FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
FIRST
AMENDMENT TO
THIS
AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”) is made as of the
2nd
day of
June, 2008 by and between SHOW
ME ETHANOL, LLC, a
Missouri limited liability company (the “Borrower”) and FCS
FINANCIAL, PCA,
a
federally chartered instrumentality (hereinafter referred to as “Lender”)
(Lender and Borrower sometimes hereinafter collectively the
“Parties”).
W
I T N E S S E T H:
WHEREAS,
on November 6, 2007, the parties hereto entered into that certain Revolving
Credit Agreement, wherein, among other things, Lender provided funds to Borrower
in connection with Project and the operation thereof; and
WHEREAS,
in connection with Borrower’s construction of the Project, Borrower experienced
cost overruns which required Borrower to obtain or raise additional funds to
complete the Project; and
WHEREAS,
while Borrower has secured additional funds from various persons that are
“Accredited Investors” in an amount not less than Three Million Dollars
($3,000,000.00) to assist in completion of the Project (the “Member Loan”);
and
WHEREAS,
Borrower has also requested that Lender increase the revolving commitment
hereunder from Five Million Dollars ($5,000,000.00) to Eight Million Dollars
($8,000,000.00), and the Lender is willing to do so on the terms and conditions
herein set forth;
WHEREAS,
Borrower and Lender hereby desire to amend the Revolving Credit Agreement as
set
forth herein;
NOW,
THEREFORE, in consideration of the foregoing and of the terms and conditions
contained in this 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 Lenders, the Borrower and Lender agree as follows:
1. General
Definitions.
The
parties hereto acknowledge and agree that Section
1.1“General
Definitions” shall be deleted in their entirety and amended as
follows:
“LC
Commitment”
shall
mean $8,000,000.00, as such amount may be reduced or terminated from time to
time pursuant to Section
4.4 or 11.1,
less
payments received with respect to the LC Obligations.”
“Matured
Default”
shall
mean the occurrence or existence of any one or more of the following
events:
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(a) any
default by Borrower under the terms of the Member Loan Documents.”
“Maturity
Date”
shall
mean June 2, 2009.”
“Member
Loan”
means
those certain loans from persons, who are “Accredited Investors” to Borrower as
evidenced by that certain Loan and Security Agreement by and among the Borrower
and the contributing person.”
“Member
Loan Documents”
means
those certain documents, including without limitation, the Loan and Security
Agreement by and among the Borrower and the contributing person, evidencing
the
Member Loan.”
“Member
Loan Lender”
means
those parties making the Member Loan as set forth in the Member Loan Documents
and on the Member Loan Subordination Agreement.”
“Revolving
Loan Commitment”
shall
mean $8,000,000.00, as such amount may be reduced or terminated from time to
time pursuant to Section
4.4 or 11.1.”
“Subordinated
Debt”
shall
mean any and all Debt of Borrower held by any person other than Lender or any
Term Lender, including, without limitation the Member Loan.”
2. LOAN.
The
parties hereto acknowledge and agree that the following items in Section
2“LOANS”
shall be deleted in their entirety and replaced with the following:
“2.1 Revolving
Loan.
(a) Subject
to the terms and conditions and relying upon the representations and warranties
herein set forth, Lender agrees to extend a revolving credit loan (the
“Revolving Loan”) to the Borrower by making loans to the Borrower on a revolving
basis on any one or more Business Days prior to the Maturity Date, up to an
aggregate principal amount not exceeding the Revolving Loan Available Amount
on
such Business Day. Within such limits and during such period and subject to
the
terms and conditions of this Agreement, the Borrower may borrow, repay and
reborrow the Revolving Loan. Subject to Section
2.3
hereof,
loans extended with respect to the Revolving Loan shall be comprised of
Revolving Base Rate Loans and/or Revolving LIBOR Rate Loans as selected by
the
Borrower. The principal amount outstanding under the Revolving Loan Commitment
shall not, at any time, exceed the Borrowing Base. If at any time the principal
amount outstanding under the Revolving Loan Commitment exceeds the Borrowing
Base, then the amount of such excess shall be immediately due and payable by
the
Borrower to the Lender. Notwithstanding the foregoing, the parties have agreed
until December 31, 2008 Borrower may, request and obtain Five Million Dollars
($5,000,000.00) of the Revolving Loan Commitment without the requirement of
sufficient Borrowing Base; provided, however, any request for funds under the
Revolving Loan Commitment above Five Million Dollars ($5,000,000.00) of
principal, outstanding at any time, shall not exceed the then available
Borrowing Base. For purposes of illustration, should Borrower request an
additional Seven Million Dollars ($7,000,000.00) under the Revolving Loan
Commitment, Borrower shall be required to document to Lender a Borrowing Base
of
Seven Million Dollars, to receive the requested funds.”
