FIRST AMENDMENT TO THE AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT

 

purchase and installation of a corn oil separation unit for the Expansion Facility for $2,000,000.00.”

 

““ Vision ” means Vision Processing Technologies, Inc., a Minnesota corporation.”

 

““ Vision Letter of Intent ” means that Binding Letter of Intent by and between the Borrower and Vision, dated January 7, 2008.”

 

4.             Amendment to Section 3.04 .  Section 3.04 of the Agreement shall be, and hereby is, deleted in its entirety and replaced with the following:

 

Section 3.04. Total Expansion Facility Costs and Project Cost Overruns .  The Borrower agrees that all costs incurred by the Borrower relating to the Expansion Facility including the corn oil separation unit in excess of the Construction Loan Commitment shall be paid solely by the Borrower without the incurrence of any third-party borrowings or debt.  The Borrower also agrees that all costs incurred by the Borrower relating to the Expansion Facility in excess of the Total Expansion Facility Costs shall be paid solely by the Borrower and the Borrower shall immediately deliver additional funds to the Bank to fund any and all costs of the Expansion Facility in excess of the Total Expansion Facility Costs upon receipt of written request from the Bank relating thereto.  Notwithstanding the foregoing, Borrower shall be entitled to apply any previously achieved savings in any completed category of the Expansion Facility budget to pay for any such cost overruns.  In addition, Borrower may from time to time request that the contingency fund line item in the Expansion Facility budget be reallocated to pay needed costs of the Expansion Facility.  Such requests shall be subject to Bank’s approval in its reasonable discretion, which shall not be unreasonably withheld.

 

5.             Amendment to Section 3.07 .  Section 3.07 of the Agreement shall be, and hereby is, deleted in its entirety and replaced with the following:

 

Section 3.07. Miscellaneous Procedures .  The Bank may establish reasonable additional procedures regarding disbursements and Draw Requests to assure the proceeds of the Construction Loan are paid only to those Persons entitled to the same, and that the liens securing the Obligations are in all cases first and paramount liens on the Property and all other assets of the Borrower, except to the extent, and solely to the extent, provided for herein to the contrary, including, but not limited to, the following procedures in connection with the costs incurred by the Borrower relating to the Total Expansion Facility Costs in excess of the Construction Loan Commitment:

 

(a)           A written conditional general lien waiver delivered to the Bank and Disbursing Agent, effective to waive any lien arising under the laws of the State of Iowa, relating to payments made under or pursuant to the Corn Oil Separation Unit Agreement; and

 

(b)           A written final general lien waiver delivered to the Bank and Disbursing Agent, effective to waive any lien arising under the laws of the State of Iowa,  relating to

 

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any final payment made under or pursuant to the Corn Oil Separation Unit Agreement; and

 

(c)           A document from the Borrower and, if applicable, the Independent Inspector, requesting and/or approving the amount of the approved construction costs, conformance thereof with the Schedule of Values and the Budget Variance Report delivered to the Bank, each as amended to reflect the terms and provisions of this First Amendment; and

 

(d)           Invoices from the Borrower or ICM, Inc. relating to the Corn Oil Separation Unit Agreement, and such other supporting evidence as may be reasonably requested by the Bank to substantiate all payments which are to be made under the Corn Oil Separation Unit Agreement.

 

Further, the Bank may establish reasonable additional procedures regarding disbursements under and pursuant to the Term Notes, the Operating Note, or the Existing Term Notes to assure compliance by the Borrower with the terms and provisions of this Agreement, the Loan Documents and the respective Term Notes, Operating Note or
Existing Term Notes, as the case may be.

