FOURTH AMENDMENT TO CONSTRUCTION AND TERM LOAN AGREEMENT
Exhibit
10.1
FOURTH AMENDMENT
TO
THIS FOURTH AMENDMENT TO CONSTRUCTION
AND TERM LOAN AGREEMENT (“Fourth Amendment”) dated as of the 31st day of
December 2009 (the “Effective Date”), is entered into by and between SHOW ME ETHANOL, LLC, a
Missouri limited liability company (the “Borrower”) and FCS FINANCIAL, PCA, as agent
(the “Agent”) for itself and on behalf of the other Banks.
W I T N E S S E T
H:
WHEREAS, that as of March 1, 2007, the
parties hereto, along with the Banks, entered into that certain Construction and
Term Loan Agreement (the “Loan Agreement”), wherein, among other things the
Agent provided funds to Borrower in connection with the construction
of the Project; and
WHEREAS,
that as of June 2, 2008, the parties hereto entered into that certain First
Amendment to Construction and Term Loan Agreement (the “First Amendment”), on or
about December 30, 2008, the parties entered into that certain Second Amendment
to Construction and Term Loan Agreement (the “Second Amendment”) and on or about
March 31, 2009, the parties entered into that certain Third Amendment to
Construction and Term Loan Agreement (the “Third Amendment”); and
WHEREAS, Borrower and Agent hereby
desire to further amend the Loan Agreement as hereinafter set
forth;
NOW,
THEREFORE, in consideration of the foregoing and of the terms and conditions
contained in this Fourth Amendment, and of any loans or extensions of credit or
other financial accommodations at any time made to or for the benefit of
Borrower by the Banks, the Borrower, the Banks and Agent agree as
follows:
1. Principal
Payment. On or about October 7, 2008, in conjunction with the
conversion of the Construction Loan to the Term Loan, Borrower executed various
promissory notes in favor of the Banks (collectively the “Term
Notes”). On or before the execution of this Fourth Amendment,
Borrower shall make a principal payment against the Term Notes in the amount of
Two Million Four Hundred Thousand Dollars ($2,400,000.00) (the “Principal
Reduction Payment”). The Principal Reduction Payment shall be
considered a principal reduction payment and not an advance principal
payment. Despite the above referenced Principal Reduction Payment,
Borrower shall be required to make all regularly scheduled quarterly payments as
required under the Term Notes beginning with the February 2010
payment.
2. Reinstatement of
Principal Payment
Deferral. The parties hereto acknowledge and agree that
Section 2.03(c) of the Loan Agreement was amended by the Third Amendment to
allow Borrower to defer up to four (4) quarterly principal payments to the Term
Maturity Date and that one of the four deferrals included the February 1, 2009
principal payment deferment. Accordingly, as of the execution of the
Third Amendment, Borrower had three (3) additional authorized principal payment
deferrals remaining under the Term Notes. In connection with this
Fourth Amendment, Lender hereby agrees to and does reinstate the previously used
principal payment deferral, thereby bringing Borrower’s number of authorized
principal payment deferrals back to a total of four
(4). Notwithstanding anything in the Loan Agreement, as previously
amended, or herein, Borrower’s exercise of any authorized principal payment
deferral shall not serve to authorize the extension of and shall not in any way
extend Term Maturity Date as originally provided in the Loan
Agreement.
3. Representations.
(a) Borrower
Representations. Borrower is a limited liability company duly
organized, existing and in good standing under the laws of the State of Missouri
and is duly qualified to do business in the State of Missouri and in any other
state where the nature of Borrower’s business or property requires it to be
qualified to do business. Borrower has the power, authority and legal
right to enter into this Fourth Amendment and the party signing this Fourth
Amendment on behalf of Borrower is authorized to so execute this Fourth
Amendment on behalf of Borrower in accordance with a duly approved and executed
resolution of the Managers of Borrower. The party signing this Fourth
Amendment on behalf of the Borrower acknowledges and agrees that he/she has the
requisite power and authority to execute this Fourth Amendment on behalf of and
to bind the Borrower.
(b) Agent
Representations. Agent has the power, authority and legal
right to enter into this Fourth Amendment on its behalf and on behalf of the
other Banks and the party signing this Fourth Amendment on behalf of Agent is
authorized to so execute this Fourth Amendment on behalf of
Agent. The party signing this Fourth Amendment on behalf of the
Borrower acknowledges and agrees that he/she has the requisite power and
authority to execute this Fourth Amendment on behalf of and to bind the
Agent.
4. Multiple
Counterparts. This Fourth Amendment may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
5. Reaffirmation of Previous
Terms and Conditions. All of the remaining terms and
conditions of the Loan Agreement, as amended, where not inconsistent with the
above, shall remain the same and are hereby republished, reaffirmed and restated
as of the date hereof.
6. Statutory Notice Pursuant to
RSMO § 432.047.3(1).
“Oral
agreements or commitments to loan money, extend credit or to forbear from
enforcing repayment of a debt including promises to extend or renew such debt
are not enforceable, regardless of the legal theory upon which it is based that
is in any way related to the credit agreement. To protect you
(borrower(s)) and us (creditor) from misunderstanding or disappointment, any
agreements we reach covering such matters are contained in this writing, which
is the complete and exclusive statement of the agreement between us, except as
we may later agree in writing to modify it.”
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IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be
executed by their respective officers and duly authorized, as of the date first
above written.
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BORROWER:
a
Missouri limited liability company
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By:
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/s/Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | ||
| Title: | General Manager | ||
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AGENT,
for itself and on behalf of the Banks:
FCS
FINANCIAL, PCA
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By:
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/s/Xxxx Xxxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxxx | ||
| Title: | Senior Lending Officer | ||
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