Attached files
| file | filename |
|---|---|
| EX-31.2 - CERTIFICATION - Cardinal Ethanol LLC | a312certification33116.htm |
| EX-32.1 - CERTIFICATION - Cardinal Ethanol LLC | a321certification33116.htm |
| EX-32.2 - CERTIFICATION - Cardinal Ethanol LLC | a322certification33116.htm |
| EX-10.1 - 6TH AMENDMENT TO 1ST A&R CONSTRUCTION LOAN AGREEMENT - Cardinal Ethanol LLC | ex1016thamendementto1starc.htm |
| EX-31.1 - CERTIFICATION - Cardinal Ethanol LLC | a311certification33116.htm |
| 10-Q - CARDINAL ETHANOL 10-Q FQE 3-31-2016 - Cardinal Ethanol LLC | cardinal10-qfqe3x31x16.htm |
SEVENTH AMENDMENT OF
FIRST AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT
THIS SEVENTH AMENDMENT OF FIRST AMENDED AND RESTATED CONSTRUCTION LOAN AGREEMENT (“Amendment”) is made this 6th day of May, 2016 between FIRST NATIONAL BANK OF OMAHA, a national banking association ("Lender") and CARDINAL ETHANOL, LLC, an Indiana limited liability company (“Borrower”). This Amendment amends that certain First Amended and Restated Construction Loan Agreement dated June 10, 2013 between Lender and Borrower (as amended, the "Loan Agreement”).
WHEREAS, pursuant to the Loan Agreement and the other Loan Documents, Lender extended the Loans described in the Loan Agreement to Borrower;
WHEREAS, pursuant to that certain First Amendment of First Amended and Restated Construction Loan Agreement dated October 8, 2013, the date on which the Declining Revolving Credit Loan began to revolve was amended from April 8, 2014 to October 8, 2013, the Maximum Availability of the Declining Revolving Credit Loan was modified and the Loan Agreement was otherwise modified as provided for therein;
WHEREAS, pursuant to that certain Second Amendment of First Amended and Restated Construction Loan Agreement dated February 27, 2014, the Maximum Availability of the Declining Revolving Credit Loan was fixed at $5,000,000, the Reduction Dates applicable to the Declining Revolving Credit Loan were deleted, the Fixed Charge Coverage Ratio covenant was deleted, the distribution covenant was deleted, the Termination Date of the Revolving Credit Loan was extended to February 28, 2015 and the Loan Agreement was otherwise amended as provided for therein; and
WHEREAS, pursuant to that certain Third Amendment of First Amended and Restated Construction Loan Agreement dated February 28, 2015, the Termination Date of the Revolving Credit Loan was extended to March 31, 2015;
WHEREAS, pursuant to that certain Fourth Amendment of First Amended and Restated Construction Loan Agreement dated March 31, 2015, the Termination Date of the Revolving Credit Loan was extended to February 28, 2016 and the interest rate and Non-Use Fee applicable to the Revolving Credit Loan were modified;
WHEREAS, pursuant to that certain Fifth Amendment of First Amended and Restated Construction Loan Agreement dated July 23, 2015, the maximum principal amount of the Declining Revolving Credit Loan was increased to finance the Improvements and permit Construction Advances up to May 31, 2016 to fund such Improvements, the Termination Date of the Declining Revolving Credit Loan was extended to February 28, 2021, the interest rate applicable to the Declining Revolving Credit Loan was modified, the Fixed Charge Coverage Ratio was modified, the Capital
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Expenditures covenant was modified and the Loan Agreement was otherwise amended as provided for therein;
WHEREAS, pursuant to that certain Sixth Amendment of First Amended and Restated Construction Loan Agreement dated February 28, 2016, the Termination Date of the Revolving Credit Loan was extended to February 28, 2017;
WHEREAS, the parties desire to extend the Completion Date of the Project to July 31, 2016, to modify the definition of Permitted Liens and to modify the Lien default provision of the Loan Agreement, all as provided for in this Amendment.
NOW, THEREFORE, in consideration of the amendments of the Loan Agreement set forth below, the mutual covenants herein and other good and valuable consideration, the sufficiency and receipt of which is hereby acknowledged, the parties agree to amend the Loan Agreement as follows:
1. Capitalized terms used in this Amendment which are defined in the Loan Agreement shall have the meanings given to them in the Loan Agreement, as such definitions may be amended by this Amendment.
