SIOUXLAND ETHANOL, LLC TO COMMUNITY REDEVELOPMENT AUTHORITY VILLAGE OF JACKSON, NEBRASKA TAX INCREMENT REVENUE BONDS (SIOUXLAND ETHANOL, LLC PROJECT) GUARANTY AGREEMENT Dated September 28, 2006
Exhibit 10.23
TO
COMMUNITY REDEVELOPMENT AUTHORITY
VILLAGE OF XXXXXXX, NEBRASKA
VILLAGE OF XXXXXXX, NEBRASKA
TAX INCREMENT REVENUE BONDS
(SIOUXLAND ETHANOL, LLC PROJECT)
Dated September 28, 2006
This Guaranty Agreement is dated September 28, 2006 (the “Guaranty”), from Siouxland Ethanol,
LLC (“Guarantor”), to Xxxxx Fargo Bank, National Association, as trustee (“Trustee”) for holders
(“Holders”) of Community Redevelopment Authority of the Village of Xxxxxxx, Nebraska’s
(“Authority”) Tax Increment Revenue Bonds, Taxable Series 2006A (Siouxland Ethanol, LLC Project)
(the “Bonds”).
W I T N E S S E T H
WHEREAS, prior to, or contemporaneously with, the execution and delivery of this Guaranty,
the Authority has entered into a Redevelopment Contract, dated July 20, 2006 (the “Agreement”)
with Guarantor under which Authority issued the Bonds and has granted funds to Guarantor to
construct a project located in Jackson, Nebraska (“the Project”); and
WHEREAS, for the purpose of providing security for the payment of the Bonds and certain
obligations created pursuant to the Agreement, Guarantor hereby agrees to guarantee the prompt and
punctual payment of the Bonds and other sums, as more fully set forth herein; and
NOW, THEREFORE, in consideration of the foregoing, the Guarantor hereby covenants and agrees
as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants as follows:
(a) Guarantor is duly organized, validly existing and in good standing under the laws
of the State of Nebraska, is authorized to do business in the State of Nebraska, has the
powers and legal authority to own the property and assets, to carry on its business as now
being conducted by it and to execute, deliver and perform this Guaranty.
(b) Any officers or other persons or agents Guarantor executing this Guaranty have
been duly authorized to execute and deliver this Guaranty and the execution, delivery and
performance of this Guaranty and the consummation of the transactions herein contemplated
have been duly authorized by all requisite action on the part of the Guarantor and will not
violate any provision of law, any order of any court or other agency of government or the
documents governing the Guarantor, or any indenture, agreement or other instrument to which
the Guarantor is a party or by which it or any of its property is bound, or be in conflict
with or result in a breach of or constitute (with due notice and/or lapse of time) a default
under any such indenture, agreement or other instrument.
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(c) All necessary authorizations, approvals, consents and other orders of any governmental
authority or agency for the execution and delivery by Guarantor of this Guaranty have been
obtained and are in full force and effect and all such authorizations, approvals, consents,
permits and licenses required as of the date hereof for the performance by Guarantor of their
obligations hereunder have been obtained and are in full force and effect.
ARTICLE II
COVENANTS AND AGREEMENTS
Section 2.1. The Guaranty.
(a) Guarantor hereby guarantees to the Holders full and prompt payment of
principal, premium, if any and interest, if any, on the Bonds when due, whether at maturity,
upon acceleration, or otherwise.
(b) Guarantor further agrees that its undertakings in subsection (a) of this Article of
this Guaranty constitute an absolute, unconditional, present and continuing guaranty of
payment and not of collection, and waives any right to require that any resort be had by the
Holder against the Authority or to any security held by the Authority.
(c) If default shall be made in payment of principal, premium, if any, or interest, if
any, on any Bond when and as the same shall become due, whether at the stated maturity
thereof, by acceleration or otherwise, Guarantor, upon demand by the Holder, without notice
other than such demand and without the necessity of further action, as the case may be, will
promptly and fully make such payments no later than 12 noon central time on the third
Business Day next following the date such demand is given. Such payment shall be made to
the Trustee as trustee for the Holders. Guarantor will pay all reasonable costs and expenses,
including attorneys’ fees, paid or incurred by Holder in connection with the enforcement of
the obligations of Guarantor under this Guaranty. All payments by Guarantor shall be made in
any coin or currency of the United States of America which on the respective dates of payment
thereof is legal tender for the payment of public and private debts. Each default in payment
shall give rise to a separate cause of action hereunder, and separate demands and suits may
be brought hereunder as each cause of action arises.
Section 2.2. Absolute and Unconditional Guaranty.