 

6.             Section 4.02 .  Section 4.02 of the Agreement shall be, and hereby is, deleted in its entirety and replaced with the following:

 

“The obligation of the Bank to make any additional Extensions of Credit, other than Extensions of Credit under the Operating Note, shall be subject to the condition precedent, unless waived or extended in writing by the Bank, that the Borrower shall be in compliance with the conditions set forth in Section 4.01 of this Agreement and to the further condition precedent that on the date of such Extension of Credit no determination shall have been made by the Bank, in the exercise of its reasonable judgment, that the undisbursed amount of the Construction Loan pluse the $2,000,000 to be paid by the Borrower under the Corn Oil Separation Unit Agreement is less than the amount required to pay all costs and expenses of any kind which reasonably may be anticipated in connection with the completion of the Expansion Facility and the corn oil separation unit; or, if such a determination has been made and notice thereof sent to the Borrower in accordance with this Agreement, the Borrower shall have deposited the necessary funds with the Bank in accordance with Section 3.04 of this Agreement.”

 

In addition to the obligations contained in Section 4.02 of the Agreement related to any additional Extensions of Credit, other than Extensions of Credit under the Operating Note, the Borrower shall also promptly deliver to the Bank the following:

 

(a)           A certified copy of the Corn Oil Separation Unit Agreement executed by ICM, Inc. and Borrower;

 

(b)           Copy of the Expansion Facility Plans related to the Corn Oil Separation Unit Agreement;

 

(c)           A certified copy of the executed Vision Letter of Intent;

 

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(d)           Certified copies of any and all documents related to the investment by the Borrower in Vision; and

 

(e)           The Reaffirmation of Guaranty duly executed by the Guarantor in the form attached hereto as Exhibit “A” and incorporated herein by this reference.

 

7.             Amendment to Section 5.16 .   Section 5.16 of the Agreement shall be, and hereby is, deleted in its entirety and replaced with the following:

 

“ Section 5.16.  No Subsidiary .   Except for Borrower’s investment in Akron and Vision, the Borrower does not have a Subsidiary.”

 

                8.             Amendment to Sections 6.04(b), 6.04(k) & 6.04(r) .   Section 6.04(b), Section 6.04(k), and Section 6.04(r) of the Agreement shall be, and hereby are, deleted in their entirety and replaced with the following:

 

“(b)         form or own any Subsidiary except for investments and contributions to Akron and Vision;”

 

“(k)         consolidate, merge, pool, syndicate or otherwise combine with any other entity, give any preferential treatment or make any advance, directly or indirectly, by way of loan, gift, contribution, investment, bonus or otherwise to any Affiliate or any other Person; (A) notwithstanding the foregoing and provided the same does not otherwise violate any other covenant hereunder or violate any provision of the Operating Agreement of Akron, the Bank consents to the Borrower making equity contributions/investments in an aggregate amount of Twenty Million and No/100ths Dollars ($20,000,000.00) to Akron provided that, in connection with such equity contributions/investments, the Borrower shall (i) collaterally assign to the Bank all of its right, title and interest in and to any and all membership or other equity interests of Akron, (ii) deliver to the Bank a written consent to such collateral assignment, duly executed by all of the Directors of Akron, in form and substance satisfactory to the Bank, (iii) deliver to the Bank a certified copy of resolutions of the Board of Directors of the General Partner, in form and substance satisfactory to the Bank, authorizing the equity contribution/investment in Akron and the execution, delivery and performance of the collateral assignment of membership or other equity interests in Akron and any other documents to be delivered by the Borrower in connection therewith, and (iv) deliver any certificates evidencing the membership or other equity interests of Akron and any and all financing statements or other documents sufficient to create a valid and perfected first priority security interest in and to the membership or other equity interests, together with all increases, replacements, additions, substitutions, and cash and noncash proceeds thereof, in favor of the Bank as additional collateral to secure repayment of Borrower’s Obligations under this Agreement; and (B) notwithstanding the foregoing and provided the same does not otherwise violate any other covenant hereunder, the Bank consents to the Borrower making equity contributions/investments in an aggregate amount of Two Million and No/100ths Dollars ($2,000,000.00) to Vision in conformity with the Vision Letter of Intent provided, however, Borrower shall (i) deliver certified copies of any and all documents evidencing the equity interests of Vision acquired by the Borrower under

