EXHIBIT 10.9
SECOND AMENDMENT
TO THE
CREDIT AGREEMENT
dated July 29, 2003
between
WESTERN PLAINS ENERGY, LLC
as Borrower
and
AG COUNTRYFARM CREDIT SERVICES, FLCA
as Lender
November 15, 2004
SECOND AMMENDMENT
-----------------
to the
CREDIT AGREEMENT
----------------
THIS SECOND AMENDMENT to the CREDIT AGREEMENT (the "Second Amendment")
dated July 29, 2003 (the "Agreement"), is made and entered into as of November
15, 2004, by and between WESTERN PLAINS ENERGY, LLC, a Kansas limited liability
company ("Borrower") and AGCOUNTRY FARM CREDIT SERVICES, FLCA "Lender").
WHEREAS, the parties entered into the First Amendment to the Agreement on
March 4, 2004 (the "First Amendment");
WHEREAS, pursuant to Section 9.02(b) of the Agreement, Lender and Borrower
hereby agree to further amend the Agreement subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Lender agree as
follows:
1. Definitions. Except as otherwise provided herein, capitalized terms used
herein without definition shall have the meanings provided for in the Agreement.
2. Free Cash Flow. The definition of "Free Cash Flow" contained in
Section 1.01 of the Agreement is deleted in its entirety and replaced
with the following language:
"Free Cash Flow" shall mean for any period, the EBITDA less the sum
of Mandatory Debt Retirement, Taxes paid by Borrower and its
Subsidiaries, and Non-Financed Maintenance Capital Expenditures.
3. Fixed Charge Coverage Ratio. Section 6.01 of the Agreement is deleted in
its entirety and replaced with the following language:
Section 6.01 Fixed Charge Coverage Ratio. On September 30, 2005, and
annually thereafter, Borrower will maintain a Fixed Charge Coverage
Ratio of not less than 1.15:1.00.
4. Leverage Ratio. Section 6.02 of the Agreement is deleted in its entirety
and replaced with the following language:
Section 6.02 Leverage Ratio. On September 30,2005, and at all times
thereafter, Borrower will maintain a ratio of (i) net worth to (ii)
total assets of not less than 0.50:1.00. For the calculation of the
leverage ratio, total assets and liabilities of Borrower will be net
of
Doc# 1943666\1
the "▇▇▇▇ County IDR Bonds" asset and liability accounts (listed at
$32,000,000 as of 8/31/04).
5. Capital Expenditures. Section 6.03 of the Agreement is deleted in its
entirety and replaced with the following language:
Section 6.03 Capital Expenditures. Borrower will not make Capital
Expenditures in excess of $500,000 during any fiscal year period
without Lender's prior written approval. Notwithstanding the previous
sentence or any other provision of any other Loan Document, Lender
hereby consents to the Capital Expenditures of Borrower in the amount
of up to $4,500,000 incurred pursuant to the Agreement between
Borrower and ICM, Inc. dated August 26, 2004.
6. Current Ratio and Working Capital. Section 6.04 of the Agreement is
deleted in its entirety and replaced with the following language:
Section 6.04 Current Ratio and Working Capital. Borrower will
maintain, on September 30, 2004 and all times thereafter, a ratio of
current assets to current liabilities of not less than 1.20:1.00 and
working capital of at least (x) $5,000,000 on December 31, 2004, and
at all times thereafter. For the purpose of calculating the current
ratio and working capital under this Section 6.04, the unadvanced
portion of the revolving term note, less the amount of step-down due
within 12 months, will be included as a current asset.
7. Minimum Net Worth. Section 6.05 of the Agreement is deleted in its
entirety and replaced with the following language:
Section 6.05 Minimum Net Worth. Borrower will maintain, (i) on
September 30, 2004 and at all times thereafter, a minimum net worth of
$19,000,000, (ii) on September 30, 2005 and at all times thereafter, a
minimum net worth of $23,000,000, and (iii) on September 30, 2006, and
at all times thereafter, a minimum net worth of $25,000,000.
8. Restricted Payments. Section 7.05 of the Agreement is deleted in its
entirety and replaced with the following language:
Section 7.05 Restricted Payments. Borrower will not, and will not
permit any Subsidiary to, declare or make, or agree to pay or make,
directly or indirectly, any dividend or distribution on any class of
its membership interests, or make any payment on account of, or set
apart assets for a sinking or other analogous fund for, the
Doc# 1943666\1
purchase, redemption, retirement, defeasance or other acquisition of,
any membership interest or Indebtedness subordinated to the
Obligations of Borrower or any options, warrants, or other rights to
purchase such common stock or such Indebtedness, whether now or
hereafter outstanding (each, a "Restricted Payment"), except for (i)
dividends or distributions payable by Borrower solely in units of any
class of its membership interests, (ii) Restricted Payments made by
any Subsidiary to Borrower and (iii) dividends or distributions which
do not exceed, in any rolling 12 month period, 40% of Net Income; and
provided further, and that no Restricted Payment shall be paid by
Borrower if an Event of Default exists or would result from the
payment of such Restricted Payment.
9. Consent to Indebtedness and Liens. Notwithstanding Sections 7.01 and
7.02 of the Credit Agreement, and any other provision of any other Loan
Document, Lender hereby consents to additional Indebtedness in the amount of up
to $3,500,000 pursuant to the Promissory Note/Loan Agreement between Borrower
and Lender, and Borrower's granting of a additional security interest in
Borrower's assets to Lender pursuant to the Security Agreement and the Mortgage.
10. Representations: Events of Default. In order to induce Lender to
execute this Second Amendment, the Borrower hereby:
(a) makes and renews to Lender the representations and warranties set
forth in Article IV of the Agreement; and
(b) certifies to Lender that no Default or Event of Default has
occurred under the Agreement.
11. Expenses. The Borrower shall pay or reimburse Lender for attorneys'fees
and costs of the Lender's legal counsel in connection with the preparation and
execution of this Second Amendment.
12. General. On and after the effectiveness of this Second Amendment, each
reference in the Agreement to "this Agreement," "hereunder," "hereof" or words
of like import referring to the Agreement, and each reference in the loan
documents to the Agreement, shall mean the Agreement as amended by the First
Amendment and this Second Amendment. The Agreement, as amended by the First
Amendment and this Second Amendment, is and shall continue to be in full force
and effect and is hereby ratified and confirmed in all respects
13. Counterpart Signatures. This Second Amendment may be executed by each
party in one or more counterparts, each of which shall be deemed an original and
all of which taken together shall constitute one binding document.
[Signature Page Follows]
Doc# 1943666\1
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
WESTERN PLAINS ENERGY, LLC
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
LENDER:
AGCOUNTRY FARM CREDIT SERVICES, FLCA
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Doc# 1943666\1