2. The defined term "Completion Date" in Section 1.01of the Loan Agreement is hereby amended by deleting the reference to May 31, 2016 as the Completion Date of the Project and inserting in lieu thereof July 31, 2016.
3. Effective on March 1, 2016, the definition of the term “Permitted Liens” in Section 4.16 of the Loan Agreement is hereby amended to delete the period at the end of subsection (i) of such definition and to insert a semicolon and the word “and” in lieu thereof and to insert new subsection (j) as follows:
(j) Liens filed against the Project by subcontractors, vendors and suppliers of WB Services, LLC (“WB”), a Contractor on the Project, in an aggregate amount not to exceed $550,000; provided, however, that Lender reserves the right to require Borrower to bond over or reserve for any such Lien in the manner provided for in this Agreement in the event that Lender reasonably determines that any such Lien adversely affects the priority or enforceability of Lender’s Liens on Borrower’s property.
4. Section 6.01(s) of the Loan Agreement is hereby amended by deleting the reference to $250,000 as the maximum amount of Liens filed against the Project, other than Permitted Liens, individually or in the aggregate, and inserting in lieu thereof $550,000.
5. It is a requirement of the Disbursing Agreement and the Loan Agreement that Borrower provide partial or full, as applicable, lien waivers in connection with each Draw Request. On a case by case basis, Lender may waive the requirement of partial
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lien waivers from subcontractors, vendors and suppliers of WB who have filed a Lien as a condition to a Construction Advance.
6. Lender hereby consents to Borrower’s termination of its contract with WB if Borrower reasonably determines that such termination is necessary or desirable to pursue Borrower’s remedies against WB.
7. Except as modified in this Amendment, all other terms, provisions, conditions and obligations imposed under the terms of the Loan Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified, affirmed and certified by Borrower and Lender. Borrower hereby ratifies and affirms the accuracy and completeness of all representations and warranties contained in the Loan Documents. Borrower represents and warrants to the Lender that the representations and warranties set forth in the Loan Agreement, and each of the other Loan Documents, are true and complete on the date hereof as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct as of such specific date), and as if each reference in the Loan Agreement to “this Agreement” included references to this Amendment. Borrower represents, warrants and confirms to the Lender that no Default or Events of Default is now existing under the Loan Documents and that no event or condition exists which would constitute a Default or an Event of Default under the Loan Agreement or any other Loan Document. Nothing contained in this Amendment either before or after giving effect thereto, will cause or trigger a Default or an Event of Default under any Loan Document. To the extent necessary, the Loan Documents are hereby amended consistent with the amendments provided for in this Amendment.
8. This Amendment may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. This Amendment shall be governed by and construed in accordance with the laws of the State of Nebraska, exclusive of its choice of laws rules.
9. The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided in this Amendment, operate as a waiver of any right, power or remedy of the Lender under any of the Loan Documents, nor, except as expressly provided in this Amendment, constitute a waiver or amendment of any provision of any of the Loan Documents. Upon and after the execution of this Amendment by each of the parties hereto, each reference in the Loan Agreement to “this Agreement”, “hereunder”, “hereof” or words or phrases of like import referring to the Loan Agreement, and each reference in the other Loan Documents to the “Loan Agreement”, “thereunder”, “thereof” or words or phrases of like import referring to the Loan Agreement, shall mean and be a reference to the Loan Agreement as modified by this Amendment. This Amendment and the rights evidenced by this Amendment shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto, and shall be enforceable by any such successors
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and assigns. Borrower will pay on demand all costs and expenses incurred by Lender in connection with the preparation, execution, delivery, filing, and administration of this Amendment (including, without limitation, legal fees incurred in connection with the preparation of this Amendment and advising Lender as to its rights, and the cost of any credit verification reports or field examinations of Borrower's properties or books and records). Borrower's obligations to Lender under this Section shall survive the termination of this Amendment or the Loan Agreement and the repayment of Borrower's Obligations to Lender under the Loan Agreement and other Loan Documents.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and delivered this Amendment on the date first written above.
FIRST NATIONAL BANK OF OMAHA, a national banking association
By: | /s/ Brad Brummand |
Title: | Vice President |
CARDINAL ETHANOL, LLC, an Indiana limited liability company
By: | /s/ William Dartt |
Title: | Chief Financial Officer |
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