AMENDMENT TO THE MASTER LOAN AGREEMENT
Exhibit
10.1
AMENDMENT
TO
THE
THIS
AMENDMENT is entered into as of September 16, 2009, between CoBANK, ACB (“CoBank”) and
SOUTH DAKOTA SOYBEAN
PROCESSORS, LLC, Volga, South Dakota (the “Company”).
BACKGROUND
CoBank
and the Company are parties to a Master Loan Agreement dated October 6. 2005
(such agreement, as previously amended, is hereinafter referred to as the
“MLA”). CoBank and the Company now desire to amend the MLA. For that reason, and
for valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), CoBank and the Company agree as follows:
1. A new Section
8(I) and 8J(J) of the MLA is being added in its entirety and shall read as
follows:
SECTION 8. Affirmative
Covenants. Unless otherwise agreed to in writing by CoBank while this
agreement is in effect, the Company agrees to and with respect to Subsections
8(B) through 8(G) hereof, agrees to cause each Subsidiary to:
(I) Company
Post-Closing Property Search, Mortgage and Title Policy.
(1) On
or before January 1, 2010, provide CoBank with a property search for
Company-owned property in Brookings County, South Dakota and such other counties
as CoBank may reasonably deem appropriate (the “Company Property”).
(2) On
or before June 1, 2010, provide CoBank with:
(a) new
or amended mortgage(s) or deed(s) of trust in the face amount of $55,000,000.00,
collectively, granting to CoBank a first lien (subject only to exceptions
approved in writing by CoBank) on the Company Property; and
(b) a
title commitment from a title insurance company acceptable to CoBank to issue an
ALTA lender’s policy of title insurance in the face amount of $15,000,000.00
insuring the Company mortgage(s) or deed(s) of trust to CoBank as first priority
lien(s) on the Company Property, subject only to exceptions approved in writing
by CoBank.
2
Exhibit
10.1
(3) The
Company agrees to pay 100% of the cost of such property search, commitment and
the related policy, together with such endorsements as may be reasonably
requested by CoBank, and also agrees that if, for any reason, a final lender’s
policy is not issued to CoBank by June 1, 2010, or such later date as may be
agreeable to CoBank, then an “Event of Default” shall be deemed to have occurred
under this agreement.
(J) Assignment of Hedging
Agreement. The Company will provide to CoBank by November 1, 2009, or
such later date as may be agreeable to CoBank, a duly executed copy of a
Security Agreement and Assignment of Hedging Account, in form and substance
acceptable to CoBank; and such certified board resolutions, evidence of
incumbency, and other evidence as CoBank may require that each agreement has
been duly authorized and executed.
2. Section 10(A)
of the MLA is hereby amended and restated to read as follows:
SECTION 10. Financial
Covenants. Unless otherwise agreed to in writing, while this agreement is
in effect:
(A) Working Capital. The Company
and its consolidated Subsidiaries will have an excess of consolidated current
assets over consolidated current liabilities (both as determined in accordance
with GAAP consistently applied) of not less than: (1) beginning with fiscal year
end, December 31, 2009, $7,500,000.00 at the end of each fiscal year of the
Company; and (2) $6,000,000.00 at the end of each other period for which
financial statements are required to be furnished pursuant to Section 8(11)
hereof, except that in determining consolidated current assets, any amount
available under the Revolving Term Loan Supplement (less the amount that would
be considered a current liability under GAAP if fully advanced) hereto may be
included.
3. Except as set
faith in this amendment, the MLA, including all amendments thereto, shall
continue in full force and effect as written.
IN WITNESS WHEREOF, the
parties have caused this amendment to be executed by their duly authorized
officers as of the date shown above.
