitc.."C't reasonably approved by Lender. its successors and pennittcd assigns. Lender hereby approves of Mallot Creek Group, Inc. as an Architect.

~·brchitee(;; Contract'' means any contract for architectural services ·relating to the development of the Land· and/or ·the construction ·of the Improvements between Borrower and Architect. and approved in writing by Lender in its reasonable discretion, as the same may be amended tfom timt! to time with the prior written approval ofle.nder.

··Authorized Signer" means any signer of this Agreement~ acting alone. or any other representative of Borrower duly designated and authorized by any Authorized Signer to sign dra\\· requests in a \vriting. addressed to Lender. which writing may include a draw rcque::.t in the fonn attached hc.'feto as Exhibit H.

"'Borrower's Deposit AccounC' mcan:i un account establishc:::d witl1 a tinancial institution of Lt:nder's choice and under the dominion and control of Lender.

·'Budget'· means the breakdown of hard costs and soft costs attached hereto as Exhibit 1, as the sam!! tnav bl! rcvi:;cd from time to tlme pursuant to the written recommendation of Architect, the Projt:ct Manager and the Loan Monitor and with the written approval of Lender.

-ausinoss O.y" moans any day that is not a Saturday, Sunday or banking holiday in the State or the office in the city in \vhich the Note is payable.

··casuJlty .. means any act or occurrence of any kind or nature that results in damag.c. loss or destruction to the Property.

-claim- means any liability, suit, ac-tion, claim, demand. loss, expense, penalty. fine. judg.mcnt~thcr cost of any kind or nature \VhaL')OeVer. including fees. costS and expenses of attorney~. consultants. contractors and expL'"rtS.

-Ciosina Date'' means the dale on which all of the conditions set forth on the Closing Checklist have heen delivered or comp lctcd to the satisfaction of Lcndor.

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··Code .. means the lmemal Revenue Code or 1986, as amended .

.. Cl,l\aterar· ml:ans, collectively any and all assets and rights and interests in or to Propeny of the Borrower and each Guarantor, wh.,ther real or personal, tangible or intangible, on which any liens are granted or purported to be granted pursuant to an) Security Document

··Completion of Construction·· 1neans. with respect to the Constrtlction of the Improvements. the satisfaction of all of the condhions set in the Credit Agreement..

··con_demnation•· means any taking. of title to, use of. or any other interest in the Propeny under the exercise of the power of condemnation or eminent domain. whether temporarily or pennanclllly. by any Governmental Aulhority or by any other Person acting under or for the benefit of a Go,·ernmcntul Authority.

·-s:..Qpdcmnation Awards .. means. any and all judgtnents, awards of damages (including st:vcrancc and consequential damages). payments. proceeds. scnlcmcnts. amounts paid tOrn tnking in lieu of Condemnation. or other compensation heretofore or ht:reaftcr made. including interest thereL)n.

and tht: right to recdve the same. as a resuh of. or in connection with. any Condemnation or threatened Condemnation.

··Loan Mt:mitor'" means a person or fim1 appointt!d or designated by Lender from time to time to inspect the progress of the development of the Land, the construction of the Improvements and the confonnity or con>1ruction with the Plans and Specifications. the Budget and the Project Schedule, and tv pcrfom1 such other acts and duties for such other purposes as Lender may from time to time deem appropriate or as may be required by the terms of this Agreement ·nn:: parties hereby agree tha{ such Loan t-.·lonitor shall be chosen by Lender. Any rcasonablt: fees or expenses pa.id to th~! Loan Monitor shall be reimbursd in full by Borrower.

··Construction Contract'' means any contract for the development of the Land andlor the construction of rhe hnprovements. between Borrower and the Contractor or any other contractor. and approved in \vriting by Lender in its reasonable discretion, as the same may be amended from time to time ,~,rith the prior written approval of Lender.

"Cou~'truction of rhc lmnrovements- means the development of the Lund and/or th~

completion oftl1e construction of the improvements.

··Comror· nH!:Ul$ the possession. directly or indirectly. of the power lo direct or cause tl1e

Jir~ction of tht! mal\agcment or polick"S of a Person. wht:ther through the ability to exercise voting po,.,·cr. by contmct or otherwise, -controlling.·· or "Controlled .... havt: meanings correlativ..: thereto.

"Dcfaulf" means an event or drcumstam.-e that. with the giving ol'>-loticc, if required pursuant to the Loan Documents. or lapse or rime, or both. would constitute an Event of Default under the provis_ions of this Agreement.

-Deposit Accounl Control Agrc-..!mcnt" means any Deposit At.:l!ount Control Agreement or Account Conrro:.)l Agrccmem. if U$t!'d. among the applicable financial institution at which deposit or securities accounts are mainlained. by Borrower or~ as the case may be, any Guarantor, and Lender. which agreement. iuter alia. cvidcnCl."S the Lcnder""s dominion and control over the applicable occounts and acknowledges Lender's security interest therein.

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··Dispute'' means any controversy. claim or dispute between or among the parties to this Agreement. including any such controversy. daim or dispute arising out of or relating to {a) this Agreement. (b) any other Loan Document, (c) any related agreements or instruments, or (d) the tmnsaction contemplated herein or therein (including any claim based on or arising from an alleged personal injury or business tort). "

''Fnvironmemal Aerccmcnf' means the Envirorunenml Indemnification and Release Agreement ol· even date herewith by and between Borrower and Lender pertaining to the Property~ as the same may from timt:" to time be e:·lcnJcd. amended. restated or otherwise modified.

"ERISA" means the Empk1ycc Retirement Income Security Act of 1974. as amended.

"Event of Default" means any event or circumstance specified in Article VI and the continuance of such event or circumstance beyond the applicable grace and/or cure periods therefor, if any, set forth in Article VL

··Expcn~es·· means all fees: charges. costs and e:-;:pcn.scs of any reasonable nature whatsoever incurred at any time and lfnm ti.me to time (whether before or after an Event of Default) by Lender in making. funding, adminis:tcring or modifying the Loan. in negotiating or entering into any "'workout"' of the Loan. or in exercising or enforcing any rights. powers and remedies provided in the Mortgage or any of the other Loan Document~. inclLJding. attorneys· fec:s, court costs. receiver"s fees. management tCcs and costs incLJrred in the repair. maintenance and operation oC or taking possession ot: or selling, the Property .

.. Force Majeure" means strikes.. l()Ck·outs, \Var, civil disturbance. naluraJ disaster, acts of terrorism or acts of God which cause a delay in Borrower's performance of an Obligation related to the :work of construction; provided. howi!vcr. that (a) Borro\vcr must give Notice to Lender within ten (10) days after the occurrence of an event which it believes to constitute Force Majeure, (b) in no event shall Force Majeure extend the time for the performance of an Obligation by more than sixty (60) days. and (c) circumstances that can be remedie-d or mitigated through the payment of money shall not \:onstitute Ft1rce MajCure hereunder to the extent such remedy or mitigation is deemed rl"!tlsonable by Lender in its sole di~retion.

