Exhibit 10.44
FIRST
SUPPLEMENT
TO THE MASTER LOAN
AGREEMENT
(CONSTRUCTION AND
TERM LOAN)
THIS FIRST SUPPLEMENT
TO THE MASTER LOAN AGREEMENT (this “First
Supplement” ), dated as of February 27, 2007, is between
AGSTAR FINANCIAL SERVICES, PCA (the “Lender” )
and INDIANA BIO-ENERGY, LLC , an Indiana limited liability
company (the “Borrower” ), and supplements and
incorporates all of the provisions of that certain Master Loan
Agreement, dated as of even date herewith, between the Lender and
the Borrower (as the same may be amended, modified, supplemented,
extended or restated from time to time, the
“MLA” ).
1.
Definitions
.
As used in this First
Supplement, the following terms shall have the following meanings,
Capitalized terms used and not otherwise defined in this First
Supplement shall have the meanings attributed to such terms in the
MLA. Terms not defined in either this First Supplement or the MLA
shall have the meanings attributed to such terms in the Uniform
Commercial Code, as enacted in the State of Minnesota and as
amended from time to time.
“ Construction
Letters of Credit ” shall have the meaning specified in
Section 7(b).
“ Construction
Letter of Credit Liabilities ” means, at any time, the
aggregate maximum amount available to be drawn under all
outstanding Construction Letters of Credit (in each case,
determined without regard to whether any conditions to drawing
could then be met) and all unreimbursed drawings under Construction
Letters of Credit.
“ Draw
Request ” means a request for an advance against the
Construction Note prior to the Conversion Date, submitted by the
Borrower to the Lender and the Disbursing Agent, in accordance with
the terms and conditions of the Disbursing Agreement.
“ Sworn
Construction Statement ” means a sworn construction
statement, sworn to by the Borrower and the General Contractor, and
of a form and substance acceptable to the Lender, a sample of which
is attached hereto as Exhibit A.
2.
The Construction
Loan. On
the terms and conditions set forth in the MLA and this First
Supplement, Lender agrees to make a Construction Loan to the
Borrower (the “Construction Loan” ), by means of
multiple advances in an amount not to exceed $90,000,000.00 (the
“Construction Loan Commitment” ). Under the
Construction Loan, amounts borrowed and repaid or prepaid may not
be re-borrowed.
3.
Purpose. Advances under the Construction Loan
may be used to fund the payment of Project Costs, including closing
costs and fees associated with the Construction Loan. The Borrower
agrees that the proceeds of the Construction Loan are to be used
only for the purposes set forth in this Section 3.
4.
Construction Loan
Interest Rate. Subject to the provisions of the
MLA, the Construction Loan shall bear interest at a rate equal to
the LIBOR Rate plus 350 basis points. The computation of interest,
amortization, maturity and other terms and conditions of the
Construction Loan shall be as provided in the Construction Note,
provided, however, in no event shall the applicable rate exceed the
Maximum Rate.
5.
Construction Loan
Payments . The Borrower will pay interest on
the Construction Loan (i) quarterly in arrears on the first day of
each January, April, July and October (each such date a
“Quarterly Payment Date” ), commencing on
the first Quarterly Payment Date following the date on which the
first Advance is made on the Construction Loan, and continuing on
each Quarterly Payment Date thereafter until the Conversion Date.
If any Quarterly Payment Date is not a Business Day, then the
interest payment then due shall be paid on the next Business Day
and shall continue to accrue interest until paid. On the Conversion
Date, all outstanding accrued interest shall be paid in
full.
6.
Construction Loan
Term . The Construction Loan shall be
available to Borrower for a period beginning on the Closing Date
and ending on the Conversion Date. On the Conversion Date, the
amount of the then unpaid principal balance of the Construction
Loan and any and all other amounts due and owing hereunder or under
any other Construction Loan Document relating to the Construction
Loan shall be due and payable, except for that part, if any, of the
Construction Loan which is converted into a Term Loan pursuant to
the terms of the MLA and this First Supplement and a Term Revolving
Loan pursuant to the Second Supplement to the Master Loan
Agreement.
7.
Disbursement of
Construction Loan.
(a)
Deposit
Account. Disbursements of the Construction
Loan will be made by the Lender in the manner provided in the
Disbursing Agreement. Subject to Section 7(c) below, all
disbursements will be made by wire transferring such funds to the
Disbursing Account established pursuant to the Disbursing Agreement
in the amount of each Draw Request which is approved pursuant to
the Disbursing Agreement. All Construction Loan funds will be
considered to have been advanced to and received by the Borrower
upon, and interest on such funds will be payable by the Borrower
from and after, their deposit in such deposit account.
(b)
Letter of Credit
Commitment to Issue . The Borrower may request Advances
by the Lender, and the Lender, subject to the terms and conditions
of the MLA and this First Supplement, may, in its sale discretion,
issue letters of credit under the Construction Loan for any
Borrower’s account (such letters of credit, being hereinafter
referred to collectively as the “Construction Letters of
Credit” ); provided, however, that:
(i)
the aggregate amount of
outstanding Construction Letter of Credit Liabilities under the
Construction Loan shall not at any time exceed the amount of
$3,000,000.00;
(ii)
the sum of the
outstanding Construction Letters of Credit plus the outstanding
Construction Advances shall not at any time exceed the Construction
Loan;
(iii)
the expiration date of a
Construction Letter of Credit advanced under the Construction Loan
shall be no later than the Conversion Date.
