FIRST AMENDMENT TO
CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "Amendment"), is entered into
as of March 7, 2008, among SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa limited
liability company (the "Borrower"), AGSTAR FINANCIAL SERVICES, PCA ("AgStar"),
the additional commercial, banking or financial institutions whose signatures
appear on the signature pages hereof or which hereafter become parties hereto
pursuant to Section 8.07 of that certain Credit Agreement dated May 2, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement") (AgStar and such other additional commercial, banking or
financial institutions are sometimes referred to hereinafter collectively as the
"Banks" and individually as a "Bank"), and AGSTAR FINANCIAL SERVICES, PCA, and
its successors and assigns, as Agent (the "Agent") for itself and the other
Banks. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement.
RECITALS
A. The Borrower, the Agent and the Banks entered into a Credit Agreement
and related Loan Documents dated May 2, 2007 (the "Credit Agreement") under
which the Banks agreed to extend certain financial accommodations to the
Borrower.
B. Certain Project Cost overruns (the "Project Cost Overruns") and Events
of Default have occurred and the Borrower is in violation of certain covenants
under the Credit Agreement and the Disbursing Agreement.
C. The Borrower has requested the Banks waive all existing covenant
violations and Events of Default arising out of or related to the Project Cost
Overruns.
D. The Borrower has also requested the Banks approve a revised construction
budget and Project Sources and Uses Statement for the Project, consent to
certain additional subordinated financing for the Project, and consent to the
partial release of certain Collateral to permit the construction of an electric
utility substation to serve the Project.
E. The Banks are willing to agree to the forgoing waivers, approvals, and
consents on 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. Waiver and Consent.
1.1. Waiver. Subject to the terms and conditions of this Amendment,
the Banks hereby: (i) waive any and all covenant violations or Events of
Default as of the date of this Amendment, if any, arising out of or related
to increased Project Costs, under the Credit Agreement and Loan Documents
arising out of or related to the Project Cost Overruns; (ii) approve the
Project Sources and Uses Statement, as defined below; and (iii) consent to
the terms and conditions of the Commerce Bank Loan, as defined below. The
Borrower agrees that the Banks' waiver set forth in this Amendment is
limited to existing covenant violations and Events of Default, which are
existing and known to the Banks as of the date of this Amendment, and that
the terms and conditions of the Credit Agreement (as amended hereby), the
Amended and Restated Disbursing Agreement and all other Loan Documents
shall remain in full force and effect.
1.2. Non-waiver. The Borrower hereby affirms its obligations under the
Credit Agreement (as amended hereby), the Amended and Restated Disbursing
Agreement and the Loan Documents and agrees that this Amendment shall not
be deemed to be a waiver of any requirements of, or rights and remedies
under, the Loan Documents except as specifically provided herein.
2. Definitions, Terms and Covenants. Except as amended hereby, all
capitalized terms used and not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement.
2.1. Amended, Restated and Added Definitions. Effective as of the date
of this Amendment, the following definitions as used in the Loan Documents
are amended and restated as follows:
"Amendment" means this First Amendment to Credit Agreement dated as of
March 7, 2008, among the Borrower, the Agent, and the Banks a party
thereto.
"Borrower's Equity" means funds, consisting of member cash equity,
grants, Subordinated Debt, and earnings on such amounts, equal to
$70,000,000.00 plus the amount equal to the difference between (x) the
final Project Costs determined on the Completion Date, and (y)
$189,645,000.00.
"Bunge" means Bunge North America, Inc., a New York corporation
"Commerce Bank" means Commerce Bank, N.A..
"Commerce Bank Loan" means that certain loan made to Borrower by
Commerce Bank under that certain Promissory Note dated March 7, 2008,
in the maximum principal amount of $36,000,000.00.
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"Commerce Bank Loan Documents" means and includes that certain
Promissory Note and all other documents, instruments and agreements
evidencing the Commerce Bank Loan.
"Commerce Bank Loan Maturity Date" means March 1, 2009.
"Completion Certificate" means a certificate in form and substance
acceptable to the Agent, executed by the Borrower, the General
Contractor and the Inspecting Engineer stating that the Project is
completed and that the processing equipment and fixtures are fully
operational.
"Completion Date" means the earlier of (i) December 31, 2008, or (ii)
the date a Completion Certificate is issued for the Project.
"Disbursing Agreement" means the Amended and Restated Disbursing
Agreement dated as of the date of the Amendment, executed by the
Disbursing Agent, the Borrower and the Agent, as the same may from
time to time be amended, modified, or supplemented.
"Equity Escrow Fund" has the meaning ascribed to it in Section
5.01(u)(iii).
"Xxxxxx" means the Xxxxxx Group, Inc., and its permitted successors
and assigns.
"Xxxxxx Report" means that certain report dated February 14, 2008,
issued by Xxxxxx and delivered to the Agent.
"ICM" means ICM, Inc. a Kansas corporation.
"Interest Period" means (for each Loan) (a) initially, the period
beginning on (and including) the date on which the Loan is made and
ending on (but excluding) the first day of the next calendar month
thereafter; and (b) thereafter, each period commencing on the first
day of each succeeding calendar month thereafter and ending on the
last day of such month. Notwithstanding the foregoing: (a) any
Interest Period which would otherwise extend beyond the Maturity Date
shall end on the Maturity Date, and (b) other than the initial
Interest Period and the final Interest Period, no Interest Period
shall have a duration of less than one (1) month.
"LIBOR Rate" (London Interbank Offered Rate) means the One Month
London Interbank Offered Rate ("One Month LIBOR"), rounded upward to
the nearest ten thousandth of one percent, reported on the tenth day
of the month preceding each Interest Period by the Wall Street Journal
in its daily listing of money rates, defined therein as the average of
interbank offered rates for dollar deposits in the London market. If a
One Month LIBOR rate is not reported on the tenth day of a month, the
One Month LIBOR rate reported on the first business day preceding the
tenth day of the month will be used. If this index is no longer
available, Lender will select a new index which is based upon
comparable information.
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"Loan Documents" means (as amended, restated, supplemented or
otherwise modified from time to time) this Agreement, the Notes, the
Bank Supplements, the Letters of Credit, the Security Agreement, the
Mortgage, the Disbursing Agreement, the Issuer's letter of credit
requests and reimbursement agreements, and all other agreements,
documents, instruments, and certificates of the Borrower delivered to,
or in favor of, the Agent or the Banks under this Agreement or in
connection herewith or therewith, including all agreements, documents,
instruments, certificates delivered in connection with the extension
of Advances by the Banks, and all documents governing the Hedging
Obligations.
"Ordinary Trade Payable Dispute" means trade accounts payable, in an
aggregate amount not in excess of One Hundred Thousand and No/100
Dollars ($100,000.00) with respect to the Borrower, and with respect
to which: (a) there exists a bona fide dispute between the Borrower
and the vendor, (b) the Borrower is contesting the same in good faith
by appropriate proceedings, and (c) the Borrower has established
appropriate reserves on its financial statements.
"Plans and Specifications" means the final plans and specifications
for the construction of the Project, to be prepared by the General
Contractor and approved by the Agent, and all amendments,
modifications or supplements thereof approved by Xxxxxx and the Agent.
"Project Sources and Uses Statement" means the Project Sources and
Uses Statement dated as of January 31, 2008, attached hereto as
Exhibit A.
