SIXTH AMENDMENT TO CREDIT AGREEMENT
Execution Copy
SIXTH AMENDMENT
TO
THIS
SIXTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is entered into to
be effective as of December 18, 2009 (the “Effective Date”), among
SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa limited liability company (the
“Borrower”), AGSTAR
FINANCIAL SERVICES, PCA (“AgStar”), the other
commercial, banking or financial institutions whose signatures appear on the
signature pages hereof or which hereafter become parties to the Credit Agreement
(the “Banks”), and
AGSTAR FINANCIAL SERVICES, PCA, and its successors and assigns, as Agent for
itself and the other Banks (the “Agent”). Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in the Credit Agreement (as defined below).
RECITALS
A. The
Borrower, the Agent, and the Banks have entered into a Credit Agreement dated
May 2, 2007; a First Amendment to Credit Agreement dated March 7,
2008; a Second Amendment to Credit Agreement dated December 19, 2008; a
Third Amendment to Credit Agreement dated December 30, 2008; a Fourth
Amendment to Credit Agreement dated as of February 28, 2009; and a Fifth
Amendment to Credit Agreement dated August 1, 2009 (collectively, with this
Amendment, the “Credit
Agreement”) under which the Banks agreed to extend certain financial
accommodations to the Borrower.
B. At
the request of the Borrower, the Banks have agreed to extend the maturity date
of the Revolving Line of Credit Loan in accordance with the terms and conditions
set forth in this Amendment.
AGREEMENT
NOW
THEREFORE, in consideration of the premises herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment
to Credit Agreement. As of the Effective Date the following
definition as used in the Loan Documents is amended and restated as
follows:
“Revolving Line of Credit Loan
Maturity Date” means March 31, 2010.
2. Effect on
Credit Agreement. Except as expressly amended by this
Amendment, all of the terms of the Credit Agreement shall be unaffected by this
Amendment and shall remain in full force and effect. Except as
expressly set forth herein, nothing contained in this Amendment shall be deemed
to constitute a waiver of any rights of the Banks or to affect, modify, or
impair any of the rights of the Banks as provided in the Credit
Agreement.
3. Conditions
Precedent to Effectiveness of this Amendment. The obligations
of the Banks hereunder are subject to the conditions precedent that the Agent
shall have received the following, in form and substance satisfactory to the
Agent:
Execution
Copy
a. this
Amendment duly executed by the Borrower, the Agent, and the Banks;
b. all
other documents, instruments, or agreements required to be delivered to the
Agent under the Credit Agreement and not previously delivered to the
Agent.
4. Representations
and Warranties of Borrower. The Borrower hereby agrees with,
reaffirms, and acknowledges as follows:
a. The
execution, delivery and performance by the Borrower of this Amendment and all
associated Loan Documents are within the Borrower’s power, have been duly
authorized by all necessary action, and do not
contravene: (i) the articles of organization or operating
agreement of the Borrower; or (ii) any law or any contractual restriction
binding on or affecting the Borrower; and do not result in or require the
creation of any lien, security interest or other charge or encumbrance (other
than pursuant to the terms thereof) upon or with respect to any of its
properties;
b. This
Amendment is, and each other Loan Document to which the Borrower is a party when
delivered will be, legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditor’s rights
generally and by general principles of equity; and
c. All
other representations and warranties contained in the Credit Agreement and the
other Loan Documents are true and correct and in full force and
effect.
5. Counterparts. It
is understood and agreed that this Amendment may be executed in several
counterparts, each of which shall, for all purposes, be deemed an original, and
all of such counterparts, taken together, shall constitute one and the same
agreement, even though all of the parties hereto may not have executed the same
counterpart of this Amendment. Electronic delivery of an executed
counterpart of a signature page to this Amendment shall be effective as delivery
of an original executed counterpart to this Amendment.
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,
[SIGNATURE
PAGE TO IMMEDIATELY FOLLOW THIS PAGE]
2
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 0000
XXXXXXXXX
XXXX RENEWABLE ENERGY, LLC,
an Iowa
limited liability company
By : | /s/ Xxxxx X. Xxxxxx | |
Xxxxx X. Xxxxxx | ||
Its: General Manager |
By : | /s/ Xxxxx Xxxx | |
Xxxxx Xxxx | ||
Its: Board Chairman |
3
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
AGENT:
AGSTAR FINANCIAL SERVICES,
PCA,
as
Administrative Agent
/s/ Xxx Xxxxxx | |
By: Xxx Xxxxxx | |
Its: Vice President |
AGSTAR:
as a
Bank
AGSTAR FINANCIAL SERVICES,
PCA,
/s/ Xxx Xxxxxx | |
By: Xxx Xxxxxx | |
Its: Vice President |
4
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
METROPOLITAN LIFE INSURANCE
COMPANY,
as a
Bank
/s/ Xxxxxx X. Xxxxx | |
By: Xxxxxx X. Xxxxx | |
Its: Director |
Address: 0000
Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx,
XX 00000-0000
5
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
METLIFE BANK,
N.A.,
as a
Bank
/s/ Xxxxxx X. Xxxxx | |
By: Xxxxxx X. Xxxxx | |
Its: Assistant Vice President |
Address: 0000
Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx,
XX 00000-0000
6
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
COÖPERATIEVE
CENTRALE RAIFFEISEN-
BOERENLEENBANK
B.A., “RABOBANK
NEDERLAND”,
New York Branch,
as a
Bank
/s/ Xxxxxx Xxxxxxx | |
By: Xxxxxx Xxxxxxx | |
Its: Executive Director |
/s/ Xxxx Xxxxx | |
By: Xxxx Xxxxx | |
Its: Executive Director |
Address: 000
Xxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx,
XX 00000
7
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
AMARILLO NATIONAL
BANK,
as a
Bank
/s/ Xxxxx X. Xxxxxxx | |
By: Xxxxx X. Xxxxxxx | |
Its: Executive Vice President |
Address: X.X.
Xxx 0
Xxxxxxxx,
Xxxxx 00000
8
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
FIRST NATIONAL BANK OF
OMAHA,
as a
Bank
/s/ Xxxxxx Xxxxxx | |
By: Xxxxxx Xxxxxx | |
Its: Second Vice President |
Address: 0000
Xxxxx Xxxxxx
Xxxxx, XX 00000
9
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
BANK OF THE WEST,
as a
Bank
/s/ Xxxxxxxxxx Xxxxxxxxx | |
By: Xxxxxxxxxx Xxxxxxxxx | |
Its: Vice President |
Address: Special
Assets Department
0000 Xxxxx Xxxx.
Xxxxxx Xxxxx,
XX 00000
10
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
MONUMENTAL LIFE INSURANCE
COMPANY,
as a
Bank
/s/ Xxxxxxx Xxxxxx | |
By: Xxxxxxx Xxxxxx | |
Its: Vice President |
Address: 000
Xxxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx,
XX 00000
11
Execution
Copy
SIGNATURE
PAGE TO
SIXTH
AMENDMENT TO CREDIT AGREEMENT
BY AND
BETWEEN
SOUTHWEST
IOWA RENEWABLE ENERGY, LLC,
AGSTAR
FINANCIAL SERVICES, PCA (AS AGENT), AND
THE
BANKS
Dated to
be effective as of December 18, 2009
M & I XXXXXXXX & XXXXXX
BANK,
as a
Bank
/s/ Xxxx Xxxxx | |
By: Xxxx Xxxxx | |
Its: SVP |
/s/ Xxxx Xxxxxx | |
By: Xxxx Xxxxxx | |
Its: SVP |
Address:
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
12