Exhibit 10.2
FIRST AMENDMENT TO
THE
AMENDED AND RESTATED CONSTRUCTION
LOAN AGREEMENT
This First Amendment to the Amended
and Restated Construction Loan Agreement (the “First
Amendment”) is made and entered into effective as of the
day of January 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 “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 First 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 First
Amendment, each capitalized term used in this First Amendment 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 mean the Loan Agreement, as defined above, and shall
include all schedules and exhibits to the Loan Agreement, in each
case as amended, supplemented, or modified by the terms and
provisions of the First Amendment, and as may be further amended,
supplemented, or modified from time to time in accordance with the
terms of this Agreement.”
““ Total Expansion
Facility Costs ” means an amount equal to Seventy Five
Million and No/100ths Dollars ($75,000,000.00).
3.
Additional Definitions . The Parties agree that the
following defined term shall be inserted, in alphabetical order, in
Section 1.01 of the Agreement:
““ Corn Oil
Separation Unit Agreement ” means that agreement by and
between Borrower and ICM, Inc., a Kansas corporation, dated
January , 2008, relating to
the
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
2
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;
3
(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
4
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
5
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
|
|
|
|
|
|
6
|
|
“Bank”
|
|
|
|
|
|
|
FIRST NATIONAL BANK OF OMAHA,
|
|
|
a national banking association
|
|
|
|
|
|
|
By:
|
/s/ Bradley J. Brummund
|
|
|
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
7
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
|
|
|
|
|
|
|
8
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.
2
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]
3
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
|
|
|
|
|
|
|
4
SECOND AMENDMENT TO
THE
AMENDED AND RESTATED CONSTRUCTION
LOAN AGREEMENT
EXHIBIT
“A”
FORM OF OPERATING
NOTE
[SEE THE ATTACHED]
5
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
|
|
|
|
|
|
|
6
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
facsimile signature (or signatures sent by electronic mail in .pdf
format) will be deemed an original signature.
IN WITNESS WHEREOF, the parties
hereto have executed this Third Amendment as of the date first
written above.
|
|
“Borrower”
|
|
|
|
|
|
|
LSCP, LLLP,
|
|
|
an Iowa limited liability limited
partnership
|
|
|
|
|
|
|
By:
|
Little Sioux Corn Processors, L.L.C.,
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Stephen G. Roe
|
|
|
|
|
|
|
|
|
Its:
|
President
|
|
|
|
|
|
|
|
|
|
|
|
“Bank”
|
|
|
|
|
|
|
|
FIRST NATIONAL BANK OF OMAHA,
|
|
|
a national banking association
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/
Bradley J. Brummund
|
|
|
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
|
|
THIRD AMENDMENT TO
THE
AMENDED AND RESTATED CONSTRUCTION
LOAN AGREEMENT
EXHIBIT
“A”
FORM OF OPERATING
NOTE
[SEE THE ATTACHED]
THIRD AMENDMENT TO
THE
AMENDED AND RESTATED CONSTRUCTION
LOAN AGREEMENT
EXHIBIT
“B”
REAFFIRMATION OF
GUARANTY
[SEE THE ATTACHED]
REAFFIRMATION OF
GUARANTY
This will confirm (a) that the
undersigned hereby consents (i) to the terms of that Third
Amendment to the Amended and Restated Construction Loan Agreement
(the “Third Amendment”) of even date herewith by and
between the Borrower and the Bank and (ii) to the execution
and delivery of the Third Amendment by the Borrower; (b) that
the Obligations of the Borrower to the Bank under the Loan
Agreement (as defined in the Third Amendment) as amended by the
Third 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 Loan
Agreement as amended by the Third 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.
