FIRST AMENDMENT TO SERIES C UNIT ISSUANCE AGREEMENT
Exhibit 10.2
FIRST
AMENDMENT
TO
THIS FIRST AMENDMENT TO SERIES C UNIT
ISSUANCE AGREEMENT (this “Amendment”) is
entered into as of the 2nd day of March, 2009, by and among ICM, Inc., a
corporation organized and existing under the laws of Kansas (“ICM”), and Southwest
Iowa Renewable Energy, LLC, a limited liability company organized and existing
under the laws of Iowa (“SIRE,” and, together
with ICM, the “Parties” and each
individually a “Party”).
RECITALS
WHEREAS, the Parties previously
executed that Series C 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, Xxxxx X.X. Holdings, Inc.
will post cash collateral with the Bridge Lender in an amount equal to
$27,816,000 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.
1.2 Issuance of Series C Units
with Respect to L/C. Section 1 of the Agreement is hereby
amended and restated in its entirety to read as follows:
“(a) If
(i) the ICM L/C Bank makes any payment to the Bridge Lender under or in respect
of the ICM L/C or (ii) ICM makes any payment to the Bridge Lender
which
Exhibit 10.2
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 ICM shall have
the right to make any such payments for the account and benefit of SIRE at any
time in ICM’s sole and absolute discretion after such amounts become due and
payable), then ICM shall notify SIRE in writing (the “L/C Payment Notice”)
of the making of, and the amount of, any such payments made by the ICM L/C Bank
or ICM pursuant to (i) or (ii) above (each a “Periodic Bridge Loan
Payment”) and SIRE shall reimburse ICM for such Periodic Bridge Loan
Payment in accordance with Section 1(c) below.
(b) If at
any time ICM desires to acquire Series C Units and have the proceeds of such
investment applied as a prepayment to the Bridge Lender (the “Bridge Loan
Prepayment” and, together with any Periodic Bridge Loan Payment, each a
“Bridge Loan
Payment”), ICM shall provide SIRE and Bunge with at least thirty (30)
days’ prior written notice of the same, which notice shall state the proposed
date on which ICM shall pay SIRE amounts as a Bridge Loan Prepayment (the “Prepayment Date”) and
the amount thereof (which shall be in an amount equal to (1) a minimum of
$1,000,000 and in $250,000 increments thereafter or (2) the then-current Maximum
Liability (as defined in the ICM L/C)). At any time prior to the
Prepayment Date, SIRE may make a payment to the Bridge Lender in an amount equal
to all or any portion of the Bridge Loan Prepayment amount or Bunge may deliver
to the Bridge Lender cash collateral or a letter of credit for the benefit of
the Bridge Lender in an amount equal to all or any portion of the Bridge Loan
Prepayment amount (each such event an “ICM Release
Event”). SIRE shall provide ICM with written notice of the
occurrence of an ICM Release Event. In the event the ICM Release
Event does not occur prior to the Prepayment Date, SIRE shall issue the Series C
Units to ICM for such Bridge Loan Prepayment in accordance with Section 1(c)
below and apply the proceeds thereof as a payment to the Bridge
Lender. SIRE agrees to execute any and all agreements, instruments
and other documents as may be required under the terms of the Bridge Loan or the
ICM L/C to reduce the face amount of the ICM L/C (or terminate the ICM L/C, as
the case may be) in the event of a Bridge Loan Prepayment or an ICM Release
Event.
(c) In
the event ICM makes a Bridge Loan Payment, SIRE shall immediately (but in no
event later than three (3) business days following (i) the Prepayment Date (in
the case of a Bridge Loan Prepayment) or (ii) SIRE’s receipt of the L/C Payment
Notice (in the case of a Periodic Bridge Loan Payment)) reimburse ICM for the
amount of the Bridge Loan Payment (the “L/C Reimbursement
Obligation”) by issuing to ICM that number of Series C Units which are
determined by dividing the amount of the Bridge Loan Payment 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
Bridge Loan Payment as part of the Private Placement. In the event of
an issuance of Series C Units in connection with the reimbursement of a Bridge
Loan Prepayment in an amount equal to the then-current Maximum Liability, SIRE
shall also cause the Bridge Lender to return the original ICM L/C for
cancellation. Any portion of the L/C Reimbursement Obligation which
is not paid or satisfied in full on or before the date
2
Exhibit
10.2
which is three (3) business days following (i) the Prepayment Date
(in the case of a Bridge Loan Prepayment) or (ii) the date of SIRE’s receipt of
the L/C Payment Notice (in the case of a Periodic Bridge Loan Payment) shall
bear interest from its due date until paid in full at a rate per annum equal to
the lesser of (i) ____% per annum and (ii) the maximum rate allowable under
applicable law (such interest rate, determined in accordance with (i) or (ii)
above, the “Effective
Rate”). “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 “Money Rates” column of the The
Wall Street Journal for the one month maturity.”
