Exhibit 10.1





Exhibit
10.1




THIRD AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND

SECURITY AGREEMENT




THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED FINANCING AND SECURITY AGREEMENT (this
“Agreement”) is made as of the 26th day of April, 2010, by and among ARGAN, INC., a corporation
organized and in good standing under the laws of the State of Delaware (“Argan”), SOUTHERN MARYLAND
CABLE, INC., a corporation organized and in good standing under the laws of the State of Delaware,
VITARICH LABORATORIES, INC., a corporation organized and in good standing under the laws of the
State of Delaware, GEMMA POWER, INC., a corporation organized and in good standing under the laws
of the State of Connecticut, GEMMA POWER SYSTEMS CALIFORNIA, INC., a corporation organized and in
good standing under the laws of the State of California, GEMMA POWER SYSTEMS, LLC, a limited
liability company organized and in good standing under the laws of the state of Connecticut
(“Gemma”), and GEMMA POWER HARTFORD, LLC, a limited liability company organized and in good
standing under the laws of the State of Connecticut, jointly and severally (each a “Borrower”; and
collectively, the “Borrowers”), and BANK OF AMERICA, N.A., a national banking association, its
successors and assigns (the “Lender”).



RECITALS




A. Borrowers and Lender are parties to a Second Amended and Restated Financing and Security
Agreement dated as of December 11, 2006 (the same, as amended, modified, substituted, extended, and
renewed from time to time, the “Financing Agreement”).



B. The Financing Agreement provides for some of the agreements between the Borrowers and the
Lender with respect to the Loans.



C. Borrowers have requested that the Lender extend the Revolving Credit Expiration Date and
amend the Financing Agreement and Lender has agreed to do so, on the condition, among others, that
this Agreement be executed.



AGREEMENTS




NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, receipt of which is hereby acknowledged, the Borrowers and the Lender agree as
follows:



1. Recitals. Borrowers and Lender agree that the Recitals above are a part of this
Agreement. Unless otherwise expressly defined in this Agreement, terms defined in the Financing
Agreement shall have the same meaning under this Agreement.


 


 









 





2. Revised Definition. The definitions of the following terms set forth in Section
1.1 of the Financing Agreement are amended and restated in their entirety as follows:




“Financing Documents” means at any time collectively this Agreement, the Notes, the
Security Documents, the Letter of Credit Documents, the Guaranty and any other instrument,
agreement or document previously, simultaneously or hereafter executed and delivered by any
Borrower, any Guarantor, and/or any other Person, singly or jointly with another Person or
Persons, evidencing, securing, guarantying or in connection with this Agreement, any Note,
any of the Security Documents, any of the Facilities, any Guaranty, and/or any of the
Obligations.




“Permitted Uses” means with respect to the (a) Revolving Loan, the payment of expenses
incurred in the ordinary course of any Borrower’s business and for general working capital
purposes, including loans or advances to the Guarantor, (b) Acquisition Loan, to finance a
portion of the Acquisition and (c) Letter of Credit to support issuance of bonding to
Travelers.




“Revolving Credit Expiration Date” means May 31, 2011.



3. Additional Definitions. Section 1.1 of the Financing Agreement is hereby amended
by adding the following definitions:




“Guarantor” means Gemma Renewable Power, LLC and its successors and assigns.




“Guaranty” means that certain Guaranty of Payment Agreement for the benefit of the
Lender dated April 26, 2010 from Guarantor, as the same may from time to time be amended,
restated, supplemented or otherwise modified.




“Security Agreement” means that certain Security Agreement by Guarantor in favor of
Lender dated April 26, 2010, as the same may from time to time be amended, restated,
supplemented or otherwise modified.



4. Revolving Credit Unused Line Fee. Section 2.1.7 of the Financing Agreement is
hereby amended and restated in its entirety as follows:




“2.1.7 Revolving Credit Unused Line Fee.




The Borrowers shall pay to the Lender a revolving credit facility fee (collectively,
the “Revolving Credit Unused Line Fees” and individually, a “Revolving Credit Unused Line
Fee”) in an amount equal to one half of one percent (.50%) per annum of the average daily
unused and undisbursed portion of the Revolving Credit Committed Amount in effect from time
to time accruing during each month. The accrued and unpaid portion of the Revolving Credit
Unused Line Fee shall be paid by the Borrowers to the Lender monthly in arrears on the last
day of each month, commencing on June 30, 2010 and on the Revolving Credit Termination
Date.”



5. Consent. The Lender hereby consents to Argan’s guaranty of certain obligations of
the Guarantor pursuant to that Certain Contractor Parent Guaranty by Argan, to and for the benefit
of Vantage Wind Energy LLC, dated January 22, 2010 (the “Contractor Parent Guaranty”). In
addition, notwithstanding anything contained in any of the Financing
Documents to the contrary, the Lender agrees that the proceeds of the Revolving Loan may be
loaned and advanced by the Borrowers to the Guarantor for general working capital purposes of the
Guarantor. The Lender’s consent to the Contractor Parent Guaranty shall not be deemed to be a
consent to any amendment, waiver or modification of any other term or condition of any Financing
Document.


