Master Loan Agreement

Amendment No. 1 to Fourth Supplement to the Master Loan Agreement (Term Revolving Loan)

 

Exhibit 10.2
AMENDMENT NO. 1 TO
FOURTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT
(TERM REVOLVING LOAN)
     This Amendment No. 1 to Fourth Supplement to the Master Loan Agreement (this “Amendment”) is effective as of October 19, 2007, between US BIO WOODBURY, LLC, a Michigan limited liability company (“Borrower”) and AGSTAR FINANCIAL SERVICES, PCA (“Lender”).
RECITALS
     A. Lender has extended various credit facilities to Borrower for the purposes of acquiring, constructing, equipping, furnishing and operating an ethanol production facility in Barry County, Michigan, pursuant to that certain Master Loan Agreement dated as of November 15, 2005 (as amended by that certain Amendment No.1 and Waiver to Master Loan Agreement dated as of July 31, 2006) (as amended, the “MLA”); First Supplement to the Master Loan Agreement (Construction Loan) dated as of November 15, 2005 (as amended by that certain Amendment No.1 to First Supplement to Master Loan Agreement dated as of July 31, 2006) (as amended, the “First Supplement”); Second Supplement to the Master Loan Agreement (Revolving Loan) dated as of November 15, 2005 (as amended and restated by that certain Amended and Restated Second Supplement to the Master Loan Agreement dated as of November 1, 2006) (the “Second Supplement”); Third Supplement to the Master Loan Agreement (Term Loan) dated as of November 1, 2006 (the “Third Supplement”); and Fourth Supplement to the Master Loan Agreement (Term Revolving Loan) dated as of November 1, 2006 (the “Fourth Supplement”). The MLA, First Supplement, Second Supplement, Third Supplement and Fourth Supplement are referred to collectively hereinafter as the “Loan Agreement”).
     B. Borrower has requested Lender amend certain provisions of the Loan Agreement, and Lender has agreed to such amendments upon the terms and conditions set forth herein.
     C. Unless otherwise expressly defined herein, capitalized terms used herein shall have the same meaning ascribed to them in the MLA.
AGREEMENT
     NOW, THEREFORE, in consideration of the premises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto herby agree as follows:
     1. Amendment to Fourth Supplement. Section 11 of the Fourth Supplement is hereby deleted in its entirety.
     2. Conditions to Effectiveness of this Amendment. This Amendment shall become effective as of the date hereof upon the satisfaction of the conditions precedent that Lender shall have received, on or before the date hereof, executed counterparts of this Amendment, duly

 


 

executed by each of the parties hereto, and an executed Consent and Reaffirmation of Guaranty in the form attached hereto as Exhibit A, duly executed by the Guarantor.
3. Representations and Warranties. Borrower hereby represents to Lender that, after giving effect to this Amendment:
     (a) All of the representations and warranties of Borrower contained in the MLA and in each other Loan Document are true and correct in all material respects as though made on and as of the date hereof.
     (b) As the date hereof, except as otherwise specifically stated herein, no Event of Default has occurred and is continuing.
4. Miscellaneous.
     (a) Effect; Ratification. The amendments set forth herein are effective solely for the purposes set forth herein and shall be limited precisely as written, and shall not be deemed to (i) be a consent to, or an acknowledgment of, any amendment, waiver or modification of any other term or condition of the Loan Agreement or (ii) prejudice any right or remedy which Lender may now have or may have in the future under or in connection with the Loan Agreement, as amended hereby, or any other instrument or agreement referred to therein. Each reference in the Loan Agreement and in other Loan Document to the “Fourth Supplement” shall mean the Fourth Supplement, as amended hereby
     (b) Loan Documents. This Amendment is a Loan Document executed pursuant to the MLA and shall be construed, administered and applied in accordance with the terms and provisions thereof.
     (c) Counterparts. This Amendment may be executed in any number of counterparts, each such counterpart constituting an original and all of which when taken together shall constitute one and the same instrument.
     (d) Severability. Any provision contained in this Amendment which is held to be inoperative, unenforceable or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable or invalid without affecting the remaining provisions of this Amendment in that jurisdiction or the operation, enforceability or validity of such provision in any other jurisdiction.
     (e) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MINNESOTA.
     (f) WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT TO WHICH IT IS A PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.
{SIGNATURE PAGE FOLLOWS}

 


 

SIGNATURE PAGE TO
AMENDMENT NO. 1 TO
FOURTH SUPPLEMENT TO THE MASTER LOAN AGREEMENT

BY AND BETWEEN
US BIO WOODBURY, LLC
AND
AGSTAR FINANCIAL SERVICES, PCA
DATED: October 19, 2007
     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered by their respective duly authorized officers as of the date first written above.
BORROWER:
         
US BIO WOODBURY, LLC,    
a Michigan limited liability company    
 
       
By:
  /s/ Kelly S. Langley    
 
       
 
        Kelly S. Langley    
 
        Its: Treasurer    
 
       
LENDER:    
 
       
AGSTAR FINANCIAL SERVICES, PCA,    
a United States corporation    
 
       
By:
  /s/ Mark Schmidt    
 
       
 
        Mark Schmidt    
 
        Its: Vice President    

 


 

EXHIBIT A
CONSENT AND REAFFIRMATION OF GUARANTY
     The undersigned, US BioEnergy Corporation, hereby:
     (i) consents to the modifications set forth in: (a) that certain Amendment No. 2 to Master Loan Agreement effective as of October 19, 2007; (b) that certain Amendment No. 1 to Amended and Restated Second Supplement to the Master Loan Agreement effective as of October 19, 2007; (c) that certain Amendment No. 1 to Third Supplement to the Master Loan Agreement effective as of October 19, 2007; (d) that certain Allonge to the Term Note effective as of October 19, 2007; (e) that certain Amendment No. 1 to Fourth Supplement to the Master Loan Agreement effective as of October 19, 2007; and (f) that certain Allonge to the Term Revolving Note effective as of October 19, 2007; and
     (ii) reaffirms the guaranty of the undersigned, as set forth in that certain Continuing Guaranty made as of November 15, 2005, by the undersigned for the benefit of Lender, is and shall remain in full force and effect.
         
 
  US BIOENERGY CORPORATION    
 
       
 
  By: /s/ Kelly S. Langley    
 
  Name: Kelly S. Langley    
 
  Its: Treasurer