"Refunding Advance" shall have the meaning set forth in Section
2.03(p).
"SIRE Letters of Credit" means the letter of credit issued in favor of
Commerce Bank by UMB, N.A. in the amount of $27,360,000.00 and the
letter of credit issued in favor of Commerce Bank by Intrust Bank,
N.A. in the amount of $8,640,000.00.
"SIRE Letter of Credit Documents" means the SIRE Letters of Credit and
all other agreements, documents, instruments and certificates in
connection to the SIRE Letters of Credit.
"Subordinated Debt" means (i) One Hundred Thousand and No/100 Dollars
($100,000.00) loan from the Iowa Department of Economic Development;
and (ii) the Commerce Bank Loan.
"Sworn Construction Statement" means a sworn construction statement,
sworn to by the Borrower and the General Contractor dated as of
January 31, 2008, attached hereto as Exhibit B.
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2.2. Amended, Restated and Added Terms and Covenants. Effective as of
the date of this Amendment, the following terms as used in the Loan
Documents are amended and restated as follows:
a. Section 2.02(c). Section 2.02(c) of the Credit Agreement is
amended and restated to read as follows:
(c) Interest Rate. Subject to the provisions of this Agreement,
the outstanding principal balance of the Construction Loan shall
bear interest at a variable rate determined by the Agent to be
three hundred sixty-five (365) basis points above the LIBOR Rate
in effect on the date of the first Advance made to Borrower under
the Convertible Note, and shall thereafter be adjusted as and
when the LIBOR Rate changes. All such adjustments to the rate of
interest shall be made and become effective as of the first day
of the month following the date of any change in the LIBOR Rate
and shall remain in effect until and including the day
immediately preceding the next such adjustment (each such day
hereinafter being referred to as an "Adjustment Date"). All such
adjustments to said rate shall be made and become effective as of
the Adjustment Date, and said rate as adjusted shall remain in
effect until and including the day immediately preceding the next
Adjustment Date. Interest hereunder shall be computed on the
basis of a year of three hundred sixty five (365) days, but
charged for actual days principal is outstanding. In no event
shall the applicable rate exceed the Maximum Rate.
b. Section 2.02(g). Section 2.02(g) of the Credit Agreement is
amended and restated to read as follows:
(g) Loan in Balance, Deposit of Funds by Borrower. The Borrower
shall keep the Construction Loan in balance as provided in this
Section 2.02(g). If the Agent at any time reasonably determines
(after consultation with independent third parties when deemed
necessary or advisable by the Agent) that the amount of the
undisbursed Construction Loan proceeds and Borrower's Equity will
not be sufficient to fully pay for all costs required to complete
the construction of the Project in accordance with the approved
Plans and Specifications, whether such deficiency is attributable
to changes in the work of construction or in the Plans and
Specifications or to any other cause, the Agent may make written
demand on the Borrower to deposit in an escrow fund to be
established with the Disbursing Agent an amount equal to the
amount of the shortage determined by the Agent. The Borrower
shall then deposit the required funds with the Disbursing Agent
within ten (10) days after the date of the Agent's written
demand. No further disbursements shall be made by the Disbursing
Agent until those funds are deposited by the Borrower in the
escrow fund. Whenever the Disbursing Agent has any such funds on
deposit in such escrow fund, it shall make all future advances
for Project Costs from the escrow fund before making any further
Advances under the Construction Loan.
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c. Section 2.02(h). Section 2.02(h) of the Credit Agreement is
amended and restated to read as follows:
(h) Additional Security. The Borrower irrevocably assigns to the
Agent and grants to the Agent, for the benefit of the Banks, a
security interest in and as additional security for the
performance of the Borrower's obligations under this Agreement
and the Loan Documents, its interest in all funds held by the
Disbursing Agent, whether or not disbursed, all funds deposited
by the Borrower with the Disbursing Agent under this Agreement or
the Disbursing Agreement (including but not limited to the
Contingent Project Cost Reserve and the Equity Escrow Fund), all
governmental permits obtained for the lawful construction of the
Project, and all reserves, deferred payments, deposits, refunds,
cost savings, and payments of any kind relating to the
construction of the Project. Upon any Event of Default, the Agent
and the Banks may use any of the foregoing for any purpose for
which the Borrower could have used them under this Agreement or
with respect to the construction or financing of the Project. The
Agent and the Banks shall also have all other rights and remedies
as to any of the foregoing which are provided under applicable
law or in equity.
d. Section 2.02(p). The following shall be added as Section
2.02(p) to the Credit Agreement:
(p) Refunding Advance. The Banks agree to make a single Advance
to Borrower on the Conversion Date in an amount not to exceed the
difference between (x) the total amount of the Project Costs set
forth on the Project Sources and Uses Statement, and (y) the
actual amount of the Project Costs expended on the Project as of
the Conversion Date (the "Refunding Advance"). The Refunding
Advance shall be made available to the Borrower subject to
satisfaction of the conditions set forth below in Section
5.01(u)(ii), by (i) the Banks depositing the same in same day
funds in an account(s) specified by Borrower or (ii) the Banks
wire transferring such funds to a Person(s) designated by
Borrower in writing. The Borrower shall, and shall have the right
to, apply all of the proceeds of the Refunding Advance to the
payment of the Commerce Bank Loan to the extent it is still
outstanding.
e. Section 2.03(b). Section 2.03(b) of the Credit Agreement is
amended and restated to read as follows:
(b) Term Loan Interest Rate. Subject to the provisions of
Sections 2.03 and 2.04, the portion of the Term Loan that has not
been converted to a Fixed Rate Loan pursuant to Section 2.03(d)
shall bear interest at a rate equal to the LIBOR Rate plus three
hundred forty five (345) basis points or as otherwise provided in
Section 2.11. The rate of interest due hereunder shall initially
be determined as of the Conversion Date and shall thereafter be
adjusted as and when the LIBOR Rate changes. All such adjustments
to the rate of interest shall be made and become effective as of
the first Adjustment Date following such change in the LIBOR
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Rate. All such adjustments to said rate shall be made and become
effective as of the Adjustment Date, and said rate as adjusted
shall remain in effect until and including the day immediately
preceding the next Adjustment Date. Interest hereunder shall be
computed on the basis of a year of three hundred sixty five (365)
days, but charged for actual days principal is outstanding. In no
event shall the applicable rate exceed the Maximum Rate.
f. Section 2.03(d). Section 2.03(d) of the Credit Agreement is
amended and restated to read as follows:
(d) Conversion to Fixed Rate Loan. Subject to the provisions of
Sections 2.03(a) and 2.04, on the Conversion Date the Borrower
may convert up to but not more than fifty percent (50%) of the
Outstanding Construction Advances to a Fixed Rate Loan, bearing
interest at a rate equal to the rate listed in the "Government
Agency and Similar Issues" section of the Wall Street Journal for
the Federal Farm Credit Bank or the Federal Home Loan Bank having
a maturity approximately equal to the Maturity Date, which is in
effect at the time of the Conversion Date plus 325 basis points,
or another rate agreed upon by the Agent and the Borrower. The
Borrower shall provide written notice to the Agent at least
thirty (30) days prior to the Conversion Date of its intention to
convert any portion of the Term Loan to a Fixed Rate Loan. Such
written notice shall specify the specific dollar amount that
Borrower is electing to convert to a Fixed Rate Loan. Any amount
subject to a fixed rate of interest pursuant to this Section
shall not be subject to any adjustments under Section 2.11.
