SECOND SUPPLEMENT TO THE MASTER LOAN AGREEMENT (TERM REVOLVING LOAN)
Exhibit 10.9
SECOND SUPPLEMENT
TO THE MASTER LOAN AGREEMENT
(TERM REVOLVING LOAN)
THIS SECOND SUPPLEMENT TO THE MASTER LOAN AGREEMENT (this “Second Supplement”), dated as
of September 26, 2006, is between F & M BANK-IOWA, a bank chartered under the laws of Iowa (the
“Lender”) and CENTRAL IOWA ENERGY, LLC, an Iowa limited liability company (the “Borrower”), and
supplements and incorporates all of the provisions of that certain Master Loan Agreement, dated as
of even date herewith, between the Lender and the Borrower (as the same may be amended, modified,
supplemented, extended or restated from time to time, the “MLA”).
1. Definitions. As used in this Second Supplement, the following terms shall have the
following meanings. Capitalized terms used and not otherwise defined in this Second Supplement
shall have the meanings attributed to such terms in the MLA. Terms not defined in either this
Second Supplement or the MLA shall have the meanings attributed to such terms in the Uniform
Commercial Code, as enacted in the State of Iowa and as amended from time to time.
“Availability Date” shall have the meaning specified in Section 6 of this Second
Supplement.
“Maximum Rate” shall have the meaning specified in Section 8 of this Second
Supplement.
“Monthly Payment Date” means the first (1st) day of each calendar month.
“Outstanding Credit” means, at any time of determination, the aggregate amount of
Advances then outstanding.
“Outstanding Revolving Advance” means the total Outstanding Credit under this Second
Supplement and the Term Revolving Note.
“Request for Advance” shall have the meaning specified in Section 7(a) of this
Second Supplement.
“Revolving Advance” means an advance under this Second Supplement and the Revolving
Note.
“Term Revolving Note” means that certain promissory note to be executed and
delivered to the Lender by the Borrower on the Conversion Date pursuant to the terms and
conditions provided for in this Second Supplement and the MLA.
“Term Revolving Loan Commitment” shall have the meaning specified in Section 3 of
this Second Supplement.
“Term Revolving Loan Termination Date” shall have the meaning specified in Section 3
of this Second Supplement.
“Unused Commitment Fee” shall have the meaning specified in Section 7(d) of this
Second Supplement.
2. Conversion of Construction Loan into Term Revolving Loan. Pursuant to the terms
and conditions contained in the MLA and this Second Supplement, on the Conversion Date a portion of
the Construction Loan shall be converted into a Term Revolving Loan to be used for cash and
inventory management purposes.
(a) Conditions Precedent. In addition to the terms and conditions set forth in the
MLA, this Second Supplement and as incorporated from the Disbursing Agreement, the Lender shall not
be obligated to convert any part of the Construction Loan into a Term Revolving Loan unless and
until:
(i) Amount of Term Revolving Loan. The maximum amount of the Construction Loan that
is converted into a Term Revolving Loan shall be $5,000,000.00;
(ii) Completion Certificate. The Lender shall have received a Completion Certificate
in a form and substance satisfactory to the Lender in its sole discretion;
(iii) No Defaults. There shall have been no Events of Default under the MLA or any of
the Loan Documents prior to the Conversion Date;
(iv) Representations and Warranties. The representations and warranties contained in
the MLA and this Second Supplement are correct on and as of the Conversion Date, except to the
extent that they relate solely to an earlier date; and
(v) Marketing Agreements. The Borrower has executed marketing agreements for all
biodiesel and glycerin to be produced at the Project and provided Lender with collateral
assignments of all such agreements in form and content which is satisfactory to Lender and its
counsel and acknowledged by the non-Borrower party to all such agreements.