··Funded lndebtcdn~ .. means. as of any date of detem1ination, for the Borrower~ the sum of (a) the outstanding principal amoum of all obligations. whether current or long-t•rm. for borrowed money (including Obligations hereunder) and all obli!fations evidenced by bonds. debentun..~~ notes, loan aui-ecm!.!:nts vr other similar instruments, (b) all purchase money indebtedness~ (c) aJl direc1 ~Jbligacions arising und!!r h:ttc-rs of credit (including standby .and commercial), bankers· accept.anccs. bank guara1lties. surety bonds or similar instruments. (d) all obligations in respect of the deferred

· purchase price of prop~o-rty or services {other thn.n trade accounLo; payable in the ordinary course of busines<). (e) above of any partnership or joim venture (other than a joint venture that is itself a corporation or limit~d liability company) in which the Borrower is a general partner or joint venturer. un\c:;s such Indebtedness is !!xpressly made non-recourse to d1e Borrower.

"Project Manaccf" means a Project Manager acceptable lo Lender in its reasonable discretion and its successors and penniued assigns. Any contract with the Project Manager shall be submitted to Lender for Lender's approval.

"General Partner" means Northern Beef Packers Management LLC, a South Dakota limited liability company.

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··oovemmcntal Authoritv•· means any governmental or quasi-governmental entity~ including any court~ departmcnL commission. bqard. bureau. agency. administration. service~ district or other instrumentality of any governmental entity.

"GAAP"' means gcn:.:rally accepted accounting principles in the United Slates set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute oi Certitied l'ublic Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may b.: approved by a significant segment of the accounting prof(.."Ssion in the United States, that are applicabk to the circumstances as of the date of det.e.rmination. consislenrly applied.

··1morovemcnts .... means all on-site. and otT~site. improvements to the Land for a beef slaughter and fabricath'n plant complex to be constructed on the Land including.. without limitation, a 237,000 square foot pmcessil)g building attached to a 51,000 square tool enclosed stockyard, a 48.41 & square fool rendering and utiliry huilding. connected to the processing building through an underground pass3 gc. nnd a concre~~ ro·&dway emering rhc:: r~nced ~itc from ~35th St. on the nonhwest sidl!' of the site that run::> south behind the processing plant and east to the stockyard. together with all fixtures. e!quipment and appuncnances no·w or later to~ \ocated on the Land and/or. in such improvements .

.. Insurance Proceeds'~ means the insurance claims under and the proceeds of any and all policies of insurance covering the Property or any part thereof. including all retumcd and unearned premiums with r'---spect to any insurance rdating to such Property. in each case whether now or h~rcafter existing or arising.

"Intere-st Cowraoe Ratio·· means. as of any date ofdctennination. the ratio of(a) EBITDA for the prior fiscal quartor to (b) lntcrc.>t Charges for such fiscal quarter .

.. Land"' mean.s the land d\!:scribcd in and encumbered by the Mortgage.

"Law .. or ~·t..!l\V!i- means all federal, state and local laws. statutes~ rules. ordinances. re1!ulations. codt:::s. licenses.· aUlhl1ri:ia.tion~ decisions. injunctions, interpretations~ orders or decrees or 31~· court or other Govcrnmcnta.'t· Authority having jurisdiction as may be in effect li-om time to time.

"Lome· means. the loans from Lender tO Borrower .. the repayment obligations in connection with which are evidenced by the Note.

"Loan Amount" moans up tu Sixty Million and No/100 Dollars ($60,000,000) .

.. Loan Documents~' means this Agreement,. the Note~ the Mortgage. the Environmental /\gree:ment. the Security Documents. ·any and all other documents which Borrower. GUarantor or any Llthcr parry or parties have· executed and dclivr..-red~ or may her caller execute and deliver., to evidence~ secure or guarantl!t! tht: Obligations. or any part thereof, a.c:o the same may from time to time be t::\tended. amended. rcsum.·tL supplemented or otherwise modified.

"Lnss Threshold'' means Net l'roceeds, the aggregate amount ofwhicl> is less than $250,000.

-Matl!riul Co11tracL" ... means those contracts and agreements described in this Agreement .

.. Mnturitv Date .. has tht! meaning set forth in the Note.

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Mort!la!le .. means the Mongage, Assignment of Leases and Rents. Security Agreement. and Fixture Filing of even date herewith given by Borrower to Lender to secure the Obligations. as the same may from timt:: tn time be extended. mnendt:d, restated. supplemented or otherwise modified .

.. Net Proceeds.." wh~n us:cd "vith respect to nny Condemnation Awards or Insurance Proct::t!ds. means the gross proceeds from any Condemnation or Casualty remaining after payml!nt of all expenses~ including attomeys' fees. incurred in the collection of such gross proceeds.

·"Note•· means the Note of even dare herewith .. in an amount equal to the. Loan Amount, made by Borrower to the order of Lender. as the same may from time to time be: extended~ amended. restated. ~upplcmcnted or othenvis:! modified.

··Notice" meuns a notice. request, eonsenl. demand or oth_er communication given in accordance with the provisions of Section 9..3 of this Agreement.

.. Ql>ligutions .. means all present and future debts, obligations and liabilities of !lorrowc-r to Lender arising pursuant to. or on account of. the provisions of this Agreement, the Note or any of Lhc other Loan Dooum~nts, including the obligations: (a) to pay all principal. interest, late char~cs. prepayment premiums (if any) and other amounts due at any time under the Note; (b) to pay all Expenses. indemnification payments. fees and other amounts due al any time under the Mortgage or :my or the other Loan Dt1CU01l!'llts. together \Vith interest thCfCl)Il as provided in the Mortgage or such Loan Document. and (c) h) perfonn. observt! and L'"Omply v.·ith all of the tcm1s, covenant.<> and conditions . .:xprcss.cd or implied. which Borrower is n .. >quired to perform. observe or comply with pursuant to the tenns of the Mortgage or any or the other Loan Documents .

.. Onw.nizationa·J Ot.Jcumentli .• means~ {a) with respect to any corporation .. the certificate or articles of incorporation and the bylmvs tor equivalent or comparable constitutive documents with rcspc..:t to 311)' jurisdiction): (b) with respect to any limited liability company. the certificate or articles l)f funnatinn or organizalion and operating. agreement: and (c) with re5pcct to any partnership, joint venture. trust or other fonn of business contity. the partnership. joint venture or other applicnblc agreement of fomlation or org.;.mization: and~ in each case. any agreement. instrument~ filing or notice with re!>pt:cl thereto tiled in connection with its !Ormation or organization vdth the applicable Govemmental Authority in the jttri!)diction ol' Its fonnnlion or organization and. if applicable. any certificate or articles of fomlntion or organization of such entity.

·•Person~· means an individual, n corporation. a panncrship, a joint venture, a limited liability company. a trust. nn unincorporated association~ any Governmental Authority or any other ctitity.

··Plans and Specitkation.:;"~ means any 1\nd a11 plans and specifications prepared in connection with lh\!: development of the Land and/or the construction Of the improvements and approved in writing by L~.·nder. as the: same may from timl! to time be aniendcd with the prior written approval of Lender not to be unreasonably withheld or delayed.

•·project Schcduh:-: .. m~::ans the estimated schedule tbr commencement and completion of the development of cl1e land and construction of tl1c Improvement• attaobed hereto as E.xhibiL1, as the same may be revised from time to time with the written approval of Lender.

"Prooertv" means the real and personal property conveyed and encumbered by the Mongage and the other Security Documents.