 


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6. Counterparts. This Agreement may be executed in any number of duplicate originals
or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original
and all taken together shall constitute but one and the same instrument. Each Borrower agrees that
Lender may rely on a telecopy of any signature of any Borrower. The Lender agrees that the
Borrowers may rely on a telecopy of this Agreement executed by the Lender.




7. Representations. Each Borrower hereby represents and warrants that:



(a) Borrowers have the power and authority to execute and deliver this Agreement and perform
their respective obligations hereunder and have taken all necessary and appropriate action to
authorize the execution, delivery and performance of this Agreement.



(b) The Financing Agreement, as heretofore amended and as amended by this Agreement, and each
of the other Financing Documents remains in full force and effect, and each constitutes the valid
and legally binding obligation of each Borrower, enforceable in accordance with its terms;



(c) Except for those representations and warranties which relate to a specific date, all of
Borrower’s representations and warranties contained in the Financing Agreement and the other
Financing Documents are true and correct on and as of the date of each Borrower’s execution of this
Agreement and the Borrowers have performed or observed all of the terms, covenants, conditions and
obligations of the Financing Agreement and the other Financing Documents, which are required to be
performed or observed by any or all of them on or prior to the date hereof;



(d) No Event of Default and no event which, with notice, lapse of time or both would
constitute an Event of Default, has occurred and is continuing under the Financing Agreement or the
other Financing Documents which has not been waived in writing by the Lender; and



8. Conditions Precedent. The agreements of the Lender under this Agreement are
subject to the following conditions precedent:



(a) The Fifth Amended and Restated Revolving Credit Note (the “Replacement Revolving Note”)
issued and delivered by the Borrowers in the form of EXHIBIT A attached hereto and incorporated
herein by reference, payable to the order of the Bank in the maximum principal amount of four
million two hundred fifty thousand dollars ($4,250,000);



(b) A fully executed Guaranty of Payment Agreement dated of even date herewith, by Guarantor
for the benefit of Lender;


 


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(c) A fully executed Security Agreement dated of even date herewith, by Guarantor in favor of
Lender;



(d) A fully executed certificate by Guarantor authorizing the execution, delivery and
performance of the Guaranty and Security Agreement;



(e) All documents and instruments (including, without limitation, UCC financing statements and
UCC termination statements) required to be filed, registered or recorded in order to create, in
favor of the Lender, a perfected first Lien in the Collateral, in form and in sufficient number for
filing, registration, and recording in each office in each jurisdiction in which such filings,
registrations and recordations are required, along with such evidence as the Lender may deem
satisfactory that all necessary filing fees and all recording and other similar fees, and all taxes
and other expenses related to such filings, registrations and recordings will be or have been paid
in full, and evidence in form satisfactory to Lender that such liens constitute valid and perfected
security interests and liens, and that there are no other Liens upon any Collateral.



(f) The Lender shall have received for each Borrower a certificate of good standing certified
by the Secretary of State, or other appropriate Governmental Authority, of the state of formation
of the Borrower;




(g) The Lender shall have received for Guarantor:



i. true and complete copies of the Guarantor’s organizational and governing documents and all
amendments thereto;



ii. true and complete copies of the resolutions of the Guarantor authorizing the execution,
delivery and performance of the Financing Documents to which the Guarantor is a party and the
granting of the Liens contemplated by any of the Financing Documents to which the Guarantor is a
party;



iii. the incumbency, authority and signatures of the officers of the Guarantor authorized to
sign the Guaranty and all other Financing Documents to which the Guarantor is a party; and



iv. a certificate of good standing certified by the Secretary of State, or other appropriate
Governmental Authority, of the state of formation of the Guarantor.



(h) Payment of the fees described in Paragraph 9 of this Agreement, together with the
Lender’s legal fees and expenses; and



(i) Such other information, instruments, opinions, documents, certificates and reports as the
Lender may deem necessary.



 


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9. Fees and Expenses. The Borrower shall pay at the time this Agreement is executed
and delivered all fees, commissions, costs, charges, taxes and other expenses incurred by the
Lender and its counsel in connection with this Agreement, including, but not limited to, reasonable
fees and expenses of the Lender’s counsel and all recording fees, taxes and charges.



10. Financing Documents; Governing Law; Etc. This Agreement is one of the Financing
Documents defined in the Financing Agreement and shall be governed and construed in accordance with
the laws of the State of Maryland. The headings and captions in this Agreement are for the
convenience of the parties only and are not a part of this Agreement.