Any Construction Letter
of Credit issued under this Section 7 is subject to the provisions
of Section 2.05 of the MLA.
(c)
Lender’s
Application of Loan Proceeds . Notwithstanding the provisions of
Section 7(a), above, the Lender may elect, upon ten (10)
days’ notice to the Borrower, to use the Construction Loan
funds to pay, as and when due, any Construction Loan fees owing to
Lender, interest on the Construction Loan, release charges under
prior mortgages on the Property, and legal fees and disbursements
of the Lender’s attorneys which are payable by the Borrower,
unless Borrower causes such amount(s) to be paid within said ten
(10) days. Such payments may be made, at the option of the Lender,
by debiting or charging the Construction Loan funds in the amount
of such payments.
(d)
Cost
Information. All disbursements will be based upon
a detailed breakdown of the Project Costs as set forth in the Sworn
Construction Statement attached as Exhibit A to the MLA. In the
event that the Borrower becomes aware of any change in the approved
Project Costs, which would increase the total cost in excess of
$50,000.00 above the amount shown on the attached Sworn
Construction Statement, the Borrower shall immediately notify the
Lender in writing and promptly submit to the Lender for its
approval a revised Sworn Construction Statement. No further
disbursements need be made by the Disbursing Agent unless and until
the revised Sworn Construction Statement is approved. The Lender
reserves the right to approve or disapprove any revised Sworn
Construction Statement in its reasonable discretion.
2
(e)
Loan in Balance,
Deposit of Funds by Borrower . The Borrower shall keep the Loan
in balance as provided in this Section. If the Lender at any time
reasonably determines that the amount of the undisbursed
Construction Loan proceeds together with contributed equity to
Borrower and the undisbursed proceeds of subordinate indebtedness
extended to Borrower, will not be sufficient to fully pay for all
costs required to complete the construction of the Project in
accordance with the approved Plans and Specifications and for all
Project Costs to be incurred by the Borrower, whether such
deficiency is attributable to changes in the work of construction
or in the Plans and Specifications or to any other cause, the
Lender may make written demand on the Borrower to deposit in an
escrow fund to be established with the Lender an amount equal to
the amount of the shortage reasonably determined by the Lender. The
Borrower shall then deposit the required funds with the Lender
within ten (l0) days after the date of the Lender’s written
demand. No further disbursements shall be made by the Disbursing
Agent until those funds are deposited by the Borrower in the escrow
fund. Whenever the Lender has any such funds on deposit in such
escrow fund, it shall make all future advances for Project Costs
from the escrow fund before making any further advances under the
Loan.
(f)
Additional
Security . The Borrower grants to the Lender a
security interest in, as additional security for the performance of
the Borrower’s obligations under the MLA and this First
Supplement and the Loan Documents, its interest in all funds held
by the Disbursing Agent, whether or not disbursed, all funds
deposited by the Borrower with the Lender under this First
Supplement, all governmental permits obtained for the lawful
construction of the Project, and all reserves, deferred payments,
deposits, refunds, cost savings, and payments of any kind relating
to the construction of the Project. Upon any default of the
Borrower, the Lender may use any of the foregoing for any purpose
for which the Borrower could have used them under this First
Supplement or with respect to the construction or financing of the
Project. The Lender will also have all other rights and remedies as
to any of the foregoing which are provided under applicable law or
in equity.
(g)
Conditions
Precedent to Construction Advances. The Lender’s obligation to
make Construction Advances under the Construction Note shall be
subject to the terms, conditions and covenants set forth in the MLA
and this First Supplement, including, without limitation, the
following further conditions precedent:
(i)
Representations and
Warranties. The representations and warranties
set forth in the MLA and this First Supplement are true and correct
in all material respects as of the date of the request for any
Advance, except as disclosed in writing to the Lender, to the same
extent and with the same effect as if made at and as of the date
thereof;
(ii)
Draw
Request. The
Borrower has submitted to the Lender and the Disbursing Agent a
Draw Request for each such Advance, which such Draw Request shall
comply with the requirements contained in the MLA, this First
Supplement and the Disbursing Agreement;
(iii)
Compliance With
Disbursing Agreement. All of the terms and conditions of
the Disbursing Agreement have been satisfied in all material
respects with respect to each such Advance;
(iv)
Sworn Construction
Statement. The Borrower shall furnish to the
Lender an updated Sworn Construction Statement setting forth the
Contractor(s) providing services or materials with respect to
specific portions of the construction of the Project and setting
forth the amounts actually incurred and paid, or to be incurred, in
completing construction of the Project. Such updated Sworn
Construction Statement shall be sworn to by the Borrower and the
General Contractor to be a true, complete and accurate account of
all costs actually incurred and an accurate estimate of all costs
to be incurred in the future;
(v)
No
Defaults .
The Borrower is not in default under the terms of the
