AMENDMENT NO. 7 TO CREDIT AGREEMENT
Exhibit 10.1
AMENDMENT NO. 7
TO
THIS AMENDMENT NO. 7 TO CREDIT AGREEMENT, dated as of October 29, 2021 (this “Agreement”), is entered into by and between SOUTHWEST IOWA RENEWABLE ENERGY, LLC, a limited liability company organized and existing under the laws of Iowa (the “Company”), FARM CREDIT SERVICES OF AMERICA, FLCA, a federally-chartered instrumentality of the United States (“FLCA”), FARM
CREDIT SERVICES OF AMERICA, PCA, a federally-chartered instrumentality of the United States (“PCA”, and together with FLCA, individually and collectively, the “Lender”), and COBANK, ACB, a federally-chartered instrumentality of the United States (“CoBank”), in its capacity as Cash Management Provider and Agent. Capitalized terms not defined herein shall have the meanings set forth in the Existing Credit Agreement.
BACKGROUND:
WHEREAS, the Company, Lender and CoBank are parties to a
Credit Agreement dated as of June 24, 2014, Amendment No. 1 to Credit Agreement dated as of February 11, 2015, Amendment No. 2 to Credit Agreement dated as of February 11, 2015, Amendment No. 3 to Credit Agreement dated as of January 25, 2016,
Amendment No. 4 to Credit Agreement dated as of November 8, 2019, Amendment No. 5 to Credit Agreement dated as of February 26, 2021 and Amendment No. 6 to Credit Agreement dated as of July 30, 2021 (as the same may from time to time be amended,
restated, modified or otherwise supplemented, collectively the “Existing Credit Agreement”), and the other Loan Documents;
WHEREAS, the Company has requested that, as of the Effective
Date, the Existing Credit Agreement be amended as herein provided; and
WHEREAS, Lender and CoBank are willing, subject to the terms
and conditions hereinafter set forth, to make such amendments;
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereby agree as follows:
| ARTICLE 1 |
Definitions.
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1.1 Certain Definitions. The following terms when used in the Agreement shall have the following meanings:
“Agreement” is defined in the preamble to this Agreement.
“CoBank” is defined in the preamble to this Agreement.
“Company” is defined in the preamble to this Agreement.
“Effective Date” is defined in Article 4.
“Existing Credit Agreement” is defined in the first recital to this Agreement.
“FLCA” is defined in the preamble to this Agreement.
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“Lender” is defined in the preamble to this Agreement.
“PCA” is defined in the preamble to this Agreement.
“Second Amended and Restated Revolving Credit Note” is defined in Section 2.1 of
this Agreement.
1.2 Other Definitions. Unless otherwise defined or the context otherwise requires, terms used herein (including in the preamble and recitals hereto) have the meanings provided for in the Existing Credit Agreement.
| ARTICLE 2 |
Amendments.
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Effective on (and subject to the occurrence of) the Effective Date, the Existing Credit Agreement is amended as follows:
2.1 Revolving Credit Note. The Revolving Credit Note referenced in Section 2.3(b) of the Existing Credit Agreement, and attached to the Existing Credit Agreement as Exhibit D, has been amended and restated in its
entirety and is in the form attached hereto as Exhibit A, the terms and provisions of which are incorporated into the Existing Credit Agreement by reference and made a
part thereof (the “Second Amended and Restated Revolving Credit Note”).
| ARTICLE 3 |
Representations
and Warranties.
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In order to induce Lender and CoBank to make the amendments provided for in Article 2, the Company hereby (a) represents and warrants that (i) each of
the representations and warranties of the Company contained in the Existing Credit Agreement and in the other Loan Documents are true and correct in all material respects on and as of the date hereof, except that such representations and warranties
(A) that relate solely to an earlier date shall be true and correct in all material respects as of such earlier date and (B) shall be true and correct in all respects to the extent they are qualified by a materiality standard and (ii) no Default or
Event of Default has occurred and is continuing; and (b) agrees that the incorrectness in any respect of any representation and warranty contained in the preceding clause (a) shall constitute an immediate Event of Default. Without limiting the
foregoing, the Company hereby (x) ratifies and confirms all of the terms, covenants and conditions set forth in the Loan Documents and hereby agrees that it remains unconditionally liable to Lender and CoBank in accordance with the respective terms,
covenants and conditions set forth in the Loan Documents, and all Collateral in favor of Lender and CoBank continues unimpaired and in full force and effect, and (y) waives all defense, claims, counterclaims, rights of recoupment or set-off against
any of its obligations.
| ARTICLE 4 |
Conditions to Effectiveness.
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This Agreement shall become effective on such date (the “Effective Date”) when
the following conditions have been satisfied:
4.1 Representations and Warranties. The representations and warranties made by the Company pursuant to Article 3 as of the Effective Date shall be true and correct.
4.2 Note. CoBank shall have received a duly executed Second Amended and Restated Revolving Credit Note.
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4.3 Other Requests. CoBank shall have received such other certificates, instruments, documents, agreements, information and reports as may be requested by CoBank, in form and substance satisfactory to CoBank.