 

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the terms of the Vision Letter of Intent and (ii) not make any other or make any additional advance, directly or indirectly, by way of loan, gift, contribution, investment, bonus or otherwise to Vision without the Bank’s prior written authorization;”

 

“(r)          amend, or approve or cause any amendments, relating to the Schedule of Values or the Budget Variance Report (other than in conformity with the First Amendment) without the prior written approval of the Bank; or”

 

9.             Amendment to Section 7.01(w) . Section 7.01(w) of the Agreement shall be, and hereby is, deleted in its entirety and replaced with the following:

 

“(w)        the Borrower shall establish a Subsidiary without the prior written consent of the Bank, except for Akron and Vision; or”

 

10.           Ratification of Agreement; No Waiver .  The Borrower and Bank agree that, except as expressly provided in this First Amendment, all terms and provisions of the Agreement, including, but not limited to, the financial covenants set forth in the Agreement, and all other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed.  No amendment contained in this First Amendment shall be construed to amend or waive any obligation of the Borrower under the Agreement or any provision of any of the Loan Documents, except to the extent of the specific amendment referenced herein.  No delay or omission by the Bank in exercising any power, right, or remedy shall impair such power, right, or remedy or be construed as a waiver thereof or an acquiescence therein, and no single or partial exercise of any such power, right, or remedy shall preclude other or further exercise thereof or the exercise of any other power, right, or remedy under the Agreement or any other Loan Documents, or otherwise.

 

11.           Authorization .  By execution hereof, the undersigned representative of the Borrower hereby represents and warrants that (i) he is an Authorized Person of the Borrower, (ii) the execution, delivery and performance of this First Amendment is, and has been, duly authorized, approved and ratified by all required partnership or company action of the Borrower or the General Partner, and (iii) the amendments specifically referenced herein reflect all of the amendments being requested by the Borrower relating to the terms and provisions of the Agreement and the other Loan Documents.

 

12.           Counterparts .  This First Amendment may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same instrument.  A facsimile signature will be considered an original signature.

 

13.           Governing Law . This First Amendment shall be governed by, and construed in accordance with, the law is of the State of Nebraska, other than its conflicts of law provisions thereof.

 

14.           Submission to Jurisdiction; Venue .  The Borrower hereby submits to the jurisdiction of any state or federal court sitting in Omaha, Nebraska, in any action or proceeding arising out of or relating to this First Amendment and agrees that all claims in respect of the

 

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action or proceeding may be heard and determined in any such court.  The Borrower also agrees not to bring any action or proceeding arising out of or relating to this First Amendment in any other court.  The Borrower waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of the Bank.  The Borrower agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.  The Borrower hereby waives any rights it or they may have to transfer or change the venue of any suit, action or other proceeding brought against the Borrower by the Bank in accordance with this paragraph or in connection with this First Amendment, the Agreement or any other Loan Documents.

 

15.           Jury Trial Waiver . THE BANK AND THE BORROWER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS FIRST AMENDMENT, THE AGREEMENT OR ANY OF THE LOAN DOCUMENTS.  NO EMPLOYEE OF THE BANK HAS AUTHORITY TO WAIVE, CONDITION, OR MODIFY THE TERMS AND PROVISIONS OF THIS PARAGRAPH OF THIS FIRST AMENDMENT.

 

16.            Credit Agreement .  A credit agreement must be in writing to be enforceable under Nebraska law.  To protect you and us from any misunderstandings or disappointments, any contract, promise, undertaking, or offer to forebear repayment of money or to make any other financial accommodation in connection with this loan of money or grant or extension of credit, or any amendment of, cancellation of, waiver of, or substitution for any or all of the terms or provisions of any instrument or document executed in connection with this loan of money or grant or extension of credit, must be in writing to be effective.

