FIRST AMENDMENT TO SERIES E UNIT ISSUANCE AGREEMENT
Exhibit
10.3
FIRST
AMENDMENT
TO
THIS FIRST AMENDMENT TO SERIES E UNIT
ISSUANCE AGREEMENT (this “Amendment”) is
entered into as of the 2nd day of March, 2009, by and among Xxxxx X.X. Holdings,
Inc., a corporation organized and existing under the laws of Delaware (“Bunge”), Southwest
Iowa Renewable Energy, LLC, a limited liability company organized and existing
under the laws of Iowa (“SIRE,” and, together
with Bunge, the “Parties” and each
individually a “Party”), and Bunge
North America, Inc., a corporation organized and existing under the laws of New
York.
RECITALS
WHEREAS, SIRE and Bunge North America,
Inc. previously executed that Series E Unit Issuance Agreement, dated as of
March 7, 2008 (the “Agreement”);
WHEREAS, concurrently herewith, the
Bridge Loan and the ICM L/C are being renewed for an additional term, the
maximum principal amount of the Bridge Loan is being increased to $36,600,000
and the face amount of the ICM L/C is being increased to
$8,784,000;
WHEREAS,
in connection with the renewal of the Bridge Loan, Bunge will be substituted for
Bunge North America, Inc. as a Party to the Agreement and Bunge will post cash
collateral with the Bridge Lender in an amount equal to $27,816,000, as such
amount may be increased in accordance with the ICM Amendment (as hereinafter
defined) (the “Cash
Collateral”), in lieu of renewing the Bunge L/C;
WHEREAS,
in connection with the foregoing, the Parties desire to amend the Agreement as
set forth herein; and
WHEREAS, capitalized terms used and not
otherwise defined herein shall have the meanings set forth in the
Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE
I
AMENDMENTS
1.1 Global
Amendment. All references in the Agreement to “Bunge” shall
refer to Xxxxx X.X. Holdings, Inc.
Exhibit
10.3
1.2 Issuance of Series E
Units. Section 1 of the Agreement is hereby re-captioned “Issuance of
Series E Units” and is amended and restated in its entirety to read as
follows:
“If Bunge
makes any payments to the Bridge Lender (either directly or through the Bridge
Lender utilizing any Cash Collateral) which reduces amounts owed by SIRE under
or in respect of the Bridge Loan when any such amounts become due and payable
(whether such amounts consist of principal, interest, fees and/or other amounts)
(and SIRE hereby agrees that Bunge shall have the right to make any such
payments for the account and benefit of SIRE at any time in Bunge’s sole and
absolute discretion after such amounts become due and payable), then Bunge shall
notify SIRE in writing (the “Payment Notice”) of
the making of, and the amount of, any such payments made by Bunge (each, a
“Bridge Loan
Payment”) and SIRE shall immediately (but in no event later than three
(3) business days following SIRE’s receipt of the Payment Notice from Bunge of
the applicable Bridge Loan Payment) reimburse Bunge for the amount of the Bridge
Loan Payment (the “Reimbursement
Obligation”) by issuing to Bunge (no later than three (3) business days
following SIRE’s receipt of the Payment Notice from Bunge of the applicable
Bridge Loan Payment) that number of Series E Units which are determined by
dividing the amount of the Bridge Loan Payment contained in the Payment Notice
by the lesser of (y) $3,000, or (z) one-half (1/2) of the lowest purchase price
paid by any party for a Unit who acquired (or who has entered into any
agreement, instrument or document to acquire) such Unit after the date hereof
but prior to the date of the Bridge Loan Payment as part of the Private
Placement. In the event SIRE is legally prohibited from issuing Series E Units
to satisfy the Reimbursement Obligation, SIRE shall be obligated to pay Bunge
the amount of the Reimbursement Obligation in cash; provided, however, that any
such cash payment obligation is and shall be fully subordinated to the payment
in full of all of SIRE’s indebtedness, liabilities and obligations under or in
respect of the Bank Group Facility pursuant to documentation in form and
substance satisfactory to the lenders under the Bank Group Facility. For
purposes of this Agreement, “Bank Group Facility”
means the credit facility from certain lenders and AgStar Financial Services,
PCA, as administrative agent, to SIRE evidenced by that certain Credit Agreement
dated May 2, 2007, as amended by that certain First Amendment to Credit
Agreement dated as of March 7, 2008, as further amended by that certain Second
Amendment to Credit Agreement dated as of December 19, 2008, as further amended
by that certain Third Amendment to Credit Agreement dated as of December 30,
2008, as further amended by that certain Fourth Amendment to Credit Agreement
dated as of March 2, 2009, and as the same may from time to time be further
amended, modified, extended, renewed or restated. Any portion of the
Reimbursement Obligation which is not paid or satisfied in full on or before the
date which is three (3) business days following the date of SIRE’s receipt of
the Payment Notice from Bunge of the applicable Bridge Loan Payment shall bear
interest from its due date until paid in full at a rate per annum equal to the
lesser of (a) LIBOR plus nine percent (9%) per annum, and (b) the maximum rate
allowable under applicable law. “LIBOR” means the
daily average of interbank offered rates for US Dollar deposits in the London
market based on quotations at major banks, as published under the heading
“London Interbank Offered Rates (LIBOR)” in the
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Exhibit
10.3
“Money
Rates” column of The Wall Street Journal for a one month maturity, and LIBOR
shall fluctuate as and when such published rate changes.”