g. Section 2.04(i). Section 2.04(i) of the Credit Agreement is
amended and restated to read as follows:
(i) Interest Rate. Subject to the provisions of Sections 2.03 and
2.04, the Term Revolving Loan shall bear interest at a rate equal
to the LIBOR Rate plus three hundred forty-five (345) basis
points, or as otherwise provided in Section 2.11. The rate of
interest due hereunder shall initially be determined as of the
Conversion Date and shall thereafter be adjusted as and when the
LIBOR Rate changes. All such adjustments to the rate of interest
shall be made and become effective as of the first Adjustment
Date following such change in the LIBOR Rate. All such
adjustments to said rate shall be made and become effective as of
the Adjustment Date, and said rate as adjusted shall remain in
effect until and including the day immediately preceding the next
Adjustment Date. Interest hereunder shall be computed on the
basis of a year of three hundred sixty five (365) days, but
charged for actual days principal is outstanding. In no event
shall the applicable rate exceed the Maximum Rate.
h. Section 2.05(i). Section 2.05(i) of the Credit Agreement is
amended and restated to read as follows:
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(i) Interest Rate. The Revolving Line of Credit Loan shall
bear interest at a rate equal to the LIBOR Rate plus three
hundred forty-five (345) basis points, or as otherwise
provided in Section 2.11. The rate of interest due hereunder
shall initially be determined as of the date of the first
Advance made under the Revolving Line of Credit Note and shall
thereafter be adjusted as and when the LIBOR Rate changes. All
such adjustments to the rate of interest shall be made and
become effective as of the first Adjustment Date following
such change in the LIBOR Rate. All such adjustments to said
rate shall be made and become effective as of the Adjustment
Date, and said rate as adjusted shall remain in effect until
and including the day immediately preceding the next
Adjustment Date. Interest hereunder shall be computed on the
basis of a year of three hundred sixty five (365) days, but
charged for actual days principal is outstanding. In no event
shall the applicable rate exceed the Maximum Rate.
i. Section 2.05(h)(i). Section 2.05(h)(i) of the Credit Agreement
is amended and restated to read as follows:
(i) the aggregate amount of all Revolving Letter of Credit
Liabilities shall not at any time exceed the amount of
$5,000,000.00.
j. Section 2.06(e). Section 2.06(e) of the Credit Agreement is
amended and restated to read as follows:
(e) Swingline Interest Rate. The Swingline Loan shall bear
interest at a rate equal to the LIBOR Rate plus three hundred
forty-five (345) basis points. The rate of interest due
hereunder shall initially be determined as of the date of each
Swingline Advance and shall thereafter be initially adjusted
on the first day of the immediately succeeding calendar month.
All such adjustments to the rate of interest shall be made and
become effective as of the first Adjustment Date following
each Swingline Advance. All such adjustments to said rate
shall be made and become effective as of the Adjustment Date,
and said rate as adjusted shall remain in effect until and
including the day immediately preceding the next Adjustment
Date. Interest hereunder shall be computed on the basis of a
year of three hundred sixty five (365) days, but charged for
actual days principal is outstanding. In no event shall the
applicable rate exceed the Maximum Rate.
k. Section 2.11. Section 2.11 of the Credit Agreement is amended
and restated to read as follows:
Section 2.11. Adjustments to Interest Rate. Notwithstanding
any other provision of this Agreement, the Notes, or the
Related Documents, after the Conversion Date, the rate of
interest under any Loan which bears interest at a variable
rate, shall be adjusted according to the following schedule,
should the Tangible Owner's Equity of the Borrower, achieve
the levels set forth below:
Tangible Owner's Equity Interest Rate
----------------------- -------------
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Equal to or less than 55.00% Applicable LIBOR Rate plus 345
basis points
Greater than 55.00% and Applicable LIBOR Rate plus 320
Less than or equal to 65.00% basis points
Greater than 65.00% Applicable LIBOR Rate plus 295
and less than or equal to 75.00% basis points
Greater than 75.00% Applicable LIBOR Rate plus 275
basis points
Upon delivery of the audited financial statements pursuant to
Section 5.01(c)(i) for each fiscal year end beginning with the
first fiscal year end after the Conversion Date, the rate of
interest for any Loan which bears interest at a variable rate
shall automatically be adjusted in accordance with the
Tangible Owner's Equity set forth therein and the rates set
forth above. Such automatic adjustment to the rate of interest
shall take effect as of the first Business Day of the month
following the month in which the Agent received the related
audited financial statements pursuant to Section 5.01(c)(i).
If the Borrower fails to deliver such audited financial
statements which so sets forth the Tangible Owner's Equity
within the period of time required by Section 5.01(c)(i)
hereof or if any Event of Default occurs, the rate of interest
shall automatically be adjusted to a rate equal to the
applicable LIBOR Rate plus 345 basis points, such automatic
adjustments: (a) to take effect as of the first Business Day
after the last day on which the Borrower was required to
deliver the applicable audited financial statements in
accordance with Section 5.01(c)(i) hereof or in the case of an
Event of Default, on the date the written notice is given to
the Borrower; and (b) to remain in effect until subsequently
adjusted in accordance herewith upon the delivery of such
audited financial statements or, in the case of an Event of
Default, when such Event of Default has been cured to the
satisfaction of the Agent.
l. Section 5.01(e). Section 5.01(e) of the Credit Agreement is
amended and restated to read as follows:
(e) Tangible Net Worth. On the Completion Date the Borrower's
Tangible Net Worth shall be not less than $73,000,000.00 plus
the amount equal to the difference between (x) the final
Project Costs determined on the Completion Date, and (y)
$189,645,000.00. At the end of the first fiscal year after the
Completion Date, and continually thereafter the Borrower shall
achieve and maintain Tangible Net Worth, measured at the end
of each fiscal year, in an amount equal to the greater of: (i)
the Borrower's Tangible Net Worth at the end of the
immediately preceding fiscal year (or in the case of the end
of the first full fiscal year after the Completion Date, on
the Completion Date) plus $1,000,000.00; or (ii) the
Borrower's Tangible Net Worth at the end of the immediately
preceding fiscal
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year (or in the case of the end of the first full fiscal
year after the Completion Date, on the Completion Date) plus
Borrower's retained earnings at the end of the current
fiscal year.
m. Section 5.01(r)(iv). Section 5.01(r)(iv) of the Credit
Agreement is amended and restated to read as follows:
(iv) obtain the Agent's prior written approval of any change
in the Plans and Specifications which might adversely affect
the value of the Agent's security or which has a cost of One
Hundred Thousand and No/100 Dollars ($100,000.00) or more in
any one instance or Two Hundred Fifty Thousand and No/100
Dollars ($250,000.00) or more in the aggregate. The Agent
will have a reasonable time to evaluate any requests for
approval of any changes referred to in this Section
5.01(r)(iv). The Agent may approve or disapprove changes in
its reasonable discretion, subject to the foregoing
provisions of this Section 5.01(r)(iv). If it appears to the
Agent that any change may increase the Project Costs as set
forth in the Project Sources and Uses Statement, the Agent
may require the Borrower to deposit additional funds with
the Agent pursuant to the provisions of this Agreement in an
amount sufficient to cover the increased costs as a
condition to giving its approval;
n. Section 5.01(t). The following shall be added as Section
5.01(t) to the Credit Agreement:
(t) obtain the prior written approval of the Required Banks,
which approval shall not be unreasonably withheld, for any
acquisition or proposed acquisition by an institutional
investor other than Bunge or ICM of equity interests (other
than common equity), if such equity interests are to contain
preferential rights pertaining to dividends, distributions,
or other disbursements of income of the Borrower.
o. Section 5.01(u). The following shall be added as Section
5.01(u) to the Credit Agreement:
Section 5.01(u). Disbursing Account Deposit; Reserve Funds.