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··Restricted Payment .. means. in relation to Borrower, and (a) declaration or payment of any dividend on or in respect of any equity interesr, the purchase, redemption, defeasance, retirement or other acquisition of any equity interest of Borrower, directly or indirectly, the return of capital by Borrower to any equity holder. or any other distribution on or in respect of any equity interest of Borrower or (b) payment or prepoymcnt by Borrowerto the Borrower's shareholders (or other equity holders) or any Affiliate of Borrower l)T any Guarantor.

··SDIF Limited Partnc:Ghip 6'" means. Lender.

··sccurifl.· Documt!nts~· means. all Security Instruments execurcd and delivered to Lender on November 4. :;o I 0 or from time to time thereafter by Borrower or Guarantor pursuant to any of the Loan Documen~s.

~-securirv Instrument"' means any security agreement.. assignment, pledge agreement, financing or other sim.ilar statement or notice. continuation statement, other agreement or Instrument, or any amendmem or supplement to any thereof. creating~ govcming or providing for, evidencing or perfecting any security interest or lien.

"Senior Manaaement Personnel" shall be delined as the CEO. CFO. Plant Manager, or any other employee of the Company who earns in excess of One Hundred Thousand Dollars ($100.000) per year in either salary or bonus.

"Shareholders Eguitv" means as of any date of dcterrn ination, Shareholders· equity of the Borrower as of that date determined in accordance with GAAP.

"State" means d1e State of South Dakota.

-survcv'" rTicans a map or plat of suf\·ey of the Land \vhich confom1.s with Lender's survey requirements scr forth in the Closing Checklist and \vith the '"Minimum St~ndard Detail Requirements lor AL TAIACSM Land Title Surveys'· jointly established and adopted by ALTA and NSPS in 2005, and pur>uant to the Accuracy Standards as adopted by ALTA and NSPS and in effect on the date when the Survey is certitied to Lender in the f(>rm specified in the Closing Checklist.

··Tangj_hlc Ncr \Vonn~· means as of any date detennination .. $hareholders~ equity of the Borro\ver on that date minus the int:::mg.iblc assets of BorrO\ver on thai date.

''Taxes- means all ta:..:c:s. levies. imporu. duties. deductions. withholdings. assessments~ fees or ether charges .. whether ~cnernl or special. ordinary or extraordinary. or forcsccfl or unfoNseen. which at Rll.Y time may be! a.ssc~scd. levied. con tinned or imposed by any Govcmmcntal Authority or any communities t3cilities or otht:r private district on Borrower or on any of its propenies or assets or any part thereof or in rl!spect of any of its franchisL."S, businesses. income or profits. including any interest. additions to or penalties applicable thereto. ·

"20 10 OtTcrino Memorandum" means the January I 0, 20 I 0 South Dakota Rcgionol Center EB-5 Immigrant Investor Program Conlidential Offering Memorandum with respect to Borrower.

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Prepared By: Jeffrey T. Sveen Siegel Barnen & Scllutz. LL.P. 415 S. Main St .. 40G Cupitol Bldg. P.O. Box ..190 Aberdeen. SD 51402w0490 605-225-5420

RE-RECORDED TO CORRECT LEGAL DESCRIPTION

INSTRUMENT NO. 201029445 BOOK; 546 MORTGAGE PAGE; 290

2010/11/~4 03;16,08 PM

CRROL SH~qMRN. REGISTER OF DEEDS BRO~H COUNTY. SOUTH ORKOTR

Recording Fee: S 36.00 Relurn To~ SIEGEL BRRNETT AND SCHUTZ

MORTGAGE-ONE HU:'\DRED EIGHTY DAY REDEMPTlON

MORTGAGE made and entered into this 4th day of November, 2010. by Northern Beef Puckers. L.P .. a South Dakota Limited Partnenhip organiz~d under the laws of the State of South Dakota. of 38749 I 35th Street. Aberdeen, South Dakota 5740 I, (the ''Borrower''), as :Vlortgagor. in favor of SDlF Limited Partnership 6. of 416 Production Street North, Aberdeen. South Ddota 5740 I, (the ·'Lender''). as Mortgagee.

WITNESSETH:

THE PARTIES AGREE THAT THE PROVIS!Ot'S OF THE ONE HUNDRED EIGHTY DAY REDE!\fPTION MORTGAGE ACl' GOVER.N THIS MORTGAGE. THERE IS HEREBY GRANTED TO MORTGAGEE A POWER OF SALE FOR PURPOSES OF SDCL CH. 21-49.

l. That in considcn.nion of the Lo.:tn by Lender to Borrower of the principal sum ns suJ.ted ht:.rein. Borrov . .:er. as Mortgagor, does hereby mortgagcl grant, bargain. release, assign. u-msfcr and convey to the Board, as tv1ortgagt.!e, the real property and premises described in Exhibit .:\ :J.ttached hereto. and by this rcfer\!nce incorporated herein, together with atl buildings and impruv:::ml!nts no .. ...- or hcreufter erected thereon, all hereditaments and :.1ppurtena.nces. and a11 righL.;; and interests thereunto belonging or appenaining. including rights of homcs\en.d. and all contingent rights and estates of Borrower in and to said premises, :.md all wntter rights {collectively the '"'Premisest~): and all contingent rights and estates of Borrower in and to the Premises. it being thi! intention of Borrmvcr to mortgage an absolute titk in fee in and to saiU Premisl!s in favor of Lt::ndcr. to include all of the right, title and interest of Borrower in said propcny nov.: mvncd or hereafter acquired. all easements and scrvit.:nt estates appurtenant thereto. rents. issues, uses. profits and right to possession. and all lixrurc:s and crops raised or pla~ thereon.

2. Borro\vcr warr.:mts that Borrower is the owner in fee and is lawfully seized of said ?remises: that the Premises are free and clear from all encumbrances and liens whatsoever, except for such liens as s~ure subordinilted debt which has been disclosed to Lender in writing as described in Exhibit C auached to the Credit Agreement. Borrower hereby

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covenants to warrant and defend the title to said Premises against any and all claims and derm.:.. .. r'Jds of ;dl persons whomsoever.

3. Pm\'id(.;d, however~ that if Borrower sh::il1 well and tmly pay. or cause to be paid \Yhen due. the principal. interest and.any expenSt.-s set fonh on the Promis..o.;ory Note .. at the timt:s ~nd in the munnt·r 8;t forth in the Promissory Note. and shall '""ell .. ::md truly kc..""Cp, pcribm1 nnd observe all covenants. terms ami conditions pursuant to the terms nf this !v1ortgage. the Loan Agreement. th~ Promissory Note, and any other Loan Documents on Borrower's pa.."1 to be kept. pcrfom1cd anc.l obser.'cd. and shall pay to Borrowt::r all sums of muncy due or to become due pursuant to the Lem1s ht::reof. then this ~lortgage and the rights hereby granted shuii cease~ tenninatc and be void; otherwise this Mortgage sball be and remain in full force and effecL

4. This J\1ortgagc is given by Borrower as security for the follo\ving:

a. Payment by Borrower to Lender of the principal sum of up to Sixty Million Dollars ($60.000.000), together "vith interest ther:!on. m::curding to the terms of ::1 certain Promissory Note dateJ the date h~reof. due and payable on or bcfon: the 4th day of t'~ovcmber. 2015. '-lnd given by Borrower to Lender, and any otht:!r Loan Documents or other instruments executed in retinancing, extending or renc\ving said inJcbtc:dness or a..r1y p::u-t thereof. all po.yable according to th~ terms of said Promissory Note .. Credit Agreement and other Loan Documents~ the parties agree that the sum l"tnally advanced of up to S60.000.000, shall be Lhe amount of the final mongn.ge.

b. Repayment in full by Borro'\ver of all amounts advanced by Lender, at its option. to or on behalf of Borro,vcr as prott!ctive disbursements. as authorized in this Mortgu.gc or in th:: CrL~it Agreement~ or any other Loan Document~ all pav.nblc :b on.1vid~:d in this iv1ort£al!~. lb.e Promissory Note, or other Loan iJ~curncnt o.r other instrument whi;h ~u.y be takt:n to e;idence such advance(s) or any pan thereof;

5. This 1\-·iortgagt: is made pursu~nt to a certain CREDIT AGREEZv1ENT Jated the 4th dav of Novcmbt:r. :!010, bctw<..'"t!n Borrowl!r and Lender and is subject to all co~·euants. ob.ligations and pn:.1visions of such Credit Agreement as if they were fully set forth herein and made a pm ht.:rt:of.

