10-Q
Green Plains Inc. (GPRE)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 10-Q
(Mark One)
☒ Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the Quarterly Period Ended March 31, 2025
OR
☐ Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
For the transition period from ______ to ______
Commission File Number 001-32924
GREEN PLAINS INC.
(Exact name of registrant as specified in its charter)
| Iowa | 84-1652107 |
|---|---|
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 1811 Aksarben Drive, Omaha, NE 68106 | (402) 884-8700 |
| (Address of principal executive offices, including zip code) | (Registrant’s telephone number, including area code) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered |
|---|---|---|
| Common Stock, par value $0.001 per share | GPRE | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
☒ Yes ☐ No
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
☒ Yes ☐ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☒ | Accelerated filer | ☐ | ||
|---|---|---|---|---|---|
| Non-accelerated filer | ☐ | ||||
| Smaller reporting company | ☐ | Emerging growth company | ☐ |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
☐ Yes ☒ No
The registrant had 65,399,452 common stock outstanding as of May 5, 2025.
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TABLE OF CONTENTS
| Page | ||
|---|---|---|
| Commonly Used Defined Terms | 3 | |
| PART I – FINANCIAL INFORMATION | ||
| Item 1. | Financial Statements | 5 |
| Consolidated Balance Sheets | 5 | |
| Consolidated Statements of Operations | 6 | |
| Consolidated Statements of Comprehensive Income (Loss) | 7 | |
| Consolidated Statements of Cash Flows | 8 | |
| Notes to Consolidated Financial Statements | 10 | |
| Item 2. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | 31 |
| Item 3. | Quantitative and Qualitative Disclosures About Market Risk | 44 |
| Item 4. | Controls and Procedures | 46 |
| PART II – OTHER INFORMATION | ||
| Item 1. | Legal Proceedings | 47 |
| Item 1A. | Risk Factors | 47 |
| Item 2. | Unregistered Sales of Equity Securities and Use of Proceeds | 48 |
| Item 3. | Defaults Upon Senior Securities | 49 |
| Item 4. | Mine Safety Disclosures | 49 |
| Item 5. | Other Information | 49 |
| Item 6. | Exhibits | 49 |
| Signatures |
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Commonly Used Defined Terms
Green Plains Inc. and Subsidiaries:
| Green Plains Inc.; Green Plains; the company | Green Plains Inc. and its subsidiaries |
|---|---|
| FQT | Fluid Quip Technologies, LLC |
| Green Plains Commodity Management | Green Plains Commodity Management LLC |
| Green Plains Finance Company | Green Plains Finance Company LLC |
| Green Plains Grain | Green Plains Grain Company LLC |
| Green Plains Mount Vernon; Mount Vernon | Green Plains Mount Vernon LLC |
| Green Plains Obion; Obion | Green Plains Obion LLC |
| Green Plains Partners; the partnership | Green Plains Partners LP |
| Green Plains Shenandoah; Shenandoah | Green Plains Shenandoah LLC |
| Green Plains Trade | Green Plains Trade Group LLC |
| Green Plains Wood River; Wood River | Green Plains Wood River LLC |
Accounting Defined Terms:
| ASC | Accounting Standards Codification |
|---|---|
| EBITDA | Earnings before interest expense, income taxes, depreciation and amortization |
| EPS | Earnings per share |
| Exchange Act | Securities Exchange Act of 1934, as amended |
| GAAP | U.S. Generally Accepted Accounting Principles |
| SEC | Securities and Exchange Commission |
| SOFR | Secured Overnight Financing Rate |
Industry and Other Defined Terms:
| ATJ | Alcohol-to-Jet |
|---|---|
| BlackRock | Funds and accounts managed by BlackRock |
| the Board; our Board | Board of Directors of Green Plains Inc. |
| CI | Carbon Intensity |
| CST™ | Clean Sugar Technology™ developed by Fluid Quip Technologies, LLC |
| DOE | Department of Energy |
| E10 | Gasoline blended with up to 10% ethanol by volume |
| E15 | Gasoline blended with up to 15% ethanol by volume |
| EIA | U.S. Energy Information Administration |
| EPA | U.S. Environmental Protection Agency |
| EV | Electric Vehicle |
| FFV | Flexible-fuel vehicle |
| GHG | Greenhouse gas |
| GP Turnkey Tharaldson | GP Turnkey Tharaldson LLC |
| GREET | Greenhouse gases, Regulated Emissions, and Energy use in Technologies |
| IRA | Inflation Reduction Act |
| LCFS | Low Carbon Fuel Standard |
| Merger | Merger of GPLP Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of GPLP Holdings Inc., a wholly owned subsidiary of Green Plains ("Holdings"), with and into the partnership, with the partnership surviving such merger |
| Merger Agreement | Certain Agreement and Plan of Merger, dated as of September 16, 2023, by and among Green Plains Inc., Holdings, GPLP Merger Sub LLC, a wholly owned subsidiary of Holdings, Green Plains Partners LP, and Green Plains Holdings LLC, the general partner of the partnership (the "General Partner") |
| MmBtu | Million British Thermal Units |
| Mmg | Million gallons |
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| MSC™ | Maximized Stillage Co-products™ technology developed by Fluid Quip Technologies, LLC |
|---|---|
| MTBE | Methyl tertiary-butyl ether |
| RFS | Renewable Fuels Standard |
| RIN | Renewable identification number |
| RVO | Renewable volume obligation |
| SAF | Sustainable Aviation Fuel |
| Sequence™ | A foundational feed ingredient made from a combination of corn and yeast protein, concentrated at 60%. |
| SRE | Small refinery exemption |
| U.S. | United States |
| USDA | U.S. Department of Agriculture |
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PART 1 – FINANCIAL INFORMATION
Item 1. Financial Statements.
GREEN PLAINS INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
| March 31,<br>2025 | December 31,<br>2024 | |||
|---|---|---|---|---|
| (unaudited) | ||||
| ASSETS | ||||
| Current assets | ||||
| Cash and cash equivalents | $ | 98,610 | $ | 173,041 |
| Restricted cash | 27,993 | 36,354 | ||
| Accounts receivable, net of allowances of $90 and $80, respectively | 97,093 | 94,901 | ||
| Inventories | 187,071 | 227,444 | ||
| Prepaid expenses and other | 21,752 | 27,138 | ||
| Derivative financial instruments | 17,791 | 10,154 | ||
| Total current assets | 450,310 | 569,032 | ||
| Property and equipment, net of accumulated depreciation and amortization of $771,690 and $749,593, respectively | 1,051,005 | 1,042,460 | ||
| Operating lease right-of-use assets | 65,879 | 72,161 | ||
| Other assets | 99,378 | 98,521 | ||
| Total assets | $ | 1,666,572 | $ | 1,782,174 |
| LIABILITIES AND STOCKHOLDERS' EQUITY | ||||
| Current liabilities | ||||
| Accounts payable | $ | 102,305 | $ | 154,817 |
| Accrued and other liabilities | 48,548 | 53,712 | ||
| Derivative financial instruments | 12,038 | 9,500 | ||
| Operating lease current liabilities | 23,302 | 24,711 | ||
| Short-term notes payable and other borrowings | 137,424 | 140,829 | ||
| Current maturities of long-term debt | 2,118 | 2,118 | ||
| Total current liabilities | 325,735 | 385,687 | ||
| Long-term debt | 432,236 | 432,460 | ||
| Operating lease long-term liabilities | 44,426 | 49,190 | ||
| Other liabilities | 56,987 | 40,300 | ||
| Total liabilities | 859,384 | 907,637 | ||
| Commitments and contingencies (Note 13) | ||||
| Stockholders' equity | ||||
| Common stock, $0.001 par value; 150,000,000 shares authorized; 68,200,032 and 67,512,282 shares issued, and 65,394,973 and 64,707,223 shares outstanding, respectively | 68 | 68 | ||
| Additional paid-in capital | 1,221,114 | 1,213,646 | ||
| Retained deficit | (391,204) | (318,298) | ||
| Accumulated other comprehensive income (loss) | (1,297) | 973 | ||
| Treasury stock, 2,805,059 shares | (31,174) | (31,174) | ||
| Total Green Plains stockholders' equity | 797,507 | 865,215 | ||
| Noncontrolling interests | 9,681 | 9,322 | ||
| Total stockholders' equity | 807,188 | 874,537 | ||
| Total liabilities and stockholders' equity | $ | 1,666,572 | $ | 1,782,174 |
See accompanying notes to the consolidated financial statements.
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GREEN PLAINS INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(unaudited and in thousands, except per share amounts)
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Revenues | $ | 601,515 | $ | 597,214 |
| Costs and expenses | ||||
| Cost of goods sold (excluding depreciation and amortization expenses reflected below) | 598,476 | 588,847 | ||
| Selling, general and administrative expenses | 42,912 | 31,769 | ||
| Depreciation and amortization expenses | 22,387 | 21,487 | ||
| Total costs and expenses | 663,775 | 642,103 | ||
| Operating loss | (62,260) | (44,889) | ||
| Other income (expense) | ||||
| Interest income | 1,003 | 2,510 | ||
| Interest expense | (8,913) | (7,786) | ||
| Other, net | (1,515) | 449 | ||
| Total other expense | (9,425) | (4,827) | ||
| Loss before income taxes and loss from equity method investees | (71,685) | (49,716) | ||
| Income tax expense | (106) | (329) | ||
| Loss from equity method investees, net of income taxes | (850) | (1,077) | ||
| Net loss | (72,641) | (51,122) | ||
| Net income attributable to noncontrolling interests | 265 | 290 | ||
| Net loss attributable to Green Plains | $ | (72,906) | $ | (51,412) |
| Earnings per share | ||||
| Net loss attributable to Green Plains - basic and diluted | $ | (1.14) | $ | (0.81) |
| Weighted average shares outstanding | ||||
| Basic and diluted | 64,069 | 63,341 |
See accompanying notes to the consolidated financial statements.
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GREEN PLAINS INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(unaudited and in thousands)
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Net loss | $ | (72,641) | $ | (51,122) |
| Other comprehensive loss, net of tax | ||||
| Unrealized losses on derivatives arising during the period, net of tax benefit of $725 and $1,916, respectively | (2,307) | (6,043) | ||
| Reclassification of realized losses on derivatives, net of tax benefit of ($12) and ($1,682), respectively | 37 | 5,305 | ||
| Total other comprehensive loss, net of tax | (2,270) | (738) | ||
| Comprehensive loss | (74,911) | (51,860) | ||
| Comprehensive income attributable to noncontrolling interests | 265 | 290 | ||
| Comprehensive loss attributable to Green Plains | $ | (75,176) | $ | (52,150) |
See accompanying notes to the consolidated financial statements.
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GREEN PLAINS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited and in thousands)
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Cash flows from operating activities | ||||
| Net loss | $ | (72,641) | $ | (51,122) |
| Adjustments to reconcile net loss to net cash used in operating activities | ||||
| Depreciation and amortization | 22,387 | 21,487 | ||
| Amortization of debt issuance costs and non-cash interest expense | 486 | 609 | ||
| Inventory lower of cost or net realizable value adjustment | 2,519 | 4,202 | ||
| Deferred income tax expense | 713 | 233 | ||
| Stock-based compensation | 8,840 | 3,053 | ||
| Loss from equity method investees, net of income taxes | 850 | 1,077 | ||
| Other | 1,073 | 858 | ||
| Changes in operating assets and liabilities | ||||
| Accounts receivable | (2,202) | 6,890 | ||
| Inventories | 38,360 | 20,459 | ||
| Derivative financial instruments | (8,082) | 7,010 | ||
| Prepaid expenses and other assets | 5,419 | (627) | ||
| Accounts payable and accrued liabilities | (55,815) | (65,787) | ||
| Current income taxes | 140 | 446 | ||
| Other | 2,912 | 613 | ||
| Net cash used in operating activities | (55,041) | (50,599) | ||
| Cash flows from investing activities | ||||
| Purchases of property and equipment, net | (16,710) | (21,795) | ||
| Investment in equity method investees, net | (4,000) | (8,408) | ||
| Net cash used in investing activities | (20,710) | (30,203) | ||
| Cash flows from financing activities | ||||
| Payments of principal on long-term debt | (480) | (2,009) | ||
| Proceeds from short-term borrowings | 182,319 | 181,430 | ||
| Payments on short-term borrowings | (185,755) | (157,570) | ||
| Payments on extinguishment of non-controlling interest | — | (29,196) | ||
| Payments of transaction costs | — | (5,951) | ||
| Payments related to tax withholdings for stock-based compensation | (1,372) | (4,222) | ||
| Other financing activities | (1,753) | (3,060) | ||
| Net cash used in financing activities | (7,041) | (20,578) | ||
| Net change in cash and cash equivalents, and restricted cash | (82,792) | (101,380) | ||
| Cash and cash equivalents, and restricted cash, beginning of period | 209,395 | 378,762 | ||
| Cash and cash equivalents, and restricted cash, end of period | $ | 126,603 | $ | 277,382 |
Continued on the following page
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GREEN PLAINS INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited and in thousands)
Continued from the previous page
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Reconciliation of total cash and cash equivalents, and restricted cash | ||||
| Cash and cash equivalents | $ | 98,610 | $ | 237,302 |
| Restricted cash | 27,993 | 40,080 | ||
| Total cash and cash equivalents, and restricted cash | $ | 126,603 | $ | 277,382 |
| Supplemental disclosures of cash flow | ||||
| Cash paid (refunded) for income taxes, net | $ | 29 | $ | (9) |
| Cash paid for interest | $ | 9,689 | $ | 8,888 |
| Capital expenditures in accounts payable | $ | 5,662 | $ | 5,413 |
| Capital expenditures in other liabilities | $ | 28,509 | $ | — |
| Issuance of common stock as a result of the Merger | $ | — | $ | 5 |
| Non-cash extinguishment of non-controlling interest within additional paid-in capital | $ | — | $ | 133,765 |
| Non-cash asset retirement obligation additions | $ | 4,691 | $ | 568 |
See accompanying notes to the consolidated financial statements.
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GREEN PLAINS INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
1. BASIS OF PRESENTATION, DESCRIPTION OF BUSINESS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
References to the Company
References to “Green Plains” or the “company” in the consolidated financial statements and in these notes to the consolidated financial statements refer to Green Plains Inc., an Iowa corporation, and its subsidiaries.
Consolidated Financial Statements
The consolidated financial statements include the company’s accounts and all significant intercompany balances and transactions are eliminated. Unconsolidated entities are included in the financial statements on an equity method basis.
On January 9, 2024, the transactions contemplated by the Merger Agreement were completed and the company acquired all of the publicly held common units of the partnership not already owned by the company and its affiliates. Refer to Note 3 - Acquisition included herein for more information.
The company also owns a majority interest in FQT, with their results being consolidated in our consolidated financial statements.
The accompanying consolidated financial statements are prepared in accordance with GAAP for interim financial information and the instructions to Form 10-Q and Article 10 of Regulation S-X. Because they do not include all of the information and footnotes required by GAAP for complete financial statements, the consolidated financial statements should be read in conjunction with the company’s annual report on Form 10-K for the year ended December 31, 2024, filed with the SEC on February 7, 2025.
The unaudited financial information reflects adjustments, which are, in the opinion of management, necessary for a fair presentation of results of operations, financial position and cash flows for the periods presented. The adjustments are normal and recurring in nature, unless otherwise noted. Interim period results are not necessarily indicative of the results to be expected for the entire year.
Use of Estimates in the Preparation of Consolidated Financial Statements
The preparation of consolidated financial statements in conformity with GAAP requires management to make certain estimates and assumptions that affect the reported amounts of assets and liabilities, disclosure of contingent assets and liabilities at the date of the consolidated financial statements, and the reported amounts of revenues and expenses during the reporting period. The company bases its estimates on historical experience and assumptions it believes are proper and reasonable under the circumstances and regularly evaluates the appropriateness of its estimates and assumptions. Actual results could differ from those estimates. Certain accounting policies, including but not limited to those relating to derivative financial instruments and accounting for income taxes, are impacted significantly by judgments, assumptions and estimates used in the preparation of the consolidated financial statements.
Description of Business
The company operates within two operating segments: (1) ethanol production, which includes the production, storage and transportation of ethanol, distillers grains, Ultra-High Protein and renewable corn oil and (2) agribusiness and energy services, which includes grain handling and storage, commodity marketing and merchant trading for company-produced and third-party ethanol, distillers grains, renewable corn oil, natural gas and other commodities.
Cash and Cash Equivalents
Cash and cash equivalents includes bank deposits as well as short-term, highly liquid investments with original maturities of three months or less.
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Restricted Cash
The company has restricted cash, which can only be used for funding letters of credit and for payment towards a credit agreement. Restricted cash also includes cash margins and securities pledged to commodity exchange clearinghouses. To the degree these segregated balances are cash and cash equivalents, they are considered restricted cash on the consolidated balance sheets.
Revenue Recognition
The company recognizes revenue when obligations under the terms of a contract with a customer are satisfied. Generally this occurs with the transfer of control of products or services. Revenue is measured as the amount of consideration expected to be received in exchange for transferring goods or providing services. Sales, value add, and other taxes the company collects concurrent with revenue-producing activities are excluded from revenue.
Sales of ethanol, distillers grains, Ultra-High Protein, renewable corn oil, natural gas and other commodities by the company’s marketing business are recognized when obligations under the terms of a contract with a customer are satisfied. Generally, this occurs with the transfer of control of products or services. Revenues related to marketing for third parties are presented on a gross basis as the company controls the product prior to the sale to the end customer, takes title of the product and has inventory risk. Unearned revenue is recorded for goods in transit when the company has received payment but control has not yet been transferred to the customer. Revenues for receiving, storing, transferring and transporting ethanol and other fuels are recognized when the product is delivered to the customer.
The company routinely enters into physical-delivery energy commodity purchase and sale agreements. At times, the company settles these transactions by transferring its obligations to other counterparties rather than delivering the physical commodity. Revenues include net gains or losses from derivatives related to products sold while cost of goods sold includes net gains or losses from derivatives related to commodities purchased. Revenues also include realized gains and losses on related derivative financial instruments and reclassifications of realized gains and losses on cash flow hedges from accumulated other comprehensive income or loss.
Sales of products are recognized when control of the product is transferred to the customer, which depends on the agreed upon shipment or delivery terms.
Shipping and Handling Costs
The company accounts for shipping and handling activities related to contracts with customers as costs to fulfill its promise to transfer the associated products. Accordingly, the company records customer payments associated with shipping and handling costs as a component of revenue, and classifies such costs as a component of cost of goods sold.
Cost of Goods Sold
Cost of goods sold includes materials, direct labor, shipping, plant overhead and transportation costs. Materials include the cost of corn feedstock, denaturant, and process chemicals. Corn feedstock costs include gains and losses on related derivative financial instruments not designated as cash flow hedges, inbound freight charges, inspection costs and transfer costs, as well as reclassifications of gains and losses on cash flow hedges from accumulated other comprehensive income or loss. Direct labor includes all compensation and related benefits of non-management personnel involved in production. Shipping costs incurred by the company, including railcar costs, are also reflected in cost of goods sold. Plant overhead consists primarily of plant utilities, and repairs and maintenance. Transportation costs include railcar leases, freight and shipping of the company's products, as well as storage costs incurred at destination terminals.
The company uses exchange-traded futures and options contracts and forward purchase and sale contracts to attempt to minimize the effect of price changes on ethanol, renewable corn oil, grain and natural gas. Exchange-traded futures and options contracts are valued at quoted market prices and settled predominantly in cash. The company is exposed to loss when counterparties default on forward purchase and sale contracts. Grain inventories held for sale and forward purchase and sale contracts are valued at market prices when available or other market quotes adjusted for basis differences, primarily in transportation, between the exchange-traded market and local market where the terms of the contract is based. Changes in forward purchase contracts and exchange-traded futures and options contracts are recognized as a component of cost of goods sold.
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Derivative Financial Instruments
The company uses various derivative financial instruments, including exchange-traded futures and exchange-traded and over-the-counter options contracts, to attempt to minimize risk and the effect of commodity price changes including but not limited to, corn, ethanol, natural gas and other agricultural and energy products. The company monitors and manages this exposure as part of its overall risk management policy to reduce the adverse effect market volatility may have on its operating results. The company may hedge these commodities as one way to mitigate risk; however, there may be situations when these hedging activities themselves result in losses.
By using derivatives to hedge exposures to changes in commodity prices, the company is exposed to credit and market risk. The company’s exposure to credit risk includes the counterparty’s failure to fulfill its performance obligations under the terms of the derivative contract. The company minimizes its credit risk by entering into transactions with high quality counterparties, limiting the amount of financial exposure it has with each counterparty and monitoring their financial condition. Market risk is the risk that the value of the financial instrument might be adversely affected by a change in commodity prices or interest rates. The company manages market risk by incorporating parameters to monitor exposure within its risk management strategy, which limits the types of derivative instruments and strategies the company can use and the degree of market risk it can take using derivative instruments.
Forward contracts are recorded at fair value unless the contracts qualify for, and the company elects, normal purchase or sale exceptions. Changes in fair value are recorded in operating income unless the contracts qualify for, and the company elects, cash flow hedge accounting treatment.
Certain qualifying derivatives related to ethanol production and agribusiness and energy services are designated as cash flow hedges. The company evaluates the derivative instrument to ascertain its effectiveness prior to entering into cash flow hedges. Unrealized gains and losses are reflected in accumulated other comprehensive income or loss until the gain or loss from the underlying hedged transaction is realized and the physical transaction is completed. When it becomes probable a forecasted transaction will not occur, the cash flow hedge treatment is discontinued, which affects earnings. These derivative financial instruments are recognized in current assets or current liabilities at fair value.
At times, the company hedges its exposure to changes in inventory values and designates qualifying derivatives as fair value hedges. The carrying amount of the hedged inventory is adjusted in the current period for changes in fair value. Estimated fair values carried at market are based on exchange-quoted prices, adjusted as appropriate for regional location basis values which represent differences in local markets including transportation as well as quality or grade differences. Basis values are generally determined using inputs from broker quotations or other market transactions. However, a portion of the value may be derived using unobservable inputs. Ineffectiveness of the hedges is recognized in the current period to the extent the change in fair value of the inventory is not offset by the change in fair value of the derivative.
Investments in Equity Method Investees
The company's equity method investments, which consist primarily of the company's 50% investment in GP Turnkey Tharaldson, totaled $54.6 million and $51.6 million as of March 31, 2025 and December 31, 2024, respectively, and are reflected in other assets on the consolidated balance sheet. The company did not capitalize any interest related to our equity method investments during the three months ended March 31, 2025. Interest capitalized during the three months ended March 31, 2024 totaled $0.5 million.
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2. REVENUE
Revenue by Source
The following tables disaggregate revenue by major source (in thousands):
| Three Months Ended March 31, 2025 | ||||||||
|---|---|---|---|---|---|---|---|---|
| Ethanol Production | Agribusiness & Energy<br>Services | Eliminations | Total | |||||
| Revenues | ||||||||
| Revenues from contracts with customers under ASC 606 | ||||||||
| Ethanol | $ | — | $ | — | $ | — | $ | — |
| Distillers grains | 19,389 | 3,560 | — | 22,949 | ||||
| Other | 11,244 | 1,653 | — | 12,897 | ||||
| Intersegment revenues | 314 | 68 | (382) | — | ||||
| Total revenues from contracts with customers | 30,947 | 5,281 | (382) | 35,846 | ||||
| Revenues from contracts accounted for as derivatives under ASC 815 (1) | ||||||||
| Ethanol | 378,221 | 70,102 | — | 448,323 | ||||
| Distillers grains | 57,534 | 6,081 | — | 63,615 | ||||
| Renewable corn oil | 31,070 | — | — | 31,070 | ||||
| Other | — | 22,661 | — | 22,661 | ||||
| Intersegment revenues | — | 5,704 | (5,704) | — | ||||
| Total revenues from contracts accounted for as derivatives | 466,825 | 104,548 | (5,704) | 565,669 | ||||
| Total Revenues | $ | 497,772 | $ | 109,829 | $ | (6,086) | $ | 601,515 |
| Three Months Ended March 31, 2024 | ||||||||
| --- | --- | --- | --- | --- | --- | --- | --- | --- |
| Ethanol Production | Agribusiness & Energy<br>Services | Eliminations | Total | |||||
| Revenues | ||||||||
| Revenues from contracts with customers under ASC 606 | ||||||||
| Ethanol | $ | — | $ | — | $ | — | $ | — |
| Distillers grains | 24,800 | — | — | 24,800 | ||||
| Other | 14,347 | 2,412 | — | 16,759 | ||||
| Intersegment revenues | 1,213 | 89 | (1,302) | — | ||||
| Total revenues from contracts with customers | 40,360 | 2,501 | (1,302) | 41,559 | ||||
| Revenues from contracts accounted for as derivatives under ASC 815 (1) | ||||||||
| Ethanol | 350,112 | 73,375 | — | 423,487 | ||||
| Distillers grains | 77,923 | 9,690 | — | 87,613 | ||||
| Renewable corn oil | 34,160 | — | — | 34,160 | ||||
| Other | 3,104 | 7,291 | — | 10,395 | ||||
| Intersegment revenues | — | 6,139 | (6,139) | — | ||||
| Total revenues from contracts accounted for as derivatives | 465,299 | 96,495 | (6,139) | 555,655 | ||||
| Total Revenues | $ | 505,659 | $ | 98,996 | $ | (7,441) | $ | 597,214 |
(1)Revenues from contracts accounted for as derivatives represent physically settled derivative sales that are outside the scope of ASC 606.
Major Customer
Revenues from Customer A represented approximately 13% and 15% of total revenues for the three months ended March 31, 2025 and 2024, respectively, recorded within the ethanol production segment. Revenues from Customer B and Customer C represented approximately 12% and 10%, respectively, of total revenues for the three months ended March 31, 2025, recorded within the ethanol production segment.
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3. ACQUISITION
Green Plains Partners Merger
On January 9, 2024, the transactions contemplated by the Merger Agreement were completed and the company issued approximately 4.7 million shares of common stock to acquire all of the publicly held common units of the partnership not already owned by the company prior to the Merger at a fixed exchange ratio of 0.405 shares of the company's common stock, par value $0.001 per share, along with $2.50 of cash consideration for each partnership common unit. The total consideration as a result of the Merger was $143.1 million, which was comprised of $29.2 million in cash and $113.9 million of common stock exchanged. As a result of the Merger, the partnership's common units are no longer publicly traded.
The interests in the partnership owned by the company and its subsidiaries remain outstanding as limited partner interests in the surviving entity. The General Partner of the partnership will continue to own the non-economic general partner interest in the surviving entity.
Since the company controlled the partnership prior to the Merger and continues to control the partnership after the Merger, the company accounted for the change in its ownership interest in the partnership as an equity transaction during the three months ended March 31, 2024, which is reflected as a reduction of non-controlling interest with a corresponding increase to common stock and additional paid-in capital. No gain or loss was recognized in the consolidated statements of operations as a result of the Merger.
Prior to the effective time of the Merger on January 9, 2024, public unitholders owned a 49.2% limited partner interest, the company owned a 48.8% limited partner interest and a 2.0% general partner interest in the partnership. For the three months ended March 31, 2024, the non-controlling interest attributed to the partnership common units held by the public of $133.8 million were recorded as a reduction of non-controlling interest with a corresponding increase to additional paid-in capital.
The company incurred transaction costs of $5.5 million related to the Merger during the three months ended March 31, 2024. These costs were directly related to the Merger consisting primarily of financial advisory services, legal services and other professional fees, and were recorded as an offset to the issuance of common stock within additional paid-in capital.
4. FAIR VALUE DISCLOSURES
The following methods, assumptions and valuation techniques were used in estimating the fair value of the company’s financial instruments:
Level 1 – unadjusted quoted prices in active markets for identical assets or liabilities the company can access at the measurement date.
Level 2 – directly or indirectly observable inputs such as quoted prices for similar assets or liabilities in active markets other than quoted prices included within Level 1, quoted prices for identical or similar assets in markets that are not active, and other inputs that are observable or can be substantially corroborated by observable market data through correlation or other means. Fair value hedged inventories in the agribusiness and energy services segment as well as forward commodity purchase and sale contracts are valued at nearby futures values, plus or minus nearby basis values, which represent differences in local markets, including transportation or commodity quality or grade differences.
Level 3 – unobservable inputs that are supported by little or no market activity and comprise a significant component of the fair value of the assets or liabilities. The company currently does not have any recurring Level 3 financial instruments.
Derivative contracts include exchange-traded commodity futures and options contracts and forward commodity purchase and sale contracts. Exchange-traded futures and options contracts are valued based on unadjusted quoted prices in active markets and are classified in Level 1. The majority of the company’s exchange-traded futures and options contracts are cash-settled on a daily basis.
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There have been no changes in valuation techniques and inputs used in measuring fair value. The company’s assets and liabilities by level are as follows (in thousands):
| Fair Value Measurements at March 31, 2025 | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Quoted Prices in <br> Active Markets for <br>Identical Assets<br>(Level 1) | Significant Other <br>Observable Inputs<br>(Level 2) | Total | ||||||||||||
| Assets | ||||||||||||||
| Cash and cash equivalents | $ | 98,610 | $ | — | $ | 98,610 | ||||||||
| Restricted cash | 27,993 | — | 27,993 | |||||||||||
| Inventories carried at market | — | 21,930 | 21,930 | |||||||||||
| Derivative financial instruments - assets | — | 9,765 | 9,765 | |||||||||||
| Total assets measured at fair value | $ | 126,603 | $ | 31,695 | $ | 158,298 | ||||||||
| Liabilities | ||||||||||||||
| Accounts payable (1) | $ | — | $ | 15,110 | $ | 15,110 | ||||||||
| Derivative financial instruments - liabilities | — | 12,038 | 12,038 | |||||||||||
| Other liabilities (2) | — | 1,062 | 1,062 | |||||||||||
| Total liabilities measured at fair value | $ | — | $ | 28,210 | $ | 28,210 | Fair Value Measurements at December 31, 2024 | |||||||
| --- | --- | --- | --- | --- | --- | --- | ||||||||
| Quoted Prices in <br> Active Markets for <br>Identical Assets<br>(Level 1) | Significant Other <br>Observable Inputs<br>(Level 2) | Total | ||||||||||||
| Assets | ||||||||||||||
| Cash and cash equivalents | $ | 173,041 | $ | — | $ | 173,041 | ||||||||
| Restricted cash | 36,354 | — | 36,354 | |||||||||||
| Inventories carried at market | — | 48,500 | 48,500 | |||||||||||
| Derivative financial instruments - assets | — | 10,154 | 10,154 | |||||||||||
| Total assets measured at fair value | $ | 209,395 | $ | 58,654 | $ | 268,049 | ||||||||
| Liabilities | ||||||||||||||
| Accounts payable (1) | $ | — | $ | 23,208 | $ | 23,208 | ||||||||
| Accrued and other liabilities (2) | — | 2,094 | 2,094 | |||||||||||
| Derivative financial instruments - liabilities | — | 4,791 | 4,791 | |||||||||||
| Other liabilities (2) | — | 979 | 979 | |||||||||||
| Total liabilities measured at fair value | $ | — | $ | 31,072 | $ | 31,072 |
(1)Accounts payable is generally stated at historical amounts with the exception of $15.1 million and $23.2 million at March 31, 2025 and December 31, 2024, respectively, related to certain delivered inventory for which the payable fluctuates based on changes in commodity prices. These payables are hybrid financial instruments for which the company has elected the fair value option.
(2)Accrued and other liabilities includes $2.1 million at December 31, 2024, while other liabilities includes $1.1 million and $1.0 million of consideration related to potential earn-out payments recorded at fair value at March 31, 2025 and December 31, 2024, respectively.
As of March 31, 2025, the fair value of the company’s debt was approximately $517.8 million compared with a book value of $571.8 million. At December 31, 2024, the fair value of the company’s debt was approximately $518.6 million compared with a book value of $575.4 million. The company estimated the fair value of its outstanding debt using Level 2 inputs. The company believes the fair value of its accounts receivable approximated book value, which was $97.1 million and $94.9 million at March 31, 2025 and December 31, 2024, respectively.
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Although the company currently does not have any recurring Level 3 financial measurements, the fair values of tangible assets and goodwill acquired represent Level 3 measurements which were derived using a combination of the income approach, market approach and cost approach for the specific assets or liabilities being valued.
5. SEGMENT INFORMATION
The company reports the financial and operating performance for the following two operating segments: (1) ethanol production, which includes the production, storage and transportation of ethanol, distillers grains, Ultra-High Protein and renewable corn oil and (2) agribusiness and energy services, which includes grain handling and storage, commodity marketing and merchant trading for company-produced and third-party ethanol, distillers grains, Ultra-High Protein, renewable corn oil, natural gas and other commodities.
Corporate activities include selling, general and administrative expenses, consisting primarily of compensation, professional fees, overhead costs, gain on sale of assets, and restructuring costs not directly related to a specific operating segment.
During the normal course of business, the operating segments conduct business with each other. For example, the agribusiness and energy services segment procures grain and natural gas and sells products, including ethanol, distillers grains, Ultra-High Protein and renewable corn oil for the ethanol production segment. These intersegment activities are treated like third-party transactions with origination, marketing and storage fees charged at estimated market values. Consequently, these transactions affect segment performance; however, they do not impact the company’s consolidated results since the revenues and corresponding costs are eliminated.
The Chief Operating Decision Maker ("CODM") for the company is the Interim Principal Executive Officer. The CODM utilizes EBITDA to assess segment performance, which is derived from revenue less cost of goods sold and selling, general and administrative expenses. The CODM manages and allocates resources to the operations of the Company's two segments. This enables the Interim Principal Executive Officer to assess the Company’s overall level of available resources and determine how best to deploy these resources for capital expenditure, research and development projects, and other strategic opportunities that are in line with our long-term strategic goals. The CODM is regularly provided with consolidated expense information or forecasted expense information for the applicable reportable segment.
The following tables set forth certain financial data for the company’s operating segments (in thousands):
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Revenues | ||||
| Ethanol production | ||||
| Revenues from external customers | $ | 497,458 | $ | 504,446 |
| Intersegment revenues | 314 | 1,213 | ||
| Total segment revenues | 497,772 | 505,659 | ||
| Agribusiness and energy services | ||||
| Revenues from external customers | 104,057 | 92,768 | ||
| Intersegment revenues | 5,772 | 6,228 | ||
| Total segment revenues | 109,829 | 98,996 | ||
| Revenues including intersegment activity | 607,601 | 604,655 | ||
| Intersegment eliminations | (6,086) | (7,441) | ||
| $ | 601,515 | $ | 597,214 |
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Refer to Note 2 - Revenue, for further disaggregation of revenue by operating segment.
| Three Months Ended<br>March 31, | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| 2025 | 2024 | |||||||||
| Cost of goods sold | ||||||||||
| Ethanol production (1) | $ | 503,464 | $ | 508,302 | ||||||
| Agribusiness and energy services | 101,098 | 87,986 | ||||||||
| Intersegment eliminations | (6,086) | (7,441) | ||||||||
| $ | 598,476 | $ | 588,847 | Three Months Ended<br>March 31, | ||||||
| --- | --- | --- | --- | --- | ||||||
| 2025 | 2024 | |||||||||
| Gross margin | ||||||||||
| Ethanol production (1) | $ | (5,692) | $ | (2,643) | ||||||
| Agribusiness and energy services | 8,731 | 11,010 | ||||||||
| $ | 3,039 | $ | 8,367 | Three Months Ended<br>March 31, | ||||||
| --- | --- | --- | --- | --- | ||||||
| 2025 | 2024 | |||||||||
| Depreciation and amortization | ||||||||||
| Ethanol production | $ | 21,035 | $ | 20,534 | ||||||
| Agribusiness and energy services | 598 | 505 | ||||||||
| Corporate activities | 754 | 448 | ||||||||
| $ | 22,387 | $ | 21,487 | Three Months Ended<br>March 31, | ||||||
| --- | --- | --- | --- | --- | ||||||
| 2025 | 2024 | |||||||||
| Operating income (loss) | ||||||||||
| Ethanol production (1) | $ | (39,550) | $ | (33,653) | ||||||
| Agribusiness and energy services | 1,533 | 6,004 | ||||||||
| Corporate activities (2) | (24,243) | (17,240) | ||||||||
| $ | (62,260) | $ | (44,889) |
(1)Ethanol production includes an inventory lower of cost or net realizable value adjustment of $2.5 million and $4.2 million for the three months ended March 31, 2025 and 2024, respectively.
(2)Corporate activities includes $10.3 million of restructuring costs for the three months ended March 31, 2025 as a result of the company's cost reduction initiative, including severance related to the departure of its CEO.
During the three months ended March 31, 2025, the company incurred restructuring costs related to severance, stock based compensation and other charges as a result of cost reduction initiatives that were recorded within the following line items in the consolidated statements of operations (in thousands):
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| Three Months Ended<br>March 31, 2025 | ||||||
|---|---|---|---|---|---|---|
| Ethanol production | Agribusiness and energy services | Corporate activities | Subtotal | |||
| Cost of goods sold | $ | 2,260 | 459 | — | $ | 2,719 |
| Selling, general and administrative expenses | 210 | 1,658 | 10,341 | 12,209 | ||
| Other, net | — | 154 | 1,505 | 1,659 | ||
| Total restructuring costs | $ | 2,470 | 2,271 | 11,846 | $ | 16,587 |
The following tables reconcile EBITDA, our segment measure of profit or loss, to net loss (in thousands). EBITDA is defined as earnings before interest expense, income taxes, depreciation and amortization excluding the amortization of right-of-use assets and debt issuance costs.
| Three Months Ended March 31, 2025 | ||||||
|---|---|---|---|---|---|---|
| Ethanol production | Agribusiness and energy services | Subtotal | ||||
| EBITDA | $ | (19,416) | $ | 3,156 | $ | (16,260) |
| Depreciation and amortization | (21,035) | (598) | (21,633) | |||
| Interest expense | (4,820) | (2,427) | (7,247) | |||
| Subtotal | $ | (45,271) | $ | 131 | $ | (45,140) |
| Unallocated corporate expenses (1) | (27,666) | |||||
| Income tax expense, net of equity method income tax benefit | 165 | |||||
| Net loss | $ | (72,641) | ||||
| Three Months Ended March 31, 2024 | ||||||
| --- | --- | --- | --- | --- | --- | --- |
| Ethanol production | Agribusiness and energy services | Subtotal | ||||
| EBITDA | $ | (13,621) | $ | 7,056 | $ | (6,565) |
| Depreciation and amortization | (20,534) | (505) | (21,039) | |||
| Interest expense | (5,061) | (1,141) | (6,202) | |||
| Subtotal | $ | (39,216) | $ | 5,410 | $ | (33,806) |
| Unallocated corporate expenses (1) | (16,987) | |||||
| Income tax expense, net of equity method income tax benefit | (329) | |||||
| Net loss | $ | (51,122) |
(1)Corporate expenses include selling, general administrative expenses, depreciation and amortization, interest expense, and during 2025 includes restructuring costs related to cost savings initiatives and the departure of our CEO.
The following table sets forth total assets by operating segment (in thousands):
| March 31,<br>2025 | December 31,<br>2024 | |||
|---|---|---|---|---|
| Total assets (1) | ||||
| Ethanol production | $ | 1,244,617 | $ | 1,234,635 |
| Agribusiness and energy services | 351,655 | 412,006 | ||
| Corporate assets | 77,219 | 143,716 | ||
| Intersegment eliminations | (6,919) | (8,183) | ||
| $ | 1,666,572 | $ | 1,782,174 |
(1)Asset balances by segment exclude intercompany balances.
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6. INVENTORIES
Inventories are carried at the lower of cost or net realizable value, except fair-value hedged inventories. There was a $2.5 million and $2.1 million lower of cost or net realizable value inventory adjustment associated with finished goods in cost of goods sold within the ethanol production segment as of March 31, 2025 and December 31, 2024, respectively.
The components of inventories are as follows (in thousands):
| March 31,<br>2025 | December 31,<br>2024 | |||
|---|---|---|---|---|
| Finished goods | $ | 60,166 | $ | 72,863 |
| Commodities held for sale | 21,930 | 48,500 | ||
| Raw materials | 33,479 | 37,334 | ||
| Work-in-process | 13,516 | 13,569 | ||
| Supplies and parts | 57,980 | 55,178 | ||
| $ | 187,071 | $ | 227,444 |
7. DERIVATIVE FINANCIAL INSTRUMENTS
At March 31, 2025, the company’s consolidated balance sheet reflected unrealized losses of $1.3 million, net of tax, in accumulated other comprehensive loss. The company expects these items will be reclassified as operating income (loss) over the next 12 months as a result of hedged transactions that are forecasted to occur. The amount realized in operating income (loss) will differ as commodity prices change.
Fair Values of Derivative Instruments
The fair values of the company’s derivative financial instruments and the line items on the consolidated balance sheets where they are reported are as follows (in thousands):
| Asset Derivatives'<br>Fair Value | Liability Derivatives'<br>Fair Value | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| March 31,<br>2025 | December 31,<br>2024 | March 31,<br>2025 | December 31,<br>2024 | |||||||
| Derivative financial instruments - forwards | $ | 9,765 | (1) | $ | 10,154 | $ | 12,038 | $ | 4,791 | (2) |
| Other liabilities | — | — | 9 | 15 | ||||||
| Total | $ | 9,765 | $ | 10,154 | $ | 12,047 | $ | 4,806 |
(1)At March 31, 2025, derivative financial instruments, as reflected on the balance sheet, includes net unrealized gains on exchange-traded futures and options contracts of $8.0 million, which include $0.7 million of net unrealized losses on derivative financial instruments designated as cash flow hedging instruments, and $1.4 million of net unrealized gains on derivative financial instruments designated as fair value hedging instruments, and the balance representing economic hedges,
(2)At December 31, 2024, derivative financial instruments, as reflected on the balance sheet, includes net unrealized losses on exchange-traded futures and options contracts of $4.7 million, which include $0.5 million of net unrealized gains on derivative financial instruments designated as cash flow hedging instruments, $3.0 million of unrealized losses on derivative financial instruments designated as fair value hedging instruments, and the balance representing economic hedges.
Refer to Note 4 - Fair Value Disclosures, which contains fair value information related to derivative financial instruments.
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Effect of Derivative Instruments on Consolidated Balance Sheets, Consolidated Statements of Operations and Consolidated Statements of Comprehensive Loss
The gains or losses recognized in income and other comprehensive income related to the company’s derivative financial instruments and the line items on the consolidated financial statements where they are reported are as follows (in thousands):
| Amount of Gain (Loss) Reclassified from Accumulated Other Comprehensive Income into Income | ||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Location of Gain (Loss) Reclassified from Accumulated Other<br>Comprehensive Income into Income | Three Months Ended<br>March 31, | |||||||||||||
| 2025 | 2024 | |||||||||||||
| Revenues | $ | (25) | $ | 3,736 | ||||||||||
| Cost of goods sold | (24) | (10,723) | ||||||||||||
| Net loss recognized in loss before income taxes | $ | (49) | $ | (6,987) | Amount of Gain (Loss) Recognized in Other Comprehensive Income on Derivatives | |||||||||
| --- | --- | --- | --- | --- | --- | --- | ||||||||
| Gain (Loss) Recognized in Other Comprehensive Income on<br>Derivatives | Three Months Ended<br>March 31, | |||||||||||||
| 2025 | 2024 | |||||||||||||
| Commodity contracts | $ | (3,032) | $ | (7,959) |
A portion of the company’s derivative instruments are considered economic hedges and as such are not designated as hedging instruments. The company uses exchange-traded futures and options contracts to manage its net position of product inventories and forward cash purchase and sales contracts to reduce price risk caused by market fluctuations. Derivatives, including exchange-traded contracts and forward commodity purchase or sale contracts, and inventories of certain agricultural products, which include amounts acquired under deferred pricing contracts, are stated at fair value. Fair value estimates are based on exchange-quoted prices, adjusted as appropriate for regional location basis value, which represent differences in local markets including transportation as well as quality or grade differences.
| Amount of Gain (Loss) <br>Recognized in Income on Derivatives | |||||||
|---|---|---|---|---|---|---|---|
| Derivatives Not Designated as<br>Hedging Instruments | Location of Gain (Loss) Recognized in Income<br> on Derivatives | Three Months Ended<br>March 31, | |||||
| 2025 | 2024 | ||||||
| Exchange-traded futures and options | Revenues | $ | 2,892 | $ | (1,073) | ||
| Forwards | Revenues | 2,332 | (2,729) | ||||
| Exchange-traded futures and options | Cost of goods sold | (1,373) | 3,037 | ||||
| Forwards | Cost of goods sold | (6,982) | 2,868 | ||||
| Net gain (loss) recognized in loss before income taxes | $ | (3,131) | $ | 2,103 |
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The following amounts were recorded on the consolidated balance sheets related to cumulative basis adjustments for the fair value hedged items (in thousands):
| March 31, 2025 | December 31, 2024 | |||||||
|---|---|---|---|---|---|---|---|---|
| Line Item in the Consolidated Balance Sheet in Which the Hedged Item is Included | Carrying Amount of the Hedged Assets | Cumulative Amount of Fair Value Hedging Adjustment Included in the Carrying Amount of the Hedged Liabilities | Carrying Amount of the Hedged Assets | Cumulative Amount of Fair Value Hedging Adjustment Included in the Carrying Amount of the Hedged Liabilities | ||||
| Inventories | $ | 21,930 | $ | 2,655 | $ | 48,500 | $ | 8,166 |
Effect of Cash Flow and Fair Value Hedge Accounting on the Statements of Operations (in thousands):
| Location and Amount of Gain (Loss) Recognized in Income on Cash Flow and Fair Value Hedging Relationships for the Three Months Ended March 31, | ||||||||
|---|---|---|---|---|---|---|---|---|
| 2025 | 2024 | |||||||
| Revenue | Cost of<br>Goods Sold | Revenue | Cost of<br>Goods Sold | |||||
| Gain (loss) on cash flow hedging relationships | ||||||||
| Commodity contracts | ||||||||
| Amount of gain (loss) on exchange-traded futures reclassified from accumulated other comprehensive income into income | $ | (25) | $ | (24) | $ | 3,736 | $ | (10,723) |
| Gain (loss) on fair value hedging relationships | ||||||||
| Commodity contracts | ||||||||
| Fair-value hedged inventories | — | 1,138 | — | (4,361) | ||||
| Exchange-traded futures designated as hedging instruments | — | 231 | — | 5,262 | ||||
| Total amounts of income and expense line items presented in the consolidated statement of operations in which the effects of cash flow or fair value hedges are recorded | $ | (25) | $ | 1,345 | $ | 3,736 | $ | (9,822) |
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The notional volume of open commodity derivative positions as of March 31, 2025 are as follows (in thousands):
| Exchange-Traded (1) | Non-Exchange-Traded (2) | |||||
|---|---|---|---|---|---|---|
| Derivative <br>Instruments | Net Long & <br>(Short) | Long | (Short) | Unit of <br>Measure | Commodity | |
| Futures | 4,120 | Bushels | Corn | |||
| Futures | (4,295) | (4) | Bushels | Corn | ||
| Futures | (106,218) | Gallons | Ethanol | |||
| Futures | (7,688) | MmBTU | Natural Gas | |||
| Futures | 6,590 | (3) | MmBTU | Natural Gas | ||
| Futures | (165) | (4) | MmBTU | Natural Gas | ||
| Options | 2 | Tons | Soybean Meal | |||
| Options | 310 | Pounds | Soybean Oil | |||
| Forwards | 36,821 | — | Bushels | Corn | ||
| Forwards | 5,974 | (197,075) | Gallons | Ethanol | ||
| Forwards | 94 | (219) | Tons | Distillers Grains | ||
| Forwards | — | (55,505) | Pounds | Renewable Corn Oil | ||
| Forwards | 16,212 | (292) | MmBTU | Natural Gas |
(1)Notional volume of exchange-traded futures and options are presented on a net long and (short) position basis. Options are presented on a delta-adjusted basis.
(2)Notional volume of non-exchange-traded forward physical contracts are presented on a gross long and (short) position basis, including both fixed-price and basis contracts, for which only the basis portion of the contract price is fixed.
(3)Notional volume of exchange-traded futures used for cash flow hedges.
(4)Notional volume of exchange-traded futures used for fair value hedges.
Energy trading contracts that do not involve physical delivery are presented net in revenues on the consolidated statements of operations. Included in revenues are net gains of $2.6 million and $1.8 million for the three months ended March 31, 2025 and 2024, respectively, on energy trading contracts.
8. DEBT
The components of long-term debt are as follows (in thousands):
| March 31,<br>2025 | December 31,<br>2024 | |||
|---|---|---|---|---|
| Corporate | ||||
| 2.25% convertible notes due 2027 (1) | $ | 230,000 | $ | 230,000 |
| Green Plains SPE LLC | ||||
| $125.0 million junior secured mezzanine notes due 2026 (2) | 125,000 | 125,000 | ||
| Green Plains Shenandoah | ||||
| $75.0 million loan agreement due 2035 (3) | 71,250 | 71,625 | ||
| Other | 10,940 | 11,163 | ||
| Total book value of long-term debt | 437,190 | 437,788 | ||
| Unamortized debt issuance costs | (2,836) | (3,210) | ||
| Less: current maturities of long-term debt | (2,118) | (2,118) | ||
| Total long-term debt | $ | 432,236 | $ | 432,460 |
(1)The 2.25% notes had $2.4 million and $2.7 million of unamortized debt issuance costs as of March 31, 2025 and December 31, 2024, respectively.
(2)The junior notes had $0.2 million of unamortized debt issuance costs as of both March 31, 2025 and December 31, 2024.
(3)The loan had $0.2 million and $0.3 million of unamortized debt issuance costs as of both March 31, 2025 and December 31, 2024, respectively.
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The components of short-term notes payable and other borrowings are as follows (in thousands):
| March 31,<br>2025 | December 31,<br>2024 | |||
|---|---|---|---|---|
| Green Plains Finance Company, Green Plains Grain and Green Plains Trade | ||||
| $350.0 million revolver | $ | 129,000 | $ | 133,500 |
| Green Plains Commodity Management | ||||
| $40.0 million hedge line | 8,424 | 7,329 | ||
| $ | 137,424 | $ | 140,829 |
Corporate Activities
In March 2021, the company issued an aggregate $230.0 million of 2.25% convertible senior notes due on March 15, 2027. The 2.25% notes bear interest at a rate of 2.25% per year, payable on March 15 and September 15 of each year. The 2.25% notes are senior, unsecured obligations of the company. The 2.25% notes are convertible, at the option of the holders, into consideration consisting of, at the company’s election, cash, shares of the company’s common stock, or a combination of cash and stock (and cash in lieu of fractional shares). However, before September 15, 2026, the 2.25% notes will not be convertible unless certain conditions are satisfied. The initial conversion rate is 31.6206 shares of the company’s common stock per $1,000 principal amount of 2.25% notes (equivalent to an initial conversion price of approximately $31.62 per share of the company’s common stock), representing an approximately 37.5% premium over the offering price of the company’s common stock. The conversion rate is subject to adjustment upon the occurrence of certain events, including but not limited to; the event of a stock dividend or stock split; the issuance of additional rights, options and warrants; spinoffs; or a tender or exchange offering. In addition, the company may be obligated to increase the conversion rate for any conversion that occurs in connection with certain corporate events, including the company’s calling the 2.25% notes for redemption.
On and after March 15, 2024, and prior to the maturity date, the company may redeem, for cash, all, but not less than all, of the 2.25% notes if the last reported sale price of the company’s common stock equals or exceeds 140% of the applicable conversion price on (i) at least 20 trading days during a 30 consecutive trading day period ending on the trading day immediately prior to the date the company delivers notice of the redemption; and (ii) the trading day immediately before the date of the redemption notice. The redemption price will equal 100% of the principal amount of the 2.25% notes to be redeemed, plus any accrued and unpaid interest to, but excluding, the redemption date. In addition, upon the occurrence of a “fundamental change” (as defined in the indenture for the 2.25% notes), holders of the 2.25% notes will have the right, at their option, to require the company to repurchase their 2.25% notes for cash at a price equal to 100% of the principal amount of the 2.25% notes to be repurchased, plus accrued and unpaid interest to, but excluding, the fundamental change repurchase date.
Ethanol Production Segment
On February 9, 2021, Green Plains SPE LLC, a wholly-owned special purpose subsidiary and parent of Green Plains Obion and Green Plains Mount Vernon, issued $125.0 million of junior secured mezzanine notes due 2026 (the “Junior Notes”) with BlackRock, a holder of a portion of the company’s common stock.
The Junior Notes were amended on May 7, 2025, which extended the maturity date from February 9, 2026 to May 15, 2026. The Junior Notes are secured by a pledge of the membership interests in and the real property owned by Green Plains Obion and Green Plains Mount Vernon. The proceeds of the Junior Notes were used to construct high protein processing systems at the Green Plains Obion and Green Plains Mount Vernon facilities. The Junior Notes accrue interest at an annual rate of 11.75%. However, subject to the satisfaction of certain conditions, Green Plains SPE LLC may elect to pay an amount in cash equal to interest accruing at a rate of 6.00% per annum plus an amount equal to interest accruing at a rate of 6.75% per annum to be paid in kind. The entire outstanding principal balance, plus any accrued and unpaid interest is due upon maturity. Green Plains SPE LLC is required to comply with certain financial covenants regarding minimum liquidity at Green Plains and a maximum aggregate loan to value. The Junior Notes can be retired or refinanced after 42 months with no prepayment premium. The Junior Notes have an unsecured parent guarantee from the company and have certain limitations on distributions, dividends or loans to the company unless there will not exist any event of default.
On September 3, 2020, Green Plains Wood River and Green Plains Shenandoah, wholly-owned subsidiaries of the company, entered into a $75.0 million loan agreement with MetLife Real Estate Lending LLC. The loan matures on September 1, 2035 and is secured by substantially all of the assets of the Shenandoah facility. During the second quarter of
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2024, the agreement was modified to remove the Wood River facility from the assets considered to be secured under the loan agreement and Green Plains Wood River was removed as a counterparty to the loan agreement. The proceeds from the loan were used to add MSC™ technology at the Wood River and Shenandoah facilities as well as other capital expenditures.
The loan bears interest at a fixed rate of 5.02%, plus an interest rate premium subject to quarterly adjustments from 0.00% to 1.50% based on the leverage ratio of total funded debt to EBITDA of Shenandoah. Principal payments of $1.5 million per year began in October 2022. Prepayments were prohibited until September 2024. Financial covenants of the loan agreement include a minimum loan to value ratio of 50%, a minimum fixed charge coverage ratio of 1.25x, a total debt service reserve of six months of future principal and interest payments and a minimum working capital requirement at Green Plains of not less than $0.10 per gallon of nameplate capacity or $90.3 million. The loan is guaranteed by the company and has certain limitations on distributions, dividends or loans to Green Plains by Shenandoah unless immediately after giving effect to such action, there will not exist any event of default. At March 31, 2025, the interest rate on the loan was 6.52%.
The company also has small equipment financing loans, finance leases on equipment or facilities, and other forms of debt financing.
Agribusiness and Energy Services Segment
On March 25, 2022, Green Plains Finance Company, Green Plains Grain and Green Plains Trade (collectively, the “Borrowers”), all wholly owned subsidiaries of the company, together with the company, as guarantor, entered into a five-year, $350.0 million senior secured sustainability-linked revolving Loan and Security Agreement (the “Facility”) with a group of financial institutions. This transaction refinanced the separate credit facilities previously held by Green Plains Grain and Green Plains Trade. The Facility matures on March 25, 2027.
The Facility includes revolving commitments totaling $350.0 million and an accordion feature whereby amounts available under the Facility may be increased by up to $100.0 million of new lender commitments subject to certain conditions. Each SOFR rate loan shall bear interest for each day at a rate per annum equal to the Term SOFR rate for the outstanding period plus a Term SOFR adjustment and an applicable margin of 2.25% to 2.50%, which is dependent on undrawn availability under the Facility. Each base rate loan shall bear interest at a rate per annum equal to the base rate plus the applicable margin of 1.25% to 1.50%, which is dependent on undrawn availability under the Facility. The unused portion of the Facility is also subject to a commitment fee of 0.275% to 0.375%, dependent on undrawn availability. Additionally, the applicable margin and commitment fee are subject to certain increases or decreases of up to 0.10% and 0.025%, respectively, tied to the company’s achievement of certain sustainability criteria, including the reduction of GHG emissions, recordable incident rate reduction, increased renewable corn oil production and the implementation of technology to produce sustainable ingredients.
The Facility contains customary affirmative and negative covenants, as well as the following financial covenants to be calculated as of the last day of any month: the current ratio of the Borrowers shall not be less than 1.00 to 1.00; the collateral coverage ratio of the Borrowers shall not be less than 1.20 to 1.00; and the debt to capitalization ratio of the company shall not be greater than 0.60 to 1.00.
The Facility also includes customary events of default, including without limitation, failure to make required payments of principal or interest, material incorrect representations and warranties, breach of covenants, events of bankruptcy and other certain matters. The Facility is secured by the working capital assets of the Borrowers and is guaranteed by the company. At March 31, 2025, the interest rate on the Facility was 7.50%.
Green Plains Commodity Management has an uncommitted $40.0 million revolving credit facility to finance margins related to its hedging programs, which is secured by cash and securities held in its brokerage accounts. During the first quarter of 2023, this revolving credit facility was extended five years to mature on April 30, 2028. Advances are subject to variable interest rates equal to SOFR plus 1.75%. At March 31, 2025, the interest rate on the facility was 6.09%.
Green Plains Grain has a short-term inventory financing agreement with a financial institution. The company has accounted for the agreement as short-term notes, rather than revenues, and has elected the fair value option to offset fluctuations in market prices of the inventory. This agreement is subject to negotiated variable interest rates. The company had no outstanding short-term notes payable related to the inventory financing agreement as of March 31, 2025.
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Covenant Compliance
The company was in compliance with its debt covenants as of March 31, 2025.
Restricted Net Assets
At March 31, 2025, there were approximately $22.3 million of net assets at the company’s subsidiaries that could not be transferred to the parent company in the form of dividends, loans or advances due to restrictions contained in the credit facilities of these subsidiaries.
9. STOCK-BASED COMPENSATION
The company has an equity incentive plan which reserved a total of 6.9 million shares of common stock for issuance pursuant to the plan, of which 1.4 million shares remain available for issuance. The plan provides for shares, including options to purchase shares of common stock, stock appreciation rights tied to the value of common stock, restricted stock, performance share awards, and restricted and deferred stock unit awards, to be granted to eligible employees, non-employee directors and consultants. The company measures stock-based compensation at fair value on the grant date, with no adjustments for estimated forfeitures. The company records noncash compensation expense related to equity awards in its consolidated financial statements over the requisite period on a straight-line basis.
Restricted Stock Awards and Deferred Stock Units
The restricted non-vested stock awards and deferred stock units activity for the three months ended March 31, 2025 is as follows:
| Non-Vested <br> Shares and <br> Deferred Stock <br>Units | Weighted-<br>Average Grant-<br>Date Fair Value | Weighted-Average <br> Remaining <br> Vesting Term <br>(in years) | ||
|---|---|---|---|---|
| Non-Vested at December 31, 2024 | 735,513 | $ | 23.45 | |
| Granted | 768,264 | 5.75 | ||
| Forfeited | (81,589) | 21.68 | ||
| Vested | (342,774) | 26.08 | ||
| Non-Vested at March 31, 2025 | 1,079,414 | $ | 10.15 | 2.5 |
Performance Share Awards
On March 10, 2025, March 13, 2024, and March 9, 2023, the Compensation Committee of the Board granted performance shares to be awarded in the form of common stock to certain participants of the plan. These performance shares vest based on the level of achievement of certain performance goals, including the incremental value achieved from the company’s high-protein and clean sugar initiatives, annual production levels and return on investment (ROI). Performance shares granted in 2025 and 2024 include certain market-based factors requiring a Monte Carlo valuation model to estimate the fair value of the performance shares on the date of the grant. The weighted average assumptions used by the company in applying the Monte Carlo valuation model for performance share grants and related valuation include a risk-free interest rate of 3.87% and 4.44%, dividend yields of 0%, expected volatility of 55.4% and 54.6%, closing stock price on the date of grant of $5.48 and $20.21, resulting in an estimated fair value of $7.08 and $25.23 per share. Performance shares granted in 2023 do not contain market-based factors requiring a Monte Carlo valuation model. The performance shares were granted at a target of 100%, but each performance share can be reduced or increased depending on results for the performance period. If the company achieves the maximum performance goals, the maximum amount of shares available to be issued pursuant to the 2025, 2024 and 2023 awards are 950,870 performance shares which represents 200% of the 475,435 performance shares that remain outstanding, excluding forfeited shares. The actual number of performance shares that will ultimately vest is based on the actual performance targets achieved at the end of the performance period. This excludes an additional 69,959 performance shares granted to the Interim Principal Executive Officer in 2023, 2024 and 2025, which will vest at 100% of target on December 31, 2025.
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On March 14, 2022, the Compensation Committee of the Board granted performance shares to be awarded in the form of common stock to certain participants of the plan. The performance shares were granted at a target of 100%, but each performance share was reduced or increased depending on results for the performance period. On March 14, 2025, based on the criteria discussed above, the 2022 performance shares vested at 30%, which resulted in the issuance of 14,259 shares of common stock.
On February 28, 2025, the company announced the departure of Todd Becker as President and Chief Executive Officer, effective March 1, 2025. In accordance with his separation agreement, 221,895 of remaining outstanding performance shares that were granted during 2022, 2023, and 2024 vested immediately at target.
The non-vested performance share award activity for the three months ended March 31, 2025 is as follows:
| Performance<br>Shares | Weighted-<br>Average Grant-<br>Date Fair Value | Weighted-Average<br>Remaining<br>Vesting Term<br>(in years) | ||
|---|---|---|---|---|
| Non-Vested at December 31, 2024 | 538,572 | $ | 27.82 | |
| Granted | 360,895 | 5.48 | ||
| Forfeited | (117,919) | 28.10 | ||
| Vested | (236,154) | 28.18 | ||
| Non-Vested at March 31, 2025 | 545,394 | $ | 12.83 | 2.5 |
Stock-Based Compensation Expense
Compensation costs for the stock-based payment plan were $8.8 million and $3.1 million for the three months ended March 31, 2025 and 2024, respectively, with the increase primarily driven by accelerated vesting for the company's CEO. At March 31, 2025, there was $13.0 million of unrecognized compensation costs from stock-based compensation related to non-vested awards. This compensation is expected to be recognized over a weighted-average period of approximately 2.6 years. The potential tax benefit related to stock-based payment is approximately 24.0% of these expenses.
10. EARNINGS PER SHARE
Basic earnings per share, or EPS, is calculated by dividing net income available to common stockholders by the weighted average number of common shares outstanding during the period.
The company computes diluted EPS by dividing net income on an if-converted basis, adjusted to add back net interest expense related to the convertible debt instruments, by the weighted average number of common shares outstanding during the period, adjusted to include the shares that would be issued if the convertible debt instruments were converted to common shares and the effect of any outstanding dilutive securities.
The basic and diluted EPS are calculated as follows (in thousands):
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Net loss attributable to Green Plains | $ | (72,906) | $ | (51,412) |
| Weighted average shares outstanding - basic and diluted | 64,069 | 63,341 | ||
| EPS - basic and diluted | $ | (1.14) | $ | (0.81) |
| Anti-dilutive weighted-average convertible debt, warrants and stock-based compensation (1) | 7,775 | 7,634 |
(1)The effect related to the company’s convertible debt, warrants and certain stock-based compensation awards has been excluded from diluted EPS for the periods presented as the inclusion of these shares would have been antidilutive.
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11. STOCKHOLDERS’ EQUITY
Green Plains Partners Merger
As a result of the Merger, for the three months ended March 31, 2024, the company issued approximately 4.7 million shares of common stock and recorded par value $0.001 per share, paid cash consideration of $29.2 million, extinguished the non-controlling interest attributed to the partnership common units held by the public of $133.8 million, and capitalized transaction costs of $7.5 million, within additional paid-in capital. Refer to Note 3 - Acquisition included herein for more information.
Components of stockholders’ equity for the three months ended March 31, 2025 and 2024 are as follows (in thousands):
| Common Stock | Additional<br>Paid-in <br>Capital | Retained Deficit | Accumulated Other<br>Comprehensive Income (Loss) | Treasury Stock | Total<br>Green Plains<br>Stockholders'<br>Equity | Non-<br>Controlling<br>Interests | Total<br>Stockholders'<br>Equity | |||||||||||||||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2024 | 67,512 | $ | 68 | $ | 1,213,646 | $ | (318,298) | $ | 973 | 2,805 | $ | (31,174) | $ | 865,215 | $ | 9,322 | $ | 874,537 | ||||||||||||||||||||||
| Net loss | — | — | — | (72,906) | — | — | — | (72,906) | 265 | (72,641) | ||||||||||||||||||||||||||||||
| Other comprehensive loss before reclassification | — | — | — | — | (2,307) | — | — | (2,307) | — | (2,307) | ||||||||||||||||||||||||||||||
| Amounts reclassified from accumulated other comprehensive loss | — | — | — | — | 37 | — | — | 37 | — | 37 | ||||||||||||||||||||||||||||||
| Other comprehensive loss, net of tax | — | — | — | — | (2,270) | — | — | (2,270) | — | (2,270) | ||||||||||||||||||||||||||||||
| Investment in subsidiaries | — | — | — | — | — | — | — | — | 94 | 94 | ||||||||||||||||||||||||||||||
| Stock-based compensation | 688 | — | 7,468 | — | — | — | — | 7,468 | — | 7,468 | ||||||||||||||||||||||||||||||
| Balance, March 31, 2025 | 68,200 | $ | 68 | $ | 1,221,114 | $ | (391,204) | $ | (1,297) | 2,805 | $ | (31,174) | $ | 797,507 | $ | 9,681 | $ | 807,188 | Common Stock | Additional<br>Paid-in<br>Capital | Retained Deficit | Accumulated Other<br>Comprehensive Loss | Treasury Stock | Total<br>Green Plains<br>Stockholders'<br>Equity | Non-<br>Controlling<br>Interests | Total<br>Stockholders'<br>Equity | ||||||||||||||
| --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | |||||||||||||||||||||
| Shares | Amount | Shares | Amount | |||||||||||||||||||||||||||||||||||||
| Balance, December 31, 2023 | 62,327 | $ | 62 | $ | 1,113,806 | $ | (235,801) | $ | (3,160) | 2,805 | $ | (31,174) | $ | 843,733 | $ | 146,323 | $ | 990,056 | ||||||||||||||||||||||
| Net loss | — | — | — | (51,412) | — | — | — | (51,412) | 290 | (51,122) | ||||||||||||||||||||||||||||||
| Cash dividends and distributions declared | — | — | — | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||||
| Other comprehensive loss before reclassification | — | — | — | — | (6,043) | — | — | (6,043) | — | (6,043) | ||||||||||||||||||||||||||||||
| Amounts reclassified from accumulated other comprehensive loss | — | — | — | — | 5,305 | — | — | 5,305 | — | 5,305 | ||||||||||||||||||||||||||||||
| Other comprehensive loss, net of tax | — | — | — | — | (738) | — | — | (738) | — | (738) | ||||||||||||||||||||||||||||||
| Investment in subsidiaries | — | — | — | — | — | — | — | — | 166 | 166 | ||||||||||||||||||||||||||||||
| Partnership Merger | 4,746 | 5 | 97,035 | — | — | — | — | 97,040 | (133,765) | (36,725) | ||||||||||||||||||||||||||||||
| Stock-based compensation | 349 | — | (1,169) | — | — | — | — | (1,169) | — | (1,169) | ||||||||||||||||||||||||||||||
| Balance, March 31, 2024 | 67,422 | $ | 67 | $ | 1,209,672 | $ | (287,213) | $ | (3,898) | 2,805 | $ | (31,174) | $ | 887,454 | $ | 13,014 | $ | 900,468 |
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Amounts reclassified from accumulated other comprehensive loss are as follows (in thousands):
| Three Months Ended<br>March 31, | Statements of <br>Operations<br>Classification | ||||
|---|---|---|---|---|---|
| 2025 | 2024 | ||||
| Gains (losses) on cash flow hedges | |||||
| Commodity derivatives | $ | (25) | $ | 3,736 | (1) |
| Commodity derivatives | (24) | (10,723) | (2) | ||
| Total losses on cash flow hedges | (49) | (6,987) | (3) | ||
| Income tax benefit | 12 | 1,682 | (4) | ||
| Amounts reclassified from accumulated other comprehensive loss | $ | (37) | $ | (5,305) |
(1)Revenues
(2)Costs of goods sold
(3)Loss before income taxes and loss from equity method investees
(4)Income tax benefit
12. INCOME TAXES
The company records actual income tax expense or benefit during interim periods rather than on an annual effective tax rate method. Certain items are given discrete period treatment and the tax effect of those items are reported in full in the relevant interim period.
The IRA was signed into law on August 16, 2022. The IRA includes significant law changes relating to tax, climate change, energy and health care. The IRA significantly expands clean energy incentives by providing an estimated $370 billion of new energy related tax credits over the next ten years. It also permits more flexibility for taxpayers to use the credits with direct-pay and transferable credit options. In addition, the IRA includes key revenue-raising provisions which include a 15% book-income alternative minimum tax on corporations with adjusted financial statement income over $1 billion, a 1% excise tax on the value of certain net stock repurchases by publicly traded companies, and the reinstatement of Superfund excise taxes. The company expects it will benefit from certain energy related tax credits in future years and not be negatively impacted by the revenue raising provisions; however, the company does not have enough information to provide a reasonable estimate of future tax benefits at this time.
On January 9, 2024, the transactions contemplated by the Merger Agreement were completed as described in more detail in Note 3 - Acquisition included herein. For income tax purposes, the total consideration given by the company in exchange for the remaining interest in the partnership, creates a tax basis in the acquired interest. Because the GAAP basis in the acquired interest is less than the total consideration, a new deferred tax asset was created. The company's valuation allowance on deferred tax assets increased by a corresponding amount, which did not have a material impact on the company's consolidated financial statements.
The company recorded income tax expense of $0.1 million for the three months ended March 31, 2025, compared with income tax expense of $0.3 million for the same period in 2024.
The effective tax rate can be affected by variances in the estimates and amounts of taxable income among the various states, entities and activity types, realization of tax credits, adjustments from resolution of tax matters under review, valuation allowances and the company’s assessment of its liability for uncertain tax positions.
13. COMMITMENTS AND CONTINGENCIES
Lease Expense
The company leases certain facilities, parcels of land, and equipment, with remaining terms ranging from less than one year to approximately 12.6 years. The land and facility leases include renewal options. The renewal options are included in the lease term only for those sites or locations in which they are reasonably certain to be renewed. Equipment renewals are not considered reasonably certain to be exercised as they typically renew with significantly different underlying terms.
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The components of lease expense are as follows (in thousands):
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Lease expense | ||||
| Operating lease expense | $ | 7,328 | $ | 7,136 |
| Variable lease expense (1) | 222 | 186 | ||
| Total lease expense | $ | 7,550 | $ | 7,322 |
(1)Represents amounts incurred in excess of the minimum payments required for a certain building lease and for the handling and unloading of railcars for a certain land lease, offset by railcar lease abatements provided by the lessor when railcars are out of service during periods of maintenance or upgrade.
Supplemental cash flow information related to operating leases is as follows (in thousands):
| Three Months Ended<br>March 31, | ||||
|---|---|---|---|---|
| 2025 | 2024 | |||
| Cash paid for amounts included in the measurement of lease liabilities | ||||
| Operating cash flows from operating leases | $ | 7,372 | $ | 6,988 |
| Right-of-use assets obtained in exchange for lease obligations | ||||
| Operating leases | 282 | 7,163 |
Supplemental balance sheet information related to operating leases is as follows:
| March 31,<br>2025 | December 31,<br>2024 | |||
|---|---|---|---|---|
| Weighted average remaining lease term | 3.8 years | 4.0 years | ||
| Weighted average discount rate | 5.41 | % | 5.36 | % |
Aggregate minimum lease payments under the operating lease agreements for the remainder of 2025 and in future years are as follows (in thousands):
| Year Ending December 31, | Amount | |
|---|---|---|
| 2025 | $ | 20,515 |
| 2026 | 20,673 | |
| 2027 | 16,303 | |
| 2028 | 7,763 | |
| 2029 | 4,357 | |
| Thereafter | 5,655 | |
| Total | 75,266 | |
| Less: Present value discount | (7,538) | |
| Lease liabilities | $ | 67,728 |
Other Commitments
As of March 31, 2025, the company had contracted future purchases of grain, distillers grains and natural gas, valued at approximately $257.0 million and future commitments for storage and transportation, valued at approximately $37.7 million.
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The company has entered into contracts with Tallgrass High Plains Carbon Storage, LLC and its affiliates, related to the construction, development and operation of carbon capture and sequestration projects at our three Nebraska plants, which are expected to be completed in 2025. Payments associated with these contracts are due monthly over a period of twelve years, commencing after the capture facilities are considered in-service. Amounts due under the contracts are based on the achievement of certain project milestones and are subject to termination of all or portions of the contracts. Certain of the future obligations to Tallgrass High Plains Carbon Storage LLC are secured by a leasehold deed of trust, security agreement and assignment of rents and leases. As of March 31, 2025, the company had incurred $28.5 million of accumulated construction costs in relation to the projects, presented as property, plant and equipment on the consolidated balance sheet, with an equal and offsetting liability presented as other liabilities.
Legal
The company is currently involved in litigation that has arisen in the ordinary course of business, but does not believe any pending litigation will have a material adverse effect on its financial position, results of operations or cash flows.
14. SUBSEQUENT EVENT
On May 7, 2025, the company entered into an amendment to its $125 million junior secured mezzanine notes (the “Junior Notes”) with BlackRock to extend the maturity date to May 15, 2026, with an amendment fee of 2.0% to be added to the principal balance of the Junior Notes, payable at the maturity date. The amendment includes a trigger date of July 31, 2025, at which date if the Junior Notes are not repaid additional collateral will be required, fees will be assessed, and BlackRock's warrants will be repriced from a $22.00 to a $7.00 exercise price with the expiration date extended from April 28, 2026 to December 31, 2029. As a result, the outstanding balance is classified within long-term debt in the consolidated balance sheets.
On May 7, 2025, the company entered into a secured $30 million revolving credit facility with Ancora Alternatives LLC that matures on July 30, 2025. The facility bears interest at 10% on borrowings and has a 0.5% fee on the unused balance. Interest and fees are due on the 5th of each month. Also executed as part of the credit facility, the company has issued 1,504,140 stock warrants at a strike price of $0.01 per share. The warrants have a ten year exercise period.
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Item 2. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
General
The following discussion and analysis provides information we believe is relevant to understand our consolidated financial condition and results of operations. This discussion should be read in conjunction with the consolidated financial statements and notes to the consolidated financial statements contained in this report together with our annual report on Form 10-K for the year ended December 31, 2024.
Cautionary Information Regarding Forward-Looking Statements
Forward-looking statements are made in accordance with safe harbor provisions of the Private Securities Litigation Reform Act of 1995. These statements are based on current expectations that involve a number of risks and uncertainties and do not relate strictly to historical or current facts, but rather to plans and objectives for future operations. These statements may be identified by words such as “anticipate,” “believe,” “continue,” “estimate,” “expect,” “intend,” “outlook,” “plan,” “predict,” “may,” “could,” “should,” “will” and similar expressions, as well as statements regarding future operating or financial performance or guidance, business strategy, environment, key trends and benefits of actual or planned acquisitions.
Factors that could cause actual results to differ from those expressed or implied in the forward-looking statements include, but are not limited to, those discussed in Part I, Item 1A – Risk Factors of our annual report on Form 10-K for the year ended December 31, 2024 and in Part II, Item 1A, “Risk Factors” in this report, or incorporated by reference. Specifically, we may experience fluctuations in future operating results due to a number of economic conditions and other factors, including: the status, expected timing, and expected outcome of our Board of Directors' ongoing review of strategic alternatives; the failure to realize the anticipated results from the new products being developed; the failure to realize the anticipated costs savings or other benefits of the Merger; local, regional and national economic conditions and the impact they may have on the company and its customers; disruption caused by health epidemics; conditions in the ethanol and biofuels industry, including a sustained decrease in the level of supply or demand for ethanol and biofuels or a sustained decrease in the price of ethanol or biofuels; competition in the ethanol industry and other industries in which we operate; commodity market risks, including those that may result from weather conditions, changes in government policies, and global political or economic issues; the financial condition of the company’s customers and counterparties; any non-performance by customers and counterparties of their contractual obligations; changes in customer, employee or supplier relationships resulting from the Merger; changes in safety, health, environmental and other governmental policy and regulation, including changes to tax laws, tariffs, renewable fuel programs, and low carbon programs; risks related to acquisition and disposition activities and achieving anticipated results; risks associated with merchant trading; risks related to our equity method investees; the results of any reviews, investigations or other proceedings by government authorities; the performance of the company; and other factors detailed in reports filed with the SEC.
We believe our expectations regarding future events are based on reasonable assumptions; however, these assumptions may not be accurate or account for all risks and uncertainties. Consequently, forward-looking statements are not guaranteed. Actual results may vary materially from those expressed or implied in our forward-looking statements. In addition, we are not obligated and do not intend to update our forward-looking statements as a result of new information unless it is required by applicable securities laws. We caution investors not to place undue reliance on forward-looking statements, which represent management’s views as of the date of this report or documents incorporated by reference.
