Second Amendment to Fourth Amended and Restated Revolving Credit and Security Agreement, dated as of March 15, 2018, by and among Green Plains Trade Group LLC and PNC Bank, National Association

Exhibit 10.1



SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT



This Second Amendment to Fourth Amended and Restated Revolving Credit and Security Agreement (the  “Amendment”) is made this 15th day of March, 2018 by and among Green Plains Trade Group LLC, a limited liability company formed under the laws of the State of Delaware (“GTRADE”), and each other Person joined as a Borrower from time to time (each a “Borrower”, and collectively “Borrowers”), the financial institutions which are now or which hereafter become a party hereto (collectively, the “Lenders” and each individually a “Lender”) and PNC BANK, NATIONAL ASSOCIATION (“PNC”), as agent for Lenders (PNC, in such capacity, the “Agent”).



BACKGROUND

A.On July 28, 2017, Borrower, Lenders and Agent entered into that certain Fourth Amended and Restated Revolving Credit and Security Agreement (as same has been or may be amended, modified, renewed, extended, replaced or substituted from time to time, the “Loan Agreement”) to reflect certain financing arrangements between the parties thereto.  The Loan Agreement and all other documents executed in connection therewith to the date hereof are collectively referred to as the “Existing Financing Agreements.”  All capitalized terms not otherwise defined herein shall have the meaning ascribed thereto in the Loan Agreement. 



B.The Borrower has informed Agent that Borrower wishes to sell certain accounts receivable on an ongoing basis pursuant to a certain supplier agreement (the “Supplier Agreement”), to be dated on or about the date hereof.  



C.In connection with the foregoing, the Borrower hereby requests, and subject to the terms and conditions hereof, Agent and the Required Lenders have agreed to amend certain terms and provisions of the Loan Agreement as more particularly described herein.



D.The parties hereto are entering into this Amendment with the understanding and agreement that, except as expressly provided herein, none of Agent’s or any Lender’s rights or remedies as set forth in the Loan Agreement or any Other Document is being waived or modified by the terms of this Amendment. 

NOW THEREFORE, with the foregoing background hereinafter deemed incorporated by reference herein and made part hereof, the parties hereto, intending to be legally bound, promise and agree as follows:



“Designated Supply Chain Accounts” means Receivables owing from any account debtor designated in writing by a Borrower to the Agent which is proposed to be subject to an automatic or selective discounting supply chain finance program;



“Permitted Supply Chain Financing” means a supply chain finance transaction or transactions whereby a Borrower sells (i) Designated Supply Chain Accounts consisting of a portion of its Receivables at the request of a customer of such Borrower or a related Borrower (and for the avoidance of doubt, not with respect to Receivables of any Borrower or Borrowers generally) or (ii) drafts or bills of exchange which reflect such Borrower’s right to payment from a customer of such Borrower or a related Borrower for goods or services provided, and:













“Eligible Receivables” shall mean and include with respect to each Borrower, each Receivable of such Borrower arising in the Ordinary Course of Business and which Agent, in its Permitted Discretion, shall deem to be an Eligible Receivable. A Receivable shall not be deemed eligible unless such Receivable is subject to Agent’s first priority perfected security interest and no other Lien (other than Permitted Encumbrances), and is evidenced by an invoice or other documentary evidence satisfactory to Agent. In addition, no Receivable shall be an Eligible Receivable if:



(a)it arises out of a sale made by any Borrower to an Affiliate of any Borrower or to a Person controlled by an Affiliate of any Borrower;

(b)it is due or unpaid more than ten (10) days after the original due date or thirty five (35) days after the original invoice date;



(c)fifty percent (50%) or more of the Receivables from such Customer are not deemed Eligible Receivables hereunder;



(d)any covenant, representation or warranty contained in this Agreement with respect to such Receivable has been breached;



(e)the Customer shall (i) apply for, suffer, or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of its property or call a meeting of its creditors, (ii) admit in writing its inability, or be generally unable, to pay its debts as they become due or cease operations of its present business, (iii) make a general assignment for the benefit of creditors, (iv) commence a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (v) be adjudicated a bankrupt or insolvent, (vi) file a petition seeking to take advantage of any other law providing for the relief of debtors, (vii) acquiesce to, or fail to have dismissed, any petition which is filed against it in any involuntary case under such bankruptcy laws, or (viii) take any action for the purpose of effecting any of the foregoing;





(f)the sale is to a Customer outside the continental United States of America or Canada (other than Quebec), unless the sale is on letter of credit, guaranty or acceptance terms, in each case acceptable to Agent in its sole discretion;



(g)the sale to the Customer is on a bill-and-hold, guaranteed sale, sale-and- return, sale on approval, consignment or any other repurchase or return basis or is evidenced by chattel paper, an instrument or a judgment;



(h)Agent believes, in its Permitted Discretion, that collection of such Receivable is insecure or that such Receivable may not be paid by reason of the Customer’s financial inability to pay;