The Borrower hereby agrees that:
(i) Immediately upon the execution and delivery of the
Amendment by the Borrower, Borrower shall deposit
$34,100,000.00 into the Disbursing Account for the benefit
of the Borrower to be disbursed according to the terms and
conditions of the Disbursing Agreement.
(ii) Borrower shall deposit with the Disbursing Agent a
construction contingency fund (the "Contingent Project Cost
Reserve") in the amount of $3,253,722.00 (the "Original
Contingent Project Cost Reserve Amount"). Such Contingent
Project Cost Reserve amount is inclusive within the deposit
of
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$34,100,000.00 in (i) above. The Disbursing Agent may from
time to time in its reasonable discretion disburse amounts
from the Contingent Project Cost Reserve to pay for Project
Costs exceeding the amount set forth in the Project Sources
and Uses Statement. Immediately following any such
disbursement, the Borrower shall replenish the Contingent
Project Cost Reserve to the Original Contingent Project Cost
Reserve Amount with funds from the Equity Escrow Fund, if
any. On the Conversion Date, amounts held in the Contingent
Project Cost Reserve shall be paid to Commerce Bank to repay
the Commerce Bank Loan, so long as (x) all conditions
precedent to the conversion of the Construction Loan into
the Term Loan and into the Term Revolving Loan have been
met, (y) there exists no Events of Default, and (z) no
Subordinated Debt other than the One Hundred Thousand and
No/100 Dollars ($100,000.00) loan from the Iowa Department
of Economic Development and the Commerce Bank Loan remains
outstanding. If the Commerce Bank Loan has been paid in full
on or before the Conversion Date, amounts held in the
Contingent Project Cost Reserve shall be paid to the
Borrower.
(iii) Borrower shall deposit with the Disbursing Agent the
first $5,000,000.00 it collects as a result of any equity
offering (the "Equity Escrow Fund"). Until the Conversion
Date, funds held in the Equity Escrow Fund shall be used by
the Disbursing Agent: (a) first, to replenish the Contingent
Project Cost Reserve, and (b) second, for the payment of
Project Costs exceeding the amount set forth in the Project
Sources and Uses Statement. On the Conversion Date, amounts
held in the Equity Escrow Fund shall be paid to Commerce
Bank to repay the Commerce Bank Loan, so long as (x) all
conditions precedent to the conversion of the Construction
Loan into the Term Loan and into the Term Revolving Loan
have been met, (y) there exists no Events of Default, and
(z) no Subordinated Debt other than the One Hundred Thousand
and No/100 Dollars ($100,000.00) loan from the Iowa
Department of Economic Development and the Commerce Bank
Loan remains outstanding. If the Commerce Bank Loan has been
paid in full on or before the Conversion Date, amounts held
in the Equity Escrow Fund shall be paid to the Borrower.
p. Section 5.02(b). Section 5.02(b) of the Credit Agreement is
amended by adding the following sentence after the last sentence in
Section 5.02(b):
Notwithstanding anything to the contrary contained in this
Section 5.02(b), the Borrower may on the Conversion Date pay
a Distribution to Bunge and/or ICM , with the proceeds of
the Refunding Advance in an aggregate amount not to exceed
the Refunding Advance amount less the amount of the
Refunding Advance, if any, used by the Borrower to pay the
Commerce Bank Loan.
q. Section 5.02(i). Section 5.02(i) of the Credit Agreement is
amended and restated to read as follows:
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(i) Transfer of Assets. Sell, lease, assign, transfer, or
otherwise voluntarily dispose of any of its assets, or
permit any of its subsidiaries to sell, lease, assign,
transfer, or otherwise voluntarily dispose of any of their
assets except: (i) dispositions of inventory in the ordinary
course of business; (ii) dispositions of: (A) obsolete or
worn out equipment; (B) equipment or real property not
necessary for the operation of its business; or (C)
equipment or real property which is replaced with property
of equivalent or greater value as the property which is
disposed; and (iii) after fully funding the Equity Escrow
Fund, payment of the Commerce Bank Loan from the proceeds of
any equity offering of the Borrower.
r. Section 6.02(f). Section 6.02(f) of the Credit Agreement is
amended and restated to read as follows:
(f) The Borrower shall fail to pay any indebtedness,
including without limitation indebtedness evidenced by the
Commerce Bank Loan Document, in an amount in excess of One
Hundred Thousand and No/100 Dollars ($100,000.00) (either in
any individual case or in the aggregate) excluding
indebtedness evidenced by the Notes and excluding Ordinary
Trade Payable Disputes, or any interest or premium thereon,
when due (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise) and such
failure shall continue after the applicable grace period, if
any, specified in the agreement or instrument relating to
such indebtedness; or any other Default under any agreement
or instrument relating to any such indebtedness, or any
other event, shall occur and shall continue after the
applicable grace period, if any, specified in such agreement
or instrument, if the effect of such Default or event is to
accelerate, or to permit the acceleration of, the maturity
of such indebtedness (excluding Ordinary Trade Payable
Disputes); or any such indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the
stated maturity thereof (excluding Ordinary Trade Payable
Disputes); or
3. Conditions Precedent. The obligations of the Banks under this Amendment
are subject to the following further conditions precedent.
a. The remaining undisbursed balance of Borrower's Equity shall have
been deposited with the Disbursing Agent for administration, pursuant to
the terms of the Amended and Restated Disbursing Agreement of even date
herewith;
b. Old Republic National Title Insurance Company shall have delivered
to the Agent its consent, approval or other authorization with regard to
all real estate and title matters concerning the Project as reasonably
requested by the Agent;
c. The Required Banks shall have approved the Commerce Bank Loan
Documents;
12
d. The Required Banks shall have approved the SIRE Letter of Credit
Documents;
e. The Borrower, the Agent and the Banks shall have duly executed this
Amendment, and Borrower shall have satisfied all conditions precedent set
forth herein;
f. The Agent shall have received the Allonges to the Notes, duly
executed by the Borrower;
g. The Agent shall have received (i) copies and approved the Project
Sources and Uses Statement and the Sworn Construction Statement, and (ii)
the Xxxxxx Report;
h. UCC, tax, and judgment lien search reports listing all financing
statements and other encumbrances which name the Borrower (under its
present name and any previous name) and which are filed in the
jurisdictions in which the Borrower is located, organized or maintains
collateral, together with copies of such financing statements (none of
which shall cover the collateral purported to be covered by the Security
Agreement);
i. A certificate of the secretary of the Borrower together with true
and correct copies of: (i) the Articles of Organization of the Borrower,
including all amendments thereto, certified by the Office of the Secretary
of State of the state of its organization and dated within thirty (30) days
prior to the date hereof; (ii) the Operating Agreement of the Borrower,
including all amendments thereto; (iii) the resolutions of the Board of
governors of the Borrower authorizing the execution, delivery and
performance of this Amendment, the other Loan Documents, and all
documentation executed and delivered in connection therewith to which the
Borrower is a party; (iv) certificates of the appropriate government
officials of the state of organization of the Borrower as to its existence
and good standing, and certificates of the appropriate government officials
in each state where each corporate Borrower does business and where failure
to qualify as a foreign corporation would have a Material Adverse Effect on
the business and financial condition of the Borrower, as to its good
standing and due qualification to do business in such state, each dated
within 30 days prior to the date hereof; and (v) the names of the officers
of the Borrower authorized to sign this Amendment and the other Loan
Documents to be executed by each corporate Borrower, together with a sample
of the true signature of each such officer;
j. The legal opinion of Husch Xxxxxxxxx Xxxxxxx LLP, legal counsel for
the Borrower;
k. Evidence that the costs and expenses (including attorneys' fees and
the fees described in the Agent's letter to the Borrower dated February 1,
2008) referred to herein, to the extent incurred and invoiced, shall have
been paid in full;
l. Evidence of Borrower's commitment to the Project of the Borrower's
Equity; and
13
m. An intercreditor agreement between the Agent and Commerce Bank as
to the priority of the Agent's Security Interests in the Collateral, rights
to payment following an Event of Default, and as to such other matters as
reasonably requested by the Agent.