6. Borrower covenants and agrees as follows:

a. Borrower agrees to pay the indt:btt:!dness herein and as in the Credit A1!.rt!cment nnd Promissory Note describt.:d. Borrower shall havt: the option to pr;pny all or uny pun uf the Promissory Note only as set J(xth in and pursuant to the Crt!dil Ag.rt:.:mcnt. lf prepayments U.."i! made, principal payments: shall b~: reduced in inverse order of maturity. Such prepa)mcnts shnll not in uny \vay uller or suspend any obligations of Borrower under the tenns of tbe Loan

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Documents. except to the extent that such payments result in a credit against payments on the: Promissory Note.

b. Borrower will keep and maintain with respect to the Premises. at all times during the term hereof and of the Credit Agreement, and while any of the Promissory Not(! is outsttm.dir1g. property and easualty insurance. and liability insurance us set forth in the Credit Agreement

c. Borrower ._..,ill keep the Premist=-s in good condition and repair~ as the same may nov.·. or may hereafter. be placed. ordinary wear and tear excepted; and to pennit no mechanic's or other lien or t!ncumblmct: thereon; or to commit or permit no impairment of the value of this security.

d. Borrowc:r "'"ill not transfer. remove, substantially alter. or demolish any buildings. improvt:ments or fixtures on lht! Pn::mises without the consent of L.cmicr. except for that property ... vhich in the good faith opinion of Borrower is obsolete~ ouunoded. worn out. is being r(;!pluccd .. or othcr.visc is not needed for the operation. Borrower shall not conm1it or suffer waste on the premises, and in event of such w3.Stc U::ndcr, in addition 10 any other available remedy, shall be entitled immediately to restrain the same by injtmction or other appropriate proceeding. Borrower v.:anants that the Premises wilt not be used for any unluwful purpose or permitted to become a nuisance.

e. Borrower will pay all tax.es .. a.s:sessmentst rents. or governmental or municipal charges, tines .. rutes, fCes or charges lcvit!'~ imposed. or charged against the Pr.::mises, before the delinquent date thereof; and in default of any such payment on the part of Burro\vcr. Lender may pay the ::;amt!, al its sole option. and all such paym~nts shall be added to th!.! obligc.uion secured by this tvlortgJgc and shall hear intcrcst ::n t..ht: same rat~ a:; the principill Sum seCured hereby until repaid by Borrower.

f. BorrO\'Y'Cr hcr~hy a.">Signs to Lender ull rents, issues. uses, protits. royalties. or lease payments due to Borrower from us!! or occupallcy of any part of the Premises secur:...J. by this 'tv1ortgage ns further security tOr th~ pa.yment of the obligation secur~d hereby~ aH rents. profits. lease payments. or royalties rt::cdvcd by Lender hereunder shcll be applied to t.i-)c indebtedness secured by this ~1.ortgage. Borrower grants to Lender the right to enter upon the premises for 1hc purpose of coUectlng the same~ and to operate or let the Premises., or any part thereof. and to apply the monies received therefrom. after pa;-mcnt of all neces.o;ary charges :md expenses. to the obligations secured by this Mongage, upon default of any of the covenants, conditions or 3greem:.::nls contained herein. Bom.:n.-ver further promises and agrees. in the e\·ent of any such d.:£1.ult, to pay to Lender~ or to nny receiver appointed by a court to collect the rents, issues. and profits of the !'remises, a fair and reasonable occupational rent for the use and occupation of the same or of such pan thereof as may be in the possession of

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Borrower; and on default in the payment of such rental, to vucare and surrender possession of the Premises.

g. Borro\·ver wiU pay all expenses !.hat Lender incurs in any such uction or proceeding to prosecute or de!;:md the righ!S and lien created bv this Mortcrage including re.2Sonable auomcy's fees. in Lhe event any action ~r proceedi~g-i~ commenced.. except an action to i(m:.-close this !vtortgage or collt:::ct the obligation secured hereby, in which it b<::!comcs ne!ccssn.ry lo defc:nd or assert the Hen of this !\.:lortg.age~ wh:!th~r or not Lender is made or becomes a party to such action or proceeding, and if not so promptly pilld on request, such expenses shall be added to the debt sc-~ured hereby and become a lien on the Premises, and shall be det!mc-d to be fully Sl"Ctlrcd by this ?\1ortgagc and shall bt! dt."t!:mt:d prior and parnmount to any right. title. interest or claim to or on the premises accnling or att..:.lchlng subsequent to tht! lien of this tv1ongagc. and shall bear interest at the mtc provided lOr the obligation secured hereby. which action or proceeding shall be governed by the provisions of lav.' and rules of court respecting the n..~overy of cosL. disbursements, and allov.,:ance in foreclosure actions.

h. Borrow~r represents that it has not made~ done~ executed or su!Tcre..I, und \\c·ill

not mak~. do, execute or suffer. any act or thing whereby its title in and to the Premises. or a..'ly pan tbert!of, shu!! Dr may be impaired. churg~d or t!ncwnbcred in any \vay. c;~cept as set tOrth herein. or othcn\-ise expressly agrc.:d in \VI'i.ting. and that it v,;iJI execute. :.:.ckno,vle-dge a.'ld deliver such mortgages or instrumems supph!-mcntal hereto and do such funhcr acts., instruments and transfers us Lender may reiJ.:5onably rcqu~~t tbr better assuring, transferring, mortgaging, pkdging. a-.:;.signing a'ld confinning to Lender all ::md singular the property herein described.

i. Borrower agrees that if all or any portion of the 2.bove described Premises shall be taken or d3magcd by condemnation proceedings under the power of eminent domain. all compensation awarded will be paid din:ctly to Lender. S::!id compl!nsation shull be::: applieJ to tht: indt.:"btcdness hereby secured.

i. In the event Borrower fails to pay \Vhen due any taxes. rental chargcg upon ·any lc:.1scs assigned as additional sct:urity for this rvtortgagc. liens~ judgments, or assessments la\.\i.ully assessed against the Premises hereby mortgaged, or governmental or municipal churge.s .. fines, rates. ft:es or charges lt::vic:d. imposed~ or charg!!d against the: Pn:mises before the same become dclinqul!nt. or fuils to maintain insurance as hereinabove provid~d~ Lender may do so. ut its sole option. !llld without lhc obligation to do so, as a protective disburst::ment and the amount so pilld shall, from the date of payment be added to and deemed a part of the indebtedness secured hereby, nnd shall be due and payable on demand by Lender. provided, however, that the advancement by Lender of any sum pursuant to this pan!grJ.ph shall in no manner relieve Borrower or any obligations incurred under this Mortgage nor limit the right of Lender to