Overview
Green Plains is an Iowa corporation, founded in June 2004 as a producer of low-carbon fuels and has grown to be a leading biorefining company maximizing the potential of existing resources through fermentation and patented agribusiness technologies. We continue the transition from a commodity-processing business to a value-added agricultural technology company creating lower carbon, high-value ingredients from existing resources. To that end, we are currently executing on a number of initiatives to develop and implement proven agricultural, food and industrial biotechnology systems that allow for product diversification, new market opportunities and production of additional value-added low-carbon ingredients, such as Ultra-High Protein, low-CI dextrose, renewable corn oil and more, as well as offering these technologies to the broader biofuels industry. We are a leader in deploying carbon capture technology to reduce the CI of our biofuels at several of our production facilities.
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We group our business activities into the following two operating segments to manage performance:
•Ethanol Production. Our ethanol production segment includes the production, storage and transportation of ethanol, distillers grains, Ultra-High Protein and renewable corn oil at ten biorefineries in Illinois, Indiana, Iowa, Minnesota, Nebraska and Tennessee. At capacity, our ten facilities are capable of processing approximately 310 million bushels of corn per year and producing approximately 903 million gallons of ethanol, 2.2 million tons of distillers grains and Ultra-High Protein, and 310 million pounds of renewable corn oil, a low-carbon feedstock for biodiesel, renewable diesel and SAF. We are one of the largest ethanol producers in North America.
•Agribusiness and Energy Services. Our agribusiness and energy services segment includes grain procurement, with approximately 20.2 million bushels of grain storage capacity, and our commodity marketing business, which markets, sells and distributes the ethanol, distillers grains and renewable corn oil produced at our ethanol plants. We also buy and sell ethanol, distillers grains, renewable corn oil, grain, natural gas and other commodities in various markets.
As part of our carbon reduction strategy, we committed our seven biorefineries in Nebraska, Iowa and Minnesota to carbon capture and sequestration projects through carbon pipeline transport, our four Iowa and Minnesota facilities with Summit Carbon Solutions and our three Nebraska biorefineries with Trailblazer CO2 Pipeline LLC, which will lower GHG emissions through the capture of biogenic carbon dioxide at each of these biorefineries, significantly lowering their CI, in some cases by more than half. We have executed agreements for the future purchase, financing and installation of carbon capture equipment at our three Nebraska plants. We anticipate completion of these Nebraska biorefinery carbon capture projects in the fourth quarter of 2025, and Summit Carbon Solutions intends to be operational in 2027. There are few ethanol production facilities with carbon capture in place today, and we believe we may be among the first to produce lower-CI ethanol at scale. In addition, we are exploring alternatives for biogenic carbon dioxide utilization where pipeline transport or direct injection may not be feasible. Reducing the CI of our ethanol could allow us to benefit from state, federal and foreign clean fuel programs, including LCFS programs at the state level and federal tax credits under the IRA, including the 45Z Clean Fuel Production Credit, and could position our low-carbon ethanol as a potential feedstock for ATJ pathways to produce SAF.
SAF is a drop-in fuel, chemically identical to petroleum-based jet fuel and can be blended into the fuel supply at varying levels. There is an increasing focus on using this fuel to reduce the carbon footprint of air travel. SAF can be produced from vegetable and waste oil feedstocks, such as our renewable corn oil. Additionally, ATJ technologies are emerging and being commercialized that use low-CI ethanol as a feedstock to produce SAF. In January 2023, Green Plains, United Airlines and Tallgrass formed a joint venture, Blue Blade Energy, to explore development and commercialization of ATJ SAF.
We have installed and are operating FQT MSC™ technology at five of our biorefineries. Through our value-added ingredients initiative, we produce Ultra-High Protein, a feed ingredient with protein concentrations of 50% or greater and yeast concentrations of 25%, increase production of renewable corn oil and produce other higher value products, such as post-MSC™ distillers grains. We successfully completed full scale 60% protein production runs using FQT's MSC™ system, which is our specialty feed ingredient branded as Sequence™. We formed a 50/50 joint venture with Tharaldson Ethanol Plant I LLC (Tharaldson Ethanol), which owns the MSC™ technology assets added adjacent to the Tharaldson Ethanol plant in Casselton, North Dakota to produce Ultra-High Protein and increase renewable corn oil yields. Operations commenced during the second quarter of 2024. Including GP Turnkey Tharaldson's capacity, the annual Ultra-High Protein capacity we market is approximately 430 thousand tons.
The world's first commercial scale FQT CST™ facility in Shenandoah, Iowa has achieved successful ongoing production of dextrose syrups with CST™. The FQT CST™ technology allows for the production of both food and industrial grade low carbon-intensity glucose and dextrose corn syrups to target applications in food production, renewable chemicals and synthetic biology. The facility is currently capable of producing approximately 60 million pounds of product per year. During the quarter, the company idled its operations at the Clean Sugar Technology (CST™) facility in Shenandoah, Iowa, as the company focuses on optimizing its product mix to maximize current returns. CST™ has already proven its ability to produce a high-purity dextrose with a lower carbon intensity and the company remains confident in its commercial potential. The decision to temporarily pause operations presents an opportunity to further refine the dextrose production process.
In July 2023, we announced a technology collaboration with Equilon Enterprises LLC, which allows us to use FQT’s precision separation and processing technology with Shell Fiber Conversion Technology. The two technologies combine
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fermentation, mechanical separation and processing, and fiber conversion into one platform. This has the potential to liberate all of the remaining distillers corn oil currently bound in the fiber fraction of the corn kernel, generate cellulosic sugars for production of low-carbon ethanol, and enhance and expand available high protein to produce high-quality ingredients for global pet, livestock and aquaculture diets. Our collaboration completed the construction of a large demonstration facility at Green Plains York and began commissioning during 2024.
Our profitability is highly dependent on commodity prices, particularly for ethanol, distillers grains, Ultra-High Protein, renewable corn oil, soybean meal, corn, and natural gas. Since market price fluctuations of these commodities are not always correlated, our operations may be unprofitable at times. We use a variety of risk management tools and hedging strategies to monitor price risk exposure at our ethanol plants and lock in favorable margins or reduce production when margins are compressed. Our profitability could be significantly impacted by price movements of the aforementioned commodities.
Recent Developments
Junior Notes and Warrant Amendments
On May 7, 2025, the company entered into an amendment to its $125 million junior secured mezzanine notes (the “Junior Notes”) with BlackRock to extend the maturity date to May 15, 2026, with an amendment fee of 2.0% to be added to the principal balance of the Junior Notes, payable at the maturity date. The amendment includes a trigger date of July 31, 2025, at which date if the Junior Notes are not repaid additional collateral will be required, fees will be assessed, and BlackRock's warrants will be repriced from a $22.00 to a $7.00 exercise price with the maturity date extended from April 28, 2026 to December 31, 2029.
Ancora Credit Facility and Warrants
On May 7, 2025, the company entered into a secured $30 million revolving credit facility with Ancora Alternatives LLC, that matures on July 30, 2025. The facility bears interest at 10% on borrowings and has a 0.5% fee on the unused balance. Interest and fees are due on the 5th of each month. Also executed as part of the credit facility, the company has issued 1,504,140 stock warrants at a strike price of $0.01 per share. The warrants have a ten year exercise period.
Ethanol Marketing Agreement with Eco-Energy, LLC
On April 16, 2025, the company entered into an ethanol marketing agreement with Eco-Energy, LLC. The marketing agreement is for a term of five years, with certain early termination rights, and requires the company to sell exclusively to the Eco-Energy LLC, and for Eco-Energy LLC to purchase from the company all fuel grade ethanol, or other ethanol specifications as agreed to for a predetermined market-based marketing fee that may be adjusted based on gallons shipped. Eco-Energy, LLC has also agreed to handle certain back office duties related to the ethanol marketing and logistics across the company's platform, providing end-to-end support to optimize value, expand market access and improve supply chain efficiency. On April 14, 2025, a conforming amendment was entered into on the $350 million revolver to accommodate concentration risk with Eco-Energy, LLC.
Cooperation Agreement
On April 11, 2025, the company entered into a Cooperation Agreement with Ancora Holdings Group, LLC, a long-term shareholder, which outlines certain compositional changes to the Board, and provides for a standstill, voting commitment and other customary provisions.
The changes to the Board resulted in the appointment of three individuals as independent members on April 14, 2025, Steve Furcich, Carl Grassi, and Patrick Sweeney. These individuals were appointed as part of the continuation of the company's refreshment of the Board as they possess additive experience in key areas such as the agriculture and commodities sector, capital allocation, finance, long-term planning, and strategic reviews and transactions. Now through the Annual Meeting, the appointments will result in an expansion of the Board to ten members. The Board will be reduced to eight members due to Ejnar A. Knudsen III and Alain Treuer not standing for re-election at this year’s Annual Meeting.
Leadership Transition
On February 28, 2025, the company announced the departure of Todd Becker as President and Chief Executive Officer and member of the Board, effective March 1, 2025. The Board has engaged an executive search firm to identify a new Chief Executive Officer. The Board appointed Michelle Mapes, Chief Legal & Administration Officer, as Interim Principal Executive Officer, and also appointed an executive committee comprised of Ms. Mapes, Jamie Herbert, Chief Human Resource Officer, Chris Osowski, Executive Vice President – Operations and Technology, and Imre Havasi, Senior Vice
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President – Head of Trading and Commercial Operations to lead the company until Mr. Becker’s successor is appointed. The Board designated Ms. Mapes as Interim Principal Executive Officer, effective as of March 1, 2025. As part of the company’s corporate reorganization and cost reduction initiative, Michelle Mapes' position as Chief Legal and Administration Officer and Corporate Secretary will be eliminated, effective no later than December 31, 2025, and both Grant Kadavy's position of EVP - Commercial Operations and Leslie van der Meulen's position of EVP - Product Marketing and Innovation were eliminated, effective February 6, 2025.
Restructuring Costs
As part of the strategic review process, in early 2025, the company launched a corporate reorganization and cost reduction initiative that will significantly reduce selling, general and administrative expenses on an ongoing basis. As part of this initiative, the company identified approximately $45 million of financial improvement annually, inclusive of savings from idling the Fairmont, Minnesota facility, transitioning to a third party ethanol marketer, and realigning corporate and trade group selling, general and administrative functions to reflect current strategic priorities. The company is continuing to identify additional opportunities. As a result of the reorganization, the company recorded one-time restructuring costs in the first quarter of 2025 of $16.6 million, which includes severance related to the departure of its CEO.
Strategic Review
The company initiated a strategic review process in February 2024 to explore a broad range of opportunities to enhance long-term shareholder value, including, but not limited to, acquisitions, divestitures, a merger or sale, partnerships and financings. The Board of Directors continues to progress the strategic review process, working with its financial advisors, BMO Capital Markets Corp. and Moelis & Company, and legal advisors Vinson & Elkins LLP. There is no deadline or definitive timetable for completion of the strategic review process, and there can be no assurances that the process will result in a transaction or any other outcome. The company does not intend to make any further public comment regarding the review until the Board has approved a specific action or otherwise determines that additional disclosure is appropriate or required.
Idling of Clean Sugar Technology facility in Shenandoah, Iowa
During the quarter, the company idled its operations at the Clean Sugar Technology (CST™) facility in Shenandoah, Iowa, as the company focuses on optimizing its product mix to maximize current returns. CST™ has already proven its ability to produce a high-purity dextrose with a lower carbon intensity and the company remains confident in its commercial potential. The decision to temporarily pause operations presents an opportunity to further refine the dextrose production process.
Idling of Fairmont, Minnesota Plant
In January 2025, the company idled its 119 million gallon ethanol plant in Fairmont, Minnesota as a result of persistent margin pressures, and the majority of the staff was terminated. The facility remains on track for carbon capture and sequestration coming online in 2027, which would fundamentally reshape the economics of the facility. The company will continue to monitor the potential margin available to determine any changes to future operations.
Results of Operations
During the first quarter of 2025, we maintained an average utilization rate of approximately 87.7% of capacity, or 99.9% excluding Fairmont, resulting in ethanol production of 195.2 mmg, compared with 208.0 mmg, or 92.4% of capacity, for the same quarter last year. Our operating strategy is to transform our company to a value-add agricultural technology company. Depending on the margin environment, we may exercise operational discretion that results in reductions in production volumes. It is possible that throughput volumes could fluctuate in the future, depending on various factors that drive each biorefinery’s variable contribution margin, including future driving and gasoline demand for the industry, demand for valuable coproducts we produce, and the supply and pricing of renewable feedstocks needed to operate our biorefineries. We are currently producing Ultra-High Protein at five of our biorefineries.
U.S. Ethanol Supply and Demand
According to the EIA, domestic ethanol production averaged 1.08 million barrels per day during the first quarter of 2025, which was approximately 3.8% higher than the 1.04 million barrels per day for the same quarter last year. Refiner and blender input volume was 855 thousand barrels per day for the first quarter of 2025, compared with 851 thousand barrels per day for the same quarter last year. Gasoline demand for the first quarter of 2025 was in line with the prior year
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quarter at 8.5 million barrels per day. U.S. domestic ethanol ending stocks increased by approximately 0.2 million barrels compared to the prior year, or 0.8%, to 26.6 million barrels as of March 31, 2025.
Global Ethanol Supply and Demand
According to the USDA Foreign Agriculture Service, domestic ethanol exports through February 28, 2025, were approximately 337 mmg, up from the 289 mmg for the same period of 2024. Year to date, Canada was the largest export destination for U.S. ethanol accounting for approximately 31% of domestic ethanol export volume, driven in part by their national clean fuel standard. India, Netherlands, Philippines and United Kingdom accounted for approximately 14%, 11%, 8%, and 7%, respectively, of U.S. ethanol exports. We currently estimate that net ethanol exports will range from 1.8 to 2.1 billion gallons in 2025, based on historical demand from a variety of countries and certain countries that seek to improve their air quality, reduce greenhouse gas emissions through low carbon fuel programs and eliminate MTBE from their own fuel supplies. Fluctuations in currencies relative to the U.S. Dollar could impact the U.S. ethanol competitiveness in the global market.
Protein and Vegetable Oil Supply and Demand
Our dried distillers grains and Ultra-High Protein ingredients compete against other ethanol producers domestically and abroad, as well as with soybean meal, canola meal, and other protein feed ingredients. Likewise our distillers corn oil, which is a feedstock for producing biodiesel, renewable diesel and to some extent SAF, competes against other vegetable oils such as soybean oil, canola oil, and to some extent palm oil, as well as against waste oils such as used cooking oils, animal fats and tallow. While global protein demand has continued to grow since the advent of our transformation, so too has the production of vegetable proteins from multiple companies in an effort to capitalize on this trend, most notably in U.S. soy crushing capacity, which has led to an over-supplied domestic market and compressed protein values. Soybean processing capacity in the U.S. has been expanding to meet the rising demand for vegetable oils to produce renewable fuels. According to the National Oilseed Processors Association, for the first quarter of 2025, soybean crush was approximately 572.9 million bushels, up 4.5 million bushels from the 568.4 million bushels crushed during the first quarter of 2024. Soybean oil stocks for the first quarter of 2025 were 1.5 billion pounds, which was down 0.4 billion pounds from the 1.9 billion pounds of stocks as of March 31, 2024. Soybean meal production was 13.6 million short tons for the first quarter of 2025, up 0.2 million short tons from the 13.4 million short tons from the same period in the prior year.
Legislation and Regulation
We are sensitive to domestic and foreign government programs and policies that affect the supply and demand for ethanol and other fuels, which in turn may impact the volume of ethanol and other products we handle. Following the transition in U.S. presidential administration in early 2025, multiple executive orders signaling a shift in federal energy and environmental policy have been issued. These actions have included prioritization of domestic energy production, including fossil fuel sources, and challenges to state-level climate initiatives. As a result, there remains uncertainty regarding the future of federal support for renewable fuels and low-carbon programs. While we believe that biofuels remain aligned with the broader goals of U.S. energy independence and energy security, we continue to closely monitor evolving federal and state regulatory developments that may affect the supply, demand, or economic incentives for renewable fuels.
Over the years, various bills and amendments have been proposed in the House and Senate, which would eliminate the RFS entirely, eliminate the corn based ethanol portion of the mandate, lower the price of RINs and make it more difficult to sell fuel blends with higher levels of ethanol. Bills have also been introduced to require or otherwise incentivize higher levels of octane blending, allow for year-round sales of higher blends of ethanol, require car manufacturers to produce vehicles that can operate on higher ethanol blends and provide incentives for reducing the CI of biofuels including ethanol. In addition, the manner in which the EPA administers the RFS and related regulations can have a significant impact on the actual amount of ethanol and other biofuels blended into the domestic fuel supply.
Federal and foreign mandates and state-level clean fuel standards supporting the use of renewable fuels are a significant driver of ethanol demand in the U.S. Ethanol policies are influenced by concerns for the environment, diversifying the fuel supply, supporting U.S. farmers and reducing the country’s dependence on foreign oil. Consumer acceptance of FFVs, availability of higher ethanol blends and increased use of higher ethanol blends in non-FFVs may be necessary before ethanol can achieve further growth in the U.S. light duty surface transportation fleet market share. In addition, expansion of clean fuel standards in other states and countries, or a national LCFS could increase the demand for ethanol, depending on how they are structured. Incentives for automakers to produce FFVs phased out in 2020, and the EPA's proposed Corporate Average Fuel Economy (CAFE) standards further incentivize EV production. Sales of EVs in the U.S. were approximately 296 thousand vehicles during the first quarter of 2025, which represented approximately 7.5%
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of new vehicles sales, up 11.3% from the approximately 266 thousand in 2024. Transition of the light duty surface transportation fleet from internal combustion engines to EVs could decrease the demand for ethanol.
The IRA, which was signed into law on August 16, 2022, is a sweeping policy that could have many potential impacts on our business which we are continuing to evaluate. The legislation (1) created a new Clean Fuel Production Credit, section 45Z of the Internal Revenue Code, of $0.02 per gallon per CI point reduction for any fuel below a 50 CI threshold from 2025 to 2027, which could impact our fuel ethanol, depending on the level of GHG reduction for each gallon; (2) created a new tax credit for SAF, section 40B of the Internal Revenue Code, of $1.25 to $1.75 per gallon for 2023 and 2024, depending on the GHG reduction for each gallon, that could possibly involve some of our renewable corn oil or low carbon ethanol as feedstock through an ATJ pathway, depending on the life cycle analysis model being used (this credit expired after 2024 and shifts to the 45Z Clean Fuel Production Credit, where it qualifies for up to $0.035 per gallon per CI point reduction below a 50 CI threshold); (3) expanded the carbon capture and sequestration credit, section 45Q of the Internal Revenue Code, to $85 for each metric ton of carbon dioxide sequestered, which could impact our carbon capture strategies, though it cannot be claimed in conjunction with the 45Z Clean Fuel Production Credit, which could prove to be more valuable; (4) extended the $1.00 per gallon biomass-based diesel tax credit (this credit expired after 2024 and shifts to the 45Z Clean Fuel Production credit, where all non-SAF fuels qualify for $0.02 per gallon for each point of CI reduction under the 50 CI threshold); (5) funded $500 million of biofuel blending infrastructure, which could impact the availability of higher level ethanol blended fuel; (6) increased funding for climate-smart agriculture and working lands conservation programs for farmers by $20 billion; and (7) provided credits for the production and purchase of EVs, which could impact the amount of internal combustion engines built and sold longer term, and by extension impact the demand for liquid fuels including ethanol. There are numerous additional clean energy credits included in this law, including investment tax credits for construction of clean energy infrastructure, that could impact us and our overall competitiveness. Regulatory rulemaking for the administration of these programs is underway, and the final regulations could impact many aspects of our business.
On April 30, 2024, the U.S. Department of Treasury issued regulatory guidance along with an updated GREET lifecycle assessment model for the 40B SAF tax credit, which included a pathway for U.S. corn ethanol to qualify as a feedstock for SAF if the carbon intensity is lowered through utilization of various technologies and practices, including carbon capture and climate smart agriculture practices. On June 22, 2024, the USDA put out a Request for Information on the Production of Biofuel Feedstocks using climate smart practices, which could inform rulemaking for the 45Z Clean Fuel Production Credit. On January 10, 2025, the U.S. Department of Treasury issued a notice of intent to propose rulemaking on the 45Z Clean Fuel Production Credit, which it published on February 3, 2025 in Internal Revenue Bulletin 2025-6, and on January 15, 2025 the Department of Energy released an updated 45Z GREET LCA model for calculating CI values of various feedstocks and finished fuels under 45Z. Additionally, on January 15, 2025, the USDA put forth interim rules around climate smart agriculture for crops serving as feedstocks for biofuel production, including corn, soybeans and sorghum, though it was not incorporated into Treasury’s 45Z proposed rulemaking at this time. While the proposed regulations are subject to change, and the GREET model could continue to be updated, as of this filing the GREET model indicates that CCS could reduce the CI of corn ethanol by 32 points, and that distillers corn oil used to produce biodiesel, renewable diesel or SAF has a lower CI score relative to most other feedstocks. Additionally, the 45Z rulemaking excluded imported used cooking oil from qualifying for the credit if used as a feedstock to produce on-road fuels, though it still qualifies to produce SAF.
The RFS sets a floor for biofuels use in the United States. In June 2023, the EPA finalized RVOs for 2024 and 2025, setting the implied conventional ethanol levels at 15 billion gallons for 2024 and 2025. The EPA also proposed a modest increase in biomass based diesel volumes over the three years, setting the volumes at 3.04 billion for 2024 and 3.35 billion for 2025. The EPA also indicated that corn kernel fiber would contribute to the finalized cellulosic volumes, and could move to approve registrations that have been languishing for years at the agency. The EPA also removed a proposed e-RIN program to support EVs from the final rule, but indicated they may move forward with it in a separate rulemaking. The EPA was required to propose RVOs for 2026 by November 2024, but the administration indicated on July 8, 2024 that it intends to propose RVOs for 2026 and potentially additional years in March 2025, and finalize them in December 2025. The new administration has not indicated an updated timeline for these rules.
Under the RFS, RINs impact supply and demand. The EPA assigns individual refiners, blenders, and importers the volume of renewable fuels they are obligated to use in each annual RVO based on their percentage of total production of domestic transportation fuel sales. Obligated parties use RINs to show compliance with the RFS mandated volumes. Ethanol producers assign RINs to each gallon of renewable fuel they produce and the RINs are detached when the renewable fuel is blended with transportation fuel domestically. Market participants can trade the detached RINs in the open market. The market price of detached RINs can affect the price of ethanol in certain markets and can influence purchasing decisions by obligated parties. SREs can reduce or waive entirely the obligation for a refinery, which has the
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practical effect of reducing the RVO, and by extension the number of RINs that need to be retired, which can impact their values and ultimately blending levels of renewable fuels. There are multiple on-going legal challenges to how the EPA has handled SREs and RFS rulemakings. On October 21, 2024, the U.S. Supreme Court agreed to review the various Circuit Court rulings on SREs to determine the proper venue. On February 6, 2025, the U.S. Supreme Court denied the new administration’s request to delay the case and oral arguments took place on March 25, 2025 with a final ruling expected by the end of the current term.
The One-Pound Waiver, which was extended in May 2019 to allow E15 to be sold year-round to all vehicles model year 2001 and newer, was challenged in an action filed in Federal District Court for the D.C. Circuit. On July 2, 2021, the Circuit Court vacated the EPA’s rule so the future of summertime, defined as June 1 to September 15, sales of E15 is uncertain. The Supreme Court subsequently declined to hear a challenge to this ruling. In 2022, the EPA issued emergency waivers to allow for the continued sale of E15 during the summer months and similar summertime waivers have been issued each year since then, with the 2025 driving season marking the seventh consecutive year that E15 is able to be sold year-round nationwide, with the exception of California which has not approved the fuel. On October 25, 2024, the Governor of California issued a directive to CARB to expedite the ongoing multi-year review process for approving the use of E15 in the State.
The EPA has also allowed for the elimination of the One-Pound Waiver for E10 in several Midwestern states beginning with the 2025 summer driving season, which would have the practical effect of allowing for E15 to be sold year- round in the following states: Illinois, Iowa, Minnesota, Missouri, Nebraska, Ohio, South Dakota and Wisconsin. On February 21, 2025, the EPA announced it will uphold the April 28, 2025 implementation date and allowed states until February 26, 2025 to submit a request for delayed implementation. The State of Ohio and the State of South Dakota requested delayed implementation until 2026. Ohio’s request included the entire state and South Dakota’s request was limited to the western portion of their state.
In October 2019, the White House directed the USDA and EPA to move forward with rulemaking to expand access to higher blends of biofuels. This includes funding for infrastructure, labeling changes and allowing E15 to be sold through E10 infrastructure. The USDA rolled out the Higher Blend Infrastructure Incentive Program in the summer of 2020, providing competitive grants to fuel terminals and retailers for installing equipment capable of dispensing higher blends of ethanol and biodiesel. In December 2021, the USDA announced it would administer another infrastructure grant program. The IRA, signed into law in 2022, provided for an additional $500 million in USDA grants for biofuel infrastructure. On June 26, 2023, the USDA announced the initial $50 million in awards, and laid out a process for distributing the remaining $450 million, with $90 million being made available each quarter.
More states are expected to join California, Washington, Oregon, and New Mexico in establishing their own LCFS programs. In recent years, several states have made progress on developing such programs by introducing legislation. Hawaii, Illinois, New Jersey, and New York have all introduced or reintroduced LCFS laws in 2025. However, most are at very early stages and still in committee.
A string of 2024 U.S. Supreme Court decisions, namely Loper Bright Enterprises v. Raimondo, SEC v. Jarkesy and Corner Post, Inc. v. Board of Governors of the Federal Reserve, have redefined the power of federal agencies, as well as overturned the important principle of administrative law called "Chevron deference," based on a landmark case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. The Chevron deference was a doctrine of judicial deference to administrative interpretations. The general shift in power from agencies to the judicial system resulting from these decisions could impact various regulatory rules affecting our business in ways that could affect our business, prospects and operations, and our financial performance positively or negatively.
Environmental and Other Regulation
Our operations are subject to environmental regulations, including those that govern the handling and release of ethanol, crude oil and other liquid hydrocarbon materials. Compliance with existing and anticipated environmental laws and regulations may increase our overall cost of doing business, including capital costs to construct, maintain, operate, and upgrade equipment and facilities, or limit the feasibility of certain capital improvement, expansion, or other projects due to environmental related permitting restrictions. Our business may also be impacted by government policies, such as tariffs, duties, subsidies, import and export restrictions and outright embargos. While the current administration’s efforts to counter trade barriers in certain countries may ultimately benefit the ethanol industry (such as Brazil, where U.S. ethanol has been subject to tariffs since 2020), the risk of reciprocal tariffs by other countries, including Canada and Mexico, may impede exported volumes. We employ maintenance and operations personnel at each of our facilities, which are regulated by the Occupational Safety and Health Administration.
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Comparability
There are various events that could affect comparability of our operating results, including fluctuations in our production rates in 2025 compared to 2024, along with the disposition of our Birmingham, Alabama terminal in September of 2024, the idling of our Fairmont, Minnesota plant in January of 2025 and our corporate restructuring and cost saving initiatives in early 2025.
Segment Results
We report the financial and operating performance for the following two operating segments: (1) ethanol production, which includes the production, storage, and transportation of ethanol, distillers grains, Ultra-High Protein and renewable corn oil and (2) agribusiness and energy services, which includes grain handling and storage, commodity marketing and merchant trading for company-produced and third-party ethanol, distillers grains, renewable corn oil, natural gas and other commodities.
Corporate activities include selling, general and administrative expenses, consisting primarily of compensation, professional fees and overhead costs not directly related to a specific operating segment.
During the normal course of business, our operating segments do business with each other. For example, our agribusiness and energy services segment procures grain and natural gas and sells products, including ethanol, distillers grains, Ultra-High Protein, and renewable corn oil of our ethanol production segment. These intersegment activities are treated like third-party transactions with origination, marketing and storage fees charged at estimated market values. Consequently, these transactions affect segment performance; however, they do not impact our consolidated results since the revenues and corresponding costs are eliminated.
When we evaluate segment performance, we review the following segment information as well as earnings before interest expense, income taxes, depreciation and amortization, or EBITDA, and adjusted EBITDA.
The selected operating segment financial information is as follows (in thousands):
| Three Months Ended<br>March 31, | %<br>Variance | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 2025 | 2024 | |||||||||||
| Revenues | ||||||||||||
| Ethanol production | ||||||||||||
| Revenues from external customers | $ | 497,458 | $ | 504,446 | (1.4)% | |||||||
| Intersegment revenues | 314 | 1,213 | (74.1) | |||||||||
| Total segment revenues | 497,772 | 505,659 | (1.6) | |||||||||
| Agribusiness and energy services | ||||||||||||
| Revenues from external customers | 104,057 | 92,768 | 12.2 | |||||||||
| Intersegment revenues | 5,772 | 6,228 | (7.3) | |||||||||
| Total segment revenues | 109,829 | 98,996 | 10.9 | |||||||||
| Revenues including intersegment activity | 607,601 | 604,655 | 0.5 | |||||||||
| Intersegment eliminations | (6,086) | (7,441) | (18.2) | |||||||||
| $ | 601,515 | $ | 597,214 | 0.7% | Three Months Ended<br>March 31, | %<br>Variance | ||||||
| --- | --- | --- | --- | --- | --- | |||||||
| 2025 | 2024 | |||||||||||
| Cost of goods sold | ||||||||||||
| Ethanol production (1) | $ | 503,464 | $ | 508,302 | (1.0)% | |||||||
| Agribusiness and energy services | 101,098 | 87,986 | 14.9 | |||||||||
| Intersegment eliminations | (6,086) | (7,441) | (18.2) | |||||||||
| $ | 598,476 | $ | 588,847 | 1.6% |
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| Three Months Ended<br>March 31, | %<br>Variance | |||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 2025 | 2024 | |||||||||||
| Gross margin | ||||||||||||
| Ethanol production (1) | $ | (5,692) | $ | (2,643) | 115.4% | |||||||
| Agribusiness and energy services | 8,731 | 11,010 | (20.7) | |||||||||
| $ | 3,039 | $ | 8,367 | (63.7)% | Three Months Ended<br>March 31, | %<br>Variance | ||||||
| --- | --- | --- | --- | --- | --- | |||||||
| 2025 | 2024 | |||||||||||
| Depreciation and amortization | ||||||||||||
| Ethanol production | $ | 21,035 | $ | 20,534 | 2.4% | |||||||
| Agribusiness and energy services | 598 | 505 | 18.4 | |||||||||
| Corporate activities | 754 | 448 | 68.3 | |||||||||
| $ | 22,387 | $ | 21,487 | 4.2% | Three Months Ended<br>March 31, | %<br>Variance | ||||||
| --- | --- | --- | --- | --- | --- | |||||||
| 2025 | 2024 | |||||||||||
| Operating income (loss) | ||||||||||||
| Ethanol production (1) | $ | (39,550) | $ | (33,653) | 17.5% | |||||||
| Agribusiness and energy services | 1,533 | 6,004 | (74.5) | |||||||||
| Corporate activities (2) | (24,243) | (17,240) | 40.6 | |||||||||
| $ | (62,260) | $ | (44,889) | 38.7% |
(1)Ethanol production includes an inventory lower of cost or net realizable value adjustment of $2.5 million and $4.2 million for the three months ended March 31, 2025 and 2024, respectively.
(2)Corporate activities includes $10.3 million of restructuring costs for the three months ended March 31, 2025 as a result of the company's cost reduction initiative, including severance related to the departure of its CEO.
We use EBITDA, adjusted EBITDA, and segment EBITDA as measures of profitability to compare the financial performance of our reportable segments and manage those segments. EBITDA is defined as earnings before interest expense, income taxes, depreciation and amortization excluding the amortization of right-of-use assets and debt issuance costs. Adjusted EBITDA includes adjustments related to restructuring costs and our proportional share of EBITDA adjustments of our equity method investees. We believe EBITDA, adjusted EBITDA and segment EBITDA are useful measures to compare our performance against other companies. These measures should not be considered an alternative to, or more meaningful than, net income, which is prepared in accordance with GAAP. EBITDA, adjusted EBITDA, and segment EBITDA calculations may vary from company to company. Accordingly, our computation of EBITDA, adjusted EBITDA, and segment EBITDA may not be comparable with a similarly titled measure of other companies.
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The following table reconciles net loss including noncontrolling interest to adjusted EBITDA (in thousands):
| Three Months Ended<br>March 31, | %<br>Variance | ||||
|---|---|---|---|---|---|
| 2025 | 2024 | ||||
| Net loss | $ | (72,641) | $ | (51,122) | 42.1% |
| Interest expense | 8,913 | 7,786 | 14.5 | ||
| Income tax expense, net of equity method income tax benefit | (165) | 329 | (150.2) | ||
| Depreciation and amortization (1) | 22,387 | 21,487 | 4.2 | ||
| EBITDA | (41,506) | (21,520) | 92.9 | ||
| Restructuring costs | 16,587 | — | 100.0 | ||
| Proportional share of EBITDA adjustments to equity method investees | 735 | 45 | * | ||
| Adjusted EBITDA | $ | (24,184) | $ | (21,475) | 12.6% |
(1)Excludes amortization of operating lease right-of-use assets and amortization of debt issuance costs.
The following table reconciles segment EBITDA to consolidated adjusted EBITDA (in thousands):
| Three Months Ended<br>March 31, | %<br>Variance | ||||
|---|---|---|---|---|---|
| 2025 | 2024 | ||||
| Adjusted EBITDA | |||||
| Ethanol production (1) | $ | (19,416) | $ | (13,621) | 42.5% |
| Agribusiness and energy services | 3,156 | 7,056 | (55.3) | ||
| Corporate activities (2) | (25,246) | (14,955) | 68.8 | ||
| EBITDA | (41,506) | (21,520) | 92.9 | ||
| Restructuring costs | 16,587 | — | 100.0 | ||
| Proportional share of EBITDA adjustments to equity method investees | 735 | 45 | * | ||
| $ | (24,184) | $ | (21,475) | 12.6% |
(1)Ethanol production includes an inventory lower of cost or net realizable value adjustment of $2.5 million and $4.2 million for the three months ended March 31, 2025 and 2024, respectively.
(2)Corporate activities includes $10.3 million of restructuring costs recorded within selling, general and administrative expenses for the three months ended March 31, 2025 as a result of the company's cost reduction initiative, including severance related to the departure of its CEO.
* Percentage variance not considered meaningful.
Three Months Ended March 31, 2025 Compared with the Three Months Ended March 31, 2024
Consolidated Results
Consolidated revenues increased $4.3 million for the three months ended March 31, 2025 compared with the same period in 2024, primarily due to higher revenues within our agribusiness and energy services segment as a result of higher natural gas prices and margins as well as higher revenues in our ethanol production segment as a result of higher weighted average selling prices on ethanol, offset by lower revenues in our ethanol production segment as a result of lower volumes sold on ethanol, distillers grains and renewable corn oil, and lower weighted average selling prices on distillers grains and renewable corn oil, as described below.
Net loss increased $21.5 million for the three months ended March 31, 2025 compared with the same period last year primarily due to lower margins in our ethanol production and agribusiness and energy services segments as well as restructuring costs incurred of $16.6 million. Adjusted EBITDA decreased $2.7 million for the three months ended March 31, 2025 compared with the same period in 2024 primarily due to lower margins in our ethanol production segment and agribusiness and energy services segment. Interest expense increased $1.1 million for the three months ended March 31, 2025 compared with the same period in 2024 primarily due to lower capitalized interest. Income tax expense was $0.1 million for the three months ended March 31, 2025, compared with income tax expense of $0.3 million for the same period in 2024.
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The following discussion provides greater detail about our first quarter segment performance.
Ethanol Production Segment
Key operating data for our ethanol production segment is as follows:
| Three Months Ended<br>March 31, | |||
|---|---|---|---|
| 2025 | 2024 | % Variance | |
| Ethanol (gallons) | 195,328 | 207,904 | (6.0)% |
| Distillers grains (equivalent dried tons) | 417 | 469 | (11.1)% |
| Ultra-High Protein (tons) | 68 | 60 | 13.3 |
| Renewable corn oil (pounds) | 64,263 | 66,721 | (3.7) |
| Corn consumed (bushels) | 66,264 | 71,274 | (7.0) |
Revenues in our ethanol production segment decreased $7.9 million for the three months ended March 31, 2025 compared with the same period in 2024, primarily due to lower ethanol, distillers grains and renewable corn oil volumes sold resulting in decreased revenues of $21.2 million, $8.3 million and $1.3 million, respectively, lower weighted average selling prices on distillers grains and renewable corn oil resulting in decreased revenues of $17.6 million and $1.8 million, respectively, and lower natural gas and terminal revenues of $3.1 million and $2.1 million, respectively, partially offset by higher ethanol weighted average selling prices resulting in increased revenues of $47.1 million and increased revenues as a result of hedging activities by $2.3 million.
Cost of goods sold in our ethanol production segment decreased $4.8 million for the three months ended March 31, 2025 compared with the same period last year primarily due to lower corn volumes purchased and hedging activities resulting in decreased costs of $21.9 million and $7.4 million, respectively, offset by higher weighted average corn prices resulting in increased costs of $15.1 million and higher ethanol volumes purchased of $11.2 million.
Operating loss in our ethanol production segment increased $5.9 million for the three months ended March 31, 2025 compared with the same period in 2024 primarily due to decreased margins on ethanol production as outlined above. Depreciation and amortization expense for the ethanol production segment was $21.0 million for the three months ended March 31, 2025, compared with $20.5 million for the same period last year.
Agribusiness and Energy Services Segment
Revenues in our agribusiness and energy services segment increased $10.8 million while operating income decreased $4.5 million for the three months ended March 31, 2025, compared with the same period in 2024. The increase in revenues was primarily due to higher natural gas prices and trading volumes. The decrease in operating income was primarily due to lower weighted average trading prices as well as increased personnel costs as a result of restructuring.
Intersegment Eliminations
Intersegment eliminations of revenues decreased by $1.4 million for the three months ended March 31, 2025, primarily as a result of lower terminal revenues as well as lower marketing revenues driven by lower volumes.
Corporate Activities
Operating loss was impacted by an increase in corporate activities of $7.0 million for the three months ended March 31, 2025 compared with 2024 primarily due to increased personnel costs as a result of restructuring.
Liquidity and Capital Resources
Our principal sources of liquidity include cash generated from operating activities and bank credit facilities. We fund our operating expenses and service debt primarily with operating cash flows. Capital resources for maintenance and growth expenditures are funded by a variety of sources, including cash generated from operating activities or from debt and equity capital markets. Our ability to access capital markets for debt under reasonable terms depends on our financial condition,
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credit ratings and market conditions. We believe that our ability to obtain financing at reasonable rates based on these factors remains sufficient and provides a solid foundation to meet our future liquidity and capital resource requirements.
On March 31, 2025, we had $98.6 million in cash and cash equivalents and $28.0 million in restricted cash. We also had $204.5 million available under our committed revolving credit agreement, subject to restrictions or other lending conditions. Total corporate liquidity consisting of unrestricted cash, distributable cash from subsidiaries and credit facility availability was $48.6 million as of March 31, 2025, and has increased to $89.2 million as of May 7, 2025, primarily as a result of the sale of certain non-core assets, and the company entering into a secured $30 million revolving credit facility that matures on July 30, 2025. Funds at certain subsidiaries are generally required for their ongoing operational needs and restricted from distribution. At March 31, 2025, our subsidiaries had approximately $22.3 million of net assets that were not available to use in the form of dividends, loans or advances due to restrictions contained in their credit facilities.
The company has $125.0 million of debt due on May 15, 2026. On or before the maturation of debt in 2026, the Company will require substantial additional liquidity to satisfy these debt obligations. The Company is currently evaluating strategies to obtain the needed additional liquidity to satisfy these obligations, including but not limited to, issuing debt, entering into other financing arrangements, selling assets, or other strategic actions. There can be no assurance that the Company will be able to execute on these strategies when needed or under acceptable terms.
Net cash used in operating activities was $55.0 million for the three months ended March 31, 2025, compared with net cash used in operating activities of $50.6 million for the same period in 2024. Net cash used in operating activities compared to the prior year decreased primarily due to higher net losses and lower collections of accounts receivable. Net cash used in investing activities was $20.7 million for the three months ended March 31, 2025, compared with net cash used in investing activities of $30.2 million for the same period in 2024. Investing activities were primarily affected by lower investment in equity method investees when compared to the same period in the prior year. Net cash used in financing activities was $7.0 million for the three months ended March 31, 2025, compared with net cash used in financing activities of $20.6 million for the same period in 2024, primarily due to the extinguishment of non-controlling interest and payments of transactions costs during 2024.
Additionally, Green Plains Finance Company, Green Plains Trade, Green Plains Grain and Green Plains Commodity Management use revolving credit facilities to finance working capital requirements. We frequently draw from and repay these facilities, which results in significant cash movements reflected on a gross basis within financing activities as proceeds from and payments on short-term borrowings.
We incurred capital expenditures of approximately $16.7 million during the three months ended March 31, 2025, primarily for various capital projects. Capital spending for the remainder of 2025 is expected to be approximately $20.0 million, which is subject to review prior to the initiation of any project. This estimated capital spending for the remainder of 2025 excludes estimated total costs of $110 million related to our carbon capture and sequestration projects to be funded through project related financing.
Our business is sensitive to the price of commodities, particularly for corn, ethanol, distillers grains, Ultra-High Protein, renewable corn oil and natural gas. We use derivative financial instruments to reduce the market risk associated with fluctuations in commodity prices. Sudden changes in commodity prices may require cash deposits with brokers for margin calls or significant liquidity with little advanced notice to meet margin calls, depending on our open derivative positions. We continuously monitor our exposure to margin calls and believe we will continue to maintain adequate liquidity to cover margin calls from our operating results and borrowings.
In August 2014 and October 2019, our Board authorized a share repurchase program of up to $200.0 million of our common stock. Under the program, we may repurchase shares in open market transactions, privately negotiated transactions, accelerated share buyback programs, tender offers or by other means. The timing and amount of repurchase transactions are determined by our management based on market conditions, share price, legal requirements and other factors. The program may be suspended, modified or discontinued at any time without prior notice. Since inception of the repurchase program, we have repurchased 7.4 million shares of common stock for approximately $92.8 million under the program. We did not repurchase any shares of common stock during the first quarter of 2025.
We believe we have sufficient working capital for our existing operations. A continued sustained period of unprofitable operations, however, may strain our liquidity. We may sell additional assets or equity or borrow capital to improve or preserve our liquidity.
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Debt
We were in compliance with our debt covenants at March 31, 2025. Based on our forecasts, we anticipate we will maintain compliance at each of our subsidiaries for the next twelve months or have sufficient liquidity available on a consolidated basis to resolve noncompliance. We cannot provide assurance that actual results will approximate our forecasts or that we will inject the necessary capital into a subsidiary to maintain compliance with its respective covenants. In the event a subsidiary is unable to comply with its debt covenants, the subsidiary’s lenders may determine that an event of default has occurred, and following notice, the lenders may terminate the commitment and declare the unpaid balance due and payable.
Corporate Activities
In March 2021, we issued $230.0 million of unsecured 2.25% convertible senior notes due in 2027, or the 2.25% notes. The 2.25% notes bear interest at a rate of 2.25% per year, payable on March 15 and September 15 of each year. The initial conversion rate is 31.6206 shares of our common stock per $1,000 principal amount of 2.25% notes (equivalent to an initial conversion price of approximately $31.62 per share of our common stock), representing an approximately 37.5% premium over the offering price of our common stock. The conversion rate is subject to adjustment upon the occurrence of certain events, including but not limited to; the event of a stock dividend or stock split; the issuance of additional rights, options and warrants; spinoffs; or a tender or exchange offering. In addition, we may be obligated to increase the conversion rate for any conversion that occurs in connection with certain corporate events, including our calling the 2.25% notes for redemption. We may settle the 2.25% notes in cash, common stock or a combination of cash and common stock. At March 31, 2025, the outstanding principal balance on the 2.25% notes was $230.0 million.
On May 7, 2025, we entered into a secured $30 million revolving credit facility with Ancora Alternatives LLC, that matures on July 30, 2025 and gives us additional flexibility and liquidity in order to continue the implementation of our strategic plan. The facility bears interest at 10% on borrowings and has a 0.5% fee on the unused balance. Interest and fees are due on the 5th of each month. Also executed as part of the credit facility, the company has issued 1,504,140 stock warrants at a strike price of $0.01 per share. The warrants have a ten year exercise period.
Ethanol Production Segment
On February 9, 2021, Green Plains SPE LLC, a wholly-owned special purpose subsidiary and parent of Green Plains Obion and Green Plains Mount Vernon issued $125.0 million of junior secured mezzanine notes with BlackRock. On May 7, 2025 the junior notes were amended to give us additional flexibility and liquidity in order to continue the implementation of our strategic plan, which extended the maturity date from February 9, 2026 to May 15, 2026, with an amendment fee of 2.0% to be added to the principal balance of the Junior Notes, payable at the maturity date. The amendment includes a trigger date of July 31, 2025, at which date if the Junior Notes are not repaid additional collateral will be required, fees will be assessed, and BlackRock's warrants will be repriced from a $22.00 to a $7.00 exercise price with the maturity date extended from April 28, 2026 to December 31, 2029. These notes will accrue interest at an annual rate of 11.75%. The company believes that it has adequate access to capital to source appropriate funding to refinance or extinguish the junior secured notes.
Green Plains Shenandoah, a wholly-owned subsidiary, has a $75.0 million secured loan agreement, which matures on September 1, 2035. At March 31, 2025, the outstanding principal balance was $71.3 million on the loan and the interest rate was 6.52%.
We also have small equipment financing loans, finance leases on equipment or facilities, and other forms of debt financing.
Agribusiness and Energy Services Segment
Green Plains Finance Company, Green Plains Grain and Green Plains Trade have total senior secured revolving commitments of $350.0 million and an accordion feature whereby amounts available under the facility may be increased by up to $100.0 million of new lender commitments subject to certain conditions. The facility matures in March 2027. Each SOFR rate loan shall bear interest for each day at a rate per annum equal to the Term SOFR rate for the outstanding period plus a Term SOFR adjustment and an applicable margin of 2.25% to 2.50%, which is dependent on undrawn availability under the facility. Each base rate loan shall bear interest at a rate per annum equal to the base rate plus the applicable margin of 1.25% to 1.50%, which is dependent on undrawn availability under the facility. The unused portion of the facility is also subject to a commitment fee of 0.275% to 0.375%, dependent on undrawn availability. At March 31, 2025, the outstanding principal balance was $129.0 million on the facility and the interest rate was 7.50%.
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Green Plains Commodity Management has an uncommitted $40.0 million secured revolving credit facility to finance margins related to its hedging programs. During the first quarter of 2023, this revolving credit facility was extended five years to mature on April 30, 2028. Advances are subject to variable interest rates equal to SOFR plus 1.75%. At March 31, 2025, the outstanding principal balance was $8.4 million on the facility and the interest rate was 6.09%.
Green Plains Grain has a short-term inventory financing agreement with a financial institution. The company has accounted for the agreement as short-term notes, rather than revenues, and has elected the fair value option to offset fluctuations in market prices of the inventory. This agreement is subject to negotiated variable interest rates. The company had no outstanding short-term notes payable related to the inventory financing agreement as of March 31, 2025.
Refer to Note 8 - Debt in the notes to the consolidated financial statements included herein for more information about our debt.
Effects of Inflation
We have experienced inflationary impacts on labor costs, wages, components, equipment, other inputs and services across our business and inflation and its impact could escalate in future quarters, many of which are beyond our control. Moreover, we have fixed price arrangements with our customers and are not able to pass those costs along in most instances. As such, inflationary pressures could have a material adverse effect on our performance and financial statements.
Contractual Obligations and Commitments
In addition to debt, our material future obligations include certain lease agreements and contractual and purchase commitments related to commodities, storage and transportation. Aggregate minimum lease payments under the operating lease agreements for future fiscal years as of March 31, 2025 totaled $75.3 million. As of March 31, 2025, we had contracted future purchases of grain, distillers grains and natural gas valued at approximately $257.0 million, future commitments for storage and transportation valued at approximately $37.7 million, and accumulated commitments related to the construction of carbon capture and sequestration equipment at our three Nebraska plants of $28.5 million. Refer to Note 13 – Commitments and Contingencies included in the notes to consolidated financial statements for more information.
Critical Accounting Policies and Estimates
Critical accounting policies, including those relating to derivative financial instruments and accounting for income taxes, are impacted significantly by judgments, assumptions and estimates used in the preparation of the consolidated financial statements. Information about our critical accounting policies and estimates are included in our annual report on Form 10-K for the year ended December 31, 2024.
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
We use various financial instruments to manage and reduce our exposure to various market risks, including changes in commodity prices and interest rates. We conduct the majority of our business in U.S. dollars and are not currently exposed to material foreign currency risk.
Interest Rate Risk
We are exposed to interest rate risk through our loans which bear interest at variable rates. Interest rates on our variable-rate debt are based on the market rate for the lender’s prime rate or SOFR. At March 31, 2025, we had $571.8 million in debt, $137.4 million of which had variable interest rates. A 10% increase in interest rates would affect our interest cost by approximately $1.4 million per year.
For additional information related to our debt, see Note 8 – Debt included herein as part of the notes to the consolidated financial statements and Note 11 – Debt included as part of the notes to the consolidated financial statements included in our annual report on Form 10-K for the year ended December 31, 2024.
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Commodity Price Risk
Our business is sensitive to commodity price risk, particularly for ethanol, corn, distillers grains, Ultra-High Protein, renewable corn oil and natural gas. Ethanol prices are sensitive to world crude oil supply and demand, the price of crude oil, gasoline, corn, the price of substitute fuels, refining capacity and utilization, government regulation and consumer demand for alternative fuels. Corn prices are affected by weather conditions, yield, changes in domestic and global supply and demand, and government programs and policies. Distillers grains prices are impacted by livestock numbers on feed, prices for feed alternatives and supply, which is associated with ethanol plant production. Natural gas prices are influenced by severe weather in the summer and winter and hurricanes in the spring, summer and fall. Other factors include North American energy exploration and production, and the amount of natural gas in underground storage during injection and withdrawal seasons.
To reduce the risk associated with fluctuations in the price of ethanol, corn, distillers grains, Ultra-High Protein, renewable corn oil and natural gas, at times we use forward fixed-price physical contracts and derivative financial instruments, such as futures and options executed on the Chicago Board of Trade, the New York Mercantile Exchange and the Chicago Mercantile Exchange. We focus on locking in favorable operating margins, when available, using a model that continually monitors market prices for corn, natural gas and other inputs relative to the price for ethanol and distillers grains at each of our production facilities. We create offsetting positions using a combination of forward fixed-price purchases, sales contracts and derivative financial instruments. As a result, we frequently have gains on derivative financial instruments that are offset by losses on forward fixed-price physical contracts or inventories and vice versa. Our results are impacted by a mismatch of gains or losses associated with the derivative instrument during a reporting period when the physical commodity purchases or sale has not yet occurred. During the three months ended March 31, 2025, revenues included net gains of $5.2 million, and cost of goods sold included net losses of $8.1 million associated with derivative financial instruments.
Ethanol Production Segment
In the ethanol production segment, net gains and losses from settled derivative instruments are offset by physical commodity purchases or sales to achieve the intended operating margins. To reduce commodity price risk caused by market fluctuations, we enter into exchange-traded futures and options contracts that serve as economic hedges. Our results are impacted when there is a mismatch of gains or losses associated with the derivative instrument during a reporting period when the physical commodity purchases or sale has not yet occurred.
Our exposure to market risk, which includes the impact of our risk management activities resulting from our fixed-price purchase and sale contracts and derivatives, is based on the estimated net income effect resulting from a hypothetical 10% change in price for the next 12 months starting on March 31, 2025, which is as follows (in thousands):
| Commodity | Estimated Total Volume<br><br>Requirements for the<br><br>Next 12 Months (1) | Unit of <br>Measure | Net Income Effect of <br> Approximate 10% <br>Change in Price |
|---|---|---|---|
| Ethanol | 784,000 | Gallons | $93,627 |
| Corn | 264,800 | Bushels | $81,249 |
| Distillers grains (2) | 1,850 | Tons (3) | $19,360 |
| Renewable corn oil | 258,100 | Pounds | $8,864 |
| Natural gas | 22,600 | MmBTU | $3,425 |
(1)Estimated volumes assume production at full capacity, excluding the idled Fairmont, Minnesota plant.
(2)Includes Ultra-High Protein.
(3)Distillers grains quantities are stated on an equivalent dried ton basis.
Agribusiness and Energy Services Segment
In the agribusiness and energy services segment, our inventories, physical purchase and sale contracts and derivatives are marked to market. Our inventories are carried at the lower of cost or net realizable value, except fair-value hedged inventories. To reduce commodity price risk caused by market fluctuations for purchase and sale commitments of grain and grain held in inventory, we enter into exchange-traded futures and options contracts that serve as economic hedges.
The market value of exchange-traded futures and options used for hedging are highly correlated with the underlying market value of grain inventories and related purchase and sale contracts for grain. The less correlated portion of inventory
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and purchase and sale contract market values, known as basis, is much less volatile than the overall market value of exchange-traded futures and tends to follow historical patterns. We manage this less volatile risk by constantly monitoring our position relative to the price changes in the market. Inventory values are affected by the month-to-month spread in the futures markets. These spreads are also less volatile than overall market value of our inventory and tend to follow historical patterns, but cannot be mitigated directly. Our accounting policy for futures and options, as well as the underlying inventory held for sale and purchase and sale contracts, is to reflect their current market values and include gains and losses in the consolidated statement of operations.
Item 4. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures designed to ensure the information that must be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to management, as appropriate, to allow timely decisions regarding required financial disclosure. In designing and evaluating the disclosure controls and procedures, management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving the desired control objectives. Management is required to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures.
Under the supervision and participation of our principal executive officer and chief financial officer, management carried out an evaluation of the effectiveness of the design and operation of our disclosure controls and procedures as of March 31, 2025 as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act and concluded that our disclosure controls and procedures were effective.
Changes in Internal Control over Financial Reporting
Management is responsible for establishing and maintaining effective internal control over financial reporting to provide reasonable assurance regarding the reliability of our financial reporting and the preparation of our consolidated financial statements for external purposes in accordance with U.S. generally accepted accounting principles. There were no material changes in our internal control over financial reporting that occurred during the period covered by this report that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
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PART II – OTHER INFORMATION
Item 1. Legal Proceedings.
We are currently involved in litigation that has arisen during the ordinary course of business. We do not believe this litigation will have a material adverse effect on our financial position, results of operations or cash flows.
Item 1A. Risk Factors.
Investors should carefully consider the discussion of risks and the other information in our annual report on Form 10-K for the year ended December 31, 2024, in Part I, Item 1A, “Risk Factors,” and the discussion of risks and other information in Part I, Item 2, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” under “Cautionary Information Regarding Forward-Looking Statements,” of this report. Although we have attempted to discuss key factors, our investors need to be aware that other risks may prove to be important in the future. New risks may emerge at any time and we cannot predict such risks or estimate the extent to which they may affect our financial performance. The following risk factors supplement and/or update risk factors previously disclosed and should be considered in conjunction with the other information included in, or incorporated by reference in, this quarterly report on Form 10-Q.
We are exposed to credit risk that could result in losses or affect our ability to make payments should a counterparty fail to perform according to the terms of our agreement.
We are exposed to credit risk from a variety of customers, counterparties, including major integrated oil companies, large independent refiners, petroleum wholesalers, marketing companies and other ethanol plants. We are also exposed to credit risk with major suppliers of petroleum products and agricultural inputs when we make payments for undelivered inventories. Our fixed-price forward contracts are subject to credit risk when prices change significantly prior to delivery. The inability by a third party to pay us for our sales, provide product that was paid for in advance or deliver on a fixed-price contract could result in a loss and adversely impact our liquidity and ability to make our own payments when due.
If the United States were to withdraw from or materially modify certain international trade agreements, our business, financial condition, liquidity and results of operations could be materially adversely affected.
Ethanol and other products that we produce are or have been exported to Canada, Mexico, Brazil, China and other countries. In a previous term, the Trump administration significantly increased tariffs on goods imported into the United States, which in turn led to retaliatory actions on U.S. exports. In early 2025, the Trump administration announced additional tariffs on various imports from China, Mexico, and Canada, and signaled a willingness to renegotiate or withdraw from existing trade agreements. These actions have prompted actual or threatened retaliatory measures against U.S. exports, including ethanol and agricultural products in some cases. The outcome of trade negotiations or lack thereof, has had and/or may continue to have a material adverse effect on our business, financial condition and results of operations.
The products we buy and sell are subject to price volatility and uncertainty.
Our operating results are highly sensitive to commodity prices.
Corn. We are generally unable to pass increased corn costs to our customers since ethanol competes with other fuels. We continue to see considerable volatility in corn prices. Ethanol plants, livestock industries and other corn-consuming enterprises put significant price pressure on local corn markets. In addition, local corn supplies and prices could be adversely affected by, but not limited to: prices for alternative crops, increasing pricing for seed corn, fertilizers, crop protection products and other input costs; changes in government policies, including crop insurance, conservation programs, regulation of farmland, and other regulations; shifts in global supply and demand; global political or economic issues, including but not limited to the war in Ukraine including sanctions associated therewith; other global conflicts; and global or regional growing conditions, such as plant disease, pests or adverse weather, including drought.
Ethanol. Our revenues are dependent on market prices for ethanol which can be volatile as a result of a number of factors, including but not limited to: the price and availability of competing fuels and oxygenates for fuels; the domestic and global supply and demand for ethanol, gasoline and corn; the price of gasoline, crude oil and corn; global political or economic issues, including but not limited to the war in Ukraine including sanctions associated therewith, other global conflicts; and domestic and foreign government policies that impact the supply, demand and pricing of corn, crude oil, gasoline, ethanol and other liquid fuels.
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Ethanol is marketed as a fuel additive that reduces vehicle emissions, an economical source of octane and, to a lesser extent, as a gasoline substitute through higher blends such as E15 and E85. Consequently, gasoline supply and demand can affect the price of ethanol. Should gasoline prices or demand change significantly, our results of operations could be materially impacted.
Ethanol imports also affect domestic supply and demand. Imported ethanol is not subject to an import tariff under the United States-Mexico-Canada Agreement (USMCA), provided it satisfies the agreement’s rules of origin, which are required for preferential tariff treatment. As of early 2025, denatured ethanol for fuel use imported from Brazil and other countries subject to Most Favored Nation treatment is generally subject to a 1.9% ad valorem tariff, while undenatured ethanol is subject to a 2.5% ad valorem tariff. However, a series of executive orders issued in March and April of 2025 have introduced or proposed significant changes to U.S. trade policy, including a baseline 10% tariff on a broad range of imported goods, unless replaced by higher country-specific rates. These developments have created uncertainty around ethanol import pricing and raised the risk of retaliatory trade measures. We continue to monitor potential adjustments to tariff levels or exemptions as trade negotiations evolve. Under the RFS, sugarcane ethanol from Brazil can be used as a means for obligated parties to meet the advanced biofuel standard in addition to state level low-carbon fuel standards. Brazil is also rapidly expanding corn and corn ethanol production, which can have a lower CI score if it is produced from the second crop or “Safrinha” crop, which could be imported into the U.S. or displace our exports elsewhere globally.
Distillers Grains. Distillers grains compete with other protein-based animal feed products. Downward pressure on other commodity prices, such as corn, wheat, soybeans, soybean meal, and other feed ingredients, will generally cause the price of competing animal feed products to decline, resulting in downward pressure on the price of distillers grains. Occasionally, the price of distillers grains will lag behind fluctuations in corn or other feedstock prices, lowering our cost recovery percentage. Additionally, exports of distiller grains could be impacted by the enactment of foreign policy, or expanded production of soybean meal or distillers grains elsewhere.
Natural Gas. The price and availability of natural gas are subject to volatile market conditions. These market conditions are often affected by factors beyond our control, such as weather, drilling economics, overall economic conditions and government regulations. Significant disruptions in natural gas supply could impair our ability to produce ethanol. Furthermore, increases in natural gas prices or changes in our cost relative to our competitors cannot be passed on to our customers, which may adversely affect our results of operations and financial position.
Ultra-High Protein. Our Ultra-High Protein has unique nutritional advantages and a higher protein concentration than soybean meal and can be included in a variety of feed rations in the pet, dairy, swine, poultry and aquaculture industries. As a value-added feed ingredient, quality control is imperative. Demand for feed products and pricing pressure from competing feed products may result in downward pressure on the price of Ultra-High Protein. Reliable production of Ultra-High Protein from both consistent operations of the biorefinery as well as the MSC™ technology is necessary to produce anticipated volumes. Changes in our customers willingness to accept these ingredients, inconsistency in production volumes, quality or downward pressure on prices could result in adverse impact on our business and profitability.
Renewable Corn Oil. Renewable corn oil is generally marketed as a low-carbon feedstock for biofuel production including renewable diesel, biodiesel and currently to a lesser extent, sustainable aviation fuel; therefore, the price of renewable corn oil is largely driven by demand for renewable diesel and biodiesel. Expanded demand from the renewable diesel and biodiesel industry due to the extended blending tax credit, new tax credits included in the IRA and growing LCFS markets in California, Oregon, Washington state or Canada, as well as customer acceptance for such fuels could impact renewable corn oil demand. In general, renewable corn oil prices follow the prices of heating oil and soybean oil, though LCFS programs incentivize the lower CI of renewable corn oil as a feedstock relative to soybean oil. Federal incentives for sustainable aviation fuel also provide higher credit values for lower CI. Other feedstocks such as used cooking oil and animal fats and tallows are scored at a lower CI than renewable corn oil under most life cycle assessment models, and these feedstocks may be preferred to renewable corn oil. Increased imports of used cooking oil could pressure all vegetable oil values lower. Decreases in the price of or demand for renewable corn oil could have an adverse impact on our business and profitability. While we believe our investments in MSC™ and other technologies have allowed us to capture more renewable corn oil from each bushel, these yields could be negatively impacted by any number of factors.
Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.
The company withholds shares when restricted stock grants are vested to satisfy statutory minimum required payroll tax withholding obligations. The following table lists the shares that were withheld during the first quarter of 2025:
Table ofContents
| Period | Total Number of <br>Shares Withheld | Average Price <br>Paid per Share | |
|---|---|---|---|
| January 1 - January 31 | 3,976 | $ | 9.49 |
| February 1 - February 28 | 6,353 | 8.02 | |
| March 1 - March 31 | 224,750 | 5.70 | |
| Total | 235,079 | $ | 5.83 |
In August 2014 and October 2019, our Board authorized a share repurchase program of up to $200 million of our common stock. Under this program, we may repurchase shares in open market transactions, privately negotiated transactions, accelerated buyback programs, tender offers or by other means. The timing and amount of the transactions are determined by management based on its evaluation of market conditions, share price, legal requirements and other factors. The program may be suspended, modified or discontinued at any time, without prior notice. Since inception of the repurchase program, the company has repurchased approximately 7.4 million shares of common stock for approximately $92.8 million under the program. We did not repurchase any shares during the first quarter of 2025.
Item 3. Defaults Upon Senior Securities.
None.
Item 4. Mine Safety Disclosures.
Not applicable.
Item 5. Other Information.
During the three months ended March 31, 2025, no director or officer of the company adopted, modified or terminated a "Rule 10b5-1 trading arrangement" or "non-Rule 10b5-1 trading arrangement," as each term is defined in Item 408(a) of Regulation S-K.
Item 6. Exhibits.
Exhibit Index
Table ofContents
Table ofContents
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| GREEN PLAINS INC. | ||
|---|---|---|
| (Registrant) | ||
| Date: May 8, 2025 | By: | /s/ Michelle S. Mapes |
| Michelle S. Mapes | ||
| Interim Principal Executive Officer, Chief Legal and Administration Officer and Corporate Secretary | ||
| (Principal Executive Officer) | ||
| Date: May 8, 2025 | By: | /s/ Philip B. Boggs |
| Philip B. Boggs | ||
| Chief Financial Officer | ||
| (Principal Financial Officer) |
51
Document
Exhibit 10.7
Execution Version
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is made and entered into effective as of April 14, 2025, by and among GREEN PLAINS INC., an Iowa corporation (“Holdings”), GREEN PLAINS FINANCE COMPANY LLC, a Delaware limited liability company (“GP Finco”), GREEN PLAINS GRAIN COMPANY LLC, a Delaware limited liability company (“Green Plains Grain”), GREEN PLAINS TRADE GROUP LLC, a Delaware limited liability company (“Green Plains Trade” and, together with GP Finco, Green Plains Grain and each other Subsidiary of Holdings who joins as a “Borrower” under the Credit Agreement from time to time, collectively, the “Borrowers” and each, individually, a “Borrower”), the Lenders party hereto, and ING CAPITAL LLC, a Delaware limited liability company, as agent for the Lenders (in such capacity, “Agent”).
WITNESSETH:
WHEREAS, Agent, the Lenders, Holdings and the Borrowers, entered into that certain Loan and Security Agreement, dated as of March 25, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date of this Amendment, the “Existing Loan Agreement”, and as amended, restated, amended and restated, supplemented or otherwise modified from time to time from and after the date hereof (including as amended hereby), the “Amended Loan Agreement”);
WHEREAS, the Loan Parties have requested certain modifications to the Existing Loan Agreement, and Agent and the Lenders have agreed to such modifications upon the terms and conditions hereafter set forth; and
NOW, THEREFORE, in consideration of the premises and the mutual agreements, provisions and covenants set forth herein and for other good and valuable consideration, the mutuality, receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1.Definitions. Except as otherwise expressly specified herein, all capitalized terms not defined herein shall have the meanings given to such terms in the Amended Loan Agreement.
Section 2.Amendments to the Existing Loan Agreement.
2.1.Effective as of the First Amendment Effective Date (as defined below), the Existing Loan Agreement is hereby amended (a) to delete the stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text) and (b) to add the double-underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text), in each case, as set forth in the marked pages of the Existing Loan Agreement (and to the extent provided in Exhibit A hereto, the exhibits, schedules and appendices to the Existing Loan Agreement) attached hereto as Exhibit A hereto and made a part hereof for all purposes.
Section 3.Ratification. Each Loan Party has read this Amendment and consents to the terms hereof and further acknowledges and confirms that all of its obligations under the Amended Loan Agreement and other Loan Documents (as amended by this Amendment), including in its capacity as a Borrower or Guarantor (as set forth on the signature page hereto), are in full force and effect and are performable in accordance with their respective terms without setoff, defense, counter-claim or claims in recoupment. Each Loan Party further confirms that the term “Obligations”, as used in the Existing Loan Agreement, shall include all Obligations of the Loan Parties under the Amended Loan Agreement, any promissory notes issued under the Amended Loan Agreement and each other Loan Document.
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Section 4.No Waiver. Nothing contained in this Amendment, or any other communication between or among Agent, the Lenders and any Loan Party, shall be construed as a waiver by Agent or the Lenders of any covenant or provision of the Amended Loan Agreement, the Existing Loan Agreement, the other Loan Documents, this Amendment or any other contract or instrument between or among any Loan Party, Agent and/or the Lenders, and the failure of Agent and/or the Lenders at any time or times hereafter to require strict performance by any Loan Party of any provision thereof shall not waive, affect or diminish any right of Agent and/or the Lenders to thereafter demand strict compliance therewith. Nothing contained in this Amendment shall directly or indirectly in any way whatsoever either: (i) impair, prejudice or otherwise adversely affect Agent’s or any Lender’s right at any time to exercise any right, privilege or remedy in connection with the Existing Loan Agreement, the Amended Loan Agreement or any other Loan Documents, each as amended hereby, (ii) except as expressly provided in this Amendment, amend or alter any provision of the Existing Loan Agreement or any other Loan Documents or any other contract or instrument, or (iii) constitute any course of dealings or other basis for altering any obligation of any Loan Party under the Existing Loan Agreement, the Amended Loan Agreement or any other Loan Documents or any right, privilege or remedy of Agent or any Lender under the Existing Loan Agreement, the Amended Loan Agreement, any other Loan Documents or any other contract or instrument. Agent and the Lenders hereby reserve all rights granted under the Existing Loan Agreement, the Amended Loan Agreement, the other Loan Documents, this Amendment and any other contract or instrument between or among any Loan Party, Agent and the Lenders.
Section 5.Representations and Warranties. Each Loan Party represents and warrants to Agent and the Lenders the following (after giving effect to this Amendment): (i) there does not exist any Default or Event of Default that is continuing, (ii) all representations and warranties of each Loan Party contained in the Loan Agreement and the Loan Documents are true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the First Amendment Effective Date except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date and (iii) all necessary corporate or organizational actions shall have been taken by each Loan Party to authorize the execution, delivery, and performance of this Amendment.
Section 6.Conditions to Effectiveness. The effectiveness of this Amendment is expressly conditioned upon the satisfaction or waiver of the following conditions precedent (the date on which all such conditions have been so satisfied or waived by Agent, the “First Amendment Effective Date”; it being agreed that the determination as to whether each condition has been satisfied may be made in Agent’s sole discretion, all of which shall be satisfactory in form and substance to Agent):
6.1.Agent shall have received a counterpart signature page (whether the same or different counterparts) to this Amendment duly executed and delivered by each Loan Party and Lenders constituting Requisite Lenders;
6.2.Agent shall have received a counterpart signature page to that certain fee letter, dated as of the date hereof, by and between Agent and the Borrowers (the “First Amendment Fee Letter”);
6.3.all necessary corporate or organizational actions shall have been taken by each Loan Party to authorize the execution, delivery, and performance of this Amendment; and
6.4.the Loan Parties shall have paid to Agent (a) all fees required to be paid pursuant to the First Amendment Fee Letter and (b) all other costs, fees and expenses (including, without limitation, legal fees and expenses of attorneys, consultants and other advisors) due and payable pursuant to or in connection with this Amendment; provided that an invoice of such expenses shall have been presented no less than two (2) Business Days prior to the First Amendment Effective Date.
The Loan Parties shall be deemed to represent and warrant to Agent and the Lenders that the foregoing conditions in this Section 6 have been satisfied (unless otherwise waived in writing or deferred in writing by Agent) upon the release of their respective signatures to this Amendment.
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Section 7.Post-Closing Obligation. As a material inducement to Agent and the Lenders party hereto entering into and performing their respective obligations under this Amendment, the Borrowers hereby agree that within five (5) Business Days after the First Amendment Effective Date (or such later date as agreed to by Agent at its sole option), the Borrowers shall deliver or cause to be delivered to Agent a duly executed copy of that certain Ethanol Marketing Agreement by and between Green Plains Trade and Eco-Energy, LLC, a Tennessee limited liability company, which Ethanol Marketing Agreement shall be in substantially the same form as the draft thereof most recently furnished to Agent before the First Amendment Effective Date. Each Borrower hereby acknowledges and agrees that the failure of the Borrowers to comply with or otherwise perform the obligation set forth in this Section 7 shall, immediately upon the expiration of the time provided herein for the performance of such obligation (as such time may be extended, if elected by Agent), constitute an Event of Default under the Amended Loan Agreement.
Section 8.Miscellaneous.
8.1.Except as otherwise expressly provided in this Amendment, (i) the Existing Loan Agreement shall continue in full force and effect, and (ii) the terms and conditions of the Existing Loan Agreement are expressly incorporated herein and ratified and confirmed in all respects. This Amendment is not intended to be or to create, nor shall it be construed as, a novation or an accord and satisfaction. From and after the First Amendment Effective Date, references to the Existing Loan Agreement in each Loan Document shall be references to the Amended Loan Agreement. The Lenders party hereto hereby direct and instruct Agent to execute and deliver this Amendment and all documents to be executed in connection herewith, and to induce Agent to execute and deliver this Amendment and the other applicable documents, each Lender ratifies and confirms its obligations under, and the immunities and exculpatory provisions accruing to Agent under, the terms of the Existing Loan Agreement and the other Loan Documents and agrees that, as of the date hereof, such obligations, immunities and other provisions are without setoff, counterclaim, defense or recoupment. This Amendment shall constitute a Loan Document.
8.2.Each Loan Party hereby ratifies and confirms the Liens and security interests granted under the Existing Loan Agreement and the other Loan Documents and further ratifies and agrees that such Liens and security interests secure the Obligations.
8.3.This Amendment constitutes the entire agreement among the parties hereto with respect to the subject matter hereof. Neither this Amendment nor any provision hereof may be changed, waived, discharged, modified or terminated orally, but only by an instrument in writing signed by the parties required to be a party thereto pursuant to Section 9.4 of the Amended Loan Agreement.
8.4.This Amendment may be executed in any number of counterparts (including by facsimile or as a .pdf attachment), and by the different parties hereto on the same or separate counterparts, each of which shall be deemed to be an original instrument but all of which together shall constitute one and the same agreement.
8.5.If any term or provision of this Amendment is adjudicated to be invalid under applicable laws or regulations, such provision shall be inapplicable to the extent of such invalidity without affecting the validity or enforceability of the remainder of this Amendment which shall be given effect so far as possible.
8.6.THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE AMENDED LOAN AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS OF THE AMENDED LOAN AGREEMENT.
8.7.This Amendment shall be binding upon and inure to the benefit of each Loan Party, Agent and the Lenders and their respective successors and assigns, provided that any assignment by any Lender shall be subject to the provisions of Article X of the Amended Loan Agreement and that no Loan Party shall have the right to assign any rights hereunder or any interest herein without Agent’s
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and each Lenders prior written consent. Except as provided in the preceding sentence, no Person shall be entitled to any third-party beneficiary status or other rights under this Amendment.
[Remainder of page intentionally left blank; signature pages follow.]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year first written above.
HOLDINGS: GREEN PLAINS INC.
By: /s/ Will Joekel
Name: Will Joekel
Title: VP & Treasurer
BORROWERS: GREEN PLAINS FINANCE COMPANY LLC
By: /s/ Will Joekel
Name: Will Joekel
Title: VP & Treasurer
GREEN PLAINS GRAIN COMPANY LLC
By: /s/ Will Joekel
Name: Will Joekel
Title: VP & Treasurer
GREEN PLAINS TRADE GROUP LLC
By: /s/ Will Joekel
Name: Will Joekel
Title: VP & Treasurer
[Signature Page to First Amendment to Loan and Security Agreement]
AGENT: ING CAPITAL LLC
By: /s/ Renata Medeiros
Name: Renata Medeiros
Title: Director
By: /s/ Jeffrey Geisbauer
Name: Jeffrey P. Geisbauer
Title: Director
LENDERS: ING CAPITAL LLC
By: /s/ Renata Medeiros
Name: Renata Medeiros
Title: Director
By: /s/ Jeffrey Geisbauer
Name: Jeffrey P. Geisbauer
Title: Director
[Signature Page to First Amendment to Loan and Security Agreement]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Jeffrey Kessler
Name: Jeffrey H. Kessler
Title: Senior Vice President
[Signature Page to First Amendment to Loan and Security Agreement]
FIFTH THIRD BANK, NATIONAL ASSOCIATION
By: /s/ Jose A. Rosado
Name: Jose A. Rosado
Title: Senior Vice President
[Signature Page to First Amendment to Loan and Security Agreement]
BANK OF AMERICA, N.A.
By: /s/ James Glavin
Name: James Glavin
Title: Vice President
[Signature Page to First Amendment to Loan and Security Agreement]
BMO BANK N.A.
By: /s/ Brandon D. Mason
Name: Brandon D. Mason
Title: Managing Director
[Signature Page to First Amendment to Loan and Security Agreement]
FIRST HORIZON BANK
By: /s/ Michael Shipman
Name: Michael Shipman
Title: Senior Vice President
[Signature Page to First Amendment to Loan and Security Agreement]
COBANK, ACB
By: /s/ Kaleb Curtis
Name: Kaleb Curtis
Title: Lead Relationship Manager
[Signature Page to First Amendment to Loan and Security Agreement]
FARM CREDIT SERVICES OF AMERICA, PCA
By: /s/ Jeremy Gall
Name: Jeremy Gall
Title: Managing Director
[Signature Page to First Amendment to Loan and Security Agreement]
MACQUARIE BANK LIMITED
By: /s/ Paul Weston
Name: Paul Weston
Title: Managing Director
By: /s/ Lizzy Dexter
Name: Lizzy Dexter
Title: Managing Director
[Signature Page to First Amendment to Loan and Security Agreement]
Exhibit A
Amended Loan Agreement
[See attached.]