4. 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 Lender or to affect, modify, or impair any of the
rights of the Lender as provided in the Credit Agreement.
5. 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 powers, 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 Loan Documents are true and
correct and in full force and effect.
6. 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]
14
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 0000
XXXXXXXXX XXXX RENEWABLE ENERGY, LLC,
an Iowa limited liability company
By /s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx
Its: General Manager
By /s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx
Its: Board Chairman
15
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
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
16
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: Xxxxx 0, 0000
XXXXXXXXXXXX LIFE INSURANCE COMPANY,
as a Bank
/s/ Xxxx X. Xxxxxxxx
-----------------------------------
By: Xxxx X. Xxxxxxxx
Its: Director
Address: 0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
17
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
METLIFE BANK, N.A.,
as a Bank
/s/ Xxxxxx X. X'Xxxxx
-----------------------------------
By: Xxxxxx X. X'Xxxxx
Its: Vice President
Address: 0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000-0000
18
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", New York Branch,
as a Bank
/s/ Xxxx Xxxxx
-----------------------------------
By: Xxxx Xxxxx
Its: Executive Director
/s/ Xxxxxx Xxxxxxx
-----------------------------------
By: Xxxxxx Xxxxxxx
Its: Executive Director
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
19
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
AMARILLO NATIONAL BANK,
as a Bank
/s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------------
By: Xxxxxxx X. Xxxxxxxxxx
Its: Vice President
Address: X.X. Xxx 0
Xxxxxxxx, Xxxxx 00000
20
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
FIRST NATIONAL BANK OF OMAHA,
as a Bank
/s/ Xxxxxx Xxxxxx
-----------------------------------
By: Xxxxxx Xxxxxx
Its: Commercial Loan Officer
Address: 0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
21
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
BANK OF THE WEST,
as a Bank
/s/ Xxxxx Xxxx
-----------------------------------
By: Xxxxx Xxxx
Its: Vice President
Address: 0000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
22
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
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
23
SIGNATURE PAGE TO
FIRST AMENDMENT TO LOAN AGREEMENT
BY AND BETWEEN
SOUTHWEST IOWA RENEWABLE ENERGY, LLC,
AGSTAR FINANCIAL SERVICES, PCA (AS AGENT), AND
THE BANKS
DATED: March 7, 2008
M & I XXXXXXXX & XXXXXX BANK,
as a Bank
/s/ Xxxxx Xxxxxxx
-----------------------------------
By: Xxxxx Xxxxxxx
Its: Vice President
/s/ Xxxx Xxxxx
-----------------------------------
By: Xxxx Xxxxx
Its: Vice President
Address: 000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
24
EXHIBIT A
PROJECT SOURCES AND USES STATEMENT
[See following attached pages.]
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
SOURCES OF FUNDS
Note Payable 2400 0 1,283,250 0 0.00 1,283,250
Note payable IDED 2410 (1,667) 13,333 30,000 44.44 (16,667)
Construction Loan 2500 0 0 101,000,000 0.00 (101,000,000)
Senior Debt Revolving 2510 0 0 10,000,000 0.00 (10,000,000)
Revolving line of Credit 2520 0 0 0 0.00 0
Long Term IDED 2910 0 168,333 170,000 99.02 (1,667)
Seed Capital 3300 0 1,650,000 1,650,000 100.00 0
Member's Equity 3400 0 69,876,000 74,004,000 94.42 (4,128,000)
Member's Contribution 3403 0 4,128,000 0 0.00 4,128,000
Contributed Capital 3404 0 960,000 0 0.00 960,000
Additional Member Equity 3405 0 0 34,100,000 0.00 (34,100,000)
Grant Revenue 4900 6,769 169,480 360,000 47.08 (190,520)
Interest Income 4910 0 3,342,841 3,321,389 100.65 21,452
Contributions 4920 250 4,325 0 0.00 4,325
Other Income 4930 0 2,500 0 0.00 2,500
Loss on Disposition 4935 0 (34,084) 0 0.00 (34,084)
Rental Income 4940 0 58,983 0 0.00 58,983
--------------------------------------- ----------------
TOTAL SOURCES 5,352 81,622,962 224,635,389 36.34 (143,012,427)
USES OF FUNDS
CASH AND NONCASH ACCRUALS
Cash - Checking - Frontier 1025 (140,309) 1,028,829 0 0.00 1,028,829
Xxxxx Cash Frontier2-07 1027 543 962 0 0.00 962
Construction Fund 1040 0 1,871,461 0 0.00 1,871,461
First Nat'l Payroll account 1041 (28,139) 45,188 0 0.00 45,188
Accounts Receivable 1100 (1,032) 6,769 0 0.00 6,769
Accumulated Depreciation 1890 (1,143) (11,804) 0 0.00 (11,804)
Prepaid Insurance 1160 (8,139) 18,294 0 0.00 18,294
Prepaid Office Rent 1166 0 3,525 0 0.00 3,525
Prepaid Taxes 1170 0 5,223 0 0.00 5,223
Accounts Payable 2000 (2,830,762) (23,347,427) 0 0.00 (23,347,427)
Accrued Expenses 2020 25,322 (84,314) 0 0.00 (84,314)
Retainage payable 2060 0 (3,968,097) 0 0.00 (3,968,097)
State WH Payable 2101 3,645 (1,830) 0 0.00 (1,830)
Unemployment Fed Payable 2110 114 (232) 0 0.00 (232)
Unemployment State Payable 2112 (241) (344) 0 0.00 (344)
--------------------------------------- ----------------
(2,980,140) (24,433,798) 0 0.00 (24,433,798)
PLANT CONSTRUCTION COSTS
Construction Contract 1300 0 69,767,728 118,000,000 59.13 (48,232,272)
Construction Sales Tax 1301 321,579 570,718 3,268,693 17.46 (2,697,975)
Admin Building 1305 25,000 109,777 660,000 16.63 (550,223)
Office Equipment 1310 0 39,867 80,000 49.83 (40,133)
Computers, Software, Network 1315 5,954 42,543 300,000 14.18 (257,458)
Office Equipment Other-Signage 1316 0 0 0 0.00 0
Construction Ins-Builders Risk 1325 0 267,618 400,000 66.90 (132,382)
Capitalized Interest 1330 0 0 5,400,000 0.00 (5,400,000)
Construction Contingency 1335 0 0 3,253,722 0.00 (3,253,722)
Steam Infrustructure Costs 1350 538,844 3,108,365 20,632,955 15.07 (17,524,590)
Grain Storage and DDGS Handling 1355 503,353 9,069,553 9,612,977 94.35 (543,424)
Emissions Monitoring 1356 0 0 300,000 0.00 (300,000)
Back up boilers 1358 0 0 6,670,000 0.00 (6,670,000)
Power Distribution 1360 238,927 283,640 3,904,273 7.26 (3,620,633)
Engineering 1802 0 40,008 0 0.00 40,008
--------------------------------------- ----------------
1,633,657 83,299,816 172,482,620 48.29 (89,182,804)
3/17/2008 at 2:07 p.m. Prepared by Management Page: 1
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
SITE COSTS
Land 1400 0 2,064,090 2,064,090 100.00 0
Site Engineering (Survey& Bori 1405 0 114,835 1,162,216 9.88 (1,047,381)
Site Fencing 1410 0 77,802 237,000 32.83 (159,198)
Site Improvements 1415 18,455 5,154,387 5,410,275 95.27 (255,888)
Hard Surface Roads 1420 0 0 1,400,600 0.00 (1,400,600)
Site Maintenance 1425 0 0 0 0.00 0
Site Utilities 1430 8,320 497,259 435,070 114.29 62,189
Permitting 1435 0 1,145 300,000 0.38 (298,855)
Security Fence 1440 0 2,004 0 0.00 2,004
--------------------------------------- ----------------
26,775 7,911,523 11,009,251 71.86 (3,097,728)
NATURAL GAS 0 0 1,807,000 0.00 (1,807,000)
--------------------------------------- ----------------
0 0 1,807,000 0.00 (1,807,000)
SCALES y& PROBE 0 0 750,000 0.00 (750,000)
--------------------------------------- ----------------
0 0 750,000 0.00 (750,000)
RAILROAD
Mainline Rail Switch 1500 0 0 0 0.00 0
Yard Rail Switch 1505 0 0 0 0.00 0
Rail Track 1510 1,140,219 3,556,378 4,521,461 78.66 (965,083)
Rail Development Engineering 1511 17,224 131,204 200,000 65.60 (68,796)
Railroad Contingency 1515 0 40,000 40,000 100.00 0
Rail Infrastructure 1525 0 1,314,825 1,669,938 78.73 (355,113)
Rail Spur Development 1530 0 1,967,839 5,203,884 37.81 (3,236,045)
--------------------------------------- ----------------
1,157,444 7,010,247 11,635,283 60.25 (4,625,036)