 

 

IN WITNESS WHEREOF, the parties have caused this First Amendment to be executed by their respective officers thereunto duly authorized, as of the Effective Date.

 

 

	“Borrower”
	LSCP, LLLP
	an Iowa limited liability limited partnership
	By:	/s/ Stephen G. Roe
	Title:		President/CEO

 

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	“Bank”
	FIRST NATIONAL BANK OF OMAHA,
	a national banking association
	By:	/s/ Bradley J. Brummund
	Title:		Vice President

 

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FIRST AMENDMENT TO THE

 

AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT

 

EXHIBIT “A”

 

REAFFIRMATION OF GUARANTY

 

This will confirm (a) that the undersigned hereby consents (i) to the terms of that First Amendment to the Amended and Restated Construction Loan Agreement (the “First Amendment”) of even date herewith by and between the Borrower and the Bank and (ii) to the execution and delivery of the First Amendment by the Borrower; (b) that the Obligations of the Borrower to the Bank under the Agreement as amended by the First Amendment constitutes an obligation of the Guarantor to the Bank under the terms and conditions of the Guaranty; and (c) that all references to the “Loan Agreement” contained in the Guaranty shall constitute references to the Agreement as amended by the First Amendment, and as the same may be amended, restated or otherwise modified from time to time hereafter.  The undersigned confirms to the Bank that all of the terms, conditions, provisions, agreement, requirements, promises, obligations, duties, covenants, and representations of the undersigned under the Guaranty, and any and all other documents and agreements entered into with respect to the obligations under the Guaranty, are incorporated herein by this referenced as modified hereby and as so modified, are hereby ratified and affirmed in all respects by the undersigned.

 

 

	“Guarantor”
	Little Sioux Corn Processors, L.L.C.,
	an Iowa limited liability company
	By:	/s/   Stephen G. Roe
	Name:			Stephen G. Roe
	Title:		CEO/President

 

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SECOND AMENDMENT TO THE

AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT

 

This Second Amendment to the Amended and Restated Construction Loan Agreement (the “Second Amendment”) is made and entered into effective as of the 31st day of March 2008 (“Effective Date”), by and between LSCP, LLLP , an Iowa limited liability limited partnership (“LSCP, LLLP”), successor in interest to LSCP, L.P., an Iowa limited partnership (“LSCP, L.P.”), with its principal offices in Marcus, Iowa (LSCP, LLLP and LSCP, L.P. are referred to collectively as the “Borrower”), and FIRST NATIONAL BANK OF OMAHA , a national banking association with principal offices in Omaha, Nebraska (the “Bank”).

 

WHEREAS, the Bank and Borrower have entered into that certain Amended and Restated Construction Loan Agreement dated as of April 5, 2007 (the “Initial Loan Agreement”), as amended by that certain First Amendment to Amended & Restated Construction Loan Agreement dated as of January       , 2008 (the “First Amendment”) (the Initial Loan Agreement and the First Amendment are herein jointly referred to as the “Loan Agreement”); and

 

WHEREAS, the Borrower desires to modify and amend the Loan Agreement and the obligations of the Borrower pursuant to the Loan Documents, as hereinafter provided; and

 

WHEREAS, the Bank has agreed, on its own behalf and with the required consent of the participants, to make such amendments, subject to the terms and conditions set forth in this Second Amendment.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements set forth in the Loan Agreement and the mutual covenants and agreements contained herein, the Borrower and Bank mutually agree as follows:

 

1.             Definitions .  Unless otherwise defined in this Second Amendment, each capitalized term used in this Second Amendment, including its preamble and recitals, has the meaning ascribed to it in the Loan Agreement.