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“2.2 LCs.
(a) Subject
to the terms and conditions of this Agreement, the Borrower may from time to
time request that the Lender issue one or more LCs for the Borrower’s account
for any purpose acceptable to the Lender in its reasonable discretion;
provided,
however,
that
the Lender shall not issue any such LC if (i) such issuance would cause the
LC
Obligations to exceed $8,000,000.00 at the time of such issuance, (ii) the
face
amount of such LC exceeds the Revolving Loan Available Amount at the time of
such issuance, or (iii) the proposed expiry date for the LC is on or after
a
date which is the earlier of (A) twelve (12) months after its date of issuance
or (B) the Maturity Date.”
3. Borrower
Base Certificate.
The
parties hereto acknowledge and agree that the Borrowing Base Certificate
attached hereto as Exhibit
“B”
shall
replace the Borrowing Base Certificate attached to the Revolving Credit
Agreement as Exhibit “1B”.
4. Conditions
Precedent to this Amendment.
The
parties hereto acknowledge and agree that following shall be condition precedent
to the execution and delivery of this Amendment by the Banks and
Agent:
4.1 Execution
of the First Amendment to Construction and Term Credit Agreement.
The
Borrower and Term Loan Lender shall have entered into that certain First
Amendment to Construction and Term Credit Agreement.
4.2 Funding
of the Member Loan.
The
Agent shall have received written confirmation that the Member Loan Lenders
have
funded the Member Loan.
4.3 Execution
of the Amendment to Revolving Note.
Borrower shall have executed and delivered to Lender the Amendment to Revolving
Note, in the form attached hereto as Exhibit
“A”.
5. Consent
to Member Loan.
By
execution of this Amendment, Lender consents to the Member Loan and the creation
of additional indebtedness there under by Borrower.
6. Treatment
as Equity.
For
purposes of Sections
9.4,
9.5,
9.6
and
9.7
of the
Revolving Credit Agreement, the Member Loan shall be treated as equity rather
than Debt.
7. Multiple
Counterparts.
This
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.
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8. Reaffirmation
of Previous Terms and Conditions.
All of
the remaining terms and conditions of the 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.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of
the
date first written above.
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BORROWER:
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By
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Name
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Title
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LENDER:
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FCS
FINANCIAL, PCA
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By
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Name
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Title
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EXHIBIT
“A”
Amendment
to Revolving Note
AMENDMENT
TO REVOLVING NOTE
THIS
AMENDMENT TO REVOLVING NOTE (“Amendment”) is entered into as of the _____ day of
May, 2008, by and between SHOW ME ETHANOL, LLC, a Missouri limited liability
company (hereinafter referred to as “Borrower”), and FCS Financial, PCA,
(hereinafter referred to as “Lender”)
W
I T N E
S S E T H:
WHEREAS,
Lender is the owner and holder of a Revolving Note dated November 9, 2007,
in
the principal amount of up to Five Million Dollars ($5,000,000.00) and made
payable by Borrower to Lender (the “Revolving Note”). Except as otherwise
defined herein or unless the context otherwise requires, capitalized terms
not
defined herein shall have the meanings given such terms in the Revolving Note,
or if not defined therein, then the meanings given those terms in the Revolving
Credit Agreement (defined below); and
WHEREAS,
the Revolving Note evidences advances under the Revolving Note made pursuant
to
the terms of that certain Revolving Credit Agreement
dated November 6, 2007 (the “Revolving Credit Agreement”) between Borrower and
Lender; and
WHEREAS,
the parties hereto are executing an Amendment
to Revolving Credit Agreement
dated of
even date herewith, pursuant to which Lender increased the Revolving Loan
Commitment from Five Million Dollars ($5,000,000.00) to Eight Million Dollars
($8,000,000.00) and to shorten the term of the Revolving Loan; and
WHEREAS,
Borrower and Lender now wish to amend the Revolving Note to the extent necessary
to reflect the above-described change;
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter stated, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and intending to be legally
bound, the parties agree as follows:
1. Increase
in Revolving Loan Amount.