FIRE PROTECTION/WATER SUPPLY
Fire Protection Loop 1600 0 471,759 522,648 90.26 (50,889)
Fire Protection Equipment 1605 0 0 0 0.00 0
Fire Water Pumps y& Hydrants 1610 0 0 487,060 0.00 (487,060)
Xxxxx or Water System Access 1615 0 66,504 612,543 10.86 (546,039)
Water System Pump 1620 0 10,564 10,900 96.92 (336)
Drain Field y& Septic Tank 1625 0 625 0 0.00 625
Water Treatment System 1630 0 417,407 2,030,000 20.56 (1,612,593)
Process Building Fire Suppress 1640 0 320 0 0.00 320
Blow Down Pond 1645 0 0 0 0.00 0
--------------------------------------- ----------------
0 967,178 3,663,151 26.40 (2,695,973)
ROLLING STOCK
Rolling Stock 1730 0 9,737 2,000,000 0.49 (1,990,263)
--------------------------------------- ----------------
3/17/2008 at 2:07 p.m. Prepared by Management Page: 2
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
0 9,737 2,000,000 0.49 (1,990,263)
FINANCING COSTS
Financing Costs *** 1900 0 2,419,153 1,618,824 149 800,329
Loan Origination Fees 1905 0 0 0 - 0
Bank Commitment Fee 1910 0 149,995 150,000 100 (5)
Bank Annual Service Fee 1920 0 0 0 - 0
Construction Inspections 1925 0 0 0 - 0
Bank Attorney Fees 1930 0 132,710 132,710 100 0
Title Insurance 1935 0 71,676 72,000 100 (324)
Disbursement Agent fee 1940 0 5,000 5,000 100 0
Appraisal Cost 1945 0 25,500 25,500 100 0
--------------------------------------- ----------------
0 2,804,034 2,004,034 140 800,000
PRE PRODUCTION PERIOD COSTS
Preproduction - Start-Up Costs 5300 0 2,589 50,000 5 (47,411)
Preproduction - Admin Labor 5310 30,418 443,657 837,670 53 (394,013)
Employment expenses 5311 649 83,527 150,000 56 (66,473)
Preproduction Production Labor 5320 0 0 462,000 - (462,000)
Preproduction - Utilities 5330 10,465 137,856 170,000 81 (32,144)
Rail Leases 5335 0 0 0 - 0
Training costs 5340 (496) 12,046 100,000 12 (87,954)
Operating Costs 5350 0 401 30,000 1 (29,599)
--------------------------------------- ----------------
41,036 680,076 1,799,670 38 (1,119,594)
INVENTORY-WORKING CAPITAL
Inventory - Corn 1205 0 0 3,500,000 0.00 (3,500,000)
Inventory - Ethanol 1210 0 0 5,300,000 0.00 (5,300,000)
Inventory - Chemicals y& Ingred 1215 0 0 800,000 0.00 (800,000)
Spare Parts 1225 0 0 750,000 0.00 (750,000)
Working Capital 1240 0 0 1,000,000 0.00 (1,000,000)
Inventory DDGS 1245 0 0 1,300,000 0.00 (1,300,000)
--------------------------------------- ----------------
0 0 12,650,000 0.00 (12,650,000)
ORGANIZATIONAL COSTS
ENTITY ORGANIZATION
Organizational - Legal 5000 0 11,976 15,000 80 (3,024)
Organizational - Accounting 5010 0 0 0 - 0
Organizational - Misc 5020 65 33,627 35,000 96 (1,373)
--------------------------------------- ----------------
65 45,603 50,000 91 (4,397)
COST OF RAISING CAPITAL
Cost of Rasing Capital 3940 0 139,889 145,000 96 (5,111)
--------------------------------------- ----------------
0 139,889 145,000 96 (5,111)
3/17/2008 at 2:07 p.m. Prepared by Management Page: 3
Southwest Iowa Renewable Energy, LLC
(Development Stage)
Construction Budget
Period From (Date of Inception) to January 31, 2008
Inception to
ID Current Date Budget % Variance
-- ------- ------------ ------ - ------------
OPERATING
Office expense 6000 841 11,165 25,000 45 (13,835)
Office labor 6010 4,016 151,727 200,000 76 (48,273)
Office equipment/supplies 6020 (448) 17,746 28,000 63 (10,254)
Telephone 6030 1,036 14,761 23,000 64 (8,239)
Internet service 6040 563 2,621 7,500 35 (4,879)
Postage and printing 6050 1,545 28,716 40,000 72 (11,284)
Rent 6060 3,525 53,886 65,000 83 (11,114)
License and fees 6070 0 310 2,000 16 (1,690)
Directors meeting expense 6200 16,031 336,333 522,480 64 (186,147)
Director travel expense 6210 (354) 16,405 28,000 59 (11,595)
Travel expenses 6215 3,884 44,765 65,000 69 (20,235)
Member meeting expenses 6216 0 8,197 15,000 55 (6,803)
Payroll tax expense 6230 4,352 34,528 130,000 27 (95,472)
Employee Benefits 6241 3,480 23,592 132,000 18 (108,408)
Accounting fees 6400 18,250 139,486 227,000 61 (87,514)
Legal 6410 39,407 766,738 1,082,000 71 (315,262)
Consulting fees 6420 14,310 404,112 475,000 85 (70,888)
Professional Fees 6425 769 16,741 150,000 11 (133,259)
Membership Meetings 6440 0 771 7,500 10 (6,729)
Conference Fees 6441 10 6,412 12,000 53 (5,589)
General meeting 6445 738 3,310 3,500 95 (190)
Membership Fees 6450 0 305 2,000 15 (1,695)
Bank charges 6600 0 10,110 14,000 72 (3,890)
Depreciation 6610 1,143 11,804 44,000 27 (32,196)
Miscellaneous expense 6620 563 56,128 70,000 80 (13,872)
Donations 6630 0 100,000 100,000 100 0
Dues & subscriptions 6640 2,601 9,519 9,800 97 (281)
Insurance-operations 6650 0 0 20,000 - (20,000)
Insurance-D&O 6660 5,945 98,637 165,000 60 (66,363)
Insurance-Bond 6662 75 1,309 7,500 17 (6,191)
Insurance-Workers Comp 6663 343 3,485 19,800 18 (16,315)
Insurance-Gen Liability 6664 1,939 35,271 62,000 57 (26,730)
Insurance-Land Title 6665 0 300 300 100 0
Insurance-Railroad Prot 6666 0 4,658 5,000 93 (342)
Interest 6670 0 1,804 2,000 90 (196)
Property taxes 6680 0 672 35,000 2 (34,328)
Advertising 6690 0 1,217 8,500 14 (7,283)
Project coordinator 6800 0 362,492 362,500 100 (8)
Project coordinator Expansion 6801 0 30,000 30,000 100 0
Permitting 6810 0 4,699 60,000 8 (55,301)
Site/land improvements 6820 0 37,001 42,000 88 (4,999)
Site Assessments 6825 1,210 330,820 340,000 97 (9,180)
--------------------------------------- ----------------
125,774 3,182,552 4,639,380 69 (1,456,828)
--------------------------------------- ----------------
PRE PRODUCTION TOTAL 125,839 3,368,044 4,834,380 70 (1,466,336)
--------------------------------------- ----------------
TOTAL USES 4,611 81,616,857 224,635,389 36 (143,018,532)
--------------------------------------- ----------------
TOTAL SOURCES 5,352 81,610,726 224,635,389 36 (143,024,663)
--------------------------------------- ----------------
TOTAL SOURCES LESS USES 741 $ 5,364 $ 0 $ 5,364
==============================================================
=========================================================================================================
*** Includes RDA shares issued for services rendered in the amount of $800,000
---------------------------------------------------------------------------------------------------------
3/17/2008 at 2:07 p.m. Prepared by Management Page: 4
EXHIBIT B
SWORN CONSTRUCTION STATEMENT
[See following attached pages.]
SWORN CONSTRUCTION STATEMENT Attachment 6
OWNER: Southwest Iowa Renewable Energy, LLC
PROPERTY AT: 00000 000xx Xxxxxx, Xxxxxxx Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------------------------
SIRE As of 1-31-2008
---------------------------------------------------------------------------------------------------------------------------------------------------
IMPORTANT NOTICE: This statement must be complete as to names of all persons and companies furnishing labor and/or material on the premises herein.
Any increase in cost, from changes in construction or otherwise, must be forthwith reported to the DISBURSING AGENT with additional deposits to
cover such increase in cost.
---------------------------------------------------------------------------------------------------------------------------------------------------
Amounts
Bids or Remaining
Bids or for Signed
ITEMS FURNISH BY Budget Contracts AMT PAID Contracts
---------------------------------------------------------------------------------------------------------------------------------------------------
1 Plant Construction Costs
---------------------------------------------------------------------------------------------------------------------------------------------------
ICM Fixed Price Contract $118,000,000 $48,042,404 $69,957,596