11. Acknowledgments. The Borrowers acknowledge and warrant that the Lender has acted
in good faith and has conducted in a commercially reasonable manner its relationships with the
Borrowers in connection with this Agreement and generally in connection with the Financing
Documents and the Obligations, each Borrower hereby waiving and releasing any claims to the
contrary. Each Borrower hereby issues, ratifies and confirms the representations, warranties and
covenants contained in the Financing Agreement, as amended hereby or other Financing Documents.
The Borrowers agree that this Agreement is not intended to and shall not cause a novation with
respect to any or all of the Obligations.



In addition, each Borrower hereby agrees to the execution and delivery of this Agreement and
the terms and provisions, covenants or agreements contained in this Agreement shall not in any
manner release, impair, lessen, modify, waive or otherwise limit the liability and obligations of
each Borrower under the terms of any of the Financing Documents, except as otherwise specifically
set forth in this Agreement.



12. Modifications. This Agreement may not be supplemented, changed, waived,
discharged, terminated, modified or amended, except by written instrument executed by the parties.



[SIGNATURES APPEAR ON THE FOLLOWING PAGE]



 


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IN WITNESS WHEREOF, each of the parties hereto have executed and delivered this Agreement
under their respective seals as of the day and year first written above.



	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Borrowers:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	ARGAN, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Sherolyn Nanson
 


	 	 	 	By:
	 	/s/ Rainer Bosselmann
 

Rainer Bosselmann
	 	(Seal)
	 	 
	 

	 	 	 	 	 	Chairman of the Board and President	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	SOUTHERN MARYLAND
CABLE, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Sherolyn Nanson

	 	 	 	By:
	 	/s/ Arthur Trudel
	 	(Seal)	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Arthur Trudel	 	 	 	 
	 

	 	 	 	 	 	Vice President and Treasurer	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	VITARICH LABORATORIES, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Sherolyn Nanson

	 	 	 	By:
	 	/s/ Arthur Trudel
	 	(Seal)	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Arthur Trudel	 	 	 	 
	 

	 	 	 	 	 	Vice President and Treasurer	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	GEMMA POWER, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Sherolyn Nanson

	 	 	 	By:
	 	/s/ Arthur Trudel
	 	(Seal)	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Arthur Trudel	 	 	 	 
	 

	 	 	 	 	 	Chief Financial Officer	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	GEMMA POWER SYSTEMS
CALIFORNIA, INC.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Sherolyn Nanson

	 	 	 	By:
	 	/s/ Arthur Trudel
	 	(Seal)	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Arthur Trudel	 	 	 	 
	 

	 	 	 	 	 	Chief Financial Officer	 	 	 	 






Signature Page to Third Amendment to Second Amended and Restated Financing Agreement





 


 









 







	 	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	GEMMA POWER SYSTEMS, LLC	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ John Gorzkowski
 


	 	 	 	By:
	 	/s/ William F. Griffin, Jr.
 

William F. Griffin, Jr. 
Manager
	 	(Seal)
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	GEMMA POWER HARTFORD, LLC	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ John Gorzkowski
 


	 	 	 	By:
	 	/s/ William F. Griffin, Jr.
 

William F. Griffin, Jr. 
Manager
	 	(Seal)
	 	 






Signature Page to Third Amendment to Second Amended and Restated Financing Agreement




 


 









 







	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Lender:	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	WITNESS:	 	 	 	BANK OF AMERICA, N.A.	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ A.C. Burns
 


	 	 	 	By:
	 	/s/ Michael J. Radcliffe
 

Name: Michael J. Radcliffe
	 	(Seal)
	 	 
	 

	 	 	 	 	 	Title: Senior Vice President	 	 	 	 






Signature Page to Third Amendment to Second Amended and Restated Financing Agreement




 


 









 







AGREEMENT OF GUARANTOR




The undersigned is the “Guarantor” under a Guaranty of Payment Agreement, dated April 26, 2010
(as amended, modified, substituted, extended and renewed from time to time, the “Guaranty”), in
favor of the Lender. In order to induce the Lender to enter into the foregoing Agreement, the
undersigned (a) consents to the transactions contemplated by, and agreements made by the Borrowers
under, the foregoing Agreement, and (b) ratifies, confirms and reissues the terms, conditions,
promises, covenants, grants, assignments, security agreements, agreements, representations,
warranties and provisions contained in the Guaranty.




WITNESS signature and seal of the undersigned as of the date of the Agreement.



	 	 	 	 	 	 	 	 	 	 	 
	WITNESS/ATTEST:	 	 	 	GEMMA RENEWABLE POWER, LLC	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Michele Suttile	 	 	 	By:	 	/s/ William Carter	 	(SEAL)
	 	 
	 	 	 	 
	Michele Suttile	 	 	 	 	 	William Carter, President	 	 	 	 





Signature Page to Third Amendment to Second Amended and Restated Financing Agreement




 


 









 







EXHIBIT A





 


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