FIRST AMENDMENT TO CONSTRUCTION AND TERM LOAN AGREEMENT
FIRST
AMENDMENT TO
THIS
AMENDMENT TO CONSTRUCTION AND TERM LOAN AGREEMENT
(“Amendment”) dated as of June 2, 2008, 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.
W
I T N E S S E T H:
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,
in connection with Borrower’s construction of the Project, Borrower experienced
cost overruns which required Borrower to obtain or raise additional funds to
complete the Project; and
WHEREAS,
Borrower has secured additional funds from various persons that are “Accredited
Investors” in an amount not less than Three Million Dollars ($3,000,000.00) to
assist in completion of the Project (the “Member Loan”); and
WHEREAS,
the Banks and the Agent have agreed to allow Borrower to obtain the Member
Loan
in accordance with the provisions of this Amendment; and
WHEREAS,
Borrower and Agent hereby desire to amend the Loan Agreement as set forth
hereinafter provided;
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:
“Excess
Cash Flow”
means,
with respect to a fiscal year of the Borrower, the amount of cash flow from
operations that exceeds Net Income plus depreciation for said fiscal year less
(Capital Expenditures, scheduled Term Loan principal payments, scheduled Member
Loan payments and Distributions for said fiscal year).”
“Member
Loan”
means
those certain loans from persons, who are “Accredited Investors” to Borrower, as
evidenced by that certain Loan and Security Agreement by and among the Borrower
and the contributing person.”
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“Member
Loan Documents”
means
those certain documents, including without limitation, the Loan and Security
Agreement by and among the Borrower and the contributing Members, evidencing
the
Member Loan.”
“Member
Loan Lender”
means
those parties making the Member Loan as set forth in the Member Loan Documents
and on the Member Loan Subordination Agreement.”
“Member
Loan Subordination Agreement”
means
that certain Intercreditor/Subordination Agreement by and among the Borrower,
Agent and the Member Loan Lender dated June 2, 2008.”
“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.”
“Working
Capital”
means
current assets of the Borrower less current liabilities of the Borrower;
provided, however, the Member Loan shall be excluded as a Debt in the
determination of Working Capital until such time as the Member Loan is then
currently due and owing.”
2. 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:
“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 Eight Million Dollars ($8,000,000.00). 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.”
3. Conditions
Precedent to this Amendment.
The
parties hereto acknowledge and agree that following shall be condition precedent
to the execution and delivery of this Amendment by the Banks and
Agent:
3.1 Execution
of the Member Loan Subordination Agreement.
The
Member Loan Lender (by and through the Collateral Agent, State Bank of Xxxxxx,
Missouri), Borrower and Agent shall have executed and delivered the Member
Loan
Subordination Agreement.
3.2. Execution
of the First Amendment to Revolving Credit Agreement.
The
Borrower and Revolving Credit Lender shall have entered into that certain First
Amendment to Revolving Credit Agreement, among other things increasing the
amount of the Revolving Credit Facility from Five Million Dollars
($5,000,000.00) to Eight Million Dollars ($8,000,000.00).
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3.3 Funding
of the Member Loan.
The
Agent shall have received written confirmation that the Member Loan Lenders
have
funded the Member Loan.
4. Consent
to Member Loan.
By
execution of this Amendment, the Banks and Agent consent to the Member Loan
and
the creation of additional indebtedness there under by Borrower.
5. Multiple
Counterparts.
This
Amendment may be executed simultaneously in two or more counterparts, each
of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
6. Reaffirmation
of Previous Terms and Conditions.
All of
the remaining terms and conditions of the Agreement, as amended, where not
inconsistent with the above, shall remain the same and are hereby republished,
reaffirmed and restated as of the date hereof.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by
their respective officers and duly authorized, as of the date first above
written.
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a
Missouri limited liability company
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By:
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Title:
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AGENT,
for itself and on behalf of the Banks:
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FCS
FINANCIAL, PCA
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Title:
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