Fourth Amendment to Construction Loan Agreement

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EX-10.39 3 c25165exv10w39.htm FOURTH AMENDMENT TO CONSTRUCTION LOAN AGREEMENT exv10w39
 

EXHIBIT 10.39
     FOURTH AMENDMENT TO CONSTRUCTION LOAN AGREEMENT
This Fourth Amendment to Construction Loan Agreement is dated as of the 11th day of December, 2007, and is by and between RED TRAIL ENERGY, LLC, a North Dakota limited liability company (“BORROWER”), and FIRST NATIONAL BANK OF OMAHA (“BANK”), a national banking association established at Omaha, Nebraska.
WHEREAS, the BANK and BORROWER executed a written Construction Loan Agreement dated as of December 16, 2005 (“AGREEMENT”).
Now, Therefore, in consideration of the AGREEMENT, and their mutual promises made herein, BANK and BORROWER agree as follows:
     1. Terms which are typed herein as all capitalized words and are not defined herein shall have same meanings as when described in the AGREEMENT.
     2. On April 16, 2007, pursuant to Section 2.5 of the AGREEMENT, BORROWER executed and delivered to BANK its VARIABLE RATE NOTE, in the principal amount of $17,605,870.00; its LONG TERM REVOLVING NOTE, in the principal amount of $10,000,000.00; and its FIXED RATE NOTE, in the principal amount of $27,605,870.00. BORROWER has requested BANK to permit the replacement of the VARIABLE RATE NOTE in order to reduce the amount of borrowed funds subject to variable rates and to increase the portion of the OBLIGATIONS represented by fixed rate financing. As the result, on execution of this amendment, BORROWER will deliver a replacement of the VARIABLE RATE NOTE, with such replacement having the principal amount of $6,777,887.23, and a new note (“2007 FIXED RATE NOTE”) having a principal amount of $10,000,000.00.
     3. Effective immediately, Section 1.24 of the AGREEMENT is amended to read:
     1.24 “LOAN TERMINATION DATE” means the earliest to occur of the following: (i) as to the REVOLVING NOTE, July 17, 2008, as to FIXED RATE NOTE, 2007 FIXED RATE NOTE, VARIABLE RATE NOTE and as to LONG TERM REVOLVING NOTE, April 16, 2012, (ii) the date the OBLIGATIONS are accelerated pursuant to this AGREEMENT, and (iii) the date BANK has received (a) notice in writing from BORROWER of BORROWER’s election to terminate this AGREEMENT and (b) indefeasible payment in full of the OBLIGATIONS.
     4. Effective immediately, Section 2.5 of the AGREEMENT is amended to read:
     2.5 TERM LOAN. The existing balance on the CONSTRUCTION LOAN, including any advance made to increase WORKING CAPITAL, as of COMPLETION DATE will be restated and said balance will be paid by four promissory notes (“TERM NOTES”), hereafter called “FIXED RATE NOTE”,“2007 FIXED RATE NOTE”, “VARIABLE RATE NOTE”, and “LONG TERM REVOLVING NOTE”, in form

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mutually acceptable to BANK and BORROWER. The TERM NOTES evidence “TERM LOANS”. Payments on such TERM NOTES shall be as follows:
     On the sixteenth day of every third month, commencing three months after COMPLETION DATE, BORROWER shall pay to BANK the scheduled principal payment shown in Schedule I, attached hereto and by this reference made a part hereof, plus accrued interest on FIXED RATE NOTE, together with the scheduled principal payment shown in Schedule II, attached hereto and to the 2007 FIXED RATE NOTE, by this reference made a part hereof, plus accrued interest on 2007 FIXED RATE NOTE.
     In addition, on the sixteenth day of every third month, commencing three months after COMPLETION DATE, BORROWER shall pay $634,729.57 to BANK, which shall be allocated as follows:
     a. first to accrued interest on LONG TERM REVOLVING NOTE;
     b. next to accrued interest on VARIABLE RATE NOTE;
     c. next to principal on VARIABLE RATE NOTE;
     After VARIABLE RATE NOTE has been fully paid, such quarterly payments shall be allocated first to accrued interest on LONG TERM REVOLVING NOTE, and thence to principal, reducing available revolving loan capacity. All unpaid principal and accrued interest under the TERM LOANS shall be due and payable on LOAN TERMINATION DATE, if not sooner paid.
     5. BORROWER certifies by its execution hereof that the representations and warranties set forth in Section 5 of the AGREEMENT are true as of this date, and that no EVENT OF DEFAULT under the AGREEMENT, and no event which, with the giving of notice or passage of time or both, would become such an EVENT OF DEFAULT, has occurred as of this date.
     6. Except as amended hereby the parties ratify and confirm as binding upon them all of the terms of the AGREEMENT.
     IN WITNESS whereof the parties set their hands as of the date first written above.
                 
