exv10w9



 





Exhibit 10.9




AMENDMENT NO. 2 TO

AMENDED AND RESTATED MASTER LOAN AGREEMENT




     This Amendment No. 2 to Amended and Restated Master Loan Agreement (this “Amendment”) is
effective as of November 1, 2007, by and between US BIO ALBERT CITY, LLC, an Iowa 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 Buena Vista
County, Iowa, 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, and by that certain Amended and Restated Master Loan Agreement dated as of February 26, 2007)
(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 Amended and Restated First
Supplement to Master Loan Agreement dated as of July 31, 2006, by that certain Amended and Restated
First Supplement to the Master Loan Agreement (Construction Loan) dated as of January 24, 2006, and
by that certain Second Amended and Restated First Supplement to the Amended and Restated Master
Loan Agreement (Construction Loan) dated as of February 26, 2007) (as amended, the “First
Supplement”); Second Supplement to the Master Loan Agreement (Revolving Loan) dated as of November
15, 2005 (the “Second Supplement”); Third Supplement to the Master Loan Agreement (Term Loan) dated
as of February 26, 2007 (the “Third Supplement”); and Fourth Supplement to the Master Loan
Agreement (Term Revolving Loan) dated as of February 26, 2007 (the “Fourth Supplement”). The MLA,
First Supplement, Second Supplement, Third Supplement and Fourth Supplement are referred to
collectively hereinafter as the “Loan Agreement”).



     B. On October 19, 2007, Borrower and Lender entered into that certain Amendment No. 1 to
Amended and Restated Master Loan Agreement amending certain provisions of the MLA.



     C. Borrower has requested Lender further amend certain provisions of the MLA, and Lender has
agreed to such amendments upon the terms and conditions set forth herein.



     D. 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 hereby agree as follows:



1. Amendment to MLA:




     (b) Section 5.02(i): Section 5.02(i) of the MLA is hereby amended and restated in its
entirety to read as follows:




(i) Transfer of Assets. Sell, lease, assign, transfer, or otherwise
voluntarily dispose of any of its assets, or permit any of its subsidiaries to sell,
lease, assign, transfer, or other wise voluntarily dispose of any of its assets
except: (i) dispositions of inventory in the ordinary course of business; and (ii)
dispositions of: (A) obsolete or worn out equipment; (B) equipment or real property
not necessary for the operation of its business; (C) equipment or real property
which is replaced with property of equivalent or greater value as the property which
is disposed; or (D) real property which is leased to a third party for the storage
of grain or other agricultural products which are to be purchased by the Borrower,
provided that such lease does not violate the terms of this Agreement or any other
Loan Document, and further provided that such space shall be used by such third
party solely for the storage of grain or other agricultural products which are to be
purchased by the Borrower.


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
MLA to “this Agreement,” “herein,” “hereof” and words of alike import and each reference in the
other Loan Documents to the “MLA” or the “Master Loan Agreement” shall mean the MLA, 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. 2 TO

AMENDED AND RESTATED MASTER LOAN AGREEMENT




BY AND BETWEEN

US BIO ALBERT CITY, LLC

AND

AGSTAR FINANCIAL SERVICES, PCA




DATED: November 1, 2007




     IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to be executed and
delivered by their respective duly authorized officers as of the date first written above.



BORROWER:




US BIO ALBERT CITY, LLC,

an Iowa limited liability company




	 	 	 
	 

	 	 
	/s/ Kelly S. Langley
	 	 
	 

By: 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: that certain Amendment No. 2 to Amended And
Restated Master Loan Agreement effective as of November 1, 2007; and



     (ii) reaffirms the guaranty of the undersigned, as set forth in that certain Amended and
Restated Continuing Guaranty made as of February 26, 2007, 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