exv10w8



 





Exhibit 10.8




AMENDMENT NO. 2 TO

CREDIT AGREEMENT




     This Amendment No. 2 to Credit Agreement (this “Amendment”) is effective as of November 1,
2007, by and between US BIO DYERSVILLE, LLC, a Delaware limited liability company (“Borrower”) and
AGSTAR FINANCIAL SERVICES, PCA as Administrative Agent (the “Agent”) for itself and the other Banks
(as defined in the Credit Agreement).



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
Dubuque County, Iowa, pursuant to that certain Credit Agreement dated as of February 7, 2007 (as
amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).



     B. On October 19, 2007, Borrower and Lender entered into that certain Amendment No. 1 to
Credit Agreement amending certain provisions of the Credit Agreement.



     C. 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.



     D. 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 5.02(i): Section 5.02(i) of the Credit Agreement is modified by adding
the following subsection:




(xii) the Borrower may lease storage space to a third party solely for the storage
of grain or other agricultural products which are to be purchased by the Borrower,
provided that such lease does not violate that 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 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 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. 2 TO CREDIT AGREEMENT




BY AND BETWEEN




US BIO DYERSVILLE, LLC,




And




AGSTAR FINANCIAL SERVICES, PCA, AS ADMINISTRATIVE AGENT




DATED AS OF: November 1, 2007



THE BORROWER AND THE AGENT EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS AMENDMENT NO. 2
TO CREDIT AGREEMENT, AND AGREE TO ITS TERMS. THIS AMENDMENT IS DATED AS OF THE DATE FIRST ABOVE
STATED.




BORROWER:




US BIO DYERSVILLE, LLC

a Delaware limited liability company




	 	 	 
	/s/ Kelly S. Langley
 
By:
Kelly S. Langley


Its: Treasurer

	 	 





 









 






SIGNATURE PAGE TO

AMENDMENT NO. 2 TO CREDIT AGREEMENT




BY AND BETWEEN




US BIO DYERSVILLE, LLC,




And




AGSTAR FINANCIAL SERVICES, PCA, AS ADMINISTRATIVE AGENT




DATED AS OF: November 1, 2007



THE BORROWER AND THE AGENT EACH ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THIS AMENDMENT NO. 2
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. 2 to Credit
Agreement effective as of November 1, 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