1.3 Covenants. Section
4 of the Agreement is hereby amended as follows:
(a) Section
4(b) of the Agreement is hereby amended and restated in its entirety to read as
follows:
“in the
event that Bunge makes any payments to the Bridge Lender (either directly or
through the Bridge Lender utilizing any cash collateral previously posted by
Bunge) which reduces amounts owed by SIRE under or in respect of the Bridge Loan
(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 when any such amounts become due and payable 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 SIRE shall either reimburse Bunge for the
amount of such payments (on a pro-rata basis with SIRE’s payments of the L/C
Reimbursement Obligation) or in lieu thereof issue to Bunge Series E Units as
set forth in that certain Series E Unit Issuance Agreement between SIRE and
Bunge dated March 7, 2008, as amended, modified, supplemented and restated from
time to time, and SIRE shall not issue any other series of Units to Bunge in
connection with any such payments made by Bunge. SIRE may not amend
such Series E Unit Issuance Agreement without the prior written consent of
ICM;”
(b) Section
4(d) of the Agreement is hereby amended and restated in its entirety to read as
follows:
“SIRE shall pay to ICM a fee in an
amount equal to 6% per annum (computed on an actual day, 360 day year basis) of
the undrawn face amount of the ICM L/C (the “Fee”) and shall
reimburse ICM for all out-of-pocket costs and expenses, including, without
limitation, reasonable attorneys’ fees and expenses, paid or incurred by ICM 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 first to occur of the following: (i) the expiration or termination
of the ICM L/C; or (ii) 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
3
Exhibit
10.2
under the
terms of that certain Credit Agreement, dated May 2, 2007, as amended, modified,
supplemented and restated from time to time, by and among SIRE, the lenders
party thereto, and AgStar Financial Services, PCA, as administrative
agent. With respect to any portion of the Fees and Expenses
Reimbursement Amount not paid in cash in accordance with the foregoing sentence,
SIRE shall deliver to ICM that number of Series C Units which are 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 Reimbursement Amount
not paid by SIRE when due shall bear interest at the Effective
Rate.”
1.4 Right of First
Refusal. Existing Section 5 of the Agreement, captioned
“Miscellaneous” is hereby designated Section 6 and a new Section 5 is hereby
added to the Agreement, captioned “Right of First Refusal” and reading as
follows:
“(a) Notwithstanding
anything to the contrary in this Agreement or the SIRE Operating Agreement, in
the event ICM or its Affiliates desires to Transfer (as defined in the SIRE
Operating Agreement), prior to the maturity date of the Bridge Loan, any Class C
Units issued to ICM in accordance with Section 1(c) hereof as a result of a
Bridge Loan Prepayment (the “Restricted Class C
Units”), ICM shall first give written notice (the “Offer Notice”) of its
intent to make such Transfer to SIRE and Bunge, specifying the terms of the
proposed Transfer, including the number of Restricted Class C Units to be
included in the Transfer (the “Offered Units”), the
proposed purchase price per Unit (the “Offer Price”) and the
name of the proposed transferee. After receipt of the Offer Notice,
SIRE and/or Bunge shall have the option, for a period of thirty (30) days (the
“Exercise
Period”) to purchase all or a portion of the Offered Units, at a price
per Unit equal to the Offer Price, by delivering written notice (the “Acceptance Notice”)
of its election to purchase all or a portion of the Offered Units to
ICM. If both SIRE and Bunge elect to exercise such right, the Offered
Units may be purchased by SIRE and Bunge in such amounts as such parties shall
agree. Such Acceptance Notice shall set forth a closing date for the
purchase of the Offered Units by SIRE and/or Bunge, as applicable, which date
shall be no later than thirty (30) days after the date of the Acceptance
Notice. At the closing, SIRE or Bunge, as applicable, shall pay the
purchase price for the Offered Units so purchased in immediately available funds
and ICM shall deliver to SIRE or Bunge, as applicable, any certificates
evidencing the Offered Units so purchased, along with such instruments of
transfer as may be requested by SIRE or Bunge, as applicable.