3. Term Revolving Loan Commitment. Lender agrees, on the terms and conditions set
forth in the MLA and this Second Supplement, to convert $5,000,000.00 of the Construction Loan into
a Term Revolving Loan on the Conversion Date, and to make one or more advances to the Borrower,
during the period beginning on the Conversion Date and ending on the Business Day immediately
preceding the Maturity Date (as hereinafter defined in this Section 3) (the “Term Revolving Loan
Termination Date”), in an aggregate principal amount outstanding at any one time not to exceed
$5,000,000.00 (the “Term Revolving Loan Commitment”). The Term Revolving Loan Commitment shall
expire at 12:00 noon Central time on the Maturity Date. Under the Term Revolving Loan Commitment
amounts borrowed and repaid or prepaid may be reborrowed at any time prior to and including the
Term Revolving Loan Termination Date provided, however, that at no time shall the sum of the
Outstanding Revolving Advances exceed $5,000,000.00.
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4. Purpose. Advances under the Loan may be used for cash and inventory management
purposes of the Borrower and its subsidiaries, including closing costs and fees associated with the
Term Revolving Loan. The Borrower agrees that the proceeds of the Loan are to be used only for the
purposes set forth in this Section 4.
5. Repayment of the Term Revolving Loan. The Borrower will pay interest on the Term
Revolving Loan on the first (1st) day of each month, commencing on the first
(1st) Monthly Payment Date following the date on which the first Advance is made on the
Term Revolving Loan, and continuing on each Monthly Payment Date thereafter until the Term
Revolving Loan Maturity Date. On the Term Revolving Loan Maturity Date, the amount of the then
unpaid principal balance of the Term Revolving Loan and any and all other amounts due and owing
hereunder or under any other Loan Document relating to the Term Revolving Loan shall be due and
payable. If any Payment Date is not a Business Day, then the principal installment then due shall
be paid on the next Business Day and shall continue to accrue interest until paid.
6. Availability. Subject to the provisions of the MLA and this Second Supplement,
during the period commencing on the date on which all conditions precedent to the initial advance
under the Term Revolving Loan are satisfied (the “Availability Date”) and ending on the Term
Revolving Loan Termination Date, advances under the Term Revolving Loan will be made as provided in
this Second Supplement.
7. Making the Advances.
(a) Revolving Advances. Each Revolving Advance shall be made, on notice from the
Borrower (a “Request for Advance”) to the Lender delivered before 12:00 Noon (Minneapolis,
Minnesota time) on a Business Day which is at least three (3) Business Days prior to the date of
such Revolving Advance specifying the amount of such Revolving Advance, provided that, no
Revolving Advance shall be made while an Event of Default exists or if the interest rate for such
LIBOR Rate Loan would exceed the Maximum Rate. Any Request for Advance applicable to a Revolving
Advance received after 12:00 Noon (Minneapolis, Minnesota time) shall be deemed to have been
received and be effective on the next Business Day. The amount so requested from the Lender shall,
subject to the terms and conditions of this Second Supplement, be made available to the Borrower
by: (i) depositing the same, in same day funds, in an account of the Borrower; or (ii) wire
transferring such funds to a Person or Persons designated by the Borrower in writing.
(b) Requests for Advances Irrevocable. Each Request for Advance shall be irrevocable
and binding on the Borrower and the Borrower shall indemnify the Lender against any loss or expense
it may incur as a result of any failure to borrow any Advance after a Request for Advance
(including any failure resulting from the failure to fulfill on or before the date specified for
such Advance the applicable conditions set forth in this Section 7 of this Second Supplement and
the MLA), including, without limitation, any loss (including loss of anticipated profits) or
expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired
by the Lender to fund such Advance when such Advance, as a result of such failure, is not made on
such date.
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(c) Minimum Amounts. Each Revolving Advance shall be in a minimum amount equal to
$50,000.00.