---------------------------------------------------------------------------------------------------------------------------------------------------
2 Builders Risk(thru 1 May 08) IMA, Ins $267,618 $267,618 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
Builders Risk(thru 1 Sept 08) IMA, Ins $132,382
---------------------------------------------------------------------------------------------------------------------------------------------------
3 Steam System(Turbine, Building, Etc) ICM Fixed Price Contract $19,882,955 $2,497,537
---------------------------------------------------------------------------------------------------------------------------------------------------
3 Steam System(Turbine, Start Up/Cleaning) ICM $750,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Engineering & Contract Administration HGM Opinion $23,628
---------------------------------------------------------------------------------------------------------------------------------------------------
4 Grain and DDGS Storage and Handling Xxxx & Sargents $9,612,977 $7,399,640 $2,213,338
---------------------------------------------------------------------------------------------------------------------------------------------------
0 Xxxx Xxxx
---------------------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Grading Petersons $1,760,548 $1,667,031 $93,517
---------------------------------------------------------------------------------------------------------------------------------------------------
North Grading Completion Xxxxxxxx
Construction
and Excavation $345,285 $294,043 $51,242
---------------------------------------------------------------------------------------------------------------------------------------------------
South Grading Xxxxxxxx
Construction
and Excavation $2,135,488 $1,945,137 $190,351
---------------------------------------------------------------------------------------------------------------------------------------------------
Other-Misc MidAm/Culvert/BNSF Issues MidAm/Xxxxxxxx $167,172
---------------------------------------------------------------------------------------------------------------------------------------------------
Rail Bridge Xxxxx $1,669,938 $1,007,758 $662,180
---------------------------------------------------------------------------------------------------------------------------------------------------
Rail Construction Colo $971,565
---------------------------------------------------------------------------------------------------------------------------------------------------
Rail Construction Inner Loop $997,192
---------------------------------------------------------------------------------------------------------------------------------------------------
Direct Purchase of Rail Materials XX Xxxxxx/Narstco/
Progress Rail $3,507,544
---------------------------------------------------------------------------------------------------------------------------------------------------
Engineering & Contract Administration HGM Opinion $227,242
---------------------------------------------------------------------------------------------------------------------------------------------------
Channel Assemblies thru loadout building Drake Xxxxxxxx $40,552 $40,794
---------------------------------------------------------------------------------------------------------------------------------------------------
CBEC Option $40,000 $40,000 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
6 Site Costs
---------------------------------------------------------------------------------------------------------------------------------------------------
Geopiers Petersons $1,704,260 $1,704,260 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
Plant Grading Xxxxxxxx
Construction
and Excavation $3,560,448 $3,459,858 $100,590
---------------------------------------------------------------------------------------------------------------------------------------------------
Site Utilities
---------------------------------------------------------------------------------------------------------------------------------------------------
Fire Loop/Tank supply line Midwest
Underground $388,341 $388,341 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
Potable Water Main/Sanitary Sewers Midwest
Underground $145,207 $107,177 $38,030
---------------------------------------------------------------------------------------------------------------------------------------------------
Process Water Xxxxx Xxxxx Western $245,455 $0 $245,455
---------------------------------------------------------------------------------------------------------------------------------------------------
Potable Water Xxxxx $18,999 $0 $18,999
---------------------------------------------------------------------------------------------------------------------------------------------------
Other Utilites
---------------------------------------------------------------------------------------------------------------------------------------------------
Septic Tanks D&D Septic $25,684 $25,684 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
Well Testing Xxxxx $12,905 $12,905 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Power/Tanks ABC Electric $161,937 $161,938
---------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Power - MidAm MidAm $27,710 $27,710
---------------------------------------------------------------------------------------------------------------------------------------------------
Temporary Power - ICM ICM $40,989
--------------------------------------------------------------------------------------------------------------------------------------------------
Non-contact Process Water Main HGM Opinion $309,501
---------------------------------------------------------------------------------------------------------------------------------------------------
Fire Pumps, Hydrants, Monitors ICM Fixed Price
Contract $487,060
---------------------------------------------------------------------------------------------------------------------------------------------------
Fencing & Gating American Fence $237,000 $79,806
---------------------------------------------------------------------------------------------------------------------------------------------------
Landscaping HGM Engineer
Opinion $100,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Containment(Storage Tanks) HGM Opinion $250,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Engineering & Contract Administration HGM Opinion $972,216 $225,030
--------------------------------------------------------------------------------------------------------------------------------------------------
Ground Soil Compaction Testing HGM Opinion $190,000 $164,945
---------------------------------------------------------------------------------------------------------------------------------------------------
7 Road/Parking Lot Paving HGM Engineer
Opinion $1,400,600
---------------------------------------------------------------------------------------------------------------------------------------------------
Permitting Bunge & ICM
Engineer Est $300,000 $5,095
---------------------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------------------------
Electrical
---------------------------------------------------------------------------------------------------------------------------------------------------
8 SIRE Permanent Power ICM Fixed
Price Contract $1,328,800 $66,087
---------------------------------------------------------------------------------------------------------------------------------------------------
8 Engineer Design Grain Hndlng Automation Interstates