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declare a default by Borrower and to e~ercise all rights and remedies as set forth herein in the event of default.

k. To tbe extent pcrn1itted by lav.;, Borrowci agrees that in case of any action, or in any proc;:!':!dings in any court. to collect any sums payable under or secured by this lvlortgag.e, or to protect the lien or title herein of Lender, or in any other case permitted by law. including fOreclosure by action or by advertisement. in which attofi"l:ey iCes. may bt: collected from Borrower or charged upon the above described property. to pay Lenders reasonable attorney fees and actual disbursemenLq necessarily incurred in the course of said action.

l. In the event the mortgaged Premises or any ponion thereof are sold, divested, transferred, relinquished. or in the event Borrower should lose their riuht, title or interest in the sccuritv herein described. or any portion thereof d~ring the term of this ~"'1ortgagc. ~·hether voluntarily or by operation of law~ without the prior \\Titten consent of Lender. the t:ntire indebtedness remaining unpuid and o"ing. including advances for any purpose, may at the option of Lender. be declared immediately due and payable, and this tvlortgage may then be foreclos~d b-y action or by advcrtisemenL as provided by statute or the rules or po\.vt:rs relating thereto.

m. {n th.;: case of tbreclosur~ of this l'v1ortgage. at any time after the commcnccmr.:nt of an action of foreclosure: or m any time after the commencement of foreclosure by advt!rtiscmc:nt, or during any period of rcdt...~ption. Lendt:r is authorized to appoint a rcceiv~.:r to take possession of the Premises if the Premises have: been abandoned. or to have a re.ccivcr appointed by the t.:oun upon otl1er sufiicient proof being established therefor. said rcceivt:r to take immediate possession of the above described property. and of cl.l the;: rents or protits accruing therefrom, and to rent or cultivate the same as thl! ret:eivcr may deem best for the interest of all parties concemt.:t..l. and be liable to uccuunt to Borro\ver only for the: net profits. after application of rents. issues und prntits upon tho.: expenses and costs nf the receiv~rship und foreclosure and upon the indebtedness, costs and expenses hereby secured or herein men·doned.

n. Funher. in th:: t:vcm of any ac[ion by Lt:mler to en fore~ the collection of the mortgage debt. Borrower .:tgrees thal any expense incurred to procure or c:xtend an ahstract of titk. policy of title insurnncc or other lien search. shalL \.Vhcn paid by Borrower, become a ·pan of the! dt!bt secured hereby. and shall be paid by Borrow-l!r togt:ther with aU taxable costs of such action.

u. Any mon;;ys collected by Lender pursuant to foreclosure under this 1vlortgagc shnll bt: appli(:d first to pay expenses of collection, including auorney's fees. and other expenses owed by Borrower pursuant to section 9.4 of the Loan Agreement; second to pay any interest due on the Loan; third to pay any

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principal due on the Loan: fourth to pay any other amounts due under the Loan Documents~ and fifth to pay remaining princ-ipal on the Loan~ and other amounts dw: hereunder. as they become due, such payments to b~ made in the same order us set forth in this section.

7. In t.ht! case of dt!fault by Do!TDwcr in the payrnc-m of th~ principal sum7

or anv part thereof. m the time or times as specified for the payments hereof, or in the case of dcfhult in the p::1ymc:nt of any of said advanct:::;., or in Ihr.: case of any breach of any covenant or agrecmem cont.:.liued in this !v1ongage. the Loan Documents. or the Promissory Note, or related nwrtgages, documents and notes. or in lht! event of the failure of Borrower to promptly pa~t. when due, any t:::...xcs, charges. liens. ao:;ses.sments, or encumbrances, or in the event of the insolvency oi Borrower~ Leoder may at its option declare this !V1ortgage to be in default and shall provide Borrower with "Titwn notice of such default. lf such default has not been cured within the <1pplicable time periods set liJrth in Section 5.\.IJ of the Credit Agreement, Borro,vcr. ~~ its sole option. may accdcratc tht: payment of tht! outstanding debt ~md mav Jc.:cla.n: the c.:mire unpaid principal immediately due and payable. and if not paid this Nlortgag~ mny be fon::cJosc::d by action. or by advertisement a::; provid:::U by statute or the rules or powers relating thereto, including any amt:ndmt:nts tht:rcof. and this par...1g.raph sh:tll be deemed us nuthorizing and constituting a power of sale as mentioned in said statutes or rules or auy amendments thereof. In ;.!ddition, Lender may e:-;cn:isc any rcmc:dy set fonh in any of the Loan Documents or other agreements bet\'ve:en the parties made in connection with this lv1 ortgage.

8. In the event of any default Lender shall have thr: privilege, without declaring the whole indebtcdnt:ss due and payable~ to foreclosure on nccount of such specific default for such sums as are in default and such fort!closur~ proce.:dings may be had and the Premises described herein may be soht s:ubjc:.;t io the unpaid indebte:dness hereby secured, and tlll5 :-vlortgagc shall c1.mtinue as a lien for any unpaid balance. If Lender \Vaiv~ tlu: right to ~:ccckmte. or any other right ht:rcundcr. such a waiver shall not constitute a waiver of the right to n:scind. or any other rem.edy available to Lender, nor shall it be con..o;;trued a'i a waiver of such rit;hts in the event of subsequr:nt defaults.

9. No remedy herein con!i:rn:d upon or reserved to Lender i.s intt:ndcd to be e~.;clush·t: of anv other available remedy, but each and every remedy shaH bt! cumulative and in addition to r.;:v~rv otht:r remedy gi veo w1der this .\·iortgagc ~md the Credit Agreement~ or now or hereafter exis~ing at h!v·.· or in t::q,uity or by stutulc. "l'o delay or ornission to exercise any right or power t.~ccruing upon any dcfitult shall impair any such right or power or shall be construed as a waiver Ll-tercof~ but any such right ll.tid fX)\Ver may be exercised from time to time and as often as may be dc:emed expedient. fn the event that any breach by Borrower is specificaJly waived in writing by Lender. such waiver shall be limited lo the particular breach so waived and shall nol be deemed to \Vaivc any other or subst."qucnt breach.

I 0. Borrowc:r \Vill comply \\ith nll statutes. ordinances. and g.ovemmcntaJ regulation oJTecting the Premises, and if Borrower nr:glt!cls or rcfus;;s to so comply. und such failure or refusal hus not been corrected "vi thin 30 duys of receipt of written notice~ the entire balance of

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th~ principal sum secured hereby will, at Lender's sole option, immediately become due and payable.

11. Titi.5 h1ortgage shall be governed by and construed in accordance with the laws of the State af South Dakota. Tenns used herein and defined in the Loan Agreements shall have the same meaning as set forth in the Credit Agreement unless the conte:<t clearly requires othenvise.

12.. This Mongage may not be modified or amended except by mutual consent exoressed in vniting, whicb writing shall be ex.pressly identified ns a part hereof, and which writing shall be signed by an authorized representative of each of the parties hereto.

13. .A..ny ootice provided fo:- herein shall b:! deemed given. when transmlned as provided in Section 6.2 of the Credit Agreement.