4.4 Payment of Fees and Expenses. The Company shall have paid all fees and expenses of CoBank and the Lending Parties, if any, payable on or before the Effective Date as required by this Agreement or any other Loan
Document.
| ARTICLE 5 |
Miscellaneous.
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5.1 Loan Document Pursuant to Existing Credit Agreement. This Agreement is a Loan Document executed pursuant to the Existing Credit Agreement. Except as expressly amended hereby, all of the representations,
warranties, terms, covenants and conditions contained in the Existing Credit Agreement and each other Loan Document shall remain unamended and otherwise unmodified and in full force and effect.
5.2 Limitation of Amendments. The amendments set forth in Article 2 shall be limited precisely as provided for herein and shall not be deemed to
be a waiver of, amendment of, consent to or modification of any other term or provision of the Existing Credit Agreement or any term or provision of any other Loan Document or of any transaction or further or future action on the part of the
Company which would require the consent of CoBank under the Existing Credit Agreement or any other Loan Document.
5.3 Counterparts; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement shall become effective when it shall have been executed by CoBank and when CoBank shall have received counterparts hereof that, when taken together, bear the signatures of each of the
other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or email shall be as effective as delivery of a manually executed counterpart of this Agreement.
5.4 Incorporation of Existing Credit Agreement Provisions. The provisions of Article 11 of the Existing Credit Agreement shall apply to this Agreement, mutatis mutandis.
[Signature Pages Follow]
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[SIGNATURE PAGE TO CREDIT AGREEMENT AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.
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COMPANY:
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By:
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/s/ Xxxxxxx X. Xxxxx | ||
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Name:
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Xxxxxxx X. Xxxxx | |
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Title:
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Chief Executive Officer |
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Notice Address for the Company:
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00000 000xx Xxxxxx
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Xxxxxxx Xxxxxx, Xxxx 00000
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Attention: Xxxxxxx X. Xxxxx
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Fax No.: (000) 000-0000
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Email Address: xxxx.xxxxx@xxxxxxxxxxx.xxx
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[SIGNATURE PAGE TO CREDIT AGREEMENT AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.
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LENDER:
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FARM CREDIT SERVICES OF AMERICA, FLCA
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By:
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/s/ Xxxx X. Xxxxx |
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Name:
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Xxxx X. Xxxxx |
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Title:
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Vice President |
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Notice Address for the Company:
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Farm Credit Services of America, FLCA
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0000 X. 000xx Xxxxxx
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Xxxxx, Xxxxxxxx 00000
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Attention: Agribusiness Finance
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Fax No.: (000) 000-0000
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Email Address: xxxxxx@xxxxxxxxxx.xxx
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[SIGNATURE PAGE TO CREDIT AGREEMENT AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.
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LENDER:
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FARM CREDIT SERVICES OF AMERICA, PCA
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By:
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/s/ Xxxx X. Xxxxx | ||
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Name:
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Xxxx X. Xxxxx | |
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Title:
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Vice President |
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Notice Address for the Company:
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Farm Credit Services of America, PCA
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0000 X. 000xx Xxxxxx
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Xxxxx, Xxxxxxxx 00000
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Attention: Agribusiness Finance
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Fax No.: (000) 000-0000
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Email Address: xxxxxx@xxxxxxxxxx.xxx
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[SIGNATURE PAGE TO CREDIT AGREEMENT AMENDMENT]
IN WITNESS WHEREOF, the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.
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CASH MANAGEMENT PROVIDER AND AGENT:
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COBANK, ACB
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By:
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/s/ Xxxxx Xxxxxxx | ||
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Name:
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Xxxxx Xxxxxxx | |
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Title:
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Vice President |
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Notice Address for CoBank:
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0000 X. Xxxxxxxx Xxxxx Xxxxxx
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Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
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Attention: Credit Information Services
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Fax No.: (000) 000-0000
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Email Address: XXXxxxxxxx@XxXxxx.xxx
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[GUARANTOR’S CONSENT PAGE TO CREDIT AGREEMENT AMENDMENT]
GUARANTOR’S CONSENT
The undersigned SIRE DISC, INC., an Iowa corporation (the “Guarantor”),
hereby (a) consents to this Agreement and the transactions contemplated hereby, (b) reaffirms its obligations under that certain Continuing Guarantee dated February 11, 2015 by Guarantor in favor of CoBank, for the benefit of the Lending Parties (the
“Continuing Guarantee”), including, without limitation, the unconditional guarantee to CoBank, for the benefit of the Lending Parties, of the full and prompt
payment of the Indebtedness (as defined in the Continuing Guarantee), whether now existing or hereafter arising, and (c) represents and warrants that (i) the Continuing Guarantee continues to constitute the legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with its terms, (ii) there exists no Event of Default or Default and (iii) there are no, and shall not be any, defenses to or counterclaims or rights of set-off against any of CoBank’s or the
Lending Parties’ rights under the Continuing Guarantee.
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SIRE DISC, INC.
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By:
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/s/ Xxxxxxx X. Xxxxx
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Name:
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Xxxxxxx X. Xxxxx
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Title:
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Chairman
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8
EXHIBIT A
Form of Second Amended and Restated Revolving Credit Note
[see attached]