Dated as of April 30, 2008.
|
|
“Guarantor”
|
|
|
|
|
|
Little Sioux Corn Processors, L.L.C.,
|
|
|
an Iowa limited liability company
|
|
|
|
|
|
|
By:
|
/s/ Stephen G. Roe
|
|
|
|
|
|
|
Name:
|
Stephen G. Roe
|
|
|
|
|
|
|
Title:
|
President
|
|
|
|
|
|
|
|
OPERATING NOTE
|
$5,000,000.00
|
|
April 30, 2008
|
|
|
|
Omaha, Nebraska
|
FOR VALUE RECEIVED, the undersigned,
LSCP, LLLP, an Iowa limited liability limited partnership (the
“Borrower”), HEREBY PROMISES TO PAY to the order of
FIRST NATIONAL BANK OF OMAHA, a national banking association (the
“Bank”), at its principal office located at 1620 Dodge
Street, STOP 1050, Omaha, Nebraska 68197, in lawful money of the
United States and in immediately available funds, the principal
amount of Five Million and No/100ths Dollars ($5,000,000.00) or, so
much thereof as may be advanced by the Bank pursuant to the terms
and provisions of the Loan Agreement, as hereinafter defined,
between the Borrower and the Bank (the “Principal
Amount”).
The Borrower further agrees to pay
(i) the Principal Amount and (ii) interest on the unpaid
Principal Amount from the date hereof at the rates and times
specified in the Loan Agreement, without off-set, deduction or
counterclaim, until paid in full. The unpaid Principal Amount
hereof, together with all accrued and unpaid interest hereunder,
shall be due and payable in accordance with the terms and
provisions of the Loan Agreement, but in any event not later than
June 1, 2008.
This Operating Note (this
“Operating Note”) is an extension of the Operating Note
dated March 31, 2008 and attached as
Exhibit “G” to that certain Amended and Restated
Construction Loan Agreement, dated April 5, 2007, by and
between the Borrower and the Bank (the “Initial Loan
Agreement”), as amended by that certain First Amendment to
Amended and Restated Construction Loan Agreement dated as of
January 31, 2008 (the “First Amendment”), as
further amended by that certain Second Amendment to the Amended and
Restated Construction Loan Agreement dated as of March 31,
2008 (the “Second Amendment”), as further amended by
that certain Third Amendment to the Amended and Restated
Construction Loan Agreement dated as of April 30, 2008 (the
“Third Amendment”) (each as amended, supplemented, or
otherwise modified from time to time, the Initial Loan Agreement,
the First Amendment, the Second Amendment, and the Third Amendment
are herein referred to collectively as the “Loan
Agreement”), the terms and conditions of which are
incorporated herein by this reference. 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
this Operating Note. This Operating Note is entitled to the
benefits and security set forth in the Loan Documents, including,
but not limited to, the Security Agreement, the Mortgage, the
Assignment of Rents and Leases and the Guaranty. In the event
of a conflict or inconsistency between the terms of this Operating
Note and the Loan Agreement, the terms and provisions of the Loan
Agreement shall govern. Capitalized terms not otherwise
defined in this Operating Note which are defined in the Loan
Agreement shall have the meanings ascribed thereto in the Loan
Agreement.
The Loan Agreement, among other
things, contains (i) enumerated Events of Default,
(ii) provisions for acceleration of the maturity of this
Operating Note upon the happening of certain stated events,
(iii) provisions for prepayments of the Principal Amount of
this Operating Note prior to the maturity of the Operating Note,
and (iv) provisions for modification or waiver of this
Operating Note upon the terms and conditions specified in the Loan
Agreement.
The occurrence of any Event of
Default enumerated in the Loan Agreement or any of the other Loan
Documents shall constitute an Event of Default under this Operating
Note. Upon any such Event of Default, the Bank shall have any
and all remedies provided in the Loan Agreement or any of the other
Loan Documents, including but not limited to the right, but not the
obligation, to accelerate the due date of this Operating Note and
declare all obligations set forth herein immediately due and
payable, and such other remedies as are provided by law. No
failure to exercise, and no delay in exercising, any rights
hereunder on the part of the Bank shall operate as a waiver of such
rights.
Borrower acknowledges that the
obligations evidenced by this Operating Note are for business
purposes only and are not an extension of consumer or individual
credit.
THE BORROWER HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY GOVERNING LAW,
PRESENTMENT FOR PAYMENT, NOTICE OF NONPAYMENT, NOTICE OF DISHONOR,
PROTEST, NOTICE OF PROTEST, DEMAND, NOTICE OF EVERY KIND IN
CONNECTION HEREWITH AND DILIGENCE IN ENFORCING PAYMENT OR BRINGING
SUIT AGAINST ANY PARTY HERETO.
