ex10a.htm


    Exhibit
10(a)


    
 

    FIRST AMENDMENT TO
CONSTRUCTION AND TERM LOAN AGREEMENT

     

    THIS FIRST AMENDMENT TO CONSTRUCTION
AND TERM LOAN AGREEMENT (this "Amendment") is made
and entered into as of August 6, 2008, by and between CITRUS CORP., a Delaware
corporation (the “Borrower”), PIPELINE FUNDING COMPANY, LLC,
a Delaware limited liability company, and the additional lenders party to the
Loan Agreement (as defined below) from time to time (collectively, the “Lenders”), and PIPELINE FUNDING COMPANY, LLC,
a Delaware limited liability company, as Administrative Agent (as defined in the
Loan Agreement) (the Borrower, the Lenders and the Agent are sometimes referred
as a “Party”
and collectively as the “Parties”).

    


    W I T N E S S E T H :

    


    WHEREAS, the Parties entered
into that certain Construction and Term Loan Agreement (the “Loan Agreement”),
dated as of February 5, 2008;

    


    WHEREAS, Borrower requested that its ability
to draw down on the Loan be accelerated and the Parties have agreed that the
Funding Date shall be October 1, 2008, subject to the terms and conditions
contained in the Loan Agreement; and

    


    WHEREAS, in connection with
such request, the Parties have agreed to certain modifications and amendments to
the Loan Agreement, as more particularly set forth herein.

    


    A G R E E M E N T

    


    NOW, THEREFORE, for and in
consideration of the matters described in the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:

    


    1.           Capitalized
Terms.  All
capitalized terms used but not defined herein shall have the meanings ascribed
thereto in the Loan Agreement.  The term “Agreement” as used in the
Loan Agreement includes this Amendment.

    


    2.           Effect on
Existing Loan Agreement.  Except as
specifically set forth herein, all other terms and conditions of the Loan
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect.  Borrower hereby represents and warrants that, as of the
date hereof, Borrower neither has nor claims any causes of action, defenses,
offsets or counterclaims to or with respect to any obligations or indebtedness
under the Loan Agreement, as amended hereby, or under any of the other Loan
Documents, as the case may be.

    


    
      
        
        

      

      
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    3.           Amendments
to Loan Agreement.  The Loan
Agreement is hereby modified as follows:

    


    (a)           The
following definition contained in Section 1.01 of the Loan Agreement is hereby
amended and restated in its entirety to read as follows:

    


    ““Funding Date” means
October 1, 2008.”

    


    (b)           The
defined term “Termination Date” set forth in Section 1.01 of the Loan Agreement
is deleted in its entirety.

    


    (c)           Section
2.01(a) of the Loan Agreement is deleted in its entirety and the following
inserted in lieu thereof:

    


    “Construction Loan
Availability.  Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make a Construction Loan to the Borrower on
the Funding Date, so long as the aggregate outstanding principal amount of the
Construction Loan owing to such Lender does not exceed the amount set forth
opposite such Lender’s name on the signature pages hereof or if such Lender has
entered into any Assignment and Acceptance, then as set forth for such Lender in
the Register maintained by the Administrative Agent pursuant to
Section 8.06(d) (such Lender’s “Commitment”).  Monies
borrowed under this Section 2.01, once repaid, may not be
reborrowed.”

    


    (d)           The
second sentence of Section 2.01(b) of the Loan Agreement is deleted in its
entirety and the following inserted in lieu thereof:

    


    “Notwithstanding
the foregoing provision to the contrary, the Administrative Agent, at the
direction of the Majority Lenders, may, at any time on or after April 1, 2009,
elect to convert the outstanding Construction Loan to a Term Loan bearing
interest at the Treasury Rate plus the Applicable Margin as provided in Section
2.04(b), such conversion to be effective no sooner than fourteen (14) days
following notice thereof from the Administrative Agent to the
Borrower.”

    


    (e)           Section
2.02(a) of the Loan Agreement is deleted in its entirety and the following
inserted in lieu thereof:

    


    “The
Borrower shall deliver a Funding Certificate to the Administrative Agent,
together with all supporting detail contemplated to be delivered therewith, at
least seven (7) days prior to the Funding Date.  The Borrower agrees
(i) to accept the full amount of the Construction Loan to be funded on the
Funding Date, and (ii) to use commercially reasonable efforts to timely satisfy
each of the Lenders’ conditions precedent to funding hereunder.  The
Administrative Agent shall promptly notify each Lender of the contents of the
Funding Certificate.”