1.3 Preemptive Right to Purchase
Units. Section 2 of the Agreement is hereby amended by
inserting “or Bunge North America, Inc.” following “then owned by Bunge” in
clause (a) thereof.
1.4 Covenants. Section
4 of the Agreement is hereby amended as follows:
(a) Subsection
(b) of Section 4 is hereby amended by inserting “, as amended as of March 2,
2009 (the “Series C Unit Issuance Agreement”)” following the word “herewith” in
the third to last line thereof.
(b) Subsection
(d) of Section 4 is hereby amended and restated in its entirety to read as
follows:
“SIRE shall pay to Bunge a fee in an
amount equal to 6% per annum (computed on an actual day, 360 day year basis) on
the aggregate amount of the Cash Collateral (the “Fee”) and shall
reimburse Bunge for all out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys’ fees and expenses, paid or incurred by Bunge
in connection with the transactions contemplated by this Agreement and which are
documented in invoices provided to SIRE. All amounts to be paid by
SIRE pursuant to this Section 4(d) (the “Fees and Expenses
Reimbursement Amount”) shall be due and payable within three (3) business
days of the maturity date of the Bridge Loan. The Fees and Expenses
Reimbursement Amount shall be payable in cash to the extent that a cash
distribution to members of SIRE in such amount would then be permitted under the
terms of the Bank Group Facility. With respect to any portion of the
Fees and Expenses Reimbursement Amount not paid in cash in accordance with the
foregoing sentence, SIRE may, at Bunge’s choice in Bunge’s sole discretion,
deliver to Bunge that number of Series E Units which is determined by dividing
the unpaid Fees and Expenses Reimbursement Amount by the lesser of (i) $3,000 or
(ii) one half (1/2) of the lowest purchase price paid by any party for a Unit
who acquired (or who has entered into any agreement, instrument or document to
acquire) such Unit after March 7, 2008 but prior to the date of the payment of
the Fees and Expenses Reimbursement Amount as part of the Private
Placement. Any portion of the Fees and Expenses Amount not paid by
SIRE when due shall bear interest at a rate per annum equal to the lesser of (a)
LIBOR plus nine percent (9%) per annum; and (b) the maximum rate allowable under
applicable law;”
ARTICLE
II
CLOSING
CONDITIONS
This Amendment shall become effective
as of the date hereof upon satisfaction of the following
conditions:
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Exhibit
10.3
(a) Executed
Amendment. Receipt by the Parties of a fully executed
counterpart of this Amendment.
(b) Bridge
Loan. Receipt by Bunge of evidence satisfactory to Bunge of
the extension of the maturity date of the Bridge Loan to September 1,
2010.
(c) Bunge Cash
Collateral. Deposit by Bunge of $27,816,000 in cash with the
Bridge Lender as the Cash Collateral.
(d) Opinion. Receipt
by Bunge of a legal opinion of counsel to SIRE in substantially the form of
Exhibit A to
the Agreement (with such modifications as may be necessary to reflect this
Amendment).
(e) ICM
Amendment. ICM and SIRE shall have executed an amendment to
the Series C Unit Issuance Agreement between ICM and SIRE dated March 7, 2008
(the “ICM
Amendment”) and all conditions to the effectiveness of the ICM Amendment
shall have been satisfied (other than the execution and delivery of this
Amendment).
ARTICLE
III
REPRESENTATIONS
SIRE
hereby represents to Bunge as follows:
(a) the
representations and warranties made by SIRE in the Agreement are and shall be
and remain true and correct; and
(b) SIRE is in
full compliance with the terms of the Agreement applicable to it.
ARTICLE
IV
MISCELLANEOUS
4.1 Consent to ICM Unit Issuance
Agreement Amendment. Concurrently herewith, SIRE and ICM are
executing the ICM Amendment. Bunge hereby consents to the ICM
Amendment.
4.2 Amended
Terms. Except as specifically amended herein, the Agreement
shall continue in full force and effect in accordance with its original
terms. Reference to this specific Amendment need not be made in the
Agreement or any other instrument or document executed in connection therewith,
or in any certificate, letter or communication issued or made pursuant to or
with respect to the Agreement, any reference in any of such items to the
Agreement being sufficient to refer to the Agreement as amended
hereby.
4.3 Counterparts. This
Amendment may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute one and the same
instrument.
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Exhibit
10.3
4.4 Governing
Law. This Amendment and the rights and the obligations of the
parties under this Amendment shall be governed by, and construed and interpreted
in accordance with, the laws of the State of Missouri (without reference to
conflict of law principles).
4.5 Substitution of Xxxxx X.X.
Holdings, Inc. SIRE hereby acknowledges and consents to the
substitution of Xxxxx X.X. Holdings, Inc. for Bunge North America, Inc. under
the Agreement and releases Bunge North America, Inc. from any further liability
or obligation thereunder.
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5
Exhibit
10.3
IN WITNESS WHEREOF, the Parties have
executed this Amendment as of the date first written above.
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By:
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/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | ||
| Title: President & CEO | ||
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XXXXX
X.X. HOLDINGS, INC.
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By:
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/s/ Xxxxxxx X. Xxxxxx | |
| Name: Xxxxxxx X. Xxxxx | ||
| Title: Vice President | ||
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Acknowledged
and agreed to by:
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BUNGE
NORTH AMERICA, INC.
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By:
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/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | ||
| Title: Treasurer | ||