(d) Unused Commitment Fee. In addition to the fees payable on the Closing Date,
Borrower agrees to pay to the Lender an Unused Commitment Fee on the average daily unused portion
of such Lender’s commitment under the Term Revolving Loan from the Conversion Date until the Term
Revolving Loan Maturity Date at the rate of 0.35% per annum, payable in arrears in quarterly
installments payable on the first (1st) day of each third month after the Conversion
Date.
(e) Conditions Precedent to All Advances. The Lender’s obligation to make each
Advance under the Term Revolving Note shall be subject to the terms, conditions and covenants set
forth in the MLA and this Second Supplement, including, without limitation, the following further
conditions precedent:
(i) Representations and Warranties. The representations and warranties set forth in
the MLA and this Second Supplement are true and correct in all material respects as of the date of
the request for any Advance, except as disclosed in writing to the Lender, to the same extent and
with the same effect as if made at and as of the date thereof except as disclosed in writing to the
Lender;
(ii) No Defaults. The Borrower is not in default under the terms of the MLA, this
Second Supplement, the Related Documents or any other Material Contracts to which the Borrower is a
party and which relates to the construction of the Project or the operation of the Borrower’s
business; and
(iii) Government Action. No license, permit, permission or authority necessary for
the construction or operation of the Project has been revoked or challenged by or before any
Governmental Authority.
8. Interest Rate. Subject to the provisions of Section 2.07 and 2.08 of the MLA and
Sections 9 and 12 of this Second Supplement, the Term Revolving Loan shall bear interest at a rate
equal to the LIBOR Rate plus 325 basis points. The computation of interest, amortization, maturity
and other terms and conditions of the Term Revolving Loan shall be as provided in the Term
Revolving Note, provided, however, in no event shall the applicable rate exceed the maximum
nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for,
taken, reserved, charged, or received under applicable state or federal laws (the “Maximum Rate”).
9. Default Interest. In addition to the rights and remedies set forth in the MLA:
(i) if the Borrower fails to make any payment to Lender when due, then at Lender’s option in each
instance, such obligation or payment shall bear interest from the date due to the date paid at 2%
per annum in excess of the rate of interest that would otherwise be applicable to such obligation
or payment; (ii) upon the occurrence and during the continuance of an Event of Default beyond any
applicable cure period, if any, at Lender’s option in each instance, the unpaid balances of the
Term Revolving Loan shall bear interest from the date of the Event of Default or such later date as
Lender shall elect at 2% per annum in excess of the rate(s) of interest that would otherwise be
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in effect on the Term Revolving Loan under the terms of the Term Revolving Note; (iii) after the
maturity of the Term Revolving Loan, whether by reason of acceleration or otherwise, the unpaid
principal balance of the Term Revolving Loan (including without limitation, principal, interest,
fees and expenses) shall automatically bear interest at 2% per annum in excess of the rate of
interest that would otherwise be in effect on the Term Revolving Loan under the terms of the Term
Revolving Note. Interest payable at the Default Rate shall be payable from time to time on demand
or, if not sooner demanded, on the last day of each calendar month.
10. Late Charge. If any payment of principal or interest due under this Second
Supplement or the Term Revolving Note is not paid within ten (10) days of the due date thereof, the
Borrower shall, in addition to such amount, pay a late charge equal to five percent (5%) of the
amount of such payment.
11. Excess Cash Flow. In addition to all other payments of principal and interest
required under the MLA, the Supplements and the Notes, the Borrower shall annually remit to Lender
an amount equal to 50% of the Borrower’s Excess Cash Flow, calculated based upon the immediately
preceding fiscal year end audited financial statements, on or before 120 days after the end of each
fiscal year of the Borrower (the “Excess Cash Flow Payment”); provided, however, that the total
Excess Cash Flow Payments required hereunder shall not exceed $2,500,000.00 in any fiscal year.
Such payment shall be applied to the outstanding principal of the Term Loan or the Term Revolving
Loan at the Lender’s discretion. Any Excess Cash Flow Payment shall not be considered to be a
prepayment with respect to which a prepayment premium would apply under Section 2.10 of the MLA.
