EXHIBIT 10.1
THIRD AMENDMENT
TO
CONSTRUCTION AND TERM LOAN
AGREEMENT
THIS THIRD AMENDMENT TO CONSTRUCTION AND TERM
LOAN AGREEMENT (“Third Amendment”) dated as of the
31st day of March, 2009 (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 the
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”), and on or about December 30, 2008,
the parties entered into that certain Second Amendment to
Construction and Term Loan Agreement (the “Second
Amendment”); 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:
““ EBITDA ” shall mean
Borrower’s earnings before interest, taxes, depreciation, and
amortization.
“ Equity Drive ” shall mean
Borrower’s voluntary request of its members for the
contribution of a minimum of $5,700,000.00 in cash or other form of
equity on or before April 1, 2009.
“ Fixed Charge Coverage Ratio
” shall mean the ratio of the Borrower’s EBITDA to the
Borrower’s current portion of long term debt, interest
expense, tax distributions, dividends and capital
expenditures.
“ Hedging Policy ” shall mean
the Borrower’s policy regarding the purchase and sale of
corn, DGS, ethanol and/or natural gas, as approved by
Borrower’s board of managers.
“ Minimum Equity Percentage ”
shall mean the percentage value of Borrower’s equity divided
by Borrower’s total assets.
“ Railroad Spur Easement ”
shall mean that certain Railroad Spur Easement dated January 9,
2007, by and between Ray-Carroll and Borrower.
“ Ray-Carroll Subordinated Loan
” shall mean a loan in the amount of approximately
$12,000,000 evidenced by a Subordinated Secured Promissory Note due
in March of 2014 between Ray-Carroll and Borrower to settle the
Existing Corn Contracts.
“ Subordinated Debt ” means
any and all Debt of Borrower held by any Person other than Agent,
and Bank, or the Revolving Credit Lender pursuant to either this
Agreement or the Revolving Credit Agreement, including, without
limitation the Member Loan and the Ray-Carroll Subordinated
Loan.
“ Working Capital ” means
current assets of the Borrower less current liabilities (excluding
the then current portion of the Long Term Debt) of the Borrower;
provided, however, the Member Loan and the Ray-Carroll Subordinated
Loan shall each be excluded as a Debt in the determination of
Working Capital until such time as the Member Loan or the
Ray-Carroll Subordinated Loan is then currently due and
owing.”
2.
Payment of Term Loan . The parties hereto
acknowledge and agree that the last sentence of Section 2.03(c)
“Payment of Term Loan” shall be deleted in its entirety
and replaced with the following:
“During
the term of the Term Loan, the Borrower may, upon prior written
notice to the Agent, defer up to four (4) quarterly principal
payments to the Term Maturity Date. One of the four
deferrals shall include the February 1, 2009 principal payment
deferment.”
3. Excess
Cash Flow. The parties hereto acknowledge and agree that
the first sentence of Section 2.03(d) “Excess Cash
Flow” shall be deleted in its entirety and replaced with the
following:
“Beginning with January 1, 2011, and in
addition to all other payments of principal and interest required
under this Agreement or the Notes, the Borrower shall annually
remit to the Agent an amount equal to fifty percent (50%) of the
Borrower’s Excess Cash Flow on or before that certain date
which is one hundred fifty (150) days after the completion of
Borrower’s immediately preceding fiscal
year.”
4.
Revolving Credit Facility . The parties
hereto acknowledge and agree that Section 2.11(f)
“Revolving Credit Facility” shall be deleted in its
entirety and replaced with the following:
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“ Revolving Credit Facility .
The parties acknowledge and agree effective as of
November 6, 2007, Revolving Credit Lender and Borrower entered into
the Revolving Credit Facility to provide Borrower with funds for
use in the operation of the Project, as amended, in the maximum
principal amount of Five Million Dollars
($5,000,000.00). Additionally, the Banks agree and
acknowledge that all or a portion of the Collateral shall be
secured equally and ratably with the Revolving Credit Facility on
the same lien priority basis.”
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5.
Reporting Requirements . The parties acknowledge
and agree that Subsections 5.01(c)(xiii)-(xv) shall be amended to
read as follows:
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as soon as
reasonably available, Borrower's updated weekly rolling thirteen
(13) week cash flow analysis in a form and substance reasonably
acceptable to Agent.
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as soon as
reasonably available, Borrower’s updated weekly detailed
report of Borrower’s hedging positions and a certificate of
compliance with the Hedging Policy from an authorized officer of
Borrower.”
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6.
Affirmative Covenants . The Parties hereto
acknowledge and agree that a new Section 5.01
“Affirmative Covenants” shall be ame