Conformed Version through the First Amendment to Loan and Security Agreement
LOAN AND SECURITY AGREEMENT
Dated as of March 25, 2022
among
GREEN PLAINS INC.,
as a Guarantor,
GREEN PLAINS FINANCE COMPANY LLC, GREEN PLAINS GRAIN COMPANY LLC, and GREEN PLAINS TRADE GROUP LLC
as Borrowers,
ING CAPITAL LLC,
as Agent,
and
THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO,
as Lenders
| ING CAPITAL LLC, <br>as Sole Bookrunner and Sustainability Structuring Agent,<br><br><br><br>ING CAPITAL LLC, <br>PNC CAPITAL MARKETS LLC,<br>FIFTH THIRD BANK, NATIONAL ASSOCIATION,<br><br>BANK OF AMERICA, N.A. and<br><br>BMO HARRIS BANK, N.A.,<br><br>as Joint Lead Arrangers,<br><br><br><br>PNC BANK, NATIONAL ASSOCIATION,<br>as Syndication Agent,<br><br><br><br>and<br><br><br><br>FIFTH THIRD BANK, NATIONAL ASSOCIATION,<br><br>as Documentation Agent |
|---|
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS 1
1.1 Certain Defined Terms 1
1.2 UCC Defined Terms 43
1.3 Accounting Terms 43
1.4 Other Definitional Provisions 43
1.5 Divisions 44
1.6 Rates 44
SECTION 2 LOANS AND COLLATERAL 44
2.1 Loans 44
2.2 Interest 52
2.3 Fees 54
2.4 Prepayments 55
2.5 Term of this Agreement 57
2.6 Termination or Reduction of Commitments 57
2.7 Payments Generally 57
2.8 Yield Protection 58
2.9 Taxes 59
2.10 Determining Rates; Illegality 61
2.11 Mitigation Obligations; Replacement of Lenders 62
2.12 Compensation 63
2.13 Benchmark Replacement Setting 64
2.14 Margin Adjustment and Unused Commitment Fee Adjustment 65
2.15 Uncommitted Accordion 68
SECTION 3 CONDITIONS TO LOANS 69
3.1 Conditions to Initial Loans and Lender Letters of Credit 69
3.2 Additional Conditions to All Loans and Lender Letters of Credit 72
SECTION 4 REPRESENTATIONS AND WARRANTIES. 72
4.1 Organization, Powers, Capitalization 72
4.2 Authorization of Borrowing, No Conflict 73
4.3 Financial Condition 73
4.4 Indebtedness and Liabilities 73
4.5 [Reserved] 73
4.6 Names and Locations 73
4.7 Title to Properties; Liens 74
4.8 Litigation; Adverse Facts 74
4.9 Payment of Taxes 74
4.10 Performance of Agreements 74
4.11 ERISA Compliance 74
4.12 Broker’s Fees 75
4.13 Environmental Compliance 75
4.14 Solvency 75
4.15 Disclosure 76
4.16 Insurance 76
4.17 Compliance with Laws; Government Authorizations; Consents 76
i
4.18 Employee Matters 77
4.19 Governmental Regulation 77
4.20 No Defaults 77
4.21 Margin Stock 77
4.22 Amendment of Schedules 77
4.23 Sanctions; Anti-Corruption Laws 77
4.24 Beneficial Ownership Certification 78
4.25 Material Contracts 78
SECTION 5 AFFIRMATIVE COVENANTS 78
5.1 Financial Statements and Other Reports 78
5.2 Maintenance of Properties 78
5.3 Further Assurances 78
5.4 Maintenance of Insurance 78
5.5 Use of Proceeds and Margin Security 78
5.6 Maintenance of Records and Books of Account 79
5.7 Preservation of Existence 79
5.8 Compliance with Laws 79
5.9 Tax Certificates 79
5.10 [Reserved] 79
5.11 Inspection 79
5.12 KYC Information; Beneficial Ownership 79
5.13 Sanctions; Anti-Corruption Laws 80
5.14 Post-Closing Obligations 80
SECTION 6 FINANCIAL COVENANTS 80
SECTION 7 NEGATIVE COVENANTS. 80
7.1 Indebtedness and Liabilities 81
7.2 Guaranties 82
7.3 Transfers, Liens and Related Matters 82
7.4 Investments and Loans 83
7.5 Restricted Payments 84
7.6 Restriction on Fundamental Changes 84
7.7 Organizational Documents 85
7.8 Transactions with Affiliates 85
7.9 Conduct of Business 86
7.10 Use of Proceeds 86
7.11 Fiscal Year; Accounting Changes 86
7.12 Investment Accounts 86
7.13 Warehouse Receipts Non-Negotiable 86
7.14 Compliance with Anti-Terrorism Laws 86
7.15 Repayment of Indebtedness 86
7.16 Holdings Activities 87
SECTION 8 DEFAULT, RIGHTS AND REMEDIES 87
8.1 Event of Default 87
8.2 Equity Cure. 89
8.3 Suspension of Commitments 90
8.4 Acceleration 90
ii
8.5 Remedies 90
8.6 Appointment of Attorney-in-Fact 91
8.7 Limitation on Duty of Agent and Lenders with Respect to Collateral 91
8.8 Application of Proceeds 91
8.9 [Reserved] 92
8.10 [Reserved]. 92
8.11 Waivers; Non-Exclusive Remedies 92
SECTION 9 AGENT; LENDER RIGHTS 92
9.1 Agent 92
9.2 Notice of Default 96
9.3 Action by Agent 96
9.4 Amendments, Waivers and Consents 96
9.5 Assignments and Participations in Loans 98
9.6 Settlements, Payments and Information 101
9.7 Lead Arranger and Other Titles 101
9.8 Non-Receipt of Funds by Agent; Erroneous Payments. 102
SECTION 10 MISCELLANEOUS 103
10.1 Expenses and Attorneys’ Fees 103
10.2 Indemnity 104
10.3 Notices 105
10.4 Survival of Representations and Warranties and Certain Agreements 106
10.5 Indulgence Not Waiver 107
10.6 Marshaling; Payments Set Aside 107
10.7 Entire Agreement 107
10.8 Severability 107
10.9 Lenders’ Obligations Several; Independent Nature of Lenders’ Rights 107
10.10 Headings 107
10.11 APPLICABLE LAW 107
10.12 Successors and Assigns 108
10.13 No Fiduciary Relationship; No Duty; Limitation of Liabilities 108
10.14 CONSENT TO JURISDICTION 108
10.15 WAIVER OF JURY TRIAL 108
10.16 Construction 109
10.17 Counterparts; Effectiveness 109
10.18 Confidentiality 109
10.19 Publication 109
10.20 Waivers 110
10.21 Keepwell 110
10.22 USA PATRIOT ACT 110
10.23 Certifications From Lenders and Participants; USA PATRIOT ACT 110
10.24 Contractual Recognition of Bail-In 110
10.25 Acknowledgment Regarding Supported QFCs 111
10.26 Certain ERISA Matters 112
10.27 Farm Credit Equity 113
10.28 Waiver of Borrowers’ Rights Under Farm Credit Law 114
SECTION 11 COLLATERAL AND SECURITY INTEREST; GUARANTY. 114
11.1 Grant of Security Interest 114
iii
11.2 Collateral Warranties and Covenants 116
11.3 Joinder of Borrowers; Guaranty; Nature and Extent of Each Loan Party’s Liability 121
iv
EXHIBITS
A. Form of Assignment and Acceptance Agreement
B. Form of Compliance Certificate
C. Form of Borrowing Base Certificate
D. Form of Continuation/Conversion Notice
E. Form of Notice of Borrowing
F. Form of Swingline Loan Notice
G. Form of Revolving Note
H. Form of Swingline Note
I. Form of KPI Compliance Certificate
v
SCHEDULES
1.1 Commitments
2.14 Sustainability Table
4.1(b) Capitalization of Restricted Loan Parties
4.6 Names; Locations; Jurisdiction of Organization, Organizational Identification Number and Federal Tax Identification Numbers
4.11(d) Pension Plans
4.11(e) Foreign Plans
4.13 Environmental Compliance
4.18 Employee Matters
4.22 Transactions with Affiliates
7.1 Existing Indebtedness
7.3 Existing Encumbrances
7.4 Existing Investments
7.8 Affiliate Transactions
7.11 Subsidiaries
11.2(i) Commercial Tort Claims
11.2(j) Investment Accounts
11.2(l) Landlords; Bailees
11.3 Subsidiary Borrowers
RIDERS
A. Reporting Rider
B. Financial Covenants Rider
vi
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT, dated as of March 25, 2022, is by and among GREEN PLAINS INC., an Iowa corporation (“Holdings”), GREEN PLAINS FINANCE COMPANY LLC, a Delaware limited liability company (“GP Finco”), GREEN PLAINS GRAIN COMPANY LLC, a Delaware limited liability company (“Green Plains Grain”), GREEN PLAINS TRADE GROUP LLC, a Delaware limited liability company (“Green Plains Trade” and, together with GP Finco, Green Plains Grain and each other Subsidiary of Holdings who joins as a “Borrower” hereunder from time to time in accordance with the terms hereof, collectively, “Borrowers” and each, individually, a “Borrower”), the other Loan Parties from time to time party hereto, the financial institutions and other Persons from time to time party hereto as lenders (each individually a “Lender” and collectively “Lenders”) and ING CAPITAL LLC, a Delaware limited liability company (in its individual capacity, “ING Capital”), for itself as a Lender, as Agent and as Joint Bookrunner and Joint Lead Arranger.
WHEREAS, Borrowers desire that Lenders extend a credit facility to (i) refinance certain existing Indebtedness of Borrowers; (ii) pay fees and transaction expenses associated with the consummation of this credit facility; and (iii) to support the ongoing general corporate and working capital needs of Borrowers; and
WHEREAS, to secure Borrowers’ obligations under the Loan Documents, Borrowers are willing to grant to Agent, for the benefit of Agent and the Secured Parties, a security interest in and lien upon certain assets of Borrowers as described more fully herein; and
WHEREAS, the Guarantors are willing to guaranty all of Borrowers’ obligations to Agent and the Secured Parties under the Loan Documents, the Secured Hedge Agreements and the Secured Bank Products Agreements;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, Borrowers, Agent and Lenders agree as follows:
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS
1.1 Certain Defined Terms. The capitalized terms not otherwise defined in this Agreement shall have the meanings set forth below:
“Accountants” means, with respect to any Loan Party, the independent certified public accountants selected by such Loan Party and reasonably acceptable to Agent, which selection shall not be modified during the term of this Agreement without Agent’s prior written consent, such consent not to be unreasonably withheld or delayed.
“Adjusted Applicable Margin” means, at any time of determination, the Applicable Margin in effect at such time as reduced or increased by the aggregate Sustainability Margin Adjustments in effect at such time (as applicable), in accordance with Section 2.14.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment; provided that if Adjusted Term SOFR as so determined shall ever be less than the Floor, then Adjusted Term SOFR chall be deemed to be equal to the Floor.
“Advance” shall mean an advance under the Revolving Loan.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” means any Person (other than Agent or any Lender): (a) directly or indirectly controlling, controlled by, or under common control with, any Loan Party; (b) directly or indirectly owning or holding fifteen percent (15%) or more of any equity interest in any Borrower; or (c) fifteen percent (15%) or more of whose stock or other equity interest having ordinary voting power for the election of directors or the power to direct or cause the direction of management, is directly or indirectly owned or held by any Borrower. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other equity interest, or by contract or otherwise.
“Agent” means ING Capital in its capacity as administrative agent for the Lenders under the Loan Documents and any successor in such capacity appointed pursuant to Section 9.1(g).
“Agent’s Account” means the following Deposit Account of Agent:
Bank: JPMorgan Chase Bank, N.A., New York
ABA No.: 0210-0002-1
Account No.: [XXXXXXXXX]
Attention: ING Capital LLC/Loans Agency NY Reference: Green Plains Finco
“Aggregate Revolving Credit Exposure” means, as of any date of determination, the sum of (a) the outstanding principal balance of the Revolving Loan as of such date, plus (b) the outstanding principal balance of all Swingline Loans as of such date, plus (c) the amount of the Letter of Credit Liability as of such date.
“Aggregate Revolving Loan Commitment” means, as of any date of determination, the aggregate Revolving Loan Commitments of all Lenders as of such date. As of the Closing Date, the Aggregate Revolving Loan Commitment is $350,000,000.
“Agreement” or “Loan Agreement” means this Loan and Security Agreement as it may be amended, amended and restated, supplemented or otherwise modified from time to time.
“Anti-Terrorism Laws” means any law relating to terrorism or money laundering, including Executive Order No. 13224, the USA Patriot Act, the laws comprising or implementing the Bank Secrecy Act, the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing laws may from time to time be amended, renewed, extended, or replaced).
“Applicable Margin” means, with respect to Base Rate Loans, SOFR Loans and the Unused Commitment Fee, from the Closing Date until the end of the first full fiscal quarter ending after the Closing Date, the Applicable Margin for each type of Loan and the Unused Commitment Fee shall be equal to the applicable percent per annum set forth under Level 2 below.
Thereafter on a quarterly basis, effective as of the first Business Day following the end of each fiscal quarter of GP Finco (each such day, an “Adjustment Date”), the Applicable Margin for each type of Loan shall be adjusted, if necessary, to the applicable percent per annum set forth in the pricing table set forth below corresponding to the applicable Average Daily Availability during the then-most recently completed fiscal quarter (each such period, a “Margin Measurement Period”).
| Level | Average Daily Availability | Base Rate Margin | Term SOFR Margin | Unused Commitment Fee |
|---|---|---|---|---|
| 1 | ≥ 70% | 1.50% | 2.50% | 0.375% |
| 2 | > 25% and < 70% | 1.50% | 2.50% | 0.325% |
| 3 | ≤ 25% | 1.25% | 2.25% | 0.275% |
If, as of any Adjustment Date, the Restricted Loan Parties shall have failed to timely deliver any Compliance Certificates or other information required under the Reporting Rider necessary, in the reasonable and good faith determination of Agent, to determine Average Daily Availability for the applicable Margin Measurement Period, then the Applicable Margins shall be conclusively presumed to equal the Applicable Margins set forth under Level 1 in the pricing table above for the period commencing on the required delivery date of such Compliance Certificate or other information until the delivery thereof. If the calculation of the Collateral Formula Amount set forth in any Compliance Certificate delivered hereunder is determined to be inaccurate, and such inaccuracy, if corrected, would have led to the application of a higher Applicable Margin based upon the pricing grid set forth in the table above (the “Accurate Applicable Margin”) for any period that such Compliance Certificate covered, then (i) the Restricted Loan Parties shall promptly upon written request of Agent (and in any event within three (3) Business Days) deliver to Agent a corrected Compliance Certificate for such period (except that, during the pendency of an event as set forth in either of Section 8.1(g) or Section 8.1(h), such request shall be deemed made without further action of Agent), (ii) the Applicable Margin shall be automatically and retroactively adjusted such that after giving effect to the corrected Compliance Certificate, the Applicable Margin shall automatically be reset to the Accurate Applicable Margin based upon the pricing grid set forth in the table above for such period (or failing timely delivery of such corrected Compliance Certificate, Level 3 of the table set forth above) and (iii) the Restricted Loan Parties shall promptly (and in any event within three (3) Business Days) pay to Agent, for the account of Lenders, the accrued additional interest owing as a result of the application of such Accurate Applicable Margin for each applicable Margin Measurement Period, if any. The provisions of this definition shall not limit the rights of Agent and Lenders with respect to the Default Rate or otherwise and shall survive the termination of this Agreement.
“Assignment and Acceptance Agreement” means an Assignment and Acceptance Agreement substantially in the form of Exhibit A.
“Attributable Indebtedness” means, on any date, in respect of any Capital Lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of
interest calculated with reference to such Benchmark, in each case, as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.13(d).
“Average Daily Availability” means, for any period a percentage equal to (a) the sum of, for each day during such period (x) the amount by which the Aggregate Revolving Loan Commitment on each such day exceeds the Aggregate Revolving Credit Exposure on each such day divided by (y) the Aggregate Revolving Loan Commitment on each such day divided by (b) the number of days in such period.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Base Rate” means, for any day, a rate of interest per annum equal to the highest of (a) the Prime Rate, (b) the Federal Funds Effective Rate plus one-half of one percent (0.50%), and (c) Adjusted Term SOFR for a one-month tenor in effect on such day plus 1.00 %. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or Adjusted Term SOFR shall be effective from and including the effective date of such change in applicable rate. If the Base Rate as determined in accordance with the foregoing shall ever be less than the Floor, then the Base Rate shall be deemed to be equal to the Floor.
“Base Rate Borrowing” means, as to any Borrowing, the Base Rate Loans comprising such Borrowing.
“Base Rate Loans” means Loans bearing interest at rates determined by reference to the Base Rate.
“Baseline” means, in relation to any Key Performance Indicator, the number set out under the heading “Baseline 2020” in Schedule 2.14.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.13(a).
“Benchmark Replacement” means with respect to any Benchmark Transition Event, the first alternative set forth in the order below that can be determined by Agent for the applicable Benchmark Replacement Date:
(a) Daily Simple SOFR plus 10 basis points (0.10%); or
(b) the sum of: (i) the alternate benchmark rate that has been selected by Agent and the Borrowing Agent giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement to the then-current Benchmark for Dollar-denominated syndicated credit facilities and (ii) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be equal to the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by Agent and the Borrowing Agent giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities.
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event”, the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(b) in the case of clause (c) of the definition of “Benchmark Transition Event”, the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by or on behalf of the administrator of such Benchmark (or such component thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative or non-compliant with or non-aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks; provided that such non-representativeness, non-compliance or non-alignment will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (a) or (b) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(a) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(b) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(c) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) or the regulatory supervisor for the administrator of such Benchmark (or such component thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.13.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the IRC or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the IRC) the assets of any such “employee benefit plan” or “plan”.
“Blocked Person” means any Person: (i) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (ii) owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No.
13224, (iii) with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law, (iv) that commits, threatens or conspires to commit or supports “terrorism” as defined in Executive Order No. 13224; (v) that is named as a “specially designated national” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list, or (vi) a Person or entity who is affiliated or associated with a Person listed above.
“Borrowers” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the case of a SOFR Borrowing, having the same Interest Period made by the Lenders.
“Borrowing Agent” means GP Finco.
“Borrowing Base” means, as of any date of determination, an amount equal the sum of (in each case, as of such date):
(a) 90% of Eligible Unrestricted Accounts (provided that the aggregate amount of all Accounts due from Eco-Energy or any Affiliates thereof included under this clause (a) shall not at any time exceed $40,000,000), plus
(b) the lesser of (x) 90% of Eligible Foreign Accounts and (y) $50,000,000, plus
(c) the lesser of (x) 90% of Eligible Unbilled Accounts and (y) $10,000,000, plus
(d) the lesser of (x) 90% of Eligible Supply Chain Accounts and (y) twenty-five percent (25%) of the sum of clauses (a) through (e) of this definition, plus
(e) the lesser of (x) 90% of Eligible Affiliated Accounts and (y) $30,000,000, plus
(f) the lesser of (x) 90% of Eligible Net Liquidation Value in Commodity Accounts and (y) $50,000,000, plus
(g) 80% of the Market Value of Eligible Inventory constituting ethanol, dried distiller’s grains, corn oil or natural gas, plus
(h) 85% of the Market Value of Eligible Inventory constituting grains or maximized stillage co-products protein, plus
(i) 85% of the Net Positive Equity in Forward Contract Positions, plus
(j) 100% of Eligible Cash and Cash Equivalents, minus
(k) 100% of all payables related to Borrowers’ Inventory constituting grain, minus
(l) 100% of all Letter of Credit Liability, minus
(m) 100% of all prepayments from any Borrower’s customers, minus
(n) 100% of the Net Negative Equity in Forward Contract Positions, minus
(o) such reserves as Agent may establish from time to time in its Permitted Discretion in an amount not to exceed $10,000,000.
The value of the Borrowing Base at any time shall be determined by the Agent by reference to the then-most recently delivered Borrowing Base Certificate. In no event shall any amounts described in categories (a) through (j) above which may fall into more than one of such categories be counted more than once when making the calculation under this definition. Without duplication of any adjustment already made in calculating the Borrowing Base:
(i) each category of the Borrowing Base shall be calculated taking into account any elimination and reduction related to any potential offset to such asset category;
(ii) without duplication, the calculation of the value of the assets that are attributable to a single counterparty shall be netted against any contra, offset, counterclaim or obligations of any Borrower with such counterparty including, without limitation, amounts payable and unrealized marked-to-market forward loss owing by any Borrower to such counterparty;
(iii) if any Borrowing Base Certificate omits any of the information required to be included therein pursuant to the terms hereof, the property of Borrowers related to such undelivered information shall be excluded from the calculation of the Borrowing Base until the date on which Agent has received a Borrowing Base Certificate containing the undelivered information (provided that the provisions of this clause (iii) shall not constitute a waiver of any Default of Event of Default hereunder); and
(iv) Agent may, in its Permitted Discretion, and upon not less than five (5) Business Days’ prior written notice to the Borrowing Agent, deem any Inventory, Account or Commodity Account ineligible, or impose additional eligibility criteria, in any case, in its Permitted Discretion, but no such notice shall be required (x) if an Event of Default has occurred or is continuing, or (y) for changes to eligibility criteria or establishment of additional eligibility criteria if a Material Adverse Effect has occurred or Agent has determined it is reasonably likely that a Material Adverse Effect would occur were such eligibility criteria not changed or established prior to the three (3) Business Day period. During any such applicable three (3) Business Day period, borrowings shall not be permitted if, after giving pro forma effect to the imposition of such change or new eligibility criteria, Revolving Availability would be less than zero.
Notwithstanding anything herein to the contrary, if on any date of determination, the Borrowing Base, as calculated in accordance with the foregoing, would equal more than the product of (A) the sum of Eligible Unrestricted Accounts, plus Eligible Foreign Accounts, plus Eligible Unbilled Accounts, plus Eligible Supply Chain Accounts, plus Eligible Affiliated Accounts, plus Eligible Net Liquidation Value in Commodity Accounts, plus the Market Value of Eligible Inventory, plus Net Positive Equity in Forward Contract Positions, plus Eligible Cash and Cash Equivalents, minus all payables related to Borrowers’ Inventory constituting grain, minus all Letter of Credit Liability, minus all prepayments from any Restricted Loan Party’s customers, minus Net Negative Equity in Forward Contract Positions minus such reserves as Agent shall have established, in each case, as of such date of determination and determined taking into account clauses (i) through (iv) above, times (B) 0.80 (the product of clause (A) times clause (B) as of any date, the “Maximum Borrowing Base”), then, the Borrowing Base as of such date shall be deemed to equal the Maximum Borrowing Base.
“Borrowing Base Certificate” means a certificate and schedule duly executed by an officer of Borrowing Agent appropriately completed and in substantially the form of Exhibit C.
“Borrowing Base Period” means any period beginning on the date on which a Borrowing Base Trigger Event occurs and continuing until the next date on which Borrowers shall have delivered to Agent (a) the quarterly financial statements of Holdings (which financial statements shall have also been filed with the U.S. Securities and Exchange Commission), (b) a Compliance Certificate and (c) a Borrowing Base Certificate, which collectively demonstrate that (i) Borrowers are in compliance with the Financial Covenants as of the last day of the calendar month then most recently ended, (ii) as of the date of such financial statements and certificates, no Event of Default has occurred and is continuing, and (c) as of the date of such financial statements and certificates, the Collateral Coverage Ratio is not less than the Collateral Coverage Cure Target.
“Borrowing Base Trigger Event” means (a) the occurrence of (i) any Default under any of the Financial Covenants or (ii) the receipt by Agent of a notice under clause (f)(x) of the Reporting Rider and (b) Borrowers’ failure to cure the application Default or Defaults on or before the last day of the applicable Initial Cure Period.
“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by applicable law to close.
“Capital Lease” means any lease of any property (whether real, personal or mixed) that, in conformity with GAAP, should be accounted for as a capital lease; provided that, no lease that would be classified as an operating lease on the Closing Date but subsequently reclassified as a Capital Lease in accordance with any change in GAAP or other accounting principle shall be deemed to be a Capital Lease under this Agreement.
“Cash Equivalents” means: (a) marketable direct obligations issued or unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within twelve (12) months from the date of acquisition thereof; (b) commercial paper maturing no more than twelve (12) months from the date issued and, at the time of acquisition, having a rating of at least A-1 from Standard & Poor’s Corporation or at least P-1 from Moody’s Investors Service, Inc.; (c) certificates of deposit or bankers’ acceptances maturing within six (6) months from the date of issuance thereof issued by, or overnight reverse repurchase agreements from, any commercial bank organized under the laws of the United States of America, or any state thereof or the District of Columbia, having combined capital and surplus of not less than $250,000,000 and not subject to setoff rights in favor of such bank; and (d) shares of any money market fund that has substantially all of its assets invested continuously in the types of investments referred to above, has net assets of at least $500,000,000 and has the highest rating obtainable from either Moody’s Investors Service, Inc. or Standard & Poor’s Corporation.
“Casualty Event” means, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking of, such property for which such Person or any of its Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other similar compensation.
“Certificate of Exemption” has the meaning assigned to that term in Section 2.9(c).
“Change of Control” means an event or series of events by which: (a) Holdings shall cease to own, directly or indirectly, of 50.1% or more of the Equity Interests of any other Loan Party entitled to vote for members of the board of directors or equivalent governing body of such other Loan Party on a fully-diluted basis (and taking into account all such securities that any person or group has the right to acquire pursuant to any option right); (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Holdings cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or (c) Holdings shall cease to own 100% of the outstanding Equity Interests of GP Finco.
“Closing Date” means March 25, 2022.
“Collateral” has the meaning assigned to that term in Section 11.1(a).
“Collateral Accounts” means each Deposit Account of Borrowers subject to a Control Agreement and designated in writing to Agent as a Collateral Account.
“Collateral Coverage Covenant” means the financial covenant set forth in clause (c) of the Financial Covenant Rider.
“Collateral Coverage Cure Target” means a ratio equal to 1.25 to 1.00.
“Collateral Coverage Ratio” means, as of any date of determination, the ratio of (a) the Collateral Formula Amount as of such date, to (b) the sum of the outstanding principal balance of the Revolving Loan plus the outstanding principal of all Swingline Loans plus all interest and fees owing by the Restricted Loan Parties with respect to the Revolving Loan Commitments, the Revolving Loan or the Swingline Loans, in each case as of such date.
“Collateral Formula Amount” means, as of any date of determination, an amount equal the sum of (in each case, as of such date):
(a) 100% of Eligible Unrestricted Accounts (provided that the aggregate amount of all Accounts due from Eco-Energy or any Affiliates thereof included under this clause (a) shall not at any time exceed $40,000,000), plus
(b) the lesser of (x) 100% of Eligible Foreign Accounts and (y) $50,000,000, plus
(c) the lesser of (x) 100% of Eligible Unbilled Accounts and (y) $10,000,000, plus
(d) the lesser of (x) 100% of Eligible Supply Chain Accounts and (y) twenty-five percent (25%) of the sum of clauses (a) through (e) of this definition, plus
(e) the lesser of (x) 100% of Eligible Affiliated Accounts and (y) $30,000,000, plus
(f) the lesser of (x) 100% of Eligible Net Liquidation Value in Commodity Accounts and (y) $50,000,000, plus
(g) 100% of the Market Value of Eligible Inventory, plus
(h) 100% of the Net Positive Equity in Forward Contract Positions, plus
(i) 100% of Eligible Cash and Cash Equivalents, minus
(j) 100% of all payables related to Borrowers’ Inventory constituting grain, minus
(k) 100% of Letter of Credit Liability, minus
(l) 100% of all prepayments from any Borrower’s customers, minus
(m) 100% of the Net Negative Equity in Forward Contract Positions, minus
(n) such reserves as Agent may establish from time to time in its Permitted Discretion in an amount not to exceed $10,000,000.
The value of the Collateral Formula Amount at any time shall be the value of such Collateral Formula Amount as determined by the Agent as of the date of the most recently delivered Working Capital Schedule. In no event shall any amounts described in categories (a) through (i) above which may fall into more than one of such categories be counted more than once when making the calculation under this definition. Without duplication of any adjustment already made in calculating the Collateral Formula Amount:
(i) each category of the Collateral Formula Amount shall be calculated taking into account any elimination and reduction related to any potential offset to such asset category;
(ii) without duplication, the calculation of the value of the assets that are attributable to a single counterparty shall be netted against any contra, offset, counterclaim or obligations of Borrowers with such counterparty including, without limitation, amounts payable and unrealized marked-to-market forward loss owing by any Borrower to such counterparty;
(iii) if any Compliance Certificate or any Working Capital Schedule omits any of the information required to be included therein pursuant to Exhibit B or Schedule II to Exhibit B, as applicable, the property of any Borrower related to such undelivered information shall be excluded from the calculation of the Collateral Formula Amount until the date on which Agent has received a Compliance Certificate containing the undelivered information (provided that the provisions of this clause (c) shall not constitute a waiver of any Default of Event of Default hereunder); and
(iv) Agent may, in its Permitted Discretion, and upon not less than three (3) Business Days’ prior written notice to the Borrowing Agent, deem any Inventory, Account or Commodity Account ineligible, or impose additional eligibility criteria, in any case, in its Permitted Discretion, but no such notice shall be required (x) if an Event of Default has occurred or is continuing, or (y) for changes to eligibility criteria or establishment of additional eligibility criteria if a Material Adverse Effect has occurred or Agent has determined it is reasonably likely that a Material Adverse Effect would occur were such eligibility criteria not changed or established prior to the three (3) Business Day period. During any such applicable three (3) Business Day period, borrowings shall not be permitted if, after giving pro
forma effect to the imposition of such change or new eligibility criteria, Revolving Availability would be less than zero.
“Commodity” means any commodity or inventory, including, without limitation, wheat, corn, and soybeans and/or products related to each of the foregoing and any commodity or inventory which replaces, substitutes for or is exchanged for any such commodity or inventory under the applicable Commodity Repurchase Agreement.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and any successor statute, and any rule, regulation, or order promulgated thereunder, in each case as amended from time to time.
“Commodity Repurchase Agreement” means any commodity repurchase agreement, commodity reverse repurchase agreement or commodity spot and/or forward agreement with an embedded right of either party or both parties to require the sale or repurchase, or similar agreement, with respect to any Commodity entered into between any Restricted Loan Party and an Eligible Repurchase Counterparty.
“Commodity Repurchase Agreement Indebtedness” means, at any time, any amounts owing by any Restricted Loan Party under Commodity Repurchase Agreements.
“Commodity Repurchase Agreement Property” means an Eligible Repurchase Counterparty’s right, title, and interest in (a) all Commodities purchased or sold, or purported to be purchased or sold, pursuant to a Commodity Repurchase Agreement, (b) all Commodities substituted for such Commodities in accordance with any Commodity Repurchase Agreement, (c) negotiable warehouse receipts or other negotiable documents issued in the name, or to the order, of the Eligible Repurchase Counterparty in connection with such Commodity, to the extent of the Commodity purchased or sold pursuant to the applicable Commodity Repurchase Agreements, and (d) all products and proceeds of the foregoing (including, without limitation, any Accounts and Payment Intangibles arising from the sale of such Commodities).
“Commodity Repurchase Agreement Sublimit” means $100,000,000.
“Compliance Certificate” means a certificate duly executed by the chief executive officer, chief financial officer, chief accounting officer or treasurer of Borrowing Agent appropriately completed and in substantially the form of Exhibit C.
“Conforming Changes” means, with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.12 and other technical, administrative or operational matters) that Agent decides may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Agent in a manner substantially consistent with market practice (or, if Agent decides that adoption of any portion of such market practice is not administratively feasible or if Agent determines that no market practice for the administration of any such rate exists, in such other manner of
administration as Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Consigned Inventory” shall mean Inventory of any Borrower that is in the possession of another Person on a consignment, sale or return, or other basis that does not constitute a final sale and acceptance of such Inventory.
“Continuation/Conversion Notice” means a notice duly executed by an authorized representative of GP Finco appropriately completed and in the form of Exhibit D.
“Control” means “control” as defined in the UCC with respect to a particular item of Collateral.
“Control Agreement” means a control agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by the applicable Restricted Loan Party, Agent, and the applicable financial institution, Securities Intermediary or Commodity Intermediary, which agreement is sufficient to give Agent Control over any Investment Account of such Restricted Loan Party.
“Covered Party” has the meaning assigned to that term in Section 10.25(a).
“Cure Event” means any of (a) the occurrence of any Default under any of the Financial Covenants or (b) the receipt by Agent of a notice under clause (f)(x) of the Reporting Rider.
“Cure Fund Payment” means a cash capital contribution received by a Borrower or Holdings, as applicable, or the cash proceeds received by a Borrower or Holdings, as applicable, from the issuance by Holdings of Permitted Cure Securities, which is used exclusively to cure an Event of Default in accordance with Section 8.2.
“Cure Notice” has the meaning assigned to that term in Section 8.2.
“Cure Period” means, with respect to any Financial Covenant Default, the Initial Cure Period with respect to such Default plus, solely if Agent in its sole discretion elects to grant a Discretionary Cure Period with respect to such Default and so notifies Borrowing Agent in writing of such election on or before the last day of such Initial Cure Period, the Discretionary Cure Period with respect to such Default.
“Current Ratio” means, as of any date of any date of determination, the ratio of the aggregate amount of the Borrowers’ consolidated current assets to the aggregate amount of the Borrowers’ consolidated current liabilities, in each case determined in accordance with GAAP.
“Current Ratio Covenant” means the financial covenant set forth in clause (a) of the Financial Covenant Rider.
“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided that if Agent decides that any such convention is not administratively feasible for Agent, then Agent may establish another convention in its reasonable discretion.
“Debt to Capitalization Covenant” means the financial covenant set forth in clause (b) of the Financial Covenant Rider.
“Debt to Capitalization Ratio” means, as of any date of determination, the ratio of (x) Total Funded Debt minus the sum of the outstanding principal balance of the Revolving Loan as of such date, to (y) the sum of (1) Net Worth and (2) Total Funded Debt minus the sum of the outstanding principal balance of the Revolving Loan, in each case, of Holdings and its Subsidiaries on a consolidated basis as of such date; provided that solely for the purpose of determining Borrowers’ satisfaction of the requirement set forth in Section 7.5(i)(B), “Debt to Capitalization Ratio” shall mean, as of any date of determination, the ratio of (x) Total Funded Debt as of such date, to (y) the sum of (1) Net Worth and (2) Total Funded Debt, in each case, of Holdings and its Subsidiaries on a consolidated basis as of such date.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means a condition, act or event that, after notice or lapse of time or both, would constitute an Event of Default if that condition, act or event were not cured or removed within any applicable grace or cure period.
“Default Rate” has the meaning assigned to that term in Section 2.2(a).
“Defaulted Amount” means, with respect to any Lender at any time, any amount required to be paid hereunder or under any other Loan Document by such Lender to the Agent or any other Lender which has not been so paid.
“Defaulting Lender” mean, subject to Section 2.1(h)(vi), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Agent and Borrowing Agent in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Agent, any Issuing Lender, any Swingline Lender, or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Lender Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified Borrowers, Agent, any Issuing Lender or any Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Agent or Borrowers, to confirm in writing to Agent and Borrowing Agent that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, other than via an Undisclosed Administration, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such
a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.1(h)(vi)) upon delivery of written notice of such determination to Borrowers, each Issuing Lender, each Swingline Lender and each Lender.
“Designated Supply Chain Accounts” means Accounts owing from any account debtor designated in writing by a Borrower to Agent which are proposed to be subject to an automatic or selective discounting supply chain finance program.
“Director” means, with respect to any Person, (a) if such Person is a corporation, a member of the board of directors of such Person, (b) if such Person is a limited liability company, a governor, manager or managing member of such Person and (c) if such Person is a partnership, a general partner of such Person.
“Discretionary Cure Period” means, with respect to a Default under the Current Ratio Covenant or the Debt to Capitalization Covenant, the period beginning on the first Business Day following the last day of the Initial Cure Period with respect to such Default and ending of the fifth (5th) Business Day thereafter.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property or asset by any Person.
“Disqualified Stock” shall mean any Equity Interests which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, (a) matures or is mandatorily redeemable (other than upon a change of control), pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than upon a change of control), in whole or in part, on or prior to the date that is ninety-one (91) days following the Scheduled Termination Date, (b) is convertible into or exchangeable for (i) debt securities or (ii) any Equity Interest referred to in (a) above, in each case at any time on or prior to the date that ninety-one (91) days following the Scheduled Termination Date, (c) is entitled to receive a dividend or distribution (other than for taxes attributable to the operations of the business) prior to the time that the Termination Date occurs, (d) has the benefit of any covenants or agreements that restrict the payment of any of the Obligations or that are EBITDA or debt-multiple based (i.e., financial covenants) or (e) has the benefit of any covenants or agreements that are EBITDA or debt-multiple based (i.e., financial covenants) the breach of which results in a mandatory redemption.
“Division” has the meaning assigned to that term in Section 1.5.
“Eco-Energy” means Eco-Energy, LLC, a Tennessee limited liability company.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member
Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Eligible Accounts” means, as at any date of determination, all Accounts of Borrowers, except the following excluded Accounts:
(a) Accounts which do not consist of accounts receivable and contract receivables, each owed to and owned by a Borrower arising or resulting from the sale of goods or the rendering of services by such Borrower in the ordinary course of business;
(b) Accounts which are otherwise eligible with respect to which the Person obligated on such Account is owed a credit by a Borrower, but only to the extent of such credit;
(c) Accounts due from a Person whose principal place of business is located outside the United States of America or Canada;
(d) Accounts with respect to which the Account Debtor or the Person obligated with respect thereto is the United States of America, any state or any municipality, or any department, agency or instrumentality thereof, unless the applicable Borrower has, with respect to such Account, complied with the Federal Assignment of Claims Act of 1940 as amended (31 U.S.C. Section 3727 et seq.) or any applicable statute or municipal ordinance of similar purpose and effect;
(e) Accounts with respect to which the Person obligated (i) is an Affiliate of a Loan Party or a director, officer, agent, stockholder, member or employee of a Loan Party or any of their respective Affiliates, (ii) did not purchase the goods giving rise to the relevant Account in an arm’s length bona fide transaction conducted in the ordinary course of business in compliance with all applicable laws, (iii) is determined by Agent (in its Permitted Discretion) to be uncreditworthy, provided, that Agent shall deliver written notice to Borrowers promptly upon the determination that any Account is ineligible pursuant to this clause (iii) or (iv) is in contractual default in respect of such Accounts or any other Indebtedness or obligation to any Borrower or any of its Subsidiaries, and Borrowers do not reasonably anticipate that any such other Indebtedness or other obligation or newly arising Indebtedness or other obligation of such Account Debtor, will not be paid when due;
(f) Accounts for which an invoice has not been delivered to the applicable Account Debtor;
(g) Accounts which have remained unpaid for more than ten (10) days after due date or thirty-five (35) days after the invoice date;
(h) Accounts due from a Person if more than twenty-five percent (25%) of the aggregate amount of Accounts of such Person are ineligible pursuant to the foregoing clause (g);
(i) [Reserved];
(j) Accounts evidenced by an Instrument or Chattel Paper not in the possession of Agent, for the benefit of itself and the Secured Parties;
(k) Accounts with respect to which Agent, on behalf of itself and Lenders, does not have a valid, first priority and fully perfected security interest;
(l) Accounts subject to any Lien (other than Liens for taxes arising by operation of law) except those in favor of Agent, for the benefit of itself and Lenders;
(m) Accounts with respect to which the Account Debtor or the Person obligated on the Account (i) is the subject of any bankruptcy or other insolvency proceeding, (ii) has had possession of all or a material part of its property taken by any receiver, custodian, trustee or liquidator, or (iii) has admitted in writing its inability, or is generally unable to, pay its debts as they become due;
(n) Accounts due from a Person and its Affiliates (other than Accounts due from Eco-Energy, LLC, a Tennessee limited liability company) to the extent that such Accounts exceed in the aggregate an amount equal to twenty-five percent (25%) of the aggregate of all Eligible Accounts at said date;
(o) Accounts with respect to which the obligation to pay is conditional or subject to a repurchase obligation or right to return or with respect to which the goods or services giving rise to such Accounts have not been delivered (or performed, as applicable) and accepted by the Account Debtor or the Person obligated on such Account, including progress billings, bill and hold sales, guarantied sales, sale or return transactions, sales on approval or consignments;
(p) Accounts with respect to which the Account Debtor or the Person obligated on the Account is located in New Jersey, or any other state denying out of state creditors access to its courts in the absence of a Notice of Business Activities Report or other similar filing, unless the applicable Borrower has either qualified as a foreign entity authorized to transact business in such state or has filed a Notice of Business Activities Report or similar filing with the applicable state agency for the then current year;
(q) Accounts subject to any offset, deduction, defense, dispute or counterclaim asserted in writing by the applicable Account Debtor (but only to the extent of the amount of such offset, deduction, defense, dispute or counterclaim);
(r) Accounts subject to or part of a Permitted Supply Chain Financing of Designated Supply Chain Accounts; and
(s) Accounts with respect to which the Account Debtor or the Person obligated on Account is a creditor of any Borrower; provided, however, that any such Account shall only be ineligible as to that portion of such Account which is less than or equal to the amount owed by any Borrower to such Person.
“Eligible Affiliated Accounts” means all Accounts of the Restricted Loan Parties that (a) would constitute “Eligible Accounts” but for the requirement set forth in clause (e)(i) of the definition thereof; and (b) have not remained unpaid for more than seven (7) days after due date or three (3) days after the invoice date.
“Eligible Assignee” shall mean (a) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000 (or $250,000,000 in the case of an assignment of a Revolving Loan Commitment); (b) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development (the “OECD”), or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000 (or $250,000,000 in the case of an assignment of a Revolving Loan Commitment), provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is also a member of the OECD; (c) any nationally recognized financial institution or any other entity which is an “accredited investor” (as defined in Regulation D under the Securities Act) which extends credit or buys loans as one of its businesses, including but not limited to, commercial finance companies, insurance companies, mutual funds and lease financing companies, (d) a Related Fund (as such term is defined in Section 9.5(d)), and (e) a Person that is primarily engaged in the business of lending that is (i) a Subsidiary of a Lender (other than a Defaulting Lender), (ii) a Subsidiary of a Person of which a Lender (other than a Defaulting Lender) is a Subsidiary, or (iii) a Person of which a Lender (other than a Defaulting Lender) is a Subsidiary; provided, however, that no Affiliate of a Borrower shall be an Eligible Assignee.
“Eligible Cash and Cash Equivalents” means, as of any date of determination, the aggregate value of the cash and Cash Equivalents of any Borrower which is maintained in an account subject to a Control Agreement and otherwise subject to a Prior Security Interest.
“Eligible Foreign Accounts” means, collectively, each Account of the Restricted Loan Parties that:
(a) would constitute an “Eligible Account” but for the requirement set forth in clause (c) of the definition thereof;
(b) (i) the amount due thereunder is fully insured pursuant to an insurance policy issued by an insurer acceptable to Agent and on terms reasonably acceptable to Agent, (ii) the amount due thereunder is backed by a letter of credit reasonably acceptable to Agent, (iii) the Account Debtor with respect to such Account, at any applicable time of determination, has a corporate credit rating of BBB- or higher by S&P Global Ratings or Baa3 or higher by Moody’s Investor Services, Inc., or (iv) the Account Debtor with respect to such Account is located in a country that has signed the Convention on the Organization for Economic Co-Operation and Development; and
(c) have not remained unpaid for more than ten (10) days after due date or forty-five (45) days after the invoice date.
“Eligible Inventory” means all Inventory owned by any Restricted Loan Party that (x) either (i) consists of ethanol, grain, dried distiller’s grains, maximized stillage co-products protein, corn oil, natural gas or (ii) is in another form approved by Agent in its sole discretion and (y) is located in the United States of America, except the following excluded Inventory:
(a) Inventory which does not substantially conform to the represented specifications and other quality standards of the applicable Restricted Loan Party or is not in compliance in all material respects with all standards imposed by any Governmental Authority having regulatory authority with respect thereto;
(b) Inventory which Agent determines in its Permitted Discretion, is unacceptable for purposes of determining the Collateral Formula Amount due to age, quality, type, category and/or quantity;
(c) shipping materials or supplies consumed in the applicable Restricted Loan Party’s business;
(d) Inventory with respect to which Agent, on behalf of itself and Lenders, does not have a valid, first priority and fully perfected security interest;
(e) Inventory with respect to which there exists any Lien in favor of any Person other than Agent, on behalf of itself and Lenders, other than Permitted Encumbrances of the types described in clauses (ii), (iv) or (v) of the definition thereof;
(f) Inventory produced in violation of the Fair Labor Standards Act and subject to the so-called “hot goods” provisions contained in Title 29 U.S.C. 215(a)(i) or any replacement statute;
(g) Inventory not (i) located at a location described in Schedule 4.6 and owned by a Restricted Loan Party, (ii) held by a warehouseman, bailee, processor or similar third party that has executed and delivered to Agent a waiver of interest and access agreement in favor of Agent and in form and substance reasonably satisfactory to Agent or (iii) located at a location leased by a Restricted Loan Party and listed on Schedule 4.6 and with respect to which Agent has received a waiver of interest and access agreement in favor of Agent and in form and substance satisfactory to Agent;
(h) Inventory which has been sold, transferred, assigned or disposed of pursuant to or in connection with a Commodity Repurchase Agreement;
(i) Inventory that constitutes Consigned Inventory; and
(j) Inventory with respect to which the applicable Restricted Loan Party does not have absolute, legal, and valid title.
“Eligible Forward Contract” means, as of any date of determination, any contract pursuant to which (i) a customer of any Borrower has agreed to purchase corn from such Borrower or (ii) a Borrower has a right to purchase corn from a farmer, in each case, at a future date (or on an unspecified date during a future period), which contract satisfies each of the following requirements as of such date:
(a) such contract conforms to the applicable Borrower’s risk management policy;
(b) such contract must be evidenced by a written agreement or a binding and enforceable trade confirmation;
(c) such contract shall be subject to a valid and perfected first priority security interest in favor of Agent for the benefit of the Secured Parties, which security interest does not result in the violation by the applicable Borrower of such contract;
(d) such contract has not been terminated and is not subject to termination by reason of any existing known default or termination event thereunder;
(e) to the extent the counterparty to such contract is formed in, or conducts a substantial portion of its business outside of, the United States, then such counterparty is either a member country of the Organisation for Economic Co-operation and Development or is otherwise approved by Agent;
(f) if the applicable counterparty has become the subject of a proceeding under any Debtor Relief Laws, the applicable contract was entered into after the date on which such counterparty became the subject of such proceeding or such forward contract has been assumed by such counterparty in the applicable proceedings under such Debtor Relief Laws;
(g) the applicable counterparty is not otherwise in default under any contract or other agreement with any Loan Party (other than a good faith dispute under such contract or other agreement or with respect to any counterparty which is the subject of a proceeding under any Debtor Relief Laws, a payment default which occurred prior to the commencement of such proceeding);
(h) except for a forward contract described in clause (f) above, the applicable counterparty is not the subject of a proceeding under any Debtor Relief Laws;
(i) the law governing the applicable forward contract is the law of a state within the United States or any other jurisdiction agreed to by Agent;
(j) such contract is denominated in either Dollars or another currency approved by Agent;
(k) the jurisdiction for disputes under such forward contract is any state within the United States of America or any other jurisdiction agreed to by Agent;
(l) the delivery date and payment date for the corn to be sold or purchased pursuant to such contract is not more than twelve (12) months after the date of determination; and
(m) the applicable counterparty is not a Governmental Authority unless the assignment of rights to payment under such contract is permitted by applicable law.
“Eligible Net Liquidation Value in Commodity Accounts” means, as of any date of determination, with respect to all commodities accounts of any Borrower which are subject to a perfected, first priority Lien or security interest in favor of Agent, for the ratable benefit of the Secured Parties, subject only to the rights of the broker under such account and free and clear of any Liens or encumbrances in favor of any other third party, and with respect to which Control Agreements are in effect, the aggregate value of the “net liquidating value” or “net equity” (however designated) or other amount that would be available for withdrawal upon closing each such account and liquidation of all open positions at current market values, as reported in the account statements for such account.
“Eligible Repurchase Counterparty” means, with respect to any Commodity Repurchase Agreement, a Person that is a Lender or an Affiliate of any Lender who, in the ordinary course of its business, purchases, sells or hedges the Commodity that is the subject of the applicable Commodity Repurchase Agreement, and who, with respect to any exchange for swap transaction, qualifies as an “eligible contract participant” as defined in the Commodity Exchange Act.
“Eligible Supply Chain Accounts” means all Accounts of the Borrowers that:
(a) are owing from a certain specific single customer of Green Plains Trade, separately identified to Agent and the Lenders and acceptable to Agent in its Permitted Discretion, which are the subject of that certain (i) supplier agreement between Citibank, N.A. and Green Plains Trade, dated as of March 8, 2018 and (ii) lien release and assignment of proceeds agreement by and among Citibank, N.A., Green Plains Trade and Agent dated as of June 7, 2018 (as amended from time to time);
(b) would constitute “Eligible Accounts” but for the requirement set forth in clause (r) of the definition thereof; and
(c) have not remained unpaid for more than ten (10) days after due date or fifteen (15) days after the invoice date.
“Eligible Unbilled Accounts” means all Accounts of the Restricted Loan Parties that (a) would constitute “Eligible Accounts” but for the requirement set forth in clause (f) of the definition thereof; and (b) have not remained unpaid for more than ten (10) days after due date or thirty-five (35) days after the invoice date.
“Eligible Unrestricted Accounts” means all Eligible Accounts of the Restricted Loan Parties that (a) do not constitute Eligible Foreign Accounts, Eligible Unbilled Accounts, Eligible Supply Chain Accounts or Eligible Affiliated Accounts; and (b) have not remained unpaid for more than ten (10) days after due date or thirty-five (35) days after the invoice date.
“Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA which is maintained by any Loan Party for its employees.
“Environmental Claims” means claims, liabilities, investigations, litigation, administrative proceedings, judgments or orders arising from any actual or alleged violation of Environmental Laws relating to Hazardous Materials.
“Environmental Laws” means any federal, state or local law, rule, regulation or order relating to pollution, waste, disposal or the protection of human health or safety, natural resources or the environment from exposure to Hazardous Materials.
“Equity Interests” of any Person shall mean any and all shares, rights to purchase, options, warrants, general, limited or limited liability partnership interests, member interests, participation or other equivalents of or interest in (regardless of how designated) equity of such Person, whether voting or nonvoting, including common stock, preferred stock, convertible securities or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with Holdings within the meaning of Section 414(b) or (c) of the IRC (and Sections 414(m) and (o) of the IRC for purposes of provisions relating to Section 412 of the IRC or Section 302 of ERISA).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the failure by a Borrower or any ERISA Affiliate to meet all applicable requirements under the Pension
Funding Rules or the filing of an application for the waiver of the minimum funding standards under the Pension Funding Rules; (c) the incurrence by Holdings or any ERISA Affiliate of any liability pursuant to Section 4063 or 4064 of ERISA or a cessation of operations with respect to a Pension Plan within the meaning of Section 4062(e) of ERISA; (d) a complete or partial withdrawal by Holdings or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is insolvent (within the meaning of Title IV of ERISA); (e) the filing of a notice of intent to terminate a Pension Plan under, or the treatment of a Pension Plan amendment as a termination under, Section 4041 of ERISA; (f) the institution by the PBGC of proceedings to terminate a Pension Plan; (g) any event or condition that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (h) the determination that any Pension Plan is in at-risk status (within the meaning of Section 430 of the IRC or Section 303 of ERISA) or that a Multiemployer Plan is in endangered or critical status (within the meaning of Section 432 of the IRC or Section 305 of ERISA); (i) the imposition or incurrence of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Holdings or any ERISA Affiliate; (j) the engagement by Holdings or any ERISA Affiliate in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; (k) the imposition of a lien upon Holdings pursuant to Section 430(k) of the IRC or Section 303(k) of ERISA; or (l) the making of an amendment to a Pension Plan that could result in the posting of bond or security under Section 436(f)(1) of the IRC.
“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
“Event of Default” has the meaning assigned to that term in Section 8.1.
“Excess Interest” has the meaning assigned to that term in Section 2.2(c).
“Excluded Accounts” has the meaning assigned to that term in Section 11.2(j).
“Excluded Swap Obligation” means, with respect to any Restricted Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the Loan Documents to which such Restricted Loan Party is party with respect to, or the grant by such Restricted Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal or unlawful under the Commodity Exchange Act, any rule, regulation or order promulgated thereunder (or the application or official interpretation of any provision thereof) by virtue of such Restricted Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act at the time any such Loan Document with respect to such related Swap Obligation, or any grant by such Restricted Loan Party of a security interest to secure such Swap Obligation (or any guaranty thereof), would otherwise have become effective with respect to such related Swap Obligation but for such Restricted Loan Party’s failure to constitute an “eligible contract participant” at such time.
“Excluded Taxes” means any of the following Tax Liabilities imposed on or with respect to Agent or any Lender or required to be withheld or deducted from a payment to Agent or any Lender, (a) Tax Liabilities imposed on or measured by net income (however denominated), franchise Tax Liabilities, and branch profits Tax Liabilities, in each case, (i) imposed as a result of Agent or any Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax Liabilities (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, withholding Tax Liabilities imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or other Obligations pursuant to a law in effect on the date on which (i) such Lender
acquires such interest in the Loan or other Obligations or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.9, amounts with respect to such Tax Liabilities were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Tax Liabilities attributable to Lender’s failure to comply with Section 2.9(c) and (d) any withholding Tax Liabilities imposed under FATCA.
“Farm Credit Bank” means a lending institution organized and existing pursuant to the provisions of the Farm Credit Act of 1971 and under the regulation of the Farm Credit Administration, as the same may be amended or supplemented from time to time. When used in this Agreement in reference to the Farm Credit Equities, “Farm Credit Bank” shall also include the affiliate of such Farm Credit Bank in which such Farm Credit Equities are purchased or acquired, as applicable. For the avoidance of doubt, the term “Farm Credit Bank” shall in any event exclude the Federal Agricultural Mortgage Corporation.
“Farm Credit Equities” has the meaning assigned to that term in Section 10.27(a).
“FATCA” means Sections 1471 through 1474 of the IRC (as of the date hereof) and any regulations or official interpretations thereof (including any Revenue Ruling, Revenue Procedure, Notice or similar guidance issued by the Internal Revenue Service thereunder as a precondition to relief or exemption from taxes under such provisions), any agreements entered into pursuant to Section 1471(b)(1) of the IRC and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities entered into in connection with the implementation of the foregoing; provided, however, FATCA shall also include any amendments to Section 1471 through 1474 of the.
“FCPA” has the meaning assigned to that term in Section 4.23(b).
“Federal Funds Effective Rate” means, for any day, the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System, as published on the immediately following Business Day by the Board of Governors of the Federal Reserve System as the Federal Funds Rate or Federal Reserve Statistical Release H.15(519) entitled “Selected Interest Rates” or any successor publication of the Federal Reserve System reporting the Federal Funds Effective Rate or its equivalent or, if such rate is not published for any Business Day, the average of the quotations for the day of the requested Loan received by Agent from three Federal funds brokers of recognized standing selected by Agent.
“Fee Letter” has the meaning assigned to that term in Section 2.3(d).
“Financial Covenants” means, collectively, the Current Ratio Covenant, the Debt to Capitalization Covenant and the Collateral Coverage Covenant.
“Financial Covenants Rider” means Rider B attached to this Agreement and made a part hereof.
“Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31 of each calendar year.
“Flood Laws” means the National Flood Insurance Reform Act of 1994 and related legislation (including the regulations of the Board of Governors of the Federal Reserve System).
“Floor” means a rate of interest equal to 0%.
“Foreign Lender” has the meaning assigned to that term in Section 2.9(c).
“Foreign Plan” means any employee pension benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Loan Party with respect to employees employed outside the United States (other than any governmental arrangement).
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such Defaulting Lender’s Pro Rata Share of the outstanding Letter of Credit Reserve with respect to Lender Letters of Credit issued by such Issuing Lender other than any portion of such Letter of Credit Reserve as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof, and (b) with respect to any Swingline Lender, such Defaulting Lender’s Pro Rata Share of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
“Funding Date” means the date of each funding of a Loan (including the funding of a Swingline Loan and the funding of participations in a Swingline Loan, as applicable) or issuance of a Lender Letter of Credit.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board that are applicable to the circumstances as of the date of determination.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government, including any supra-national bodies (such as the European Union or the European Central Bank).
“Group” means, collectively, Holdings and its consolidated Subsidiaries.
“Guarantee” means as to any Person (the “guaranteeing Person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends, distributions or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee of any guaranteeing Person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing Person’s maximum reasonably anticipated liability in respect thereof as determined by Borrowers in good faith.
“Guarantor Security Agreement” shall mean any Security Agreement executed by a Guarantor in favor of Agent securing the Guaranty of such Guarantor, in form and substance satisfactory to Agent.
“Guarantors” means, collectively, Holdings and the Subsidiary Guarantors.
“Guaranty” shall mean any guaranty of the obligations of Borrowers executed by a Guarantor in favor of Agent for its benefit and for the ratable benefit of the Lenders and the other Secured Parties, in form and substance satisfactory to Agent.
“Hazardous Material” means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic substances” or any other formulation intended to define, list or classify substances by reason of deleterious and characteristic properties such as ignitability, corrosivity, reactivity, or toxicity; (b) except in the case of commercially reasonable quantities for use as a product, oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (c) any explosives or radioactive materials; and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing polychlorinated biphenyls.
“Hedge Agreement” means (a) any and all interest rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules and annexes, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Hedged”, with respect to Eligible Inventory, means Eligible Inventory the sale price of which has been effectively hedged in a manner reasonably acceptable to Agent through one or a combination of commodity contracts or futures contracts entered into or held in by the applicable Borrower; provided that that applicable Borrower’s rights under such commodity contracts or futures contracts and all amounts due or to become due to the applicable Borrower under or in respect of such commodity contracts or futures contracts are subject to a perfected Lien and Prior Security Interest in favor of Agent.
“Holdings” has the meaning assigned to that term in the introductory paragraph of this Agreement.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under (i) letters of credit (including standby and commercial), bankers’ acceptances and bank guaranties and (ii) surety bonds, performance bonds and similar instruments issued or created by or for the account of such Person;
(c) net obligations of such Person under any Hedge Agreement;
(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and earnouts and other similar purchase price adjustments);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) all indebtedness in respect of any Capital Lease of such Person, to the extent of the capitalized amount thereof that would appear on a balance sheet of such Person prepared at such time in accordance with GAAP;
(g) all obligations of such Person in respect of Disqualified Stock;
(h) all Commodity Repurchase Agreement Indebtedness of such Person; and
(h) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.
“Indemnified Taxes” means (a) Tax Liabilities, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnitees” has the meaning assigned to that term in Section 10.2.
“ING Capital” has the meaning assigned to that term in the introductory paragraph of this Agreement.
“Initial Cure Period” means, (a) with respect to a Default under the Current Ratio Covenant or the Debt to Capitalization Covenant, the period beginning on the date on which the
Compliance Certificate identifying such Default is delivered to Agent and ending on the fifth (5th) Business Day thereafter, and (b) with respect to a Default under the Collateral Coverage Covenant, the period beginning on the date Agent receives notice from Borrowers under clause (f)(x) of the Reporting Rider or the date on which the Compliance Certificate identifying such Default is delivered to Agent, as applicable, and ending one (1) Business Day thereafter.
“Initial KPI Metrics Report” means the report dated November 18, 2021 and titled Independent Limited Assurance Statement (as supplemented by the report dated January 11, 2022 and titled Independent Limited Assurance Statement), audited by the KPI Metrics Auditor, with a statement of limited assurance on the Baseline in connection with each and every Key Performance Indicator, pertaining to calendar year ending December 31, 2020.
“Interest Period” means, as to any SOFR Borrowing, the period commencing on the date of such Loan or Borrowing and ending on the numerically corresponding day in the calendar month that is one (1), three (3) or six (6) months thereafter (in each case, subject to the availability thereof), as specified in the applicable Notice of Borrowing or Interest Election Request; provided that
(i) If any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day,
(ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period,
(iii) no Interest Period shall extend beyond the Scheduled Termination Date,
(iv) no tenor that has been removed from this definition pursuant to Section 2.13(d) shall be available for specification in such Notice of Borrowing, and
(v) there shall be no more than ten (10) Interest Periods relating to SOFR Loans outstanding at any time.
For purposes hereof, the date of a Loan or Borrowing initially shall be the date on which such Loan or Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Loan or Borrowing.
“Interest Rate” has the meaning assigned to that term in Section 2.2(a).
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests or debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor incurs Indebtedness of the type referred to in clause (h) of the definition of “Indebtedness” in respect of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without
adjustment for subsequent increases or decreases in the value of such Investment but giving effect to any returns or distributions of capital or repayment of principal actually received in cash by such Person with respect thereto.
“Investment Account” means any Deposit Account, Securities Account or Commodity Account.
“IRC” means the Internal Revenue Code of 1986, as amended from time to time, and any successor statute and all rules and regulations promulgated thereunder.
“IRS” means the United States Internal Revenue Service.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Issuing Lender” means, individually and collectively, ING Capital, in its capacity as an issuer of Lender Letters of Credit hereunder, and any other Lender from time to time designated by the Borrowing Agent as an Issuing Lender, with the consent of such Lender and Agent, and their respective successors in such capacity.
“Knowledge” means the actual knowledge of any Responsible Officer of a Loan Party or Restricted Loan Party, as applicable.
“KPI Compliance Certificate” means a certificate substantially in the form set out in Exhibit I signed by two Responsible Officer(s) of Holdings attaching (a) true and correct copies of each KPI Metrics Report for the immediately preceding calendar year and setting forth the Sustainability Margin Adjustment for the period covered thereby and for the KPI Metrics disclosed therein, and computations in reasonable detail in respect thereof and (b) if any KPI Metrics Report was audited or reviewed by the KPI Metrics Auditor, a review report of the KPI Metrics Auditor containing its customary limited assurances with respect to the computations in such KPI Metrics Report.
“KPI Metrics” means the four (4) selected key performance indicators (each, a “Key Performance Indicator”) reflecting the consolidated performance of the Group, which Key Performance Indicators shall have the meanings set forth below:
(a) “Green House Gas (GHG)” means, reduction of GHG emissions intensity measured as MT of CO2e/Raw Material MT as reported in the applicable KPI Metrics Report
(b) “Renewable Corn Oil Production” means, increase in renewable corn oil yield (total amount of renewable corn oil per bushel of corn used) as reported in the applicable KPI Metrics Report
(c) “Sustainable Technology” means, increase in total number of plants converted to sustainable ultra-high protein technologies, such as Maximized Stillage Co-Products (MSC), or Clean Sugar Technology (CST) as reported in the applicable KPI Metrics Report
(d) “Total Recordable Incident Rate” means, reduction in Total Recordable Incident Rate (TRIR), which is the number of incidents per 200,000 workhours (Department of Labor – Occupational Safety and Health Administration) as reported in the applicable KPI Metrics Report
“KPI Metrics Auditor” means APEX Environmental Services, Apex Companies, LLC, or any other qualified independent auditor, as appointed by or on behalf of the Group, approved by the Sustainability Structuring Agent, from time to time, who provides a statement of limited assurance concerning any KPI Metrics Report, being Apex Companies, LLC as at the Closing Date (and with respect to the Initial KPI Metrics Report).
“KPI Metrics Report” means, with respect to any calendar year, a report that may take the form of any nonfinancial disclosure of the Group’s performance of one or more KPI Metrics prepared by or on behalf of the Group for one or more KPI Metrics for a specific calendar year. Such KPI Metrics Report shall be audited by the KPI Metrics Auditor with a statement of limited assurance.
“Lender” or “Lenders” has the meaning assigned to that term in the introductory paragraph of this Agreement. Unless the context requires otherwise, the term “Lenders” includes the Swingline Lenders.
“Lender Letter of Credit” has the meaning assigned to that term in Section 2.1(e).
“Letter of Credit Liability” means, all reimbursement and other liabilities of any Borrower with respect to a Lender Letter of Credit, whether contingent or otherwise, including: (a) the amount available to be drawn or which may become available to be drawn; (b) all amounts which have been paid or made available by any Lender issuing a Lender Letter of Credit to the extent not reimbursed; and (c) all unpaid interest, fees and expenses related thereto.
“Letter of Credit Reserve” means, at any time, an amount equal to (a) the aggregate amount of Letter of Credit Liability with respect to all Lender Letters of Credit outstanding at such time plus, without duplication, (b) the aggregate amount theretofore paid by Agent or any Lender under Lender Letters of Credit and not debited to the Revolving Loan pursuant to Section 2.1(e)(2) or otherwise reimbursed by Borrower.
“Letter of Non-Exemption” has the meaning assigned to that term in Section 2.9(c).
“Lien” means any lien (statutory or otherwise), mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind, whether voluntary or involuntary (including any conditional sale or other title retention agreement, any lease in the nature thereof, and any agreement to give any security interest).
“Loan” or “Loans” means a Revolving Advance or a Swingline Loan.
“Loan Documents” means this Agreement, the Notes (if any), any Guaranty, any Guarantor Security Agreement, the Fee Letter and all other agreements executed by or on behalf of any Loan Party and delivered concurrently herewith or at any time hereafter to or for Agent or any Lender in connection with the Loans, any Lender Letter of Credit, all as amended, restated, supplemented or modified from time to time, and including any such amendment, restatement, supplement or modification.
“Loan Party” means each Borrower and each Guarantor.
“Macquarie Repurchase Intercreditor Agreement”: means that certain letter agreement to be executed after the Closing Date, by and among Agent and Macquarie Bank Limited or an Affiliate thereof, on terms and conditions acceptable to Agent, as the same may be amended, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Margin Stock” means margin stock within the meaning of Regulations T, U and X of the Board of Governors of the Federal Reserve System.
“Market Value” means, as of any date of determination, with respect to any Eligible Inventory, the price at which such Eligible Inventory could be acquired on such date by Borrowers in one or more arms-length transactions, as determined in good faith by Borrowers.
“Material Adverse Effect” means a material adverse effect upon (a) the business, operations, liabilities (actual or contingent), properties, assets or financial condition of Borrowers taken as a whole, (b) the ability of Borrowers, taken as a whole, to perform their obligations under any Loan Document to which they are party or of Agent or the Lenders taken as a whole, to enforce or collect any of the Obligations or (c) the enforceability or priority (excluding the effect of Permitted Encumbrances) of the Agent’s Liens with respect to the Collateral.
“Material Contract” shall mean any contract, agreement, instrument, permit, lease or license, written or oral, of any Borrower, (i) which the failure to comply with could reasonably be expected to result in a Material Adverse Effect or (ii) that is deemed to be a material contract under any securities laws applicable to such Person, including the Securities Act of 1933.
“Maximum Rate” has the meaning assigned to that term in Section 2.2(c).
“Maximum Revolving Loan Amount” means, as of any date of determination, the lesser of (a) the Aggregate Revolving Loan Commitment as of such date, and (b) (i) during a Borrowing Base Period, the Borrowing Base as of such date, or (ii) at all other times, an amount equal to the Collateral Formula Amount as of such date divided by 1.20.
“Moody’s” shall mean Moody’s Investors Services, Inc. and its successors.
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which Borrowers or any ERISA Affiliate makes or is obligated to make contributions, during the preceding five plan years has made or been obligated to make contributions, or has any liability.
“Multiple Employer Plan” means a Plan with respect to which Holdings or any ERISA Affiliate is a contributing sponsor, and that has two or more contributing sponsors at least two of whom are not under common control, as such a plan is described in Section 4064 of ERISA.
“Net Negative Equity in Forward Contract Positions” means, as of any date of determination, the amount by which the Net Unrealized Forward Contract Position is less than $0.
“Net Positive Equity in Forward Contract Positions” means, as of any date of determination, the amount by which the Net Unrealized Forward Contract Position exceeds $0.
“Net Worth” of any Person means the consolidated stockholders’ equity of such Person, determined on a consolidated basis in accordance with GAAP.
“Net Unrealized Forward Contract Position” means, as of any date of determination, the aggregate amount equal to (a) the Unrealized Profits on Forward Contract Positions on such date minus (b) the Unrealized Losses on Forward Contract Positions on such date.
“Note” or “Notes” means the Revolving Notes.
“Notice of Borrowing” means a notice in the form of Exhibit E.
“Obligations” means all obligations, liabilities and indebtedness of every nature of each Loan Party from time to time owed to the Secured Parties or their respective Affiliates under the Loan Documents, any Secured Hedge Agreements, Commodity Repurchase Agreements, and/or Secured Bank Products Agreements (whether incurred before or after the Termination Date) including, without limitation, the principal amount of all debts, claims and indebtedness, accrued and unpaid interest and all fees, costs and expenses, whether primary, secondary, direct, indirect, contingent, fixed or otherwise, heretofore, now and/or from time to time hereafter owing, due or payable including, without limitation, all interest, fees, costs and expenses accrued or incurred after the filing of any petition under any bankruptcy or insolvency law (regardless of whether allowed or allowable in whole or in part as a claim therein); provided that the definition of “Obligations” shall not create or include any guarantee by any Loan Party of (or grant of security interest by any Loan Party to support, as applicable) any Excluded Swap Obligations of such Loan Party.
“OECD” has the meaning provided in the definition of “Eligible Assignee.”
“OFAC” has the meaning assigned to that term in Section 4.23(a).
“Organizational Documents” means with respect to any Person, its charter, certificate or articles of incorporation, bylaws, articles of organization, limited liability agreement, operating agreement, members agreement, shareholders agreement, partnership agreement, certificate of partnership, certificate of formation, voting trust agreement, or similar agreement or instrument governing the formation or operation of such Person.
“Other Connection Taxes” means Tax Liabilities imposed as a result of a present or former connection between Agent or any Lender and the jurisdiction imposing such Tax Liabilities (other than connections arising from Agent or any Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” has the meaning set forth in Section 2.9(d).
“Participant Register” has the meaning set forth in Section 9.5(b).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Funding Rules” means the rules of the IRC and ERISA regarding minimum funding standards and minimum required contributions (including any installment payment thereof) to Pension Plans and Multiemployer Plans and set forth in Sections 412, 430, 431, 432 and 436 of the IRC and Sections 302, 303, 304 and 305 of ERISA.
“Pension Plan” means any employee pension benefit plan (including a Multiple Employer Plan, but excluding a Multiemployer Plan) that is maintained or is contributed to by Borrowers or any ERISA Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards under Section 412 of the IRC.
“Periodic Term SOFR Determination Day” has the meaning specified in the definition of “Term SOFR”.
“Permitted Cure Securities” means Equity Interest issued (other than Disqualified Stock) by a Borrower or Holdings to their direct or indirect parent as consideration for a Cure Fund Payment.
“Permitted Discretion” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“Permitted Encumbrances” means the following types of Liens:
(i) Liens in favor of Agent securing the Obligations;
(ii) Liens (other than Liens relating to Environmental Claims or ERISA) for taxes, assessments, or similar charges, incurred in the ordinary course of business and which are not yet due and payable; or which are being contested in good faith with adequate reserved maintained with respect thereto;
(iii) Pledges or deposits (other than any Lien imposed by ERISA) made in the ordinary course of business to secure payment of worker’s compensation, or to participate in any fund in connection with worker’s compensation, unemployment insurance, old-age pensions or other social security programs;
(iv) Liens of mechanics, materialmen, warehousemen, carriers, or other like Liens, securing obligations incurred in the ordinary course of business that are not overdue by more than thirty (30) days;
(v) Liens of landlords or sublandlords securing obligations to pay lease payments that are not yet due and payable or in default;
(vi) Good-faith pledges or deposits made in the ordinary course of business to secure performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of business;
(vii) Encumbrances consisting of zoning restrictions, easements or other restrictions on the use of real property, none of which materially impairs the use of such property or the value thereof, and none of which is violated in any material respect by existing or proposed structures or land use;
(viii) Liens and security interests securing Specified Indebtedness so long as, and only to the extent that, such Specified Indebtedness is subject to a Specified Indebtedness Intercreditor Agreement;
(ix) Liens securing Indebtedness permitted under Section 7.1(d);
(x) Liens encumbering any Commodity Repurchase Agreement Property (but no other property of any Borrower) and securing Commodity Repurchase Agreement Indebtedness permitted hereunder so long as the Macquarie Repurchase Intercreditor Agreement is in effect.
(xi) Rights of set-off of financial institutions and other Persons in the ordinary course of banking and trading arrangements;
(xii) Liens on proceeds of specified insurance policies to secure any portion of the unpaid amount of premiums payable by any Borrower in respect of such policies;
(xiii) The following, (A) if the validity or amount thereof is being contested in good faith by appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have been stayed and continue to be stayed or (B) if a final judgment is entered and such judgment is discharged within thirty (30) days of entry, and, in any case, they do not in the aggregate materially impair the ability of the Restricted Loan Parties to perform their obligations hereunder or under the other Loan Documents:
(1) Claims or Liens for taxes, assessments or charges due and payable and subject to interest or penalty, provided that the applicable Loan Party maintains such reserves or other appropriate provisions as shall be required by GAAP and pays all such taxes, assessments or charges forthwith upon the commencement of proceedings to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of title to, real or personal property other than the Collateral, including any attachment of personal or real property or other legal process prior to adjudication of a dispute on the merits;
(3) Claims or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory nonconsensual Liens;
(xiv) Judgment Liens in such amounts as would not constitute an Event of Default;
(xv) Liens shown on Schedule 7.3 and Liens securing any Permitted Refinancing thereof;
(xvi) other Liens on assets not included in the Borrowing Base or the Collateral Formula Amount and not otherwise permitted under this Section 7.3 as to which the aggregate amount of the obligations secured thereby does not at any time exceed $250,000;
(xvii) leases, licenses, cross-licenses, subleases or sublicenses granted to others in the ordinary course of business which (A) do not interfere in any material respect with the business of any Borrower, and (B) do not secure any Indebtedness; and
(xviii) Statutory liens of each applicable Farm Credit Bank in the Farm Credit Equities.
“Permitted Refinancing” means, with respect to any Person, any modification, refinancing, refunding, renewal, restructuring, replacement or extension of any Indebtedness of such Person; provided that (a) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so modified, refinanced, restructured, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees and
expenses incurred, in connection with such modification, refinancing, refunding, renewal, restructuring, replacement or extension plus an amount equal to any existing commitments unutilized thereunder, (b) such modification, refinancing, refunding, renewal, replacement or extension has a final maturity date equal to or later than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended, (c) at the time thereof, no Event of Default shall have occurred and be continuing, (d) if such Indebtedness being modified, refinanced, refunded, renewed, replaced or extended is subordinated in right of payment to the Obligations, such modification, refinancing, refunding, renewal, replacement or extension is subordinated in right of payment to the Obligations on terms (x) at least as favorable (taken as a whole) to the Lenders as those contained in the documentation governing the Indebtedness being modified, refinanced, refunded, renewed, replaced or extended or (y) is otherwise reasonably acceptable to Agent, (e) if such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended is Indebtedness secured by Liens that are subordinated to the Liens securing the Obligations, (i) such modification, refinancing, replacement, refunding, renewal or extension is unsecured or secured by Liens that are subordinated to the Liens securing the Obligations on terms (x) at least as favorable (taken as a whole) to the Lenders as those contained in the documentation (including any intercreditor or similar agreements) governing the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended or (y) otherwise reasonably acceptable to Agent and (ii) such modification, refinancing, refunding, renewal, replacement or extension is incurred by only a Person who is an obligor of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended and (f) if the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended is secured by Liens on any of the Restricted Loan Parties’ property, such modification, refinancing, refunding, renewal, replacement or extension shall be secured only by such property (provided that if the Indebtedness being modified, refinanced, restructured, refunded, renewed, replaced or extended is secured by Liens that are not permitted hereunder, such modification, refinancing, refunding, renewal, replacement or extension shall only be secured by Liens otherwise permitted hereunder).
“Permitted Supply Chain Financing” means a supply chain finance transaction or transactions whereby a Borrower sells (i) Designated Supply Chain Accounts consisting of a portion of its Accounts at the request of a customer of such Borrower or a related Borrower (and for the avoidance of doubt, not with respect to Accounts of any Borrower or Borrowers generally) or (ii) drafts or bills of exchange which reflect such Borrower’s right to payment from a customer of such Borrower or a related Borrower for goods or services provided, and:
(a) such Borrower, prior to entering into such transaction, shall have provided Agent with copies of all documentation regarding such proposed Permitted Supply Chain Financing arrangements;
(b) such Borrower shall have obtained the prior written consent of Agent before entering into such transaction;
(c) all or substantially all of the cash proceeds of such transaction are applied to repay the principal balance of the Revolving Loan;
(d) such transaction shall be without recourse to any Borrower other than customary recourse terms provided for in the applicable documentation (in connection with the customary representations made with respect to the applicable Account or drafts/bills of exchange);
(e) any discount rate applicable to such transaction shall be reasonable and customary based on market terms at such time; and
(f) prior to, or after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing and the Restricted Loan Parties shall be in compliance with Section 6, determined on a pro forma basis.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
“Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA, maintained for employees of Borrowers or any Subsidiary, or any such plan to which Borrowers or any Subsidiary are required to contribute on behalf of any of their employees or with respect to which any Borrower has any liability.
“Platform” means Debt Domain, Intralinks, Syndtrak, DebtX or a substantially similar electronic transmission system.
“Prime Rate” means the rate of interest per annum last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by Agent) or any similar release by the Federal Reserve Board (as determined by Agent). Any change in the Prime Rate shall take effect at the opening of business on the day such change is publicly announced or quoted as being effective.
“Prior Security Interest” means a valid and enforceable perfected first-priority security interest in the Collateral which is subject only to Liens for taxes not yet due and payable to the extent such prospective tax payments are given priority by statute.
“Pro Rata Share” means, as of any date of determination, for any Lender (a) at any time prior to the termination of the Revolving Loan Commitments, the percentage (carried out to the ninth decimal place) obtained by dividing (i) the Revolving Loan Commitment of such Lender at such time by (ii) the Revolving Loan Commitments of all Lenders at such time and (b) at any time after the termination of the Revolving Loan Commitments, the percentage (carried out to the ninth decimal place) obtained by dividing (i) the outstanding principal balance of the Revolving Advances of such Lender at such time by (ii) the outstanding principal balance of the Revolving Loan at such time.
The initial Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule 1.1.
“Projections” means Borrowers’ forecasted consolidated: (a) balance sheets, (b) profit and loss statements, and (c) cash flow statements, all prepared on a division by division and Subsidiary by Subsidiary basis consistent with Borrowers’ historical financial statements and based upon good faith estimates and assumptions by Borrowers believed to be reasonable at the time made, together with appropriate supporting details and a statement of underlying assumptions.
“Protective Advance” has the meaning assigned to that term in Section 2.1(i).
“Purchase Money Security Interest” means Liens (including, without limitation, capitalized leases under GAAP) upon tangible personal property (including the proceeds thereof) securing loans to the Restricted Loan Parties or deferred payments (including, without limitation, capitalized lease obligations under GAAP) by the Restricted Loan Parties for the purchase or capital lease of such tangible personal property, provided that such security interest does not encumber any asset except the assets purchased (and the proceeds thereof), and provided further that such security interest does not secure obligations in excess of such purchase price or deferred payments.
“QFC Credit Support” has the meaning assigned to that term in Section 10.25.
“Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant guarantee or grant of the relevant security interest becomes effective with respect to such Swap Obligation or such other Person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another Person to qualify as an “eligible contract participant” at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
“Realized Score” means, in relation to any Key Performance Indicator and any KPI Metrics Report, the value or percentage assigned to that Key Performance Indicator as extracted from that KPI Metrics Report.
“Register” has the meaning assigned to that term in Section 9.5(e).
“Related Fund” has the meaning assigned to that term in Section 9.5(d).
“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.
“Relevant Governmental Body” means the Federal Reserve Board or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board or the Federal Reserve Bank of New York, or any successor thereto.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
“Reporting Rider” means Rider A attached to this Agreement and made a part hereof.
“Requisite Lenders” means, at any time of determination, Lenders (other than a Defaulting Lender) holding or being responsible for more than fifty percent (50%) of the sum of the (a) outstanding Loans, (b) Letter of Credit Reserve, and (c) unutilized Revolving Loan Commitments of all Lenders which are not Defaulting Lenders.
“Reserves” means any and all reserves which the Agent determines, in its Permitted Discretion, as being appropriate (a) to reflect the impediments to the Agent’s ability to realize upon the Collateral or the amount that the Agent would likely receive upon the liquidation of the Collateral, (b) to reflect claims and liabilities that the Agent determines in its Permitted Discretion will need to be satisfied in connection with the realization upon the Collateral, (c) to reflect criteria, events, conditions, contingencies or risks which adversely affect any component of any portion of the Collateral Formula Amount, (d) to reflect any other circumstances which would likely adversely affect the value of the
Collateral, (e) to reflect any circumstances which adversely affect the enforceability or priority of the Agent’s Liens on the Collateral, or (f) to reflect that an Event of Default exists. Reserves may only be established by the Agent, acting in its Permitted Discretion, upon at least three (3) Business Days’ prior written notice to the Borrowing Agent (which notice shall include a reasonably detailed description of such reserve being established or modified and the basis for such reserve or modification), except that no such notice shall be required (x) if an Event of Default has occurred or is continuing, (y) for changes to any reserves resulting solely by virtue of mathematical calculations of the amount of the reserve in accordance with the methodology of calculation previously utilized (such as, but not limited to, rent and customer credit liabilities), or (z) for changes to reserves or establishment of additional reserves if a Material Adverse Effect has occurred or it would be reasonably likely that a Material Adverse Effect would occur were such reserve not changed or established prior to the three (3) Business Day period; provided that during such three (3) Business Day period, borrowings shall not be permitted if, after giving pro forma effect to the imposition of such proposed reserves, Revolving Availability would be less than zero. During any such applicable three (3) Business Day period, the Agent shall, if requested, discuss any such reserve or change with the Borrowers, and Borrowers may take such action (but, in any event, without prejudice to Agent’s right to implement any Reserves permitted hereunder) as may be required so that the event, condition or matter that is the basis for such reserve or change no longer exists or exists in a manner that would result in the establishment of a lower reserve or result in a lesser change, in each case, in a manner and to the extent reasonably satisfactory to the Agent.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, the president, any vice president, the controller, the chief financial officer, the treasurer, managing director or any other officer having substantially the same authority and responsibility or having been duly authorized by the board of directors (or similar managing entity) of the applicable Person, with respect to compliance with financial covenants or delivery of financial information, the chief financial officer or the treasurer of Borrowers or any other officer having substantially the same authority and responsibility or having been duly authorized by the board of directors (or similar managing entity) of the applicable Person.
“Restricted Loan Parties” means, collectively, the Borrowers and the Subsidiary Guarantors.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of any Person, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to such Person’s shareholders, partners or members (or the equivalent Persons thereof).
“Revolving Advance” means each advance made by the Lenders under the Revolving Loan Commitments.
“Revolving Availability” means, as of any date of determination, the amount by which the Maximum Revolving Loan Amount as of such date exceeds the Aggregate Revolving Credit Exposure as of such date.
“Revolving Credit Exposure” means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Revolving Advances, plus its Pro Rata Share of the Letter of Credit Reserve, plus its participation in Swingline Loans at such time.
“Revolving Loan” means the outstanding balance of all Revolving Advances and any amounts added to the principal balance of the Revolving Loan pursuant to this Agreement (including, for the avoidance of doubt, the principal balance of any Protective Advances).
“Revolving Loan Commitment” means, as to any Lender, the commitment of such Lender to make Revolving Advances pursuant to Section 2.1(a), and to purchase participations in (x) Lender Letters of Credit pursuant to Section 2.1(e) and (y) Swingline Loans pursuant to Section 2.1(g) in the aggregate amount set forth opposite such Lender’s name on Schedule 1.1 or in the most recent Assignment and Acceptance Agreement, if any, executed by such Lender, as such commitment may be reduced or increased from time to time in accordance with the terms of this Agreement.
“Revolving Note” means each promissory note of Borrowers in substantially the form of Exhibit G, issued to evidence the Revolving Loan Commitment of any Lender.
“Sanctions” has the meaning assigned to that term in Section 4.23(a).
“Scheduled Termination Date” means March 25, 2027.
“Secured Bank Products Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management or depositary arrangements entered into between any Restricted Loan Party and a Lender or an Affiliate of a Lender, in its separate capacity as a provider of such cash management services, a copy of which has been provided to Agent. The obligations of the Restricted Loan Parties to Agent, any Lender or any Affiliate of Agent or any Lender, as applicable, under any Secured Bank Products Agreement shall be “Obligations” hereunder and otherwise treated as Obligations for purposes of each of the other Loan Documents, and shall be entitled to the benefit and security of the Collateral, the Loan Documents and all other collateral security for the Obligations, on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
“Secured Hedge Agreement” means a Hedge Agreement that: (a) is provided to a Restricted Loan Party by Agent, any Lender or any Affiliate of Agent or any Lender; (b) is entered into by the applicable Restricted Loan Party in compliance with Section 7.1(f); and (c) with respect to which Agent has received satisfactory evidence that such Hedge Agreement (i) is documented in a standard International Swaps and Derivatives Association Agreement, (ii) provides for the method of calculating the reimbursable amount of the provider’s credit exposure in a reasonable and customary manner, and (iii) is entered into for hedging (rather than speculative) purposes (it being understood and agreed that Agent shall have no obligation to ascertain whether any such agreement is entered into for speculative purposes). The obligations of the Restricted Loan Parties to Agent, any Lender or any Affiliate of Agent or any Lender, as applicable, under any Secured Hedge Agreement shall be “Obligations” hereunder and otherwise treated as Obligations for purposes of each of the other Loan Documents, and shall be entitled to the benefit and security of the Collateral, the Loan Documents and all other collateral security for the Obligations, on a pari passu basis with all other Obligations under this Agreement and the other Loan Documents.
“Secured Parties” means, collectively, Agent, the Lenders, any provider of Secured Hedge Agreements (but excluding all Excluded Swap Obligations), any provider of services under a
Secured Bank Products Agreement, the Indemnitees, and the successors and assigns of each of the foregoing.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
“SOFR Loan” means a Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
“Solvent” means, with respect to any Person as of any date of determination, that, as of such date, (a) the “fair value” of the assets of such Person (taken as a whole and on a going concern basis) exceeds the sum of all debts of such Person as such quoted term is determined in accordance with applicable federal, state and provincial laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the property of such Person and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such Person is able to meet its obligations as they generally become due, and (d) such Person does not have unreasonably small capital in relation to its business contemplated as of such date. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities shall be computed at the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Specified Indebtedness” means Indebtedness of a Subsidiary of Holdings outstanding at the time such Subsidiary becomes a Borrower hereunder (excluding any such Indebtedness incurred in contemplation of the joinder of such Subsidiary as a Borrower).
“Specified Indebtedness Intercreditor Agreement” means an intercreditor agreement, in form and substance reasonably satisfactory to Agent, executed and delivered by the lenders or agent with respect to any Specified Indebtedness.
“Standard & Poor’s” shall mean Standard & Poor’s Ratings Group, a division of The McGraw-Hill Companies, Inc.
“Subsidiary” means, with respect to any Person, any corporation, association or other business entity of which more than fifty percent (50%) of the total voting power of shares of stock (or equivalent ownership or controlling interest) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that Person or a combination thereof.
“Subsidiary Borrower Conditions” means, with respect to any Borrower or proposed Borrower, each of the following:
(a) such Borrower either (i) is party hereto as a “Borrower” on the Closing Date or (ii) shall have executed and delivered to Agent a joinder agreement, in form and substance reasonably satisfactory to Agent, pursuant to which such Borrower shall have agreed to become a “Borrower” for all purposed under this Agreement and the other Loan Documents;
(b) subject to the time period set forth in Section 5.14(e), (i) such Borrower shall have entered into a Subsidiary Loan Agreement, in form and substance satisfactory to Agent in its reasonable discretion, a copy of which shall have been furnished to Agent, (ii) such Subsidiary Loan Agreement shall remain in full force and effect and shall have not been amended, waived or otherwise modified without the prior written consent of Agent and (iii) GP Finco shall have taken all actions reasonably requested by Agent to grant Agent, for the benefit of the Secured Parties, a perfected, first priority security interest in such Subsidiary Loan Agreement and all related Subsidiary Loan Documents;
(c) such Borrower shall have taken such other actions as Agent shall have reasonably required to grant to Agent, for the benefit of itself and the Secured Parties, a perfected first priority security interest in all of the Collateral of such Borrower;
(d) such Borrower shall have delivered to Agent a secretary’s certificate or officer’s certificate satisfying the requirements set forth in Section 3.1(c);
(e) each of the Lenders shall have received, at least five (5) Business Days before the joinder of such Borrower, all documentation and other information reasonably requested it to satisfy its obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; and
(f) and if requested by Agent, such Borrower shall have delivered to Agent customary legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to Agent.
“Subsidiary Borrowers” means, collectively, all of the Borrowers, other than each of the Borrowers that is a party to this Agreement on the Closing Date.
“Subsidiary Guarantor” means each Subsidiary of Holdings that now or hereafter executes a Guaranty or becomes a party hereto as a “Guarantor”.
“Subsidiary Loan Agreement” means, with respect to a given Borrower (other than GP Finco), the loan and security agreement (or similar agreement), entered into by such Subsidiary Borrower and GP Finco, as the same may be amended from time to time. “Subsidiary Loan Agreements” means, collectively, all of the Subsidiary Loan Agreements entered into by GP Finco and the Subsidiary Borrowers from and after the Closing Date.
“Subsidiary Loan Documents” means, collectively, the Subsidiary Loan Agreements and each other agreement, document, instrument, note, collateral access agreement (or similar) or other writing executed and/or delivered by GP Finco and/or a Subsidiary Borrower in connection with any Subsidiary Loan Agreement.
“Supported QFC” has the meaning assigned to that term in Section 10.25.
“Sustainability Documents” means the KPI Metrics Report and the KPI Compliance Certificate.
“Sustainability Margin Adjustment” means the adjustment of the Applicable Margin for any KPI Metric as referred to in Section 2.14.
“Sustainability Structuring Agent” means ING Capital LLC.
“Sustainability Table” means the Sustainability Table set forth in Schedule 2.14.
“Swap Obligation” means, with respect to any Restricted Loan Party, any obligation to pay or perform under any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swingline Borrowing” means a borrowing of a Swingline Loan.
“Swingline Lender” means ING Capital LLC, in its capacity as lender of Swingline Loans hereunder, or such other Lender as Borrowers may from time to time select as the Swingline Lender hereunder upon the approval of Agent and such other Lender.
“Swingline Loan” means a loan made by a Swingline Lender to any Borrower pursuant to Section 2.1(g).
“Swingline Loan Notice” means a notice in the form of Exhibit F.
“Swingline Note” mean a promissory note of Borrowers in substantially the form of Exhibit H, issued to evidence the Swingline Loans made by the Swingline Lender.
“Swingline Sublimit” means an amount equal to the lesser of $25,000,000. The Swingline Sublimit is part of, and not in addition to, the Revolving Loan Commitments.
“Target Score”, with respect to any calendar year, means, in relation to any Key Performance Indicator, the value or percentage set out opposite that Key Performance Indicator under the heading “Target Score” in Schedule 2.14 with respect to that calendar year, or such values as may be supplemented in accordance with Section 2.14.
“Tax Liabilities” has the meaning assigned to that term in Section 2.9(a).
“Term SOFR” means,
(a) for any calculation with respect to a SOFR Loan, the Term SOFR Reference Rate for a tenor comparable to the applicable Interest Period on the day (such day, the “Periodic Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Periodic Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Periodic Term SOFR Determination Day, and
(b) for any calculation with respect to a Base Rate Loan on any day, the Term SOFR Reference Rate for a tenor of one month on the day (such day, the “Base Rate Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to such day, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Base Rate Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Base Rate Term SOFR Determination Day.
“Term SOFR Adjustment” means, for any calculation with respect to a Base Rate Loan or a SOFR Loan, a percentage per annum as set forth below for the applicable Type of such Loan and (if applicable) Interest Period therefor:
Base Rate Loans:
| 0.10% |
|---|
SOFR Loans:
| Interest Period | Percentage |
|---|---|
| One month | 0.10% |
| Three months | 0.15% |
| Six months | 0.25% |
provided that Agent may from time to time reduce any of the percentages set forth above to a percentage not less than zero with the written consent of all Lenders at such time (which consent may be given via electronic mail or in any other manner contemplated for notices under this Agreement). Any such reduction shall become effective on the first Business Day after the date on which Agent provides Borrowers notice of such reduction.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Agent in its reasonable discretion).
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Termination Date” means the earlier of (a) the Scheduled Termination Date and (b) the acceleration of all Obligations pursuant to Section 8.3.
“Total Funded Debt” as of any date, shall mean, with respect to any Person and its Subsidiaries determined on a consolidated basis in accordance with GAAP (without duplication): (a) all Indebtedness (i) for borrowed money (including all Obligations hereunder and all Specified Indebtedness), (ii) for the deferred purchase price of property or services as of such date, (iii) in the form of obligations in respect of Capital Leases or (iv) which is evidenced by a note, bond, debenture or similar instrument but excluding, for the avoidance of doubt, any unfunded Lender Letters of Credit, bankers
acceptances or similar instrument (including, in the case of each of clauses (i) through (iv) any Guarantees in respect of the types of Indebtedness described therein).
“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to Adjusted Term SOFR or the Base Rate.
“U.S. Special Resolution Regimes” has the meaning assigned to that term in Section 10.25.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, to the extent the law of any other state or other jurisdiction applies to the attachment, perfection, priority or enforcement of any Lien granted to Agent in any of the Collateral, “UCC” means the Uniform Commercial Code as in effect in such other state or jurisdiction for purposes of the provisions hereof relating to such attachment, perfection, priority or enforcement of a Lien in such Collateral. To the extent this Agreement defines the term “Collateral” by reference to terms used in the UCC, each of such terms shall have the broadest meaning given to such terms under the UCC as in effect in any state or other jurisdiction.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Undisclosed Administration” means, in relation to a Lender or its direct or indirect parent company, the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian, or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or such parent company is subject to home jurisdiction, if applicable law requires that such appointment not be disclosed.
“Unrealized Losses on Forward Contract Positions” means, as of any date of determination, the sum of (a) the aggregate amount by which (1) the aggregate fair market value (net of storage and transportation costs) on such date of corn subject to Eligible Forward Contracts for sale by any Borrower exceeds (2) the amount which such Borrower’s customers have contractually agreed to pay to such Borrower pursuant to Eligible Forward Contracts in consideration of future deliveries of corn (net of any set-off rights of the counterparties to such Eligible Forward Contracts) plus (b) the aggregate amount by which (1) the amount which any Borrower has contractually agreed to pay farmers pursuant to Eligible Forward Contracts in consideration of future deliveries of corn (net of any set-off rights of the counterparties to such Eligible Forward Contracts) exceeds (2) the aggregate fair market value (net of storage and transportation costs) on such date of corn.
“Unrealized Profits on Forward Contract Positions” means, as of any date of determination, the sum of (a) the aggregate amount by which (1) the amount which any Borrower’s customers have contractually agreed to pay to such Borrower pursuant to Eligible Forward Contracts in consideration of future deliveries of corn (net of any set-off rights of the counterparties to such Eligible Forward Contracts), exceeds (2) the aggregate fair market value (net of storage and transportation costs) on such date of corn plus (b) the aggregate amount by which (1) the aggregate fair market value (net of storage and transportation costs) on such date of corn subject to Eligible Forward Contracts for purchase by any Borrower exceeds (2) the amount which such Borrower has contractually agreed to pay farmers pursuant to Eligible Forward Contracts in consideration of future deliveries of corn (net of any set-off rights of the counterparties to such Eligible Forward Contracts).
“Unsuccessful Completion” means, at any time of determination with respect to any calendar year, that:
(a) The Group has failed to deliver the Sustainability Documents with respect to that calendar year in accordance with paragraph (p) of the Reporting Rider, or
(b) The methodology for the determination of the Realized Score for one or more Key Performance Indicators has been altered in a material way compared to the methodology applied for the determination of the Baseline as published in the Initial KPI Metrics Report without the consent of the Requisite Lenders.
“Unused Commitment Fee” means the fee described in Section 2.3(a).
“USA PATRIOT Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or shall hereafter be, renewed, extended, amended or replaced.
“U.S. Dollars” and the sign “$” shall mean lawful money of the United States of America.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“Working Capital Schedule” means the written calculation of the Collateral Formula Amount in substantially the form of Schedule II to Exhibit B to this Agreement.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2 UCC Defined Terms. The following terms used in this Agreement shall have the respective meanings provided for in the UCC: “Accounts”, “Account Debtor”, “Buyer in Ordinary Course of Business”, “Chattel Paper”, “Commercial Tort Claim”, “Commodity Account”, “Commodity Contract”, “Commodity Intermediary”, “Deposit Account”, “Documents”, “Electronic Chattel Paper”, “Equipment”, “Farm Products”, “Fixtures”, “General Intangibles”, “Goods”, “Instruments”, “Inventory”, “Investment Property”, “Letter of Credit”, “Letter-of-Credit Rights”, “Licensee in Ordinary Course of Business”, “Payment Intangibles”, “Proceeds”, “Record”, “Securities Account”, “Securities Intermediary”, “Software”, “Supporting Obligations” and “Tangible Chattel Paper”.
1.3 Accounting Terms. For purposes of this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to such terms in conformity with GAAP. Financial statements and other information furnished to Agent or any Lender pursuant to Section 5.1 shall be prepared in accordance with GAAP (as in effect at the time of such preparation) on a consistent basis. In the event any “Accounting Changes” (as defined below) shall occur and such changes affect financial covenants, standards or terms in this Agreement, then Borrowers and the Lenders agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the financial condition of Borrowers shall be the same after such Accounting Changes as if such Accounting Changes had not been made, and until such time as such an amendment shall have been executed and delivered by Borrowers and the Requisite Lenders, (A) all financial covenants, standards and terms in this Agreement shall be calculated and/or construed as if such Accounting Changes had not been made, and (B) Borrowers shall prepare footnotes to each Compliance Certificate and the financial statements required to be delivered hereunder that show the differences between the financial statements delivered (which reflect such Accounting Changes) and the basis for calculating financial covenant compliance (without reflecting such Accounting Changes). “Accounting Changes” means: (a) changes in accounting principles required by GAAP and implemented by Borrower; and (b) changes in accounting principles recommended by Borrower’s Accountants. All such adjustments resulting from expenditures made subsequent to the Closing Date (including, but not limited to, capitalization of costs and expenses or payment of pre-Closing Date liabilities) shall be treated as expenses in the period the expenditures are made. Notwithstanding the foregoing, for purposes of determining compliance with any financial covenant contained herein, the effects of FASB Accounting Standards Update 2016-02 (Topic 842) shall be disregarded.
1.4 Other Definitional Provisions. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The word “will” shall be construed to have the same meaning and effect as the word “shall.” The word “or” is not exclusive. The word “year” shall refer (i) in the case of a leap year, to a year of three hundred sixty-six (366) days, and (ii) otherwise, to a year of three hundred sixty-five (365) days. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein or in any other Loan Document to Articles, Sections, Exhibits, Riders and Schedules shall be construed to refer to Articles and Sections of, and Exhibits, Riders and Schedules to, this Agreement or such other Loan Document, as applicable, (e) any reference to any law or regulation herein shall, unless otherwise specified, refer to such law or regulation as amended,
modified or supplemented from time to time, (f) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, and (g) the words “renew”, “renewal” and variations thereof as used herein with respect to a Lender Letter of Credit means to extend the term of such Letter of Credit or to reinstate an amount drawn under such Lender Letter of Credit or both.
1.5 Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws) (each, a “Division”): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Equity Interests at such time. In no event shall any Loan Party be permitted to effectuate a Division and if any Subsidiary shall consummate a Division, such Subsidiary shall be required, promptly after the effectiveness of such Division, to comply with the requirements set forth in Section 5.12 to the extent applicable.
1.6 Rates. Agent does not warrant or accept responsibility for, and shall not have any liability with respect to (a) the continuation of, administration of, submission of, calculation of or any other matter related to the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or any component definition thereof or rates referred to in the definition thereof, or any alternative, successor or replacement rate thereto (including any Benchmark Replacement), including whether the composition or characteristics of any such alternative, successor or replacement rate (including any Benchmark Replacement) will be similar to, or produce the same value or economic equivalence of, or have the same volume or liquidity as, the Base Rate, the Term SOFR Reference Rate, Adjusted Term SOFR, Term SOFR or any other Benchmark prior to its discontinuance or unavailability, or (b) the effect, implementation or composition of any Conforming Changes. Agent and its affiliates or other related entities may engage in transactions that affect the calculation of the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR, any alternative, successor or replacement rate (including any Benchmark Replacement) or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. Agent may select information sources or services in its reasonable discretion to ascertain the Base Rate, the Term SOFR Reference Rate, Term SOFR, Adjusted Term SOFR or any other Benchmark, in each case pursuant to the terms of this Agreement, and, except as otherwise provided in this Agreement, shall have no liability to the Borrowers, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
SECTION 2 LOANS AND COLLATERAL
2.1 Loans.
(a) Revolving Loans. Subject to the terms and conditions herein set forth, each Lender with a Revolving Loan Commitment severally agrees to make loans to Borrowers from time to time in an aggregate principal amount that will not result in (i) such Lender’s Revolving Credit Exposure exceeding its Revolving Loan Commitment. Amounts borrowed under this Section 2.1(a) may be repaid and reborrowed at any time prior to the earlier of (x) the termination of the Revolving Loan Commitment pursuant to Section 8.3 or (y) the Termination Date. Except as otherwise provided herein, no Lender
shall have any obligation to make a Revolving Advance if such Revolving Advance would cause the Aggregate Revolving Credit Exposure (after giving effect to any immediate application of the proceeds thereof) to exceed the Maximum Revolving Loan Amount.
(b) [Reserved].
(c) Borrowing Mechanics.
(i) Base Rate Loans made on any Funding Date shall be in an aggregate minimum amount of $100,000 and integral multiples of $100,000 in excess of such amount. SOFR Loans made on any Funding Date shall be in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of such amount.
(ii) On any day when any Borrower desires a Revolving Advance, such Borrower, through Borrowing Agent, shall give Agent written or telephonic notice of the proposed borrowing by 2:00 p.m. (New York City time) on the Funding Date of a Base Rate Loan or three (3) Business Days in advance of the Funding Date of a SOFR Loan, which notice shall specify the proposed Funding Date (which shall be a Business Day), the amount of Loan requested, whether such borrowing shall consist of Base Rate Loans or SOFR Loans, and, for SOFR Loans, the Interest Period applicable thereto. Neither Agent nor any Lender shall incur any liability to any Borrower for acting upon any telephonic notice or a Notice of Borrowing which Agent believes in good faith to have been given by a duly authorized officer or other person authorized to borrow on behalf of such Borrower or for otherwise acting in good faith under this Section 2.1(c). Neither Agent nor any Lender will be required to make any advance pursuant to any telephonic or written notice or a Notice of Borrowing, unless all of the applicable terms and conditions set forth in Section 3 have been satisfied and Agent has received the most recent Compliance Certificate and all other documents required under Section 5 and the Reporting Rider by 2:00 p.m. (New York City time) on the date of such funding request.
(iii) Each Revolving Advance shall be deposited by wire transfer in immediately available funds in such account as Borrowing Agent may from time to time designate to Agent in writing. Borrowers’ failure to pay when due any amount required to be paid under this Agreement or any of the other Loan Documents as principal, Lender Letter of Credit reimbursement obligation, accrued interest, fees, compensation or any other amounts shall be deemed irrevocably to be an automatic request by Borrowers for a Revolving Advance, which shall be a Base Rate Loan, on the due date of, and in the amount required to pay (as set forth on Agent’s books and records), such principal, Lender Letter of Credit reimbursement obligation, accrued interest, fees, compensation or any other amounts. Agent shall notify the Borrowers in writing promptly following the funding of any such Revolving Advance described in the immediately preceding sentence.
(d) Notes. If so requested by any Lender by written notice to Agent at least two (2) Business Days prior to the Closing Date, or at any time thereafter, Borrowers shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 9.5) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s receipt of such notice) a Revolving Note to evidence such Lender’s Revolving Advances.
(e) Letters of Credit. The Revolving Loan Commitments may be utilized, upon the request of the Borrowing Agent, for the issuance of letters of credit by Agent, or with the consent of Borrowers, Agent and the applicable Lender, any Lender (each a “Lender Letter of Credit”); provided that
in no event shall any Lender Letter of Credit be issued to the extent that the issuance of such Lender Letter of Credit would cause the Aggregate Revolving Credit Exposure to exceed the Maximum Revolving Loan Amount.
(i) Maximum Amount. The aggregate amount of Letter of Credit Liability with respect to all Lender Letters of Credit outstanding at any time shall not exceed $35,000,000.
(ii) Reimbursement. Borrowers shall be irrevocably and unconditionally obligated forthwith without presentment, demand, protest or other formalities of any kind, to reimburse Agent or the issuer for any amounts paid with respect to a Lender Letter of Credit, including all fees, costs and expenses, on the date such amounts are so paid. Borrowers hereby authorize and direct Agent, at Agent’s option, to debit Borrowers’ account (by increasing the Revolving Loan) in the amount of any payment made with respect to any Lender Letter of Credit. In the event that Agent elects not to debit Borrowers’ account and Borrowers fail to reimburse Agent in full on the date of any payment under a Lender Letter of Credit, Agent shall promptly notify each Lender of the unreimbursed amount of such payment together with accrued interest thereon and each Lender, on the next Business Day, shall deliver to Agent an amount equal to its respective participation in same day funds. The obligation of each Lender to deliver to Agent an amount equal to its respective participation pursuant to the foregoing sentence shall be absolute and unconditional and such remittance shall be made notwithstanding the occurrence or continuation of an Event of Default or Default or the failure to satisfy any condition set forth in Section 3. In the event any Lender fails to make available to Agent the amount of such Lender’s participation in such Lender Letter of Credit, Agent shall be entitled to recover such amount on demand from such Lender together with interest on such amount calculated at the Federal Funds Effective Rate.
(iii) Request for Letters of Credit. Borrowers shall give Agent at least five (5) Business Days prior notice specifying the date a Lender Letter of Credit is to be issued, identifying the beneficiary and describing the nature of the transactions proposed to be supported thereby. The notice shall be accompanied by the form of the Letter of Credit being requested. Any Letter of Credit which any Borrower requests must be in such form, be for such amount, contain such terms and support such transactions as are reasonably satisfactory to the Issuing Bank. Within three (3) Business Days following receipt of such notice from Borrowers, the Issuing Bank shall notify Borrowers if any terms of such requested Letter of Credit are not reasonably satisfactory to the Issuing Bank. The expiration date of each Lender Letter of Credit shall be on a date which is at least five (5) Business Days prior to the Scheduled Termination Date unless otherwise agreed to by Agent (provided such expiration date shall not extend beyond the Scheduled Termination Date). Notwithstanding the foregoing, a Lender Letter of Credit (1) shall be a standby letter of credit and (2) may include “evergreen” or automatic extension provisions; provided that (x) any such letter of credit shall permit the Issuing Lender to prevent any such extension at least once in each twelve (12) month period (commencing with the date of issuance of such letter of credit) by giving prior notice to Borrowing Agent and the beneficiary thereof and (y) no such letter of credit shall extend or be permitted to extend beyond the Scheduled Termination Date.
(iv) Lender Participation. Each Lender shall be deemed to have purchased a participation in each Lender Letter of Credit issued on behalf of any Borrower, immediately and automatically upon such issuance, in an amount equal to its Pro Rata Share of the Aggregate Revolving Loan Commitment.
(f) Other Letter of Credit Provisions.
(i) Obligations Absolute. The obligation of Borrowers to reimburse Agent or any Lender for payments made under, and other amounts payable in connection with, any Lender Letter of Credit shall be unconditional and irrevocable and shall be paid under all circumstances strictly in accordance with the terms of this Agreement including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Lender Letter of Credit, or any other agreement;
(B) the existence of any claim, set-off, defense or other right which any Borrower, any of its Subsidiaries or Affiliates or any other Person may at any time have against any beneficiary or transferee of any Lender Letter of Credit (or any Persons for whom any such transferee may be acting), Agent, any Lender, or any other Person, whether in connection with this Agreement, any other Loan Document, or any other related or unrelated agreements or transactions;
(C) any draft, demand, certificate or any other document presented under any Lender Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(D) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Loan Parties or any of their Subsidiaries;
(E) any breach of this Agreement or any other Loan Document by any party thereto;
(F) [reserved];
(G) the fact that a Default or an Event of Default shall have occurred and be continuing; or
(H) payment under any Lender Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Lender Letter of Credit; provided that, in the case of any payment by Agent or a Lender under any Lender Letter of Credit, Agent or such Lender has not acted with gross negligence or willful misconduct (as determined by a final non-appealable order by a court of competent jurisdiction) in determining that the demand for payment under such Lender Letter of Credit complies on its face with any applicable requirements for a demand for payment under such Lender Letter of Credit.
(ii) Nature of Lender’s Duties. None of Agent, the Lenders nor any Issuing Lender, shall be responsible: (A) for the form, validity, sufficiency, accuracy, genuineness or legal effect of any document by any party in connection with the application for and issuance of any Lender Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (B) for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any Lender Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (C) for failure of the beneficiary of any Lender Letter of Credit to comply fully with conditions required in order to demand payment thereunder; provided that, in the case of any payment under any such Lender Letter of Credit, any Issuing Lender has not acted with gross negligence or willful misconduct (as determined by a
final non-appealable order by a court of competent jurisdiction) in determining that the demand for payment under any such Lender Letter of Credit complies on its face with any applicable requirements for a demand for payment thereunder; (D) for errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (E) for errors in interpretation of technical terms; (F) for any loss or delay in the transmission or otherwise of any document required in order to make a payment under any such Lender Letter of Credit; (G) for the credit of the proceeds of any drawing under any such Lender Letter of Credit; and (H) for any consequences arising from causes beyond the control of Agent or any Lender as the case may be.
(iii) Liability. In furtherance and extension of and not in limitation of, the specific provisions herein above set forth, any action taken or omitted by Agent or any Lender under or in connection with any Lender Letter of Credit, if taken or omitted in good faith, shall not put Agent or any Lender under any resulting liability to Borrowers or any other Lender; provided that nothing in this Agreement shall relieve Agent or any Lender issuing a Lender Letter of Credit from liability for Agent’s or such Lender’s gross negligence or willful misconduct or breach in bad faith of its obligations under this Agreement (as determined by a court of competent jurisdiction in a final, non-appealable judgment) including in connection with actions or omissions described in this Section.
(g) Swingline Loans.
(i) Swingline Loans. Subject to the terms and conditions set forth herein, each Swingline Lender, in reliance on the agreements of the Lenders set forth in this Section, agrees to make Swingline Loans to Borrowers from time to time on any Business Day before the Termination Date, in an aggregate principal amount that will not result in (x) the Revolving Credit Exposure of any Lender exceeding its Revolving Loan Commitment, (y) the Aggregate Revolving Credit Exposure exceeding the Maximum Revolving Loan Amount or (z) the aggregate principal amount of outstanding Swingline Loans exceeding the Swingline Sublimit; provided, further, that no Swingline Lender shall be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and conditions set forth herein, Borrowers may borrow, prepay and reborrow Swingline Loans.
(ii) Borrowing Procedures for Swingline Loans. Each Swingline Borrowing shall be made upon Borrower’s notice to the applicable Swingline Lender and Agent. Each such notice shall be in the form of a Swingline Loan Notice, appropriately completed and signed by a duly authorized officer of Borrowing Agent, or may be given by telephone (if promptly confirmed in writing by delivery of such a Swingline Loan Notice consistent with such telephonic notice) and must be received by such applicable Swingline Lender and Agent not later than 2:00 p.m. (New York City time) on the date (which shall be a Business Day) of the requested Swingline Borrowing, and such notice shall specify (i) the amount to be borrowed, which shall be in a minimum of $100,000 or a larger multiple of $100,000, and (ii) the date of such Swingline Borrowing (which shall be a Business Day). Subject to the terms and conditions set forth herein, such Swingline Lender shall make each Swingline Loan available to Borrowers by credit to Borrowers’ account with such Swingline Lender or by wire transfer in accordance with instructions provided to (and reasonably acceptable to) such Swingline Lender, not later than 4:30 p.m. (New York City time) on the requested date of such Swingline Loan.
(iii) Participations by the Lenders in Swingline Loans.
(A) Immediately upon the making of a Swingline Loan by a Swingline Lender, and without any further action on the part of such Swingline Lender or the Lenders, such Swingline Lender hereby grants to each Lender, and each Lender
hereby acquires from such Swingline Lender, a participation in such Swingline Loan equal to such Lender’s Pro Rata Share (determined by reference to the Revolving Loan Commitments of the Lenders) of the amount of such Swingline Loan. Each Swingline Lender may, by written notice given to Agent not later than 3:00 p.m., New York City time, on any Business Day, require the Lenders to fund participations on such Business Day in all or a portion of its Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the Lenders will fund such participations. Promptly upon receipt of such notice, Agent will give notice thereof to each Lender, specifying in such notice such Lender’s Pro Rata Share of such Swingline Loan or Loans. Each Lender hereby absolutely, unconditionally and irrevocably agrees, upon receipt of notice as provided above in this paragraph, to pay to Agent, for account of the Swingline Lender, such Lender’s Pro Rata Share of such Swingline Loan or Loans. Each Lender acknowledges and agrees that its obligation to acquire and fund participations in Swingline Loans pursuant to this paragraph is absolute, unconditional and irrevocable and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Loan Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds to Agent’s Account, and Agent shall promptly pay to the Swingline Lender the amounts so received by it from the Lenders.
(B) Agent shall notify Borrowers of any participations in any Swingline Loan funded pursuant to the preceding paragraph, and thereafter payments in respect of such Swingline Loan shall be made to Agent and not to the applicable Swingline Lender. Any amounts received by a Swingline Lender from Borrowers (or other party on behalf of Borrowers) in respect of a Swingline Loan made by such Swingline Lender after receipt by such Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to Agent. Any such amounts received by Agent shall be promptly remitted by Agent to the Lenders that shall have made their payments pursuant to the preceding paragraph and to such Swingline Lender, as their interests may appear, provided that any such payment so remitted shall be repaid to such Swingline Lender or to Agent, as applicable, if and to the extent such payment is required to be refunded to Borrowers for any reason. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve Borrowers of any default in the payment thereof.
(C) Subject to the provisions of Section 2.2(a), during such periods as a Swingline Loan shall remain outstanding, such Swingline Loan shall bear interest at a per annum rate equal to the Base Rate plus the Adjusted Applicable Margin. Interest on Swingline Loans shall be payable in quarterly in arrears and on the Termination Date.
(D) Swingline Loans shall, upon the request of the Swingline Lender, be evidenced by a Swingline Note.
(iv) Resignation of Swingline Lender. Any Swingline Lender may resign at any time by giving 30 days’ prior notice to Agent, the Lenders and Borrower. After the resignation of a Swingline Lender hereunder, the retiring Swingline Lender shall remain a party hereto and shall continue to have all the rights and obligations of a Swingline Lender under this Agreement and the other Loan
Documents with respect to Swingline Loans made by it prior to such resignation, but shall not be required to make any additional Swingline Loans.
(h) Availability of a Lender’s Pro Rata Share.
(i) Lender’s Amounts Available on a Funding Date. Unless Agent receives written notice from a Lender on or prior to any Funding Date that such Lender will not make available to Agent as and when required such Lender’s Pro Rata Share of any requested Loan or participation in a Swingline Loan, Agent may assume that each Lender will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount.
(ii) Lender’s Failure to Fund. A Defaulting Lender shall pay interest to Agent at the Federal Funds Effective Rate on the Defaulted Amount from the Business Day following the applicable Funding Date of such Defaulted Amount until the date such Defaulted Amount is paid to Agent. A notice of Agent submitted to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is not paid when due to Agent, Agent, at its option, may notify Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay the unpaid amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such borrowing, at a rate per annum equal to the interest rate applicable at the time to the Loan made by the other Lenders on such Funding Date. The failure of any Lender to make available any portion of its Revolving Loan Commitments on any Funding Date or to fund its participation in a Lender Letter of Credit shall not relieve any other Lender of any obligation hereunder to fund such Lender’s Revolving Loan Commitment on such Funding Date or to fund any such participation, but no Lender shall be responsible for the failure of any other Lender to honor its Revolving Loan Commitment on any Funding Date or to fund any participation to be funded by any other Lender.
(iii) Payments to a Defaulting Lender. Any payment of principal, interest, fees or other amounts received by Agent for the account of a Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 8.3 or otherwise) or received by Agent from a Defaulting Lender pursuant to Section 9.6 shall be applied at such time or times as may be determined by the Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any Issuing Lender or Swingline Lender hereunder; third, to deposit with Agent for the benefit of any Issuing Lender cash collateral in an amount equal to such Defaulting Lender’s Pro Rata Share of the aggregate amount of Letter of Credit Liability with respect to Lender Letters of Credit issued by such Issuing Lender; fourth, as Borrowers may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Agent; fifth, if so determined by the Agent and Borrowers, to be held in a Deposit Account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) to cash collateralize for the benefit of any Issuing Lender, such Defaulting Lender’s Pro Rata Share of future Letter of Credit Liability with respect to future Lender Letters of Credit issued by such Issuing Lender; sixth, to the payment of any amounts owing to the Lenders, the Issuing Lenders or the Swingline Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, Swingline Lender or Issuing Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrowers as a result of any judgment of a court of competent
jurisdiction obtained by Borrowers against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or a payment under any Lender Letters of Credit in respect of which such Defaulting Lender has not fully funded its Pro Rata Share, and (y) such Loans were made or the related Lender Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and Lender Letters of Credit owed to, all non-defaulting Lenders based on their respective Pro Rata Share prior to being applied to the payment of any Loans of, or Lender Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Lender Letters of Credit or Swingline Loans are held by the Lenders pro rata in accordance with the Revolving Loan Commitments, as applicable. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.1(h)(iii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
(iv) Defaulting Lender’s Right to Vote. No Defaulting Lender shall have any right to approve or disapprove any amendment, waiver, consent or any other action the Lenders or the Requisite Lenders have taken or may take hereunder (including any consent to any amendment or waiver pursuant to Section 9.4); provided that any waiver, amendment, consent or modification that (A) extends or increases the Loans or Revolving Loan Commitments of such Defaulting Lender, (B) reduces, forgives or waives any payments of outstanding interest and principal of any Loans made by such Defaulting Lender, or applicable interest thereon (other than default interest) or (C) otherwise affects such Defaulting Lender in a manner that is disproportionately adverse relative to the non-Defaulting Lenders shall require the consent of such Defaulting Lender.
(v) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Lender Letters of Credit and Swingline Loans shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Revolving Loan Commitment) but only to the extent that such reallocation does not cause the Revolving Credit Exposure of any non-Defaulting Lender to exceed such non-Defaulting Lender’s Revolving Loan Commitment. Subject to Section 10.24, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a non-Defaulting Lender as a result of such non-Defaulting Lender’s increased exposure following such reallocation. If the reallocation described above cannot, or can only partially, be effected, Borrowers shall, without prejudice to any right or remedy available to it hereunder or under law, (x) first, prepay Swingline Loans in an amount equal to the Swingline Lenders’ Fronting Exposure and (y) second, cash collateralize the Issuing Lenders’ Fronting Exposure in an amount equal to the amount set forth in Section 8.3(b).
(vi) Defaulting Lender Cure. If Borrowers, Agent, each Issuing Lender and each Swingline Lender agree in writing that a Lender is no longer a Defaulting Lender, Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that such Defaulting Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Lender Letters of Credit and Swingline Loans to be held pro rata by the Lenders in accordance with the Revolving Loan Commitments, whereupon such Lender will
cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
(i) Protective Advances.
(i) Subject to the limitations set forth below, Agent is authorized by Borrowers and the Lenders, from time to time in Agent’s sole discretion (but shall have absolutely no obligation to), to make Revolving Advances to Borrowers, on behalf of all Lenders, which Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve or protect the Collateral or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations or (iii) to pay when due any other amount chargeable to or required to be paid by Borrowers pursuant to the terms of this Agreement, including payments of principal, interest, fees, premiums, reimbursable expenses (including costs, fees and expenses as described in Section 10.1) and other sums payable under the Loan Documents (any of such Revolving Advances are herein referred to as “Protective Advances”); provided that no Protective Advance shall cause the Aggregate Revolving Credit Exposure (after giving effect to any such Protective Advance or the application thereof) to exceed the Aggregate Revolving Loan Commitment then in effect. Agent shall notify Borrowers promptly following any Revolving Advance made pursuant to the immediately preceding sentence. The Protective Advances shall be secured by the Liens in favor of Agent in and to the Collateral and shall constitute Obligations hereunder. All Protective Advances shall be Base Rate Borrowings. Agent’s authorization to make Protective Advances may be revoked at any time by the Requisite Lenders. Any such revocation must be in writing and shall become effective prospectively upon Agent’s receipt thereof. At any time that the Aggregate Revolving Credit Exposure does not exceed the Aggregate Revolving Loan Commitment then in effect, Agent may request the Lenders to make Revolving Advances to repay a Protective Advance. At any other time Agent may require the Lenders to fund their risk participations described in clause (b) below. Notwithstanding anything in this Section 2.1(i) to the contrary, Agent shall not make a Protective Advance if the making of such Protective Advance would cause the aggregate outstanding principal balance of the Protective Advances (including Protective Advances transferred to the Lenders pursuant to clause (ii) below, to the extent such Protective Advances have not been repaid by Borrowers) to exceed $25,000,000.
(ii) Upon the making of a Protective Advance by Agent (whether before or after the occurrence of a Default or an Event of Default), each Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from Agent without recourse or warranty, an undivided interest and participation in such Protective Advance in proportion to its Pro Rata Share of the aggregate Revolving Loan Commitments. Each Lender shall transfer (a “Transfer”) the amount of such Lender’s Pro Rata Share of the outstanding principal amount of the applicable Protective Advance with respect to such purchased interest and participation promptly when requested to Agent, to such account of Agent as Agent may designate, but in any case not later than 3:00 p.m., New York City time, on the Business Day notified (if notice is provided by Agent prior to 12:00 p.m. New York City time, and otherwise on the immediately following Business Day (the “Transfer Date”)). Transfers may occur during the existence of a Default or an Event of Default and whether or not the applicable conditions precedent set forth in Section 3.2 have then been satisfied. Such amounts transferred to Agent shall be applied against the amount of the Protective Advance and, together with Lender’s Pro Rata Share of such Protective Advance, shall constitute Revolving Advances of such Lenders, respectively. If any such amount is not transferred to Agent by any Lender on such Transfer
Date, Agent shall be entitled to recover such amount on demand from such Lender together with interest thereon. From and after the date, if any, on which any Lender is required to fund, and funds, its participation in any Protective Advance purchased hereunder, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by Agent in respect of such Protective Advance.
2.2 Interest.
(a) Rate of Interest. The Loans and all other Obligations shall bear interest from the date such Loans are made or such other Obligations become due to the date paid at a rate per annum equal to (i) in the case of Base Rate Loans and Obligations for which no interest rate basis is specified, the Base Rate plus the Adjusted Applicable Margin and (ii) in the case of SOFR Loans, Adjusted Term SOFR plus the Adjusted Applicable Margin (collectively the “Interest Rate”). Such Interest Rate designation by the Borrowing Agent may be changed from time to time pursuant to Section 2.2(d). After the occurrence and during the continuance of an Event of Default (i) the Loans and all other outstanding Obligations shall, at the election of Agent, bear interest at a rate per annum equal to two percent (2%) plus the applicable Interest Rate (the “Default Rate”) (provided, the Loans and all other Obligations shall immediately bear interest at the Default Rate upon the occurrence of any Event of Default under in Sections 8.1(a), (g), or (h)), (ii) each SOFR Loan shall automatically convert to a Base Rate Loan at the end of the Interest Period applicable to such SOFR Loan and (iii) no Loans may be made as or converted to SOFR Loans.
(b) Computation and Payment of Interest. Except as expressly set forth herein, interest on the Loans and all other Obligations shall be computed on the daily principal balance thereof on the basis of, (x) with respect to SOFR Loans and Obligations bearing interest at rates determined by reference to SOFR, a three hundred sixty (360) day year for the actual number of days elapsed, and (y) with respect to all other Loans (including Swingline Loans) and Obligations, a three hundred sixty-five (365) or three hundred sixty-six (366) day year, as applicable, for the actual number of days elapsed. In computing interest on any Loan, the date of funding of the Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted from a SOFR Loan, the date of conversion of such SOFR Loan to such Base Rate Loan, shall be included; and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan, or with respect to a Base Rate Loan being converted to a SOFR Loan, the date of conversion of such Base Rate Loan to such SOFR Loan, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one (1) day’s interest shall be paid on that Loan. Interest on Base Rate Loans and all other Obligations other than SOFR Loans shall be payable to Agent for the benefit of the Lenders quarterly in arrears on the first day of each quarter, on the date of any prepayment of Loans, and at maturity, whether by acceleration or otherwise. Interest on SOFR Loans shall be payable to Agent for the benefit of the Lenders on the last day of the applicable Interest Period for such Loan, on the date of any prepayment of the Loans, and at maturity, whether by acceleration or otherwise. In addition, interest on each SOFR Loan having an Interest Period longer than three (3) months, interest accrued on such Loan shall also be payable on the last day of each three (3) month interval during such Interest Period.
(c) Interest Laws. Notwithstanding any provision to the contrary contained in this Agreement or any other Loan Document, Borrowers shall not be required to pay, and neither Agent nor any Lender shall be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by applicable law (“Excess Interest”). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any other Loan Document, then in such event: (i) the provisions of this subsection shall govern and control;
(ii) no Borrower nor any other Restricted Loan Party shall be obligated to pay any Excess Interest; (iii) any Excess Interest that Agent or any Lender may have received hereunder shall be, at such Lender’s option, (A) applied as a credit against the outstanding principal balance of the Obligations or accrued and unpaid interest (not to exceed the maximum amount permitted by law), (B) refunded to the payor thereof, or (C) any combination of the foregoing; (iv) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the “Maximum Rate”), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (v) no Borrower nor any Restricted Loan Party shall have any action against Agent or any Lender for any damages arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Obligations shall remain at the Maximum Rate until each Lender shall have received the amount of interest which such Lender would have received during such period on such Obligations had the rate of interest not been limited to the Maximum Rate during such period.
(d) Conversion or Continuation. Subject to the other provisions of this Agreement, including, without limitation, satisfying the conditions set forth in Section 2.2, Borrowers shall have the option to (i) convert at any time all or any part of outstanding Loans equal to $500,000 and integral multiples of $100,000 in excess of that amount from Base Rate Loans to SOFR Loans or (ii) upon the expiration of any Interest Period applicable to a SOFR Loan, to (A) continue all or any portion of such SOFR Loan equal to $500,000 and integral multiples of $100,000 in excess of that amount as a SOFR Loan or (B) convert all or any portion of such SOFR Loan to a Base Rate Loan. The succeeding Interest Period(s) of such continued or converted Loan commence on the last day of the Interest Period of the Loan to be continued or converted; provided that no outstanding Loan may be continued as, or be converted into, a SOFR Loan, when any Event of Default or Default has occurred and is continuing.
The Borrowing Agent shall deliver a Continuation/Conversion Notice with respect to any such conversion/continuation to Agent no later than 2:00 p.m. (New York City time) at least three (3) Business Days in advance of the proposed conversion/continuation date. The Continuation/Conversion Notice with respect to such conversion/continuation shall certify: (i) the proposed conversion/continuation date (which shall be a Business Day); (ii) the amount of the Loan to be converted/continued; (iii) the nature of the proposed conversion/continuation; (iv) in the case of conversion to, or a continuation of, a SOFR Loan, the requested Interest Period; (v) that no Default or Event of Default has occurred and is continuing or would result from the proposed conversion/continuation; and (vi) that all conditions to make Loans as set forth in Section 3.2 have been satisfied.
In lieu of delivering a Continuation/Conversion Notice with respect to any such conversion or continuation, the Borrowing Agent may give Agent telephonic notice by the required time of any proposed conversion/continuation under this Section 3.2(d) (in such telephonic notice the Borrowing Agent shall certify to the items set forth above with respect to the Continuation/Conversion Notice); provided that such telephonic notice shall be promptly confirmed in writing by delivery of a Continuation/Conversion Notice (in form and substance described herein) with respect to such conversion/continuation to Agent on or before the proposed conversion/continuation date. Once given, the Borrowing Agent shall be bound by such telephonic notice. Upon the expiration of an Interest Period for a SOFR Loan, in the absence of a new Continuation/Conversion Notice or a telephonic notice submitted to Agent not less than three (3) Business Days prior to the end of such Interest Period, the applicable SOFR Loan shall be automatically converted to a Base Rate Loan.
Neither Agent nor any Lender shall incur any liability to any Borrower or any other Loan Party in acting upon any telephonic notice or a Continuation/Conversion Notice referred to above that Agent believes in good faith to have been given by an officer or other person authorized to act on behalf of any Borrower or for otherwise acting in good faith under this Section 2.2(d).
This Section 2.2(d) shall not apply to Swingline Loans, which may not be converted or continued.
2.3 Fees.
(a) Unused Commitment Fee. Borrowers shall pay to Agent, quarterly in arrears on the first day of each fiscal quarter beginning after the Closing Date, for the benefit of the Lenders, a fee in an amount equal to (i) (x) the sum of, for each day during the applicable fiscal quarter (A) the Aggregate Revolving Loan Commitment as of such day minus (B) the outstanding principal balance of the Revolving Loan as of such day, plus (C) the face amount of the Letter of Credit Reserve as of such day, divided by (y) the number of days in such fiscal quarter, multiplied by (ii) the Adjusted Applicable Margin for the Unused Commitment Fee in effect during such fiscal quarter. Such fee shall be calculated on the basis of a three hundred sixty-five (365) or three hundred sixty-six (366) day year, as applicable, for the actual number of days elapsed.
(b) Letter of Credit Fees. Borrowers shall pay to Agent a fee with respect to the Lender Letters of Credit (i) on the first day of each fiscal quarter beginning after the Closing Date, for the benefit of all Lenders with a Revolving Loan Commitment (based on their respective Pro Rata Share of the Aggregate Revolving Loan Commitment), in an amount equal to the average daily amount of Letter of Credit Liability outstanding during the fiscal quarter then most recently ended multiplied by the Adjusted Applicable Margin for SOFR Loans as in effect on the date on which the fee is payable and (ii) for the account of Agent or such Lender issuing such Lender Letter of Credit, a fronting fee accruing at a rate per annum equal to 0.125% on the maximum undrawn face amount of such Lender Letter of Credit upon issuance and upon any extension thereof, together with such issuer’s standard documentary and processing charges in connection with the issuance, amendment, cancellation, negotiation, drawing under or transfer of the Lender Letter of Credit. Such fees will be calculated on the basis of a three hundred sixty (360) day year for the actual number of days elapsed and will be payable quarterly in arrears on the first day of each quarter.
(c) Other Fees and Expenses. Borrowers shall pay to Agent, for its own account, all charges for returned items and all other bank charges incurred by Agent, as well as Agent’s standard wire transfer charges for each wire transfer made under this Agreement.
(d) Fee Letter. Borrowers shall pay to ING Capital the fees specified in that certain letter agreement dated as of the Closing Date between Borrowers and ING Capital (the “Fee Letter”).
2.4 Prepayments.
(a) Mandatory Prepayments.
(i) Over Formula Advance. At any time that the Aggregate Revolving Credit Exposure exceeds the Maximum Revolving Loan Amount (an “Over Formula Advance”), Borrowers shall immediately repay the Revolving Loan to the extent necessary to eliminate the Over Formula Advance.
(ii) Dispositions. Within five (5) Business Days of receipt by any Borrower of the net cash proceeds (net of taxes, costs and expenses paid in connection therewith, and indebtedness required to be repaid in connection therewith) of any Disposition of any Collateral, to the extent that, so long as no Event of Default has occurred in is continuing, such net proceeds of such Dispositions exceed $5,000,000 in the aggregate in any fiscal year, Borrowers shall prepay the Obligations in an amount equal to such proceeds. All such prepayments shall be applied to the Loans in accordance with Section 2.4(d). Notwithstanding the foregoing and provided no Event of Default has occurred and is continuing, the prepayment described in this Section 2.4(a)(ii) shall not be required to the extent a Borrower reinvests the net proceeds of such Disposition in productive assets of a kind then used or usable in the business of such Borrower within one hundred eighty (180) days after the date of such Disposition (or enters into a binding commitment therefor within such one hundred eighty (180) day period and subsequently makes such reinvestment within ninety (90) days of the end of such one hundred eighty (180) day period); provided that (A) Borrowers remit such net proceeds to a Deposit Account that is subject to a Control Agreement on the date the applicable Borrower receives such net proceeds and (B) Borrowers notify Agent in writing of (x) their intent to reinvest such net proceeds at the time such net proceeds are received and (y) the completion of such reinvestment when such reinvestment occurs.
(iii) Prepayments from Proceeds of Casualty Events. Not later than three (3) Business Days following the receipt by any Restricted Loan Party of the proceeds of insurance, condemnation award, or other compensation in respect of any Casualty Event or series of related Casualty Events affecting any Collateral, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the net cash proceeds of such Casualty Event(s) to the extent the aggregate amount of such net cash proceeds exceed $5,000,000 during any fiscal year. Notwithstanding the foregoing and provided no Event of Default has occurred and is continuing, such prepayment shall not be required to the extent a Borrower reinvests the net proceeds of such Casualty Event in productive assets of a kind then used or usable in the business of such Restricted Loan Party, within one hundred eighty (180) days after the date of such Casualty Event (or enters into a binding commitment thereof within said one hundred eighty (180) day period and subsequently makes such reinvestment within ninety (90) days of the end of the initial one hundred eighty (180) day period); provided that (A) Borrowers remit such net cash proceeds to a Deposit Account that is subject to a Control Agreement on the date the applicable Borrower receives such net cash proceeds and (B) Borrowers notify Agent in writing of (x) their intent to reinvest at the time such proceeds are received and (y) the completion of such reinvestment and when such reinvestment occurs.
(iv) Prepayments from Indebtedness. Immediately upon the receipt by any Restricted Loan Party of any cash proceeds from the incurrence of any Indebtedness (other than Indebtedness permitted under Section 7.1 hereof), Borrowers shall prepay the Loans in an amount equal to such cash proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses. All such prepayments shall be applied to the Loans in accordance with Section 2.4(d). The foregoing shall not be deemed to be implied consent to any such issuance or incurrence of Indebtedness or Equity Interests prohibited by the terms and conditions hereof.
(v) Prepayments from Equity Interests. Immediately upon the receipt by any Restricted Loan Party of any cash proceeds from a capital contribution to, or the issuance of any Equity Interests of, any Restricted Loan Party (other than Equity Interests issued pursuant to any employee stock or stock option compensation plan), Borrowers shall prepay the Loans in an amount equal to such cash proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, in each case, paid to non-Affiliates, including reasonable legal fees and expenses. All such prepayments shall be applied to the Loans in accordance with Section 2.4(d). The foregoing shall
not be deemed to be implied consent to any such issuance of Equity Interests prohibited by the terms and conditions hereof.
(b) Voluntary Prepayments and Repayments. Borrowers may, at any time upon not less than three (3) Business Days prior notice to Agent, prepay the Revolving Loan in an aggregate minimum amount of $100,000 and integral multiples of $50,000. Any prepayment of the Obligations permitted in this Section 2.4(b) shall be subject to the payment of all fees set forth in Section 2.3, including, without limitation, the payment of any amounts owing pursuant to Section 2.12 resulting from such prepayment. In the event any Lender Letters of Credit are outstanding at the time that any Borrower prepays the Obligations and desires to terminate the Revolving Loan Commitment, Borrowers shall cause Agent and each Lender to be released from all liability under any Lender Letters of Credit or, at Agent’s option, Borrowers shall (i) deposit with Agent for the benefit of all Lenders with a Revolving Loan Commitment cash in an amount equal to one hundred and three percent (103%) of the aggregate outstanding Letter of Credit Reserve to be available to Agent to reimburse payments of drafts drawn under such Lender Letters of Credit and pay any fees and expenses related thereto and (ii) prepay the fees payable under Section 2.3(b) with respect to such Lender Letters of Credit for the full remaining terms of such Lender Letters of Credit. Upon termination of any such Lender Letter of Credit, the unearned portion of such prepaid fee attributable to such Lender Letter of Credit shall be refunded to Borrower.
Borrowers shall repay to the applicable Swingline Lender each Swingline Loan made by such Swingline Lender on the earlier to occur of (i) the date that is five Business Days after such Swingline Loan is made and (ii) the Termination Date; provided that on each date that a Revolving Advance is made, Borrowers shall repay all Swingline Loans then outstanding and the proceeds of any such borrowing shall be applied by Agent to repay any Swingline Loans outstanding. At any time that there shall exist a Defaulting Lender, immediately upon the request of the applicable Swingline Lender, Borrowers shall repay the outstanding Swingline Loans made by such Swingline Lender in an amount sufficient to eliminate such Defaulting Lender’s Pro Rata Share of outstanding Swingline Loans made by such Swingline Lender other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
(c) Payments on Business Days. Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, the payment may be made on the next succeeding Business Day and such extension of time shall be included in the computation of the amount of interest or fees due hereunder.
(d) Application of Prepayment Proceeds. With respect to the prepayments described in Sections 2.4(b), such prepayments shall be applied to payment of principal in respect of the Revolving Loan until all Obligations in respect of the Revolving Loan have been repaid in full.
2.5 Term of this Agreement. This Agreement shall be effective until the date on which the Obligations (including any then due and owing indemnity obligations under this Agreement) have been indefeasibly paid in full in cash (or cash collateralized on reasonably satisfactory terms), and the Revolving Loan Commitments have been terminated (all of which shall occur in accordance with the terms of the Loan Documents). The Revolving Loan Commitments shall automatically terminate (unless earlier terminated pursuant to the terms hereunder) on the Termination Date, and all Obligations shall become immediately due and payable without notice or demand on such date. Notwithstanding any termination, until all Obligations have been fully paid and satisfied, Agent, on behalf of itself and the Lenders, shall be entitled to retain security interests in and liens upon all Collateral, and even after
payment of all Obligations hereunder, Borrowers’ obligation to indemnify Agent and each Lender in accordance with the terms hereof shall continue.
2.6 Termination or Reduction of Commitments.
(a) Optional. Borrowers may, upon notice to Agent, terminate the unused portion of the Revolving Loan Commitments, or from time to time reduce the unused Revolving Loan Commitments; provided that (i) each such notice shall be in writing and must be received by Agent at least three (3) Business Days prior to the effective date of such termination or reduction, and shall be irrevocable, (ii) any such partial reduction shall be in an aggregate amount of $1,000,000 or a larger multiple of $500,000 and (c) Borrowers shall not terminate or reduce the Revolving Loan Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Aggregate Revolving Credit Exposure exceeding the Maximum Revolving Loan Amount.
(b) Application of Commitment Reductions. Agent will promptly notify the Lenders of any termination or reduction of the Revolving Loan Commitments pursuant to this Section. Upon any reduction of unused Revolving Loan Commitments, the Revolving Loan Commitment of each Lender shall be reduced by such Lender’s ratable share of the amount of such reduction.
2.7 Payments Generally.
(a) All payments made by Borrowers with respect to the Obligations shall be made without deduction, defense, setoff or counterclaim. All payments to Agent hereunder shall be made in U.S. Dollars, and unless otherwise directed by Agent, to Agent’s Account. All payments remitted to Agent’s Account shall be distributed to each Lender based on its Pro Rata Share in respect of the relevant Loan (or other applicable share as provided herein) in like funds as received by wire transfer to such Lender. All payments remitted to Agent’s Account in respect of the Obligations shall be credited to the Obligations on the same Business Day as such payments are received by Agent in immediately available funds; provided, however, that payments received by Agent after 3:00 p.m. (New York City time) shall be deemed received on the next Business Day. Borrowers shall notify Agent by Noon (EST) if they intend to make any voluntary payment or repayment of the Obligations to the Agent’s Account. Agent shall promptly distribute to each Lender its ratable share (or other applicable share as provided herein) of each payment received by Agent from Borrowers in respect of the Obligations in like funds as received by wire transfer to such Lender’s applicable lending office (or otherwise distribute such payment in like funds as received to the Person or Persons entitled thereto as provided herein).
(b) In its sole discretion, Agent may elect to honor the automatic requests by Borrowers for Revolving Advances for all principal, Lender Letter of Credit and Swingline Loan reimbursement obligations, interest, fees, compensation and any other amounts due hereunder or under any of the other Loan Documents on their applicable due dates pursuant to Section 2.1(c), and the proceeds of each such Revolving Advance, if made, shall be applied as a direct payment of the relevant Obligation. To the extent such amounts exceed the Maximum Revolving Loan Amount of all Lenders, or if Agent elects to bill Borrowers for any amount due hereunder or under any of the other Loan Documents, such amount shall be immediately due and payable with interest thereon accruing from the applicable due date.
2.8 Yield Protection.
(a) Capital Adequacy, Liquidity and Other Adjustments. In the event any Lender shall have determined that the adoption after the date hereof of any law, treaty, governmental (or quasi-
governmental) rule, regulation, guideline or order regarding capital adequacy, liquidity, reserve requirements or similar requirements or compliance by such Lender or any corporation controlling such Lender with any request or directive regarding capital adequacy, liquidity, reserve requirements or similar requirements (whether or not having the force of law and whether or not failure to comply therewith would be unlawful) from any central bank or governmental agency or body having jurisdiction does or shall have the effect of increasing the amount of capital, reserves or other funds required to be maintained by such Lender or any corporation controlling such Lender and thereby reducing the rate of return on such Lender’s or such corporation’s capital as a consequence of its obligations hereunder, then Borrowers shall within thirty (30) days after notice and demand from such Lender (together with the certificate referred to in Section 2.8(c) and with a copy to Agent) pay to Agent, for the account of such Lender, additional amounts sufficient to compensate such Lender for such reduction.
(b) Increased Costs. If, after the date hereof, the introduction of, change in or interpretation of any law, rule, regulation, treaty or directive would (i) impose or increase reserve, special deposit, compulsory loan, insurance charge or similar requirements against the assets of, deposits with or for the account of, or credit extended or participated in by, any Lender, or (ii) impose on any Lender or any Issuing Lender any other condition, cost or expense (other than Tax Liabilities) affecting this Agreement or Loans made by such Lender or any Lender Letter of Credit or participation therein; and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to increase the cost to such Lender or such Issuing Lender of participating in, issuing or maintaining any Lender Letter of Credit or Swingline Loan (or of maintaining its obligation to participate in or to issue any Lender Letter of Credit or Swingline Loan), or to reduce the amount of any sum received or receivable by such Lender or Issuing Lender hereunder, then Borrowers shall from time to time within fifteen (15) days after notice and demand from such affected Lenders (together with the certificate referred to in Section 2.8(c) and with a copy to Agent) pay to Agent, for the account of such affected Lenders, additional amounts sufficient to compensate such Lenders for such increased cost or reduction suffered.
Notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall be deemed to be a change in law occurring after the date hereof for purposes of this Agreement (including without limitation for purposes of this Section 2.8 and for purposes of Section 2.10, regardless of the date enacted, adopted or issued).
(c) Certificate for Reimbursement. A certificate of a Lender or Issuing Lender setting forth the amount or amounts necessary to compensate such Lender or Issuing Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section (including a description of the events triggering such additional costs) and delivered to Borrowers, shall be conclusive absent manifest error.
(d) Delay in Requests. Failure or delay on the part of any Lender or Issuing Lender to demand compensation pursuant to this Section 2.8 shall not constitute a waiver of such Lender’s or Issuing Lender’s right to demand such compensation; provided that Borrowers shall not be required to compensate a Lender or Issuing Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that such Lender or Issuing Lender, as the case may be, notifies Borrowers of the event giving rise to such increased costs or reductions, and of such
Lender’s or Issuing Lender’s intention to claim compensation therefor (except that, if the event giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
2.9 Taxes.
(a) No Deductions. Any and all payments or reimbursements made hereunder shall be made free and clear of and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings imposed by a Governmental Authority, and all interest, penalties and other liabilities with respect thereto (all such taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto referred to herein as “Tax Liabilities”), except as required by law. If Borrowers shall be required by law to deduct or withhold any such Tax Liabilities from or in respect of any sum payable hereunder to Agent or any Lender, Borrowers shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax Liability is an Indemnified Tax, then the sum payable hereunder shall be increased as may be necessary so that, after making all required deductions or withholdings, Agent or such Lender receives an amount equal to the sum it would have received had no such deductions been made.
(b) Changes in Tax Laws. In the event that, subsequent to the Closing Date, (1) any changes in any existing law, regulation, treaty or directive or in the interpretation or application thereof or (2) any new law, regulation, treaty or directive enacted or any interpretation or application thereof would subject Agent, Issuing Lender or any other Lender to any Tax Liabilities (other than Indemnified Taxes and Excluded Taxes) with respect to this Agreement, the other Loan Documents or any Loans made or Lender Letters of Credit issued hereunder, and the result of any of the foregoing is to increase the cost to Agent or such Lender of issuing any Lender Letter of Credit or making or continuing any Loan hereunder, as the case may be, or to reduce any amount receivable hereunder; then, in any such case, Borrowers shall promptly pay to Agent or such Lender, upon its notice and demand, any additional amounts necessary to compensate Agent or such Lender, on an after-tax basis, for such additional cost or reduced amount receivable, as determined by Agent or such Lender with respect to this Agreement or the other Loan Documents; provided that Borrowers shall not be required to compensate Agent or any Lender pursuant to this Section for any increased costs incurred or reductions suffered more than nine (9) months prior to the date that Agent or such Lender, as the case may be, notifies Borrowers of the event giving rise to such increased costs or reductions, and of Agent’s or such Lender’s intention to claim compensation therefor (except that, if the event giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof). If Agent or any Lender becomes entitled to claim any additional amounts pursuant to this subsection, it shall promptly notify Borrowers of the event by reason of which Agent or such Lender has become so entitled (with any such Lender concurrently notifying Agent). A certificate as to any additional amounts payable pursuant to the foregoing sentence submitted by Agent or any Lender to Borrower, setting forth in reasonable detail the basis for the calculation thereof, shall, absent manifest error, be final, conclusive and binding for all purposes.
(c) Status of Lenders. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to Borrowers, at the time or times reasonably requested by Borrowers or Agent, such properly completed and executed documentation reasonably requested by Borrowers or Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrowers or Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by Borrowers or Agent as will enable Borrowers or Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Without limiting the generality of the foregoing, any Lender that is a United States person (as defined in Section 7701(a)(30) of the IRC) shall deliver to Borrowers and Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrowers or Agent), executed copies of Internal Revenue Service Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax. Each Lender organized under the laws of a jurisdiction outside the United States (a “Foreign Lender”) as to which payments to be made under this Agreement are exempt from United States withholding tax or are subject to United States withholding tax at a reduced rate under an applicable statute or tax treaty shall provide to Borrowers and Agent (1) a properly completed and executed Internal Revenue Service Form W-8BEN, Form W-8BEN-E, IRS Form W-8IMY, Form W-8ECI, W-9, certification to the effect that such Foreign Lender is entitled to the benefits of the exemption for portfolio interest under Section 881(c) of the IRC, and/or other applicable form, certificate or document prescribed by the Internal Revenue Service of the United States of America or reasonably requested by Borrowers or Agent certifying as to such Foreign Lender’s entitlement to such exemption or reduced rate of withholding with respect to payments to be made to such Foreign Lender under this Agreement (a “Certificate of Exemption”), or (2) a letter from any such Foreign Lender stating that it is not entitled to any such exemption or reduced rate of withholding (a “Letter of Non-Exemption”). Prior to becoming a Lender under this Agreement and within fifteen (15) days after a reasonable written request of Borrowers or Agent from time to time thereafter, each Foreign Lender that becomes a Lender under this Agreement shall provide a Certificate of Exemption or a Letter of Non-Exemption to Borrowers and Agent. If a Foreign Lender is entitled to an exemption with respect to payments to be made to such Foreign Lender under this Agreement (or to a reduced rate of withholding) and does not provide a Certificate of Exemption to Borrowers and Agent within the time periods set forth in the preceding paragraph, Borrowers or Agent shall withhold taxes from payments to such Foreign Lender at the applicable statutory rates and Borrowers shall not be required to pay any additional amounts as a result of such withholding; provided, however, that all such withholding shall cease upon delivery by such Foreign Lender of a properly completed and executed Certificate of Exemption to Borrowers and Agent.
Without limiting the foregoing, if any payment made hereunder or under any other Loan Document would be subject to United States withholding tax imposed pursuant to FATCA if the recipient of such payment were to fail to comply with applicable reporting and other requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the IRC, as applicable), such recipient shall deliver to Borrowers and Agent, at the time or times prescribed by applicable law or as reasonably requested by Borrowers or Agent, (1) two accurate, complete and signed certifications prescribed by applicable law and/or reasonably satisfactory to Borrowers and Agent that establish that such payment is exempt from United States withholding tax imposed pursuant to FATCA and (2) any other documentation reasonably requested by Borrowers or Agent sufficient for Borrowers and Agent to comply with their obligations under FATCA and to determine that such recipient has complied with such applicable reporting and other requirements of FATCA or to determine the amount to setoff, deduct and withhold from such payment. Solely for purposes of this clause (c), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Such recipient shall indemnify the Agent for any taxes attributable to such recipient that are paid or payable by the Agent. Each Lender hereby authorizes Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by Agent to such Lender from any other source against any amount due to Agent under this Section 2.9(c). The terms of this Section 2.9(c) shall survive the termination of this Agreement.
(d) Stamp Taxes & Other Taxes. The Loan Parties shall pay any present or future stamp or documentary taxes or any other excise or property taxes, charges, or similar levies which arise from any payment made hereunder or from the execution, delivery, or registration of, or otherwise with respect to, this Agreement or any Note, except any such taxes that are Other Connection Taxes imposed with respect to an assignment (collectively referred to herein as “Other Taxes”). Without duplication of the foregoing or Section 2.9(a), Borrowers and each of the other Loan Parties shall indemnify Agent and each Lender for the full amount of Indemnified Taxes (including, without limitation, any Indemnified Taxes imposed by any jurisdiction on amounts payable under this Section 2.9(d)) paid by Agent or such Lender and any liability (including penalties, interest, and reasonable, out-of-pocket expenses, except those arising from the gross negligence or willful misconduct of such Lender or Agent) arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally asserted. A certificate as to the amount of such payment or liability delivered to the Borrowers by Lender, setting forth in reasonable detail the basis for the calculation thereof, shall be final, conclusive and binding for all purposes absent manifest error. This indemnification shall be made within thirty (30) days from the date Agent or any Lender makes written demand therefor.
(e) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Tax Liabilities as to which it has been indemnified pursuant to this Section (including by the payment of additional amounts pursuant to this Section), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section with respect to the Tax Liabilities giving rise to such refund), net of all out-of-pocket expenses (including Tax Liabilities) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (e) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (e), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (e) the payment of which would place the indemnified party in a less favorable net after-tax position than the indemnified party would have been in if the Tax Liabilities subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax Liabilities had never been paid. This paragraph shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its taxes that it deems confidential) to the indemnifying party or any other Person.
(f) Mitigation. If any Lender requires Borrowers to pay any Indemnified Taxes or additional amounts to Lender or any Governmental Authority for the account of Lender pursuant to this Section 2.9, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this Section 2.9 in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrowers hereby agree to pay all reasonable, out-of-pocket costs and expenses incurred by such Lender in connection with any such designation or assignment.
2.10 Determining Rates; Illegality.
(a) Inability to Determine Rates. Subject to Section 2.13, if, on or prior to the first day of any Interest Period for any SOFR Loan:
(i) Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof, or
(ii) the Requisite Lenders determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Adjusted Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, and the Requisite Lenders have provided notice of such determination to Agent,
Agent will promptly so notify the Borrowing Agent and each Lender.
Upon notice thereof by Agent to the Borrowing Agent, any obligation of the Lenders to make SOFR Loans, and any right of Borrowers to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended (to the extent of the affected SOFR Loans or affected Interest Periods) until Agent (with respect to clause (ii), at the instruction of the Requisite Lenders) revokes such notice. Upon receipt of such notice, (x) the Borrowing Agent may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected SOFR Loans or affected Interest Periods) or, failing that, Borrowers will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans in the amount specified therein and (y) any outstanding affected SOFR Loans will be deemed to have been converted into Base Rate Loans at the end of the applicable Interest Period. Upon any such conversion, Borrowers shall also pay accrued interest on the amount so converted, together with any additional amounts required pursuant to Section 2.12. Subject to Section 2.13, if Agent determines (which determination shall be conclusive and binding absent manifest error) that “Adjusted Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by Agent without reference to clause (c) of the definition of “Base Rate” until Agent revokes such determination.
(b) Illegality. Notwithstanding anything to the contrary herein or in any other Loan Document, if any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, or to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR, then, upon notice thereof by such Lender to the Borrowing Agent (through Agent), (i) any obligation of the Lenders to make SOFR Loans, and any right of Borrowers to continue SOFR Loans or to convert Base Rate Loans to SOFR Loans, shall be suspended, and (ii) the interest rate on which Base Rate Loans shall, if necessary to avoid such illegality, be determined by Agent without reference to clause (c) of the definition of “Base Rate”, in each case until such Lender notifies Agent and the Borrowing Agent that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (A) Borrowers shall, if necessary to avoid such illegality, upon demand from any Lender (with a copy to Agent), prepay or, if applicable, convert all SOFR Loans to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by Agent without reference to clause (c) of the definition of “Base Rate”), on the last day of the Interest Period therefor, if all affected Lenders may lawfully continue to maintain such SOFR Loans to such day, or immediately, if any Lender may not lawfully continue to maintain such SOFR Loans to such day, and (B) if necessary to avoid such illegality, Agent
shall during the period of such suspension compute the Base Rate without reference to clause (c) of the definition of “Base Rate,” in each case until Agent is advised in writing by each affected Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon SOFR, the Term SOFR Reference Rate, Adjusted Term SOFR or Term SOFR. Upon any such prepayment or conversion, Borrowers shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.12.
2.11 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.12, or requires Borrowers to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.9, then such Lender shall (at the request of the Borrowing Agent) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.8 or 2.9, as the case may be, in the future, and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrowers hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment
(b) Replacement of Lenders. If any Lender requests compensation under Section 2.8, or if Borrowers are required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.9 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with paragraph (a) of this Section, then Borrowers may, at their sole expense and effort, upon notice to such Lender and Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 9.5), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.8, Section 2.9 or Section 2.12) and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i) Borrowers shall have paid to Agent the assignment fee (if any) specified in Section 9.05;
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 2.12) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrowers (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.8 or payments required to be made pursuant to Section 2.9, such assignment will result in a reduction in such compensation or payments thereafter; and
(iv) such assignment does not conflict with applicable law.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrowers to require such assignment and delegation cease to apply. Notwithstanding anything in this Section to the
contrary, the Lender that acts as Agent may not be replaced hereunder except in accordance with the terms of Section 9.1(g).
2.12 Compensation. In the event of (a) the payment of any principal of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any SOFR Loan other than on the last day of the Interest Period applicable thereto (including as a result of an Event of Default), (c) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in any notice delivered pursuant hereto, or (d) the assignment of any SOFR Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrowers pursuant to Section 2.11(b), then, in any such event, Borrowers shall compensate each Lender for any loss, cost and expense attributable to such event, including any loss, cost or expense arising from the liquidation or redeployment of funds. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section (including a description of the events triggering such additional costs) shall be delivered to the Borrowing Agent and shall be conclusive absent manifest error. Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.
2.13 Benchmark Replacement Setting.
(a) Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Borrowing Agent and the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Requisite Lenders.
(b) Benchmark Replacement Conforming Changes. In connection with the use, administration, adoption or implementation of a Benchmark Replacement, Agent will have the right to make Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(c) Notices; Standards for Decisions and Determinations. Agent will promptly notify the Borrowing Agent and the Lenders of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Conforming Changes in connection with the use, administration, adoption or implementation of a Benchmark Replacement. Agent will promptly notify the Borrowing Agent of the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.13(d). Any determination, decision or election that may be made by Agent or, if applicable, any Lender (or group of Lenders)
pursuant to this Section 2.13, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.13.
(d) Unavailability of Tenor of Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Agent in its reasonable discretion or (B) the administrator of such Benchmark or the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks, then Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable, non-representative, non-compliant or non-aligned tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative or in compliance with or aligned with the International Organization of Securities Commissions (IOSCO) Principles for Financial Benchmarks for a Benchmark (including a Benchmark Replacement), then Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(e) Benchmark Unavailability Period. Upon the Borrowing Agent’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowing Agent may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrowing Agent will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.