Notwithstanding the foregoing, the Excess Cash Flow Payment is not required when the Tangible
Owner’s Equity from the immediately preceding fiscal year end is greater than 70%.
12. Changes in Law Rendering Certain LIBOR Rate Loans Unlawful. In the event that any
change in any applicable law (including the adoption of any new applicable law) or any change in
the interpretation of any applicable law by any judicial, governmental or other regulatory body
charged with the interpretation, implementation or administration thereof, should make it (or in
the good-faith judgment of the Lender should raise a substantial question as to whether it is)
unlawful for the Lender to make, maintain or fund LIBOR Rate Loans, then: (a) the Lender shall
promptly notify each of the other parties hereto; and (b) the obligation of the Lender to make
LIBOR rate loans of such type shall, upon the effectiveness of such event, be suspended for the
duration of such unlawfulness. During the period of any suspension, Lender shall make loans to
Borrower that are deemed lawful and that as closely as possible reflect the terms of the MLA.
13. Maximum Amount Limitation. Anything in the MLA, this Second Supplement, or the
other Loan Documents to the contrary notwithstanding, Borrower shall not be required to pay
unearned interest on the Term Revolving Note or any of the Loan Obligations, or ever be required to
pay interest on the Term Revolving Note or any of the Loan Obligations at a rate in excess of the
Maximum Rate, if any. If the effective rate of interest which would otherwise be payable under the
MLA, this Supplement, the Term Revolving Note, or any of the other Loan Documents would exceed the
Maximum Rate, if any, then the rate of interest which would otherwise be contracted for, charged,
or received under the MLA, this Supplement, the Term
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Revolving Note, or any of the other Loan Documents shall be reduced to the Maximum Rate, if any.
If any unearned interest or discount or property that is deemed to constitute interest (including,
without limitation, to the extent that any of the fees payable by Borrower for the Loan Obligations
to the Lender under the MLA, this Supplement, the Term Revolving Note, or any of the other Loan
Documents are deemed to constitute interest) is contracted for, charged, or received in excess of
the Maximum Rate, if any, then such interest in excess of the Maximum Rate shall be deemed a
mistake and canceled, shall not be collected or collectible, and if paid nonetheless, shall, at the
option of the holder of the Term Revolving Note, be either refunded to the Borrower, or credited on
the principal of the Term Revolving Note. It is further agreed that, without limitation of the
foregoing and to the extent permitted by applicable law, all calculations of the rate of interest
or discount contracted for, charged or received by the Lender under the Term Revolving Note, or
under any of the Loan Documents, that are made for the purpose of determining whether such rate
exceeds the Maximum Rate applicable to the Lender, if any, shall be made, to the extent permitted
by applicable laws (now or hereafter enacted), by amortizing, prorating and spreading during the
period of the full terms of the Advances evidenced by the Term Revolving Note, and any renewals
thereof all interest at any time contracted for, charged or received by Lender in connection
therewith. This section shall control every other provision of all agreements among the parties to
the MLA pertaining to the transactions contemplated by or contained in the Loan Documents, and the
terms of this section shall be deemed to be incorporated in every Loan Document and communication
related thereto.
14. Security. The Borrower’s obligations hereunder and, to the extent related
thereto, the MLA, shall be secured as provided in the MLA.
IN WITNESS WHEREOF, the parties have caused this Second Supplement to the Master Loan
Agreement to be executed by their duly authorized officers as of the date shown above.
| CENTRAL IOWA ENERGY, LLC an Iowa limited liability company |
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| By: | /s/ Xxxxx Xxxxxxxx | |||||
| Name: Xxxxx Xxxxxxxx Title: Chairman |
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| F & M BANK-IOWA, a bank chartered under the laws of Iowa | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: Xxxxxx X. Xxxxxxx Its: President |
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