This Operating Note is made under
and governed by the laws of, and shall be deemed to have been
executed in, the State of Nebraska without giving effect to choice
of law principles (whether of the State of Nebraska or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Nebraska.
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 OPERATING NOTE.
NO OFFICER OR EMPLOYEE OF THE BANK HAS AUTHORITY TO WAIVE,
CONDITION, OR MODIFY THIS PROVISION.
Time is of the essence as to each
and every date and each and every obligation of the Borrower set
forth in this Operating Note.
IN WITNESS WHEREOF, the Borrower has
caused this Operating Note to be executed and delivered to the Bank
as of the day and year first written above.
|
|
“Borrower”
|
|
|
|
|
|
|
LSCP, LLLP,
|
|
|
an Iowa limited liability limited
partnership
|
|
|
|
|
|
|
By:
|
Little Sioux Corn Processors, L.L.C.,
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
By:
|
/s/ Stephen G. Roe
|
|
|
|
|
|
|
|
|
Its:
|
President
|
|
|
|
|
|
FOURTH AMENDMENT TO
THE
AMENDED AND RESTATED CONSTRUCTION
LOAN AGREEMENT
This Fourth Amendment to the Amended
and Restated Construction Loan Agreement (the “Fourth
Amendment”) is made and entered into effective as of the 1st
day of June 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 & Restated Construction Loan
Agreement dated as of January 31, 2008 (the “First
Amendment”), (ii) that certain Second Amendment to
Amended and Restated Construction Loan Agreement dated as of
March 31, 2008 (the “Second Amendment”), and
(iii) that certain Third Amendment to Amended and Restated
Construction Loan Agreement dated as of April 30, 2008 (the
“Third Amendment”) (the Initial Loan Agreement as
amended by the First Amendment, the Second Amendment, and the Third
Amendment are herein collectively 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 Fourth 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 Fourth
Amendment, each capitalized term used in this Fourth 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 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
1
and the Bank, (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 (iv) the Fourth Amendment to Amended and Restated
Construction Loan Agreement dated as of June 1, 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.
“ Borrowing Base
” means the lesser of:
(a)
Ten Million and No/100ths Dollars ($10,000,000.00) less the
aggregate amount of any outstanding Letters of Credit;
or
(b)
The aggregate of (i) seventy-five percent (75%) of the
Borrower’s inventory of corn, at current value on the date
reported, plus (ii) seventy-five percent (75%) of the
Borrower’s Finished Goods-Distiller’s Grains Inventory,
at current value on the date reported, plus (iii) seventy-five
percent (75%) of the Borrower’s Finished Goods-Ethanol
Inventory, valued at the lower of cost or market, plus
(iv) seventy-five percent (75%) of the amount of the
Borrower’s current sales accounts receivable aged thirty (30)
days or less, excluding, however, any accounts receivable
reasonably deemed ineligible by the Bank, and plus
(v) seventy-five percent (75%) of the amount of the
Borrower’s current state or federal incentives accounts
receivable, including, but not limited to, USDA CCC Bio-Energy
Accounts Receivable, aged less than one hundred twenty
(120) days.
“ Existing Swap Loan
Termination Date ” means the earlier to occur of
(a) July 20, 2008, or (b) the date the Obligations
are accelerated pursuant to this Agreement or the Notes or
(c) the date the Bank has received (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.”
“ Mortgage ”
means the Amended, Restated and Expanded Mortgage, dated the
Closing Date, as amended by the First Amendment to Amended,
Restated and Expanded Mortgage dated as of June 1, 2008,
between the Borrower and the Bank in the form of
Exhibit “A” attached hereto and incorporated
herein by this reference creating a first lien on the Property and
a security interest in all of the personal property incorporated
therein as a fixture, each as security for payment of the
Obligations.
“ Operating Loan
Termination Date ” means the earliest to occur of
the following: (a) March 31, 2009, 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.”
2
3.