(b) If
an Acceptance Notice is not delivered to ICM within the Exercise Period (or if
SIRE’s and Bunge’s purchase option is not exercised with respect to all of the
Offered Units), ICM shall be free for a period of thirty (30) days after the
expiration of the Exercise Period to Transfer to the originally proposed
transferee all of the remaining Offered Units in accordance with the terms set
forth in the Offer Notice and in compliance with the SIRE Operating Agreement.
After the expiration of such thirty (30)
4
Exhibit
10.2
day
period, the preceding provisions of this Section 5 shall again apply if the
original proposed transaction is not completed.
(c) To
the extent that ICM receives proceeds from a Transfer of Restricted Class C
Units pursuant to this Section 5 in excess of $3,500 per Unit, then all amounts
in excess thereof shall be immediately paid to SIRE.
(d) Each
certificate evidencing Restricted Class C Units shall bear the following
restrictive legend:
THE CLASS
C UNITS EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF FIRST REFUSAL IN
FAVOR OF SOUTHWEST IOWA RENEWABLE ENERGY, LLC (“SIRE”) AND XXXXX X.X. HOLDINGS,
INC. (“BUNGE”) IN ACCORDANCE WITH THE TERMS OF SECTION 5 OF THAT CERTAIN SERIES
C UNIT ISSUANCE AGREEMENT, DATED AS OF MARCH 7, 2008, AS AMENDED AS OF MARCH 2,
2009, AND AS MAY BE FURTHER AMENDED, MODIFIED, SUPPLEMENTED AND RESTATED FROM
TIME TO TIME, BY AND AMONG SIRE, ICM, INC. AND BUNGE, A COPY OF WHICH IS ON FILE
AT THE OFFICES OF SIRE.
SIRE will
cause such legend to be removed with respect to any Restricted Class C Unit upon
the earlier of (a) the Transfer of such Restricted Class C Unit by ICM in
accordance with Section 5(a) hereof or (b) the maturity date of the Bridge
Loan.”
1.5 Miscellaneous. New
Section 6(a) of the Agreement is hereby amended by adding the following after
the last sentence thereof:
“Notwithstanding
the foregoing, the Parties hereto acknowledge and agree that Bunge is an express
third party beneficiary of the agreements set forth in Section 5
hereof.”
ARTICLE
II
CLOSING
CONDITIONS
This Amendment shall become effective
as of the date hereof upon satisfaction of the following
conditions:
(a) Executed
Amendment. Receipt by the Parties of a fully executed
counterpart of this Amendment.
(b) Bridge
Loan. Receipt by ICM of evidence satisfactory to ICM of the
extension of the maturity date of the Bridge Loan to September 1,
2010.
5
Exhibit
10.2
(c) ICM
L/C. Receipt by SIRE of evidence satisfactory to SIRE of the
extension of the expiry date of the ICM L/C to no earlier than September 16,
2010 and an increase in the face amount of the ICM L/C to
$8,784,000.
(d) Opinion. Receipt
by ICM 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) Bunge
Amendment. Bunge and SIRE shall have executed an amendment to
the Series E Unit Issuance Agreement between Bunge and SIRE dated March 7, 2008
(the “Bunge
Amendment”) and all conditions to the effectiveness of the Bunge
Amendment shall have been satisfied (other than the execution and delivery of
this Amendment).
ARTICLE
III
REPRESENTATIONS
SIRE
hereby represents to ICM 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 Bunge Unit
Issuance Agreement Amendment. Concurrently herewith SIRE and
Bunge are executing the Bunge Amendment. ICM hereby consents to the
Bunge 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.
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
6
Exhibit
10.2
accordance
with, the laws of the State of Missouri (without reference to conflict of law
principles).
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of page intentionally left blank]
Exhibit
10.2
IN WITNESS
WHEREOF, the Parties have executed this Amendment as of the date first written
above.
| SOUTHWEST IOWA RENEWABLE ENERGY, LLC | |||
|
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: President & CEO | |||
|
ICM,
Inc.
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Secretary | |||