2.14 Margin Adjustment and Unused Commitment Fee Adjustment.
(a) Each of the Applicable Margin and the Unused Commitment Fee will be adjusted based on the information set forth in the KPI Compliance Certificate most recently furnished to Agent and the Sustainability Structuring Agent pursuant to the Reporting Rider as set forth below and at the times specified in paragraph (b) below:
(i) With respect to Green House Gas for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table;
(ii) With respect to Renewable Corn Oil Production for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or
remain unadjusted, and the Applicable Margin with respect to the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table;
(iii) With respect to Sustainable Technology for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Applicable Margin with respect to the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table;
(iv) With respect to Total Recordable Injury Rate for any calendar year, the Applicable Margin with respect to Loans shall be increased or reduced by 2.5 basis points (0.025%) or remain unadjusted, and the Applicable Margin with respect to the Unused Commitment Fee shall be increased or reduced by 0.5 basis points (0.005%) or remain unadjusted, in each case as set forth in the Sustainability Table; and
(v) With respect to any calendar year in which Unsuccessful Completion has occurred, the Sustainability Margin Adjustment with respect to Loans and the Sustainability Margin Adjustment with respect to the Unused Commitment Fee shall be zero.
(vi) Notwithstanding anything in this Agreement to the contrary, if (x) the Loan Parties fail to deliver the Sustainability Documents by the deadline set forth in paragraph (p) of the Reporting Rider for two (2) consecutive Fiscal Years or (y) if an Unsuccessful Completion occurs in two (2) consecutive Fiscal Years, then (A) the provisions of this Section 2.14 shall thereafter cease to be effective, (B) the Loan Parties will no longer be required to comply with paragraph (p) of the Reporting Rider and (C) this Loan Agreement and the credit facility provided for herein shall no longer be deemed to be a sustainability-linked loan for any purposes.
(b) In determining the Adjusted Applicable Margin:
(i) any applicable Sustainability Margin Adjustment determined by reference to a particular calendar year applies from the date which falls three (3) Business Days after receipt by Agent and the Sustainability Structuring Agent of the Sustainability Documents in accordance with paragraph (p) of the Reporting Rider relating to that calendar year until the date which falls three (3) Business Days after the earlier of (x) the receipt by Agent and the Sustainability Structuring Agent of the Sustainability Documents in accordance with paragraph (p) of the Reporting Rider for the immediately succeeding calendar year and (y) the date by which such Sustainability Documents are required to be furnished to Agent;
(ii) in the event no Sustainability Documents are received by Agent and the Sustainability Structuring Agent for a particular calendar year in accordance with paragraph (p) of the Reporting Rider, an Unsuccessful Completion shall be deemed to have occurred.
(iii) subject to clause (a)(v) above, any applicable Sustainability Margin Adjustment shall apply until the delivery of the subsequent KPI Compliance Certificate pursuant to the Reporting Rider; and
(iv) (A) only one KPI Compliance Certificate may be delivered in respect of any calendar year, and (B) any Sustainability Margin Adjustment shall be iterative and shall not be cumulative year-over-year, such that at no point will the Sustainability Margin Adjustment for Loans in
any calendar year for Loans exceed 2.5 basis points (0.025%) per annum with respect to any given KPI Metric and at no point will the Sustainability Margin Adjustment in any calendar year for the Unused Commitment Fee exceed 0.5 basis points (0.005%) per annum with respect to any given KPI Metric, and accordingly, the Applicable Margin for Loans will never be reduced or increased, in the aggregate, by more than 10 basis points (0.10%), and the Applicable Margin for the Unused Commitment Fee will never be reduced or increased, in the aggregate, by more than 2 basis points (0.02%).
(c) Borrowers, the Sustainability Structuring Agent and Agent (acting on the instructions of the Requisite Lenders) may from time to time, following consultation in good faith on the basis of a written explanation provided by Borrowers or Holdings setting out in detail the relevant events or circumstances, agree in respect of any calendar year of any adjustment to:
(i) the method of calculation of any Key Performance Indicator or the third-party provider therefore or the provider of data for the purposes of determining such Key Performance Indicator; or
(ii) any Target Score,
in each case as required to take into account changes in the methodology, availability of any Key Performance Indicator or Target Score.
(d) If (i) (A) any Borrower, any Guarantor or any Lender becomes aware of any material inaccuracy in the Sustainability Margin Adjustment or the KPI Metrics as reported on the applicable KPI Compliance Certificate (a “KPI Compliance Certificate Inaccuracy”) and, not later than thirty (30) Business Days after obtaining knowledge thereof delivers a written notice to Agent describing such KPI Compliance Certificate Inaccuracy in reasonable detail (who shall furnish a copy to each of the Lenders and Borrowers) or (B) Borrowers and the Lenders agree that there was a KPI Compliance Certificate Inaccuracy at the time of delivery of the relevant KPI Compliance Certificate and (ii) a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in an increase in the Adjusted Applicable Margin for such period, then Borrowers shall be obligated to pay to Agent for the account of the Lenders, promptly on demand by Agent (acting at the direction of the Requisite Lenders) (or, after the occurrence of an actual or deemed entry of an order for relief with respect to Borrowers under any Debtor Relief Law, automatically and without further action by Agent or any Lender), but in no event less than ten (10) Business Days after any Borrower has received written notice of, or has agreed in writing that there was, a KPI Compliance Certificate Inaccuracy, an amount equal to: (x) the excess of the amount of interest and fees that should have been paid for such period over (y) the amount of interest and fees actually paid for such period. If any Borrower or any Guarantor becomes aware of any KPI Compliance Certificate Inaccuracy and, in connection therewith, if a proper calculation of the Sustainability Margin Adjustment or the KPI Metrics would have resulted in a decrease in the Adjusted Applicable Margin for such period, then, upon receipt by Agent of notice from such Borrower of such KPI Compliance Certificate Inaccuracy (which notice shall include corrections to the calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable), commencing on the Business Day following receipt by Agent of such notice, the Adjusted Applicable Margin shall be adjusted to reflect the corrected calculations of the Sustainability Margin Adjustment or the KPI Metrics, as applicable.
(e) To the extent any event occurs (which would include, without limitation, a material disposal or material acquisition) which, in the opinion of Borrowers and the Sustainability Structuring Agent, acting reasonably and in good faith, means that one or more of the KPI Metrics is no
longer appropriate, then Borrowers and the Sustainability Structuring Agent in consultation with Agent will propose adjustments to the baseline(s) and target(s) as necessary and will be subject to approval from the Requisite Lenders. In such a scenario, the Adjusted Applicable Margin each shall be adjusted to reflect the corrected calculations of such KPI Metrics.
(f) It is understood and agreed that any KPI Compliance Certificate Inaccuracy shall not constitute a Default or Event of Default, provided that Borrowers comply with the terms of this Section 2.14 with respect to such KPI Compliance Certificate Inaccuracy. Notwithstanding anything to the contrary herein, unless such amounts shall be due upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under any Debtor Relief Law, (i) any additional amounts required to be paid pursuant to clause (d) above shall not be due and payable until a written demand is made for such payment by Agent in accordance with clause (d) above, (ii) any nonpayment of such additional amounts prior to such demand for payment by Agent shall not constitute a Default (whether retroactively or otherwise), and (iii) none of such additional amounts shall be deemed overdue prior to such a demand or shall accrue interest at the Default Rate prior to such a demand.
(g) Agent and the Sustainability Structuring Agent shall not have any responsibility for (or liability in respect of) reviewing, auditing or otherwise evaluating any calculation by Borrowers or any Guarantor of any Sustainability Margin Adjustment (or for the KPI Metrics or any of the other data or computations that are part of or related to any such calculation) set forth in any KPI Compliance Certificate, or for evaluating or determining any KPI Compliance Certificate Inaccuracy (and Agent may rely conclusively, and shall not incur any liability in so relying, on any such certificate or related notice, without further inquiry).
2.15 Uncommitted Accordion.
(a) At any time after the Closing Date, on the written request of Borrowers (but subject to the conditions set forth in this Section 2.15), the Aggregate Revolving Loan Commitment may be increased by an amount in the aggregate for all such increases of the Aggregate Revolving Loan Commitment not to exceed $100,000,000 (each such increase, an “Increase”). Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $500,000 in excess thereof (provided that any such Increase may be in an amount equal to, in its entirety, the outstanding balance of available Increases) and at an interest rate equal to the interest margins applicable to Revolving Advances set forth in this Agreement.
(b) Following receipt of any written request under Section 2.15(a), Agent shall promptly notify the Lenders of the requested Increase, and, within ten (10) Business Days after such notification, each Lender shall notify Agent if and to what extent such Lender commits to increase its Revolving Loan Commitment in connection with such Increase. Any Lender not responding within such period shall be deemed to have declined to participate in the requested Increase. If the Lenders, in the aggregate, fail to, or elect not to, commit to the full requested Increase, Eligible Assignees selected by Borrowers may issue additional Revolving Loan Commitments and become Lenders hereunder in order to provide the full requested Increase. Agent may allocate, with the consent of Borrowers (such consent not to be unreasonably withheld, conditioned or delayed), the increased Revolving Loan Commitments among committing Lenders and, if necessary, Eligible Assignees at its discretion. Provided the conditions set forth in clause (d) below are satisfied, the Aggregate Revolving Loan Commitment shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrowers. Agent, Loan Parties, and new and existing Lenders shall
execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Revolving Loan Commitments.
(c) All Revolving Loan Commitments, and all Revolving Advances thereunder, established pursuant to this Section 2.15 shall be on the same terms (as amended from time to time) (including interest rate margin and maturity date, but excluding arrangement, structuring and underwriting fees with respect to such Revolving Loan Commitments and Revolving Advances) as, and pursuant to documentation applicable to, the initial Revolving Loan Commitments and Revolving Advances. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolving Loan Commitments pursuant to this Section 2.15. The Revolving Loan Commitments, and all Revolving Advances thereunder, established pursuant to this Section 2.15 shall constitute Revolving Loan Commitments and Revolving Advances, as applicable, under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Concurrently with any Increase, Borrowers, Agent and the Lenders providing such increase may, at their option, jointly agree to amend Schedule 1.1; provided that no such amendment may result in an increase in the Revolving Loan Commitments or funding obligations of any Lender not participating in such Increase. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolving Loan Commitments. In no event shall the provisions of this Section 2.15 or any other provision of this Agreement or any other Loan Document be deemed to create any obligation on the part of any Lender to agree to any increase in the Revolving Loan Commitments, and Borrowers agree that any election with respect to any such increase shall be at the sole option of each Lender.
(d) No Increase shall be effective unless:
(i) Agent has obtained the commitment of Lenders (or Persons committing to become Lenders concurrently with the incurrence of the Increase) to provide the applicable Increase, it being agreed that no Lender shall have any obligation to commit to provide any Increase and that Agent shall have no liability for the failure to obtain such commitments;
(ii) immediately before and after such Increase (determined on a pro forma basis) (x) no Default or Event of Default shall have occurred and be continuing and (y) the Loan Parties shall be in compliance with Section 6 hereof;
(iii) the representations and warranties of each Loan Party contained in the Loan Documents shall be true and correct in all material respects (without duplication of any materiality or knowledge qualifier contained therein) on and as of the date of such Increase, except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct in all material respects (without duplication of any materiality or knowledge qualifier contained therein) as of such specific date; and
(iv) the Loan Parties shall have delivered such other documents, instruments. legal opinions and agreements as Agent may reasonably require in connection with the applicable Increase.
SECTION 3 CONDITIONS TO LOANS
3.1 Conditions to Initial Loans and Lender Letters of Credit. The obligations of Agent and each Lender to make the initial Loans (including any Swingline Loan being made on the Closing Date) and/or the obligation of Agent or any Lender to issue (or cause the issuance of) the initial Lender Letters of Credit on the Closing Date are subject to satisfaction of all of the terms and conditions set forth below and the accuracy of all the representations and warranties of Borrowers and the other Loan Parties set forth herein and in the other Loan Documents:
(a) Closing Deliveries. Agent’s receipt of the following, each of which shall be originals or telecopies or in electronic format (i.e., “pdf” or “tif”) (followed promptly by originals) unless otherwise specified, each properly executed by a duly authorized officer of the signing parties, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date):
(i) this Agreement, duly executed and delivered by Holdings and Borrowers in form and substance reasonably satisfactory to Agent and each of the Lenders;
(ii) for the account of each Lender that has requested a Revolving Note at least two (2) Business Days prior to the Closing Date, a Revolving Note, as the case may be, each conforming to the requirements hereof and duly executed and delivered by a duly authorized officer of each Borrower;
(iii) a perfection certificate, in form and substance reasonably satisfactory to Agent, duly executed and delivered by each Borrower;
(iv) the Fee Letter, duly executed and delivered by each Borrower;
(v) a Working Capital Schedule, duly executed and delivered by the Borrowers;
(vi) a copy of the Initial KPI Metrics Report; and
(vii) all other documents, instruments, agreements, notes, certificates, orders, authorizations, financing statements, and other documents, each in form and substance satisfactory to Agent, which Agent may reasonably request in advance of the Closing Date.
(b) Security Interests. Agent shall have received satisfactory evidence that all security interests and liens granted to Agent, for the benefit of the Secured Parties, pursuant to this Agreement or the other Loan Documents have been duly perfected and constitute a Prior Security Interest in the Collateral, subject only to Permitted Encumbrances.
(c) Secretary’s Certificates. Agent shall have received a certificate of a duly authorized officer of each Loan Party certifying and acknowledging (1) that attached copies of such Loan Party’s Organizational Documents are true and complete, and in full force and effect, without amendment except as shown, (2) that an attached copy of resolutions authorizing the execution, delivery and performance of the Loan Documents by such Loan Party is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, (3) the names of the officers of each Loan Party authorized to sign this Agreement and each of the other Loan Documents to which any Loan
(d) Fees and Expenses. Borrowers shall have paid all fees, costs and expenses due and payable under this Agreement and the other Loan Documents.
(e) Performance of Agreements. Each Loan Party shall have performed in all material respects all agreements and satisfied all conditions which any Loan Document provides shall be performed by it on or before the Closing Date.
(f) No Prohibition. No order, judgment or decree of any court, arbitrator or Governmental Authority shall purport to enjoin or restrain Agent or any Lender from making any Loans or issuing any Lender Letters of Credit.
(g) No Litigation. There shall not be pending or, to the Knowledge of Borrowers, threatened, any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration by, against or affecting any Loan Party or any property of any Loan Party that has not been disclosed to Agent by the Loan Parties in writing, and there shall have occurred no development in any such action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration that, in the opinion of Agent, would reasonably be expected to have a Material Adverse Effect.
(h) No Material Adverse Effect. There shall have not occurred any Material Adverse Effect since December 31, 2021.
(i) Corporate Structure. The documentation reflecting the ownership, capital, corporate, tax, organizational and legal structure of the Loan Parties shall be acceptable to Agent.
(j) Regulatory Approvals and other Third-Party Approvals. The Loan Parties shall have received (i) any and all regulatory approvals necessary to consummate the transactions contemplated by the Loan Documents, which approvals are final and non-appealable and (ii) any and all corporate and other third party approvals necessary to consummate the transactions contemplated by the Loan Documents.
(k) Insurance Policies. Agent shall have received certificates evidencing the Restricted Loan Parties’ property and casualty, liability, workers compensation, business interruption, and other insurance, in each case, satisfying the requirements Section 4.16 hereof, with, subject to Section 5.14, appropriate endorsements naming Agent as loss payee and additional insured, as applicable.
(l) Projections. Agent shall have received satisfactory Projections, including an annual projected operating budget and cash flow on a consolidated basis, for the following Fiscal Years: 2023, 2024, 2025 and 2026, each year by year, including a balance sheet and cash flow statement as at the last day of each Fiscal Year and the relevant assumptions used to make such calculations.
(m) Due Diligence. Agent shall have completed due diligence on the Loan Parties to its reasonable satisfaction, including, but not limited to, review of Employee Benefit Plans, employment agreements with key personnel, union labor contracts, any actual or potential Environmental Claims, and
the business, operations, prospects, customer relations, and contracts of the Loan Parties, which review is satisfactory to Agent in all respects.
(n) PATRIOT Act; Beneficial Ownership Certification. To the extent requested at least five (5) days prior to the Closing Date, the Lenders shall have received, sufficiently in advance of closing, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act. At least five (5) days prior to the Closing Date, Borrowers shall deliver to Agent a Beneficial Ownership Certification in relation to Borrower.
(o) Existing Indebtedness. The Indebtedness of each of the Borrowers outstanding immediately prior to the Closing Date (other than Indebtedness permitted under Section 7.1) shall have been (or concurrently with the initial borrowing will be) paid in full. Agent shall have received payoff letters from the existing lenders or holders of such Indebtedness in connection with the existing Indebtedness to be paid off, each in form and substance reasonably satisfactory to Agent, together with UCC termination statements, releases or assignment (as mutually agreed between the Borrowers and Agent) of mortgage Liens, and other instruments, documents and/or agreements necessary or appropriate to terminate any Liens, commitments and guaranties in connection with such existing Indebtedness, which is to be indefeasibly paid in full on or prior to the Closing Date, as Agent may reasonably request, duly executed and in recordable form, if applicable, and otherwise in form and substance reasonably satisfactory to Agent.
(p) Solvency. Agent shall have received a certificate from Borrowers certifying that, after giving effect to the transactions contemplated by this Agreement, Borrowers, taken as a whole, are Solvent.
(q) Closing Certificate. Agent shall have received a closing certificate signed by the Chief Financial Officer of each Borrower dated as of the date hereof, stating that (i) all representations and warranties set forth in this Agreement are true and correct on and as of such date, (ii) Borrowers are on such date in compliance with all the terms and provisions set forth in this Agreement and the other Loan Documents and (iii) on such date no Default or Event of Default has occurred or is continuing.
(r) Legal Opinion. Agent shall have received opinions of Husch Blackwell LLP counsel to the Loan Parties, dated as of the Closing Date addressed to Agent and the Lenders and covering such matters as the Agent or the Lenders may reasonably request.
Without limiting the generality of Section 9.1(c), for purposes of determining satisfaction of the conditions specified in this Section 3.1, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such Lender unless Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
3.2 Additional Conditions to All Loans and Lender Letters of Credit. The obligations of Agent and each Lender to make Loans (including any Swingline Loan) and the obligation of Agent or any Lender to issue (or cause the issuance of) Lender Letters of Credit on each Funding Date (including the Closing Date) shall be subject to the further conditions precedent that (i) on or prior to the date of such Loan or issuance, Agent (and the applicable Swingline Lender to Issuing Lender, as applicable) shall have received all notices required in accordance with the terms of this Agreement and (ii) on the date of such
Loan or the date of such issuance, the following statements shall be true and correct (and each of the giving of any applicable Notice of Borrowing, and the acceptance by Borrowers (or any of them) of the proceeds of each Borrowing, and each Lender Letter of Credit issued, increased or extended on behalf of Borrowers, shall constitute a representation and warranty by Borrowers, that on the date of such borrowing such statements are true and correct):
(a) Representations and Warranties. The representations and warranties of Borrowers contained in this Agreement are true and correct in all material respects (except that (i) for those representations and warranties already qualified by concepts of materiality or knowledge, those representations and warranties shall be true and correct in all respects and (ii) for those representations and warranties that relate solely to an earlier date, those representations and warranties shall be true and correct in all material respects as of such earlier date), before and after giving effect to such Loan or issuance, and to the application of the proceeds therefrom;
(b) Availability. Aggregate Revolving Credit Exposure shall not exceed the Maximum Revolving Loan Amount; and
(c) No Default. No Default or Event of Default shall have occurred and be continuing or would result from such Loan or issuance.
SECTION 4 REPRESENTATIONS AND WARRANTIES.
Each Borrower and each other Loan Party represents, warrants and covenants to Agent, the Issuing Lender and each Lender that:
4.1 Organization, Powers, Capitalization.
(a) Organization and Powers. Each of the Loan Parties is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and qualified to do business in all states and other jurisdictions where such qualification is required, in each case (other than the existence of Holdings and Borrowers) except where failure to be so qualified would not reasonably be expected to have a Material Adverse Effect. Each of the Loan Parties has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and proposed to be conducted, except where such failure would not reasonably be expected to have a Material Adverse Effect, and to enter into each Loan Document. The name of (within the meaning of Section 9-503 of the UCC) and jurisdiction of organization of each Loan Party is set forth on Schedule 4.6. As of the Closing Date the chief executive office of each Loan Party is located at the address indicated on Schedule 4.6. As of the Closing Date each Loan Party’s organizational identification numbers, if any, are identified on Schedule 4.6.
(b) Capitalization. The authorized Equity Interests of each of the Restricted Loan Parties and its respective Subsidiaries as of the Closing Date is as set forth on Schedule 4.1(b), including all preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition from any Restricted Loan Party of any shares of capital stock or other securities or Equity Interests of any such entity. All issued and outstanding shares of capital stock or other Equity Interests of each of the Restricted Loan Parties are duly authorized and validly issued, and, if applicable, fully paid, free and clear of all Liens other than those in favor of Agent for the benefit of Agent and the Lenders, and such shares or Equity Interests were issued in compliance with all applicable state and federal laws concerning the issuance of securities.
4.2 Authorization of Borrowing, No Conflict. Each Loan Party has the power and authority to incur the Obligations and, if applicable, to grant security interests in the Collateral. On the Closing Date, the execution, delivery and performance of the Loan Documents by each Loan Party signatory thereto will have been duly authorized by all necessary corporate and shareholder action. The execution, delivery and performance by each Loan Party of each Loan Document to which it is a party and the consummation of the transactions contemplated by the Loan Documents by each Loan Party do not contravene any applicable law, the Organizational Documents of any Loan Party or any agreement or order by which any Loan Party or any Loan Party’s property is bound the effect of which contravention would reasonably be expected to result in a Material Adverse Effect. The Loan Documents are the legally valid and binding obligations of the applicable Loan Parties respectively, each enforceable against the Loan Parties, as applicable, in accordance with their respective terms subject to equitable principles and to bankruptcy, insolvency and other laws affecting creditors generally.
4.3 Financial Condition. All financial statements concerning the Loan Parties furnished by or on behalf of the Loan Parties (or any of them) to Agent or any Lender pursuant to or in connection with this Agreement have been prepared in accordance with GAAP consistently applied throughout the periods involved (except as disclosed therein) and present fairly the financial condition of the Persons covered thereby as at the dates thereof and the results of their operations for the periods then ended. The Projections delivered by the Borrowers have been and will hereafter be prepared in light of the past operations of the business of the Borrowers and their Subsidiaries, and such Projections will represent the good faith estimate of each Borrower and its senior management concerning the most probable course of its business as of the date such Projections are delivered, it being understood that no assurance can be given that such Projections will be realized.
4.4 Indebtedness and Liabilities. As of the Closing Date, no Restricted Loan Party has (a) any Indebtedness except (i) any Indebtedness listed on Schedule 7.1 and (ii) Indebtedness otherwise permitted to be incurred hereunder; or (b) any liabilities other than as reflected on the most recent financial statements delivered to Agent and the Lenders or as incurred in the ordinary course of business following the date of the most recent financial statements delivered to Agent and the Lenders.
4.5 [Reserved].
4.6 Names and Locations. As of the Closing Date, Schedule 4.6 sets forth (a) all legal names and all other names (including trade names, fictitious names and business names) under which each Restricted Loan Party currently conducts business, or has at any time during the past five (5) years conducted business, (b) the name of any entity which any Restricted Loan Party has acquired in whole or in part or from whom such Restricted Loan Party has acquired substantially all of assets within the past five years, (c) the location of each Restricted Loan Party’s principal place of business, (d) the state or other jurisdiction of organization for each Restricted Loan Party and sets forth each Restricted Loan Party’s organizational identification number or specifically designates that one does not exist, (e) the location of each Restricted Loan Party’s books and records, (f) the location of all other offices of each Restricted Loan Party material to the business of such Restricted Loan Party, (g) all locations (designating Inventory and Equipment locations and indicating between owned, leased, warehouse, storage, and processor locations) where Collateral with an aggregate value of more than $1,000,000 is located; and (h) each Restricted Loan Party’s federal tax identification number. As of the Closing Date, the locations designated on Schedule 4.6 are each Restricted Loan Party’s sole material locations for their respective businesses and the material portion of the Collateral.
4.7 Title to Properties; Liens. Each Restricted Loan Party has good and marketable title to all of the Collateral and will have good, sufficient and legal title to all after-acquired Collateral, in each case, free and clear of all Liens except for the Permitted Encumbrances. Agent has valid, perfected and Prior Security Interest in the Collateral (subject to Permitted Encumbrances), securing the payment of the Obligations, and such Liens are entitled to all of the rights, priorities and benefits afforded by the UCC or other applicable laws enacted in any relevant jurisdiction which relates to perfected Liens.
4.8 Litigation; Adverse Facts. There are no judgments outstanding against any Loan Party or affecting any property of any Loan Party nor is there any action, charge, claim, demand, suit, proceeding, petition, governmental investigation or arbitration now pending or, to the Knowledge of any Loan Party after due inquiry, threatened in writing against or affecting any Loan Party or any property of any Loan Party which would reasonably be expected to result in any Material Adverse Effect.
4.9 Payment of Taxes. All material tax returns of the Loan Parties required to be filed by any of them have been timely filed and are complete and accurate in all material respects, except where failure to file would not reasonably be expected to result in a Material Adverse Effect. All material taxes, assessments, fees and other governmental charges which are due and payable by the Loan Parties have been paid when due; provided that no such tax need be paid if such Loan Party is contesting same in good faith by appropriate proceedings promptly instituted and diligently conducted and if such Loan Party has established appropriate reserves as shall be required in conformity with GAAP. As of the Closing Date, none of the income tax returns of any Loan Party is under audit. No tax liens have been filed against any Loan Party (other than liens for taxes that are not yet due or payable or are being contested in good faith by appropriate proceedings diligently conducted and for which appropriate reserves are maintained on the books of the applicable Loan Party in accordance with GAAP).
4.10 Performance of Agreements. None of the Loan Parties and no Subsidiaries of any Restricted Loan Party is in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material contractual obligation of any such Person, and no condition exists that, with the giving of notice or the lapse of time or both, would constitute such a default in each case except where such default would not reasonably be expected to result in a Material Adverse Effect.
4.11 ERISA Compliance.
(a) Except as could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect, (i) each Plan is in compliance with the applicable provisions of ERISA, the IRC and other federal or state Laws and (ii) each Plan that is intended to be a qualified plan under Section 401(a) of the IRC has received a favorable determination letter, or the pre-approved plan sponsor has received an opinion letter on which Borrower may rely, from the IRS to the effect that the form of such Plan is qualified under Section 401(a) of the IRC, or an application for such a letter is currently being processed by the IRS, and, to the Knowledge of the Borrowers, nothing has occurred that would prevent or cause the loss of such tax-qualified status.
(b) There are no pending or, to the Knowledge of the Borrowers, threatened or contemplated claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that, either individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.
(c) No ERISA Event has occurred, and neither the Borrowers nor any ERISA Affiliate is aware of any fact, event or circumstance that, either individually or in the aggregate, would reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan that, either individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect.
(d) Except as disclosed in Schedule 4.11(d), the present value of all accrued benefits under each Pension Plan (based on those assumptions used to fund such Pension Plan) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Pension Plan allocable to such accrued benefits by a material amount. As of the most recent valuation date for each Multiemployer Plan, the potential liability of the Borrowers or any ERISA Affiliate for a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 or Section 4205 of ERISA), when aggregated with such potential liability for a complete withdrawal from all Multiemployer Plans, is zero.
(e) To the extent applicable, each Foreign Plan has been maintained in compliance with its terms and with the requirements of any and all applicable requirements of Law and has been maintained, where required, in good standing with applicable regulatory authorities, except to the extent that the failure so to comply could not reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect. Neither the Borrowers nor any Subsidiary of any Borrower has incurred any material obligation in connection with the termination of or withdrawal from any Foreign Plan that has not been reflected on the financial statements of the applicable Borrower or Subsidiary. Except as disclosed in Schedule 4.11(e), the present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan that is funded, determined as of the end of the most recently ended fiscal year of the Borrowers or Subsidiary of the Borrowers, as applicable, on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the property of such Foreign Plan by a material amount, and for each Foreign Plan that is not funded, the obligations of such Foreign Plan are properly accrued.
4.12 Broker’s Fees. As of the Closing Date no broker’s or finder’s fee or commission will be payable with respect to any of the transactions contemplated hereby.
4.13 Environmental Compliance. Each Loan Party is and shall continue to remain in compliance with all applicable Environmental Laws except where failure to be in compliance would not reasonably be expected to have a Material Adverse Effect. Except as identified on Schedule 4.13, there are no pending, or, to the Knowledge of the Borrowers, claims, liabilities, Liens, investigations, litigation, administrative proceedings, or judgments or orders relating to any Hazardous Materials asserted or threatened in writing against any Restricted Loan Party or relating to any releases of Hazardous Materials from or any material real property currently or, to the Knowledge of the Borrowers formerly owned, leased or operated by any Restricted Loan Party.
4.14 Solvency. As of the Closing Date, each of the Restricted Loan Parties is Solvent.
4.15 Disclosure. No representation or warranty of any Loan Party contained in this Agreement, the financial statements, the other Loan Documents, or any other document, certificate or written statement furnished to Agent or any Lender by or on behalf of any such Person for use in connection with the Loan Documents (whether before, after or concurrently with the execution thereof) contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not materially misleading in light of the circumstances in which
the same were made. There is no material fact known to any Loan Party that has had or would reasonably be expected to have a Material Adverse Effect and that has not been disclosed herein or in such other documents, certificates and statements furnished to Agent or any Lender for use in connection with the transactions contemplated hereby.
4.16 Insurance.
(a) Each Loan Party shall insure its properties and assets against loss or damage by fire and such other insurable hazards as such assets are commonly insured (including fire, extended coverage, property damage, workers’ compensation, public liability and business interruption insurance) and against other risks (including errors and omissions) in such amounts as similar properties and assets are insured by prudent companies in similar circumstances carrying on similar businesses, and with reputable and financially sound insurers, including self-insurance to the extent customary. Such insurance policies (other than any such policy not covering any Restricted Loan Party or any property of any Restricted Loan Party) shall contain additional insured and lender’s loss payable special endorsements in form and substance reasonably satisfactory to Agent naming Agent as additional insured and lender’s loss payable, as applicable, and providing Agent with notice of cancellation reasonably acceptable to Agent.
(b) Each Restricted Loan Party shall, to the extent required under applicable Flood Laws, obtain and maintain flood insurance for such structures and contents constituting Collateral located in a flood hazard zone, in such amounts as similar structures and contents are insured by prudent companies in similar circumstances carrying on similar businesses and otherwise satisfactory to Agent and the Lenders.
(c) In the event any Restricted Loan Party fails to provide Agent with evidence of the insurance coverage required by this Agreement, Agent may, but is not required to, purchase insurance at Borrowers’ expense to protect Agent’s and the Lender’s interests in the Collateral. This insurance may, but need not, protect Borrowers’ interests. Such coverage purchased by Agent may not pay any claim made by Borrowers or any claim that is made against Borrowers in connection with the Collateral. Borrowers may later cancel any insurance purchased by Agent, but only after providing Agent with evidence that Borrowers has obtained insurance as required by this Agreement. Agent agrees to cooperate in any such cancellation. If Agent purchases insurance for the Collateral, Borrowers will be responsible for the reasonable costs of that insurance, including interest thereon and other charges imposed on Agent in connection with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance, and such costs may be added to the Obligations. The costs of the insurance may be more than the cost of insurance Borrowers is able to obtain on their own.
4.17 Compliance with Laws; Government Authorizations; Consents.
(a) No Loan Party is in violation of any law, ordinance, rule, regulation, order, policy, guideline or other requirement of (i) any Governmental Authority in all jurisdictions in which such Loan Party is now doing business, and (ii) any government authority otherwise having jurisdiction over the conduct of such Loan Party or any of its respective businesses, or the ownership of any of its respective properties, which violation in either such case would subject such Loan Party, or any of their respective officers to criminal liability or would reasonably be expected to have a Material Adverse Effect and to the Loan Parties’ Knowledge no such violation has been alleged in writing.
(b) No authorization, approval or other action by, and no notice to or filing with, any domestic or foreign Governmental Authority or regulatory body or consent of any other Person is required for (i) the grant by the Restricted Loan Parties of the Liens granted hereby or for the execution,
delivery or performance of this Agreement or the other Loan Documents by any Loan Party; (ii) the perfection of the Liens granted hereby and pursuant to any other Loan Documents (except for the filing of UCC financing statements with the applicable filing offices in the applicable jurisdictions); or (iii) the exercise by Agent of its rights and remedies hereunder.
4.18 Employee Matters. As of the Closing Date, except as set forth on Schedule 4.18, (a) no Loan Party nor any of such Loan Party’s employees is subject to any collective bargaining agreement, (b) no petition for certification or union election is pending with respect to the employees of any Loan Party and no union or collective bargaining unit has sought such certification or recognition with respect to the employees of any Loan Party and (c) there are no strikes, slowdowns, work stoppages or controversies pending or, to the Knowledge of the Loan Parties after due inquiry, threatened in writing between any Loan Party and its respective employees, other than employee grievances arising in the ordinary course of business, in each case, which would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
4.19 Governmental Regulation. None of the Restricted Loan Parties is subject to regulation under the Investment Company Act of 1940 or to any federal or state statute or regulation limiting its ability to incur indebtedness for borrowed money.
4.20 No Defaults. No event or circumstance has occurred or exists that constitutes an Event of Default.
4.21 Margin Stock. No Loan Party is engaged, principally or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any Margin Stock. No Loan proceeds or Lender Letters of Credit will be used by any Borrower or any other Loan Party to purchase or carry, or to reduce or refinance any Indebtedness incurred to purchase or carry, any Margin Stock or for any related purpose governed by Regulations T, U or X of the Board of Governors of the Federal Reserve System.
4.22 Amendment of Schedules. With the consent of Agent (which consent is not to be unreasonably withheld, conditioned or delayed), the Loan Parties may amend any one or more of the Schedules referred in this Section 4 (subject to prior notice to Agent, as applicable) and any representation, warranty, or covenant contained herein which refers to any such Schedule shall from and after the date of any such amendment refer to such Schedule as so amended; provided however, that in no event shall the amendment of any such Schedule constitute a waiver by Agent and the Lenders of any Default or Event of Default that exists notwithstanding the amendment of such Schedule.
4.23 Sanctions; Anti-Corruption Laws.
(a) No Loan Party nor any of their respective Subsidiaries or, to the Knowledge of the Loan Parties, any director, officer, employee, agent, or affiliate of any Loan Party or any of its Subsidiaries is an individual or entity (“person”) that is, or is owned or controlled by persons that are: (i) the subject of any sanctions administered or enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, or other relevant sanctions authority (collectively, “Sanctions”), or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions.
(b) The Loan Parties, their respective Subsidiaries and their respective directors, officers and employees and, to the Knowledge of the Loan Parties, the agents of the Loan Parties and their respective Subsidiaries, are (i) in compliance in with all applicable Sanctions and (ii) in compliance in all
material respects with the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) and any other applicable anti-corruption law. The Loan Parties and their respective Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve continued compliance with applicable Sanctions, the FCPA and any other applicable anti-corruption laws.
4.24 Beneficial Ownership Certification. As of the Closing Date, the information included in any Beneficial Ownership Certification delivered to Agent or any Lender prior to the Closing Date is true and correct in all material respects.
4.25 Material Contracts. (a) All Material Contracts are in full force and effect and no material defaults currently exist thereunder, and (b) no Borrower has (i) received any notice of termination or non-renewal of any Material Contract, or (ii) exercised any option to terminate or not to renew any Material Contract, in any case, except where such failure to remain in full force and effect, such termination or such non-renewal would not, in the reasonable business judgment of Borrowers, be expected to have a Material Adverse Effect.
SECTION 5 AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees that, so long as any of the Revolving Loan Commitments hereunder shall be in effect, and until payment in full, in cash, of all Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and termination of all Lender Letters of Credit (or other arrangement acceptable to the issuer thereof in writing), each Loan Party shall perform all covenants in this Section 5.
5.1 Financial Statements and Other Reports. Borrowers will deliver to Agent and each Lender (unless specified to be delivered solely to Agent) the financial statements and other reports, notices and other information contained in the Reporting Rider attached hereto.
5.2 Maintenance of Properties. Each Restricted Loan Party will maintain or cause to be maintained in good repair, working order and condition (normal wear and tear excepted) all material properties used in the business of such Restricted Loan Party and its Subsidiaries and will make or cause to be made all appropriate repairs, renewals and replacements thereof except where the failure to do so would not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
5.3 Further Assurances. Each Restricted Loan Party shall from time to time, execute such guaranties, financing or continuation statements, documents, security agreements, reports and other documents or deliver to Agent such instruments, certificates of title or other documents or take such other action, in each case, as Agent at any time may reasonably request to evidence, perfect, give priority to or otherwise implement the guaranties and security for repayment of the Obligations provided for in the Loan Documents.
5.4 Maintenance of Insurance. Each Loan Party shall at all times maintain insurance complying with the requirements of Section 4.16.
5.5 Use of Proceeds and Margin Security.
(a) Borrowers shall use the proceeds of the Revolving Advances, Swingline Loans and the Lender Letters of Credit for proper business purposes as described in the recitals to this Agreement.
(b) Borrowers shall use the proceeds of the Loans consistent with all applicable laws, statutes, rules and regulations, and no portion of the proceeds of any Loan shall be used for the purpose of purchasing or carrying margin stock within the meaning of Regulation U, or in any manner that might cause the borrowing or the application of such proceeds to violate Regulation T or Regulation X or any other regulation of the Board of Governors of the Federal Reserve System or to violate the Securities Exchange Act of 1934.
5.6 Maintenance of Records and Books of Account. Each Loan Party shall, and shall cause each Subsidiary of such Loan Party to, maintain and keep proper books of record and account which enable the Loan Party and its Subsidiaries to issue financial statements in accordance with GAAP and as otherwise required by applicable law, and in which full, true and correct entries shall be made in all material respects of all its dealings and business and financial affairs.
5.7 Preservation of Existence. Each Loan Party will, and will cause each Restricted Loan Party to, (a) preserve, renew and maintain in full force and effect its legal existence and good standing under the laws of the jurisdiction of its organization except in a transaction otherwise expressly permitted hereunder; (b) take all reasonable action to maintain all rights, licenses, permits, privileges and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which would reasonably be expected to have a Material Adverse Effect.
5.8 Compliance with Laws. Each Loan Party will, and will cause each Restricted Loan Party to, comply with the requirements of all laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.9 Tax Certificates. Upon the request of Agent or any other affected Lender, within thirty (30) days after the receipt of such request, the Loan Parties shall furnish to Agent and any other affected Lender, at its address referred to herein, the original or a certified copy of a receipt evidencing payment of Other Taxes if a receipt is available or can be obtained. If no such Other Taxes are payable, the Loan Parties shall, if so requested by Agent or the affected Lender, provide a certificate of an officer of the Loan Parties to that effect.
5.10 [Reserved].
5.11 Inspection. Upon not less than three (3) Business Days’ request by Agent, the Loan Parties shall permit representatives and independent contractors of the Agent to visit and inspect any of the properties of the Loan Parties, to examine their corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss their affairs, finances and accounts with their directors, officers, and the Loan Parties’ Accountants, all at the expense of Borrowers and at such reasonable times during normal business hours and no more than one (1) time in each calendar quarter; provided, however, so long as no Default or Event of Default has occurred and is continuing, Borrowers shall be liable for the costs and expenses relating to no more than one (1) such visit and inspection during any Fiscal Year.
5.12 KYC Information; Beneficial Ownership. Upon the reasonable request of any Lender (or Agent on behalf of any Lender), the Loan Parties shall promptly provide to such Lender (or Agent on behalf of such Lender) (a) all documentation and other information so requested in connection with applicable “know your customer” laws and Anti-Terrorism Laws and (b) to the extent any Borrower qualifies at such time as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification with respect to such Borrower.
5.13 Sanctions; Anti-Corruption Laws. The Loan Parties will maintain in effect policies and procedures designed to promote compliance by the Loan Parties, their respective Subsidiaries, and their respective directors, officers, employees, and agents with applicable Sanctions and with the FCPA and any other applicable anti-corruption laws.
5.14 Post-Closing Obligations.
(a) No later than three (3) Business Days after the Closing Date (or such later date as agreed by Agent at its sole option), the Loan Parties shall have delivered to Agent a Control Agreement, in form and substance reasonably satisfactory to Agent and duly executed by Green Plains Trade and Bank of America, N.A., with respect to one or more Deposit Accounts maintained by Green Plains Trade with Bank of America, N.A.
(b) No later than thirty (30) days after the Closing Date (or such later date as agreed by Agent at its sole option), the Loan Parties shall have delivered to Agent (i) a collateral assignment of Borrowers’ gas storage contracts with DTE Gas Company, duly executed by each Borrower party to any such gas storage contract, and (ii) a duly executed acknowledgment of DTE Gas Company with respect to such collateral assignment, all of which shall be in form and substance reasonably satisfactory to Agent.
(c) No later than thirty (30) days after the Closing Date (or such later date as agreed by Agent at its sole option), the Loan Parties shall have used commercially reasonable efforts to deliver collateral access agreements, landlord waivers or similar agreements, in any case, in form and substance reasonably satisfactory to Agent, duly executed by each of Kinder Morgan Seven Oaks LLC and Kinder Morgan Liquids Terminals LLC.
(d) No later than thirty (30) days after the Closing Date (or such later date as agreed by Agent at its sole option), the Loan Parties shall deliver or cause to be delivered to Agent copies of lender loss payable endorsements, additional insured endorsements and endorsements providing for thirty (30) days’ prior written notice of cancellation for the Loan Parties’ insurance policies as required under Section 4.16, in each case, all in form and substance reasonably satisfactory to the Agent.
(e) No later than sixty (60) days after the Closing Date (or such later date as agreed by Agent at its sole option), the Loan Parties shall deliver to Agent Subsidiary Loan Agreements between GP Finco and each other Borrower, together which such other Subsidiary Loan Documents as Agent shall have reasonably requested in connection therewith.
SECTION 6 FINANCIAL COVENANTS.
The Loan Parties covenant and agree that so long as any of the Revolving Loan Commitments remain in effect and until payment in full, in cash, of all Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and termination of all Lender Letters of Credit (or other arrangement acceptable to the issuer thereof in writing), the Loan
SECTION 7 NEGATIVE COVENANTS.
Each Restricted Loan Party covenants and agrees that so long as any of the Revolving Loan Commitments remain in effect and until payment in full, in cash, of all Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and termination of all Lender Letters of Credit (or other arrangement acceptable to the issuer thereof in writing), the Restricted Loan Parties shall not, and with respect only to Section 7.16, Holdings shall not:
7.1 Indebtedness and Liabilities. Directly or indirectly create, incur, assume, guaranty, or otherwise become or remain directly or indirectly liable, on a fixed or contingent basis, with respect to any Indebtedness, except:
(a) the Obligations;
(b) Commodity Repurchase Agreement Indebtedness, so long as the aggregate purchase price paid to Borrowers (or any of them) by Eligible Repurchase Counterparties under Commodity Repurchase Agreements outstanding at any time shall not at any time exceed the Commodity Repurchase Agreement Sublimit;
(c) Specified Indebtedness with respect to which a Specified Indebtedness Intercreditor Agreement is in full force and effect;
(d) Indebtedness of any Borrower owing to GP Finco under a Subsidiary Loan Agreement so long as the Subsidiary Borrower Conditions are satisfied with respect to such Subsidiary Borrower;
(e) Attributable Indebtedness and other Indebtedness (including obligations in respect of Capital Leases) financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by a Restricted Loan Party prior to or within ninety (90) days after the acquisition, construction, repair, replacement, lease or improvement of the applicable asset in an aggregate amount not to exceed at any time outstanding $10,000,000 and any Permitted Refinancing thereof;
(f) Indebtedness relating to Hedging Agreements entered into for non-speculative purposes;
(g) Indebtedness incurred pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations, in each case incurred in the ordinary course of business, not to exceed $10,000,000;
(h) Indebtedness incurred in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits, in each case incurred in the ordinary course of business;
(i) Indebtedness in respect of cash management services incurred in the ordinary course of business;
(j) Indebtedness representing deferred compensation, bonuses accrued or earned, and due and owing, in each case in the ordinary course of business, to current or former directors, officers, employees, and members of management of any Restricted Loan Party (to the extent incurred by such Restricted Loan Party);
(k) Indebtedness existing on the Closing Date and identified on Schedule 7.1 and any Permitted Refinancing thereof;
(l) Indebtedness consisting of the financing of insurance premiums not to exceed twelve (12) months of premiums;
(m) Indebtedness in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created in the ordinary course of business; and
(n) other Indebtedness of Borrowers so long as, immediately before and immediately after (determined on a pro forma basis) giving effect to the incurrence of such Indebtedness and the consummation of any related transactions occurring substantially simultaneously therewith, (i) no Event of Default shall have occurred and be continuing, (ii) Borrowers shall be in compliance with Section 6 and (iii) the Aggregate Revolving Credit Exposure shall not exceed the Maximum Revolving Loan Amount, and Agent shall have received a subordination agreement or intercreditor agreement, in form and substance reasonably satisfactory to Agent and duly executed by the provider or holder of such Indebtedness so long as such Indebtedness does not exceed fifty-five percent (55%) of the “as-built” appraised value of any fixed assets of the Borrowers that secures such Indebtedness.
7.2 Guaranties. Except for Guaranties of Indebtedness permitted in this Agreement and the guaranties provided by any Restricted Loan Party under the Loan Documents with respect to the Obligations, the Restricted Loan Parties will not guaranty, endorse, or otherwise in any way become or be responsible for any obligations of any other Person, whether directly or indirectly by agreement to purchase the indebtedness of any other Person or through the purchase of goods, supplies or services, or maintenance of working capital or other balance sheet covenants or conditions, or by way of stock purchase, capital contribution, advance or loan for the purpose of paying or discharging any indebtedness or obligation of such other Person or otherwise.
7.3 Transfers, Liens and Related Matters.
(a) Dispositions. Sell, assign (by operation of law or otherwise) or otherwise Dispose of (including, in each case, in connection with a Division), or grant any option with respect to, or discount any of the Collateral of any Restricted Loan Party, except that the Restricted Loan Parties may:
(i) sell Inventory, goods held for sale and immaterial assets in the ordinary course of business;
(ii) in the ordinary course of business, sell transfer or lease assets that are obsolete, worn out, surplus or no longer necessary, required used or useful in the conduct of such Restricted Loan Party’s business;
(iii) Dispositions and destruction of assets by reason of a Casualty Event;
(iv) make other Dispositions if all of the following conditions are met: (A) the consideration received is at least equal to the fair market value of such assets; (B) the sole consideration received is paid at least 75% in cash; (C) the net proceeds of such Disposition are repaid and applied if and to the extent required by Section 2.4; (D) no Event of Default shall then exist or result from such sale or other Disposition and (E) the fair market value of the Collateral Disposed of pursuant to this clause (iv) shall not exceed $10,000,000 in any fiscal year;
(v) (i) leases, subleases, licenses, cross-licenses or sublicenses, in each case in the ordinary course of business and which do not materially interfere with the business of the Restricted Loan Parties or any of their Subsidiaries and (ii) Dispositions of intellectual property that are no longer used or material to the business of any Restricted Loan Party;
(vi) Dispositions pursuant to, and in accordance with, a Permitted Supply Chain Financing;
(vii) other discounts of accounts receivable in connection with the compromise or collection thereof in the ordinary course of business and not otherwise prohibited hereunder;
(viii) the unwinding of any Hedging Agreement; and
(ix) the lapse or abandonment in the ordinary course of business of any registrations or applications for registration of any intellectual property rights where the cost of maintaining such rights is not justified given the value of such rights in the applicable Restricted Loan Party’s reasonable business judgment.
(b) Liens. Except for Permitted Encumbrances, directly or indirectly create, incur, assume or permit to exist any Lien on or with respect to any of the Collateral or the assets of such Person or any proceeds, income or profits therefrom.
(c) No Negative Pledges. Enter into or assume any agreement (other than the Loan Documents and the Subsidiary Loan Documents) prohibiting the creation or assumption of any Lien upon its properties or assets, whether now owned or hereafter acquired, provided that this provision shall not prevent (i) provisions in documents evidencing permitted Purchase Money Security Interests or Capital Leases preventing Liens on the financed property or such lease and the proceeds thereof, (ii) consent rights of members, managers, partners or board members of the applicable Restricted Loan Parties with respect to the granting of liens, provided that such rights do not prohibit the Liens in favor of the Agent and the Lenders under the Loan Documents, or (iii) customary “anti-assignment” provisions in leases and other contracts prohibiting assignments of such specific contracts to the extent such leases and other contracts are entered into in the ordinary course and otherwise not prohibited hereunder.
(d) Sales and Leaseback Arrangements. Enter into any arrangement with any Person providing for the leasing by any Restricted Loan Party of real or tangible personal property that has been or is to be sold or transferred by such Restricted Loan Party to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of any Restricted Loan Party other than such arrangements with respect real or tangible personal property with an aggregate (for all such arrangements consummated during the term of this Agreement) fair market value not exceeding $10,000,000.
7.4 Investments and Loans. Make or permit to exist any Investments, except:
(a) Investments in cash and Cash Equivalents;
(b) Investments in the form of trade credit extended on usual and customary terms in the ordinary course of business;
(c) Investments by a Restricted Loan Party in another Restricted Loan Party;
(d) [reserved];
(e) Investments listed on Schedule 7.4 hereto as of the Closing Date; provided that the amount or type of such Investment existing on the Closing Date shall not be increased other than due to increases in valuation in accordance with GAAP;
(f) Investments in the Farm Credit Equities and any other equity interests of, or investments in, any Farm Credit Bank or their investment services or programs;
(g) notes issued by any account debtors payable to any Restricted Loan Party, or equity interests issued by account debtors to any Restricted Loan Party, in each case, in good faith settlement of delinquent obligations pursuant to any plan of reorganization or similar proceedings upon the bankruptcy or insolvency of any such account debtor;
(h) Investments received as the non-cash portion of consideration received in connection with Dispositions permitted hereunder to the extent not exceeding the limits specified therein for non-cash consideration;
(i) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
(j) endorsement of instruments for collection in the ordinary course of business;
(k) Investments of any Person existing at the time such Person becomes a Restricted Loan Party or consolidates, merges or amalgamates with a Restricted Loan Party (including in connection with a permitted Investment) so long as such Investments were not made in contemplation of such Person becoming a Restricted Loan Party, or of such consolidation, merger or amalgamation and so long as the amount or type of such Investment existing at such time shall not be increased other than due to increases in valuation in accordance with GAAP; and
(l) other Investments in an aggregate principal amount not to exceed $10,000,000.
The amount of any Investment, as determined for the purposes of this Section 7.4, shall include, without limitation, the amount of any deferred compensation or similar arrangements incurred by the applicable Restricted Loan Party in connection with such Investment.
7.5 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom, any Borrower may declare or make cash dividends or distributions to Holdings so long as (i) immediately before and after (determined on a pro forma basis) giving effect thereto (A) Revolving Availability shall be not less than $10,000,000 and (B) Borrowers shall be in pro forma compliance with the Financial
Covenants, and (ii) Borrowers shall have delivered to Agent a pro forma Compliance Certificate certifying to and demonstrating Borrowers’ satisfaction of the requirements set forth in this Section 7.5.
7.6 Restriction on Fundamental Changes. (a) Enter into any transaction of merger or consolidation; (b) liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution); (c) convey, sell, lease, sublease, transfer or otherwise dispose of (including a disposition in connection with a sale-leaseback transaction or division), in one transaction or a series of transactions, all or any substantial part of its business or assets, whether now owned or hereafter acquired; (d) acquire by purchase or otherwise all or any part of the business or assets of (other than asset acquisitions in the ordinary course of business), or stock or other beneficial ownership of, any Person except as permitted by Section 7.4; provided that, notwithstanding anything in this Section 7.6 to the contrary:
(i) any Restricted Loan Party may merge, amalgamate or consolidate with (A) a Borrower; provided that such Borrower shall be the continuing or surviving Person immediately upon the consummation of such merger, amalgamation or consolidation or (B) one or more other Restricted Loan Parties (other than a Borrower); provided that the continuing or surviving Person shall be a Restricted Loan Party immediately upon the consummation of such merger, amalgamation or consolidation; and
(ii) any Restricted Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to (x) if such Restricted Loan Party is a Borrower, another Borrower or (y) if such Restricted Loan Party is a Subsidiary Guarantor, a Borrower or another Subsidiary Guarantor.
7.7 Organizational Documents. Amend, modify or otherwise change in any material respect any of its or their Organizational Documents as in effect on the Closing Date, or change its form of incorporation or organization, operating names, or the names under which it executes contracts and conducts business without providing at least thirty (30) calendar days’ prior written notice to the Agent and, in the event such change would be adverse to the Lenders as determined by Agent in its sole reasonable discretion, obtaining the prior written consent of the Requisite Lenders.
7.8 Transactions with Affiliates. Directly or indirectly, enter into or permit to exist any transaction (including the purchase, sale or exchange of property or the rendering of any service) with any Affiliate or with any officer, director or employee of any Restricted Loan Party, except for transactions not prohibited by this Agreement or transactions in the ordinary course of such Restricted Loan Party’s business and upon fair and reasonable terms which are no less favorable to such Restricted Loan Party than it would obtain in a comparable arm’s length transaction with an unaffiliated Person; provided that nothing contained in this Section 7.8 shall prohibit (a) the payment of salary and bonus in the ordinary course of business to officers and employees of the Loan Parties, (b) transactions amongst Restricted Loan Parties which transactions are otherwise permitted under this Agreement, (c) employment, consulting, severance and other compensatory, service or benefit related arrangements between a Restricted Loan Party and its partners, officers, employees, third party consultants, directors and members of management in the ordinary course of business and transactions pursuant to plans or agreements governing Equity Interests, phantom equity and other employee benefit or compensatory plans and arrangements in the ordinary course of business and not otherwise prohibited under this Agreement, (d) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, officers, employees and consultants of the Restricted Loan Parties in the ordinary course of business to the extent attributable to the operation of the applicable Restricted Loan Party and to the extent otherwise expressly permitted under this Agreement, (e) transactions pursuant to agreements, instruments or arrangements in existence on the Closing Date and set forth in Schedule 7.8 or any amendment thereto to the extent such an amendment is not adverse to Agent or the Lenders in any
material respect, (f) the entering into by any Restricted Loan Party of any tax sharing agreements with any direct or indirect parent of such Restricted Loan Party to the extent attributable to the ownership or operation of the Restricted Loan Parties, but only to the extent payments thereunder are permitted by Section 7.5, and (g) transactions in which the Restricted Loan Parties party thereto deliver to the Agent a letter from an independent financial advisor stating that such transaction is financially fair and reasonably to such Restricted Loan Parties and is otherwise subject to terms that are no less favorable to such Restricted Loan Parties than they would obtain in a comparable arm’s length transaction with an unaffiliated Person, so long as, with respect to any transaction made in reliance on this clause (g), immediately before and immediately after (determined on a pro forma basis) giving effect to such transaction and the consummation of any related transactions occurring substantially simultaneously therewith, (i) no Event of Default shall have occurred and be continuing, (ii) the Restricted Loan Parties shall be in pro forma compliance with the Financial Covenants, and (iii) Aggregate Revolving Credit Exposure shall not exceed the Maximum Revolving Loan Amount.
7.9 Conduct of Business. From and after the Closing Date, engage in any business other than businesses of the type engaged in by such Restricted Loan Party on the Closing Date or substantially related or incidental thereto.
7.10 Use of Proceeds. Directly or, to any Restricted Loan Party’s Knowledge, indirectly, use the proceeds of the Loans or Lender Letters of Credit, or lend, contribute or otherwise make available such proceeds to any Person, (a) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions, or (b) in any other manner that would result in a violation of Sanctions or any applicable anti-corruption laws or anti-terrorism laws by any Person (including any Person participating in the Loans or Lender Letters of Credit, whether as Agent, an arranger, Issuing Lender, Lender, underwriter, advisor, investor, or otherwise).
7.11 Fiscal Year; Accounting Changes. Change its Fiscal Year; or make any material change in accounting treatment or reporting practices, except as required by GAAP and in accordance with Section 1.3.
7.12 Investment Accounts. Establish any Investment Account with any financial institution, Securities Intermediary or Commodity Intermediary, as applicable, unless, subject to Section 5.14 and except with respect to Excluded Accounts, Agent, the applicable Restricted Loan Party and such financial institution, Securities Intermediary or Commodity Intermediary, as applicable, shall have entered into a Control Agreement with regard to such Investment Account.
7.13 Warehouse Receipts Non-Negotiable. If any warehouse receipts or receipts in the nature of a warehouse receipt are issued with respect to any of Restricted Loan Parties’ Inventory, permit more than an aggregate outstanding amount of $1,000,000 of such warehouse receipts or receipts in the nature thereof to be “negotiable” (as such term is used in Section 7-104 (or any successor provision thereto) of the UCC as in effect from time to time in any relevant jurisdiction or under other relevant law) at any time.
7.14 Compliance with Anti-Terrorism Laws. Directly or indirectly, knowingly enter into any material agreements with any Blocked Person, or indirectly, (i) conduct any business or engage in any transaction or dealing with any Blocked Person, including, without limitation, the making or receiving of any contribution of funds, goods or services to or for the benefit of any Blocked Person, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to Executive Order No. 13224, any similar executive order or other Anti-Terrorism Law, or (iii) engage in or
conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224 or other Anti-Terrorism Law.
7.15 Repayment of Indebtedness. At any time, directly or indirectly, pay or prepay any Indebtedness other than (a) payments of the Obligations, (b) the payment of ordinary trade payables, (c) the making of scheduled payments of principal and interest with respect to any Indebtedness permitted under Section 7.1(m) to the extent permitted under the applicable subordination agreement or intercreditor agreement, (d) payments of regularly scheduled principal and interest with respect to any Specified Indebtedness in accordance with the applicable Specified Indebtedness Intercreditor Agreement, (e) Permitted Refinancings of any of the Indebtedness permitted hereunder, (f) the conversion or exchange of any junior Indebtedness to Equity Interests (other than Disqualified Stock) of Holdings or any of its direct or indirect parents, and (g) the prepayment of Indebtedness of any Borrower or other Restricted Loan Party to any other Borrower or any other Loan Party, subject to the subordination provisions applicable to such Indebtedness.
7.16 Holdings Activities. With respect to Holdings, engage in any transactions or activities which by their terms would have any recourse to any Borrower or any other Restricted Loan Parties unless such activity or transaction is otherwise expressly permitted under the terms of this Agreement.
SECTION 8 DEFAULT, RIGHTS AND REMEDIES
8.1 Event of Default. “Event of Default” shall mean the occurrence or existence of any one or more of the following (for each of the clauses set forth below, a grace or cure period may be specified; if no grace or cure period is expressly specified, such occurrence or existence shall constitute an immediate Event of Default):
(a) Payment.
(i) Borrowers shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any Lender Letter of Credit when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; or
(ii) Borrowers shall fail to pay any interest on any Loan or other Obligation (other than the Obligations described in clause (i) above), or any fee or any other amount (other than an amount referred to in clause (i) above) payable under this Agreement or under any other Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three (3) or more Business Days; or
(b) Cross-Default. (i) Any Restricted Loan Party shall fail to make any payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than Indebtedness under the Loan Documents) having an aggregate principal amount of more than $20,000,000, in each case beyond the applicable grace period with respect thereto, if any; (ii) any Restricted Loan Party shall fail to observe or perform any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause such Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity; provided that this clause (b)(ii) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such
Indebtedness, if such sale or transfer is permitted hereunder and under the documents providing for such Indebtedness and such Indebtedness is repaid when required under the documents providing for such Indebtedness; or (iii) any “default” or “event of default” shall occur under any of the Subsidiary Loan Documents; or
(c) Breach of Certain Provisions. Any Loan Party shall fail to perform or comply with any term or condition contained in (i) Section 5.5, Section 6 (including, for the avoidance of doubt, any term or condition of the Financial Covenants Rider) to the extent not cured in accordance with Section 8.2, or Section 7 (other than with respect to Sections 7.1, 7.2, 7.8, 7.12 and 7.13), or (ii) any of Section 5.1 (with respect to paragraphs (a) through (c) of the Reporting Rider), Section 7.1, Section 7.2, Section 7.8, Section 7.12 or Section 7.13, and such failure to perform or comply is not remedied in a manner satisfactory to Agent in its Permitted Discretion within ten (10) days of such failure; or
(d) Other Defaults Under Loan Documents. Any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in this Agreement or any other Loan Document (other than those specified in clause (a), (b) or (c) of this Section) and such failure shall continue unremedied for a period of thirty (30) or more days; provided that failure to deliver the KPI Metrics Report and related KPI Compliance Certificate as required under paragraph (p) of the Reporting Rider within the applicable grace period after the date required shall not trigger an Event of Default but will, for the avoidance of doubt, result in a margin adjustment and an unused commitment fee adjustment under Section 2.14; or
(e) Breach of Warranty. Any representation or warranty made or deemed made by or on behalf of any Loan Party in or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with this Agreement or any other Loan Document or any amendment or modification hereof or thereof, or any waiver hereunder or thereunder, shall prove to have been incorrect in any material respect (or, in the case of any such representation or warranty under this Agreement or any other Loan Document already qualified by materiality, such representation or warranty shall prove to have been incorrect) when made or deemed made; or
(f) Change of Control. A Change of Control shall occur or exist; or
(g) Involuntary Bankruptcy; Appointment of Receiver, etc. An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of Holdings or any Restricted Loan Party or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings or any of its Subsidiaries or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of sixty (60) or more days or an order or decree approving or ordering any of the foregoing shall be entered; or
(h) Voluntary Bankruptcy; Appointment of Receiver, etc. Holdings or any Restricted Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (g) of this Section, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Holdings or any Restricted Loan Party
or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; or
(i) Judgment and Attachments. There is entered against the any Restricted Loan Party (i) a final judgment or order for the payment of money in an aggregate amount (as to all such judgments and orders) exceeding $10,000,000 (to the extent not covered by independent third-party insurance as to which the insurer has been notified of such judgment or order and has not denied or failed to acknowledge coverage), or (ii) a non-monetary final judgment or order that, either individually or in the aggregate, has or would reasonably be expected to have a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of thirty (30) consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
(j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all Obligations, ceases to be in full force and effect; or any Loan Party or any other Person contests in writing the validity or enforceability of any provision of any Loan Document; or any Loan Party denies in writing that it has any or further liability or obligation under any Loan Document, or purports in writing to revoke, terminate or rescind any Loan Document; or
(k) Failure of Security. Agent, on behalf of itself and the Lenders, shall not have or shall cease to have a valid and perfected Prior Security Interest in the Collateral (subject to Permitted Encumbrances), in each case, for any reason other than the failure of Agent or any Lender to take any action within its control; or
(l) Subordination, Intercreditor Effectiveness. The subordination or intercreditor provisions (whether lien subordination provisions, payment subordination provisions, or both) of any agreement, document or instrument governing any Specified Indebtedness or any other Indebtedness permitted hereunder shall for any reason (except in accordance with its terms) be revoked or invalidated, or otherwise cease to be in full force and effect, or any Loan Party shall contest in any manner the validity or enforceability thereof, or the Obligations (or any Lien securing the Obligations) for any reason shall not have the priority contemplated by this Agreement, such subordination or intercreditor provisions or the other Loan Documents.
(m) Employee Benefit Plans. An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan that has resulted or would reasonably be expected to result in liability of the Borrowers under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of $10,000,000.
8.2 Equity Cure.
If a Cure Event occurs, any Cure Fund Payments received by (x) Borrowers, in the case of the Current Ratio or Collateral Coverage Ratio, or (y) Holdings, in the case of the Debt to Capitalization Ratio, in either case, during the applicable Cure Period will, at the request of Borrowers, be included (i) as cash in the calculation of the Collateral Formula Amount (in the event of a Default with respect to the Collateral Coverage Covenant), (ii) Net Worth of Holdings (in the event of a Default with respect to the Debt to Capitalization Covenant) or (iii) as cash in the determination of GP Finco’s current assets (in the event of a Default with respect to the Current Ratio Covenant) solely for the purposes of determining
compliance with such Financial Covenants at the end of such test period and any subsequent test period that includes such test; provided that (a) the amount of any Cure Fund Payment will be (x) with respect to a Default under the Collateral Coverage Covenant, an amount greater than or equal to the amount required to cause the Collateral Coverage Ratio, determined on a pro forma basis, to equal the Collateral Coverage Cure Target, and (y) with respect to all other Financial Covenant Defaults, an amount greater than or equal to the least amount required to cause the Loan Parties to be in compliance with Financial Covenants, (b) notwithstanding anything in this Agreement to the contrary, all Cure Fund Payments will be disregarded for all other purposes, including calculating basket levels, pricing and other items governed by reference to the Financial Covenants, liquidity or availability and may not be used for any other purpose hereunder, (c) all Cure Fund Payments shall be promptly used by Borrowers to prepay Loans and other Obligations in the manner prescribed by Section 2.4(d), and (d) for the avoidance of doubt, any Loans prepaid with any Cure Fund Payments shall be deemed outstanding for purposes of determining compliance with such financial covenants for the test period in respect of which Cure Fund Payment was received. So long as Borrowers are otherwise entitled to exercise its rights under this Section 8.2, (i) from the effective date of delivery of an irrevocable written notice from Borrowers to Agent of Borrowers’ intent to exercise their rights hereunder (a “Cure Notice”) until the earlier to occur of the end of the applicable Cure Period and the date on which Agent is notified that the Cure Fund Payment will not be made, neither Agent nor any Lender shall exercise any enforcement remedy against any Loan Party or any Subsidiary of any Restricted Loan Party or any of their respective properties solely on the basis of the failure to comply with the applicable Financial Covenant in respect of which the Cure Notice was delivered, and (ii) until the earlier to occur of the last day of the applicable Cure Period and the date on which Agent is notified that the Cure Fund Payment will not be made, neither Agent nor any Lender shall impose default interest, terminate the Revolving Loan Commitments or accelerate the Obligations solely on the basis of the failure to comply with the applicable Financial Covenant. Upon timely receipt by Borrowers in cash of the appropriate Cure Fund Payment, if and to the extent after giving effect this Section 8.2 all applicable Events of Default pursuant to Section 6 would no longer exist on a pro forma basis, such Events of Default shall be deemed cured.
8.3 Suspension of Commitments. Upon the occurrence of any Event of Default, Agent may or upon demand by Requisite Lenders shall, without notice or demand, immediately cease making additional Loans and the Revolving Loan Commitments shall be terminated.
8.4 Acceleration. Upon the occurrence of any Event of Default described in the foregoing Sections 8.1(g) or 8.1(h), all of the Revolving Loan Commitments shall automatically and immediately terminate, all Obligations under the Loan Documents shall automatically become immediately due and payable, and Borrowers shall be required immediately to deposit cash collateral for the Letter of Credit Reserve as set forth in clause (b) of the next sentence, in each case, without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by Borrowers, and the Revolving Loan Commitments shall thereupon terminate. Upon the occurrence and during the continuance of any other Event of Default, Agent may, and upon demand by Requisite Lenders shall, by written notice to Borrowers, (a) declare all or any portion of the Obligations under the Loan Documents to be, and the same shall forthwith become, immediately due and payable and the Revolving Loan Commitments shall thereupon terminate, and (b) demand that Borrowers immediately deposit with Agent an amount equal to one hundred three percent (103%) of the Letter of Credit Reserve and deposit the prepayment of fees payable under Section 2.3(b) with respect to such Lender Letters of Credit for the full remaining terms of such Lender Letters of Credit; provided, however, if any of such Lender Letters of Credit are terminated, the unearned portion of such prepaid fee attributable to such Lender Letter of Credit shall be refunded to Borrowers.
8.5 Remedies. If any Event of Default shall have occurred and be continuing, in addition to and not in limitation of any other rights or remedies available to Agent and the Lenders at law or in equity, Agent may, and shall upon the request of Requisite Lenders, exercise in respect of the Collateral, in addition to all other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the UCC (whether or not the UCC applies to the affected Collateral) or other applicable law, and may also (a) require the Restricted Loan Parties to, and the Restricted Loan Parties hereby agree that they will, at their expense and upon request of Agent forthwith, assemble all or part of the Collateral as directed by Agent and make it available to Agent at a place to be designated by Agent which is reasonably convenient to both parties; (b) withdraw all cash in the Investment Accounts subject to Control Agreements (or otherwise distribute value on account of Commodity Contracts) and apply such monies in payment of the Obligations in the manner provided in Section 8.8; and (c) without notice or demand or legal process, enter upon any premises of any Restricted Loan Party and take possession of the Collateral. The Restricted Loan Parties agree that, to the extent notice of sale of the Collateral or any part thereof shall be required by law, at least ten (10) days’ notice to any affected Restricted Loan Party of the time and place of any public disposition or the time after which any private disposition (which notice shall include any other information required by law) is to be made shall constitute reasonable notification. At any disposition of the Collateral (whether public or private), if permitted by law, Agent or any Lender may bid (which bid may be, in whole or in part, in the form of cancellation of indebtedness) for the purchase, lease, or licensing of the Collateral or any portion thereof for the account of Agent or such Lender. Agent shall not be obligated to make any disposition of Collateral regardless of notice of disposition having been given. The Restricted Loan Parties shall remain liable for any deficiency. Agent may adjourn any public or private disposition from time to time by announcement at the time and place fixed therefor, and such disposition may, without further notice, be made at the time and place to which it was so adjourned. Agent is not obligated to make any representations or warranties in connection with any disposition of the Collateral. To the extent permitted by law, the Restricted Loan Parties hereby specifically waive all rights of redemption, stay or appraisal, which it has or may have under any law now existing or hereafter, enacted. Agent shall not be required to proceed against any Collateral but may proceed against the Restricted Loan Parties directly.
8.6 Appointment of Attorney-in-Fact. Each of the Restricted Loan Parties hereby constitutes and appoints Agent as such Person’s attorney-in-fact with full authority in the place and stead of such Person and in the name of such Person, Agent or otherwise, from time to time in Agent’s discretion while an Event of Default is continuing to take any action and to execute any instrument that Agent may deem necessary or advisable to accomplish the purposes of this Agreement or the other Loan Documents, including: (a) to ask, demand, collect, sue for, recover, compound, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral; (b) to enforce the obligations of any Account Debtor or other Person obligated on the Collateral and enforce the rights of any Restricted Loan Party with respect to such obligations and to any property that secures such obligations; (c) to file any claims or take any action or institute any proceedings that Agent may deem necessary or desirable for the collection of or to preserve the value of any of the Collateral or otherwise to enforce the rights of Agent and the Lenders with respect to any of the Collateral; (d) to sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, assignments, verifications and notices in connection with Accounts, Chattel Paper or General Intangibles and other Documents relating to the Collateral; and (e) generally to take any act required of any Restricted Loan Party under Section 4 or Section 5 of this Agreement, and to sell, transfer, pledge, make any agreement with respect to or otherwise deal with any of the Collateral as fully and completely as though Agent were the absolute owner thereof for all purposes, and to do, at Agent’s option and Borrowers’ expense, at any time or from time to time, all acts and things that Agent deems necessary to protect, preserve or realize upon the Collateral. The Restricted Loan Parties hereby ratify and approve all acts of Agent made or
taken pursuant to this Section 8.6. The appointment of Agent as the Restricted Loan Parties’ attorney-in-fact and Agent’s rights and powers are coupled with an interest and are irrevocable, so long as any of the Revolving Loan Commitments hereunder shall be in effect and until payment in full, in cash, of all Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and termination of all Lender Letters of Credit (or other arrangement acceptable to the issuer thereof in writing).
8.7 Limitation on Duty of Agent and Lenders with Respect to Collateral. Beyond the safe custody thereof, Agent and each Lender shall have no duty with respect to any Collateral in its possession (or in the possession of any agent or bailee) or with respect to any income thereon or the preservation of rights against prior parties or any other rights pertaining thereto. Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which Agent accords its own property. Neither Agent nor any Lender shall be liable or responsible for any loss or damage to any of the Collateral, or for any diminution in the value thereof, by reason of the act or omission of any warehouse, carrier, forwarding agency, consignee, broker or other agent or bailee selected by any Restricted Loan Party or selected by Agent in good faith.
8.8 Application of Proceeds. Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, (a) the Restricted Loan Parties irrevocably waive the right to direct the application of any and all payments at any time or times thereafter received by Agent from or on behalf of any of the Restricted Loan Parties, and (b) any and all payments received at any time or times after the occurrence and during the continuance of an Event of Default, and the proceeds of any sale of, or other realization upon, all or any part of the Collateral shall be applied: first, to that portion of the Obligations constituting fees, costs and expenses incurred by or owing to Agent; second, to that portion of the Obligations constituting fees, costs and expenses incurred by or owing to the Lenders and the Issuing Lenders, pro rata based their Pro Rata Share thereof; third, to accrued and unpaid interest on the Obligations (including any interest which but for the provisions of any bankruptcy or insolvency law would have accrued on such amounts), pro rata based on each Lender’s Pro Rata Share thereof; fourth, pro rata to (i) the principal amounts of the Obligations outstanding (including Obligations owed to any Lender or their Affiliates under a Secured Hedge Agreement or Secured Bank Products Agreement), pro rata based on each Lender’s Pro Rata Share thereof and (ii) provide cash collateralization of the Letter of Credit Reserve in accordance with Section 8.4; and fifth, to any other Obligations or other obligations or indebtedness of Borrowers owing to Agent, any Lender or any Issuing Lender under the Loan Documents, any Secured Hedge Agreement or any Secured Bank Products Agreement, ratably based on their proportionate share thereof. Any balance remaining shall be delivered to GP Finco or to whomever may be lawfully entitled to receive such balance or as a court of competent jurisdiction may direct. This Section 8.8 shall not apply to any action taken by any Farm Credit Bank with respect to any Farm Credit Equities held by Borrowers.
8.9 [Reserved].
8.10 [Reserved].
8.11 Waivers; Non-Exclusive Remedies. No failure on the part of Agent or any Lender to exercise, and no delay in exercising and no course of dealing with respect to, any right under this Agreement or the other Loan Documents shall operate as a waiver thereof; nor shall any single or partial exercise by Agent or any Lender of any right under this Agreement or any other Loan Document preclude any other or further exercise thereof or the exercise of any other right. The rights in this Agreement and
the other Loan Documents are cumulative and shall in no way limit any other remedies provided by law.
SECTION 9 AGENT; LENDER RIGHTS
9.1 Agent.
(a) Appointment. Each Lender, each other Secured Party and, upon obtaining an interest in any Loan, any participant, transferee or other assignee of any Lender irrevocably appoints, designates and authorizes ING Capital as Agent to take such actions or refrain from taking such action as its agent on its behalf and to exercise such powers hereunder and under the other Loan Documents as are delegated by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Neither the Agent nor any of its directors, officers, employees or agents shall be liable for any action so taken. The provisions of this Section 9.1 are solely for the benefit of Agent and the Lenders and neither Borrowers nor any other Loan Party shall have any rights as a third party beneficiary of any of the provisions hereof. In performing its functions and duties under this Agreement and the other Loan Documents, Agent shall act solely as agent of the Lenders and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Borrower or any other Loan Party. Agent may perform any of its duties hereunder, or under the Loan Documents, by or through its affiliates, agents or employees.
(b) Nature of Duties. Agent shall have no duties, obligations or responsibilities except those expressly set forth in this Agreement or in the Loan Documents. The duties of Agent shall be mechanical and administrative in nature. Agent shall not have by reason of this Agreement a fiduciary, trust or agency relationship with or in respect of any Lender, Borrowers or any other Loan Party. Nothing in this Agreement or any of the Loan Documents, express or implied, is intended to or shall be construed to impose upon Agent any obligations in respect of this Agreement or any of the Loan Documents except as expressly set forth herein or therein. Each Lender shall make its own appraisal of the credit worthiness of Borrowers, and shall have independently taken whatever steps it considers necessary to evaluate the financial condition and affairs of Borrowers, and Agent shall have no duty or responsibility, either initially or on a continuing basis, to provide any Lender with any credit or other information with respect thereto (other than as expressly required herein), whether coming into its possession before the Closing Date or at any time or times thereafter. If Agent seeks the consent or approval of any Lenders to the taking or refraining from taking any action hereunder, then Agent shall send notice thereof to each Lender. Agent shall promptly notify each Lender any time that the Requisite Lenders have instructed Agent to act or refrain from acting pursuant hereto.
(c) Rights, Exculpation, Etc. Neither Agent nor any of its officers, directors, employees or agents shall be liable to any Lender for any action taken or omitted by them hereunder or under any of the Loan Documents, or in connection herewith or therewith, except that Agent shall be liable to the extent of its own gross negligence or willful misconduct as determined by final, non-appealable order from a court of competent jurisdiction. Agent shall not be liable for any apportionment or distribution of payments made by it in good faith and if any such apportionment or distribution is subsequently determined to have been made in error, the sole recourse of any Lender to whom payment was due but not made, shall be to recover from other Lenders any payment in excess of the amount to which they are determined to be entitled (and such other Lenders hereby agree to return to such Lender any such erroneous payments received by them). Neither Agent nor any of its agents or representatives shall be responsible to any Lender for any recitals, statements, representations or warranties herein or for the execution, effectiveness, genuineness, validity, enforceability, collectability, or sufficiency of this
Agreement or any of the Loan Documents or the transactions contemplated thereby, or for the financial condition of any Loan Party. Agent shall not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any of the Loan Documents or the financial condition of any Loan Party, or the existence or possible existence of any Default or Event of Default. Agent may at any time request instructions from the Lenders with respect to any actions or approvals which by the terms of this Agreement or of any of the Loan Documents Agent is permitted or required to take or to grant, and if such instructions are promptly requested, Agent shall be absolutely entitled to refrain from taking any action or to withhold any approval and shall not be under any liability whatsoever to any Person for refraining from any action or withholding any approval under any of the Loan Documents until it shall have received such instructions from Requisite Lenders or all or such other portion of the Lenders as shall be prescribed by this Agreement. Without limiting the foregoing, no Lender shall have any right of action whatsoever against Agent as a result of Agent acting or refraining from acting under this Agreement or any of the other Loan Documents in accordance with the instructions of Requisite Lenders in the absence of an express requirement for a greater percentage of Lender approval hereunder for such action.