First National Bank of Omaha       Red Trail Energy, LLC
 
                
By:   /s/ Andrew Wong       By:   /s/ Frank Kirschenheiter
                 
    Andrew Wong            
    Commercial Loan Officer       Name:   Frank Kirschenheiter
               
               
            Title:   Secretary
                 
 
                
            And    
 
                
            By:   /s/ Mike Appert
                 
               
            Name:   Mike Appert
               
                 
            Title:   Chairman
                 

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STATE OF NORTH DAKOTA
    )      
 
          ) ss.    
COUNTY OF STARK
    )      
On this 27 day of December, 2007, before me, the undersigned Notary Public, personally appeared SECRETARY, the Secretary of Red Trail Energy, LLC, on behalf of said entity, and each acknowledged that he executed the foregoing Amendment to Loan Agreement as his voluntary act and deed and that of Red Trail Energy, LLC.
/s/ Deell Hoff                                               
Notary Public
             
STATE OF NORTH DAKOTA
    )     DEELL HOFF
 
          ) ss.   Notary Public
COUNTY OF STARK
    )     State of North Dakota
 
          My Commission Expires Oct. 21, 2011
On this 27 day of December, 2007, before me, the undersigned Notary Public, personally appeared Mike Appert, the Chairman of Red Trail Energy, LLC, on behalf of said entity, and each acknowledged that he executed the foregoing Amendment to Loan Agreement as his voluntary act and deed and that of Red Trail Energy, LLC.
/s/ Deell Hoff                                               
Notary Public
     
 
  DEELL HOFF
Notary Public
State of North Dakota
My Commission Expires Oct. 21, 2011
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SCHEDULE “II” TO SWAP NOTE
AMORTIZATION SCHEDULE — U.S. RULE (NO COMPOUNDING), 360 DAY YEAR
Red Trail Energy Swap Note Principal Schedule for Payments
AMORTIZATION SCHEDULE — U.S. Rule (no compounding), 360 Day Year
                         
            Beginning        
    Date     Balance     Principal  
Loan
     12/11/2007       10,000,000.00          
 
                        
1
     1/16/2008               285,183.83  
2
     4/16/2008               182,995.86  
3
     7/16/2008               186,511.41  
4
     10/16/2008               188,121.60  
2008
                        
Totals
                     842,812.70  
5
     1/16/2009               191,775.34  
6
     4/16/2009               199,285.44  
7
     7/16/2009               201,221.24  
8
     10/16/2009               203,278.78  
2009
                        
Totals
                     795,560.80  
 
                        
9
     1/16/2010               207,226.90  
10
     4/16/2010               214,694.68  
11
     7/16/2010               217,097.72  
12
     10/16/2010               219,638.08  
2010
                        
Totals
                     858,657.38  
 
                        
13
     1/16/2011               223,903.94  
14
     4/16/2011               231,326.03  
15
     7/16/2011               234,233.37  
16
     10/16/2011               237,294.85  
2011
                        
Totals
                     926,758.19  
 
                        
17
     1/16/2012               241,903.64  
18
     4/16/2012               6,334,307.29  
2012
                        
Totals
                     6,576,210.93  
Loan
     12/11/2007       10,000,000.00          
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