(i)the Customer is the United States of America, any state or any department, agency or instrumentality of any of them, unless the applicable Borrower assigns its right to payment of such Receivable to Agent pursuant to the Assignment of Claims Act of 1940, as amended (31 U.S.C. Sub-Section 3727 et seq. and 41 U.S.C. Sub-Section 15 et seq.) and has otherwise complied with other applicable statutes or ordinances;



(j)the goods giving rise to such Receivable have not been delivered to and accepted by the Customer or the services giving rise to such Receivable have not been performed by the applicable Borrower and accepted by the Customer or the Receivable otherwise does not represent a final sale;



(k)the Receivables of the Customer exceed a credit limit determined by Agent, in its Permitted Discretion, to the extent such Receivable exceeds such limit;



(l)the Receivable is subject to any offset, deduction, defense, dispute, or counterclaim against any obligation of any Borrower or any Affiliate Plant (but such Receivable shall only be ineligible to the extent of such offset, deduction, defense or counterclaim), the Customer is also a creditor or supplier of a Borrower or any Affiliate Plant or the Receivable is contingent in any respect or for any reason;



(m)the applicable Borrower has made any agreement with any Customer for any deduction therefrom, except for discounts or allowances made in the Ordinary Course of Business for prompt payment, all of which discounts or allowances are reflected in the calculation of the face value of each respective invoice related thereto;



(n)any return, rejection or repossession of the merchandise has occurred or the rendition of services has been disputed;



(o)such Receivable is not payable to a Borrower;



(p)such Receivables is an Argos Receivable;



(q)such Receivable is not unconditionally payable in U.S. Dollars or Canadian Dollars;



(r)twenty-five percent (25%) or more of the Eligible Receivables are owing from such Customer;



(s)the Account Debtor with respect to such Receivable is subject to Sanctions or is on any specially designated national list maintained by OFAC;



(t)such Receivable is part of a Permitted Supply Chain Financing of Designated Supply Chain Accounts; or



(u)such Receivable is not otherwise satisfactory to Agent in its Permitted Discretion.



(b) Sell, lease, transfer or otherwise dispose of any of its properties or assets, except (i) dispositions of Inventory and Equipment to the extent expressly permitted by Section 4.3, (ii) dispositions pursuant to a Permitted Supply Chain Financing and (iii) any other sales or dispositions expressly permitted by this Agreement.

      4.3.    Disposition of Collateral. Each Borrower will safeguard and protect all Collateral for Agent’s general account and make no disposition thereof whether by sale, lease or otherwise except (a) the sale of Inventory in the Ordinary Course of Business, (b) the disposition or transfer of obsolete and worn-out Equipment in the Ordinary Course of Business during any fiscal year having an aggregate fair market value of not more than $100,000 and only to the extent that (i) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Agent’s first priority security interest or (ii) the proceeds of which are remitted to Agent to be applied pursuant to Section 2.21; and (c) a Permitted Supply Chain Financing.

11.2.   Agent’s Discretion. Agent shall have the right in its sole discretion to determine which rights, Liens, security interest or remedies Agent may at any time pursue, relinquish, subordinate, or modify or to take any other action with respect thereto and such determination will not in any way modify or affect any of Agent’s or Lenders’ rights hereunder, it being understood that any Liens granted to the Administrative Agent pursuant to this Agreement with respect to Receivables or other Collateral, including instruments, sold pursuant to a Permitted Supply Chain Financing, shall be deemed to be automatically released to the extent required to give effect to such transaction (it being further understood that any such Lien on Receivables or other Collateral, including instruments, sold pursuant to a transaction that is not a Permitted Supply Chain Financing shall not be deemed to be automatically released upon its sale).

(a)reaffirms all representations and warranties made to Agent and Lenders under the Loan Agreement and all of the other Existing Financing Agreements and confirms that all are true and correct in all material respects as of the date hereof (except to the extent any such representations and warranties specifically relate to a specific date, in which case such representations and warranties were true and correct in all material respects on and as of such other specific date);

(b)reaffirms all of the covenants contained in the Loan Agreement (as amended hereby), covenants to abide thereby until all Advances, Obligations and other liabilities of Borrowers to Agent and Lenders under the Loan Agreement of whatever nature and whenever incurred, are satisfied and/or released by Agent and Lenders;

(c)represents and warrants that no Default or Event of Default has occurred and is continuing under any of the Existing Financing Agreements;

(d)represents and warrants that it has the authority and legal right to execute, deliver and carry out the terms of this Amendment, that such actions were duly authorized by all necessary limited liability company or corporate action, as applicable, and that the officers executing this Amendment on its behalf were similarly authorized and empowered, and that this Amendment does not contravene any provisions of its certificate of incorporation or formation, operating agreement, bylaws,  or other formation documents, as applicable, or of any contract or agreement to which it is a party or by which any of its properties are bound; and

(e)represents and warrants that this Amendment and all assignments, instruments, documents, and agreements executed and delivered in connection herewith, are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, moratorium or similar laws affecting creditors’ rights generally.

IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and delivered by their duly authorized officers as of the date first above written.