(d) Reliance. Agent shall be under no duty to examine, inquire into, or pass upon the validity, effectiveness or genuineness of this Agreement, any other Loan Document, or any instrument, document or communication furnished pursuant hereto or in connection herewith. Agent shall be entitled to rely, and shall be fully protected in relying, upon any written or oral notices, statements, certificates, orders or other documents or any telephone message or other communication (including any writing, fax, telecopy or telegram) believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the Loan Documents and its duties hereunder or thereunder. Agent shall be entitled to rely upon the advice of legal counsel, independent accountants, and other experts selected by Agent in its sole discretion.
(e) Indemnification. The Lenders will reimburse and indemnify Agent for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, attorneys’ fees and expenses), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against Agent in any way relating to or arising out of this Agreement or any of the Loan Documents or any action taken or omitted by Agent under this Agreement or any of the Loan Documents, in proportion to each Lender’s Pro Rata Share, but only to the extent that any of the foregoing is not promptly reimbursed by the Restricted Loan Parties; provided, however, no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements resulting from Agent’s gross negligence or willful misconduct as determined by a final non-appealable judgment by a court of competent jurisdiction. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against, even if so directed by the Lenders or Requisite Lenders, until such additional indemnity is furnished. The obligations of the Lenders under this Section 9.1(e) shall survive the payment in full of the Obligations and the termination of this Agreement.
(f) ING Capital Individually. With respect to its Revolving Loan Commitments and the Loans made by it, ING Capital shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender. The terms “Lenders” or “Requisite Lenders” or any similar terms shall, unless the context clearly otherwise indicates, include ING Capital in its individual capacity as a Lender or one of the Requisite Lenders. ING Capital, either directly or through strategic affiliations, may lend money to, acquire equity or other ownership interests in, provide advisory services to and generally engage in any kind of banking,
trust or other business with any Loan Party as if it were not acting as Agent pursuant hereto and without any duty to account therefor to the Lenders. ING Capital, either directly or through strategic affiliations, may accept fees and other consideration from any Loan Party for services in connection with this Agreement or otherwise without having to account for the same to the Lenders.
(g) Successor Agent.
(i) Resignation. Agent may resign from the performance of all its agency functions and duties hereunder at any time by giving at least thirty (30) Business Days’ prior written notice to Borrowers and the Lenders. Such resignation shall take effect upon the acceptance by a successor Agent of appointment as provided below.
(ii) Appointment of Successor. Upon any such notice of resignation pursuant to Section 9.1(g)(i) above, Requisite Lenders shall appoint a successor Agent which, unless an Event of Default has occurred and is continuing, shall be reasonably acceptable to Borrowers. If a successor Agent shall not have been so appointed within said thirty (30) Business Day period, the retiring Agent, upon notice to Borrowers and so long as no Event of Default has occurred and is continuing, with Borrowers’ reasonable approval, shall then appoint a successor Agent who shall serve as Agent until such time, if any, as Requisite Lenders appoint a successor Agent as provided above.
(iii) Successor Agent. Upon the acceptance of any appointment as Agent under the Loan Documents by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations under the Loan Documents. After any retiring Agent’s resignation as Agent, the provisions of this Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent.
(h) Collateral Matters.
(i) Release of Collateral. The Lenders hereby irrevocably authorize Agent, at its option and in its discretion, to release any Lien granted to or held by Agent upon any Collateral (A) upon termination of the Revolving Loan Commitments and upon payment and satisfaction of all Obligations (other than contingent indemnification obligations to the extent no claims giving rise thereto have been asserted); (B) constituting property being sold or disposed of if Borrowers certify to Agent that the sale or disposition thereof is made in compliance with the provisions of this Agreement (and Agent may rely in good faith conclusively on any such certificate, without further inquiry) or (C) constituting Commodity Repurchase Agreement Property.
(ii) Confirmation of Authority; Execution of Releases. Without in any manner limiting Agent’s authority to act without any specific or further authorization or consent by the Lenders (as set forth in Section 9.1(h)(i) above), each Lender agrees to confirm in writing, upon request by Agent or Borrowers, the authority to release any Collateral conferred upon Agent under clauses (A) and (B) of Section 9.1(h)(i). To the extent Agent agrees to release any Lien granted to or held by Agent as authorized under Section 9.1(h)(i), (A) Agent is hereby irrevocably authorized by the Lenders to, execute such documents as may be necessary to evidence the release of the Liens granted to Agent, for the benefit of Agent and the Lenders, upon such Collateral; provided, however, that Agent shall not be required to execute any such document on terms which, in Agent’s opinion, would expose Agent to liability or create upon Agent any obligation or entail any consequence other than the release of such Liens without recourse or warranty, and (B) Borrowers shall provide at least ten (10) Business Days prior
written notice of any request for any document evidencing such release of the Liens and Borrowers agree that any such release shall not in any manner discharge, affect or impair the Obligations or any Liens granted to Agent on behalf of Agent and the Lenders upon (or obligations of any Loan Party, in respect of) all interests retained by any Loan Party, including, without limitation, the proceeds of any sale, all of which shall continue to constitute part of the property covered by this Agreement or the Loan Documents.
(iii) Absence of Duty. Agent shall have no obligation whatsoever to any Lender or any other Person to assure that the property covered by this Agreement or the Loan Documents exists or is owned by any Loan Party or is cared for, protected or insured or has been encumbered or that the Liens granted to Agent on behalf of Agent and the Lenders herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority, or to exercise at all or in any particular manner or under any duty of care, disclosure or fidelity, or to continue exercising, any of the rights, authorities and powers granted or available to Agent in this Agreement or in any of the Loan Documents, it being understood and agreed that in respect of the property covered by this Agreement or the Loan Documents or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in property covered by this Agreement or the Loan Documents as one of the Lenders and that Agent shall have no duty or liability whatsoever to any of the other Lenders; provided, however, that Agent shall exercise the same care which it would in dealing with loans for its own account.
(iv) Secured Party Acknowledgment. In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Secured Bank Product Agreements or Secured Hedge Agreements will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under any Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Secured Bank Product Agreement or Secured Hedge Agreement, as applicable, shall be deemed to have appointed Agent to serve as administrative agent and collateral agent under the Loan Documents and agreed to be bound by the Loan Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
(i) Agency for Perfection. Agent and each Lender hereby appoint each other Lender as agent for the purpose of perfecting Agent’s security interest in assets which, in accordance with the Uniform Commercial Code in any applicable jurisdiction, can be perfected by possession or Control. Should any Lender (other than Agent) obtain possession of any such assets, such Lender shall notify Agent thereof, and, promptly upon Agent’s request therefor, shall deliver such assets to Agent or in accordance with Agent’s instructions. The Agent may file such proofs of claim or documents as may be necessary or advisable in order to have the claims of the Agent and the Lenders (including any claim for the reasonable compensation, expenses, disbursements and advances of the Agent and the Lenders, their respective agents, financial advisors and counsel), allowed in any judicial proceedings relative to the Restricted Loan Parties, or any of their respective creditors or property, and shall be entitled and empowered to collect, receive and distribute any monies, securities or other property payable or deliverable on any such claims. Any custodian in any judicial proceedings relative to the Restricted Loan Parties is hereby authorized by each Lender to make payments to the Agent and, in the event that the Agent shall consent to the making of such payments directly to the Lenders, to pay to the Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agent, its agents, financial advisors and counsel, and any other amounts due the Agent. Nothing contained in this Agreement or the other Loan Documents shall be deemed to authorize the Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Loans, or the rights of any holder thereof, or to authorize the Agent to vote in respect of the claim of any Lender in any such proceeding, except as specifically permitted herein.
(j) Exercise of Remedies. Each Lender agrees that it will not have any right individually to enforce or seek to enforce this Agreement or any Loan Document or to realize upon any collateral security for the Obligations, unless instructed to do so by Agent, it being understood and agreed that such rights and remedies may be exercised only by Agent.
9.2 Notice of Default. Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default except with respect to defaults in the payment of principal, interest and fees required to be paid to Agent for the account of the Lenders, unless Agent shall have received written notice from a Lender or Loan Party referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. Agent will notify each Lender of its receipt of any such notice.
9.3 Action by Agent. Agent shall take such action with respect to any Default or Event of Default as may be requested by Requisite Lenders in accordance with Section 8. Unless and until Agent has received any such request, Agent may (but shall not be obligated to), subject to Section 9.4(a), take such action, or refrain from taking such action, with respect to any Default or Event of Default as it shall deem advisable or in the best interests of the Lenders.
9.4 Amendments, Waivers and Consents.
(a) Percentage of Lenders Required. Except as otherwise provided herein or in any of the other Loan Documents (and in any event, subject to Section 2.13(b)), no amendment, modification, termination or waiver of any provision of this Agreement or any other Loan Document, or consent to any departure by any Loan Party therefrom, shall in any event be effective unless the same shall be in writing and signed by Requisite Lenders (or by Agent with the consent of the Requisite Lenders) and the applicable Loan Party; provided, however:
(1) no amendment, modification, termination, waiver or consent shall be effective, unless in writing and signed by all Lenders, to do any of the following:
(A) waive the conditions set forth in Section 3.1, the satisfaction of which is required in connection with the making of any Loans on the Closing Date;
(B) amend (i) the definition of the term “Requisite Lenders” or “Pro Rata Share”, or (ii) the percentage of Lenders which shall be required to take any action hereunder;
(C) amend or waive this Section 9.4 or the definitions of the terms used in this Section 9.4 insofar as such definitions affect the substance of this Section 9.4;
(D) release all or substantially all of the Collateral (except in connection with a sale, disposition or release expressly permitted hereunder or under any other Loan Document), subordinate the Liens in favor of Agent and Lenders in all or substantially all of the Collateral or subordinate any of the Obligations in right of payment or otherwise adversely affect the priority of payment of any of such Obligations, in any case, except as otherwise expressly permitted hereunder;
(E) release (i) any Borrower from its obligations under this Agreement or (ii) any Guarantor from any Guaranty, in either case, except as expressly provided in or permitted by the Loan Documents;
(F) change Section 2.7(a), Section 8.8 or Section 9.5(f) in a manner that would affect order or priorities thereunder or ratable sharing of setoffs or payments required thereby or alter in any way the treatment of Lenders in accordance with their Pro Rata Share; and
(G) consent to the assignment, delegation or other transfer by any Loan Party of any of its rights and obligations under any Loan Document; and
(2) no amendment, modification, termination, waiver or consent shall be effective, unless in writing and signed by each Lender that would be affected thereby, to do any of the following (x) increase any of the Revolving Loan Commitments; (y) reduce or waive the principal of or the rate of interest on any Loan, reduce or waive the fees payable with respect to any Loan or Lender Letter of Credit or otherwise reduce or waive any other amounts due to any Lender under the Loan Documents; or (z) extend the Termination Date or the scheduled due date for all or any portion of principal of the Loans or any interest or fees due hereunder; provided, further, that no amendment, modification, termination, waiver or consent affecting the rights or duties of Agent under this Section 9 or under any Loan Document shall in any event be effective, unless in writing and signed by Agent, in addition to the Lenders required to take such action. Any amendment, modification, termination, waiver or consent effected in accordance with this Section 9 shall be binding upon each Lender or future Lender and, if signed by a Loan Party, on such Loan Party.
In addition, notwithstanding anything in this Section to the contrary, if Agent and Borrowers shall have jointly identified an obvious error or any error or omission of a technical nature, in each case, in any provision of the Loan Documents, then Agent and Borrowers shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Requisite Lenders to Agent within five (5) Business Days following receipt of notice thereof.
(b) Specific Purpose or Intent. Each amendment, modification, termination, waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. No amendment, modification, termination, waiver or consent shall be required for Agent to take an interest in additional Collateral.
(c) Failure to Give Consent; Replacement of Lender. If, in connection with any proposed amendment, modification, termination or waiver of any of the provisions of this Agreement requiring the consent or approval of any Lender, the consent of Requisite Lenders is obtained but the consent of one or more other Lenders whose consent is required is not obtained, then Borrowers shall have the right to replace the non-consenting Lenders with one or more replacement Lenders pursuant to the terms and requirements of Section 2.11(b), as if such Lender were seeking compensation thereunder, but only so long as each such replacement Lender consents to the proposed amendment, modification, termination or waiver. Notwithstanding anything in this Section 9.4, Agent and Borrowers, without the consent of either Requisite Lenders or all Lenders, may execute amendments to this Agreement and the Loan Documents, which consist solely of the making of typographical corrections.
9.5 Assignments and Participations in Loans.
(a) Assignments. Each Lender may assign its rights and delegate its obligations under this Agreement to an Eligible Assignee; provided, however, (i) such Lender shall (unless the assignment is to another Lender or an Affiliate of the assigning Lender) first obtain the written consent of Agent (which consent shall not be unreasonably withheld or delayed) and, so long as no Event of Default has occurred and is continuing at such time, Borrowers, which consent shall not be unreasonably withheld or delayed (provided that, in any event, Borrowers shall be deemed to have consented to any such assignment unless they shall object thereto by written notice to Agent within five (5) Business Days after having received notice thereof), (ii) the amount of Revolving Loan Commitments and Loans of the assigning Lender being assigned shall in no event be less than the lesser of (A) $1,000,000 or (A) the entire amount of the Revolving Loan Commitments and Loans of such assigning Lender and (iii) the parties to such assignment shall execute and deliver to Agent for acceptance and recording an Assignment and Acceptance Agreement together with (x) a processing and recording fee of $3,500 payable by the assigning Lender to Agent and (y) each of the Notes originally delivered to the assigning Lender (if any). The administrative fee referred to in clause (iii) of the preceding sentence shall not apply to an assignment of a security interest in all or any portion of a Lender’s rights under this Agreement or the other Loan Documents, as described in clause (i) of Section 9.5(d) below. Upon receipt of all of the foregoing, Agent shall notify Borrowers of such assignment and Borrowers shall comply with its obligations under Section 2.1(d). In the case of an assignment authorized under this Section 9.5, the assignee shall be considered to be a “Lender” hereunder and Loan Parties hereby acknowledge and agree that any assignment will give rise to a direct obligation of Loan Parties to the assignee. The assigning Lender shall be relieved of its obligations to make Loans hereunder with respect to the assigned portion of its Revolving Loan Commitments.
(b) Participations. Any Lender may at any time, without the consent of, or notice to, Borrowers or Agent, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or Borrowers or any of Borrowers’ Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Revolving Loan Commitments and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and (iii) Borrowers, Agent, the Issuing Lenders, the Swingline Lenders and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.2(a) with respect to any payments made by such Lender to its Participant(s). Borrowers agree that each Participant shall be entitled to the benefits of Section 2.9 (subject to the requirements and limitations therein, including the requirements under Section 2. 9(c) (it being understood that the documentation required under Section 2.9(c) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (a) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 9.4(c) as if it were an assignee under paragraph (a) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.9, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a change in law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrowers’ request and expense, to use reasonable efforts to cooperate with the Borrowers to effectuate the provisions of Section 9.4(c) with respect to any Participant. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”);
provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Agent (in its capacity as Agent) shall have no responsibility for maintaining a Participant Register.
(c) No Relief of Obligations; Cooperation. Except as otherwise provided in Section 9.5(a) no Lender shall, as between Borrowers and that Lender, be relieved of any of its obligations hereunder as a result of any sale, assignment, transfer or negotiation of, or granting of participation in, all or any part of the Loans or other Obligations owed to such Lender. Each Lender may furnish any information concerning Borrowers and the other Loan Parties in the possession of that Lender from time to time to Eligible Assignees and participants (including prospective assignees and participants). Borrowers agree that they will use their best efforts to assist and cooperate with Agent and any Lender in any manner reasonably requested by Agent or such Lender to effect the sale of a participation or an assignment described above, including without limitation assistance in the preparation of appropriate disclosure documents or placement memoranda.
(d) Security Interests; Assignment to Affiliates. Notwithstanding any other provision set forth in this Agreement, any Lender may (i) pledge the Obligations held by it or create a security interest in all or any portion of its rights under this Agreement or the other Loan Documents in favor of any Person (including any Federal Reserve Bank or other central bank); provided, however (A) no such pledge or grant of security interest to any Person shall release such Lender from its obligations hereunder or under any other Loan Document and (B) the acquisition of title to such Lender’s Obligations pursuant to any foreclosure or other exercise of remedies by such Person shall be subject to the provisions of this Agreement and the other Loan Documents in all respects including, without limitation, any consent required by Section 9.5; and (ii) at any time following written notice to Agent and subject to complying with the provisions of Section 9.5(a), assign its rights and delegate its obligations under this Agreement to an Eligible Assignee which is a Subsidiary of such Lender or its parent company, to one or more other Lenders, or to a Related Fund. For purposes of this paragraph, a “Related Fund” shall mean, with respect to any Lender, a fund or other investment vehicle that invests in commercial loans and is managed by such Lender or by the same investment advisor that manages such Lender or by an Affiliate of such investment advisor.
(e) Recording of Assignments. Agent shall maintain at its office in New York, New York a copy of each Assignment and Acceptance Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and the commitments of, and principal amount (and stated interest) of the Loans owing to each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be presumptive evidence of the amounts due and owing to Lender in the absence of manifest error. Borrowers, Agent and each Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by Borrowers and any Lender, at any reasonable time upon reasonable prior notice.
(f) Set Off and Sharing of Payments.
(i) If an Event of Default shall have occurred and be continuing, each Lender, each Issuing Lender, and each of their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held, and other obligations (in whatever currency) (except for deposits in trust, payroll, tax withholding, employee benefit and other accounts relating to insurance premiums and payments of claims which are required by applicable law or contract to be segregated from the Borrowers’ other funds) at any time owing, by such Lender, such Issuing Lender or any such Affiliate, to or for the credit or the account of Borrowers against any and all of the obligations of Borrowers now or hereafter existing under this Agreement or any other Loan Document to such Lender or such Issuing Lender or their respective Affiliates, irrespective of whether or not such Lender, Issuing Lender or Affiliate shall have made any demand under this Agreement or any other Loan Document and although such obligations of Borrowers may be contingent or unmatured or are owed to a branch office or Affiliate of such Lender or such Issuing Lender different from the branch office or Affiliate holding such deposit or obligated on such indebtedness; provided that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to Agent for further application in accordance with the provisions of Section 2.1(h)(iii) and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of Agent, the Issuing Lenders and the Lenders, and (y) the Defaulting Lender shall provide promptly to Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each Issuing Lender and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such Issuing Lender or their respective Affiliates may have. Each Lender and Issuing Lender agrees to notify Borrowers and Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
(ii) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Lender Letters of Credit (or disbursements in respect thereof) or Swingline Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans or participations in Lender Letters of Credit (or disbursements in respect thereof) or Swingline Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and participations in Lender Letters of Credit (or disbursements in respect thereof) or Swingline Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Lender Letters of Credit (or disbursements in respect thereof) or Swingline Loans and other amounts owing them; provided that:
(A) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and
(B) the provisions of this paragraph shall not be construed to apply to (x) any payment made by Borrowers pursuant to and in accordance with the express terms of this Agreement (including the application of funds arising from the existence of a Defaulting Lender), (y) the application of cash collateral provided for hereunder, or (z) any payment obtained by a Lender as consideration for the assignment of or sale of a
(C) Borrowers consent to the foregoing and agree, to the extent they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrowers rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(g) Disbursement of Funds. Unless Agent shall have received notice from a Lender (x) in the case of Base Rate Loans, prior to 3:00 p.m. (New York City time) on the proposed Funding Date of such Loan and (y) otherwise, prior to the proposed Funding Date of such Loan, that such Lender will not make available to Agent such Lender’s share of any proposed Loan, Agent may, on behalf of the Lenders, disburse funds to Borrowers for Loans requested. Each Lender shall reimburse Agent on demand for all funds disbursed on its behalf by Agent, or if Agent so requests, each Lender will remit to Agent its Pro Rata Share of any Loan or Advance before Agent disburses same to Borrower. If Agent elects to require that each Lender make funds available to Agent prior to a disbursement by Agent to Borrowers, Agent shall advise each Lender by telephone, telex, fax or telecopy of the amount of such Lender’s Pro Rata Share of the Loan requested by Borrowing Agent no later than 3:00 p.m. (New York City time) on the Funding Date applicable thereto, and each such Lender shall pay Agent such Lender’s Pro Rata Share of such requested Loan, in same day funds, by wire transfer to Agent’s account on such Funding Date.
9.6 Settlements, Payments and Information.
(a) Principal and Interest Payments. Provided that such Lender has made all payments required to be made by it under this Agreement, payments of principal, interest and fees on the Loans will be settled on the date of receipt.
(b) Return of Payments.
(i) Recovery after Non-Receipt of Expected Payment. If Agent pays an amount to a Lender under this Agreement in the belief or expectation that a related payment has been or will be received by Agent from Borrowers and such related payment is not received by Agent, then Agent will be entitled to recover such amount from such Lender without set-off, counterclaim or deduction of any kind together with interest thereon, for each day from and including the date such amount is made available by Agent to such Lender to but excluding the date of repayment to Agent, at the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation.
(ii) Recovery of Returned Payment. If Agent determines at any time that any amount received by Agent under this Agreement must be returned to Borrowers or paid to any other Person pursuant to any requirement of law, court order or otherwise, then, notwithstanding any other term or condition of this Agreement, Agent will not be required to distribute any portion thereof to any Lender. In addition, each Lender will repay to Agent on demand any portion of such amount that Agent has distributed to such Lender, together with interest at such rate, if any, as Agent is required to pay to Borrowers or such other Person, without set-off, counterclaim or deduction of any kind.
9.7 Lead Arranger and Other Titles. Any Lender identified on the facing page or signature page of this Agreement or in any amendment hereto or as designated with consent of the Agent in any assignment agreement as Lead Arranger, Documentation Agent, Bookrunner, Syndication Agent or any similar titles, shall not have any right, power, obligation, liability, responsibility or duty under this Agreement as a result of such title other than those applicable to all Lenders as such. Without limiting the foregoing, the Lenders so identified shall not have or be deemed to have any fiduciary relationship with any Lender as a result of such title. Each Lender acknowledges that it has not relied, and will not rely, on the Lender so identified in deciding to enter into this Agreement or in taking or not taking action hereunder.
9.8 Non-Receipt of Funds by Agent; Erroneous Payments.
(a) Unless Agent shall have received notice from a Lender or a Borrower (either one as appropriate being the “Payor”) prior to the date on which such Lender is to make payment hereunder to Agent of the proceeds of an Advance or Borrowers are to make payment to Agent, as the case may be (either such payment being a “Required Payment”), which notice shall be effective upon receipt, that the Payor will not make the Required Payment in full to Agent, Agent may assume that the Required Payment has been made in full to Agent on such date, and Agent in its sole discretion may, but shall not be obligated to, in reliance upon such assumption, make the amount thereof available to the intended recipient on such date. If and to the extent the Payor shall not have in fact so made the Required Payment in full to Agent, the recipient of such payment shall repay to Agent forthwith on demand such amount made available to it together with interest thereon, for each day from the date such amount was so made available by Agent until the date Agent recovers such amount, at the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(b) (i) Each Lender hereby agrees that (x) if Agent notifies such Lender that Agent has determined in its sole discretion that any funds received by such Lender from Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to Agent at the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of Agent to any Lender under this Section 9.8(b) shall be conclusive, absent manifest error.
(ii) Each Lender hereby further agrees that if it receives a Payment from Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify Agent of such occurrence and, upon demand from Agent,
it shall promptly, but in no event later than one Business Day thereafter, return to Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to Agent at the greater of the Federal Funds Effective Rate and a rate determined by Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(iii) Borrowers hereby agree that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by Borrowers, except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by Agent from Borrowers for the purpose of making such erroneous Payment.
(iv) Each party’s obligations under this Section 9.8 shall survive the resignation or replacement of Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Loan Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
SECTION 10 MISCELLANEOUS
10.1 Expenses and Attorneys’ Fees. Whether or not the transactions contemplated hereby shall be consummated, Borrowers agree to promptly pay all reasonable and documented out-of-pocket fees, costs and expenses incurred in connection with any matters contemplated by or arising out of this Agreement or the other Loan Documents including the following, and all such fees, costs and expenses shall be part of the Obligations, payable on demand and secured by the Collateral: (a) out-of-pocket fees, costs and expenses incurred by Agent, the Sustainability Structuring Agent and the Lead Arranger (including reasonable external attorneys’ fees and expenses and fees of environmental consultants, accountants and other professionals retained by Agent, the Sustainability Structuring Agent or Lead Arranger) incurred in connection with the examination, review, due diligence investigation, documentation and closing of the financing arrangements evidenced by the Loan Documents; (b) out-of-pocket fees, costs and expenses incurred by Agent, the Sustainability Structuring Agent or the Lead Arranger (including reasonable external attorneys’ fees and expenses, and fees of environmental consultants, accountants and other professionals retained by Agent or Lead Arranger) incurred in connection with the review, negotiation, preparation, documentation, execution, syndication and administration of the Loan Documents, the Loans, and any amendments, waivers, consents, forbearances and other modifications relating thereto or any subordination or intercreditor agreements, including reasonable documentation charges assessed by Agent for amendments, waivers, consents and any other documentation prepared by Agent’s internal legal staff; (c) out-of-pocket fees, costs and expenses (including reasonable external attorneys’ fees) incurred by Agent in creating, perfecting and maintaining perfection of Liens in favor of Agent, on behalf of Agent and the Lenders; (d) out-of-pocket fees, costs and expenses incurred by Agent in connection with forwarding to Borrowers the proceeds of Loans including Agent’s or any Lenders’ standard wire transfer fee; (e) out-of-pocket fees, costs, expenses and bank charges, including bank charges for returned checks, incurred by Agent or any Lender in establishing, maintaining and handling lock box accounts, blocked accounts or other accounts for collection of the Collateral; (f) out-of-pocket fees, costs, and expenses incurred in defending or prosecuting any actions by or against any Loan Party arising out of or relating to the Loan Documents, and (g) out-of-pocket fees, costs, expenses of Agent and the Lenders (including costs of settlement)
enforcing or protecting the rights of Agent and the Lenders, taken as a whole, under the Loan Documents or to collect any payments due from Borrowers or any other Loan Party under this Agreement or any other Loan Document or incurred in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement, whether in the nature of a “workout” or in connection with any insolvency or bankruptcy proceedings or otherwise, provided, that, in respect of legal costs contemplated by this clause (g), each Lender and Agent shall only be entitled to the reasonable and documented or invoiced out-of-pocket fees, charges and disbursements of one firm of counsel for all such parties taken as a whole (and solely in the case of an actual or perceived conflict of interest, one additional counsel to all such affected Persons, taken as a whole), and to the extent required, one firm or local counsel in each relevant jurisdiction (which may include a single special counsel acting in multiple jurisdictions). This Section 10.1 shall not apply with respect to Tax Liabilities other than any Tax Liabilities that represent costs and expenses arising from any non-tax claim.
10.2 Indemnity.
(a) Borrower Indemnification. In addition to the payment of expenses pursuant to Section 10.1, whether or not the transactions contemplated hereby shall be consummated, Borrowers agree to indemnify, pay and hold each of Agent, the Sustainability Structuring Agent, the Lead Arranger and each Lender, their permitted successors and assigns, and the officers, directors, employees, agents, consultants, auditors, persons engaged by Agent, the Sustainability Structuring Agent, the Lead Arranger or any Lender, to evaluate or monitor the Collateral, Affiliates and attorneys of each of Agent, the Sustainability Structuring Agent, Lead Arranger, and each Lender and such holders (collectively called the “Indemnitees”) harmless from and against any and all actual losses, claims, damages, liabilities and related out-of-pocket expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any Person (including Borrower) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (ii) any Loan or Lender Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any Issuing Lender to honor a demand for payment under a Lender Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any release of Hazardous Materials on or from any property owned or operated by Borrowers or any of its Subsidiaries, or any Environmental Claim asserted against Borrowers or any of its Subsidiaries, or (iv) any actual or threatened claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrowers, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) result from a claim brought by any Borrower against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if such Borrower has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction or (z) result from a claim not involving an act or omission of any Borrower and that is brought by an Indemnitee against another Indemnitee (other than against any arranger or Agent in their capacities as such). This Section 10.2(a) shall not apply with respect to Tax Liabilities other than any Tax Liabilities that represent losses, claims, damages, etc. arising from any non-tax claim.
(b) Reimbursement by the Lenders. To the extent that Borrowers for any reason fail to indefeasibly pay any amount required under Section 10.1 or Section 10.2(a) to be paid by it to Agent (or any sub-agent thereof), any Issuing Lender, any Swingline Lender or any Related Party of any of the foregoing, each Lender severally agrees to pay to Agent (or any such sub-agent), such Issuing Lender, such Swingline Lender or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Pro Rata Share at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Agent (or any such sub-agent), such Issuing Lender or such Swingline Lender in its capacity as such, or against any Related Party of any of the foregoing acting for Agent (or any such sub-agent), such Issuing Lender or such Swingline Lender in connection with such capacity.
10.3 Notices.
(a) Notices Generally. Unless otherwise specifically provided herein, all notices shall be in writing addressed to the respective party as set forth below and may be personally served, faxed, telecopied or sent by overnight courier service or United States mail and shall be deemed to have been given: (a) if delivered in person, when delivered; (b) if delivered by fax or telecopy, on the date of transmission if transmitted on a Business Day before 4:00 p.m. (New York City time) or, if not, on the next succeeding Business Day; (c) if delivered by overnight courier, two (2) days after delivery to such courier properly addressed; or (d) if by U.S. Mail, four (4) Business Days after depositing in the United States mail, with postage prepaid and properly addressed. If to
Any Loan Party or Restricted
Loan Party: Green Plains Inc.
1811 Ak-Sar-Ben Dr.
Omaha, Nebraska 68106
Attention: Will Joekel
With a copy to: Green Plains Inc.
1811 Ak-Sar-Ben Dr.
Omaha, Nebraska 68106
Attention: Michelle Mapes, Chief Legal & Administration Officer
If to Agent or to ING
Capital: ING Capital LLC
1133 Avenue of the Americas
New York, New York 10036
Attn: Chief Credit Officer
Fax No.: (646) 424-6390
With a copy to: ING Capital LLC
Three Lincoln Centre
5430 LBJ Freeway, Suite 1010
Dallas, Texas 75240
Attn: Daniel Lamprecht
With a copy to: Holland & Knight LLP
200 Crescent Court, Suite 1600
Dallas, Texas 75201
Attn: Scott C. Wallace
If to the Sustainability
Structuring Agent: ING Capital LLC
1133 Avenue of the Americas
New York, NY 10036
Attention: Ana Carolina Oliveira
If to any Lender: Its address indicated on the signature page hereto, in an Assignment and Acceptance Agreement or in a notice to Agent and GP Finco or to such other address as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section 10.3.
(b) Electronic Communications. Notwithstanding the foregoing, notices and other communications from Agent to the Lenders and the Issuing Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, and Internet or intranet websites) pursuant to procedures approved by Agent; provided that the foregoing shall not apply to notices to any Lender or Issuing Lender pursuant to Section 2.1 if such Lender or Issuing Lender, as applicable, has notified Agent that it is incapable of receiving notices under such Section by electronic communication. Agent or any Loan Party may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.
Unless Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
(c) Platform.
(i) The Loan Parties agree that Agent may, but shall not be obligated to, make the Communications (as defined below) available to the Issuing Lenders and the other Lenders by posting the Communications on the Platform.
(ii) The Platform is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the
Communications or the Platform. In no event shall Agent or any of its Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of Agent and of Agent’s Affiliates (collectively, the “Agent Parties”) have any liability to any Loan Party, any Lender or any other Person or entity for damages of any kind, including direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Loan Parties (or any of them) pursuant to any Loan Document or the transactions contemplated therein that is distributed to Agent, any Lender or any Issuing Lender by means of electronic communications pursuant to this Section, including through the Platform
10.4 Survival of Representations and Warranties and Certain Agreements. All agreements, representations and warranties made herein shall survive the execution and delivery of this Agreement and the making of the Loans hereunder. Notwithstanding anything in this Agreement or implied by law to the contrary, the agreements of the Loan Parties, Agent, and the Lenders set forth in Sections 2.8, 2.9, 2.12, 9.1(e), 10.1, 10.2, 10.6, 10.11, 10.14, and 10.15 shall survive the repayment of the Loans and the termination of this Agreement.
10.5 Indulgence Not Waiver. No failure or delay on the part of Agent, any Lender or any holder of any Note in the exercise of any power, right or privilege hereunder or under any Note shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.
10.6 Marshaling; Payments Set Aside. Neither Agent nor any Lender shall be under any obligation to marshal any assets in favor of any Loan Party or any other party or against or in payment of any or all of the Obligations. To the extent that any Loan Party makes a payment or payments to Agent and/or any Lender or Agent and/or any Lender enforces its security interests or exercises its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such recovery, the Obligations or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor, shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
10.7 Entire Agreement. This Agreement and the other Loan Documents embody the entire agreement among the parties hereto and supersede all prior commitments, agreements, representations, and understandings, whether written or oral, relating to the subject matter hereof, and may not be contradicted or varied by evidence of prior, contemporaneous, or subsequent oral agreements or discussions of the parties hereto.
10.8 Severability. The invalidity, illegality or unenforceability in any jurisdiction of any provision in or obligation under this Agreement or the other Loan Documents shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations under this Agreement, or the other Loan Documents.
10.9 Lenders’ Obligations Several; Independent Nature of Lenders’ Rights. The obligation of each Lender hereunder is several and not joint, and neither Agent nor any Lender shall be responsible for the obligation or Revolving Loan Commitments of any other Lender hereunder. The failure of any
Lender to make any Loan or, as applicable, to fund any such participation or to make any such payment on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its applicable Loan, to purchase its participations, as applicable, or to make payments under Section 10.2.
10.10 Headings. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.
10.11 APPLICABLE LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (BUT INCLUDING AND GIVING EFFECT TO SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT TO THE EXTENT ANY SUCH OTHER LOAN DOCUMENT EXPRESSLY SELECTS THE LAW OF ANOTHER JURISDICTION AS GOVERNING LAW THEREOF, IN WHICH CASE THE LAW OF SUCH OTHER JURISDICTION SHALL GOVERN.
10.12 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, no Loan Party may assign its rights or obligations hereunder without the written consent of all of the Lenders.
10.13 No Fiduciary Relationship; No Duty; Limitation of Liabilities.
(a) No Fiduciary Relationship. No provision in this Agreement or in any of the other Loan Documents and no course of dealing between the parties shall be deemed to create any fiduciary duty by Agent or any Lender to any Loan Party.
(b) No Duty. All attorneys, accountants, appraisers, and other professional Persons and consultants retained by Agent or any Lender shall have the right to act exclusively in the interest of Agent or such Lender and shall have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type or nature whatsoever to the Loan Parties or any of the Loan Parties’ shareholders or any other Person.
(c) Limitation of Liabilities. Neither Agent nor any Lender, nor any affiliate, officer, director, shareholder, employee, attorney, or agent of Agent or any Lender shall have any liability with respect to, and each Loan Party hereby waives, releases, and agrees not to sue any of them upon, any claim for any special, indirect, incidental, or consequential damages suffered or incurred by any Loan Party in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the other Loan Documents. The Loan Parties hereby waive, release, and agrees not to sue Agent or any Lender or any of Agent’s or any Lender’s affiliates, officers, directors, employees, attorneys, or agents for punitive damages in respect of any claim in connection with, arising out of, or in any way related to, this Agreement or any of the other Loan Documents, or any of the transactions contemplated by this Agreement or any of the transactions contemplated hereby.
10.14 CONSENT TO JURISDICTION. THE LOAN PARTIES HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREE THAT, SUBJECT TO AGENT’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED IN SUCH COURTS. THE LOAN PARTIES EXPRESSLY SUBMIT AND CONSENT TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS. THE LOAN PARTIES HEREBY WAIVE PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREE THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON THE LOAN PARTIES BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO THE LOAN PARTIES, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED.
10.15 WAIVER OF JURY TRIAL. THE LOAN PARTIES, AGENT AND EACH LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THE LOAN PARTIES, AGENT AND EACH LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. THE LOAN PARTIES, AGENT AND EACH LENDER WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
10.16 Construction. The Loan Parties, Agent and each Lender each acknowledge that it has had the benefit of legal counsel of its own choice and has been afforded an opportunity to review this Agreement and the other Loan Documents with its legal counsel. This Agreement and the other Loan Documents shall be construed as if jointly drafted by the Loan Parties, Agent and each Lender.
10.17 Counterparts; Effectiveness. This Agreement and any amendments, waivers, consents, or supplements may be executed via e-mail or facsimile transmission in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all of which counterparts together shall constitute one and the same instrument. This Agreement shall become effective upon the execution of a counterpart hereof by each of the parties hereto.
10.18 Confidentiality. Agent and each Lender agree to keep confidential any non-public information delivered pursuant to the Loan Documents or with respect to the Holdings and its Subsidiaries in furtherance thereof and not to disclose such information to Persons other than to: (a) its respective affiliates, officers, directors or employees and its assignees, participants, potential assignees or participants provided that each such recipient agrees to maintain confidentiality to the same extent as provided herein; (b) Persons employed by or engaged by Agent, a Lender or a Lender’s assignees or participants including, without limitation, attorneys, auditors, professional consultants, rating agencies, portfolio management services provided that such recipients agree to maintain confidentiality to the same extent as provided herein; (c) on a confidential basis to insurers and credit risk support providers; and (d) on a confidential basis to administration, settlement and similar service providers; provided, however, that Agent and each Lender may disclose such information to such other Persons approved in writing by GP Finco. The confidentiality provisions contained in this subsection shall not apply to disclosures (x) required to be made by Agent or any Lender to any regulatory or governmental agency (including, without limitation, the Board of Governors of the Federal Reserve System), or pursuant to legal process, (y) required to be made in connection with any pledge under Section 9.5(d) or (z) consisting of general
portfolio information that does not identify any Loan Party. The obligations of Agent and Lenders under this Section 10.18 shall supersede and replace the obligations of Agent and Lenders under any confidentiality agreement in respect of this financing executed and delivered by Agent or any Lender prior to the date hereof. In no event shall Agent or any Lender be obligated or required to return any materials furnished by any Loan Party. Any Person required to maintain the confidentiality of information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord to its own confidential information.
Notwithstanding the foregoing, and notwithstanding any other express or implied agreement or understanding to the contrary, each of the parties hereto and their respective employees, representatives, and other agents are authorized to disclose the tax treatment and tax structure of these transactions to any and all persons, without limitation of any kind. Each of the parties hereto may disclose all materials of any kind (including opinions or other tax analyses) insofar as they relate to the tax treatment and tax structure of the transactions contemplated by the Loan Documents. This authorization does not extend to disclosure of any other information including (without limitation) (a) the identities of participants or potential participants in the transactions (b) the existence or status of any negotiations, (c) any pricing other financial information or (d) any other term or detail not related to the tax treatment and tax structure of the transactions contemplated by the Loan Documents.
10.19 Publication. The Loan Parties hereby consents to the publication by Agent of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement; provided, however, Agent shall provide a draft of any such tombstone or similar advertising material to Borrowers for review prior to the publication thereof. Agent and Lenders reserve the right to provide industry trade organizations information necessary and customary for inclusion in league table measurements.
10.20 Waivers. Each of the Loan Parties hereby waives any defense to or limitation on its obligations under this Agreement arising out of any and all defenses it may now or hereafter have based on principles of suretyship, impairment of collateral, or the like. Each of the Loan Parties subordinates, and hereby agrees not to enforce (until all Obligations (except contingent indemnification obligations for which no claim has been asserted) have been paid in full in cash, the Revolving Loan Commitments are terminated and no Letters of Credit remain outstanding), any contribution or subrogation rights (if any) between them which might arise with respect to the payment by one Loan Party of any applicable Obligations.
10.21 Keepwell. Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Agreement in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 10.21 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.21, or otherwise under this Agreement, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 10.21 shall remain in full force and effect until the termination of the Revolving Loan Commitments and the payment in full of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted). Each Qualified ECP Guarantor intends that this Section 10.21 constitute, and this Section 10.21 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
10.22 USA PATRIOT ACT. To the extent applicable to Agent and Lenders, each Lender and Agent (for itself and not on behalf of any Lender) hereby notifies the Loan Parties that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender or Agent, as applicable, to identify the Loan Parties in accordance with the USA PATRIOT Act.
10.23 Certifications From Lenders and Participants; USA PATRIOT ACT. Each Foreign Lender that is not excepted from the certification requirement contained in Section 313 of the USA PATRIOT Act and the applicable regulations because it is both (i) an affiliate of a depository institution or foreign bank that maintains a physical presence in the United States or foreign country, and (ii) subject to supervision by a banking authority regulating such affiliated depository institution or foreign bank shall deliver to the Agent the certification, or, if applicable, recertification, certifying that such Lender is not a “shell” and certifying to other matters as required by Section 313 of the USA PATRIOT Act and the applicable regulations: (1) within 10 days after the Closing Date, and (2) as such other times as are required under the USA PATRIOT Act.
10.24 Contractual Recognition of Bail-In. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
10.25 Acknowledgment Regarding Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Hedge Agreements or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in
fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States.
(b) As used in this Section 10.25, the following terms have the following meanings:
(i) “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with 12 U.S.C. 1841(k)) of such party.
(ii) “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with 12 C.F.R § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
(iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
(iv) “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
10.26 Certain ERISA Matters.
(a) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of Borrowers or any other Loan Party, that at least one of the following is and will be true:
(i) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Revolving Loan Commitments or this Agreement;
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general
accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Revolving Loan Commitments and this Agreement;
(iii) (A) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Revolving Loan Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Loans, the Revolving Loan Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Revolving Loan Commitments and this Agreement; or
(iv) such other representation, warranty and covenant as may be agreed in writing between Agent, Borrowers (such agreement not to be unreasonably withheld, conditioned or delayed) and such Lender.
(b) In addition, unless either (1) paragraph (i) in the immediately preceding Section 10.26(a) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with paragraph (iv) in Section 10.26(a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, Agent and not, for the avoidance of doubt, to or for the benefit of Borrowers or any other Loan Party, that Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Revolving Loan Commitments and this Agreement (including in connection with the reservation or exercise of any rights by Agent under this Agreement, any Loan Document or any documents related hereto or thereto).
10.27 Farm Credit Equity.
(a) So long as a Farm Credit Bank is a Lender or voting Participant hereunder, Borrowers agree to (i) maintain its status as an entity eligible to borrow from such Farm Credit Bank and (ii) purchase Equity Interests in such Farm Credit Bank in such amounts and at such times as such Farm Credit Bank may require in accordance with such Farm Credit Bank’s bylaws and capital plan or similar documents (as each may be amended from time to time) (such Equity Interests, including any additional Equity Interests granted to Borrowers as patronage refunds or other distributions, “Farm Credit Equities”).
(b) Each party hereto acknowledges that (i) each Farm Credit Bank’s bylaws, capital plan and similar documents (as each may be amended from time to time) shall govern (x) the rights and obligations of the parties with respect to the Farm Credit Equities and any patronage refunds or other distributions made on account thereof or on account of Borrower’s patronage with such Farm Credit Bank, (y) Borrowers’ eligibility for patronage distributions from such Farm Credit Bank (in the form of Farm Credit Equities and cash) and (z) patronage distributions, if any, in the event of a sale of a participation interest, and (ii) such patronage refunds or distributions shall be payable directly for the
account of Borrower. Each Farm Credit Bank reserves the right to assign or sell participations in all or any part of its outstanding Loans hereunder in accordance with Section 9.5 to one or more assignees or purchasers that would not be expected to make patronage distributions to Borrowers on a going forward basis that are consistent with (or better than) those that Borrowers could reasonably have expected to have received from such transferring Farm Credit Bank; provided that if Borrowers’ consent to such assignment by such Farm Credit Bank is required pursuant to Section 9.5, the parties hereto agree that, solely with respect to Borrowers’ ability to reasonably withhold such consent because of an expected reduction in patronage distributions to Borrowers (it being understood and agreed that Borrowers may have another basis for reasonably withholding consent to such transfer), (A) if the transferring Farm Credit Bank has not delivered a Farm Credit Bank Transfer Certificate (as defined below) to Borrowers, then Borrowers may withhold their consent to such assignment or sale in its sole discretion (and in such case, Borrowers shall be deemed to have acted reasonably), and (B) if the transferring Farm Credit Bank has delivered a Farm Credit Bank Transfer Certificate to Borrowers, then Borrowers may not withhold their consent to such assignment or sale (and any such withholding of consent shall be deemed unreasonable). For purposes hereof, “Farm Credit Bank Transfer Certificate” means a certificate executed by an officer of the transferring Farm Credit Bank and certifying to Borrowers that such transferring Farm Credit Bank has used commercially reasonable efforts to consummate the relevant assignment or sale of a participation with another Person that would be expected to make patronage distributions to Borrowers on a going forward basis that are consistent with (or better than) those that Borrowers could reasonably have expected to have received from such transferring Farm Credit Bank.
Each party hereto acknowledges that each Farm Credit Bank has a statutory first-priority Lien pursuant to the Farm Credit Act of 1971 (as amended from time to time) on all Farm Credit Equities of such Farm Credit Bank that Borrowers may now own or hereafter acquire, which statutory Lien shall be for such Farm Credit Bank’s sole and exclusive benefit. The Farm Credit Equities of a particular Farm Credit Bank shall not constitute security for the Obligations due to any other Lender. To the extent that any of the Loan Documents create a Lien on the Farm Credit Equities of a Farm Credit Bank or on patronage accrued (but not yet paid) by such Farm Credit Bank for the account of Borrowers, such Lien shall be for such Farm Credit Bank’s sole and exclusive benefit and shall not be subject to pro rata sharing hereunder. Neither the Farm Credit Equities nor any accrued patronage shall be offset against the Obligations except that, in the event of an Event of Default, a Farm Credit Bank may elect, solely at its discretion, to apply the cash portion of any patronage distribution or retirement of equity to amounts due under this Agreement. Borrowers acknowledge that any corresponding tax liability associated with such application is the sole responsibility of Borrowers. No Farm Credit Bank shall have an obligation to retire the Farm Credit Equities of such Farm Credit Bank upon any Event of Default, Default or any other default by Borrowers or any other Loan Party, or at any other time, either for application to the Obligations or otherwise.
10.28 Waiver of Borrowers’ Rights Under Farm Credit Law. Borrowers acknowledge and agree that, to the extent the provisions of the Agricultural Credit Act of 1987, including, without limitation, 12 U.S.C. §§2199 through 2202e, and the implementing Farm Credit Administration regulations, 12 C.F.R. §617.7000, et seq. (collectively, the “Farm Credit Law”) apply to Borrowers or to the transactions contemplated by this Agreement, Borrowers, to the extent permitted by law, hereby irrevocably waives all statutory or regulatory rights of a borrower under the Farm Credit Law including without limitation, all rights to disclosure of effective interest rates, differential interest rates, review of credit decisions, distressed loan restructuring, and rights of first refusal (together with all other rights under the Farm Credit Law, “Borrower Rights”). Borrowers acknowledge and agree that the waiver of Borrower Rights provided by this Section is knowingly and voluntarily made after Borrowers have consulted with legal counsel of their choice and have been represented by counsel of their choice in connection with the
negotiation of this Agreement and the waiver of Borrower Rights set forth in this Section. Borrowers acknowledge that their waiver of Borrower Rights set forth in this Section is based on their recognition that such waiver is material to induce commercial banks and other non-Farm Credit System institutions (as defined under Farm Credit Law) to participate in the extensions of credit contemplated by this Agreement and to provide extensions of credit to Borrowers. Nothing contained in this Section, nor the delivery to Borrowers of any summary of any rights under, or any notice pursuant to, the Farm Credit Law shall be deemed to be, or be construed to indicate, the determination or agreement by Borrowers, Agent, or any Lender that the Farm Credit Law, or any rights thereunder, are or will be applicable to Borrowers or to the transactions contemplated by this Agreement. It is the intent of Borrowers that the waiver of Borrower Rights contained in this Section complies with and meets all of the requirements of 12 C.F.R. §617.7010(c).
SECTION 11 COLLATERAL AND SECURITY INTEREST; GUARANTY.
11.1 Grant of Security Interest.
(a) Grant of Lien in the Collateral. To secure the payment and performance of the Obligations, including all renewals, extensions, restructurings and refinancings of any or all of the Obligations, each Restricted Loan Party hereby grants to Agent, for the benefit of the Secured Parties, a security interest in and pledges and assigns to Agent, for the benefit of the Secured Parties the following properties, assets, and rights of such Restricted Loan Party, wherever located, whether such Restricted Loan Party now has or hereafter acquires an ownership or other interest or power to transfer (all being collectively referred to as the “Collateral”):
(i) all:
(A) Accounts;
(B) Inventory;
(C) Commercial Tort Claims, including those specified on Schedule 11.1(a), as such Schedule may be updated from time to time;
(D) Investment Accounts and cash and other monies and property of any Loan Party;
(E) Documents;
(F) Equipment;
(G) General Intangibles;
(H) Goods;
(I) Instruments;
(J) Chattel Paper;
(K) Investment Property (excluding any Equity Interests issued by any Loan Party or any Loan Party’s Subsidiaries);
(L) Letter-of-Credit Rights and Supporting Obligations;
(M) Subsidiary Loan Agreements and Subsidiary Loan Documents, all payments thereon or with respect thereto, and all rights and remedies of GP Finco with respect thereto;
(ii) all books, records, ledger cards, files, correspondence, computer programs, tapes, disks and related data processing software that at any time evidence or contain information relating to any of the property described above or are otherwise necessary or helpful in the collection thereof or realization thereon;
(iii) all insurance policies covering any or all of the foregoing (regardless of whether Agent is the loss payee, lender’s loss payee or otherwise thereof); and
(iv) to the extent not otherwise included, all Proceeds, products, accessions, rents and profits of any and all of the foregoing and all collateral security, supporting obligations and guarantees given by any Person with respect to any of the foregoing;
(b) Borrowers Remain Liable. Anything herein to the contrary notwithstanding: (i) Borrowers shall remain liable under the contracts and agreements included in the Collateral to the extent set forth therein to perform all of their duties and obligations thereunder to the same extent as if this Agreement or the other Loan Documents had not been executed; (ii) the exercise by Agent of any of the rights under this Agreement or the other Loan Documents shall not release any Borrowers from any of its duties or obligations to the parties under the contracts and agreements included in the Collateral; (iii) neither Agent nor any Lender shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Agreement or the other Loan Documents, nor shall Agent nor any Lender be obligated to perform any of the obligations or duties of any Borrower thereunder or to take any action to collect or enforce any claim for payment assigned under this Agreement or the other Loan Documents; and (iv) neither Agent nor any Lender shall have any liability in contract or tort for any Borrower’s acts or omissions.
(c) Endorsement; Insurance Claims. Each Borrower hereby constitutes and appoints Agent and all Persons designated by Agent for that purpose as such Borrower’s true and lawful attorney-in-fact, with power in the place and stead of such Borrower and in the name of such Borrower (a) to endorse such Borrower’s name to any of proceeds of Collateral that come into Agent’s possession or under Agent’s control, including without limitation, with respect to any drafts, Instruments, Documents and Chattel Paper, and (b) to obtain, adjust and settle insurance claims, which are required to be paid to Agent. Each Borrower hereby ratifies and approves all acts of Agent made or taken pursuant to this Section. Both the appointment of Agent as each Borrower’s attorney and Agent’s rights and powers are coupled with an interest and are irrevocable, so long as any of the Revolving Loan Commitments hereunder shall be in effect and until payment in full, in cash, of all Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and termination of all Lender Letters of Credit (or other arrangement acceptable to the issuer thereof in writing).
11.2 Collateral Warranties and Covenants.
(a) Accounts Warranties and Covenants.
(i) With respect to each Restricted Loan Party’s Accounts (in each case, except as otherwise disclosed to Agent in writing): (i) at the time of its creation, to the knowledge of such Restricted Loan Party, such Account is a valid, bona fide obligation, representing an undisputed indebtedness incurred by the Account Debtor (and any other Person obligated on such Account) for property actually sold and delivered or for services completely rendered; (ii) to the knowledge of such Restricted Loan Party there are no defenses, setoffs, offsets, claims, or counterclaims, genuine or otherwise, against such Account (other than those arising in the ordinary course of business or otherwise being contested by a Loan Party); (iii) such Account does not represent a sale to a Subsidiary, or a consignment, sale or return or a bill and hold transaction; (iv) the amount represented by any Loan Party to Agent as owing by each Account Debtor (and by each of the other Persons obligated on such Account) is, or will be, the correct amount actually and unconditionally owing, and no agreement exists permitting any other deduction or discount; (v) the applicable Restricted Loan Party is the lawful owner of such Account and has the right to assign the same to Agent, for the benefit of Agent and the Secured Parties; (vi) such Account is free of all Liens, other than those in favor of Agent, for the benefit of itself and the other Secured Parties, and other Permitted Encumbrances; and (vii) to the Knowledge of such Restricted Loan Party such Account constitutes, the legally valid and binding obligation of the applicable Account Debtor (and any other Person obligated on such Account) and is due and payable in accordance with its terms.
(ii) Each Restricted Loan Party shall use its reasonable efforts consistent with past business practices to assure prompt payment of all amounts due or to become due under Accounts. During the continuation of an Event of Default and upon written notice from Agent to GP Finco: (i) no Restricted Loan Party shall, without the prior consent of Agent, adjust, settle or compromise the amount or payment of any Account if such adjustment would be greater than $100,000, or release wholly or partly any Account Debtor (or any other Person obligated on such Account), or allow any credit or discount thereon in an amount greater than $100,000, and (ii) with respect to each Account of the Restricted Loan Parties, Agent shall have the right from time to time at Agent’s discretion (A) to exercise the rights of the applicable Restricted Loan Party with respect to the obligations of any Account Debtor or any other Persons obligated on any such Account to make payment or otherwise render performance to the applicable Restricted Loan Party, and with respect to any property that secures the obligations of any such Account Debtor or any such other Person obligated on such Account; and (B) to adjust, settle or compromise the amount or payment of any such Account or release wholly or partly any Account Debtor or obligor thereunder or allow any credit or discount thereon.
(iii) At any time following the occurrence of an Event of Default, Agent shall have the right to send notice of the assignment of, and Agent’s security interest in and Lien on, the Restricted Loan Parties’ Accounts to any and all customers or any third party holding or otherwise concerned with any of the Collateral. Thereafter, Agent shall have the sole right to collect such Accounts, take possession of the Collateral, or both. Agent’s actual collection expenses shall be included as part of the Obligations.
(iv) Agent shall have the right to receive, endorse, assign and/or deliver in the name of Agent or any Borrower any and all checks, drafts and other instruments for the payment of money relating to the Restricted Loan Parties’ Accounts, and each Borrower hereby waives notice of presentment, protest and non-payment of any instrument so endorsed. Each Borrower hereby constitutes Agent or Agent’s designee as such Borrower’s attorney with power (x) at any time: (A) to endorse such Borrower’s name upon any notes, acceptances, checks, drafts, money orders or other evidences of
payment or Collateral; (B) to sign such Borrower’s name on any invoice, bill of lading or customs documentation relating to any of the Restricted Loan Parties’ Accounts or Inventory, drafts against customers, assignments and verifications of the Restricted Loan Parties’ Accounts; (C) to send verifications of the Restricted Loan Parties’ Accounts to any customer; (D) to sign such Borrower’s name on all financing statements or any other documents or instruments deemed necessary or appropriate by Agent to preserve, protect, or perfect Agent’s interest in the Collateral and to file same; and (y) at any time following the occurrence of a Default or Event of Default: (A) to demand payment of the Restricted Loan Parties’ Accounts; (B) to enforce payment of the Restricted Loan Parties’ Accounts by legal proceedings or otherwise; (C) to exercise all of such Borrower’s rights and remedies with respect to the collection of the Restricted Loan Parties’ Accounts and any other Collateral; (D) to settle, adjust, compromise, extend or renew the Restricted Loan Parties’ Accounts; (E) to settle, adjust or compromise any legal proceedings brought to collect the Restricted Loan Parties’ Accounts; (F) to prepare, file and sign such Borrower’s name on a proof of claim in bankruptcy or similar document against any customer; (G) to prepare, file and sign such Borrower’s name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with the Restricted Loan Parties’ Accounts; and (H) to do all other acts and things necessary to carry out this Agreement. All acts of said attorney or designee are hereby ratified and approved, and said attorney or designee shall not be liable for any acts of omission or commission nor for any error of judgment or mistake of fact or of law, unless done maliciously or with gross (not mere) negligence (as determined by a court of competent jurisdiction in a final non-appealable judgment); this power being coupled with an interest is irrevocable while any of the Obligations remain unpaid. Agent shall have the right at any time following the occurrence of an Event of Default or Default, to change the address for delivery of mail addressed to any Borrower to such address as Agent may designate and to receive, open and dispose of all mail addressed to any Borrower.
(v) Neither Agent nor any other Secured Party shall, under any circumstances or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the settlement, collection or payment of any of the Restricted Loan Parties’ Accounts or any instrument received in payment thereof, or for any damage resulting therefrom. Following the occurrence of an Event of Default or Default Agent may, without notice or consent from any Borrower, sue upon or otherwise collect, extend the time of payment of, compromise or settle for cash, credit or upon any terms any of the Restricted Loan Parties’ Accounts or any other securities, instruments or insurance applicable thereto and/or release any obligor thereof. Agent is authorized and empowered to accept following the occurrence of an Event of Default or Default the return of the goods represented by any of the Restricted Loan Parties’ Accounts, without notice to or consent by any Borrower, all without discharging or in any way affecting any Borrowers’ liability hereunder.
(b) Inventory Warranties and Covenants.
(i) Except as otherwise disclosed to Agent in writing, all of the Restricted Loan Parties’ Inventory that is included in the determination of the Collateral Formula Amount at any time is of good and merchantable quality, free from any material defects. All such Inventory shall at all such times be segregated from the inventory and goods of Persons who are not Restricted Loan Parties and shall be separately and conspicuously identified as Inventory of the Restricted Loan Parties.
(ii) In the event that any Inventory with a value in excess of $1,000,000 in the aggregate becomes the subject of a negotiable or nonnegotiable warehouse receipt, said warehouse receipt shall be promptly delivered by the applicable Restricted Loan Party to Agent with such endorsements and assignments as are reasonably necessary or desirable to vest title and possession in the Agent. Provided that an Event of Default does not then exist and would not be created thereby, Agent
shall return such warehouse receipts to the applicable Borrower within two (2) Business Days of the applicable Restricted Loan Party’s request therefor, but only for purposes of negotiation, delivery or exchange in the ordinary course of the Restricted Loan Parties’ business.
(c) Equipment Warranties and Covenants. Each Restricted Loan Party has maintained all of the Equipment that is material to the Restricted Loan Party’s operations, and shall cause all such Equipment to be maintained, in good operating condition, repair and working order, ordinary wear and tear and casualty excepted, and shall promptly make or cause to be made all repairs, replacements, and other improvements in connection therewith that are necessary, in each case except where such failure would not reasonably be expected to result in a Material Adverse Effect. None of the Restricted Loan Parties’ Equipment (other than motor vehicles having an aggregate market value of less than $5,000,000, which have no Lien reflected on the titles related thereto) is covered by any certificate of title, and the Restricted Loan Parties shall promptly notify Agent to the extent any Restricted Loan Party obtains any Equipment (other than motor vehicles having a market value of less than $5,000,000 in the aggregate, which have no Lien reflected on the titles related thereto) covered by any certificate of title.
(d) Chattel Paper Warranties and Covenants. To the extent any Restricted Loan Party holds or obtains any Chattel Paper with a face value in excess of $2,000,000, or the Restricted Loan Parties in hold or obtain Chattel Paper with an aggregate face value in excess of $5,000,000, the Restricted Loan Parties will promptly (i) deliver to Agent all Tangible Chattel Paper duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance satisfactory to Agent and (ii) provide Agent with Control of all Electronic Chattel Paper, by having Agent identified as the assignee of the Records pertaining to the single authoritative copy thereof and otherwise complying with the applicable elements of Control set forth in the UCC. Each Restricted Loan Party will also deliver to Agent all security agreements securing any such Chattel Paper and execute UCC financing statement amendments assigning to Agent any UCC financing statements filed by such Restricted Loan Party in connection with such security agreements. Each Restricted Loan Party will mark conspicuously all such Chattel Paper with a legend, in form and substance reasonably satisfactory to Agent, indicating that such Chattel Paper is subject to the Lien of Agent.
(e) Instruments Warranties and Covenants. The Restricted Loan Parties will deliver to Agent all Instruments with a face value in excess of $20,000,000, with respect to Instruments comprised solely of letters of credit, or $500,000 with respect to other Instruments, they hold or obtain duly, in each case, endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent. The Restricted Loan Parties will also deliver to Agent all security agreements securing any such Instruments and authorize the filing by Agent of UCC financing statement amendments assigning to Agent any UCC financing statements filed by any Restricted Loan Party in connection with such security agreements. If, at any time, the Restricted Loan Parties hold or obtain Instruments with a face value in the aggregate in excess of $2,000,000 (excluding letters of credit), the Restricted Loan Parties will deliver to Agent Instruments duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent such that the aggregate face value of the Instruments held by the Restricted Loan Parties and not so delivered shall be less than or equal to $2,000,000 (excluding letters of credit).
(f) Investment Property Warranties and Covenants. The Restricted Loan Parties will take any and all actions reasonably requested by Agent from time to time, to (i) cause Agent to obtain exclusive Control of any Investment Property (excluding any Equity Interests issued by any Loan Party or any Loan Party’s Subsidiaries) with a value in excess of $2,000,000, in a manner reasonably acceptable to
Agent and (ii) obtain from any issuers of such Investment Property and such other Persons, for the benefit of Agent, written confirmation of Agent’s Control over such Investment Property upon terms and conditions reasonably acceptable to Agent.
(g) Letters of Credit Warranties and Covenants. The Restricted Loan Parties will deliver to Agent, duly endorsed and accompanied by duly executed instruments of transfer or assignment, all in form and substance reasonably satisfactory to Agent, (i) any Letter of Credit which the Borrowers are relying on to meet the eligibility requirements for any Account included in the Borrowing Base or the Collateral Formula Amount and (ii) any other individual Letter of Credit with a face amount of more than $15,000,000 (or such greater amount as agreed to by the Agent in its sole discretion) under which any of the Restricted Loan Parties is the beneficiary or is otherwise entitled to draw thereunder. The Restricted Loan Parties will also deliver to Agent all security agreements securing any such Letters of Credit and execute UCC financing statement amendments assigning to Agent any UCC financing statements filed by any Restricted Loan Party in connection with such security agreements. The Restricted Loan Parties will take any and all actions necessary (or reasonably required or requested by Agent), from time to time, to cause Agent to obtain exclusive Control of any Letter-of-Credit Rights owned by the Restricted Loan Parties (or any of them) in a manner reasonably acceptable to Agent.
(h) [Reserved].
(i) Commercial Tort Claims Warranties and Covenants. Except for matters disclosed on Schedule 11.2(i), no Restricted Loan Party owns any Commercial Tort Claims (other than any Commercial Tort Claim with a value of less than $2,000,000 as reasonably determined by the Restricted Loan Parties in good faith). The Restricted Loan Parties shall advise Agent promptly upon any Restricted Loan Party becoming aware that it owns any additional Commercial Tort Claims (other than a Commercial Tort Claim with a value of less than $2,000,000 as reasonably determined by such Restricted Loan Party in good faith). With respect to any such new Commercial Tort Claim, the applicable Restricted Loan Party will execute and deliver such documents, and authorize the filling of such UCC financing statements, as Agent deems necessary or advisable to create, perfect and protect Agent’s security interest in such Commercial Tort Claim.
(j) Investment Accounts; Bank Accounts Warranties and Covenants. As of the Closing Date, Schedule 11.2(j) sets forth the account numbers and locations of all Investment Accounts or other bank accounts of each Restricted Loan Party and the nature of such accounts. Subject to Section 5.14, all Investment Accounts of the Restricted Loan Parties (other than (i) any Deposit Account used solely to make payroll, tax, or employee benefits payments, (ii) Deposit Accounts with an aggregate daily balance (determined at the close of business on each day) not in excess of $1,000,000, (iii) any zero balance accounts and (iv) any trust accounts (the Investment Accounts described in clauses (i) through (iv), the “Excluded Accounts”)) are subject to Control Agreements, in each case, in form and substance reasonably satisfactory to Agent in its good faith credit judgment, executed by and among Agent, the applicable Restricted Loan Parties and financial institutions, Securities Intermediaries, or Commodity Intermediaries with respect to such Investment Accounts.
(k) Subsidiary Loan Documents Warranties and Covenants. Subject to the time period set forth in Section 5.14(e):
(i) The Restricted Loan Parties have delivered to Agent, for each Borrower (other than GP Finco) party hereto, true and correct copies of the Subsidiary Loan Agreement and the related Subsidiary Loan Documents between such Borrower and GP Finco. Such Subsidiary Loan
Documents have not been amended or modified, and no provisions thereof have been waived, except as consented to by Agent in writing.
(ii) The Restricted Loan Parties shall take such actions as Agent may reasonably request from time to time to (x) ensure that the Obligations are secured by a perfected security interest in all of the Subsidiary Loan Documents and (y) during the continuation of an Event of Default, assist with or otherwise facilitate Agent’s exercise of any rights or remedies with respect to the Subsidiary Loan Documents. Each Borrower hereby acknowledges Agent’s security interest in all of GP Finco’s rights and remedies under its respective Subsidiary Loan Documents and acknowledges and agrees that Agent may, during the continuation of an Event of Default, exercise such remedies with respect to such Subsidiary Loan Documents as are provided for hereunder, under any other Loan Document or by applicable law.
(l) Landlords; Bailees. Except as disclosed on Schedule 11.2(l), none of the Collateral is in the possession of any landlord, consignee, bailee, warehouseman, agent or processor. Subject to Section 5.14, each Restricted Loan Party shall (x) deliver to Agent collateral access agreements, in form and substance reasonably satisfactory to Agent, executed by each landlord, consignee, bailee, warehouseman, agent or processor in possession, in each case, that is an Affiliate of Holdings, of any of Collateral and (y) use commercially reasonable efforts to deliver to Agent collateral access agreements, in form and substance reasonably satisfactory to Agent, executed by each other landlord, consignee, bailee, warehouseman, agent or processor in possession of any of Collateral with a value in excess of $2,000,000. In addition, and without limiting the foregoing, the Restricted Loan Parties shall use commercially reasonably efforts to deliver such collateral access agreements as shall be necessary for the aggregate value of all Collateral held by landlords, consignees, bailees, warehousemen, agents or processors not party to such a collateral access agreement does not exceed $5,000,000.
(m) Cash Management.
(i) All proceeds of the Collateral shall be deposited by Borrowers into a Collateral Account; and
(ii) During any Borrowing Base Period, except as otherwise agreed by the Requisite Lenders, (A) Agent shall have full and exclusive dominion and control over all of Borrowers’ Deposit Accounts (other than Excluded Accounts), and (B) on each Business Day during such Borrowing Base Period, all funds credited to any Collateral Account on the immediately preceding Business Day shall be applied to prepay any Obligations outstanding at such time.
(n) Collateral Description; Use of Collateral. The Restricted Loan Parties will furnish to Agent, from time to time upon Agent’s reasonable request, schedules further identifying, updating, and describing the Collateral and such other information, reports and evidence concerning the Collateral, as Agent may reasonably request, all in reasonable detail. No Restricted Loan Party will use or permit any Collateral to be used unlawfully or in violation of any provision of applicable law, or any policy of insurance covering any of the Collateral except where such use would not reasonably be expected to result in a Material Adverse Effect.
(o) Collateral Records. The Restricted Loan Parties shall keep full and accurate books and records relating to the Collateral and shall stamp or otherwise mark such books and records in such manner as Agent may reasonably request to indicate Agent’s Liens on the Collateral, for the benefit of Agent and the Secured Parties.
(p) Federal Claims. None of the Collateral constitutes a claim against the United States of America, or any State or municipal government or any department, instrumentality or agency thereof, the assignment of which claim is restricted by law. The Restricted Loan Parties shall notify Agent of any Collateral which constitutes a claim against the United States of America, or any State or municipal government or any department, instrumentality or agency thereof, the assignment of which claim is restricted by law. Upon the request of Agent, Restricted Loan Parties shall take such steps as may be necessary to comply with any applicable federal assignment of claims laws and other comparable laws.
(q) Agent Authorized. Each Restricted Loan Party hereby authorizes Agent to file such financing or continuation statements, and amendments thereto (or similar documents required by any laws of any applicable jurisdiction), relating to all or any part of the Collateral as Agent deems reasonably advisable, in each case without the signature of any Restricted Loan Party, and hereby specifically ratifies all such actions previously taken by Agent.
11.3 Joinder of Borrowers; Guaranty; Nature and Extent of Each Loan Party’s Liability
(a) Subsidiary Borrower Joinder. At the request of GP Finco from time to time after the Closing Date, one or more Subsidiaries of Holdings, including those Subsidiaries set forth in Schedule 11.3, may, subject to the terms hereof, become a “Borrower” under this Agreement and the other Loan Documents. Any such Subsidiary shall immediately and automatically become a “Borrower” hereunder and under the other Loan Documents upon Agent’s determination that such Subsidiary and GP Finco have satisfied the Subsidiary Borrower Conditions with respect to such Subsidiary.
(b) Guaranty; Joint and Several Liability of Loan Parties. Each Loan Party agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to Agent and the Lenders the prompt payment and performance of, all Obligations. Each Loan Party agrees that its guaranty obligations as a Guarantor hereunder constitute a continuing guaranty of payment and not of collection, that such obligations shall not be discharged until the payment in full in cash of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted), and that such obligations are absolute and unconditional, irrespective of (i) the genuineness, validity, regularity, enforceability, subordination or any future modification of, or change in, any Obligations or Loan Document, or any other document, instrument or agreement to which any Loan Party is or may become a party or be bound; (ii) the absence of any action to enforce this Agreement (including this Section 11.3) or any other Loan Document, or any waiver, consent or indulgence of any kind by Agent or any Lender with respect thereto; (iii) the existence, value or condition of, or failure to perfect a Lien or to preserve rights against, any security or guaranty for any Obligations or any action, or the absence of any action, by Agent or any Lender in respect thereof (including the release of any security or guaranty); (iv) the insolvency of any Loan Party; (v) any election by Agent or any Lender in a bankruptcy or other insolvency proceeding for the application of Section 1111(b)(2) of the Bankruptcy Code of the United States (or the equivalent under any other Debtor Relief Laws); (vi) any borrowing or grant of a Lien by any other Loan Party, as debtor-in-possession under Section 364 of the Bankruptcy Code (or the equivalent under any other Debtor Relief Laws) or otherwise; (vii) the disallowance of any claims of Agent or any Lender against any Loan Party for the repayment of any Obligations under Section 502 of the Bankruptcy Code of the United States (or the equivalent under any other Debtor Relief Laws) or otherwise; or (viii) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, except the payment in full in cash of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted).
(c) Waivers by Loan Parties.
(i) Each Loan Party hereby expressly waives all rights that it may have now or in the future under any statute, at common law, in equity or otherwise, to compel Agent or the Lenders to marshal assets or to proceed against any Loan Party, other Person or security for the payment or performance of any Obligations before, or as a condition to, proceeding against such Loan Party. Each Loan Party waives all defenses available to a surety, guarantor or accommodation co-obligor other than the payment in full in cash of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted) and waives, to the maximum extent permitted by law, any right to revoke any guaranty of Obligations as long as it is a Loan Party. It is agreed among each Loan Party, Agent and the Lenders that the provisions of this Section 11.3 are of the essence of the transaction contemplated by the Loan Documents and that, but for such provisions, Agent and Lenders would decline to make Loans. Each Loan Party acknowledges that its guaranty pursuant to this Section 11.3 is necessary to the conduct and promotion of its business, and can be expected to benefit such business.
(ii) Agent and the Lenders may, in their discretion, pursue such rights and remedies as they deem appropriate, including realization upon all or any portion of the Collateral by judicial foreclosure or non-judicial sale or enforcement, without affecting any rights and remedies under this Section 11.3. If, in taking any action in connection with the exercise of any rights or remedies, Agent or any Lender shall forfeit any other rights or remedies, including the right to enter a deficiency judgment against any Loan Party or other Person, whether because of any applicable laws pertaining to “election of remedies” or otherwise, each Loan Party consents to such action and waives any claim based upon it, even if the action may result in loss of any rights of subrogation that any Loan Party might otherwise have had. Any election of remedies that results in denial or impairment of the right of Agent or any Lender to seek a deficiency judgment against any Loan Party shall not impair any Loan Party’s obligation to pay the full amount of the Obligations. Each Loan Party waives all rights and defenses arising out of an election of remedies, such as non-judicial foreclosure (where applicable) with respect to any security for Obligations, even though that election of remedies may destroy such Loan Party’s rights of subrogation against any other Person. Agent may bid Obligations, in whole or part, at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by Agent but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Agent or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 11.3, notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which Agent or any Lender might otherwise be entitled but for such bidding at any such sale.
(d) Extent of Liability of Loan Parties; Contribution.
(i) Notwithstanding anything herein to the contrary, each Loan Party’s liability under this Section 11.3 shall not exceed the greater of (i) all amounts for which such Loan Party is primarily liable, as described below, and (ii) such Loan Party’s Allocable Amount.
(ii) If any Loan Party makes a payment under this Section 11.3 of any Obligations (a “Guarantor Payment”) that, taking into account all other Guarantor Payments previously or concurrently made by any other Loan Party, exceeds the amount that such Loan Party would otherwise have paid if each other Loan Party had paid the aggregate Obligations satisfied by such Guarantor
Payments in the same proportion that such Loan Party’s Allocable Amount bore to the total Allocable Amounts of all Loan Parties, then such Loan Party shall be entitled to receive contribution and indemnification payments from, and to be reimbursed by, each other Loan Party for the amount of such excess, ratably based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. The “Allocable Amount” for any Loan Party shall be the maximum amount that could then be recovered from such Loan Party under this Section 11.3 or any other Guaranty without rendering such payment voidable under Section 548 of the Bankruptcy Code or under any other applicable Debtor Relief Law or similar common law.
(iii) Section 11.3(c) shall not limit the liability of any Loan Party to pay or guarantee Loans made directly or indirectly to it (including Loans advanced hereunder to any other Person and then re-loaned or otherwise transferred to, or for the benefit of, such Loan Party) and all accrued interest, fees, expenses and other related Obligations with respect thereto, for which such Loan Party shall be primarily liable for all purposes hereunder. Agent and Lenders shall have the right, at any time in their reasonable discretion, to condition Loans upon a separate calculation of borrowing availability for each Borrower and to restrict the disbursement and use of Loans to a Borrower based on that calculation.
(e) Release of Guarantors. Notwithstanding anything in Section 9.4 to the contrary, any Subsidiary Guarantor shall automatically be released from its obligations hereunder (a) upon the consummation of any permitted transaction or series of related transactions if as a result thereof such Subsidiary Guarantor ceases to be a Subsidiary of a Borrower and/or (b) upon the payment in full in cash of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted). In connection with any such release, Agent shall promptly execute and deliver to the Borrowers or the relevant Guarantor all documents that may be reasonably requested to evidence termination or release. Any execution and delivery of documents pursuant to the preceding sentence of this Section 11.3(e) shall be without recourse to or warranty by Agent (other than as to Agent’s authority to execute and deliver such documents).
(f) Joint Enterprise. Each Loan Party has requested that Agent and Lenders make this credit facility available to Borrowers on a combined basis, in order to finance the Loan Parties’ business most efficiently and economically. The Loan Parties’ business is a mutual and collective enterprise, and the successful operation of each Loan Party is dependent upon the successful performance of the integrated group. Loan Parties believe that consolidation of their credit facility will enhance the borrowing power of each Loan Party and ease administration of the facility, all to their mutual advantage. The Loan Parties acknowledge that Agent’s and the Lenders’ willingness to extend credit and to administer the Collateral on a combined basis hereunder is done solely as an accommodation to the Loan Parties and at the Loan Parties’ request.
(g) Subordination. Each Loan Party hereby expressly and irrevocably subordinates any claims, including any rights at law or in equity to payment, subrogation, reimbursement, exoneration, contribution, indemnification or set off, that it may have at any time against any other Loan Party, howsoever arising, to the payment in full in cash of the Obligations (other than contingent indemnification obligations to the extent no claim giving rise thereto has been asserted). Each Loan Party acknowledges and agrees that this subordination is intended to benefit Agent and Lenders and shall not limit or otherwise affect such Loan Party’s liability hereunder or the enforceability of this Section 11.3, and that Agent, Lenders and their respective successors and assigns are intended third-party beneficiaries of the waivers and agreements set forth in this Section 11.3.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
Witness the due execution hereof by the respective duly authorized officers of the undersigned as of the date first written above.