14. The coven211ts in this .tv1ortgage sball be deemed to be severable. In Lhe event that any portion of L'Us Mortgage is determined to be void or tL.,enforceable. that determinntion shall not affect the va.lidir-; of the remaining portions of the h1ortgage.

!5. Tills instrumem is intended to be and shall be deemed a fixture filing within the meaning ofSDCL 57A-9-502(c). ·

!6. The covenants herein contained extend to and bind the agents, employees, assigns, legal representatives and successors in interest of the pa.•·ties hereto.

IN \v1T01ESS WHEREOF, this instrument has been executed the day and year first above written.

{SEAl.)

.-<TrEST ) ____ ......

NORTHERN .BEEF PACKfRS l.IMlTED PARTNERSHIP

(Name of Borrower)

By· - '---=::,. ... """Zr C} .$' ~ Its:.Jlirector and Sole Member.~rthet'n B-eef

Packers Management, L.L.C.~ its General Partner

- ·_.:-' . By: ___ --:--.;::-;:~-;7-· --·+:~=1--------­

Its:_~~--a·~,c~,~~--------------

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CORP OR;\ TE ACKNOWLEDGMENT

STATE OF SOUTH DAKOTA ) )ss.

COUNTY OF BROI'N )

On this, the__.:'...... day of :\~~..., · 2010, before me, the undersigned officer, personally appeared Q ~ .... : K $ ~ , \".rho nck:now!edged himself to be the ~ of 1;..-~: . .-;' .... .,,:"' /?....£i- ·/~t;..-... L .,;..;.;, a lL.uited partnership~ and that he1

as such ::-;·~ . .: , [?1 , . .., , h·• , be:L'1.g e.uthoriz.ed so to do, executed the foregoing instrument by himself as ) vft .i;.J ,_.. e CTu'*"

N WITNESS \VHEREOF, I heret~nto set my hlllld-and<J,fiicial seal.

/ \l C I .

: p ,..~··· ... _u ..

(Notarial Seal) ... ) /

~:,--;--~:;,-..-/ , ' .. .-"(.,..-, I -r

Notary Public, South Dakota

j. (., .. ...,... ··.-;;{e./ .c.. ;;:; 1 r· .c. t.r~... '-' r · ).....,.(...,.-7...:...... .........

-;> ... - .~ ~.J..: My Commission Expires:.....:·~--~-·-----~

/?"-< f

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EXI-JIB1T A

REAL PROPERTY DESCRIPTION

PARCEL 1: NBP Lagoon Lot l L'1 the Southwest Quarter (S\VVi) of Section Seven (7), TO\'"rnship One Hundred Twenty-t:t·•<..> (122) North, Range Si>:t)··t.b...ree (63) \Vest of the 5th P.M .. according to the plat thereof oi record, Brown County. South Dakota.

PARCEL II: Blocks 1, 2. 3, 4, 5, and Lots 1, 2, and 3, Block 6. H & 5 First Subdi,•isk>n in the North Hali (N•,-;) of Section Thirty-five (35), Township One Hundred Twenty-three (123) North, R~nge Sixty-four (64) West of the 5th P.M., according to the plat thereof of record. Brown County. South Dakota.

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EXHIBIT >.

REAL PROPERTY DESCRIPTION

PARCEL 1: NB.P Lagoon Lot I in the Southwest QmmcrofSection 7. Township 122 North. Range 63 \Vest of the 5th P.!\·1., according to the plm thereof of record, Br0\\11 County, South Dakota.

PARCELl!: Blocks I. 2, 3 . .\. 5. and Lots 1, 2, and 3, Block 6, H & S First Subdi•·i>ion in the North Half <'f Section 36. T own5hip 12J >-lorth. Range 64 \Vest of the 5th P JvL, at:cording to the plat thereof of record, Brov.11 Coutity, South Dakota.

INSTRUMENT NO. 201031149 BOOK' 646 MORTG~GE PRGE' 572

2010/12/10 04,45,54 PM

C~ROL SHERMAN, REGISTER OF DEEDS BROWil COUNTY. SOUTH DAKOTA

Reeordlng Fee! $ 38.00

Pages~ 10

J Return To: SIEGEL BARNETT AND SCHUTZ

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Prepared By: Jef!Tey T. Sveen Siegel, Bamen & Schutz. L.I •. P. 415 S. Main St., 400 Capitol Bldg. P.O. Box490 Aberdeen. SD 57402-0490 605-225-5420

INSTRUMENT NO. 2~1204794 BOOK: 656 MORTGAGE PAGI': 3il8

2012/07/05 01:45:16 PM

CAROL SHERMAN, REGISTER OF DEEDS BROWN COUNTY, SOUTH DAKOTA

Recording Fee: $ 30.00 Return To: SIEGEL BARNI'TT AND SCHUTZ

MORTGAGE- ONE HUNDRED EIGHTY DAY REDEMPTION.

MORTGAGE made and entered into this 3'd day of July, 2012, by Northern Beef P~ckers, L.P .• a South Dakota Limited Partnership organized under the laws of the State of South Dakota, of 38749 !35th Street. Aberdeen, South Dakota 57401, (the ''Borrowern}, as Mortgagor, in favor of SDIF Limited Partnership 9, of 416 Production Street North, Aberdeen, South Dakota 57401, (the ''Lender"), as Mortgagee.

WlTNESSETH:

THE PARTIES AGREE THAT THE PROVISIONS OF THE ONE HUNDRED EIGHTY DAY REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE. THERE IS HEREBY GRANTED TO MORTGAGEE A POWER OF SALE FOR PURPOSES OF SDCL CH. 21-49.

I. That in consideration of the Loan by Lender to Borrower of the principal sum as stated herein. Borrower. as Mortgagor, does hereby mortgage, grant, bargain, release, assign, transfer and convey to the Board, as Mortgagee. the real property and premises described in Exhibit A anached hereto, and by this reference incorporated herein, together with· all buildings and improvements now or hereafter erected thereon, all hereditaments and ~ppurtenances, and all rights and interests thereunto belonging or appertaining. including rights of homestead, and all comingem rights and estates of Borrower in and to said premises, and all water rights (collectively tl1e "Premises"); and all contingent rights and estates of Borrower i~ and to the Promises. it being the intention of Borrower to mortgage an absolute title in fee in and to said Premises. in favor of Lender, to include all of the right, title and imerest of Borrower in said pro perry now owned or hereafter· acquired, all easements and servient estates appurtenant thereto, rents, issues, uses, profits and right to possession, and all fixtures and crops raised or placed thereon.

2. Borrower warrants· that Borrower is the owner in fee and is lawfully seized of said Premises; that the Premises are free and clear from all encumbrances and liens whatsoever, except for such liens as secure subordinated debt which has been disclosed to Lender in writing as described in Exhibit C attached to the Credit Agreement. Borrower hereby

<< i I;~I;III:J!l'. /'• 1· ··i5ft;~····

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covenants to warrant and defend the title to said Premises against any and all claims and demands of all persons whomsoever.