 

2.             Amendments to Definitions .  The following defined terms as reflected in Section 1.01 of the Agreement shall be, and hereby are, deleted in their entirety and replaced by the definition reflected below for each such defined term:

 

““ Agreement ” shall have the meaning given such term in the preamble hereto, and shall include all schedules and exhibits hereto, in each case as amended, supplemented, or modified by the terms and provisions of (i) the First Amendment to Amended and Restated Construction Loan Agreement dated as of January       , 2008, by and between Borrower and the Bank, and (ii) the Second Amendment to Amended and Restated Construction Loan Agreement dated as of March 31, 2008, by and between the Borrower and the Bank, and as may be further amended, supplemented, or modified from time to time in accordance with the terms of this Agreement.

 

 

“ Operating Loan Termination Date”  means the earliest to occur of the following: (a) April 30, 2008, or such later date to which the Operating Loan Termination Date has been extended by written agreement by the Bank, (b) the date the Obligations are accelerated pursuant to the terms and provisions of this Agreement or the Operating Note, (c) the date the Bank receives notice in writing from the Borrower of the Borrower’s election to terminate the Operating Note as described in Section 2.06 of this Agreement and (d) the date the Bank receives (i) notice in writing from the Borrower of the Borrower’s election to terminate this Agreement or (ii) indefeasible payment in full of the Obligations.”

 

3.             Extension of Operating Loan Termination Date.   The Parties agree that the Operating Loan Termination Date shall be extend to April 30, 2008, subject to and in accordance with the amended definition of the Operating Loan Termination Date stated in Section 2 above.  Upon the execution of this Second Amendment, Borrower agrees to deliver to the Bank an Operating Note in the form attached hereto as Exhibit “A” and incorporated herein by this reference.  Such Operating Note shall be an extension of the Operating Note, dated April 5, 2007, and attached to the Loan Agreement as Exhibit “G”, and all references to the Operating Note in the Loan Agreement or in any of the other Loan Documents, shall be deemed for all purposes to be a reference to the extended Operating Note attached hereto.

 

4.             Reaffirmation of Guaranty.   Upon the execution hereof, the Borrower shall deliver to the Bank a Reaffirmation of Guaranty duly executed by the Guarantor in the form attached hereto as Exhibit “B” and incorporated herein by this reference.

 

5.             Ratification of Loan Agreement; No Waiver.   The Borrower and Bank agree that, except as expressly provided in this Second Amendment, all terms and provisions of the Loan Agreement, including, but not limited to, the financial covenants set forth in the Loan Agreement, and all other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed.  No amendment contained in this Second Amendment shall be construed to amend or waive any obligation of the Borrower under the Loan Agreement or any provision of any of the Loan Documents, except to the extent of the specific amendment referenced herein.  No delay or omission by the Bank in exercising any power, right, or remedy shall impair such power, right, or remedy or be construed as a waiver thereof of any acquiescence therein, and no single or partial exercise of any such power, right, or remedy shall preclude other or further exercise thereof or the exercise of any other power, right, or remedy under the Loan Agreement or any other Loan Documents, or otherwise.

 

6.             Authorization .  By execution hereof, the undersigned representative of the Borrower hereby represents and warrants that (i) he is an Authorized Person of the Borrower, (ii) the execution, delivery and performance of this Second Amendment is, and has been, duly authorized, approved and ratified by all required partnership or company action of the Borrower or the General Partner, and (iii) the amendments specifically referenced herein reflect all of the amendments being requested by the Borrower relating to the terms and provisions of the Agreement and the other Loan Documents.

 

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7.             Governing Law . This Second Amendment shall be governed by, and construed in accordance with, the law is of the State of Nebraska, other than its conflicts of law provisions thereof.

 

8.             Submission to Jurisdiction; Venue .  The Borrower hereby submits to the jurisdiction of any state or federal court sitting in Omaha, Nebraska, in any action or proceeding arising out of or relating to this Second Amendment and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  The Borrower also agrees not to bring any action or proceeding arising out of or relating to this Second Amendment in any other court.  The Borrower waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of the Bank.  The Borrower agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.  The Borrower hereby waives any rights it or they may have to transfer or change the venue of any suit, action or other proceeding brought against the Borrower by the Bank in accordance with this paragraph or in connection with this First Amendment, the Agreement or any other Loan Documents.