GREEN PLAINS INC., an Iowa corporation
By:
Name:
Title:
GREEN PLAINS FINANCE COMPANY LLC, a Delaware limited liability company
By:
Name:
Title:
GREEN PLAINS GRAIN COMPANY LLC, a Delaware limited liability company
By:
Name:
Title:
GREEN PLAINS TRADE GROUP LLC, a Delaware limited liability company
By:
Name:
Title:
Signature Page to
Loan and Security Agreement
ING CAPITAL LLC,
as Agent, Sole Lead Arranger, Sole Bookrunner and a Lender
By:
Name:
Title:
By:
Name:
Title:
Signature Page to
Loan and Security Agreement
[LENDER],
as a Lender
By:
Name:
Title:
Address for notice:
[__]
Signature Page to
Loan and Security Agreement
Rider A
REPORTING RIDER
This Reporting Rider is attached to and made a part of that certain Loan and Security Agreement, dated as of March 25, 2022 (the “Loan Agreement”), by and among Green Plains Inc., an Iowa corporation, Green Plains Finance Company LLC, a Delaware limited liability company, Green Plains Grain Company LLC, a Delaware limited liability company, Green Plains Trade Group LLC, a Delaware limited liability company, the other Loan Parties from time to time party thereto, the financial institutions from time to time party thereto as “Lenders” and ING Capital LLC, as agent. Capitalized terms used but not defined in this Reporting Rider shall have the meanings assigned to them in the Loan Agreement.
The Loans Parties covenant and agree that, until the Obligations shall have been paid in full in cash and the Revolving Loan Commitments shall have been irrevocably terminated, the Loan Parties shall perform, and shall cause each Subsidiary of a Restricted Loan Party to:
(a) Annual Financial Statements. Furnish Agent within one hundred twenty (120) days after the end of each Fiscal Year of Holdings, (i) audited financial statements of Holdings and its Subsidiaries on a consolidated basis, including, but not limited to, statements of income and stockholders’ equity and cash flow from the beginning of the current Fiscal Year to the end of such Fiscal Year and the balance sheet as at the end of such Fiscal Year, and (ii) financial statements of Borrowers on a consolidating basis including, but not limited to, statements of income and stockholders’ equity and cash flow from the beginning of the current Fiscal Year to the end of such Fiscal Year and the balance sheet as at the end of such Fiscal Year all prepared in accordance with GAAP applied on a basis consistent with prior practices, and in reasonable detail and reported upon without qualification (other than with respect to any impending maturity date of Indebtedness for borrowed money or any actual or potential violation of a financial covenant with respect to any Indebtedness) by Holdings’ Accountants.
(b) Monthly Financial Statements. Furnish Agent within thirty (30) days (or forty-five days with respect to the third month in any fiscal quarter) after the end of each of each month, an unaudited balance sheet of Borrowers and unaudited statements of income and cash flow for Holdings and its Subsidiaries, in each case, reflecting results of operations from the beginning of the Fiscal Year to the end of such month and for such month, prepared on a basis consistent with prior practices and complete and correct in all material respects, subject to normal and recurring year-end adjustments that individually and in the aggregate are not material to the business of Loan Parties. Each such balance sheet, statement of income and statement of cash flow shall: (i) be certified (subject to normal year-end audit adjustments) by a Responsible Officer of Holdings as having been prepared in accordance with GAAP (except for the absence of footnotes and normal year-end adjustments), consistently applied (except for those changes in GAAP that may be subsequently recommended by Borrowers’ independent public accountants); and (ii) commencing with March 31, 2023, set forth a comparison of the figures for (w) the current fiscal period and (x) the current year-to-date with the figures for (y) the same fiscal period and year-to-date period of the immediately preceding Fiscal Year.
(c) Compliance Certificate. Together with delivery of each set of financial statements referenced in paragraphs (a) and (b) above, as applicable, deliver to Agent a Compliance Certificate, together with copies of the calculations and work-up employed to determine the Loan Parties’ compliance or noncompliance with the financial covenants set forth in the Financial Covenants Rider.
(d) Collateral Reports.
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(i) Deliver to Agent, within twenty (20) days after the end of each month, as and for the prior month (i) a listing of accounts receivable counterparties, (ii) accounts receivable agings, and (iii) accounts payable agings.
(ii) Deliver to Agent at such intervals as Agent may reasonably require: (i) copies of customer’s invoices and (ii) such further schedules, documents and/or information regarding the Collateral as Agent may reasonably require including, without limitation, trial balances and test verifications. All such reports and other items required under this clause (d) shall be in form and substance satisfactory to Agent in its Permitted Discretion, and delivered to Agent from time to time solely for Agent’s convenience in maintaining records of the Collateral, and any Loan Party’s failure to deliver any of such items to Agent shall not affect, terminate, modify or otherwise limit Agent’s Lien with respect to the Collateral.
(iii) Not later than two (2) Business Days after any Borrowing Base Trigger Event, and thereafter, concurrently with the delivery of each set of financial statements referenced in paragraphs (a) and (b) above during a Borrowing Base Period, deliver to Agent a Borrowing Base Certificate.
(e) Government Accounts. Notify Agent promptly if any of its Accounts arise out of contracts between any Loan Party and the United States, any state, or any department, agency or instrumentality of any of them.
(f) Material Occurrences. Promptly notify Agent in writing upon (x) during any time other than a Borrowing Base Period, any Loan Party obtaining knowledge that, as of any date of determination the Aggregate Revolving Credit Exposure on such date exceeds the Collateral Formula Amount if the Collateral Formula Amount were determined on any such date, or (y) the occurrence of (i) any Event of Default; (ii) any event, development or circumstance whereby any financial statements or other reports furnished to Agent fail in any material respect to present fairly, in accordance with GAAP consistently applied, the financial condition or operating results of any Loan Party as of the date of such statements and any Loan Party has Knowledge thereof; (iii) any accumulated retirement plan funding deficiency which, if such deficiency continued for two plan years and was not corrected as provided in Section 4971 of the IRC, could subject any Loan Party to a tax imposed by Section 4971 of the IRC; and (iv) any other development in the business or affairs of any Loan Party which would reasonably be expected to have a Material Adverse Effect; in each case describing the nature thereof and the action Loan Parties propose to take with respect thereto.
(g) Litigation. Promptly notify Agent in writing of: (i) any litigation, suit or administrative proceeding affecting any Loan Party, whether or not the claim is covered by insurance, and of any suit or administrative proceeding, which in any such case involves claims in excess of $5,000,000 or would reasonably be expected to have a Material Adverse Effect; and (ii) any material orders or judgments entered in any such proceedings so identified.
(h) SEC Filings. Furnish Agent copies of all quarterly and annual reports filed with the Securities Exchange Commission promptly after the filing of the same.
(i) Other Reports. Furnish Agent as and when reasonably requested by Agent any reports including management letters submitted to Borrowers or any other Loan Party by independent accountants in connection with any annual, interim or special audit.
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(j) Additional Information. Furnish Agent with such additional information as Agent shall reasonably request in order to enable Agent to determine whether the terms, covenants, provisions and conditions of the Loan Documents have been complied with by Loan Parties including, without limitation and without the necessity of any request by Agent: (i) copies of all environmental audits and reviews, in which conditions, compliance matters or Environmental Claims have a reasonable possibility of resulting in a Material Adverse Effect; (ii) at least thirty (30) days prior written notice of any material amendment to the organizational documents of any Loan Party; (iii) concurrently with the delivery of quarterly or annual financial statements as required hereunder, a certificate listing any registered intellectual property rights acquired by any Loan Party, and any Deposit Accounts opened by any Loan Party; (iv) within fifteen (15) Business Days after request by the Agent, to the extent applicable, true and correct copies of any filing made by any Loan Party with the Internal Revenue Service relating to its liability for income taxes or any annual tax and capital information (including on Form K-1) delivered to any equity owner of such Loan Party; and (v) promptly upon any Loan Party’s learning thereof, notice of any labor dispute to which any Loan Party may become a party, any strikes or walkouts relating to any of its plants or other facilities, and the expiration of any labor contract to which any Loan Party is a party or by which any Loan Party is bound, in each case to the extent such matter would reasonably be expected to have a Material Adverse Effect.
(k) Projected Operating Budget. Furnish Agent, concurrently with the delivery of the financial statements required under paragraph (a) above, Projections, including month-by-month projected operating budget, income statement, balance sheet and cash flow statement for Holdings and its Subsidiaries on a consolidated basis, for the Fiscal Year following the Fiscal Year then-most recently ended, such Projections to be accompanied by a certificate signed by a Responsible Officer of Borrowers to the effect that such Projections have been prepared on the basis of sound financial planning practice consistent with past budgets and financial statements and that such officer has no reason to question the reasonableness of any material assumptions on which such projections were prepared.
(l) [Reserved].
(m) Governmental Notices, Adverse Events. Furnish Agent with prompt notice of (i) any lapse or other termination of any consent, permit or license issued to any Loan Party by any Governmental Authority or any other Person that is necessary to the operation of any Loan Party’s business, (ii) any refusal by any Governmental Authority or any other Person to renew or extend any such consent, permit or license; and (iii) copies of any periodic or special reports filed by any Loan Party with any Governmental Authority or Person, if such reports indicate any material change in the business, operations, affairs or condition of any Loan Party, or if copies thereof are requested by Agent or any Lender, and (iv) copies of any material notices and other communications from any Governmental Authority or Person which specifically relate to any Loan Party or the business of any Loan Party.
(n) ERISA Notices and Requests. Promptly upon becoming aware of the occurrence of or forthcoming occurrence of any ERISA Event that would reasonably be expected to result in a liability to any Loan Party in excess of $1,000,000 or to have a Material Adverse Effect, a written notice specifying the nature thereof, what action Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates has taken, is taking or proposes to take with respect thereto and, when known, any action taken or threatened by the IRS, the Department of Labor or the PBGC with respect thereto.
(o) Environmental Reports. Furnish Agent, concurrently with the delivery of the financial statements referred to in paragraphs (a) and (b) hereof, with a certificate signed by Responsible Officer of each Loan Party stating, to the best of his knowledge, that each Loan Party is in compliance in
Rider A - 3
all material respects with all federal, state and local laws relating to environmental protection and control and occupational safety and health. To the extent any Loan Party is not in compliance with the foregoing laws in all material respects, the certificate shall set forth with specificity all areas of such non-compliance and the proposed action Loan Party will implement in order to achieve full compliance.
(p) Delivery of Sustainability Documents. Furnish Agent, in sufficient copies for all the Lenders, and the Sustainability Structuring Agent as soon as the same is available (and in any event within one hundred fifty (150) days of the end of each calendar year (or such later date as the Sustainability Structuring Agent may agree in its sole discretion)) the KPI Metrics Report for that calendar year which shall, amongst other things, set out in reasonable detail information relating to compliance with each Key Performance Indicator (as applicable) and shall be signed by two Responsible Officer(s) of Holdings.
(q) Indebtedness. Promptly deliver copies of all written notices given or received by such Loan Party with respect to noncompliance in any material respect with any term or condition related to any Indebtedness in excess of $10,000,000, and shall promptly notify Agent of any “event of default” (or similar) that occurs with respect to any Indebtedness.
(r) Fundamental Changes. Give Agent at least thirty (30) days advance written notice of any: (a) change of name of any Restricted Loan Party, (b) change of principal place of business of any Restricted Loan Party (c) change in the location of any Restricted Loan Party’s books and records or the material portion of the Collateral, (d) new location for any Restricted Loan Party’s books and records or the material portion of the Collateral, or (e) change in any Restricted Loan Party’s state or other jurisdiction of organization or its organizational identification number.
(s) Proceedings. Promptly upon any Borrower obtaining Knowledge of (a) the institution of any action, suit, proceeding, governmental investigation or arbitration against or affecting any Restricted Loan Party or any property of any Restricted Loan Party not previously disclosed by such Restricted Loan Party to Agent or (b) any material development in any action, suit, proceeding, governmental investigation or arbitration at any time pending against or affecting any Restricted Loan Party or any property of any Restricted Loan Party which, in either such case, would reasonably be expected to result in a Material Adverse Effect, Borrowers will promptly give notice thereof to Agent (and Agent will promptly provide notice thereof to the Lenders) and provide such other information as may be reasonably available to enable Agent and its counsel to evaluate such matter.
(t) Contractual Obligations. The Restricted Loan Parties shall promptly notify Agent (and Agent will promptly provide notice thereof to the Lenders) of (a) the occurrence of any material default or breach under any material contractual obligation of any Restricted Loan Party, (b) the termination of any material contractual obligation of any Restricted Loan Party, or (c) the amendment or modification of any material contractual obligation of any Restricted Loan Party which may be adverse to the Lenders, in each case where such default, termination or amendment would result in a Material Adverse Effect.
(u) Additional Documents. Execute and deliver to Agent, upon request, such documents and agreements, including any documents or agreements regarding the financial condition and operations of the Loan Parties, as Agent may, from time to time, reasonably request.
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Rider B
FINANCIAL COVENANTS RIDER
This Financial Covenants Rider is attached to and made a part of that certain Loan and Security Agreement, dated as of March 25, 2022 (the “Loan Agreement”), by and among Green Plains Inc., an Iowa corporation, Green Plains Finance Company LLC, a Delaware limited liability company, Green Plains Grain Company LLC, a Delaware limited liability company, Green Plains Trade Group LLC, a Delaware limited liability company, the other Loan Parties from time to time party thereto, the financial institutions from time to time party thereto as “Lenders” and ING Capital LLC, as agent. Capitalized terms used but not defined in this Financial Covenant Rider shall have the meanings assigned to them in the Loan Agreement.
The Loan Parties covenant and agree that, until the Obligations shall have been paid in full in cash and the Revolving Loan Commitments shall have been irrevocably terminated:
(a) Current Ratio. The Loan Parties shall not permit the Current Ratio as of last day of each calendar month, beginning with the month ending April 30, 2022, to be less than 1.00 to 1.00.
(b) Debt to Capitalization Ratio. The Loan Parties shall not permit the Debt to Capitalization Ratio, as of last day of each calendar month, beginning with the month ending April 30, 2022, to be greater than 0.60 to 1.00.
(c) Collateral Coverage Ratio. The Loan Parties shall not permit the Collateral Coverage Ratio as of last day of each calendar month, beginning with the month ending April 30, 2022, to be less than 1.20 to 1.00.
Rider B - 1
Document
Exhibit 10.8
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of May 7, 2025, between GREEN PLAINS SPE LLC, a Delaware limited liability company (the “Issuer”), GREEN PLAINS INC., an Iowa corporation (the “Guarantor”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (the “Trustee”), under the Indenture, dated as of February 9, 2021, as amended by Amendment No. 1 dated May 13, 2022 (the “Indenture”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Indenture.
W I T N E S S E T H:
WHEREAS, the Issuer, the Guarantor and the Trustee have heretofore executed and delivered the Indenture providing for the issuance by the Issuer of the Junior Secured Mezzanine Notes due 2026 (the “Notes”);
WHEREAS, Section 9.2 of the Indenture provides that, with the consent of the Holders of a majority in Aggregate Outstanding Principal Amount of the Notes (and, with respect to the amendment set forth in the definition of “Scheduled Maturity Date” as set forth below, each Holder of the applicable Notes affected thereby), the Issuer, the Guarantor and the Trustee may amend or supplement the Indenture or the Notes in accordance with such Section 9.2;
WHEREAS, the Issuer has heretofore delivered or is delivering contemporaneously herewith to the Trustee (i) copies of resolutions of the Board of Directors of the Issuer authorizing the execution of this Supplemental Indenture, (ii) evidence of the written consent of the Holders set forth in the immediately preceding paragraph and (iii) the Officer’s Certificate and the Opinion of Counsel described in Sections 12.2 and 12.3 of the Indenture; and
WHEREAS, all other acts and proceedings required by law and the Indenture necessary to authorize the execution and delivery of this Supplemental Indenture and to make this Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in accordance with its terms, have been complied with or have been duly done or performed.
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the Indenture which, absent this Supplemental Indenture, might operate to limit such action, the parties hereto, intending to be legally bound hereby, agree as follows:
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ARTICLE ONE
AMENDMENTS
SECTION 1.01. Amendments to Definitions. Section 1.1 (Definitions) of the Indenture is hereby amended by amending and restating the following definition in its entirety:
“Applicable Premium” means, with respect to any Note on any applicable Redemption Date, the greater of:
(a) 1.00% of the portion of the Outstanding Principal Amount of such Note that is being redeemed; and
(b) the excess of:
(i) the sum, as of such Redemption Date, of the respective present values of all then remaining payments of principal and interest under such Note that is being redeemed for the period from and including such Redemption Date through and including the Open Date, assuming that (A) all such scheduled payments are timely made and that the remaining Aggregate Outstanding Principal Amount and all accrued interest thereon shall be paid in full on the Open Date and (B) no other redemptions or acceleration of the Notes or Obligations shall be made or occur, determined by discounting each such payment to the present value thereof as of such Redemption Date at the Discount Rate; over
(ii) the portion of the Outstanding Principal amount of such Note that is being redeemed.
“Scheduled Maturity Date” means May 15, 2026.
SECTION 1.02. Amendments to Definitions. Section 1.1 (Definitions) of the Indenture is hereby amended by adding the following definitions:
“Additional Guarantor” means each direct or indirect, wholly-owned Subsidiary of the Guarantor that provides an Additional Guaranty, other than the Issuer and Green Plains Shenandoah. As of the date hereof, the “Additional Guarantors” are Green Plains Fairmont LLC, Green Plains Superior LLC, Green Plains Otter Tail LLC, Green Plains Madison LLC, Green Plains Wood River LLC, Green Plains York LLC, Fluid Quip Mechanical, LLC, and Green Plains Turnkey I LLC.
“Additional Guaranty” means the guaranty agreement substantially in the form attached hereto as Exhibit 1.
“Asset Sale” means:
(1)the sale, lease, conveyance or other disposition of any assets, property or rights outside of the ordinary course of business; and
(2)the issuance of equity interests by any of the Guarantor’s Subsidiaries or the sale of equity interests in any of the Guarantor’s subsidiaries.
Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:
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(1) any single transaction or series of related transactions that involves assets having a fair market value of less than $30.0 million;
(2) a transfer of assets between or among the Issuer, the Guarantor and the Additional Guarantors;
(3) the sale or other disposition of cash or cash equivalents;
(4) the sale, exchange or other disposition of obsolete, worn out, uneconomical or surplus assets (other, for the avoidance of doubt, than any real property); and
(5) foreclosures on, or condemnation of, assets and the surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims.
“Grantor” means the Issuer, the Guarantor or an Additional Guarantor, as applicable.
“Material Real Estate Asset” means any “fee-owned” real property located in the United States, and the improvements thereto, that (together with such improvements) has a fair market value (as determined by the Issuer in good faith after taking into account any liabilities with respect thereto that impact such fair market value or, if not then readily determinable, a book value) in excess of $30.0 million.
“Net Proceeds” means the aggregate cash proceeds received in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of the direct costs relating to such Asset Sale, less any amounts required to be applied to the repayment of indebtedness secured by a Lien on the assets that were the subject of such Asset Sale and any reserve for adjustment in respect of the sale price of such asset or assets.
“Trigger Date” means the earlier of (x) the date of release by the Guarantor of results of operations for the quarter ended June 30, 2025 (whether by press release of by the filing of a quarterly report on Form 10-Q) and (v) July 31, 2025.
SECTION 1.03. Additional Covenant. The Indenture is hereby supplemented by adding the following covenants to Article IV:
SECTION 4.35 Limitation on Indebtedness of the Issuer and the Additional Guarantors.
The Issuer shall not, and shall not permit any Additional Guarantor to, incur any Indebtedness, other than with respect to the Issuer, Indebtedness permitted to be incurred pursuant to Section 4.4.
SECTION 4.36 Additional Guarantors.
If any Subsidiary of the Guarantor that is not the Issuer or an Additional Guarantor acquires or otherwise comes into possession of any Material Real Estate Asset following the effective date of this Supplemental Indenture, then such Subsidiary shall within two business days of such date of acquisition or possession of such Material Real Estate Asset execute and deliver to the Trustee a supplemental indenture in form reasonably satisfactory to the Trustee and a notation of Note Guaranty, pursuant to a Guaranty Agreement substantially in the form of Exhibit 1, pursuant to which such Subsidiary shall jointly and severally and unconditionally guarantee, on a pari passu basis with all existing Note Guarantees, all of the Issuer’s Obligations under the Notes and the Indenture on the terms set forth in the Indenture.
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SECTION 4.37 Asset Sales.
The Issuer will not, and will not permit the Guarantor or any of the Additional Guarantors to, consummate an Asset Sale unless:
(1) the Issuer, Guarantor or Additional Guarantor, as applicable, receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets sold or otherwise disposed of (determined, for purposes of this clause (1), by the Issuer or, in the case of any asset(s) valued in excess of $30.0 million, by the Board of Directors of the Guarantor); and
(2) at least 75% of the consideration received in the Asset Sale is in the form of cash.
Within 5 days following the receipt of the Net Proceeds from any Asset Sale, the Issuer shall apply all of such Net Proceeds to redeem in cash all or a portion of the Notes at a Redemption Price of 100% of the outstanding principal amount of the Notes (plus accrued and unpaid interest to, but not including, the date of redemption) in accordance with the procedures set forth in Section 3.1(c), (d) and (e) of the Indenture.
SECTION 4.38 Trigger Date Security.
The Issuer shall deliver to the Trustee, on or prior to the Trigger Date, the following:
(1)supplemental Collateral Documents necessary or advisable to grant, in favor of the Trustee, a perfected security interest in substantially all assets of the Issuer, the Guarantor and the Additional Guarantors, in form and substance satisfactory to the Trustee (at the direction of the Holders). For the avoidance of doubt, such supplemental Collateral Documents shall include (i) customary provisions with respect to pledges of equity interests (substantially similar to those set forth in the Pledge Agreements) and delivery of relevant securities or instruments and (ii) customary documentation and/or control agreements necessary or advisable for perfection in, and control over, deposit accounts and securities accounts, in each case, subject to customary exceptions and limitations;
(2)mortgages, deeds of trust or deeds to secure debt (as applicable) (the “Supplemental Mortgages”) and grants of security interests on each real property owned by each Additional Guarantor (collectively, the “Supplemental Properties”), which shall in each case be (i) executed by the Additional Guarantor that owns the applicable Supplemental Property and (ii) in form acceptable for recording in the applicable jurisdiction and otherwise in form and substance satisfactory to the Trustee (at the direction of the Holders);
(3)to the extent required in such jurisdiction to perfect a security interest in fixtures, a UCC-1 financing statement with respect to the fixtures described in each Supplemental Mortgage in form and substance acceptable for recording in the jurisdiction of the applicable Supplemental Property and sufficient to perfect the Trustee’s security interest in such fixtures;
(4)a UCC-1 financing statement in form and substance acceptable for filing in the applicable jurisdiction of organization of each Grantor and sufficient to perfect the Trustee’s security interest in such Grantor’s personal property as described in the applicable Supplemental Mortgage (provided, however, with respect to the UCC-1 financing statements described in this subclause (i) and the preceding subclause (ii), the Trustee shall have the authority to file or record such UCC-1 financing statements in each applicable jurisdiction immediately
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upon and at any time after the occurrence of the Trigger Date, but the Trustee shall not file or record the same prior to the occurrence of the Trigger Date);
(5)a joinder to the Environmental Indemnity Agreement executed by each Grantor that owns a Supplemental Property, in form and substance satisfactory to the Trustee (at the direction of the Holders);
(6)a Title Policy insuring the Trustee’s Lien on such Supplemental Property, subject only to Permitted Exceptions and otherwise in form and substance satisfactory to the Trustee (at the direction of the Holders);
(7)such other documentation as the Title Company may require in order to issue the coverage described in the preceding clause (6), which may include, without limitation, an ALTA survey for such Supplemental Property and customary owner’s affidavits and indemnities; and
(8)date down endorsements to the Trustee’s insurance policies with respect to the Mt. Vernon Property and the Obion Property which increase the aggregate coverage thereunder consistent with the increase in the Aggregate Outstanding Principal Amount effected hereby, in each case in form and substance reasonably acceptable to the Trustee (at the direction of the Holders).
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ARTICLE TWO
MISCELLANEOUS
SECTION 2.01. Effective Date of this Supplemental Indenture. This Supplemental Indenture shall be executed and delivered as of the date first written above, and effective upon satisfaction of the following conditions precedent:
(a) the Trustee shall have received executed counterparts of this Supplemental Indenture duly executed by the parties hereto;
(b) the Trustee shall have received executed counterparts of the Additional Guaranty executed by each Additional Guarantor;
(c) the Issuer shall have provided a written order and irrevocably directed the Trustee to cause an amount equal to $2,500,000 (the “Increased Amount”) to be added to the Aggregate Outstanding Principal Amount (and the Principal Amount of the Global Notes shall be increased by such Increased Amounts and authenticated in accordance with Section 2.2 of the Indenture). For the avoidance of doubt, on and after the date hereof, (1) the Increased Amount shall accrue interest at the applicable rate in accordance with the terms of the Indenture and (2) such Increased Amount shall be due and payable on the Maturity Date together with the other Obligations;
(d) all costs, fees and expenses (including, without limitation, fees, charges and disbursements of Proskauer Rose LLP) payable to the Trustee or the Holders pursuant to the terms of this Supplemental Indenture and the Indenture or otherwise shall have been paid; and
(c) at the time of and immediately after giving effect to this Supplemental Indenture, no Event of Default shall have occurred and be continuing on such date or would immediately result therefrom.
SECTION 2.02. Reference to and Effect on the Indenture. On and after the effective date, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” (and all references to the Indenture in any other agreements, documents or instruments) shall mean and be a reference to the Indenture as supplemented by this Supplemental Indenture, unless the context otherwise requires. The Indenture, as supplemented by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument.
Issuer hereby (a) unconditionally ratifies and confirms, renews and reaffirms all of its obligations under the Note Documents (as modified by this Amendment), (b) acknowledges and agrees that such obligations remain in full force and effect, binding on and enforceable against Issuer in accordance with the terms, covenants and conditions of the Note Documents, without modification or impairment, and Issuer remains unconditionally liable in accordance with and subject to the terms, covenants and conditions of the Note Documents and (c) ratifies, confirms, renews and reaffirms in all respects and without condition, all of the terms, covenants and conditions set forth in the Note Documents (as modified by this Amendment). The execution and delivery of this Amendment shall not constitute a novation or accord and satisfaction, or a modification of the lien, encumbrance or security title of any of the Note Documents. This Amendment shall not be construed as a consent, waiver or amendment of any other provision of the Indenture or any of the other Note Documents or for any purpose except as expressly set forth herein or as a consent to any further or future action on the part of Issuer or Guarantor that would require the consent or waiver of Trustee or any Holder.
SECTION 2.03. Governing Law. Section 12.6 of the Indenture shall apply to this Supplemental Indenture.
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SECTION 2.04. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 2.05. Severability. In case any provision in this Supplemental Indenture or the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
SECTION 2.06. Successors. All agreements of the Issuer in this Supplemental Indenture and the Notes will bind its respective successors. All agreements of the Trustee in this Supplemental Indenture and the Notes will bind its respective successors.
SECTION 2.07. Trust Indenture Act Controls. No modification of any provisions of the Indenture effected by this Supplemental Indenture is intended to eliminate or limit any provision of the Indenture that is required to be included therein by the Trust Indenture Act of 1939, as amended, as in force as of the effectiveness of this Supplemental Indenture.
SECTION 2.08. Trustee Disclaimer; Trust. The recitals and representations and warranties contained in this Supplemental Indenture shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture. The Trustee accepts the trust created by the Indenture, as supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Indenture, as supplemented hereby.
SECTION 2.09. Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall constitute but one and the same instrument.
SECTION 2.10. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 2.11. Representations and Warranties. Each of Issuer and Guarantor, as applicable, hereby represents and warrants, as of the date hereof, that: (a) Issuer and Guarantor each has the full power and authority to execute, deliver and perform its respective obligations under this Supplemental Indenture; (b) all representations made by each of Issuer and Guarantor in the Note Documents are true and correct as of the date of this Supplemental Indenture; (c) each Note Document is in full force and effect; and (d) as of the date of this Supplemental Indenture, none of the Obligor Parties or Guarantor has any defenses, claims, rights of set-off or counterclaims against Trustee or any Holder under, arising out of, or in connection with, the Note Documents, or any of the Obligations.
SECTION 2.12. Material Real Property. Each of the Issuer and the Guarantor, as applicable, hereby represents and warrants, as of the date hereof, that the only Subsidiaries of the Guarantor (other than the Issuer and the PropCos) that own Material Real Estate Assets as of the date hereof are Green Plains Shenandoah LLC, Green Plains Fairmont LLC, Green Plains Superior LLC, Green Plains Otter Tail LLC, Green Plains Madison LLC, Green Plains Wood River LLC, Green Plains York LLC and Green Plains Central City LLC.
SECTION 2.13. Guarantor. Guarantor hereby (a) unconditionally ratifies and confirms, renews and reaffirms all of Guarantor’s obligations under the Note Guaranty and the other Note Documents to which Guarantor is a party, (b) acknowledges and agrees that such obligations remain in full force and effect, binding on and enforceable against Guarantor in accordance with the terms,
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covenants and conditions of the applicable Note Documents, without modification or impairment, and Guarantor remains unconditionally liable in accordance with and subject to the terms, covenants and conditions of the Note Guaranty and the other Note Documents to which Guarantor is a party, and (c) ratifies and confirms, renews and reaffirms in all respects and without condition, all of the terms, covenants and conditions set forth in the and the Note Guaranty and the other Note Documents to which Guarantor is a party.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the date hereof.
Green Plains SPE LLC, as the Issuer
By: Green Plains Inc., sole Member
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Inc., as the Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Wilmington Trust, National Association,
as Trustee
By: /s/ Amedeo Morreale
Name: Amedeo Morreale
Title: Vice President
[Signature Page to First Supplemental Indenture]
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Document
Exhibit 10.9
EXECUTION VERSION
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this “Guaranty Agreement”), dated as of May 7, 2025, between GREEN PLAINS SPE LLC, a Delaware limited liability company (the “Issuer”), GREEN PLAINS INC., an Iowa corporation (the “Guarantor”), each of the entities listed on Exhibit A hereto (the “Additional Guarantors”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee (the “Trustee”), under the Indenture, dated as of February 9, 2021, as amended by Amendment No. 1 dated May 13, 2022 (the “Indenture”) and as supplemented by the first supplemental indenture, dated as of the date hereof (the “Supplemental Indenture”). Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Indenture or the Supplemental Indenture, as applicable.
W I T N E S S E T H:
WHEREAS, the Issuer, the Guarantor and the Trustee have heretofore executed and delivered the Indenture providing for the issuance by the Issuer of the Junior Secured Mezzanine Notes due 2026 (the “Notes”);
WHEREAS, the Issuer, the Guarantor and the Trustee have heretofore executed and delivered the Supplemental Indenture on the date hereof;
WHEREAS, Section 9.1(7) of the Indenture provides that, without the consent of any Holder, the Issuer, the Guarantor and the Trustee may amend or supplement the Indenture or the Notes in accordance with Section 9.1 to add Guarantors with respect to any Notes;
WHEREAS, the Issuer has heretofore delivered or is delivering contemporaneously herewith to the Trustee (i) copies of resolutions of the Board of Directors of the Issuer authorizing the execution of this Guaranty Agreement and (ii) the Officer’s Certificate and the Opinion of Counsel described in Sections 12.2 and 12.3 of the Indenture; and
WHEREAS, all other acts and proceedings required by law and the Indenture necessary to authorize the execution and delivery of this Guaranty Agreement and to make this Guaranty Agreement a valid and binding agreement for the purposes expressed herein, in accordance with its terms, have been complied with or have been duly done or performed.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the Guarantor and each of the Additional Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
SECTION 1.01. Definitions; Construction. Capitalized terms used herein without definition shall have the meaning assigned to them in the Indenture (as amended and supplemented).
SECTION 2.01 The Additional Guarantors.
(a)In accordance with Section 9.1 of the Indenture, each Additional Guarantor by its signature below hereby becomes a party to the Indenture as an “Additional Guarantor” and unconditionally and irrevocably guarantees, jointly and severally, with Guarantor and each other additional Guarantor, to each Holder and to the Trustee and its successors and assigns (i) the full and punctual payment of and interest on the Notes when due (including, for the avoidance doubt, all PIK Amounts) whether at maturity, by acceleration, by redemption or otherwise (including, without limitation, the amount that would become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code) and all other Obligations of the Issuer under the Indenture and the Notes, in each case on the same terms and conditions as applicable to the Note Guaranty under the Indenture, including those terms set forth in Article XI of the Indenture, with the same force and effect as if originally named as a guarantor and provider of a Note Guaranty; and
(b)Each Additional Guarantor hereby agrees to all of the terms and conditions of the Indenture applicable to the Guarantor under Articles VI, VII, VIII, IX and XI thereunder.
For the avoidance of doubt, Section 4.27 of the Indenture shall remain unaltered, and the Guarantor Financial Covenant shall not extend to, or include any of the Additional Guarantors.
SECTION 3.01. Effective Date of this Guaranty Agreement. This Guaranty Agreement shall be executed and delivered as of the date first written above, and effective upon satisfaction of the following conditions precedent:
(a) the Trustee shall have received executed counterparts of this Guaranty Agreement duly executed by the parties hereto; and
(b) the Trustee shall have received executed counterparts of the Supplemental Indenture executed by each of the parties thereto.
SECTION 3.02. Governing Law. Section 12.6 of the Indenture shall apply to this Guaranty Agreement.
SECTION 3.03. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT, THE INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 3.04. Severability. In case any provision in this Guaranty Agreement or the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
SECTION 3.05. Successors. All agreements of the Issuer, the Guarantor and the Additional Guarantors in this Guaranty Agreement will bind its respective successors. All agreements of the Trustee in this Guaranty Agreement will bind its respective successors.
SECTION 3.06. Trust Indenture Act Controls. No modification of any provisions of the Indenture effected by this Guaranty Agreement is intended to eliminate or limit any provision of the Indenture that is required to be included therein by the Trust Indenture Act of 1939, as amended, as in force as of the effectiveness of this Guaranty Agreement.
SECTION 3.07. Trustee Disclaimer; Trust. The recitals and representations and warranties contained in this Guaranty Agreement shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Guaranty Agreement. The Trustee accepts the trust created by the Indenture, as supplemented by this Guaranty Agreement, and agrees to perform the same upon the terms and conditions of the Indenture, as supplemented hereby.
SECTION 3.08. Counterparts. This Guaranty Agreement may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall constitute but one and the same instrument.
SECTION 3.09. Effect of Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 3.10. Representations and Warranties. Each of Issuer, the Guarantor and each Additional Guarantor, as applicable, hereby represents and warrants, as of the date hereof, that: (a) the Issuer, the Guarantor and each Additional Guarantor, each has the full power and authority to execute, deliver and perform its respective obligations under this Guaranty Agreement; (b) all representations made by each of Issuer and the Guarantor in the Note Documents are true and correct as of the date of this Guaranty Agreement; (c) all Additional Guarantors hereby represent and warrant to all representations made by the Guarantor in the Note Documents as of the date of this Guaranty Agreement, (d) each Note Document is in full force and effect; and (e) as of the date of this Guaranty Agreement, none of the Obligor Parties, the Guarantor or any Additional Guarantor has any defenses, claims, rights of set-off or counterclaims against Trustee or any Holder under, arising out of, or in connection with, the Note Documents, or any of the Obligations.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty Agreement to be duly executed all as of the date hereof.
Green Plains SPE LLC, as the Issuer
By: Green Plains Inc., sole Member
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Inc., as the Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Fairmont LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Superior LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Otter Tail LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Madison LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
[Signature Page to Guaranty Agreement]
Green Plains Wood River LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains York LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Fluid Quip Mechanical, LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Green Plains Turnkey I LLC, as an Additional Guarantor
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
Wilmington Trust, National Association,
as Trustee
By: /s/ Amedeo Morreale
Name: Amedeo Morreale
Title: Vice President
[Signature Page to Guaranty Agreement]
Exhibit A
List of Additional Guarantors
1.Green Plains Fairmont LLC
2.Green Plains Superior LLC
3.Green Plains Otter Tail LLC
4.Green Plains Madison LLC
5.Green Plains Wood River LLC
6.Green Plains York LLC
7.Fluid Quip Mechanical, LLC
8.Green Plains Turnkey I, LLC
[Signature Page to Guaranty Agreement]
Document
Exhibit 10.10(a)
SECOND AMENDED AND RESTATED WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 1 Number of Warrants: 1,464,976 April 29, 2021
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to BlackRock Global Allocation Fund, Inc. (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of warrants set forth above (such warrants, the “Warrants”, and this Second Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of (a) prior to the Trigger Date (as defined below), $22.00 per share and (b) on and after the Trigger Date (as defined below), $7.00 per share (as same may be adjusted pursuant to Section 1, the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is the Per Share Exercise Price multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”). This Warrant is effective as of April 29, 2021, and amends, restates and replaces in full that certain Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., dated as of April 29, 2021, by the Company in favor of Registered Holder. As used herein, “Trigger Date” means the earlier of (i) the date of release by the Company of results of operations for the quarter ended June 30, 2025 (whether by press release of by the filing of a quarterly report on Form 10-Q) and (ii) July 31, 2025.
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after
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such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
(c)Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the first date any of the Warrants are issued, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 1.01(c) is deemed to have granted, issued or sold, any shares of Common Stock (including the grant, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Per Share Exercise Price in effect immediately prior to such grant, issuance or sale or deemed grant, issuance or sale (such Per Share Exercise Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Per Share Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Per Share Exercise Price and the New Issuance Price under this Section 1.01(c)), the following shall be applicable:
(i) Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities (as defined below) (“Options”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Per Share Exercise Price that is then in effect, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting , issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 1.01(c)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any
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Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting , issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (“Convertible Securities”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 1.01(c)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 1.01(c), except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made by reason of such issuance or sale.
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(iii) Intentionally Omitted.
(iv) Calculation of Consideration Received. If any Option and/or Convertible Security and/or adjustment right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Company’s board of directors in good faith, the “Primary Security”, and such Option and/or Convertible Security and/or adjustment right, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 1.01(c)(i) or 1.01(c)(ii) above and (z) the lowest VWAP of the shares of Common Stock on any day trading during the period commencing on the date of the public announcement of such Dilutive Issuance through, and including, the fourth (4th) Trading Day immediately following the closing of such Dilutive Issuance (the “Adjustment Period”) (for the avoidance of doubt, if this Warrant is exercised on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined by the Company’s board of directors in good faith. For purposes of this Section 1.01(c), “Excluded Securities” shall mean (i) shares of Common Stock, restricted stock units or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such, provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and restricted stock units) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately prior to the first date any of the Warrants are issued and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Registered Holder; and (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock that are covered by the preceding clause (i)) issued prior to the date any of the Warrants are first issued, provided that the conversion price of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) is not lowered, none of such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than restricted
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stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are otherwise materially changed in any manner that adversely affects the Registered Holder.
(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
(vi) Certain Events. If any event of the type contemplated by the provisions of this Section 1.01(c) but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Per Share Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Registered Holder in a manner consistent with the provisions of this Section 1.01(c); provided, that no such adjustment pursuant to this Section 1.01(c) shall increase the Per Share Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 1.01(c).
(d)Adjustment for Extraordinary, Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the shares of Common Stock on account of such shares of Common Stock, other than (a) as described in subsection 1.01(a), (b) or (c) above, or (b) in connection with any distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Per Share Exercise Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the Per Share Exercise Price or the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
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(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1 except as contemplated by Section 1.01(a)(iii), and then in no event to an amount larger than the Per Share Exercise Price as adjusted pursuant to such Section.
(d)Disputes. In the event that there is any dispute as to the computation of the Per Share Exercise Price or the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the Per Share Exercise Price and number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on December 31, 2026 (the “Expiration Date”); provided, however, that if any amounts owed to BlackRock Global Allocation Fund, Inc. by the Company or its affiliates remain outstanding on the Trigger Date, then the Expiration Date shall (from and after the Trigger Date) be December 31, 2029.
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
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A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of
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Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
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4.Reservation of Common Stock. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws).
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
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(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
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(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at BlackRock Financial Management, Inc., 50 Hudson Yards, New York, New York 10001, Attention: Steven Karpel and Kathryn Keen, Email: Steven.Karpel@blackrock.com, Kathryn.Keen@blackrock.com, With a copy to (which shall not constitute notice): BlackRock, Inc., Office of the General Counsel, 50 Hudson Yards, New York, New York 10001, legaltransactions@blackrock.com, or such address of the Registered Holder reflected after February 9, 2021 (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
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11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
14.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
15.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
16.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
39650.00001
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EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
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Document
Exhibit 10.10(b)
SECOND AMENDED AND RESTATED WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 2 Number of Warrants: 148,496 April 29, 2021
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to BlackRock Global Allocation Collective Fund (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of warrants set forth above (such warrants, the “Warrants”, and this Second Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of (a) prior to the Trigger Date (as defined below), $22.00 per share and (b) on and after the Trigger Date (as defined below), $7.00 per share (as same may be adjusted pursuant to Section 1, the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is the Per Share Exercise Price multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”). This Warrant is effective as of April 29, 2021, and amends, restates and replaces in full that certain Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., dated as of April 29, 2021, by the Company in favor of Registered Holder. As used herein, “Trigger Date” means the earlier of (i) the date of release by the Company of results of operations for the quarter ended June 30, 2025 (whether by press release of by the filing of a quarterly report on Form 10-Q) and (ii) July 31, 2025.
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after
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such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
(c)Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the first date any of the Warrants are issued, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 1.01(c) is deemed to have granted, issued or sold, any shares of Common Stock (including the grant, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Per Share Exercise Price in effect immediately prior to such grant, issuance or sale or deemed grant, issuance or sale (such Per Share Exercise Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Per Share Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Per Share Exercise Price and the New Issuance Price under this Section 1.01(c)), the following shall be applicable:
(i) Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities (as defined below) (“Options”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Per Share Exercise Price that is then in effect, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting , issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 1.01(c)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any
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Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting , issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (“Convertible Securities”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 1.01(c)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 1.01(c), except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made by reason of such issuance or sale.
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(iii) Intentionally Omitted.
(iv) Calculation of Consideration Received. If any Option and/or Convertible Security and/or adjustment right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Company’s board of directors in good faith, the “Primary Security”, and such Option and/or Convertible Security and/or adjustment right, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 1.01(c)(i) or 1.01(c)(ii) above and (z) the lowest VWAP of the shares of Common Stock on any day trading during the period commencing on the date of the public announcement of such Dilutive Issuance through, and including, the fourth (4th) Trading Day immediately following the closing of such Dilutive Issuance (the “Adjustment Period”) (for the avoidance of doubt, if this Warrant is exercised on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined by the Company’s board of directors in good faith. For purposes of this Section 1.01(c), “Excluded Securities” shall mean (i) shares of Common Stock, restricted stock units or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such, provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and restricted stock units) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately prior to the first date any of the Warrants are issued and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Registered Holder; and (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock that are covered by the preceding clause (i)) issued prior to the date any of the Warrants are first issued, provided that the conversion price of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) is not lowered, none of such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than restricted
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stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are otherwise materially changed in any manner that adversely affects the Registered Holder.
(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
(vi) Certain Events. If any event of the type contemplated by the provisions of this Section 1.01(c) but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Per Share Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Registered Holder in a manner consistent with the provisions of this Section 1.01(c); provided, that no such adjustment pursuant to this Section 1.01(c) shall increase the Per Share Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 1.01(c).
(d)Adjustment for Extraordinary, Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the shares of Common Stock on account of such shares of Common Stock, other than (a) as described in subsection 1.01(a), (b) or (c) above, or (b) in connection with any distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Per Share Exercise Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the Per Share Exercise Price or the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
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(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1 except as contemplated by Section 1.01(a)(iii), and then in no event to an amount larger than the Per Share Exercise Price as adjusted pursuant to such Section.
(d)Disputes. In the event that there is any dispute as to the computation of the Per Share Exercise Price or the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the Per Share Exercise Price and number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on December 31, 2026 (the “Expiration Date”); provided, however, that if any amounts owed to BlackRock Global Allocation Collective Fund by the Company or its affiliates remain outstanding on the Trigger Date, then the Expiration Date shall (from and after the Trigger Date) be December 31, 2029.
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
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A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of
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Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
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4.Reservation of Common Stock. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws).
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
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(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
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(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at BlackRock Financial Management, Inc., 50 Hudson Yards, New York, New York 10001, Attention: Steven Karpel and Kathryn Keen, Email: Steven.Karpel@blackrock.com, Kathryn.Keen@blackrock.com, With a copy to (which shall not constitute notice): BlackRock, Inc., Office of the General Counsel, 50 Hudson Yards, New York, New York 10001, legaltransactions@blackrock.com, or such address of the Registered Holder reflected after February 9, 2021 (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
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11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
14.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
15.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
16.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
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EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
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Document
Exhibit 10.10(c)
SECOND AMENDED AND RESTATED WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 3 Number of Warrants: 345,104 April 29, 2021
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to BlackRock Total Return Bond Fund (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of warrants set forth above (such warrants, the “Warrants”, and this Second Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of (a) prior to the Trigger Date (as defined below), $22.00 per share and (b) on and after the Trigger Date (as defined below), $7.00 per share (as same may be adjusted pursuant to Section 1, the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is the Per Share Exercise Price multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”). This Warrant is effective as of April 29, 2021, and amends, restates and replaces in full that certain Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., dated as of April 29, 2021, by the Company in favor of Registered Holder. As used herein, “Trigger Date” means the earlier of (i) the date of release by the Company of results of operations for the quarter ended June 30, 2025 (whether by press release of by the filing of a quarterly report on Form 10-Q) and (ii) July 31, 2025.
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common
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Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
(c)Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the first date any of the Warrants are issued, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 1.01(c) is deemed to have granted, issued or sold, any shares of Common Stock (including the grant, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Per Share Exercise Price in effect immediately prior to such grant, issuance or sale or deemed grant, issuance or sale (such Per Share Exercise Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Per Share Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Per Share Exercise Price and the New Issuance Price under this Section 1.01(c)), the following shall be applicable:
(i) Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities (as defined below) (“Options”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Per Share Exercise Price that is then in effect, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting , issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 1.01(c)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms
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thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting , issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (“Convertible Securities”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 1.01(c)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 1.01(c), except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made by reason of such issuance or sale.
(iii) Intentionally Omitted.
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(iv) Calculation of Consideration Received. If any Option and/or Convertible Security and/or adjustment right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Company’s board of directors in good faith, the “Primary Security”, and such Option and/or Convertible Security and/or adjustment right, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 1.01(c)(i) or 1.01(c)(ii) above and (z) the lowest VWAP of the shares of Common Stock on any day trading during the period commencing on the date of the public announcement of such Dilutive Issuance through, and including, the fourth (4th) Trading Day immediately following the closing of such Dilutive Issuance (the “Adjustment Period”) (for the avoidance of doubt, if this Warrant is exercised on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined by the Company’s board of directors in good faith. For purposes of this Section 1.01(c), “Excluded Securities” shall mean (i) shares of Common Stock, restricted stock units or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such, provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and restricted stock units) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately prior to the first date any of the Warrants are issued and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Registered Holder; and (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock that are covered by the preceding clause (i)) issued prior to the date any of the Warrants are first issued, provided that the conversion price of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) is not lowered, none of such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are otherwise materially changed in any manner that adversely affects the Registered Holder.
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(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
(vi) Certain Events. If any event of the type contemplated by the provisions of this Section 1.01(c) but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Per Share Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Registered Holder in a manner consistent with the provisions of this Section 1.01(c); provided, that no such adjustment pursuant to this Section 1.01(c) shall increase the Per Share Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 1.01(c).
(d)Adjustment for Extraordinary, Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the shares of Common Stock on account of such shares of Common Stock, other than (a) as described in subsection 1.01(a), (b) or (c) above, or (b) in connection with any distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Per Share Exercise Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the Per Share Exercise Price or the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1 except
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as contemplated by Section 1.01(a)(iii), and then in no event to an amount larger than the Per Share Exercise Price as adjusted pursuant to such Section.
(d)Disputes. In the event that there is any dispute as to the computation of the Per Share Exercise Price or the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the Per Share Exercise Price and number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on December 31, 2026 (the “Expiration Date”); provided, however, that if any amounts owed to BlackRock Total Return Bond Fund by the Company or its affiliates remain outstanding on the Trigger Date, then the Expiration Date shall (from and after the Trigger Date) be December 31, 2029.
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
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B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the
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Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4.Reservation of Common Stock. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant
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and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws).
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to
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any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is
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traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at BlackRock Financial Management, Inc., 50 Hudson Yards, New York, New York 10001, Attention: Steven Karpel and Kathryn Keen, Email: Steven.Karpel@blackrock.com, Kathryn.Keen@blackrock.com, With a copy to (which shall not constitute notice): BlackRock, Inc., Office of the General Counsel, 50 Hudson Yards, New York, New York 10001, legaltransactions@blackrock.com, or such address of the Registered Holder reflected after February 9, 2021 (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
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11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
14.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
15.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
16.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
39650.00001
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EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
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EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
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Document
Exhibit 10.10(d)
SECOND AMENDED AND RESTATED WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 4 Number of Warrants: 41,424 April 29, 2021
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to Strategic Income Opportunities Bond Fund (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of warrants set forth above (such warrants, the “Warrants”, and this Second Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of (a) prior to the Trigger Date (as defined below), $22.00 per share and (b) on and after the Trigger Date (as defined below), $7.00 per share (as same may be adjusted pursuant to Section 1, the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is the Per Share Exercise Price multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”). This Warrant is effective as of April 29, 2021, and amends, restates and replaces in full that certain Amended and Restated Warrant Agreement to Purchase Common Stock of Green Plains Inc., dated as of April 29, 2021, by the Company in favor of Registered Holder. As used herein, “Trigger Date” means the earlier of (i) the date of release by the Company of results of operations for the quarter ended June 30, 2025 (whether by press release of by the filing of a quarterly report on Form 10-Q) and (ii) July 31, 2025.
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after
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such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
(c)Adjustment Upon Issuance of Shares of Common Stock. If and whenever on or after the first date any of the Warrants are issued, the Company grants, issues or sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 1.01(c) is deemed to have granted, issued or sold, any shares of Common Stock (including the grant, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Per Share Exercise Price in effect immediately prior to such grant, issuance or sale or deemed grant, issuance or sale (such Per Share Exercise Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Per Share Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Per Share Exercise Price and the New Issuance Price under this Section 1.01(c)), the following shall be applicable:
(i) Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities (as defined below) (“Options”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Per Share Exercise Price that is then in effect, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting , issuance or sale (or the time of execution of such agreement to grant, issue or sell, as applicable) of such Option for such price per share. For purposes of this Section 1.01(c)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Options or upon conversion, exercise or exchange of any
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Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale (or pursuant to the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting , issuance or sale (or the agreement to grant, issue or sell, as applicable) of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.
(ii) Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock (“Convertible Securities”) and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section 1.01(c)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant has been or is to be made pursuant to other provisions of this Section 1.01(c), except as contemplated below, no further adjustment of the Per Share Exercise Price shall be made by reason of such issuance or sale.
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(iii) Intentionally Omitted.
(iv) Calculation of Consideration Received. If any Option and/or Convertible Security and/or adjustment right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Company’s board of directors in good faith, the “Primary Security”, and such Option and/or Convertible Security and/or adjustment right, the “Secondary Securities” and together with the Primary Security, each a “Unit”), together comprising one integrated transaction, the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be the lower of (x) the purchase price of such Unit, (y) if such Primary Security is an Option and/or Convertible Security, the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise or conversion of the Primary Security in accordance with Section 1.01(c)(i) or 1.01(c)(ii) above and (z) the lowest VWAP of the shares of Common Stock on any day trading during the period commencing on the date of the public announcement of such Dilutive Issuance through, and including, the fourth (4th) Trading Day immediately following the closing of such Dilutive Issuance (the “Adjustment Period”) (for the avoidance of doubt, if this Warrant is exercised on any given Exercise Date during any such Adjustment Period, solely with respect to such portion of this Warrant exercised on such applicable Exercise Date, such applicable Adjustment Period shall be deemed to have ended on, and included, the Trading Day immediately prior to such Exercise Date). If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined by the Company’s board of directors in good faith. For purposes of this Section 1.01(c), “Excluded Securities” shall mean (i) shares of Common Stock, restricted stock units or options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their capacity as such, provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options and restricted stock units) after the Subscription Date pursuant to this clause (i) do not, in the aggregate, exceed more than 20% of the Common Stock issued and outstanding immediately prior to the first date any of the Warrants are issued and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner that adversely affects the Registered Holder; and (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than options to purchase Common Stock that are covered by the preceding clause (i)) issued prior to the date any of the Warrants are first issued, provided that the conversion price of any such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) is not lowered, none of such Convertible Securities (other than restricted stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than restricted
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stock units and options to purchase Common Stock that are covered by the preceding clause (i)) are otherwise materially changed in any manner that adversely affects the Registered Holder.
(v) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
(vi) Certain Events. If any event of the type contemplated by the provisions of this Section 1.01(c) but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features) occurs, then the Board shall make an appropriate adjustment in the Per Share Exercise Price and the number of Warrant Shares issuable upon exercise of this Warrant so as to protect the rights of the Registered Holder in a manner consistent with the provisions of this Section 1.01(c); provided, that no such adjustment pursuant to this Section 1.01(c) shall increase the Per Share Exercise Price or decrease the number of Warrant Shares issuable as otherwise determined pursuant to this Section 1.01(c).
(d)Adjustment for Extraordinary, Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the shares of Common Stock on account of such shares of Common Stock, other than (a) as described in subsection 1.01(a), (b) or (c) above, or (b) in connection with any distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Per Share Exercise Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Board, in good faith) of any securities or other assets paid on each share of Common Stock in respect of such Extraordinary Dividend.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the Per Share Exercise Price, the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the Per Share Exercise Price or the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
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(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1 except as contemplated by Section 1.01(a)(iii), and then in no event to an amount larger than the Per Share Exercise Price as adjusted pursuant to such Section.
(d)Disputes. In the event that there is any dispute as to the computation of the Per Share Exercise Price or the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the Per Share Exercise Price and number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on December 31, 2026 (the “Expiration Date”); provided, however, that if any amounts owed to Strategic Income Opportunities Bond Fund by the Company or its affiliates remain outstanding on the Trigger Date, then the Expiration Date shall (from and after the Trigger Date) be December 31, 2029.
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
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A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of
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Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
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4.Reservation of Common Stock. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws).
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
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(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
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(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at BlackRock Financial Management, Inc., 50 Hudson Yards, New York, New York 10001, Attention: Steven Karpel and Kathryn Keen, Email: Steven.Karpel@blackrock.com, Kathryn.Keen@blackrock.com, With a copy to (which shall not constitute notice): BlackRock, Inc., Office of the General Counsel, 50 Hudson Yards, New York, New York 10001, legaltransactions@blackrock.com, or such address of the Registered Holder reflected after February 9, 2021 (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
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11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
14.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
15.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
16.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
[Signature page follows]
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IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
39650.00001
152576862v2
EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
2
152576862v2
EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
3
152576862v2
Document
Exhibit 10.11
SECURED LINE OF CREDIT AGREEMENT
This SECURED LINE OF CREDIT AGREEMENT, dated as of May 7, 2025 (this “Agreement”), is made by and among GREEN PLAINS INC., an Iowa corporation (together with its successors and permitted assigns, “Borrower”), GREEN PLAINS CENTRAL CITY LLC, a Delaware limited liability company, in its capacity as a Guarantor (together with its successors and permitted assigns, “GPCC”, and together with Borrower and any other Guarantors party to this Agreement from time to time, collectively, the “Loan Parties”, each individually, a “Loan Party”), and ANCORA ALTERNATIVES LLC, an Ohio limited liability company (together with its successors and assigns, “Lender”).
RECITALS
WHEREAS, Borrower has requested that Lender provide a secured line of credit to Borrower to be used for working capital and general corporate purposes, and Lender is willing to provide such secured line of credit on the terms and subject to the conditions set forth herein and in the other Loan Documents (as defined below).
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1.Certain Definitions.
“Affiliate” means any Person (other than Lender): (a) directly or indirectly controlling, controlled by, or under common control with, any Loan Party; (b) directly or indirectly owning or holding fifteen percent (15%) or more of any equity interest in Borrower; or (c) fifteen percent (15%) or more of whose stock or other equity interest having ordinary voting power for the election of directors or the power to direct or cause the direction of management, is directly or indirectly owned or held by Borrower. For purposes of this definition, “control” (including with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”) means the possession directly or indirectly of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities or other equity interest, or by contract or otherwise.
“Advance” has the meaning given to such term in Section 2(a).
“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. Section 101 et seq.).
“Business Day” means any day on which banks are not required or authorized to close in New York, New York.
“Casualty Event” means any event that gives rise to the receipt by Borrower or any Subsidiary of any insurance proceeds or condemnation awards in respect of any equipment, fixed assets or real property (including any improvements thereon) to replace or repair such equipment, fixed assets or real property.
“Change of Control” means an event or series of events by which: (a) Borrower shall cease to own 100% of the Equity Interests in GPCC; or (b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
“Collateral” has the meaning given to such term in Section 5(a).
“Commission” means the United States Securities and Exchange Commission.
“Commitment” means the commitment of Lender to make Advances pursuant to Section 2 as such commitment may be reduced from time to time in accordance with the terms of this Agreement.
“Default” means an event, act or condition the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event of Default.
“Disclosure Time” means, (i) if this Agreement is signed on a day that is not a Business Day or after 9:00 a.m. (New York City time) and before midnight (New York City time) on any Business Day, 9:01 a.m. (New York City time) on the Business Day immediately following the date hereof, unless otherwise instructed as to an earlier time by Lender, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Business Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise instructed as to an earlier time by Lender.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property or asset by Borrower or any Subsidiary not in the ordinary course of business and resulting in minimum cash proceeds to Borrower or any Affiliate of Borrower not less than $1,000,000.
“Dollars”, “U.S. Dollars” or “$” means the lawful currency of the United States of America.
“Equity Interest” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial partnership or membership interests, joint venture interests, units, limited liability company interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.
“Event of Default” has the meaning given to such term in Section 7(a).
“Guarantor” means GPCC, the Borrower, and any other Person who may guarantee, pursuant to a written agreement, payment or collection of any of the Obligations.
“Guaranty” means each guaranty now or hereafter executed by a Guarantor with respect to any of the Obligations, including without limitation, the guaranty set forth in Section 10.
“Lien” means any lien (statutory or other) mortgage, pledge, hypothecation, assignment, security interest, encumbrance, charge, claim, restriction on transfer or similar restriction or other security arrangement of any kind or nature whatsoever, including any conditional sale or other title retention agreement and any capital or financing lease having substantially the same economic effect as any of the foregoing.
“Loan Account” has the meaning given to such term in Section 2(d).
“Loan Document” means, (i) this Agreement, (ii) the Mortgage, (iii) the Warrants and any document or instrument executed in connection with any of the foregoing.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, liabilities, results of operations, property or financial condition of Borrower or any Loan Party; (b) the ability of Borrower or any Loan Party to perform its obligations, when such obligations are required to be performed under this Agreement or any of the other Loan Documents; (c) the validity or enforceability of this Agreement or any of the other Loan Documents; (d) the rights or remedies of Lender hereunder or under any Loan Document or (e) the perfection or priority of any security interest or Lien in the Collateral in favor of Lender.
“Maturity Date” has the meaning given to such term in Section 3(b).
“Maximum Credit Facility Amount” means, initially, $30,000,000, subject to adjustment in accordance with Section 3(c)(i).
“Mortgage” means a First Lien Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing Statement granted by GPCC in favor of Lender in respect of the Mortgaged Property as security for the Obligations, in form and substance satisfactory to Lender.
“Mortgaged Property” has the meaning given to such term in Section 5(a).
“Notice of Borrowing” means a notice in the form of Exhibit A.
“Obligations” means, any and all Advances, and all other obligations, liabilities and indebtedness of every kind, nature and description owing by Borrower to Lender, including principal, interest, charges, fees, costs and expenses, however evidenced, whether as principal, surety, endorser, guarantor or otherwise, arising under any of the Loan Documents, whether now existing or hereafter arising, whether arising before, during or after the initial or any renewal term of this Agreement or after the commencement of any case under the Bankruptcy Code or any similar statute (including the payment of interest and other amounts which could accrue and become due but for the commencement of such case, whether or not such amounts are allowed or allowable in whole or in part in such case), whether direct or indirect or acquired from others, absolute or contingent, joint or several, due or not due, primary or secondary, liquidated or unliquidated, secured or unsecured.
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.
“Responsible Officer” means with respect to any Loan Party, the chief financial officer, the chief executive officer, the manager or president of such Loan Party.
“Subsidiary” means, with respect to any Person, any corporation, association or other business entity of which more than fifty percent (50%) of the total voting power of shares of stock (or equivalent ownership or controlling interest) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other subsidiaries of that Person or a combination
thereof. Unless otherwise specified, all references herein or in any other Loan Document to any Subsidiary shall mean a Subsidiary of the Borrower.
“UFCA” means the Uniform Fraudulent Conveyance Act.
“UFTA” means the Uniform Fraudulent Transfer Act.
“Warrants” has the meaning given to such term in Section 6(a).
2.Line of Credit.
(a)Subject to, and upon the terms and conditions contained herein, Lender agrees to advance one or more revolving loans to Borrower (each an “Advance”, and collectively, the “Advances”); provided, that (i) each Advance shall be in a minimum principal amount not less than $500,000 and (ii) the aggregate outstanding principal amount of all Advances at any time shall not exceed the Maximum Credit Facility Amount. Subject to the terms and conditions of this Agreement, Advances borrowed under this Section 2 and which are repaid may be reborrowed at any time prior to the earlier of (x) the termination of the Commitment pursuant to Section 7(b)(i) or (y) the Maturity Date (as defined below).
(b)To request an Advance, Borrower shall notify Lender of such request by delivering a Notice of Borrowing in the form attached as Exhibit A hereto to Lender via e-mail as set forth below by not later than 2:00 p.m. (New York time) on the date that is three (3) Business Days prior to the proposed funding date of the requested Advance. Each Notice of Borrowing shall be irrevocable and shall specify the proposed funding date of the Advance (which shall be a Business Day) and the principal amount of the Advance requested. Notwithstanding anything to the contrary contained herein, Lender will not be required to make any Advance pursuant to any Notice of Borrowing unless all of the applicable terms and conditions set forth in Section 6 have been satisfied.
(c)All Advances shall be made directly by Lender to Borrower, via wire transfer of immediately available funds to the account of Borrower set forth on Schedule I hereto, or to such other account designated by Borrower from time to time in writing by notice to Lender. All Advances under this Agreement shall be conclusively presumed to have been made to, and at the request of and for the benefit of Borrower, when disbursed in accordance with the terms and conditions of this Agreement.
(d)Lender shall maintain a loan account (the “Loan Account”) in which shall be recorded the date and amount of each Advance made by Lender and the date and amount of each payment received by Lender in respect thereof; provided, however, the failure by Lender to record the date and amount of any Advance shall not adversely affect Lender. The Loan Account shall be deemed correct and binding upon Borrower in the absence of manifest error and shall constitute an account stated between Lender and Borrower.
3.Payments.
(a)Payments Generally.
(i)All payments of Obligations shall be made in Dollars, without offset, counterclaim or defense of any kind, free and clear of (and without deduction for) any Taxes, an in immediately available funds, not later than 2:00 p.m. (New York time) on the due date. Any payment after such time shall be deemed made on the next Business Day. If any payment is due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day. All payments of Obligations shall be paid by Borrower via wire transfer to the account of Lender specified in Schedule II hereto, or to such other account designated by Lender from time to time in writing by notice to Borrower.
(ii)Subject to the other terms and conditions contained herein, Lender shall apply payments received or collected from Borrower or for the account of Borrower (including the monetary proceeds of collections or of realization upon any Collateral), to the payment of the Obligations in such order as Lender may elect (except as specified elsewhere in this Agreement), and Borrower shall remain liable to Lender for any deficiency.
(iii)If after receipt of any payment of, or proceeds of Collateral applied to the payment of any of the Obligations, Lender is required to surrender or return such payment or proceeds to any Person for any reason, then the Obligations intended to be satisfied by such payment or proceeds shall be reinstated and continue and this Agreement shall continue in full force and effect as if such payment or proceeds had not been received by Lender. Borrower shall be liable to pay to Lender, and Borrower does hereby agree to indemnify and hold Lender harmless for, the amount of any payments or proceeds surrendered or returned. This Section 3(a)(iii) shall remain effective notwithstanding any contrary action which may be taken by Lender in reliance upon such payment or proceeds. The preceding two sentences of this Section 3(a)(iii) shall survive the payment of the Obligations and the termination of this Agreement.
(b)Repayments. Borrower agrees to pay Lender the outstanding principal and accrued and unpaid interest due on the outstanding Advances on July 30, 2025 (the “Maturity Date”) or upon such earlier date on which the Obligations are accelerated pursuant to the terms of this Agreement. In addition to the foregoing, Borrower hereby irrevocably promises to pay all Obligations, including the outstanding principal amount of the Advances and interest and fees with respect to the foregoing, as the same become due and payable hereunder and, in any event, on the Maturity Date.
(c)Mandatory Prepayments.
(i)Over-Advance. If at any time the aggregate principal amount of outstanding Advances exceeds the Maximum Credit Facility Amount in effect at such time, Borrower shall immediately repay the Advances in a principal amount necessary to eliminate such excess. Without limiting the obligations of the Borrower under Section 3(c)(iii), the Maximum Credit Facility Amount shall initially be $30,000,000, but shall be reduced by $1,000,000 for every $2,000,000 in aggregate proceeds in excess of $30,000,000 resulting from the consummation of one or more Dispositions in one or a series of transactions. For example, upon the consummation of Dispositions resulting in proceeds of $34,000,001, the Maximum Credit Facility Amount shall be reduced by $2,000,000 (from $30,000,000 to $28,000,000).
(ii)Prepayments from Proceeds of Casualty Events. Not later than three (3) Business Days following the receipt by Borrower or any Subsidiary of the proceeds of insurance, condemnation award, or other compensation in respect of any Casualty Event or series of related Casualty Events affecting any Collateral, Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the net cash proceeds of such Casualty Event(s).
(iii)Prepayment upon Change of Control and Certain Dispositions. Notwithstanding anything to the contrary contained herein, the Borrower shall be required to prepay all outstanding Obligations immediately upon (1) the date of any Change of Control, and/or (2) the closing date of any Disposition resulting in net cash proceeds to the Borrower or any Affiliate thereof of not less than $40,000,000 (net of taxes, costs and expenses paid in connection therewith and indebtedness required to be repaid in connection therewith).
(d)Voluntary Prepayments and Repayments. Borrower may, at any time upon not less than three (3) Business Days prior notice to Lender, prepay the Advances in an aggregate minimum amount of
$500,000. Any prepayment of the Obligations permitted in this Section 3(d) shall be subject to the payment of all fees set forth in Section 4, as applicable.
4.Interest and Fees.
(a)Interest. The outstanding principal amount of all Advances and all other Obligations shall bear interest from the date such Advances are made or such other Obligations become due to the date paid at a rate of 10.00% per annum. Interest accruing on the Advances and all other Obligations shall be payable in cash in arrears (i) on a monthly basis, on the fifth (5th) day of each month, for interest accrued and unpaid during the preceding month, (ii) on the date of any prepayment of the Advances and (iii) at maturity, whether by acceleration or otherwise. Such interest shall be reflected in the Loan Account.
(b)Unused Commitment Fee. Borrower shall pay to Lender, monthly in arrears on the fifth day of each month beginning after the date of this Agreement, a fee in an amount equal to (i) (x) the sum of, for each day during the preceding month, (A) the Commitment as of such day minus (B) the aggregate principal balance of the outstanding Advances as of such day, divided by (y) the number of days in such month, multiplied by (ii) 0.50% per annum (the “Unused Commitment Fee”).
(c)Computations of Interest and Fees. Interest and fees hereunder shall be computed on the basis of a year of 360 days and for the actual number of days elapsed. If any payment to be made hereunder becomes due and payable on a day other than a Business Day, the due date thereof shall be extended to the next succeeding Business Day and interest thereon shall accrue at the applicable interest rate during such extension.
(d)Interest Laws. Notwithstanding any provision to the contrary contained in this Agreement or any other Loan Document, Borrower shall not be required to pay, and Lender shall not be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by applicable law (“Excess Interest”). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any other Loan Document, then in such event: (i) the provisions of this subsection shall govern and control; (ii) neither Borrower nor any other Loan Party shall be obligated to pay any Excess Interest; (iii) any Excess Interest that Lender may have received hereunder shall be, at Lender’s option, (A) applied as a credit against the outstanding principal balance of the Obligations or accrued and unpaid interest (not to exceed the maximum amount permitted by law), (B) refunded to the payor thereof, or (C) any combination of the foregoing; (iv) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the “Maximum Rate”), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (v) neither Borrower nor other Loan Party shall have any action against Lender for any damages arising out of the payment or collection of any Excess Interest. Notwithstanding the foregoing, if for any period of time interest on any Obligations is calculated at the Maximum Rate rather than the applicable rate under this Agreement, and thereafter such applicable rate becomes less than the Maximum Rate, the rate of interest payable on such Obligations shall remain at the Maximum Rate until Lender shall have received the amount of interest which Lender would have received during such period on such Obligations had the rate of interest not been limited to the Maximum Rate during such period.
5.Security.
(a)GPCC hereby pledges and grants in favor of Lender and its successors and assigns, as security for the Obligations (including without limitation the repayment of Advances made hereunder and payment of interest thereon), a continuing first lien security interest in, Lien on and right of setoff against all of GPCC’s right, title and interest in, to and under (i) those certain parcels of real property described on Schedule IV hereto, together with all improvements and appurtenant fixtures, equipment, personal property, easements and other property and rights incidental thereto (the “Mortgaged Property”), and (ii) all cash and non-cash proceeds of any of the foregoing (collectively, the “Collateral”).
(b)The Loan Parties agree to take such action as Lender may request, and hereby appoint Lender as the Loan Parties’ lawful and irrevocable attorney-in-fact, fully empowered and authorized to take such action on behalf of each Loan Party, to create, preserve, perfect or validate the security interest granted hereunder or to enable Lender to exercise or enforce its rights with respect thereto. Without
limiting the foregoing, Lender will be entitled to execute, deliver and, if necessary, file and/or register such documents, including, without limitation, Uniform Commercial Code (“UCC”) financing statements or similar statements, in any relevant jurisdiction as may be necessary or appropriate to perfect and continue Lender’s security interest in the Collateral.
(c)Upon the occurrence of an Event of Default (as defined below), Lender shall be entitled to exercise all rights and remedies of a secured party with respect to the Collateral under applicable law, in addition to its other rights and remedies hereunder.
6.Conditions to Lending.
(a)Conditions Precedent to Initial Advance. Lender shall not be obligated to make any extension of credit hereunder unless each of the following conditions has been fulfilled to the satisfaction of Lender on or prior to the funding date of the initial Advance:
(i)Lender shall have received on or prior to the date of the initial Advance, in form and substance satisfactory to the Lender:
(1)this Agreement, duly executed by the Borrower and GPCC;
(2)a certificate of a Responsible Officer of each Loan Party certifying the resolutions of the board of directors, managers, or others performing similar functions with respect to such Loan , as applicable, approving and authorizing the execution, delivery, and performance by such Borrower of each Loan Document, the notices and other documents to be delivered by such Loan Party pursuant to each Loan Document to which it is a party, and the transactions contemplated thereunder;
(3)certificates of appropriate officials as to the existence and good standing of each Loan Party in its jurisdiction of incorporation or formation, as applicable;
(4)the Mortgage, duly executed by GPCC;
(5)an ALTA Title commitment for Title Insurance issued by a title company acceptable to Lender with respect the Mortgaged Property, in form and substance acceptable to Lender;
(6)evidence of insurance and loss payee endorsements required hereunder and certificates of insurance policies and/or endorsements naming Lender as additional insured or loss payee, as applicable;
(7)one or more warrants to purchase shares of the Borrower’s common stock, par value $0.001 per share (“Common Stock”), at an exercise price equal to $0.01 per share, in the form attached as Exhibit B hereto, issued by Borrower in favor of Lender’s designees (collectively, the “Warrants”, and each individually, a “Warrant”); provided the aggregate number of shares of Common Stock initially exercisable under the Warrants shall be 1,504,140, subject to adjustment in accordance with the terms thereof; and
(8)such other documents and instruments with respect to the transactions contemplated hereby as Lender may reasonably request.
(b)Conditions Precedent to All Advances. Lender shall not be obligated to make any extension of credit hereunder, including the initial Advance and any subsequent Advances, unless each of the following conditions has been fulfilled to the satisfaction of Lender on or prior to the funding date of the applicable Advance:
(i)Lender shall have received a Notice of Borrowing requesting the applicable Advance in accordance with the requirements of this Agreement.
(ii)Lender shall have received evidence, satisfactory to Lender, of the perfection and first priority status of its security interests in the Collateral.
(iii)Lender shall have received evidence satisfactory to it that there are no Liens upon any Collateral other than the Liens granted in favor of Lender hereunder and any other Loan Documents.
(iv)All representations and warranties contained herein and in the other Loan Documents that are qualified as to materiality or Material Adverse Effect shall be true and correct and all representations and warranties that are not so qualified shall be true and correct in all material respects, in each case with the same effect as though such representations and warranties had been made on and as of the date of the making of each Advance and after giving effect thereto, except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct to the extent required hereunder or under the other Loan Documents on and as of such earlier date).
(v)As of the date of the applicable Advance and the use of the proceeds thereof, and after giving effect to any of the foregoing, no Default or Event of Default shall exist or have occurred and be continuing.
(vi)As of the date of any Advance and the use of the proceeds thereof, and after giving effect to any of the foregoing, no event, condition or circumstance that has or individually or in the aggregate could reasonably be expected to have a Material Adverse Effect shall have occurred.
(vii)In accordance with Section 12 hereof, the Borrower shall have paid all out-of-pocket costs and expenses of the Lender as required by this Agreement or any other Loan Document incurred as of the date of the applicable Advance, including reasonable fees, charges, and disbursements of counsel to the Lender (directly to such counsel if requested by the Lender), which costs and expenses may be deducted from the funding of the Advance at the discretion of the Lender.
Each request for an Advance made pursuant to a Notice of Borrowing submitted to Lender shall be deemed to be a representation and warranty by Borrower that the conditions specified in Section 6(b) have been satisfied on and as of the date of the applicable Advance. The making of any Advance by Lender shall not be deemed a modification or waiver by Lender of any of the terms of this Agreement or any Default or Event of Default.
7.Events of Default.
(a)The occurrence of any of the following shall constitute an “Event of Default”:
(i)Any failure by Borrower to pay any amount of interest or principal with respect to any Advance or any other amount due hereunder, as and when due in accordance with this Agreement;
(ii)Any Loan Party fails or neglects to perform, keep or observe any covenant contained in this Agreement or any other Loan Document if the breach of such covenant is not cured to Lender’s satisfaction within five (5) days after the occurrence thereof;
(iii)Any representation, statement, report or certificate made or delivered by Borrower or any Guarantor to Lender under this Agreement, any other Loan Document or otherwise is not true and correct, in any material respect, when made, deemed made or furnished;
(iv)Any failure of this Agreement, the Mortgage or any other Loan Document to be in full force and effect;
(v)Lender ceases to have a valid and perfected security interest in the Collateral;
(vi)There is a default, after the expiration of any applicable cure period, under any other agreement, mortgage or indenture evidencing or securing indebtedness for borrowed money to which Borrower or any Subsidiary is a party with an outstanding balance owed in excess of $50,000, if as a result of such default the indebtedness or other obligation evidenced or secured by any such agreement may be accelerated or demand for payment thereof may be made; or
(vii)Borrower or any Subsidiary (1) is insolvent or generally does not pay, is unable to pay, or admits in writing its inability to pay its debts as they become due, (2) makes a general assignment for the benefit of its creditors, (3) petitions or applies to any tribunal or court for the appointment of, or otherwise becomes subject to the appointment of, a custodian, receiver or trustee or similar official for itself or a substantial portion of its assets, or a secured party takes possession of all or substantially all its assets; (4) commences or has commenced against it any proceeding under any bankruptcy, insolvency, reorganization, arrangement, moratorium or similar law in any jurisdiction affecting creditors’ rights; (5) presents or becomes subject to a petition for its winding-up or liquidation; or (6) takes any action in furtherance of or indicating its consent to, approval or acquiescence in any of the foregoing.
(b)Remedies.
(i)Acceleration; Termination of Commitment; Other Remedies. Upon the occurrence of an Event of Default, Lender may declare all Obligations of the Borrower hereunder to be immediately due and payable (and upon the occurrence of an Event of Default described in clause (vii) of the definition thereof, all such Obligations of the Borrower shall automatically and without need for further action by Lender become immediately due and payable). Upon the occurrence of an Event of Default, Lender may immediately cease making additional Advances and the Commitment shall be terminated. In addition, Lender may exercise any other rights or remedies it may have under any other agreement or under applicable law.
(ii)Set-Off. Upon the occurrence of an Event of Default, and without prejudice to any other rights Lender may have, Lender may, at its option, set off any amount owed by Lender to Borrower under any agreement or instrument (whether matured or contingent and irrespective
of the currency, place of payment or place of booking of the obligation) against the amounts owed by Lender to Borrower hereunder. To the extent such amounts are so setoff, such amounts will be deemed discharged in all respects. Lender will give notice to Borrower of any setoff hereunder.
8.Representations, Warranties and Agreements of the Loan Parties.