The
Revolving Note is hereby amended by deleting the first full paragraph of the
Revolving Note and by inserting in lieu of the deleted paragraph the following
paragraph:
“FOR
VALUE RECEIVED, the undersigned, SHOW ME ETHANOL, LLC, a Missouri limited
liability company (hereinafter referred to as “Borrower”), promises to pay to
the order of FCS Financial, PCA, (hereinafter referred to as “Lender”), at such
place as Lender may designate, in lawful money of the United States of America,
the principal sum of Eight Million Dollars ($8,000,000.00) or so much thereof
as
may be advanced and be outstanding, together with interest on any and all
principal amounts outstanding calculated in accordance with the provisions
set
forth below. This Note is issued under that certain Revolving Loan Agreement
dated November 9, 2007, as amended by that certain First Amendment to Revolving
Loan Agreement dated June 2, 2008 (as the same may be amended, replaced,
restated and/or supplemented from time to time, the “Credit Agreement”) between
Borrower and Lender.”
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2. Modification
of Maturity Date.
The
parties acknowledge and agree that the Maturity Date, as set forth in the
Revolving Note, shall be deleted in its entirety and the following insert in
its
place:
““Maturity
Date”:
shall
mean June 2, 2009.”
3. Ratification
of Revolving Note.
Borrower and Lender hereby ratify and confirm the Revolving Note, as amended
hereby, in all respects; and, except as amended hereby, the Revolving Note
shall
remain in full force and effect.
4. Attachment
of this Amendment to Revolving Note.
This
Amendment may be attached to and shall form a part of the Revolving Note for
all
purposes.
5. Counterpart
Execution.
This
Amendment may be executed in counterparts, and any number of counterparts shall
constitute one original.
6. Definitions.
Except
as otherwise defined herein or unless the context otherwise requires,
capitalized terms not defined herein shall have the meanings given those terms
in the Revolving Credit Agreement.
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a
Missouri limited liability company
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By:
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Name:
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Title:
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EXHIBIT
“B”
Borrowing
Base Certificate
This
Borrowing Base Certificate is hereby prepared and delivered in accordance with
the terms of the Credit Agreement
dated (the
"Credit Agreement"), as may be amended from time to time, between Show Me
Ethanol, LLC (the "Borrower"), FCS Financial, PCS (the "Lender")
For
the
Fiscal Period Ending:
_______________________
Date Prepared:___________________________
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Lower
of
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Cost or Market
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Availability
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A.
Accounts Receivables
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Less
Accounts Greater than 30 days
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75%
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$
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0.00
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B.
Corn and Distiller's Grain Inventory
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75%
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$
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0.00
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C.
Production Inventories
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75%
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$
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0.00
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D.
Ethanol Inventories
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75%
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$
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0.00
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D.
Total Collateral
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$
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0.00
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E.
Less accounts payable
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F.
Total Borrowing Base (D minus E)
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$
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0.00
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G.
Total Revolving Line of Credit Commitment
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$
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8,000,000.00
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H.
Maximum Borrowings on the Borrowing Base (lesser of Line F or Line
G)
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$
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0.00
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I.
Outstanding Revolving Line of Credit balance and Letters of
Credit
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J.
Availability on the Borrowing Base (Line H minus Line I)
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$
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0.00
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K.
Open Commitment
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$
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5,000,000.00
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L.
Availability on the Open Commitment (Line K minus Line I)
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$
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5,000,000.00
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M.
Total Availability (greater of line J or L)
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$
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5,000,000.00
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The
Borrower does hereby warrant (a) the Borrowing Base Certificate and attached
supporting documents
are true and accurate, (b) no information has been omitted that would cause
the
Borrowing Base
Certificate to be misleading in any material manner, (c) n
On
behalf
of the Borrower, I hereby certify the information contained herein as true
and
complete.
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By:
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| Chief Financial Officer |
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