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CoBANK,
ACB
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SOUTH
DAKOTA SOYBEAN
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PROCESSORS,
LLC
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By:
/s/ Xxxxx
Xxxxx
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By:
/s/ Xxxxxx
Xxxxxxxxxxxx
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Title:
Assistant Corporate
Secretary
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Title:
CEO
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Exhibit
10.1
SECURITY
AGREEMENT
This
SECURITY AGREEMENT, made and executed as of the 16th day of September,
2009, by
and among SOUTH DAXOTA SOYBEAN
PROCESSORS, LLC of Volga, South Dakota,
hereinafter referred to as “COMPANY”; COUNTRY HEDGING, INC. of Inver
Grove Heights,
Minnesota, a commodity brokerage firm, hereinafter called “BROKER”; and CoBANK, ACB, hereinafter
referred to as “CoBANK”;
WITNESSETH:
WHEREAS,
CoBANK has entered into a loan agreement (“Loan Agreement”) with the Company and
pursuant thereto has also extended revolving credit and/or term loan agreements
all extensions, renewals and amendments thereof being hereinafter referred to as
the “Loan”;
WHEREAS,
one of the purposes of the Loan is to finance margin deposits with BROKER in
Accounts #B 43500, #B 43501, #B
43502, T-Bills, and all other accounts of the COMPANY with the BROKER
whether now existing or hereafter created or acquired, hereinafter referred to
as “Accounts”, required by the COMPANY’S ordinary grain marketing operations;
and
WHEREAS,
the use of such Loan benefits both CoBANK and the COMPANY, by enabling the
COMPANY to obtain advances to liquidate indebtedness now owing by it, or which
in the future may be owing by it, including obligations to BROKER regarding the
Accounts.
NOW,
THEREFORE, for and in consideration of the mutual promises herein contained, and
for the benefits to be gained therefrom, and pursuant to the requirements of the
security provisions of the Loan Agreement requiring the COMPANY to execute such
documents as are necessary to provide a first lien on its collateral to CoBANK,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. COMPANY
AGREES:
That
COMPANY hereby grants a security interest in and assigns and transfers to
CoBANK, any balance which may remain to the credit of the Accounts upon the
closing thereof; subject, however, to the prior payment of the indebtedness of
COMPANY to BROKER. COMPANY further agrees to execute financing statements or any
other documents necessary to perfect CoBANK’s security interest in said
Accounts.
2. BROKER
AGREES:
That if
CoBANK should ever deem itself insecure, accelerate the maturity of the
aforesaid loan, or refuse to extend the aforesaid loan on its stated maturity
date or any extension thereof, CoBANK may, without any liability therefore,
request that BROKER suspend further transactions and close out the Accounts and
promptly refund all remaining margin deposits or other credits, subject to the
prior payment of all indebtedness of the COMPANY to BROKER, including fees and
commissions, directly to CoBANK for application on its loans to the COMPANY.
BROKER agrees to promptly comply with such request.
2
Exhibit
10.1
3. THE
PARTIES AGREE:
(a) That
nothing contained herein shall be construed so as to prevent COMPANY from
remaining the owner, subject to the interest of CoBANK as it may appear, of the
Accounts.
(b) CoBANK
is hereby authorized and empowered to receive from Broker, and Broker is
authorized and directed to deliver to CoBANK, copies of all Commodity Contracts’
confirmations, monthly position and ledger account statements, and all matters
pertaining to the Accounts.
(c) That
notices under the Agreement shall be sent to the parties at the following
addresses, unless otherwise directed by written Notice:
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COMPANY:
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South Dakota Soybean
Processors, LLC
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000
Xxxxxxx Xxxxxx
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||
| Xxxxx, Xxxxx Xxxxxx 00000 | ||
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BROKER:
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COUNTRY HEDGING,
INC.
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| 0000 Xxxxx Xxxxx | ||
| Xxxxx Xxxxx Xxxxxxx, XX 00000 | ||
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CoBANK:
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Vice
President
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| Commercial Agribusiness | ||
| CoBANK, ACE | ||
| 00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000 | ||
| Xxxxx, XX 00000-0000 |
(d) That
in the event the funds held in the Accounts are determined by any court of law
with valid jurisdiction to be cash for the purpose of applying any provision of
the Uniform Commercial Code, BROKER shall be deemed to be CoBANK’s agent for the
purpose of holding such cash as collateral for CoBANK.
3
Exhibit
10.1
IN
WITNESS WHEREOF, the parties have by their fully authorized representatives
executed this Agreement on the date first above written.
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COUNTRY
HEDGING INC.,
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SOUTH
DAKOTA SOYBEAN
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as
Broker
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PROCESSORS,
LLC,
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as
Company
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By:
_________________________
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By:
/s/ Xxxxxx
Xxxxxxxxxxxx
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Title:_____________________
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Title:
CEO
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CoBANK,
ACB
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By:
_____________________________
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Assistant
Corporate Secretary
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