THIRD AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
EXHIBIT 10.38
THIRD
AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
This Third Amendment to Construction Loan Agreement is dated as of the 15th day of
November, 2007, and is by and between RED TRAIL ENERGY, LLC, a North Dakota limited
liability company (“BORROWER”), and FIRST NATIONAL BANK
OF OMAHA
(“BANK”), a national banking association established at
Omaha, Nebraska.
WHEREAS, the BANK, and BORROWER executed a written Construction Loan Agreement dated as of December
16, 2005 (“AGREEMENT”).
Now,
Therefore, in consideration of the AGREEMENT, and, their mutual promises made herein, BANK
and BORROWER agree as follows:
| 1. | Terms which are typed herein as all capitalized words and are not defined herein shall have same meanings as when described in the AGREEMENT. | ||
| 2. | Effective immediately, Section 6.23 of the AGREEMENT is amended to read: | ||
| 6.2.3 The BORROWER shall determine, at each fiscal year end following COMPLETION DATE, the amount of its EXCESS CASH FLOW for said fiscal year, and at the time of delivery of the audited financial statements required by 6.1.1 of this AGREEMENT, pay to BANK, the lesser of (i) twenty percent (20%) of such sum, or (ii) $4,000,000.00, to be applied to the outstanding principal amount of VARIABLE RATE NOTE, and after VARIABLE RATE NOTE is repaid, to LONG TERM REVOLVING NOTE to reduce the principal balance, if any, and after LONG REVOLVING NOTE is repaid, BORROWER’s payment to BANK of EXCESS CASH FLOW shall no longer be required. Such annual payment shall not release BORROWER from making any payment of principal or interest otherwise required by this AGREEMENT. No payment of EXCESS CASH FLOW shall be the cause of a payment to BANK for interest rate breakage fees or otherwise result in any prepayment fee. | |||
| 3. | BORROWER certifies by its execution hereof that the representations and warranties set forth in Section 5 of the AGREEMENT are true as of this date, and that no EVENT OF DEFAULT under the AGREEMENT, and no event winch, with the giving of notice or passage of time or both, would become such an EVENT OF DEFAULT, has occurred as of this date. | ||
| 4. | Except as amended hereby the parties ratify and confirm as binding upon them all of the terms of the AGREEMENT. |
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IN WITNESS whereof the parties set their hands as of the date first written above.
| First National Bank of Omaha | Red Trail Energy, LLC | |||||||||||||
By:
|
Xxxxx Xxxxxx
|
By: Name: |
/s/ Xxxx Xxxxxx
|
|||||||||||
| Commercial Loan Officer | Title: | Chairman | ||||||||||||
| And | ||||||||||||||
| By: | /s/ Xxxxx Xxxxxxxx | |||||||||||||
| Name: | Xxxxx Xxxxxxxx | |||||||||||||
| Title: | Treasurer | |||||||||||||
STATE OF NORTH DAKOTA
|
) | |||
| )ss. | ||||
COUNTY OF XXXXX
|
) | |||
On this 29 day of November, 2007, before me, the undersigned Notary Public, personally
appeared Chairman, the Xxxx Xxxxxx of Red Trail Energy, LLC
on behalf of said entity, and each acknowledged that he executed the foregoing
Amendment to Loan Agreement as his voluntary act and deed and that of Red Trail Energy, LLC,
| /s/ Xxxxx Xxxx | ||||||
STATE OF NORTH DAKOTA
|
) | Notary Public | ||||
| )ss. | XXXXX XXXX | |||||
COUNTY OF XXXXX
|
) | Notary Public | ||||
| State of North Dakota | ||||||
| My Commission Expires Oct. 21, 2011 |
On this 29 day of November, 2007, before me, the undersigned Notary Public, personally
appeared Xxxxx Xxxxxxxx the Treasurer of Red Trail Energy, LLC
on behalf of said entity, and each acknowledged that he executed the foregoing
Amendment to Loan Agreement as his voluntary act and deed and that of
Red Trail Energy, LLC.
| /s/ Xxxxx Xxxx | ||||
| Notary Public | ||||
| XXXXX XXXX | ||||
| Notary Public | ||||
| State of North Dakota | ||||
| My Commission Expires Oct. 21, 2011 |
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