Exhibit 10.4
SECOND AMENDMENT
TO
CONSTRUCTION AND TERM
LOAN AGREEMENT
THIS AMENDMENT TO CONSTRUCTION AND TERM LOAN
AGREEMENT (“Second Amendment”) dated as
of the 30th day of December, 2008 (the “Effective
Date”), is entered into by and between SHOW ME
ETHANOL, LLC, a Missouri limited liability
company (the “ Borrower ”) and FCS
FINANCIAL, PCA, as agent (the “ Agent ”) for
itself and on behalf of the other Banks.
WITNESSETH
:
WHEREAS, that
as of March 1, 2007, the parties hereto, along with the Banks,
entered into that certain Construction and Term Loan Agreement (the
“Loan Agreement”), wherein, among other things, Agent
provided funds to Borrower in connection with the construction of
the Project; and
WHEREAS, that
as of June 2, 2008, the parties hereto entered into that certain
First Amendment to Construction and Term Loan Agreement (the
“First Amendment”) wherein among other things the Agent
and the Banks agreed to allow Borrower to raise additional funds to
complete the Project; and
WHEREAS,
Borrower and Agent hereby desire to further amend the Loan
Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the
foregoing and of the terms and conditions contained in this
Amendment, and of any loans or extensions of credit or other
financial accommodations at any time made to or for the benefit of
Borrower by the Banks, the Borrower, the Banks and Agent agree as
follows:
1.
Certain Defined Terms . The parties hereto
acknowledge and agree that the following items of Section
1.01 “Certain Defined Terms” shall be deleted in
their entirety and amended as follows:
“ Equity Drive ” shall mean
Borrower’s Capital Call of its Members or request for
voluntary equity contributions where in the Borrower desires to
generate additional $10,000,000.00 in equity.
“ Existing 2008 Contracts ”
shall mean those 2008 corn purchase order contracts entered into by
Borrower and Ray-Carroll as set forth on Exhibit 6.3
attached hereto.
“ Forbearance Period ” shall
mean the September 30, 2008 through February 2, 2009.
“ LIBOR Margin ” shall mean
with respect to such portions of the Loan which are Revolving LIBOR
Rate Loans, 3.5% (350 Basis Points).
“ Ray-Carroll Equity ” shall
mean Ray-Carroll’s additional investment, in a form
reasonably acceptable to Agent and participating Banks, to allow
Borrower to fulfill its obligations under the Existing 2008
Contracts.
“ Revolving Loan Commitment ”
shall mean $5,000,000.00, as such amount may be reduced or
terminated from time to time pursuant to Section 4.4 or 11.1
.”
2.
Term Loan . The parties hereto acknowledge and
agree that Sections 2.03(b) and (c) of the Loan Agreement
shall be deleted in their entirety and replaced with the
following:
“(b)
Term Loan . The Term Loan shall be a Term
LIBOR Rate Loan, and the Borrower shall notify the Agent no later
than 12:00 p.m. (noon) (St. Louis, Missouri time) on a Business Day
which is at least three (3) Business Days of any changes in the
Interest Period of the Term LIBOR Rate Loans then
outstanding. For each Term LIBOR Rate Loan, the Borrower
shall specify the Interest Period therefore; provided, however,
should Borrower fail to designate the Interest Period for any Term
LIBOR Rate Loan, that Term LIBOR Rate Loan shall be deemed a three
(3) month Term LIBOR Rate Loan. Each Term LIBOR Rate
Loan shall be in an amount equal to $1,000,000.00 or incremental
multiples of $1,000,000.00. Each Bank shall extend to
the Borrower each Type of Loan selected by the Borrower, in an
amount equal to its Pro Rata Share of the Loan; provided, however,
that except as hereinafter specifically provided in this Section
2.03(b) , at no time shall the Outstanding Credit applicable to
a Bank exceed such Bank’s Commitment as set forth in
Schedule 2.01(a) .
(c)
Payment of Term Loan . The amortization
period for the repayment of the Term Loan shall be a period of ten
(10) years commencing as of the Conversion
Date. Interest on Term LIBOR Rate Loans will be payable
in arrears on a monthly basis. Quarterly installments of
principal in an amount sufficient to fully amortize the Term Loan
over said amortization period in substantially equal payments will
be required beginning on the first day of the fourth month
following the Conversion Date, and continuing on the first day of
each and every third calendar month thereafter until the Term
Maturity Date, at which time the outstanding principal balance of
the Term Loan, and all accrued and unpaid interest will be due and
payable in full. During the term of the Term Loan, the
Borrower may, upon prior written notice to the Agent, defer up to
two (2) quarterly principal payments to the Term Maturity
Date.”
3.
Additional Reporting Requirements . The parties
acknowledge and agree that a new Subsections 5.01(c)(xiii)-(xv)
shall be inserted in Section 5.01(c) and read as
follows:
“(xiii) on a weekly
basis, and promptly following any request, Borrower’s current
cash forecast in a form reasonably acceptable to Agent.
(xiv) as soon as
available, but in any event within ten (10) days following the
completion of each calendar month, Borrower shall provide Agent
with a detailed report of Borrower’s hedging
positions.
(xv) prior to
the end of the Forbearance Period, detailed financial projections
for completion of Borrower’s obligations under Existing 2008
Contracts and promptly following any material revisions to the
Borrower’s financial projections.”
4.
Additional Affirmative Covenants . The Parties
hereto acknowledge and agree that a new Section 5.01(r)
“Equity Drive” shall be added to the Agreement and
shall read as follows:
“(r)
Equity Drive . Borrower shall promptly notify
Lender if Borrower has any reason to anticipate that the Equity
Drive shall fail to obtain the minimum member approval required to
successfully complete the Capital Call or receive voluntary capital
contributions of a minimum of $8,000,000.”
5.
Ray Carroll/Existing 2008 Contacts . The Parties
hereto acknowledge and agree that a new Section 6.01(t)
shall be added to the Agreement and shall read as
follows:
“(t) Failure
of Borrower to receive within forty-five (45) days following the
completion of the Equity Drive, an additional investment, in a form
reasonably acceptable to Agent and participating Banks, from
Ray-Carroll, or other party, to provide additional
Subordin