3. Provided, however, that ifBorrower shall weJJ and truly pay, or cause to be paid when due, the principal, interest and any eKpenses set forth on the Promissory Note, at the times and in the manner set forth in the Promissory Note. and shall weJJ and truly keep, perform and observe all covenants. terms and conditions pursuant to the terms of this Mortgage, the Loan Agreement, the Promissory Note, and any other Loan Documents on Borrower's part to be kept, performed and observed, and shall pay to Borrower all sums of money due or to become due pursuant to the terms hereof, then this Mortgage and the rights hereby granted shall cease, terminate and be void; otherwise this Mortgage shall be and remain in full force and effecL

4. This Mortgage is given by Borrower as security for the following:

a. Payment by Borrower to Lender of the principal sum of up to Twenty-Five 'Million Dollars ($25,000,000), together with interest thereon, according to the terms of. a certain Promissory Note dated the date hereof, due and payable 5 years from the date of initial funding, and given by Borrower to Lender, and any other Loan Documents or other instruments executed in refinancing, extending or renewing said indebtedness or any part thereof, all payable according to the terms of said Promissory Note, Credit Agreement and other Loan Documents: the parties agree that the sum finally advanced of up to $25,000.000. shall be the amount of the final mortgage.

b. Repayment in full by Borrower of all amounts advanced by Lender, at its option, to or on behalf of Borrower as protective disbursements. as authorized in this Mortgage or in the Credit Agreement, or any other Loan Document, all payable as provided in this Mortgage, the Promissory Note, or other Loan Document or other instrument which may be taken to evidence such advance(s) or any part thereof;

5. This Mortgage is made pursuant to a certain CREDIT AGREEMENT dated the 3rd day of July, 2012, between Borrower and Lender and is subject to all covenants, obligations and provisions of such Credit Agreement as if they were fully set forth herein and made a part

hereof.

6. Borrower covenants and agrees as follows:

a. Borrower agrees to pay the indebtedness herein and as in the Credit Agreement and Promissory Note described. Borrower shall have the option to prepay all or any part of the Promissory Note only as set forth in and pursuant to the Credit Agreement. If prepayments arc made. principal payments shall be reduced in inverse order of maturity. Such prepayments shall not in any way alter or suspend any obligations of Borrower under the terms of the Loan

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Documents. except to the extent that such payments result in a credit against payments on the Promissory Note.

b. Borrower will keep and maintain with respect to the Premises, at all times during the term hereof and of the Credit Agreement, and while any of the Promissory Note is outstanding, property and casualty insurance, and liability insurance as set forth in the Credit Agreement.

c. Borrower will keep the Premises in good condition and repair, as the same may now, or may hereafter, be placed, ordinary wear and tear excepted; and to pennit no mechanic's or other lien or encumbrance thereon; or to commit or permit no impainncnt of the value of this security.

d. Borrower will not transfer, remove, substantially alter, or demolish any buildings, improvements or fixtures on the Premises without the consent of Lender, except for that property which in the good faith opinion of Borrower is obsolete, outmoded. worn out. is being replaced, or otherwise is not needed for the operation. Borrower shall not commit or suffer waste on the premises, and in event of such waste Lender. in addition to any other available remedy, shall be entitled immediately to restrain the same by injunction or other appropriate proceeding. Borrower warrants that the Premises will not be used for any unlawful purpose or permitted to become a nuisance.

e. Borrower will pay all taxes, assessments, rents, or governmental or municipal charges. fines. rat~s. fees or charges levied, imposed, or charged against the Premises, before the delinquent date thereof; and in default of any such payment on the part of Borrower, Lender may pay the same, at its sole option, and all such payments shall be added to the obligation secured by this Mortgage and shall bear interest at the same rate as the principal sum secured hereby until repaid by Borrower.

f. Borrower hereby as;igns to Lender all rents, issues, uses, profits, royalties. or lease payments due to Borrower from use or occupancy of any part of the Premises secured by this Mortgage as further security for the payment of the obligation secured hereby; all rents, profits, lease payments, or royalties rccei vcd by Lender hereunder shall be applied to the indebtedness secured by this Mortgage. Borrower grants to Lender the right to enter upon the premises for the purpose of collecting the same, and to operate or let the Premises, or any part thereof. and to apply the monies received therefrom, after payment of all necessary charges and expenses, to the obligations secured by this Mortgage, upon default of any of the covenants, conditions or agreements contained herein. Borrower further promises and agrees, in the event of any such default, to pay to Lender. or to any receiver appointed by a court to collect the rents. issues, and profits of the Premises, a fuir and reasonable occupational rent fur the use and occupation of the same or of such part thereof as may be in the possession of

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Borrower; and on default in the payment of such rental, to vacate and surrender pcssession of the Premises.

g. Borrower will pay all expenses that Lender incurs in any such action or proceeding to prosecute or defend the rights and lien created by this Mortgage, including reasonable attorney's fees, in the event any action or proceeding is commenced, except an action to foreclose this Mortgage or collect the obligation secured hereby, in which it becomes necessary to defend or assert the lien of this Mortgage, whether or not Lender is made or becomes a party to such action or proceeding, and if not so promptly paid on request, such expenses shall be added to the debt secured hereby and become a lien on the Premises, and shall be deemed to be fully secured by this Mortgage and shall be deemed prior and paramount to any right, title, interest or claim to or on the premises accruing or attaching subsequent to the lien of this Mortgage, and shall bear interest at the rate provided for the obligation secured hereby, which action or proceeding shall be governed by the provisions of law and rules of court respecting the recovery of cost, disbursements, and allowance in foreclosure actions.

h. Borrower represents that it has not made, done, executed or suffered, and will not make, do, execute or suffer, any act or thing whereby its title in and to the Premises, or any part thereof, shall or may be impaired, charged or encumbered in any way, except as set forth herein, or otherwise expressly agreed in writing, and that it will execute, acknowledge and deliver such mortgages or instruments supplemental hereto and do such further acts, instruments and transfers as Lender may reasonably request for better assuring, transf~rring, mortgaging, pledging, assigning and confirming to Lender all and singular the property herein described.

i. Borrower agrees that if all or any portion of the above described Premises shall be taken or damaged by condemnation proceedings under the power of eminent domain, all compensation awarded will be paid directly to Lender. Said compensation shall be applied to the indebtedness hereby secured.

j. In the event Borrower fails to pay when due any taxes, rental charges upon any leases assigned as additional security for this Mortgage, liens, judgments, or assessments lawfully assessed against the Premises hereby mortgaged, or governmental or municipal charges, fines, rates, fees or charges levied, imposed, or charged against the Premises before the same become delinquent, or fails to maintain insurance as hereinabove provided, Lender may do so, at its sole option, and without the obligation to do so, as a protective disbursement and the amount so paid shalL from the date of payment be added to and deemed a part of the indebtedness secured hereby, and shall be due and payable on demand by Lender; provided, however, that the advancement by Lender of any sum pursuant to this paragraph shall in no manner relieve Borrower of any obligations incurred under this Mortgage nor limit the right of Lender to

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declare a default by Borrower and to exercise all rights and remedies as set forth herein in the event of default.

k. To the extent permitted by law, Borrower agrees that in case of any action, or in any proceedings in any court, to collect any sums payable under or secured by this Mortgage, or to protect the lien or title herein of Lender, or in any other case permitted by law, including foreclosure by action or by advertisement, in which attorney fees may be collected from Borrower or charged upon the above described property, to pay Lender's reasonable attorney fees and actual disbursements necessarily incurred in the course of said action.