 

9.             Jury Trial Waiver . THE BANK AND THE BORROWER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS FIRST AMENDMENT, THE AGREEMENT OR ANY OF THE LOAN DOCUMENTS.  NO EMPLOYEE OF THE BANK HAS AUTHORITY TO WAIVE, CONDITION, OR MODIFY THE TERMS AND PROVISIONS OF THIS PARAGRAPH OF THIS FIRST AMENDMENT.

 

10.            Credit Agreement .  A CREDIT AGREEMENT MUST BE IN WRITING TO BE ENFORCEABLE UNDER NEBRASKA LAW.  TO PROTECT YOU AND US FROM ANY MISUNDERSTANDINGS OR DISAPPOINTMENTS, ANY CONTRACT, PROMISE, UNDERTAKING, OR OFFER TO FOREBEAR REPAYMENT OF MONEY OR TO MAKE ANY OTHER FINANCIAL ACCOMMODATION IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF CREDIT, OR ANY AMENDMENT OF, CANCELLATION OF, WAIVER OF, OR SUBSTITUTION FOR ANY OR ALL OF THE TERMS OR PROVISIONS OF ANY INSTRUMENT OR DOCUMENT EXECUTED IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF CREDIT, MUST BE IN WRITING TO BE EFFECTIVE.

 

11.           Counterparts.   This Second Amendment may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same instrument.  A facsimile signature (or signatures sent by electronic mail in .pdf format) will be deemed an original signature.

 

[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE TO FOLLOW]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the date first written above.

 

 

	“Borrower”
	LSCP, LLLP
	an Iowa limited liability limited partnership
	By:		/s/ Stephen G. Roe
	Title:			General Manager
	“Bank”
	FIRST NATIONAL BANK OF OMAHA,
	a national banking association
	By:	/s/ Bradley J. Brummund
	Title:			Vice President

 

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SECOND AMENDMENT TO THE

 

AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT

 

EXHIBIT “A”

 

FORM OF OPERATING NOTE

 

[SEE THE ATTACHED]

 

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SECOND AMENDMENT TO THE

 

AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT

 

EXHIBIT “B”

 

REAFFIRMATION OF GUARANTY

 

This will confirm (a) that the undersigned hereby consents (i) to the terms of that First Amendment to the Amended and Restated Construction Loan Agreement (the “First Amendment”) of even date herewith by and between the Borrower and the Bank and (ii) to the execution and delivery of the First Amendment by the Borrower; (b) that the Obligations of the Borrower to the Bank under the Agreement as amended by the First Amendment constitutes an obligation of the Guarantor to the Bank under the terms and conditions of the Guaranty; and (c) that all references to the “Loan Agreement” contained in the Guaranty shall constitute references to the Agreement as amended by the First Amendment, and as the same may be amended, restated or otherwise modified from time to time hereafter.  The undersigned confirms to the Bank that all of the terms, conditions, provisions, agreement, requirements, promises, obligations, duties, covenants, and representations of the undersigned under the Guaranty, and any and all other documents and agreements entered into with respect to the obligations under the Guaranty, are incorporated herein by this referenced as modified hereby and as so modified, are hereby ratified and affirmed in all respects by the undersigned.