    


    
      	
              (f)  

            	
              Section
      3.02(h) of the Loan Agreement is deleted in its
  entirety.

            


    

    


    
      
        
        

      

      
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               4.           Miscellaneous.  The parties
hereby further agree as follows:

    


    (a)           Completeness and
Modification.  This Amendment (together with the Loan
Agreement, as amended hereby, and the other Loan Documents) shall constitute the
entire agreement between the Parties with respect to the transactions
contemplated hereby and shall supersede all prior discussions, understandings,
agreements and negotiations between the Parties.  This Amendment may
be modified only by written instrument duly executed by all of the
Parties.

    


    (b)           Successors and
Assigns.  This Amendment shall bind and inure to the benefit of
the Parties and their respective successors and assigns.

    


    (c)           Governing Law,
etc.  Sections 8.07,  8.10, 8.12, 8.13 and 8.14 of
the Loan Agreement are incorporated by reference, apply to and are made a part
of this Amendment.

    


    (d)           Headings.  Paragraph
or other headings contained in this Amendment are for reference purposes only
and are not intended to affect in any way the meaning or interpretation of this
Amendment.

    


    (e)           Representations and
Warranties; No Defaults.  Borrower hereby represents and
warrants that (i) each representation and warranty of the Borrower under the
Loan Documents is true and correct in all material respects as if made as of the
date hereof, unless such representation or warranty expressly relates solely to
another time (which shall be true and correct in all material respects as of
such other time), (ii) no event or circumstance that could reasonably be
expected to have a Material Adverse Change has occurred and is continuing since
December 31, 2006, and (iii) no Event of Default or Default has occurred or is
continuing or will result from this Amendment.

    


    


    


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    IN WITNESS WHEREOF, the
Parties have executed and delivered this First Amendment to Construction and
Term Loan Agreement as of the day and year
first above written.

     

    BORROWER:

     

    CITRUS CORP.

     

    By:
_________________________________

    Name:
_______________________________

    Title:
________________________________

    


    


    STATE OF
TEXAS                                             )

    )
ss.

    COUNTY OF
HARRIS                                        )

    


    Personally
appeared before me, the undersigned, a Notary Public in and for said County,
______________________, to me known and known to me, who, being by me first duly
sworn, declared that he is the __________________ of Citrus Corp., and that
being duly authorized he did execute the foregoing instrument before me for the
purposes set forth therein.

    


    IN
WITNESS WHEREOF, I have hereto set my hand and official seal at Houston, Texas,
this 6th day of
August, 2008.

    


    


    ______________________________

    Notary
Public

    My
Commission Expires:

    



    
      
        
           

           

        

         


      

      
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    ADMINISTRATIVE
AGENT:

    


    PIPELINE
FUNDING COMPANY, LLC

    


    By:
___________________________________

    Name:
_________________________________

    Title:
__________________________________

    


    STATE OF
___________________             
 )

    )
ss.

    COUNTY
OF_________________                 )

    


    Personally
appeared before me, the undersigned, a Notary Public in and for said County,
______________________, to me known and known to me, who, being by me first duly
sworn, declared that he/she is the __________________ of Pipeline Funding
Company, LLC, and that being duly authorized he/she did execute the foregoing
instrument before me for the purposes set forth therein.

    


    IN
WITNESS WHEREOF, I have hereto set my hand and official seal at ______________,
______________, this ____ day of ____________, 20____

    


    


    ________________________________

    Notary
Public

    My
Commission Expires:

    


    


     


    
      
        
           

           

        

         


      

      
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    LENDER:

     

    PIPELINE FUNDING COMPANY,
LLC

     

    By:
_________________________________

    Name:
_______________________________

    Title:
________________________________

     

    


    STATE OF
___________________               )

    )
ss.

    COUNTY
OF_________________                 )

    


    Personally
appeared before me, the undersigned, a Notary Public in and for said County,
______________________, to me known and known to me, who, being by me first duly
sworn, declared that he/she is the __________________ of Pipeline Funding
Company, LLC, and that being duly authorized he/she did execute the foregoing
instrument before me for the purposes set forth therein.

    


    IN
WITNESS WHEREOF, I have hereto set my hand and official seal at ______________,
______________, this ____ day of ____________, 20____

    


    


    ________________________________

    Notary
Public

    My
Commission Expires:

    


    


    



    
      
        
           

        

         


      

      
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