FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
Exhibit 10.32
FIRST AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
This First Amendment to Construction Loan Agreement is dated as of the
16th day of August, 2006, 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. The parties desire that the INTEREST PERIOD for the REVOLVING NOTE,
FIXED RATE NOTE, VARIABLE RATE NOTE, and LONG TERM REVOLVING NOTE described in
paragraph 3, below, commence on the same date as the CONSTRUCTION NOTE, which
is the 16th day of the calendar month. Therefore, effective
immediately, a new subparagraph 1.18.4 shall be added to Section 1.18 of the
AGREEMENT, so that such Section 1.18 shall read:
1.18 “INTEREST PERIOD” means initially, the period commencing on the date
of any loan made pursuant to this AGREEMENT and, for FIXED RATE NOTE and
VARIABLE RATE NOTE ending three months later, and for the CONSTRUCTION
NOTE, LONG TERM REVOLVING NOTE and REVOLVING NOTE ending one month later;
and thereafter, each period commencing on the first day immediately
following the last day of the immediately preceding INTEREST PERIOD and,
for FIXED RATE NOTE and VARIABLE RATE NOTE ending three months
thereafter, and for the CONSTRUCTION NOTE, LONG TERM REVOLVING NOTE and
REVOLVING NOTE ending one month thereafter; provided that:
1.18.1 subject to clauses 1.18.2 and 1.18.3 below, any INTEREST
PERIOD which would otherwise end on a day which is not a
EURODOLLAR BUSINESS DAY shall be extended to the next succeeding
EURODOLLAR BUSINESS DAY unless such EURODOLLAR BUSINESS DAY falls in
another calendar month, in which case such INTEREST PERIOD shall end on the
immediately preceding EURODOLLAR BUSINESS DAY;
1.18.2 subject to clause 1.18.3 below, any INTEREST PERIOD which
begins on the last EURODOLLAR BUSINESS DAY of a calendar month
(or a day for which there is no numerically corresponding day in the
calendar month at the end of such INTEREST PERIOD) shall end on the last
EURODOLLAR BUSINESS DAY of a calendar month;
1.18.3 no INTEREST PERIOD shall extend beyond the LOAN
TERMINATION DATE; and
1.18.4 Notwithstanding anything hereinabove to the contrary, the
INTEREST PERIOD for the REVOLVING NOTE, FIXED RATE NOTE,
VARIABLE RATE NOTE, LONG TERM REVOLVING NOTE and the
CONSTRUCTION NOTE shall commence on the 16th day of the calendar
month.
3. On execution hereof, BORROWER will execute and deliver to BANK a
replacement note evidencing the REVOLVING NOTE, in order to change the maturity of such
note. As the result, Section 1.24 of the AGREEMENT is hereby amended, effective
immediately, to read:
1.24 “LOAN TERMINATION DATE” means the earliest to occur of the following: (i) as to the
CONSTRUCTION NOTE, April 16, 2007, as to the REVOLVING NOTE,
July 5, 2007, as to FIXED RATE
NOTE, VARIABLE RATE NOTE and as to LONG TERM REVOLVING NOTE, a date which is five years
subsequent to the COMPLETION DATE, (ii) the date the OBLIGATIONS are accelerated pursuant
to this AGREEMENT, and (iii) the date BANK has received (a) notice in writing from BORROWER
of BORROWER’S election to terminate this AGREEMENT and (b) indefeasible payment in full of
the OBLIGATIONS.
4. Effective immediately, Section 1.26 of the AGREEMENT is amended to read:
1.26 “MARKETING AND RISK MANAGEMENT CONTRACTS” means the contracts between BORROWER and the
entities named below (or any other entity contracting with BORROWER for similar purposes)
| Contracting Entity | Regarding: | |
Commodity Specialists Company
|
distillers dried grains (“DDGS”) | |
Renewable Products Marketing Group, LLC
|
ethanol products | |
(to be determined)
|
wet distiller’s grains (“DWGS”) | |
New Vision Co-op
|
unit trains of corn | |
Iowa Grain Company
|
corn hedging | |
General Industries, Inc. d/b/a Center Coal Company
|
provision of coal |
5. Effective immediately, Section 2.13 of the AGREEMENT is amended to read:
2.13 Fees. At CLOSING, the BORROWER shall pay to the BANK the $70,000.00 balance of the due
diligence and negotiation fee, which fee BORROWER agrees and acknowledges has been earned
by BANK as of the execution hereof as the result of BANK’s efforts to acquire participating
lenders. At CLOSING, the BORROWER shall pay to the BANK a commitment fee of $414,088.05,
which fee BORROWER agrees
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and acknowledges has been earned by BANK. On COMPLETION DATE, the first Annual Servicing
Fee of $30,000 shall become due, in addition, on each annual
anniversary of COMPLETION DATE
an Annual Servicing Fee of $30,000.00 shall become due, which the BORROWER shall pay to the
BANK in four equal quarterly installments, commencing three months after COMPLETION DATE,
with the final installment due on the fifth anniversary of COMPLETION DATE. BORROWER agrees
to pay BANK an unused commitment fee equal to 30 basis points of the average unused portion
of the REVOLVING LOAN COMMITMENT and of LONG TERM REVOLVING NOTE, calculated and payable on
a quarterly basis in arrears; provided, however, the unused commitment fees on same shall
not apply and be payable by the BORROWER until the COMPLETION DATE. BORROWER shall pay BANK
commitment fees equal to Two and one-quarter (2.25%) percent of outstanding Letters of
Credit issued on BORROWER’s account, together with such other fees as are consistent with
BANK’s then current International Trade Services Fee Schedule. The International Trade
Services Fee Schedule effective at the execution of this AGREEMENT is attached hereto,
marked Exhibit G, by this reference made a part hereof.
6. Effective immediately, Section 6.3.13 of the AGREEMENT is amended to read:
6.3.13
Maintain primary banking accounts (including those accounts containing BORROWER’s
equity capital) at BANK, other than as otherwise agreed by BANK. BORROWER may maintain a
depositary account at Xxxxxx Bank, with collected balances of no more than $500,000.
7. Effective immediately, Section 6.4.17 of the AGREEMENT is amended to read:
Allow the balance of its depository account at Xxxxxx Bank to have a collected funds
balance of more than $500,000 at any time.
8. 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 which, with the giving of notice or passage of time or both, would
become such an EVENT OF DEFAULT, has occurred as of this date.
9. 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:
|
/s/ Xxxxx Xxxxxx
|
By: |
/s/ Xxxxxxx X. Xxxx
|
|||||||
| Commercial Loan Officer | Name: | Xxxxxxx X. Xxxx | ||||||||
| Its: | Chairman | |||||||||
| And | ||||||||||
| BY: | /s/ Xxxxxxx X. Price
|
|||||||||
| Name: | Xxxxxxx X. Price | |||||||||
| Its: | Vice President | |||||||||
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