 

 

	“Guarantor”
	Little Sioux Corn Processors, L.L.C.,
	an Iowa limited liability company
	By:	/s/ Stephen G. Roe
	Name:			Stephen G. Roe
	Title:		CEO/President

 

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THIRD AMENDMENT TO THE

AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT

 

This Third Amendment to the Amended and Restated Construction Loan Agreement (the “Third Amendment”) is made and entered into effective as of the 30th day of April 2008 (“Effective Date”), by and between LSCP, LLLP , an Iowa limited liability limited partnership (“LSCP, LLLP”), successor in interest to LSCP, L.P., an Iowa limited partnership (“LSCP, L.P.”), with its principal offices in Marcus, Iowa (LSCP, LLLP and LSCP, L.P. are referred to collectively as the “Borrower”), and FIRST NATIONAL BANK OF OMAHA , a national banking association with principal offices in Omaha, Nebraska (the “Bank”).

 

WHEREAS, the Bank and Borrower have entered into that certain Amended and Restated Construction Loan Agreement dated as of April 5, 2007 (the “Initial Loan Agreement”), as amended by (i) that certain First Amendment to Amended and Restated Construction Loan Agreement dated as of January 31, 2008 (the “First Amendment”) and (ii) that certain Second Amendment to Amended and Restated Construction Loan Agreement dated as of March 31, 2008 (the “Second Amendment”)  (the Initial Loan Agreement as amended by the First Amendment and the Second Amendment are herein jointly referred to as the “Loan Agreement”); and

 

WHEREAS, the Borrower desires to modify and amend the Loan Agreement and the obligations of the Borrower pursuant to the Loan Documents, as hereinafter provided; and

 

WHEREAS, the Bank has agreed, on its own behalf and with the required consent of the participants, to make such amendments, subject to the terms and conditions set forth in this Third Amendment.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements set forth in the Loan Agreement and the mutual covenants and agreements contained herein, the Borrower and Bank mutually agree as follows:

 

1.             Definitions .  Unless otherwise defined in this Third Amendment, each capitalized term used in this Third Amendment, including its preamble and recitals, has the meaning ascribed to it in the Loan Agreement.

 

2.             Amendments to Definitions .  The following defined terms as reflected in Section 1.01 of the Loan Agreement shall be, and hereby are, deleted in their entirety and replaced by the definition reflected below for each such defined term:

 

““ Agreement ” shall have the meaning given such term in the preamble hereto, and shall include all schedules and exhibits thereto, in each case as amended, supplemented, or modified by the terms and provisions of (i) the First Amendment to Amended and Restated Construction Loan Agreement dated as of January 31, 2008, by and between Borrower and the Bank, (ii) the Second Amendment to Amended and Restated Construction Loan Agreement dated as of March 31, 2008, by and between the Borrower and the Bank, and (iii) the Third Amendment to Amended and Restated Construction

 

 

Loan Agreement dated as of April 30, 2008, by and between the Borrower and the Bank, and as may be further amended, supplemented, or modified from time to time in accordance with the terms of this Agreement.

 

“ Operating Loan Termination Date ”  means the earliest to occur of the following: (a) June 1, 2008, or such later date to which the Operating Loan Termination Date has been extended by written agreement by the Bank, (b) the date the Obligations are accelerated pursuant to the terms and provisions of this Agreement or the Operating Note, (c) the date the Bank receives notice in writing from the Borrower of the Borrower’s election to terminate the Operating Note as described in Section 2.06 of this Agreement and (d) the date the Bank receives (i) notice in writing from the Borrower of the Borrower’s election to terminate this Agreement or (ii) indefeasible payment in full of the Obligations.”

 

3.             Extension of Operating Loan Termination Date .  The parties agree that the Operating Loan Termination Date shall be extended to June 1, 2008, subject to and in accordance with the amended definition of the Operating Loan Termination Date stated in Section 2 above.  Upon the execution of this Third Amendment, Borrower agrees to deliver to the Bank an Operating Note in the form attached hereto as Exhibit “A” and incorporated herein by this reference.  Such Operating Note shall be an extension of the Operating Note, dated March 31, 2008, and attached to the Loan Agreement as Exhibit “G,” and all references to the Operating Note in the Loan Agreement or in any of the other Loan Documents, shall be deemed for all purposes to be a reference to the extended Operating Note attached hereto.