Each of the Loan Parties, warrants and agrees as of the date of this Agreement and as of any day on which an Advance is outstanding hereunder that:
(a)Such Loan Party has full power, authority and legal right to enter into this Agreement and to perform all its obligations hereunder;
(b)this Agreement has been duly executed and delivered by such Loan Party;
(c)this Agreement constitutes the legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms;
(d)the execution, delivery and performance of this Agreement by such Loan Party:
(i)are within such Loan Party’s corporate or limited liability company powers, as applicable, have been duly authorized by all necessary corporate or company action, as applicable, are not in contravention of law or the terms of such Loan Party’s by-laws, certificate of incorporation, operating agreement or certificate of formation, as applicable, or other applicable documents relating to such Loan Party’s formation or to the conduct of such Loan Party’s business or of any material agreement or undertaking to which such Loan Party is a party or by which such Loan Party is bound,
(ii)will not conflict with or violate any law or regulation, or any judgment, order or decree of any governmental authority,
(iii)will not require the consent of any governmental authority or any other Person, and
(iv)will not conflict with, nor result in any breach in any of the provisions of, nor constitute a default under any material agreement or undertaking to which such Loan Party is a party or by which such Loan Party is bound; and
(e)GPCC owns the Collateral free and clear of all Liens, claims, security interests and encumbrances, and such Loan Party will not create, incur, assume or permit to exist any other Liens, claims, security interests or encumbrances on the Collateral;
(f)GPCC has the right to pledge and grant in favor of Lender the security interest in the Collateral hereunder, and Lender has a valid and perfected security interest in the Collateral; and
(g)The legal name, jurisdiction of incorporation or formation and chief executive office of each Loan Party are as set forth on Schedule III hereto. Each Loan Party will provide advance written notice to Lender of any change in its jurisdiction of incorporation or the address or location of its chief executive office.
9.Certain Covenants of the Loan Parties.
(a)Insurance. The Loan Parties shall maintain, and pay all applicable premiums with respect to, residential and commercial risk insurance (i) covering the customary risks for the business that the
Loan Parties are engaged in, (ii) insuring the Collateral against loss by fire, flood and wind and such other hazards as are customary in the area where such Collateral is located and (iii) naming the Lender and its successors or assigns as their interests may appear as loss payee (in the case of property insurance) and an additional insured (in the case of liability insurance), and the Loan Parties will maintain insurance of similar types and coverages as maintained on the date hereof and consistent with past practice, with financially sound and reputable insurance companies and associations acceptable to the Lender based on the Lender’s reasonable judgment (or as to workers’ compensation or similar insurance, in an insurance fund or by self-insurance authorized by the jurisdiction in which its operations are carried on).
(b)Securities Laws Disclosure; Publicity. Borrower shall (i) by the Disclosure Time, issue or include in a press release disclosing the material terms of the transactions contemplated hereby, and (ii) file a Current Report on Form 8-K, including the Loan Documents as exhibits thereto, with the Commission within the time required by the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or file Borrower’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2025 with the Commission no later than May 12, 2025, including the Loan Documents as exhibits thereto. From and after the issuance of such press release, Borrower represents to the Lender that it shall have publicly disclosed all material, non-public information delivered to the Lender by Borrower or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Loan Documents. In addition, effective upon the issuance of such press release, Borrower acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between Borrower, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and Lender or any of its Affiliates on the other hand, shall terminate and be of no further force and effect. Borrower understands and confirms that Lender shall be relying on the foregoing covenant in effecting transactions in securities of Borrower. Borrower and Lender shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither Borrower nor Lender shall issue any such press release nor otherwise make any such public statement without the prior consent of the Borrower, with respect to any press release of Lender, or without the prior consent of Lender with respect to any press release of Borrower, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, Borrower shall not publicly disclose the name of Lender, or include the name of Lender or any of its Affiliates in any filing with the Commission or any regulatory agency or trading market, without the prior written consent of Lender, except (i) as required by federal securities law in connection with the filing of final Loan Documents with the Commission and (ii) to the extent such disclosure is required by law or applicable trading market regulations, in which case Borrower shall provide Lender with prior notice of such disclosure permitted under this clause (ii) and reasonably cooperate with Lender regarding such disclosure.
(c)Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Loan Documents, which shall be disclosed pursuant to Section 9(b), Borrower covenants and agrees that neither it, nor any other Person acting on its behalf will provide Lender or its agents or counsel with any information that constitutes, or that Borrower reasonably believes constitutes, material non-public information, unless prior thereto Lender shall have consented to the receipt of such information and agreed with Borrower to keep such information confidential. Borrower understands and confirms that Lender shall be relying on the foregoing covenant in effecting transactions in securities of Borrower. To the extent that Borrower, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates delivers any material, non-public information to Lender without Lender’s consent, Borrower hereby covenants and agrees that Lender shall not have any duty of confidentiality to the Borrower, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to Borrower, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that Lender shall remain subject to applicable law. To the extent that any notice provided pursuant to any Loan Document constitutes, or contains, material, non-public information regarding Borrower or any Subsidiaries, Borrower shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. Borrower understands and confirms that Lender shall be relying on the foregoing covenant in effecting transactions in securities of Borrower.
10.Guaranty.
(a)Guaranty. Each Guarantor hereby unconditionally guarantees, as a primary obligor and not merely as a surety, jointly and severally with each other Guarantor when and as due, whether at maturity, by acceleration, by notice of prepayment or otherwise, the due and punctual performance of all Obligations. Each payment made by each Guarantor pursuant to this Section 10 shall be made in Dollars in immediately available funds, (a) without set-off or counterclaim and (b) free and clear of and without deduction or withholding for or on account of any Taxes.
(b)Waivers. Each Guarantor hereby absolutely, unconditionally and irrevocably waives (a) promptness, diligence, notice of acceptance, notice of presentment of payment and any other notice hereunder, (b) demand of payment, protest, notice of dishonor or nonpayment, notice of the present and future amount of the Obligations and any other notice with respect to the Obligations, (c) any requirement that Lender protect, secure, perfect or insure any security interest or Lien or any property subject thereto or exhaust any right or take any action against any other Guarantor, or any Person or any Collateral, (d) any other action, event or precondition to the enforcement hereof or the performance by any Guarantor of the Obligations, (e) all suretyship defenses and (f) any defense arising by any lack of capacity or authority or any other defense of the Borrower or any other Guarantor or any notice, demand or defense by reason of cessation from any cause of Obligations other than payment and performance in full of the Obligations.
(c)No Defense. No invalidity, irregularity, voidableness, voidness or unenforceability of this Agreement or any other Loan Document or any other agreement or instrument relating thereto, or of all or any part of the Obligations or of any collateral security therefor shall affect, impair or be a defense hereunder.
(d)Guaranty of Payment. The Guaranty hereunder is one of payment and performance, not collection, and the obligations of each Guarantor hereunder are independent of the Obligations of the Borrower, any other Guarantor or any other Person, and a separate action or actions may be brought and prosecuted against any Guarantor to enforce the terms and conditions of this Section 10, irrespective of whether any action is brought against Borrower or any other Guarantor or other Persons or whether Borrower, any other Guarantor or other Persons are joined in any such action or actions. Each Guarantor waives any right to require that any resort be had by Lender to any security held for payment of the any Obligations or to any balance of any deposit account or credit on the books of Lender in favor of Borrower, any other Guarantor or any other Person. No election to proceed in one form of action or proceedings, or against any Person, or on any Obligations, shall constitute a waiver of Lender’s right to proceed in any other form of action or proceeding or against any other Person unless Lender has expressed any such right in writing. Without limiting the generality of the foregoing, no action or proceeding by Lender against Borrower, any other Guarantor or any other Person under any document evidencing or securing indebtedness of Borrower or any other Guarantor shall diminish the liability of any Guarantor hereunder, except to the extent Lender receives actual payment on account of the Obligations by such action or proceeding, notwithstanding the effect of any such election, action or proceeding upon the right of subrogation of such Guarantor in respect of Borrower, any other Guarantor or any other Person.
(e)Indemnity. As an original and independent obligation under this Agreement, each Guarantor shall, jointly and severally, with the other Guarantors, (i) indemnify Lender and keep Lender indemnified against all costs, losses, expenses and liabilities of whatever kind resulting from the failure by any party to make due and punctual payment of any of the Obligations or resulting from any of the Obligations being or becoming void, voidable, unenforceable or ineffective against Borrower (including all legal and other costs, charges and expenses incurred by Lender in connection with preserving or enforcing, or attempting to preserve or enforce, its rights under this Agreement and the other Loan Documents), and (ii) pay on demand the amount of such costs, losses, expenses and liabilities whether or not Lender has attempted to enforce any rights against Borrower or any other Person or otherwise.
(f)Liabilities Absolute. The liability of each Guarantor hereunder shall be absolute, unlimited and unconditional and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any claim, defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity or unenforceability of the Obligations, any other Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor shall not be discharged or impaired, released, limited or otherwise affected by:
(i)any change in the manner, place or terms of payment or performance, or any change or extension of the time of payment or performance of, release, renewal or alteration of, or any new agreements relating to any Obligations, any security therefor, or any liability incurred directly or indirectly in respect thereof, or any rescission of, or amendment, waiver or other modification of, or any consent to departure from, this Agreement or any other Loan Document, including any increase in the Obligations resulting from the extension of additional credit to Borrower or otherwise;
(ii)any sale, exchange, release, surrender, loss, abandonment, realization upon any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, all or any of the Obligations, or any offset there against, or failure to perfect, or continue the perfection of, any Lien in any such property, or delay in the perfection of any such Lien, or any amendment or waiver of or consent to departure from any other guaranty for all or any of the Obligations;
(iii)the failure of Lender to assert any claim or demand or to enforce any right or remedy against Borrower or any Guarantor or any other Person under the provisions of this Agreement or any other Loan Document or any other document or instrument executed and delivered in connection herewith or therewith;
(iv)any settlement or compromise of any Obligation, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and any subordination of the payment of all or any part thereof to the payment of obligation (whether due or not) of Borrower or any Guarantor to creditors of Borrower or any Guarantor other than Borrower or any Guarantor;
(v)any manner of application of Collateral, or proceeds thereof, to all or any of the Obligations, or any manner of sale or other disposition of any Collateral for all or any of the Obligations or any other assets of Borrower or any Guarantor; and
(vi)any other agreements or circumstance of any nature whatsoever that may or might in any manner or to any extent vary the risk of any Guarantor, or that might otherwise at law or in equity constitute a defense available to, or a discharge of, the Guaranty hereunder or the obligations of any Guarantor, or a defense to, or discharge of, Borrower, any Guarantor or any other Person or party hereto or the Obligations or otherwise with respect to the advances or other financial accommodations to Borrower pursuant to this Agreement or the other Loan Documents.
(g)Waiver of Notice. Lender shall have the right to do any of the above without notice to or the consent of Guarantors and each Guarantor expressly waives any right to notice of, consent to, knowledge of and participation in any agreements relating to any of the above or any other present or future event relating to the Obligations whether under this Agreement or otherwise or any right to challenge or question any of the above and waives any defenses of such Guarantor that might arise as a result of such actions.
(h)Lender’s Discretion. Lender may at any time and from time to time (whether prior to or after the revocation or termination of this Agreement) without the consent of, or notice to, any Guarantor, and without incurring responsibility to any Guarantor or impairing or releasing the Obligations, apply any sums by whomsoever paid or howsoever realized to any Obligations regardless of what Obligations remain unpaid.
(i)Reinstatement.
(i)The provisions of this Section 10 shall continue to be effective or be reinstated, as the case may be, if claim is ever made upon Lender for repayment or recovery of any amount or amounts received by it in payment or on account of any of the Obligations and it repays all or part of said amount for any reason whatsoever, including by reason of any judgment, decree or order of any court or administrative body having jurisdiction over such Person or the respective property of each, or any settlement or compromise of any claim effected by such Person with any such claimant (including Borrower or any other Guarantor); and in such event each Guarantor hereby agrees that any such judgment, decree, order, settlement or compromise or other circumstances shall be binding upon such Guarantor, notwithstanding any revocation hereof or the cancellation of any note or other instrument evidencing any Obligation, and such Guarantor shall be and remain liable to Lender for the amount so repaid or recovered to the same extent as if such amount had never originally been received by such Person(s).
(ii)Lender shall not be required to marshal any assets in favor of any Guarantor, or against or in payment of any Obligations.
(iii)No Guarantor shall be entitled to claim against any present or future security held by Lender from any Person for the Obligations in priority to or equally with any claim of Lender, or assert any claim for any liability of Borrower or any other Guarantor to such Guarantor, in priority to or equally with claims of Lender for the Obligations, and Guarantors shall not be entitled to compete with Lender with respect to, or to advance any equal or prior claim to any security held by Lender for the Obligations.
(iv)If Borrower or any Guarantor makes any payment to Lender, which payment is wholly or partly subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to any Person under any federal or provincial statute or at common law or under equitable principles, then to the extent of such payment, the Obligation intended to be paid shall be revived and continued in full force and effect as if the payment had not been made, and the resulting revived Obligation shall continue to be guaranteed, uninterrupted, by each Guarantor hereunder.
(v)All present and future monies payable by Borrower to any Guarantor, whether arising out of a right of subrogation or otherwise, are assigned to Lender as security for the liability of such Guarantor to Lender hereunder and are postponed and subordinated to Lender’s prior right to payment in full of Obligations. All monies received by any Guarantor from Borrower or any other Guarantor shall be held by such Guarantor as agent and trustee for Lender. This assignment, postponement and subordination shall only terminate when the Obligations are paid in full in cash and this Agreement is irrevocably terminated.
(vi)Borrower and each Guarantor acknowledge this assignment, postponement and subordination and, except as otherwise set forth herein, agree to make no payments to any Guarantor without the prior written consent of Lender. Borrower and each Guarantor agree to give full effect to the provisions hereof.
(j)Action Upon Event of Default. Upon the occurrence and during the continuance of any Event of Default, Lender may, without notice to or demand upon Borrower, any Guarantor or any other Person, declare any obligations of any Guarantor under this Section 10 immediately due and payable, and shall be entitled to enforce the obligations of each Guarantor under this Section 10. Upon such declaration by Lender, Lender is hereby authorized at any time and from time to time to set off and apply any and all deposits (general or special, time or demand, provisions or final) at any time held and other indebtedness
at any time owing by Lender to or for the credit or the account of such Guarantor against any and all of the obligations of such Guarantor now or hereafter existing hereunder, whether or not Lender shall have made any demand hereunder against Borrower or any other Person and although such obligations may be contingent and unmatured. The rights of Lender hereunder are in addition to other rights and remedies (including other rights of set-off) which Lender may have. Upon such declaration by Lender, with respect to any claims (other than those claims referred to in the immediately preceding paragraph) of each Guarantor against Borrower or any other Guarantors (for purposes of this Section 10(j), the “Claims”), Lender shall have the full right for its own benefit in its own name or in the name of such Guarantor to collect and enforce such Claims by legal action, proof of debt in bankruptcy or other liquidation proceedings, vote in any proceeding for the arrangement of debts at any time proposed, or otherwise, Lender and each of its officers being hereby irrevocably constituted attorneys-in-fact for each Guarantor for the purpose of such enforcement and for the purpose of endorsing in the name of such Guarantor any instrument for the payment of money. Each Guarantor will receive as trustee for Lender and will pay to Lender forthwith upon receipt thereof any amounts which such Guarantor may receive from Borrower or any other Guarantor on account of the Claims. Each Guarantor agrees that at no time hereafter will any of the Claims be represented by any notes or other negotiable instruments or writings, except and in such event they shall either be made payable to Lender, or if payable to such Guarantor, shall forthwith be endorsed by such Guarantor to Lender. Each Guarantor agrees that no payment on account of the Claims or any security interest therein shall be created, received, accepted or retained during the continuance of any Event of Default nor shall any financing statement be filed with respect thereto by such Guarantor.
(k)Statute of Limitations. Any acknowledgment or new promise, whether by payment of principal or interest or otherwise and whether by Borrower or any other Guarantor or others (including any Lender) with respect to any of the Obligations shall, if the statute of limitations in favor of Borrower or any Guarantor against Lender shall have commenced to run, toll the running of such statute of limitations and, if the period of such statute of limitations shall have expired, prevent the operation of such statute of limitations.
(l)Interest. All amounts due, owing and unpaid from time to time by any Guarantor under this Section 10, to the extent such amounts do not otherwise include interest accruing on the outstanding Obligations to the date all such amounts are actually paid by such Guarantor, shall bear interest at the interest rate then chargeable with respect to the Advances.
(m)Guarantor’s Investigation. Each Guarantor acknowledges receipt of a copy of each of this Agreement and the other Loan Documents. Each Guarantor has made an independent investigation of Borrower and each other Guarantor and of the financial condition of Borrower and each other Guarantor. Lender has not made and does not does make any representations or warranties as to the income, expense, operation, finances or any other matter or thing affecting Borrower, or any other Guarantor, nor has Lender made any representations or warranties as to the amount or nature of the Obligations of Borrower or any other Guarantor to which this Section 10 applies as specifically herein set forth, nor has Lender or any officer, agent or employee of Lender or any representative thereof, made any other oral representations, agreements or commitments of any kind or nature, and each Guarantor hereby expressly acknowledges that no such representations or warranties have been made and each Guarantor expressly disclaims reliance on any such representations or warranties.
(n)Limitation of Liability. Each Guarantor, and, by its acceptance of the Guaranty hereunder, each Lender hereby confirm that it is the intention of all such Persons that the Guaranty hereunder and the Obligations of such Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy Code, the UFTA, the UFCA or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law to the extent applicable to the Guaranty hereunder and the Obligations of each Guarantor hereunder. To effectuate the foregoing intention, Lender, by its acceptance of the Guaranty hereunder, and each Guarantor hereby irrevocably agree that the Obligations of Guarantor under the Guaranty hereunder at any time shall be limited to the maximum amount as will result in the Obligations of Guarantor under the Guaranty hereunder not constituting a fraudulent transfer or conveyance.
(o)Waiver of Subrogation. Notwithstanding anything to the contrary in this Section 10(o) or otherwise, each Guarantor expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution of any other claim which such Guarantor may now or hereafter have against
Borrower or the other Guarantors or any other Person directly or contingently liable for the Obligations, or against or with respect to the property or Borrower or any other Guarantor (including any property which is Collateral for the Obligations), arising from the existence or performance of this Agreement, until termination of this Agreement and repayment in full of the Obligations.
(p)Termination. The provisions of this Section 10 shall remain in effect until the indefeasible payment in full in cash of all Obligations and irrevocable termination of this Agreement.
11.Taxes.
(a)Any and all payments made by Borrower hereunder shall be made free and clear of and without deduction for any present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto (all such taxes, levies, imposts, deductions, charges, withholdings and liabilities, being hereinafter referred to as “Taxes”). If and to the extent any applicable law requires the Taxes be withheld from any payment hereunder, (i) the amount of such payment shall be increased to the extent necessary to cause Lender to receive (after the withholding of such Taxes) an amount equal to the amount it would have received had the withholding of such Taxes not been required, and (ii) Borrower shall withhold such Taxes from such increased payment and pay such Taxes to the relevant taxation authority or other governmental authority for the account of Lender in accordance with applicable law.
(b)Borrower agrees to pay any present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies which arise from any payment made hereunder or under any instrument delivered hereunder or from the execution, delivery or registration of, or otherwise with respect to, the Agreement or any instrument delivered hereunder (hereinafter referred to as “Other Taxes”).
(c)Borrower shall indemnify Lender for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this section) paid by Lender or any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted. This indemnification shall be made promptly after the date Lender makes written demand therefor.
(d)The agreements and obligations of Borrower contained in this section shall survive the termination of this Agreement and under any instrument delivered hereunder.
12.Costs and Expenses.
The Loan Parties, jointly and severally, to reimburse Lender for all out-of-pocket costs and expenses, including, without limitation, legal expenses and documented attorneys’ fees, incurred by Lender in connection with (i) due diligence in connection with, and documentation, negotiation and consummation of, the transactions contemplated hereunder and any other transactions between the Loan Parties and Lender in connection therewith, including, without limitation, Uniform Commercial Code and other public record searches and filings and overnight courier or other express or messenger delivery; (ii) collection, protection or enforcement of any rights in or to the Collateral; (iii) collection of any Obligations; (iv) enforcement of this Agreement or any other Loan Document (including, without limitation, any costs and expenses of any third party provider engaged by Lender for such purpose); (v) services of any third party servicer in connection with the Obligations; and (vi) ongoing monitoring by Lender in connection with the Loan Documents.
13.Indemnification.
Borrower shall indemnify Lender and its directors, officers, employees, agents and controlling persons (each such person being called an “Indemnified Party”) against, and hold each Indemnified Party harmless from, any and all losses, claims, damages, liabilities and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnified
14.Further Assurances.
Each of the Loan Parties agrees to execute such further documents evidencing or carrying out the purpose of the foregoing terms and conditions as may be reasonably requested by (i) Lender or (ii) any regulatory authority having jurisdiction over such Loan Party.
15.CHOICE OF LAW AND CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL AND IMMUNITIES.
THIS AGREEMENT AND ANY OTHER DOCUMENTS ARISING HEREUNDER AND ALL MATTERS ARISING OUT OF OR RELATED HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
BORROWER HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE U.S. FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, NEW YORK IN CONNECTION WITH ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND HEREBY WAIVES THE RIGHT TO OBJECT TO THE VENUE OF ANY SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURTS.
EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING TO THIS AGREEMENT.
IF IN ANY JURISDICTION BORROWER MAY NOW OR HEREAFTER BE ENTITLED TO CLAIM, FOR ITSELF OR ITS ASSETS, IMMUNITY FROM SUIT, ATTACHMENT (BEFORE OR AFTER JUDGMENT) OR OTHER LEGAL PROCESS, BORROWER HEREBY IRREVOCABLY AGREES NOT TO CLAIM, AND HEREBY WAIVES, SUCH IMMUNITY.
16.Termination.
This Agreement will remain in effect until such time as it is terminated by Borrower or Lender at any time upon written notice to the other party to this Agreement; provided that this Agreement shall remain in effect until all obligations of Borrower hereunder have been irrevocably paid in full.
17.Notices.
All notices, communications or deliveries provided for hereunder must be in writing and will be deemed to have been duly given: (a) on the day of delivery, if delivered by hand; (b) on the first Business
Day following the date of transmission, if sent by electronic mail (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered; (d) on the first Business Day following deposit with a nationally recognized overnight delivery service; or (e) upon the earlier of actual receipt and the third Business Day following first class mailing, with first class, postage prepaid, addressed as follows:
if to any Loan Party: Green Plains Inc.
1811 Aksarben Drive,
Omaha, NE 68106
Attention: Michelle Mapes
Email: michelle.mapes@gpreinc.com
if to Lender: Ancora Alternatives LLC
6060 Parkland Boulevard, Suite 200
Cleveland, Ohio 44124
Attention: Jim Chadwick and Lauren Turkisher
Email: jchadwick@ancoraalts.com
lturkisher@ancoraalts.com
with a copy (which shall
not constitute notice) to: Olshan Frome Wolosky
1325 Avenue of the Americas
New York, New York 10019
Attention: Andrew M. Freeman
Email: afreedman@olshanlaw.com
or as to Lender or any Loan Party at such other address as shall be designated by such party in a written notice to the other parties hereto in accordance with this Section 17.
18.Miscellaneous.
(a)This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties, provided, that, none of the Borrower nor any Guarantor may assign this Agreement or any other Loan Document or any rights or obligations hereunder or thereunder without Lender’s prior written consent and any prohibited assignment shall be absolutely void. Lender may sell, assign, transfer, negotiate or grant participations in all or any part of, or any interest in, or any right or remedy under, the Obligations and the Loan Documents without the consent of Borrower or any Guarantor.
(b)Neither (i) any stockholder or owner of any other equity interest in Borrower or any Guarantor, (ii) any employee or creditor of Borrower or any Guarantor (other than Lender and its Affiliates), nor (c) any other Person claiming by or through Borrower or any Guarantor shall be entitled to rely on this Agreement or any other Loan Document or have any rights, remedies or claims against Lender or any Affiliate thereof under or in connection with this Agreement or any other Loan Document.
(c)This Agreement and the other Loan Documents, together with all other instruments, agreements, and certificates executed by the parties in connection therewith or with reference thereto, embody the entire understanding and agreement between the parties hereto and thereto with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings and inducements, whether express or implied, oral or written.
(d)This Agreement may be executed in any number of counterpart signature pages, and by the different parties on different counterparts, each of which when executed shall be deemed an original
but all such counterparts taken together shall constitute one and the same instrument. This Agreement will be deemed executed by the parties hereto when each has signed it and delivered its executed signature page to Lender by facsimile transmission, electronic transmission or physical delivery. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (e.g., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” and words of like import in any Loan Document shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, including any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., www.docusign.com).
(e)No amendment, modification or waiver of this Agreement shall be effective unless in writing and signed by each of the parties.
(f)If any provision of this Agreement is held illegal, void or unenforceable, the remainder of this Agreement will remain in effect.
(g)The powers, rights, remedies and privileges contained in this Agreement are cumulative and not exclusive of any powers, rights, remedies and privileges provided by applicable law.
(h)No failure or delay in exercising any right, remedy, power or privilege in respect of this Agreement shall operate as a waiver, and a single or partial exercise of any right, remedy, power or privilege will not preclude any subsequent or further exercise of that right, remedy, power or privilege or any other.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.
BORROWER:
GREEN PLAINS INC.
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
GUARANTOR:
GREEN PLAINS CENTRAL CITY LLC
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
[Signature Page to Secured Line of Credit Agreement]
LENDER:
ANCORA ALTERNATIVES LLC
By: Ancora Holdings Group, LLC, its Sole Member
By: /s/ Frederick D. DiSanto Name: Fredrick D. DiSanto Title: Chairman and Chief Executive Officer
[Signature Page to Secured Line of Credit Agreement]
SCHEDULE I
Wire Instructions (for Advances to Borrower)
Bank Name: Bank of America, NA
Bank Address: 222 Broadway
New York, NY 10038
ABA #: 026009593
Account #: [XXXXXXXXXXX]
Account Name: Green Plains Inc.
SCHEDULE II
Wire Instructions (for payments to Lender)
Bank Name: Bank of America
Account Name: Ancora Alternatives, LLC
Account Number: [XXXXXXXXXXXX]
Wire ABA: 026009593
ACH Routing: 021000322
SCHEDULE III
LEGAL NAME; JURISDICTION OF INCORPORATION OR FORMATION;
AND ADDRESS OF CHIEF EXECUTIVE OFFICE
1.Borrower:
a.Legal Name: Green Plains Inc.
b.Jurisdiction of Incorporation and UCC Filing Jurisdiction: Iowa
c.Address: 1811 Aksarben Drive, Omaha, NE 68106
2.GPCC:
a.Legal Name: Green Plains Central City LLC
b.Jurisdiction of Formation and UCC Filing Jurisdiction: Delaware
c.Address: 1811 Aksarben Drive, Omaha, NE 68106
SCHEDULE IV
Legal Description
Parcel 1:
A tract of land located in part of the South Half and all of Tax Lot One (1) in Section 11, Township 13 North, Range 6 West of the 6th P.M., Merrick County, Nebraska, and more particularly described as follows:
Commencing at the center of Section 11; thence on an assumed bearing of S00°00'00"W upon and along the West line of the Southeast Quarter a distance of 50.00 feet to the South Right-of-Way (R.O.W.) line of Hord Lake Road, said point also being the Point of Beginning; thence S00°00'00"W upon and along said West line a distance of 5.00 feet; thence S89°08'56"E upon and along said South R.O.W. line a distance of 1349.09 feet to the West line of Tax Lot 1; thence N00°58'54 "E upon and along said West line of Tax Lot 1 a distance of 14.64 feet to the northwest corner of said Tax Lot 1; thence S89°07'20"E upon and along the North line of said Tax Lot 1, said line also being said South R.O.W. line a distance of 260.55 feet to the northeast corner of said Tax Lot l; thence S00°19'29"W upon and along the East line of said Tax Lot 1 a distance of 316.00 feet to the southeast corner of said Tax Lot 1; thence N89°03'23"W upon and along the South line of said Tax Lot 1 a distance of 260.00 feet to the southwest corner of said Tax Lot 1; thence N89°52'11"W a distance of 11.02 feet; thence S00°34'25"W a distance of 749.87 feet; thence N89°06'32"W a distance of 1192.10 feet to the easterly R.O.W. line of Union Pacific Railroad; thence N38°25'26"W upon and along said Railroad R.O.W. line a distance of 221.21 feet to a point on said West line of the Southeast Quarter; thence N38°18'13"W upon and along said Railroad R.O. W. line a distance of 479.98 feet; thence N51°42'35"E upon and along said Railroad R.O. W. a distance of 100.00 feet; thence N38°17'31"W upon and along said easterly Railroad R.O.W. line a distance of 578.18 feet to a point on said South R.O.W. line of Hord Lake Road; thence S89°10'16"E upon and along said South R.O.W. line a distance of 577.37 feet to the Point of Beginning.
Said tract is also known as and has been formerly described as:
A tract of land comprising a part of the Southwest Quarter, part of the Southeast Quarter and all of Tax Lot One (1) in Section 11, Township 13 North, Range 6 West of the 6th P.M., Merrick County, Nebraska, and more particularly described as follows:
First to ascertain the actual point of beginning, start at the northwest corner of said Southeast Quarter; thence southerly along and upon the West line of said Southeast Quarter for a distance of 50.00 feet to the Point of Beginning; thence continuing southerly along and upon the West line of said Southeast Quarter for a distance of 5.00 feet; thence deflecting left 89°09'16" and running easterly along and upon the South line of deeded road right-of-way for a distance of 1348.94 feet; thence deflecting left 90°39'34" and running northerly along and upon the West line of Tax Lot 1 for a distance of 15.00 feet to the northwest corner of said Tax Lot 1; thence easterly along and upon the South line of deeded road right-of-way also being the North line of said Tax Lot 1 for a distance of 260.00 feet; thence southerly along and upon the East line of said Tax Lot 1 for a distance of 316.00 feet; thence westerly along and upon the South line of said Tax Lot 1 and extending for a total distance of 271.00 feet; thence deflecting left 90°10'06" and running southerly for a distance of749.87 feet; thence deflecting right 90°16'40" and running westerly for a distance of 1191.96 feet to a point on the northeast right-of-way line of the Union Pacific Railroad; thence northwesterly along and upon the n01theast right-of-way line of said Union Pacific Railroad for a distance of 70 l.92 feet; thence northeasterly along and upon the northeast right-of-way line of said Union Pacific Railroad for a distance of 100.00 feet; thence northwesterly along and upon the northeast right-of-way line of said Union Pacific Railroad for a distance of 578.10 feet to a point on the South right-of-way line of deeded road; thence easterly along and upon the South right-of-way line of deeded road for a distance of 577.31 feet to the Point of Beginning.
EXCEPT Those portions of the property described above being more particularly described within the Correction Deed filed August 22, 2016, in Book A45 at Page 123 (instrument 2016-01112).
And together with rights of ingress and egress as set forth within the Easement Agreement for Ingress and Egress filed August 18, 2014, in Book RR at Page 490 of the Records of Merrick County, Nebraska.
Parcel 2:
A tract of land located in part of the Southeast Quarter (SE1/4) of Section Eleven (11), Township Thirteen (13) North, Range Six (6) West of the 6th P.M., Merrick County, Nebraska, and more particularly described as follows:
COMMENCING AT THE NORTHWEST CORNER OF THE SOUTHEAST ¼ OF SECTION 11-T13N-R6W; THENCE ON AN ASSUMED BEARING S00°01’23”E A DISTANCE OF 50.00 FEET TO A POINT ON THE SOUTH ROW LINE OF HORD LAKE ROAD; THENCE S89°10’20”E, ALONG SAID SOUTH ROW LINE OF HORD LAKE ROAD, A DISTANCE OF 1349.09 FEET TO A POINT ON THE WEST LINE OF TAX LOT 1; THENCE S00°09’50”W, ALONG SAID WEST LINE OR TAX LOT 1, A DISTANCE OF 301.16 FEET TO THE POINT OF BEGINNJNG; THENCE S89°04’47”E ALONG THE SOUTH LINE OF SAID TAX LOT 1 A DISTANCE OF 138.98 FEET; THENCE S00°33’02”W A DISTANCE OF 749.89 FEET; THENCE N89°07’56”W A DISTANCE OF 150.00 FEET; THENCE N00°31’15”E A DISTANCE OF 749.68 FEET; THENCE S89°53’35”E A DISTANCE OF 11.02 FEET TO THE POINT OF BEGINNING. SAID TRACT CONTAINS A CALCULATED AREA OF 112492.45 SQUARE FEET OR 2.582 ACRES MORE OR LESS.
Parcel 3:
A TRACT OF LAND LOCATED IN PART OF THE SOUTHEAST QUARTER (SE1/4) OF SECTION ELEVEN (11), TOWNSHIP THIRTEEN (13) NORTH, RANGE SIX (6) WEST OF THE 6TH P.M., CITY OF CENTRAL CITY, MERRICK COUNTY, NEBRASKA, AND MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE CENTER QUARTER CORNER OF SAID SECTION; THENCE ON AN ASSUMED BEARING OF S00°00'00"W, ALONG THE WEST LINE OF THE SOUTHEAST QUARTER, A DISTANCE OF 335.38 FEET; THENCE S89°46'26"E A DISTANCE OF 55.42 FEET TO THE POINT OF BEGINNING; THENCE S89"46'26"E A DISTANCE OF 259.13 FEET; THENCE S00°01'47"W A DISTANCE OF 130.49 FEET; THENCE N89°46'26"W A DISTANCE OF 102.44 FEET; THENCE S00°01'47"W A DISTANCE OF 34.34 FEET; THENCE S89°46'26"E A DISTANCE OF 114.39 FEET; THENCE S00°01'47''W A DISTANCE OF 52.84 FEET; THENCE N89°48'39''W A DISTANCE OF 10.65 FEET; THENCE S00°01'47''W A DISTANCE OF 116.57 FEET; THENCE S89°56'09"E A DISTANCE OF 282.43 FEET; THENCE S00°06'10"W A DISTANCE OF 165.44 FEET; THENCE S89°56'09"E A DISTANCE OF 69.01 FEET; THENCE S00°01'47''W A DISTANCE OF 33.42 FEET; THENCE N89°56'09"W A DISTANCE OF 135.71 FEET; THENCE N00°01'47"E A DISTANCE OF 33.42 FEET; THENCE S89°56'09''E A DISTANCE OF 59.83 FEET; THENCE N00°06'10"E A DlSTANCE OF 153.00 FEET; THENCE N89°56'09"W A DISTANCE OF 194.33 FEET; THENCE S00°01'47"W A DISTANCE OF 8.76 FEET; THENCE N89°56'01"W A DISTANCE OF 36.73 FEET; THENCE S75°23'32"W A DISTANCE OF 63.68 .FEET; THENCE S00°01'47"W A DISTANCE OF 10.47 FEET; THENCE N89°56'01"W A DISTANCE OF 96.58 FEET; THENCE S00°01'47"W A DISTANCE OF 33.42 FEET; THENCE S89°56'01"E A DISTANCE OF 96.58 FEET; THENCE S00°01'47"W A DISTANCE OF 83.16 FEET; THENCE N89°56'01"W A DISTANCE OF 243.31 FEET; THENCE N00°01'47"E A DISTANCE OF 499.34 FEET TO THE POINT OF BEGINNING. SAID TRACT CONTAINS A CALCULATED AREA OF 131,407 SQUARE FEET OR 3.02 ACRES MORE OR LESS.
EXHIBIT A
FORM OF NOTICE OF BORROWING
To: Ancora Alternatives LLC 6060 Parkland Boulevard, Suite 200
Cleveland, Ohio 44124
Attention: Jim Chadwick and Lauren Turkisher
Email: jchadwick@ancoraalts.com
lturkisher@ancoraalts.com
Reference is made to the Secured Line of Credit Agreement, dated as of May 7, 2025 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among GREEN PLAINS INC., an Iowa corporation (together with its successors and permitted assigns, “Borrower”), GREEN PLAINS CENTRAL CITY LLC, a Delaware limited liability company, in its capacity as a Guarantor (together with its successors and permitted assigns, “GPCC”, and together with Borrower and any other Guarantors party to the Credit Agreement from time to time, collectively, the “Loan Parties”), and ANCORA ALTERNATIVES LLC, an Ohio limited liability company, in its capacity the Lender. Capitalized terms used herein without definition are used as defined in the Credit Agreement.
Borrower hereby gives irrevocable notice, pursuant to Section 2(b) of the Credit Agreement, of its request for an Advance under the Credit Agreement as follows:
(i) The requested funding date for the proposed Advance (which is a Business Day) is [________], 2025, which is not earlier than three Business Days after the date of this request.
(i)The aggregate amount of the proposed Advance is $[___________].
Borrower hereby represents and warrants that on the date of this Notice of Borrowing and on the funding date set forth above, and immediately after giving effect to the Advance requested hereby: (i) there does not exist, and there will not exist, any Default or Event of Default under the Credit Agreement; (ii) the representations and warranties of each Loan Party set forth in the Credit Agreement and the other Loan Documents are true and correct in all material respects (unless any such representation or warranty is by its terms qualified by concepts of materiality, in which case that representation or warranty is true and correct in all respects) with the same effect as if then made (except to the extent stated to relate to a specific earlier date, in which case that representation or warranty is true and correct in all material respects or in all respects, as applicable, as of that earlier date); and (iii) all of the conditions contained in Sections 6(a) and 6(b) of the Credit Agreement have been satisfied.
[Signature Page Follows]
Borrower has caused this Notice of Borrowing to be executed and delivered by its officer thereunto duly authorized on [_________], 2025.
BORROWER:
GREEN PLAINS INC.
By: Name: Title:
EXHIBIT B
FORM OF WARRANT
(Attached)
Document
Exhibit 10.12(a)
WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 001 Number of Warrants: 532,465 May 7, 2025
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to Ancora Catalyst Institutional, LP (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of Warrants set forth above (the “Warrants” and the certificate evidencing same being referred to herein as “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of $0.01 per share (the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is $0.01 multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”).
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
39650.00001
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1.
(d)Disputes. In the event that there is any dispute as to the computation of the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such
firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on May 7, 2035 (the “Expiration Date”).
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an
Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4.Reservation of Common Stock; Valid Issuance. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws). The Company further covenants that such shares of Common Stock as may be issued pursuant to such exercise will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall
in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at 6060 Parkland Boulevard, Cleveland, OH 44124, or such address of the Registered Holder reflected after the date hereof (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Registration Rights. The Registered Holder will be entitled to “piggy back” registration rights, with respect to the Warrant Shares issuable hereunder, in the following manner.
(a)The term “Registrable Securities” shall mean Warrant Shares issuable upon exercise of the Warrants, together with any shares common stock issued or issuable by way of a stock dividend or stock split or in connection with any recapitalization, merger, consolidation or other reorganization; provided that the term “Registrable Securities” shall not include any securities that have been either: (i) publicly resold pursuant to Rule 144 promulgated under theAct (ii) are eligible for sale under Rule 144(k) of the Act.
(b)If at any time hereafter, the Company shall prepare and file one or more registration statements under the Act, with respect to a public offering of Registrable Securities of the Company, other than registration statements on Form S-4 or S-8 (or their successor forms), the Company will include in any such registration statement such information as is required, and such number of Registrable Securities held by the Registered Holder and/or its assigns as it may be request, to permit a public offering of the Registrable Securities so requested; provided, however, that in the case of an underwritten offering, if, in the written opinion of the Company’s managing underwriter for such offering, the inclusion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or any other selling security holder(s), would exceed the maximum amount of the Company’s securities that can be marketed without otherwise materially and adversely affecting the entire offering, then such managing underwriter may exclude from such offering that portion of the Registrable Securities requested to be so registered, provided that a pro-rata portion of each other selling security holder’s securities (other than securities being registered pursuant to demand registration rights) is also excluded, so that the total number of securities to be registered is within the maximum number of shares that, in the opinion of the managing underwriter, may be marketed without otherwise materially and adversely affect the entire offering.
(c)In the event of such a proposed registration, the Company shall furnish the Registered Holder with not less than twenty (20) days’ written notice prior to the proposed date of filing of such registration statement. Such notice shall continue to be given by the Company to the Registered Holder with respect to subsequent registration statements until such time as all of the Registrable Securities have been registered or may be sold without registration under the Act or applicable state securities laws and regulations, and without limitation as to volume pursuant to Rule 144 of the Act. The Registered Holder shall exercise the rights provided for herein by giving written notice to the Company, within ten (10) days of receipt of the Company’s notice of its intention to file a registration statement.
(d)It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Warrant with respect to the Registrable Securities that the Registered Holder furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities.
(e)The Company shall pay all costs, fees and expenses in connection with all post-effective amendments or new registration statements filed pursuant to this Warrant,
including, without limitation, the Company’s legal and accounting fees, printing expenses and blue sky fees and expenses.
(f)In the event of any registration of any of the Registrable Securities under this Agreement, the Company will indemnify and hold harmless Registered Holder against any losses, claims, damages or liabilities, to which the Registered Holder may become subject, insofar as any losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities are registered under the Act, any preliminary prospectus or final prospectus contained in the registration statement, or any amendment or supplement to such registration statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse the Registered Holder for any legal or any other expenses reasonable incurred by the Registered Holder in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such registration statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of Holder specifically for use in the preparation thereof.
14.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
15.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
16.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
17.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
Name: Phil Boggs
Title: Phil Boggs
EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
12
Document
Exhibit 10.12(b)
WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 002 Number of Warrants: 59,565 May 7, 2025
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to Ancora Catalyst, LP (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of Warrants set forth above (the “Warrants” and the certificate evidencing same being referred to herein as “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of $0.01 per share (the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is $0.01 multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”).
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
39650.00001
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1.
(d)Disputes. In the event that there is any dispute as to the computation of the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such
firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on May 7, 2035 (the “Expiration Date”).
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an
Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4.Reservation of Common Stock; Valid Issuance. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws). The Company further covenants that such shares of Common Stock as may be issued pursuant to such exercise will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall
in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at 6060 Parkland Boulevard, Cleveland, OH 44124, or such address of the Registered Holder reflected after the date hereof (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Registration Rights. The Registered Holder will be entitled to “piggy back” registration rights, with respect to the Warrant Shares issuable hereunder, in the following manner.
(a)The term “Registrable Securities” shall mean Warrant Shares issuable upon exercise of the Warrants, together with any shares common stock issued or issuable by way of a stock dividend or stock split or in connection with any recapitalization, merger, consolidation or other reorganization; provided that the term “Registrable Securities” shall not include any securities that have been either: (i) publicly resold pursuant to Rule 144 promulgated under theAct (ii) are eligible for sale under Rule 144(k) of the Act.
(b)If at any time hereafter, the Company shall prepare and file one or more registration statements under the Act, with respect to a public offering of Registrable Securities of the Company, other than registration statements on Form S-4 or S-8 (or their successor forms), the Company will include in any such registration statement such information as is required, and such number of Registrable Securities held by the Registered Holder and/or its assigns as it may be request, to permit a public offering of the Registrable Securities so requested; provided, however, that in the case of an underwritten offering, if, in the written opinion of the Company’s managing underwriter for such offering, the inclusion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or any other selling security holder(s), would exceed the maximum amount of the Company’s securities that can be marketed without otherwise materially and adversely affecting the entire offering, then such managing underwriter may exclude from such offering that portion of the Registrable Securities requested to be so registered, provided that a pro-rata portion of each other selling security holder’s securities (other than securities being registered pursuant to demand registration rights) is also excluded, so that the total number of securities to be registered is within the maximum number of shares that, in the opinion of the managing underwriter, may be marketed without otherwise materially and adversely affect the entire offering.
(c)In the event of such a proposed registration, the Company shall furnish the Registered Holder with not less than twenty (20) days’ written notice prior to the proposed date of filing of such registration statement. Such notice shall continue to be given by the Company to the Registered Holder with respect to subsequent registration statements until such time as all of the Registrable Securities have been registered or may be sold without registration under the Act or applicable state securities laws and regulations, and without limitation as to volume pursuant to Rule 144 of the Act. The Registered Holder shall exercise the rights provided for herein by giving written notice to the Company, within ten (10) days of receipt of the Company’s notice of its intention to file a registration statement.
(d)It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Warrant with respect to the Registrable Securities that the Registered Holder furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities.
(e)The Company shall pay all costs, fees and expenses in connection with all post-effective amendments or new registration statements filed pursuant to this Warrant,
including, without limitation, the Company’s legal and accounting fees, printing expenses and blue sky fees and expenses.
(f)In the event of any registration of any of the Registrable Securities under this Agreement, the Company will indemnify and hold harmless Registered Holder against any losses, claims, damages or liabilities, to which the Registered Holder may become subject, insofar as any losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities are registered under the Act, any preliminary prospectus or final prospectus contained in the registration statement, or any amendment or supplement to such registration statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse the Registered Holder for any legal or any other expenses reasonable incurred by the Registered Holder in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such registration statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of Holder specifically for use in the preparation thereof.
14.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
15.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
16.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
17.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
12
Document
Exhibit 10.12(c)
WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 003 Number of Warrants: 539,572 May 7, 2025
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to Ancora Merlin Institutional, LP (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of Warrants set forth above (the “Warrants” and the certificate evidencing same being referred to herein as “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of $0.01 per share (the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is $0.01 multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”).
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
39650.00001
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1.
(d)Disputes. In the event that there is any dispute as to the computation of the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such
firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on May 7, 2035 (the “Expiration Date”).
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an
Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4.Reservation of Common Stock; Valid Issuance. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws). The Company further covenants that such shares of Common Stock as may be issued pursuant to such exercise will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall
in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at 6060 Parkland Boulevard, Cleveland, OH 44124, or such address of the Registered Holder reflected after the date hereof (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Registration Rights. The Registered Holder will be entitled to “piggy back” registration rights, with respect to the Warrant Shares issuable hereunder, in the following manner.
(a)The term “Registrable Securities” shall mean Warrant Shares issuable upon exercise of the Warrants, together with any shares common stock issued or issuable by way of a stock dividend or stock split or in connection with any recapitalization, merger, consolidation or other reorganization; provided that the term “Registrable Securities” shall not include any securities that have been either: (i) publicly resold pursuant to Rule 144 promulgated under theAct (ii) are eligible for sale under Rule 144(k) of the Act.
(b)If at any time hereafter, the Company shall prepare and file one or more registration statements under the Act, with respect to a public offering of Registrable Securities of the Company, other than registration statements on Form S-4 or S-8 (or their successor forms), the Company will include in any such registration statement such information as is required, and such number of Registrable Securities held by the Registered Holder and/or its assigns as it may be request, to permit a public offering of the Registrable Securities so requested; provided, however, that in the case of an underwritten offering, if, in the written opinion of the Company’s managing underwriter for such offering, the inclusion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or any other selling security holder(s), would exceed the maximum amount of the Company’s securities that can be marketed without otherwise materially and adversely affecting the entire offering, then such managing underwriter may exclude from such offering that portion of the Registrable Securities requested to be so registered, provided that a pro-rata portion of each other selling security holder’s securities (other than securities being registered pursuant to demand registration rights) is also excluded, so that the total number of securities to be registered is within the maximum number of shares that, in the opinion of the managing underwriter, may be marketed without otherwise materially and adversely affect the entire offering.
(c)In the event of such a proposed registration, the Company shall furnish the Registered Holder with not less than twenty (20) days’ written notice prior to the proposed date of filing of such registration statement. Such notice shall continue to be given by the Company to the Registered Holder with respect to subsequent registration statements until such time as all of the Registrable Securities have been registered or may be sold without registration under the Act or applicable state securities laws and regulations, and without limitation as to volume pursuant to Rule 144 of the Act. The Registered Holder shall exercise the rights provided for herein by giving written notice to the Company, within ten (10) days of receipt of the Company’s notice of its intention to file a registration statement.
(d)It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Warrant with respect to the Registrable Securities that the Registered Holder furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities.
(e)The Company shall pay all costs, fees and expenses in connection with all post-effective amendments or new registration statements filed pursuant to this Warrant,
including, without limitation, the Company’s legal and accounting fees, printing expenses and blue sky fees and expenses.
(f)In the event of any registration of any of the Registrable Securities under this Agreement, the Company will indemnify and hold harmless Registered Holder against any losses, claims, damages or liabilities, to which the Registered Holder may become subject, insofar as any losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities are registered under the Act, any preliminary prospectus or final prospectus contained in the registration statement, or any amendment or supplement to such registration statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse the Registered Holder for any legal or any other expenses reasonable incurred by the Registered Holder in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such registration statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of Holder specifically for use in the preparation thereof.
14.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
15.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
16.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
17.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
12
Document
Exhibit 10.12(d)
WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 004 Number of Warrants: 30,937 May 7, 2025
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to Ancora Merlin, LP (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of Warrants set forth above (the “Warrants” and the certificate evidencing same being referred to herein as “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of $0.01 per share (the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is $0.01 multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”).
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
39650.00001
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1.
(d)Disputes. In the event that there is any dispute as to the computation of the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such
firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on May 7, 2035 (the “Expiration Date”).
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an
Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4.Reservation of Common Stock; Valid Issuance. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws). The Company further covenants that such shares of Common Stock as may be issued pursuant to such exercise will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall
in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at 6060 Parkland Boulevard, Cleveland, OH 44124, or such address of the Registered Holder reflected after the date hereof (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Registration Rights. The Registered Holder will be entitled to “piggy back” registration rights, with respect to the Warrant Shares issuable hereunder, in the following manner.
(a)The term “Registrable Securities” shall mean Warrant Shares issuable upon exercise of the Warrants, together with any shares common stock issued or issuable by way of a stock dividend or stock split or in connection with any recapitalization, merger, consolidation or other reorganization; provided that the term “Registrable Securities” shall not include any securities that have been either: (i) publicly resold pursuant to Rule 144 promulgated under theAct (ii) are eligible for sale under Rule 144(k) of the Act.
(b)If at any time hereafter, the Company shall prepare and file one or more registration statements under the Act, with respect to a public offering of Registrable Securities of the Company, other than registration statements on Form S-4 or S-8 (or their successor forms), the Company will include in any such registration statement such information as is required, and such number of Registrable Securities held by the Registered Holder and/or its assigns as it may be request, to permit a public offering of the Registrable Securities so requested; provided, however, that in the case of an underwritten offering, if, in the written opinion of the Company’s managing underwriter for such offering, the inclusion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or any other selling security holder(s), would exceed the maximum amount of the Company’s securities that can be marketed without otherwise materially and adversely affecting the entire offering, then such managing underwriter may exclude from such offering that portion of the Registrable Securities requested to be so registered, provided that a pro-rata portion of each other selling security holder’s securities (other than securities being registered pursuant to demand registration rights) is also excluded, so that the total number of securities to be registered is within the maximum number of shares that, in the opinion of the managing underwriter, may be marketed without otherwise materially and adversely affect the entire offering.
(c)In the event of such a proposed registration, the Company shall furnish the Registered Holder with not less than twenty (20) days’ written notice prior to the proposed date of filing of such registration statement. Such notice shall continue to be given by the Company to the Registered Holder with respect to subsequent registration statements until such time as all of the Registrable Securities have been registered or may be sold without registration under the Act or applicable state securities laws and regulations, and without limitation as to volume pursuant to Rule 144 of the Act. The Registered Holder shall exercise the rights provided for herein by giving written notice to the Company, within ten (10) days of receipt of the Company’s notice of its intention to file a registration statement.
(d)It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Warrant with respect to the Registrable Securities that the Registered Holder furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities.
(e)The Company shall pay all costs, fees and expenses in connection with all post-effective amendments or new registration statements filed pursuant to this Warrant,
including, without limitation, the Company’s legal and accounting fees, printing expenses and blue sky fees and expenses.
(f)In the event of any registration of any of the Registrable Securities under this Agreement, the Company will indemnify and hold harmless Registered Holder against any losses, claims, damages or liabilities, to which the Registered Holder may become subject, insofar as any losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities are registered under the Act, any preliminary prospectus or final prospectus contained in the registration statement, or any amendment or supplement to such registration statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse the Registered Holder for any legal or any other expenses reasonable incurred by the Registered Holder in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such registration statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of Holder specifically for use in the preparation thereof.
14.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
15.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
16.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
17.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
12
Document
Exhibit 10.12(e)
WARRANT AGREEMENT TO PURCHASE
COMMON STOCK OF GREEN PLAINS INC.
NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. AS A RESULT, NEITHER THIS WARRANT NOR THE SHARES ISSUABLE HEREUNDER MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL THIS WARRANT OR SUCH SHARES ARE REGISTERED UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY IS OBTAINED TO THE EFFECT THAT SUCH REGISTRATION IS NOT REQUIRED.
Warrant No. 005 Number of Warrants: 341,601 May 7, 2025
For value received, Green Plains Inc., an Iowa corporation (the “Company”), hereby grants to Ancora Bellator Fund, LP (together with its successors and assigns as set forth on the books of the Company, each a “Registered Holder”) the number of Warrants set forth above (the “Warrants” and the certificate evidencing same being referred to herein as “this Warrant”), each of the Warrants entitling the Registered Holder to purchase from the Company, until the Expiration Date (as defined in Section 2.01), upon the terms of this Warrant, one fully paid and non-assessable share (as same may be adjusted pursuant to Section 1, each a “Warrant Share” and together the “Warrant Shares”) of the Company’s common stock, $.001 par value (the “Common Stock”) for a price of $0.01 per share (the “Per Share Exercise Price”), subject to all adjustments set forth herein. The total price to be paid by the Registered Holder upon purchase of all of the Warrant Shares is $0.01 multiplied by the number of Warrants evidenced by this certificate (“Total Exercise Price”).
1.Adjustments
1.01Adjustments for Certain Events.
(a)Stock Dividends, Subdivisions and Combinations. If at any time, or from time-to-time, after the date hereof, the Company (i) declares a dividend on the Common Stock that is payable with shares of Common Stock, (ii) subdivides the outstanding shares of Common Stock into a greater number of shares of Common Stock by a stock split, reclassification or other method, or (iii) combines or consolidates the outstanding shares of Common Stock into a lesser number of shares of Common Stock by a reverse stock split, reclassification or other method, then the number of Warrant Shares issuable upon exercise of this Warrant shall be decreased or increased, as appropriate, by multiplying the number of Warrant Shares issuable upon exercise of this Warrant immediately before such event by a fraction, the numerator of which is the number of issued and outstanding shares of Common Stock immediately after such event and the denominator of which is the number of issued and outstanding shares of Common Stock immediately before such event. The events set forth above are deemed to occur on the date the Company’s Board of Directors (the “Board”) declares the dividend or authorizes the subdivision or combination of shares of Common Stock unless, for any reason, the dividend is not subsequently paid or the subdivision or combination is not subsequently completed. After any adjustment to the number of Warrant Shares under this Section 1.01(a) the Per Share Exercise Price shall be adjusted to that number determined by dividing the Total Exercise Price by the number of Warrant Shares issuable upon exercise of this Warrant after such adjustments.
39650.00001
(b)Reclassification, Etc. In case of any reclassification (other than a reclassification governed by Section 1.01(a)) or change of the outstanding securities of the Company or of any reorganization, sale or conveyance to another entity of the property of the Company as an entirety or substantially as an entirety, or in the case of any statutory exchange of securities with another entity or merger of the Company (or any other corporation the stock or securities of which are at the time receivable upon the exercise of this Warrant) on or after the date hereof, then and in each such case the Registered Holder upon the exercise hereof at any time after the consummation of such reclassification, change, reorganization, sale or conveyance, exchange of securities or merger shall be entitled to receive, in lieu of the stock or other securities and property receivable upon the exercise hereof prior to such consummation, only the stock or other securities or cash or property to which such Registered Holder would have been entitled upon such consummation if such Registered Holder had exercised this Warrant immediately prior thereto. Any such change in the the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable shall be effective as of the closing of the transaction that precipitated such adjustment.
1.02General Adjustment Provisions
(a)Notice of Adjustments. Upon each event that causes an adjustment of the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, the Company, at its expense, shall promptly compute such adjustments in accordance with the terms hereof, reflect such adjustment on its books and prepare and furnish the Registered Holder a certificate setting forth such adjustment and showing in detail the facts upon which such adjustment is based. The Company’s Chief Financial Officer shall attest to the accuracy of the certificate. Upon the Registered Holder’s written request at any time, but no more often than quarterly, the Company shall furnish to the Registered Holder a certificate setting forth (i) all prior adjustments to the number of Warrant Shares or the kind and amount of stock or other securities or property into which this Warrant shall be exercisable, (ii) the Per Share Exercise Price currently in effect and (iii) the number of Warrant Shares and the amount, if any, of other property, that the Registered Holder would receive upon exercise of this Warrant.
(b)Miscellaneous. Unless specifically provided herein to the contrary, all of the adjustments set forth in this Section 1 are cumulative. No adjustment of the number of Warrant Shares shall be made hereunder with respect to any shares of Common Stock that have been issued to the Registered Holder upon exercise of this Warrant.
(c)No Increase Per Share Exercise Price. In no event shall any such adjustment have the effect of increasing the Per Share Exercise Price as otherwise determined pursuant to this Section 1.
(d)Disputes. In the event that there is any dispute as to the computation of the number of Warrant Shares required to be issued upon exercise of this Warrant, the Registered Holders and the Company will retain a mutually acceptable independent and nationally recognized accounting firm to re-compute the number of Warrant Shares required to be issued upon exercise of this Warrant pursuant to the terms hereof, which firm may review the financial statements or other information upon which such computations were based. The determination of such firm shall, in the absence of manifest error, be binding upon the Registered Holders of this Warrant and the Company. If there shall be a dispute as to the selection of such nationally recognized accounting firm, such firm shall be appointed by the American Institute of Certified Public Accountants if willing, otherwise by the American Arbitration Association in New York City, upon application by the Company and Registered Holders of at least 25 percent of the then outstanding Warrants, with notice to the other Registered Holders. The cost for the retention of such
firm shall be borne by the Company if the Company’s original computation was incorrect, and otherwise by the Registered Holders.
2.Exercise.
2.01Exercise Period. The Registered Holder may exercise this Warrant for all or less than all of the Warrant Shares at any time and from time to time before 5:00 P.M. local time in Omaha, Nebraska on May 7, 2035 (the “Expiration Date”).
2.02Manner. The Registered Holder shall exercise this Warrant by delivering to the Secretary of the Company at its principal office (a) this original Warrant, (b) a notice of exercise in the form attached hereto as Exhibit A (“Exercise Notice”) and (c) (x) full payment in the amount of the Per Share Exercise Price multiplied by the number of Warrant Shares that Registered Holder is purchasing hereunder (the “Purchase Price”) or (y) notice of a Cashless Exercise.
2.03Form of Payment. Registered Holder shall pay the Purchase Price (a) in cash, (b) by bank cashier’s check, (c) by Federal Reserve System wire transfer of immediately available funds, or (d) by any combination of the foregoing.
2.04Cashless Exercise. The Registered Holder may, in its sole discretion, exercise this Warrant in whole or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise in payment of the Per Share Exercise Price, elect instead to receive upon such exercise the “Net Number” of Warrant Shares determined according to the following formula (a “Cashless Exercise”):
Net Number = (A x B) – (A x C)
D
For purposes of the foregoing formula:
A = the total number of shares with respect to which this Warrant is then being exercised.
B = the quotient of (x) the sum of the VWAP of the Common Stock of each of the five (5) Trading Days ending at the close of business on the Principal Market immediately prior to the time of exercise as set forth in the applicable Exercise Notice, divided by (y) five (5) (the “Cashless Measuring Period”).
C = the Exercise Price then in effect for the applicable Warrant Shares at the time of such exercise.
D = as applicable: (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the date of the applicable Exercise Notice if such Exercise Notice is (1) both executed and delivered pursuant to Section 1(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 1(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b)(64) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the bid price of the Common Stock as of the time of the Registered Holder’s execution of the applicable Exercise Notice if such Exercise Notice is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours
thereafter pursuant to Section 1(a) hereof, or (iii) the Closing Sale Price of the Common Stock on the date of the applicable Exercise Notice if the date of such Exercise Notice is a Trading Day and such Exercise Notice is both executed and delivered pursuant to Section 2.02 hereof after the close of “regular trading hours” on such Trading Day.
For purposes of Rule 144(d), it is intended that the Warrant Shares issued in a Cashless Exercise shall be deemed to have been acquired by the Registered Holder, and the holding period for the Warrant Shares shall be deemed to have commenced, on the date this Warrant was originally issued.
2.05 Delivery to Registered Holder. As soon as practicable after the exercise of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to, the Registered Holder, or as such Registered Holder (upon payment by such Registered Holder of any applicable transfer taxes) may direct:
(i) a certificate or certificates for the number of Warrant Shares to which such Registered Holder shall be entitled; and
(ii) in case such exercise is in part only, a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants exercised.
2.06Holder’s Exercise Limitations.
(a)Limitation on Exercise. No Registered Holder shall have the right to exercise any portion of this Warrant, pursuant to this Section 2 or otherwise, and no such exercise shall be effective, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Exercise Notice, the Registered Holder (together with the Registered Holder’s affiliates, any other Person who would be a “beneficial owner” (within the meaning of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of shares included in such issuance, and any other Person whose beneficial ownership of shares of Common Stock would be aggregated with the Registered Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and regulations of the Securities and Exchange Commission, including any “group” (within the meaning of the Exchange Act) of which the Registered Holder or any such other Person is a member (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below), provided that a Registered Holder may waive the application of the limitations in this Section 2.06(a) to such Registered Holder upon sixty-five (65) calendar days prior written notice to the Company by such Registered Holder.
For the avoidance of doubt, the Registered Holder shall be permitted to exercise this Warrant, at any time, in part or in whole (but not as to fractional shares), in amounts sufficient for the Registered Holder and Attribution Parties to maintain in the aggregate beneficial ownership of shares of Common Stock in an amount equal to or less than the then-applicable Beneficial Ownership Limitation, including if and to the extent that (A) any other warrants by the Company are exercised, transferred, exchanged, redeemed or otherwise cease to be in the ownership or control of the parties that received such warrants subsequent to the date hereof or (B) the Company issues additional shares of Common Stock for any reason (including, for the avoidance of doubt, any exercise, exchange or conversion of warrants, options or convertible securities or other securities into shares of Common Stock).
(b)Calculation of Limitation. Except where the Registered Holder has waived the application of the limitations in this Section 2.06 pursuant to Section 2.06(a), the submission of an
Exercise Notice shall be deemed to be the Registered Holder’s representation that such proposed exercise of this Warrant is not in excess of the limitation contained in this Section 2.06, and the Company shall have no liability for any non-compliance by the Registered Holder with the limitation set forth herein. For purposes of this Section 2.06, in determining the number of outstanding shares of Common Stock, a Registered Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Securities and Exchange Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company setting forth the number of shares of Common Stock outstanding; provided, that¸ in the case of clause (B) and (C), the Registered Holder may rely only on the most recent such announcement or notice. In each case, the number of outstanding shares of Common Stock shall be determined by the Registered Holder after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Registered Holder or otherwise included in the Registered Holder’s beneficial ownership since the date as of which such number of outstanding shares of Common Stock was reported.
(c)Beneficial Ownership Limitation Percentage. The “Beneficial Ownership Limitation” shall be 19.8% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant and in respect of which an Exercise Notice has been issued.
3.Notice of Certain Events. If the Company proposes at any time (a) to declare any dividend or distribution upon its Common Stock, or (b) to offer to the holders of any class or series of its capital stock any additional shares of stock of any class or series or other rights, the Company shall deliver written notice thereof to Registered Holder. Such notice shall be given at least twenty (20) calendar days before (i) the record date for such dividend, distribution or offering and (ii) the earlier of any vote to approve or the closing of such transaction. The notice shall generally describe the event expected to occur, the anticipated date thereof and the name and telephone number of the Company’s representative whom the Registered Holder may contact to obtain additional information concerning the anticipated event.
4.Reservation of Common Stock; Valid Issuance. During the period in which this Warrant may be exercised, the Company will at all times have authorized, and in reserve, shares of Common Stock equal to the maximum amount of the shares of Common Stock that can be issued upon exercise of all of this Warrant and such other securities and properties as from time to time shall be deliverable to the Registered Holder upon the exercise of this Warrant, free and clear of all restrictions on sale or transfer (except such as may be imposed under applicable federal and state securities laws). The Company further covenants that such shares of Common Stock as may be issued pursuant to such exercise will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges with respect to the issuance thereof.
5.Issue or Transfer Taxes. The Company shall pay all issue and other non-income based taxes that may be payable in respect of the issuance or delivery of the Warrant Shares on exercise of the Warrant. The Registered Holder shall pay all transfer taxes due upon any transfer requested by Registered Holder in connection with any such exercise.
6.Transfers.
(a) Unregistered Security. Each holder of this Warrant acknowledges that this Warrant and the Warrant Shares have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and agrees not to sell, pledge, distribute, offer for sale, transfer or
otherwise dispose of this Warrant or any Warrant Shares issued upon its exercise in the absence of (i) an effective registration statement under the Securities Act as to this Warrant or such Warrant Shares and registration or qualification of this Warrant or such Warrant Shares under any applicable federal or state securities law then in effect or (ii) an opinion of counsel, satisfactory to the Company, that such registration and qualification are not required. Each certificate or other instrument for Warrant Shares issued upon the exercise of this Warrant shall bear a legend substantially to the foregoing effect.
(b) Transferability. Subject to the provisions of Section 6(a) hereof, this Warrant and all rights hereunder are transferable, in whole or in part, by the Registered Holder without charge to the Registered Holder, upon surrender of this Warrant to the Company at its then principal executive offices with a properly completed and duly executed assignment in the form attached hereto as Exhibit B. Upon such compliance, surrender and delivery, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant, if any, not so assigned and this Warrant shall promptly be cancelled.
(c) Warrant Register. The Company will maintain a register containing the names and addresses of the Registered Holders of this Warrant. Until any transfer of this Warrant is made in the warrant register (which the Company shall effect promptly following submission of this Warrant to it) the Company may treat the Registered Holder of this Warrant as the absolute owner hereof for all purposes; provided, however, that if this Warrant is properly assigned in blank, the Company may (but shall not be required to) treat the bearer hereof as the absolute owner hereof for all purposes, notwithstanding any notice to the contrary. Any Registered Holder may change such Registered Holder’s address as shown on the warrant register by written notice to the Company requesting such change.
(d) Deliveries Upon Transfer. As soon as practicable after a transfer of this Warrant in whole or in part, and in any event within ten (10) business days thereafter, the Company at its expense will cause to be issued in the name of, and delivered to:
(i) to the transferee a certificate or certificates registered in the name of the transferee for the number of Warrants transferred to such transferee; and
(ii) in case such transfer is in part only, to the Registered Holder a new Warrant of like tenor for the number of Warrants (without giving effect to any adjustment therein) called for on the face of this Warrant minus the number of Warrants transferred.
(e) Loss, Etc. of Warrant. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Warrant, and of indemnity reasonably satisfactory to the Company, if lost, stolen or destroyed, and upon surrender and cancellation of this Warrant, if mutilated, and upon reimbursement of the Company’s reasonable incidental expenses, the Company shall execute and deliver to the Registered Holder a new Warrant of like date, tenor and denomination.
7.Fractional Shares. No fractional share of Common Stock shall be issued upon the exercise of this Warrant. All of the Warrant Shares issuable upon any exercise of this Warrant shall be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after such aggregation, the exercise would result in the issuance of a fractional share, the Company shall
in lieu thereof pay the Registered Holder a cash amount equal to the fair market value of such fractional share on the date of exercise. The Board, acting in good faith, shall determine the fair market value of the fractional share.
8.Closing of Transfer Books. The right to exercise this Warrant shall not be suspended during any period while the stock transfer book of the Company for its Common Stock is closed. Notwithstanding the foregoing, the Company shall not be required to deliver certificates of its Common Stock upon exercise of this Warrant while its stock transfer book is duly closed and may postpone the delivery of the certificates for its Common Stock until the opening of such books.
9.Certain Definitions. For purposes of this Warrant, the following terms shall have the following meanings:
(a)“Closing Sale Price” means, for any security as of any date, the last closing trade price for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last trade price of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing does not apply, the last trade price of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no last trade price is reported for such security by Bloomberg, the average of the ask prices of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.
(b)“Principal Market” means the Nasdaq Capital Market.
(c)“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Registered Holder or (y) with respect to all determinations other than price or trading volume determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.
(d)“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded) during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Registered Holder. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
10.Notices. Any notice given hereunder shall be deemed given (a) when delivery is tendered if personally delivered, (b) three (3) days after the postmark if mailed certified mail, return receipt requested, (c) on the first business day after delivery to a nationally recognized company regularly providing overnight delivery services if sent by next business day service and (d) on the day receipt is confirmed, either by the recipient or electronically, if sent by telecopy. If a party sends a notice by any other method, it shall be deemed given when the addressee or addressee’s authorized agent actually receives the notice. In each case, notices shall be addressed to the Company at 1811 Aksarben Drive, Omaha NE 68106, and to the Registered Holder at 6060 Parkland Boulevard, Cleveland, OH 44124, or such address of the Registered Holder reflected after the date hereof (including as to any transfers as reflected on an Assignment Form) in the warrant register maintained pursuant to Section 6(c), or such other address as such party may indicate by a notice to the other party.
11.Registered Holder Not Stockholder. This Warrant does not confer upon Registered Holder any rights or liabilities as a stockholder of the Company, including, but not limited to, any right to vote or to consent or to receive notice as a stockholder of the Company until the first business day following the Registered Holder’s exercise of this Warrant and the Company’s receipt of the documentation required to be delivered to it by the Registered Holder pursuant to Section 2.02, 2.03 and/or 2.04.
12.No Impairment. The Company shall not, by amendment of its certificate of incorporation, bylaws or other governing documents, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed by it hereunder, but shall at all times in good faith assist in the carrying out of all the provisions of this Warrant and in the taking of all such action as may reasonably be requested by the Registered Holder in order to protect the exercise rights of the Registered Holder against dilution or other impairment, consistent with the tenor and purpose of this Warrant.
13.Registration Rights. The Registered Holder will be entitled to “piggy back” registration rights, with respect to the Warrant Shares issuable hereunder, in the following manner.
(a)The term “Registrable Securities” shall mean Warrant Shares issuable upon exercise of the Warrants, together with any shares common stock issued or issuable by way of a stock dividend or stock split or in connection with any recapitalization, merger, consolidation or other reorganization; provided that the term “Registrable Securities” shall not include any securities that have been either: (i) publicly resold pursuant to Rule 144 promulgated under theAct (ii) are eligible for sale under Rule 144(k) of the Act.
(b)If at any time hereafter, the Company shall prepare and file one or more registration statements under the Act, with respect to a public offering of Registrable Securities of the Company, other than registration statements on Form S-4 or S-8 (or their successor forms), the Company will include in any such registration statement such information as is required, and such number of Registrable Securities held by the Registered Holder and/or its assigns as it may be request, to permit a public offering of the Registrable Securities so requested; provided, however, that in the case of an underwritten offering, if, in the written opinion of the Company’s managing underwriter for such offering, the inclusion of the Registrable Securities requested to be registered, when added to the securities being registered by the Company or any other selling security holder(s), would exceed the maximum amount of the Company’s securities that can be marketed without otherwise materially and adversely affecting the entire offering, then such managing underwriter may exclude from such offering that portion of the Registrable Securities requested to be so registered, provided that a pro-rata portion of each other selling security holder’s securities (other than securities being registered pursuant to demand registration rights) is also excluded, so that the total number of securities to be registered is within the maximum number of shares that, in the opinion of the managing underwriter, may be marketed without otherwise materially and adversely affect the entire offering.
(c)In the event of such a proposed registration, the Company shall furnish the Registered Holder with not less than twenty (20) days’ written notice prior to the proposed date of filing of such registration statement. Such notice shall continue to be given by the Company to the Registered Holder with respect to subsequent registration statements until such time as all of the Registrable Securities have been registered or may be sold without registration under the Act or applicable state securities laws and regulations, and without limitation as to volume pursuant to Rule 144 of the Act. The Registered Holder shall exercise the rights provided for herein by giving written notice to the Company, within ten (10) days of receipt of the Company’s notice of its intention to file a registration statement.
(d)It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Warrant with respect to the Registrable Securities that the Registered Holder furnish to the Company such information regarding itself, the Registrable Securities held by it, and the intended method of disposition of such securities as shall be required to effect the registration of the Registrable Securities.
(e)The Company shall pay all costs, fees and expenses in connection with all post-effective amendments or new registration statements filed pursuant to this Warrant,
including, without limitation, the Company’s legal and accounting fees, printing expenses and blue sky fees and expenses.
(f)In the event of any registration of any of the Registrable Securities under this Agreement, the Company will indemnify and hold harmless Registered Holder against any losses, claims, damages or liabilities, to which the Registered Holder may become subject, insofar as any losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities are registered under the Act, any preliminary prospectus or final prospectus contained in the registration statement, or any amendment or supplement to such registration statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse the Registered Holder for any legal or any other expenses reasonable incurred by the Registered Holder in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such registration statement, preliminary prospectus or prospectus, or any such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of Holder specifically for use in the preparation thereof.
14.Amendment. The provisions of this Warrant may only be amended or modified in writing by the Company and the Registered Holder.
15.Governing Law. This Warrant shall be governed by the laws of the State of New York without regard to the choice of law provisions thereof that would defer to the substantive laws of another jurisdiction.
16.Headings. The headings of this Warrant have been inserted as a matter of convenience and shall not affect the construction thereof.
17.Severability. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability without invalidating the remainder of such provision or provisions or any other provisions hereof.
IN WITNESS WHEREOF, the Company has executed this Warrant as of the date first above written.
GREEN PLAINS INC.
By: /s/ Phil Boggs
Name: Phil Boggs
Title: CFO
EXHIBIT A
FORM NOTICE OF EXERCISE
TO: Green Plains Inc.
(1)The undersigned hereby elects to exercise _______ Warrants to purchase shares of the common stock, par value $.001 per share (the “Common Stock”) of Green Plains Inc., an Iowa corporation (the “Company”), pursuant to the terms of the attached Warrant, and:
□ Tenders herewith payment of $___________ of the Total Exercise Price which is applicable to the portion of this Warrant being exercised pursuant to Section 2.02 of this Warrant.
□ Elects to exercise pursuant to a Cashless Exercise in accordance with Section 2.04 of the Warrant.
(2)Please issue a certificate or certificates representing said shares of the Common Stock of the Company or other securities or property deliverable upon exercise of this Warrant in the name of the undersigned or in such other name and address as is specified below:
___________________________
(Name)
___________________________
___________________________
(Address)
(3)The undersigned represents that (i) the aforesaid shares of Common Stock are being acquired for the account of the undersigned, not as a nominee for any other party, and for investment, by reason of a specific exemption from the registration provisions of the Securities Act of 1933, as amended (the “Securities Act”), which exemption depends upon, among other things, the bona fide nature of the investment intent herein, (ii) the undersigned is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision regarding its investment in the Company; (iii) the undersigned has such knowledge and experience in financial and business matters that the undersigned is capable of evaluating the merits and risks of this investment; (iv) the undersigned understands that the shares of Common Stock issuable upon exercise of this Warrant have not been registered under the Securities Act, and they must be held unless subsequently registered under the Securities Act or an exemption from such registration is available; (v) the undersigned is aware that the aforesaid shares of Common Stock, may not be sold pursuant to Rule 144 adopted under the Securities Act unless certain conditions are met and until the undersigned has held the shares for the time period prescribed by Rule 144, and that among the conditions for use of the Rule is the availability of current information to the public about the Company and (vi) the undersigned agrees not to make any disposition of all or any part of the aforesaid shares of Common Stock, unless and until there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with said registration statement, or the undersigned has provided the Company with an opinion of counsel satisfactory to the Company, stating that such registration is not required.
_______________________ ___________________________________
Date (Signature)
___________________________________
(Print Name)
EXHIBIT B
ASSIGNMENT FORM
FOR VALUED RECEIVED, ___________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant with respect to _______ Warrants, to:
| Name of Assignee | Address | No. of Warrants |
|---|
Dated:__________________ Signature:__________________________
__________________________
Witness:____________________________
12
Document
Exhibit 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
PURSUANT TO RULE 13a-14(a) AND SECTION 302 OF THE SARBANES OXLEY ACT OF 2002
I, Michelle S. Mapes, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q of Green Plains Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a‑15(e) and 15d‑15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: May 8, 2025 | /s/ Michelle S. Mapes |
|---|---|
| Michelle S. Mapes | |
| Interim Principal Executive Officer, Chief Legal and Administration Officer and Corporate Secretary (Principal Executive Officer) |
Document
Exhibit 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
PURSUANT TO RULE 13a-14(a) AND SECTION 302 OF THE SARBANES OXLEY ACT OF 2002
I, Philip B. Boggs, certify that:
1.I have reviewed this Quarterly Report on Form 10-Q of Green Plains Inc.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4.The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a‑15(e) and 15d‑15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:
a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c)Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d)Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5.The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
| Date: May 8, 2025 | /s/ Philip B. Boggs |
|---|---|
| Philip B. Boggs | |
| Chief Financial Officer<br>(Principal Financial Officer) |
Document
Exhibit 32.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES‑OXLEY ACT OF 2002
In connection with the Quarterly Report of Green Plains Inc. (the “company”) on Form 10-Q for the fiscal quarter ended March 31, 2025, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Michelle S. Mapes, Chief Legal and Administration Officer, Corporate Secretary and Interim Principal Executive Officer of the company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1)The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the company.
| Date: May 8, 2025 | /s/ Michelle S. Mapes |
|---|---|
| Michelle S. Mapes | |
| Interim Principal Executive Officer, Chief Legal and Administration Officer and Corporate Secretary (Principal Executive Officer) |
Document
Exhibit 32.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES‑OXLEY ACT OF 2002
In connection with the Quarterly Report of Green Plains Inc. (the “company”) on Form 10-Q for the fiscal quarter ended March 31, 2025, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Philip B. Boggs, Chief Financial Officer of the company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that to my knowledge:
1)The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934; and
2)The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the company.
| Date: May 8, 2025 | /s/ Philip B. Boggs |
|---|---|
| Philip B. Boggs | |
| Chief Financial Officer |