exv10w4



 






	 	 	 	 	 



Exhibit 10.4




AMENDMENT NO. 1 TO

CREDIT AGREEMENT





     This Amendment No. 1 to Credit Agreement (this “Amendment”) is effective as of October 19,
2007, by and between US BIO HANKINSON, LLC, a North Dakota limited liability company (“Borrower”)
and AGSTAR FINANCIAL SERVICES, PCA as Administrative Agent (the “Agent”) for itself and the other
Banks.



RECITALS




     A. The Banks have extended various credit facilities to Borrower for the purposes of
acquiring, constructing, equipping, furnishing and operating an ethanol production facility in
Richland County, North Dakota, pursuant to that certain Credit Agreement dated as of February 7,
2007 (the “Credit Agreement”).



     B. Borrower has requested an amendment to a certain provision of the Credit Agreement, which
amendment has been consented to by the Banks, upon the terms and conditions set forth herein.



     C. Unless otherwise expressly defined herein, capitalized terms used herein shall have the
same meaning ascribed to them in the Credit Agreement.



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 agree as follows:



1. Amendments to Credit Agreement:




     (a) Section 5.01(c)(xvii): Section 5.01(c)(xvii) of the Credit Agreement is amended
and restated in its entirety to read as follows:



     (xvii) beginning with the end of the first fiscal quarter after the Completion
Date, the Borrower will furnish to the Agent as soon as available and in any event
within forty-five (45) days after the end of each fiscal quarter (or at such other
times or with such greater frequency as is reasonably requested by the Agent), a
certificate stating the principal amount of: (a) each loan made by the Borrower to
any Affiliated Borrower or other Affiliate or Subsidiary of the Borrower, (b) each
loan made to the Borrower by any Affiliated Borrower or other Affiliate or
Subsidiary of the Borrower, and (c) each account receivable or account payable of
the Borrower to each Affiliated Borrower or other Affiliate or Subsidiary of 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 the Agent 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.



3. Representations and Warranties. Borrower represents to the Lender that, after giving
effect to this Amendment:




     (a) All of the representations and warranties of the Borrower contained in the Credit
Agreement 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 of the date hereof, except as otherwise specifically stated herein, no Event of Default
has occurred and is continuing.



4. Miscellaneous.




     (a) Effect; Ratification. The amendment set forth herein is 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 Credit 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 Credit Agreement, as amended hereby,
or any other instrument or agreement referred to therein. Each reference in the Credit Agreement
to “this Agreement,” “herein,” “hereof” and words of like import and each reference in the other
Loan Documents to the “Credit Agreement” shall mean the Credit Agreement, as amended hereby.



     (b) Loan Documents. This Amendment is a Loan Document executed pursuant to the Credit
Agreement 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, THE AGENT AND THE BANKS 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 PAGES FOLLOW}




 









 








SIGNATURE PAGE TO

AMENDMENT NO. 1 TO CREDIT AGREEMENT




BY AND BETWEEN




US BIO HANKINSON, LLC,




And




AGSTAR FINANCIAL SERVICES, PCA, AS ADMINISTRATIVE AGENT




DATED AS OF: October 19, 2007



THE BORROWER AND THE AGENT EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS AMENDMENT NO. 1
TO CREDIT AGREEMENT, AND AGREE TO ITS TERMS. THIS AMENDMENT IS DATED AS OF THE DATE FIRST ABOVE
STATED.




BORROWER:




US BIO HANKINSON, LLC

a North Dakota limited liability company




/s/ Kelly S. Langley

By: Kelly S. Langley

Its: Treasurer




 









 





SIGNATURE PAGE TO

AMENDMENT NO. 1 TO CREDIT AGREEMENT




BY AND BETWEEN




US BIO HANKINSON, LLC,




And




AGSTAR FINANCIAL SERVICES, PCA, AS ADMINISTRATIVE AGENT




DATED AS OF: October 19, 2007



THE BORROWER AND THE AGENT EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS AMENDMENT NO. 1
TO CREDIT AGREEMENT, AND AGREE TO ITS TERMS. THIS AMENDMENT IS DATED AS OF THE DATE FIRST ABOVE
STATED.




AGENT:




AGSTAR FINANCIAL SERVICES, PCA,

as Administrative Agent




/s/ Mark Schmidt

By: 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. 1 to Credit
Agreement effective as of October 19, 2007;



     (ii) reaffirms the guaranty of the undersigned, as set forth in that certain Continuing
Guaranty made as of February 7, 2007, by the undersigned for the benefit of Agent and the Banks, is
and shall remain in full force and effect.



	 	 	 	 	 
	 	US BIOENERGY CORPORATION

 	 
	 	By:  	/s/ Kelly S. Langley
 	 
	 	Name: 	Kelly S. Langley	 	 
	 	Its:  Treasurer