L In the event the mortgaged Premises or any portion thereof are sold, divested, transferred, relinquished, or in the event Borrower should lose their right, title or interest in the security herein described, or any portion thereof during the term of this Mortgage, whether voluntarily or by operation of law, without the prior V.Titten consent of Lender, the entire indebtedness remaining unpaid and owing, including advances for any purpose, may at the option of Lender, be declared immediately due and payable, and this Mortgage may then be foreclosed by action or by advertisement, as provided by statute or the rules or powers relating thereto.

m. In the case of foreclosure of this Mortgage, at any time after the commencement of an action of foreclosure or at any time after the commencement of foreclosure by advertisement, or during any period of redemption, Lender is authorized to appoint a receiver to take possession of the Premises if the Premises have been abandoned, or to have a receiver appointed by the court upon other sufficient proof being established therefor, said receiver to take immediate possession of the above described property, and of all the rents or profits accruing therefrom, and to rent or cultivate the same as the receiver may deem best for the interest of all parties concerned, and be liable to account to Borrower only for the net profits, after application of rents, issues and protits upon the expenses and costs of the receivership and foreclosure and upon the indebtedness, costs and expenses hereby secured or herein mentioned.

n. Further. in the event of any action by Lender to enforce the collection of the mortgage debt. Borrower agrees that any expense incurred to procure or extend an abstract of title, policy of title insurance or other lien search, shall, when paid by Borrower, become a part of the debt secured hereby, and shall be paid by Borrower together with all taxable costs of such action.

0 . Any moneys collected by Lender pursuant to !oreclosure under this Mortgage shall be applied first to pay expenses of collection, including attorney's fees. and other expenses owed by Borrower pursuant to section 9.4 of the Loan Agreement; second to pay any interest due on the Loan; third to pay any

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principal due on the Loan; fourth to pay any other amounts due under the Loan Documents, and fif1h to pay remaining principal on the Loan. and other amounts due hereunder, as they become due, such payments to be made in the same order as set forth in this section.

7. In the case of default by Borrower in the payment of the principal sum, or any part thereof, at the time or times as specified for the payments hereof, or in the case of default in the payment of any of said advances, or in the case of any breach of any covenant or agreement contained in this Mortgage, the Loan Documents, or the Promissory Note, or related mortgages, documents and notes, or in the event of the failure of Borrower to promptly pay, when due, any taxes, charges, liens, assessments, or encumbrances, or in the event of the insolvency of Borrower, Lender may at its option declare this Mortgage to be in default and shall provide Borrower with \Hittcn notice of such default. If such default has not been cured within the applicable time periods set forth in Section 5.!.13 of the Credit Agreement, Borrower, at its sole option. may accelerate the payment of the outstanding debt and may declare the entire unpaid principal immediately due and payable, and if not paid this Mortgage may be foreclosed by action, or by advertisement as provided by statute or the rules or powers relating thereto, including any amendments thereof, and this paragraph shall be deemed as authorizing and constituting a power of sale as mentioned in said statutes or rules or any amendments thereof. In addition, Lender may exercise any remedy set forth in any of the Loan Documents or other agreements between the parties made in connection with this

Mortgage.

8. In the event of any default Lender shall have the privilege, without declaring the whole indebtedness due and payable, to foreclosure on account of such specific default for such sums as arc in default and such foreclosure proceedings may be had and the Premises described herein may be sold, subject to the unpaid indebtedness hereby secured, and this Mortgage shall continue as a lien for any unpaid balance. If Lender waives the right to accelerate, or any other right hereunder, such a waiver shall not constitute a waiver of the right to rescind, or any other remedy available to Lender, nor shall it be construed as a waiver of such rights in the event of subsequent defaults.

Y. No remedy herein conferred upon or reserved to Lender is intended to be exclusive of any other available remedy. but each and every remedy shall be cumulative and in addition to every other remedy given under this Mortgage and the Credit Agreement, or now or hereaf1er existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed as a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedienL In the event that any breach by Borrower is specifically waived in writing by Lender. such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other or subsequent breach.

10. Borrower will comply with all statutes, ordinances, and governmental regulation affecting the Premises, and if Borrower neglects or refuses to so comply. and such failure or refusal has not been corrected within 30 days of receipt of written notice, the entire balance of

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the principal sum secured hereby will, at Lender's sole option, immediately become due and

payable.

11. This Mortgage shall be governed by and construed in accordance with the laws of the State of South Dakota. Terms used herein and defined in the Loan Agreements shall have the same meaning as set forth in the Credit Agreement unless the context clearly requires

otherwise.

12. This Mortgage may not be modified or amended e)(cept by mutual consent expressed in writing, which writing shall be expressly identified as a part hereot~ and which writing shall be signed by an authorized representative of each of the parties hereto.

13. Any notice provided for herein shall be deemed given when transmitted as provided in Section 6.2 of the Credit Agreement

14. The covenants in this Mortgage shall be deemed to be severable. In the event that any portion of this r..·lortgage is determined to be void or unenforceable, that determination shall not affect the validity of the remaining portions of the Mortgage.

15. This instrument is intended to be and shall be deemed a fixture filing within the meaning ofSDCL 57A-9-502(c).

!6. The covenants herein contained extend to and bind the agents, employees, assigns, legal representatives and successors in interest of the parties hereto.

IN WITNESS WHEREOF, this instrument has been executed the day and year first

above written.

(Name of Borrower)

(SEAL)

ATIEST

By: (::-~·;J··!I f< l ts: S:v t .. ::e=

....-' _.)~~--_.---:,..,.--/

By: ___ =~-;:;~-c;··~:,;··;-:_. "2:::.--·~..L-..,· :_· ------lts: ___ -'':..1 -----------'-

7

5(/IC\

/'-!<"' ,r;;-;1 E I(

""'

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CORPORATE ACKNOWLEDGMENT

STATE OF SOUTH DAKOTA )

COUNTY OF . .

• -- J •· ".' •

)ss . )

On lhis, the 3_ day of . :, i.. 2012, before me, the undersigned officer, personally appeared :.- . -·,., , w)m l!>'lmowledged himself to be the

: _,-._!, • , . , •. ,_,. of i! 1 •. · -··-- · ·> - · :. i,, · ; ~ limited partnership, and that he, ~ch : ,. -" i • " .. •• ' , being authorized so to do, executed the foregoing

..,r';:inStrul)1Cnt by himself as · , . · . , / , .

()~··~ \\ i Pi I,)--,·:--, • ·,- IN Wl1f!ESS WHEREOF, l hereunto set my hand and official seal. ; .~~TA •• J- .. ·, .. • \\ . >t ..

~ • : : (Notarial Seal) • t. ' ' · .. •ue\.' •""'

... "'fl '. .... {I I J; \ ) •

Notary Public, South Dakota My Commission Expires:

8

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EXHIBIT A

REAL PROPERTY DESCRIPTION

PARCEL 1: NBP Lagoon Lot 1 in the Southwest Quarter (SW'/•) of Section Seven (7), Township One Hundred Twenty-two (122) North, Range Sixty-three (63) West of the 5th P.M., according to the plat thereof of record, Brown County, South Dakota. ·

PARCEL II: Blocks 1, 2, 3, 4, 5, and Lots 1, 2, and 3, Block 6, H & S First Subdivision in the North Half (NV2) of Section Thirty-five (35), Tov.'IlShip One Hundred Twenty-three (123) North, Range Sixty-four (64) West of the 5th P.M., according to the plat thereof of record, Brown County, South Dakota.

9

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