 

4.             Reaffirmation of Guaranty .  Upon the execution hereof, the Borrower shall deliver to the Bank a Reaffirmation of Guaranty duly executed by the Guarantor in the form attached hereto as Exhibit “B” and incorporated herein by this reference.

 

5.             Ratification of Loan Agreement; No Waiver .  The Borrower and Bank agree that, except as expressly provided in this Third Amendment, all terms and provisions of the Loan Agreement, including, but not limited to, the financial covenants set forth in the Loan Agreement, and all other Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed.  No amendment contained in this Third Amendment shall be construed to amend or waive any obligation of the Borrower under the Loan Agreement or any provision of any of the Loan Documents, except to the extent of the specific amendment referenced herein.  No delay or omission by the Bank in exercising any power, right, or remedy shall impair such power, right, or remedy or be construed as a waiver thereof or an acquiescence therein, and no single or partial exercise of any such power, right, or remedy shall preclude other or further exercise thereof or the exercise of any other power, right, or remedy under the Loan Agreement or any other Loan Documents, or otherwise.

 

6.             Authorization .  By execution hereof, the undersigned representative of the Borrower hereby represents and warrants that (i) he is an Authorized Person of the Borrower, (ii) the execution, delivery and performance of this Third Amendment is, and has been, duly authorized, approved and ratified by all required partnership or company action of the Borrower or the General Partner, and (iii) the amendments specifically referenced herein reflect all of the

 

 

amendments being requested by the Borrower relating to the terms and provisions of the Loan Agreement and the other Loan Documents.

 

7.             Governing Law .  This Third Amendment shall be governed by, and construed in accordance with, the laws of the State of Nebraska, other than conflict of law provisions thereof.

 

8.             Submission to Jurisdiction; Venue .  The Borrower hereby submits to the jurisdiction of any state or federal court sitting in Omaha, Nebraska, in any action or proceeding arising out of or relating to this Third Amendment and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court.  The Borrower also agrees not to bring any action or proceeding arising out of or relating to this Third Amendment in any other court.  The Borrower waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of the Bank.  The Borrower agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.  The Borrower hereby waives any rights it or they may have to transfer or change the venue of any suit, action or other proceeding brought against the Borrower by the Bank in accordance with this paragraph or in connection with this Third Amendment, the Loan Agreement or any other Loan Documents.

 

9.             Jury Trial Waiver . THE BANK AND THE BORROWER HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS THIRD AMENDMENT, THE LOAN AGREEMENT OR ANY OF THE LOAN DOCUMENTS.  NO EMPLOYEE OF THE BANK HAS AUTHORITY TO WAIVE, CONDITION, OR MODIFY THE TERMS AND PROVISIONS OF THIS PARAGRAPH OF THIS THIRD AMENDMENT.

 

10.            CREDIT AGREEMENT .  A CREDIT AGREEMENT MUST BE IN WRITING TO BE ENFORCEABLE UNDER NEBRASKA LAW.  TO PROTECT YOU AND US FROM ANY MISUNDERSTANDINGS OR DISAPPOINTMENTS, ANY CONTRACT, PROMISE, UNDERTAKING, OR OFFER TO FORBEAR REPAYMENT OF MONEY OR TO MAKE ANY OTHER FINANCIAL ACCOMMODATION IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF CREDIT, OR ANY AMENDMENT OF, CANCELLATION OF, WAIVER OF, OR SUBSTITUTION FOR ANY OR ALL OF THE TERMS OR PROVISIONS OF ANY INSTRUMENT OR DOCUMENT EXECUTED IN CONNECTION WITH THIS LOAN OF MONEY OR GRANT OR EXTENSION OF CREDIT, MUST BE IN WRITING TO BE EFFECTIVE.

 

11.           Counterparts .  This Third Amendment may be executed in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same instrument.  A facsi