Extension of Operating Loan Termination Date . The
parties agree that the Operating Loan shall be extended to
March 31, 2009, 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 Fourth
Amendment, Borrower agrees to deliver to the Bank an Amended
Extension Operating Note in the form attached hereto as
Exhibit “B” and incorporated herein by this
reference (the “Extension Operating Note”). Such
Extension Operating Note shall be an extension of and amendment to
the Operating Note, dated April 30, 2008, and attached to the
Agreement as Exhibit “G,” and all references to
the Operating Note in the Agreement, or in any of the other Loan
Documents, shall be deemed for all purposes to be a reference to
the Extension Operating Note attached hereto.
4.
Extension of Maturity Dates of Existing Term Notes .
The parties agree that the maturity dates of the Existing Term
Notes shall be extended as follows: (a) the maturity date of
the Existing Swap Note shall be extended to July 20, 2008,
subject to and in accordance with the amended definition of the
Existing Swap Loan Termination Date stated in Section 2 above,
(b) the maturity date of the Existing Variable Rate Note shall
be extended to July 20, 2008, subject to and in accordance
with the terms of the Agreement, and (c) the maturity date of
the Existing Long Term Revolving Note shall be extended to
July 20, 2008, subject to and in accordance with the terms of
the Agreement. Upon the execution of this Fourth Amendment,
Borrower agrees to deliver to the Bank (x) an Extension
Existing Swap Note in the form attached hereto as
Exhibit “C” and incorporated herein by this
reference (the “Extension Existing Swap Note”),
(y) an Extension Existing Variable Rate Note in the form
attached hereto as Exhibit “D” and incorporated
herein by this reference (the “Extension Existing Variable
Rate Note”), and (z) an Extension Existing Long Term
Revolving Note in the form attached hereto as
Exhibit “E” and incorporated herein by this
reference (the “Extension Existing Long Term Revolving
Note”). Such Extension Existing Swap Note shall be an
extension of and amendment to the Existing Swap Note, dated
June 23, 2003, and attached to the Initial Loan Agreement as
Exhibit “J,” and all references to the Existing
Swap Note in the Agreement, or in any of the other Loan Documents,
shall be deemed for all purposes to be a reference to the Extension
Existing Swap Note attached hereto. Such Extension Existing
Variable Rate Note shall be an extension of and amendment to the
Existing Variable Rate Note, dated June 23, 2003, and attached
to the Initial Loan Agreement as Exhibit “K,” and
all references to the Existing Variable Rate Note in the Agreement,
or in any of the other Loan Documents, shall be deemed for all
purposes to be a reference to the Extension Existing Variable Rate
Note attached hereto. Such Extension Existing Long Term
Revolving Note shall be an extension of and amendment to the
Existing Long Term Revolving Note, dated June 23, 2003, and
attached to the Initial Loan Agreement as
Exhibit “L,” and all references to the Existing
Long Term Revolving Note in the Agreement, or in any of the other
Loan Documents, shall be deemed for all purposes to be a reference
to the Extension Existing Long Term Revolving Note attached
hereto.
5.
Amendment to Section 2.06 . The parties
agree that Section 2.06 of the Agreement shall be, and hereby
is, deleted in its entirety and replaced with the
following:
“
Section 2.06. Operating Loan . The Bank
agrees, on the terms and subject to the conditions set forth in
this Agreement, to lend up to Ten Million and No/100ths Dollars
($10,000,000.00) to the Borrower relating to the Operating Loan,
which shall
3
provide both operating line of
credit financing and Letter of Credit financing under the same
financing facility and will refinance and replace the Existing
Operating Note. The Bank will credit proceeds of the
Operating Loan to the Borrower’s deposit account with the
Bank, bearing account number 22674210. Subject to the terms
of this Agreement and the Operating Note, the Bank will lend the
Borrower, from time to time until the Operating Loan Termination
Date such sums as the Borrower may request by reasonable same-day
notice to the Bank, received by the Bank not later than
11:00 a.m. (Omaha, Nebraska time) of such day, but which shall
not exceed the aggregate principal amount at any one time
outstanding of Ten Million and No/100ths Dollars