Engineering $235,000 $23,186
---------------------------------------------------------------------------------------------------------------------------------------------------
9 Electrical Installation Grain Hndlng Interstates
Esitmate with
ICM Agreement $2,265,000
---------------------------------------------------------------------------------------------------------------------------------------------------
10 Electrical - MidAm Power line Relocation HGM Engineer
Opinion $75,473
---------------------------------------------------------------------------------------------------------------------------------------------------
Backup Boilers & Building Proposal
Xxxxxxxxx $6,670,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Natural Gas Piping Proposal Northern $1,807,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Scales & Probe
---------------------------------------------------------------------------------------------------------------------------------------------------
11 Two Truck Scales Scales Sales
& Service (Contract) $116,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Grain Hndlng Accounting Software Xxxx Deer
Agri-Services
(Proposal) $99,000
---------------------------------------------------------------------------------------------------------------------------------------------------
12 Scales & Probe Bldg Bunge Engineering
Estimate $535,000
---------------------------------------------------------------------------------------------------------------------------------------------------
13 Water Treatment ICM Fixed Price
Contract $2,030,000 $600
---------------------------------------------------------------------------------------------------------------------------------------------------
14
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15 Land Pottawattamie County $2,064,090 $780,840 $1,283,250
---------------------------------------------------------------------------------------------------------------------------------------------------
16 Continious Emissions Monitoring Equipment ICM Estimate
Based
on Experience $300,000
---------------------------------------------------------------------------------------------------------------------------------------------------
17 Administrative Building Prairie
Construction $660,000 $22,646
---------------------------------------------------------------------------------------------------------------------------------------------------
18 Office Equipment Various $80,000 $39,781
---------------------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------------------------
Amounts
Bids or Remaining
Bids or for Signed
ITEMS FURNISH BY Budget Contracts AMT PAID Contracts
---------------------------------------------------------------------------------------------------------------------------------------------------
Computers, Software, Network Various $300,000 $46,326
---------------------------------------------------------------------------------------------------------------------------------------------------
19 Capitalized Interest AgStar $5,400,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Construction Contingency $3,268,693
---------------------------------------------------------------------------------------------------------------------------------------------------
20 Sales Tax Contingency $3,253,722
---------------------------------------------------------------------------------------------------------------------------------------------------
21 Financing Costs
---------------------------------------------------------------------------------------------------------------------------------------------------
AgStar $368,000 $1,046,000 $1,046,000 $0
---------------------------------------------------------------------------------------------------------------------------------------------------
Pre-Production Period Costs $1,799,670 $666,907
---------------------------------------------------------------------------------------------------------------------------------------------------
22 Organizational & Development $5,424,414 $3,816,013
---------------------------------------------------------------------------------------------------------------------------------------------------
Cost of Raising Capital $139,999
---------------------------------------------------------------------------------------------------------------------------------------------------
23
---------------------------------------------------------------------------------------------------------------------------------------------------
24 Rolling Stock $2,000,000
---------------------------------------------------------------------------------------------------------------------------------------------------
25 Working Capital (Assumes $15M Revolver +$10M Additional Available)
---------------------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Cash $1,000,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Corn $3,500,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Chemicals &
Ingredients $800,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Spare Parts $750,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital Ethanol $5,300,000
---------------------------------------------------------------------------------------------------------------------------------------------------
Inventory Working Capital DDGS $1,300,000
---------------------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------------------------
SUBTOTAL $56,851,214 167,784,175 $76,463,964 74,854,548
---------------------------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------------------------
**Proposals or contracts have not been completed
STATE OF Iowa)
> SS.
COUNTY OF Pottawattamie)
The undersigned being first duly sworn, each for himself, as General Contractor and Borrower, deposes and says that the foregoing
are the names of all parties having contracts or subcontracts for specified portions of the work on said property and building or
material entering into the construction thereof, and the amounts due and to become due to each of said parties, that the items
mentioned include all labor and material required to complete said buildings according to plans and specifications, that there are
no other contracts outstanding; and that there is nothing due or to become due to any person for material, labor or other work of
any kind done upon said building other than as above stated.
The undersigned further deposes and says that no increase in the cost of construction will be made under any circumstances without
furnishing information on same to the DISBURSING AGENT with additional deposits to cover such increase; that, in the event of any
such increase, no orders or claims will be made to said company until such information and additional deposits shall have been
completed; that the purpose of said statement is to induce said company to pay out the proceeds of a loan of $111,000,000 secured
by a mortgage on said property; and that, upon payment of the specific unpaid items listed herein, the undersigned General
Contractor hereby agrees to waive all claims of priority to said mortgage and both parties herein will save said company harmless
as to any claims of priority of lien for any labor or material, furnished or to be furnished, for completion of construction.
/s/ Xxx Xxxxx
---------------------------------
Treasurer, Board Member
The foregoing instrument was acknowledged before me this 21st day of February, 2008.
/s/ Xxxxx Xxxxxx
--------------------------------
NOTARY STAMP:
Signature of Notary Public