The obligations of Guarantor under this Guaranty shall be absolute and unconditional and shall
remain in full force and effect until the entire amount payable on the Bonds shall have been paid
in full or provided for, and to the extent permitted by law, such obligations shall not be
affected, modified, released, or impaired by any state of facts or the happening from time to time
of any event including, without limitation, any of the following, whether or not with notice to, or
the consent of Guarantor:
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(a) any present or future law or order of any government (de jure or de facto)
or of any agency thereof purporting to reduce, amend or otherwise affect the foregoing or any
other obligation of Guarantor or to vary any terms of payment;
(b) the failure to give notice to Guarantor of the occurrence of any Event of Default
under the terms and provisions of this Guaranty or the Bonds as set forth therein;
(c) the waiver of the payment, performance or observance by the Guarantor of any of
the obligations, conditions, covenants or agreements of any or all of them contained in this
Guaranty or in the Bonds;
(d) the receipt and acceptance of notes, checks or other instruments for the payment
of money made by Guarantor which notes, checks or other instruments have been dishonored, and
any extensions and renewals thereof;
(e) the extension of the time for payment of principal or interest or any other
amounts that are due or may become due under the Bonds, or this Guaranty or of the time for
performance of any other obligations, covenants or agreements under or arising out of the
Bonds or this Guaranty;
(f) the modification or amendment (whether material or otherwise) of any
duty, obligation, covenant or agreement set forth in the Resolution, the Bonds or this
Guaranty;
(g) any failure, omission, delay or lack thereof on the part of the Authority to assert
or exercise any right, power or remedy conferred on the Authority in the Bonds or this
Guaranty;
(h) the voluntary liquidation, dissolution, merger, consolidation, sale or other disposition
of all or substantially all the assets, marshaling of assets and liabilities, receivership,
insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement,
composition with creditors or readjustment of, or other similar proceedings affecting Guarantor,
or any or all of the assets of Guarantor, or any allegation or contest of the validity of the
Bonds or this Guaranty in any such proceeding; it is specifically understood, consented and agreed
to that this Guaranty shall remain and continue in full force and effect and shall be enforceable
against Guarantor to the same extent and with the same force and effect as if such proceedings had
not been instituted;
(i) to the extent permitted by law, the release or discharge of Guarantor from the
performance or observance of any obligation, covenant or agreement contained in this Guaranty by
operation of law;
(j) the default or failure of Guarantor fully to perform any of its obligations set forth in
this Guaranty;
(k) any release or impairment of the security pledged to the Authority as security;
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(l) the release, substitution or replacement in accordance with the terms of the Bonds of any
property subject thereto or any redelivery, repossession, surrender or destruction of any such
property, in whole or in part;
(m) any termination of the Bonds or the Agreement by reason of breach or default of Guarantor
or the invalidity or unenforceability of the Bonds or the Agreement by reason of any facts
pertaining to Guarantor;
(n) any failure of the Guarantor to mitigate damages resulting from any default by Guarantor
under the Bonds or the Agreement;
(o) any other circumstances that might otherwise constitute a legal or equitable discharge or
defense of a surety or a guarantor other than Guarantor’s failure to perform its obligations; or
(p) any other occurrence whatsoever, whether similar or dissimilar to the foregoing.
Section 2.3. Event of Default.
An “Event of Default” shall exist if any of the following occurs and is continuing:
(a) Guarantor defaults in any guaranty referred to in Section 2.1(a), 2.1(b) or
2.1(c) hereof;
(b) Guarantor fails to observe and perform any covenant, condition or agreement
other than such referred to in Section 2.3(a) hereof and such failure continues for more than
thirty (30) days after written notice (which shall be deemed given upon receipt of registered
or certified mailing) of such failure has been given to Guarantor by the Authority, the
Paying Agent or the Holder or if by reason of such default the same cannot be remedied within
said thirty (30) days;
(c) any warranty, representation or other statement by or on behalf of any
Guarantor contained in this Guaranty is false or misleading in any material respect as of the
date made;
(d) (i) the entry of a decree or order for relief by a court having jurisdiction in
the premises in respect of Guarantor in an involuntary case under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of Guarantor or for any substantial part of any
of its property, or ordering the winding-up or liquidation of its affairs and the continuance
of any such decree or order unstayed and in effect for a period of 30 consecutive days, or
(ii) the commencement by Guarantor of a voluntary case under the federal bankruptcy laws, as
now constituted or hereinafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or the consent by Guarantor to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) or the making by any of them of any assignment for the benefit
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of creditors, or the taking of corporate action by Guarantor to authorize or effect any of the
foregoing.
Section 2.4. Remedies Upon Default.
(a) Upon an Event of Default under Section 2.3 of this Guaranty, the Holder shall
have the right to proceed first and directly against Guarantor under this Guaranty without
proceeding against or exhausting any other remedies which it may have and without resorting
to any security held by it.
(b) Each and every default in the payment or performance of the obligations specified
in Section 2.4(a) hereof shall give rise to a separate cause of action hereunder, and
separate suits may be brought hereunder as each cause of action arises.
Section 2.5. Waiver of Notice of Non-Payment and Costs of Enforcement.
Guarantor hereby expressly waives presentment, demand, protest and notice of non-payment and
further waive notice from the Trustee of its acceptance and reliance on this Guaranty. Guarantor
jointly and severally agrees to pay all costs, disbursements and expenses (including all reasonable
attorneys’ fees) which may be incurred by the Trustee in enforcing or attempting to enforce this
Guaranty following any default on the part of Guarantor hereunder, whether the same shall be
enforced by suit or otherwise.
ARTICLE III
MISCELLANEOUS
Section 3.1. Amendment.
This Guaranty may not be amended, changed, modified, altered or terminated except as agreed
in writing by the parties.
Section 3.2. Termination Date.
The obligations of Guarantor hereunder shall terminate absolutely and unconditionally when
the principal, premium, if any and interest on all of the Bonds shall have been paid in full.
Section 3.3. Remedies Not Exclusive.
No remedy herein conferred upon or reserved to Trustee is intended to be exclusive of any
other available remedy or remedies, but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Guaranty or now or hereafter existing at law
or in equity. No delay or omission to exercise any right or power accruing upon any Event of
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Default, omission or failure of performance hereunder shall impair any such right or power or
shall be construed to be a waiver in the event any provision contained in this Guaranty should be
breached by any party and thereafter duly waived by the other party so empowered to act. Such
waiver shall be limited to the particular breach so waived and shall not be deemed to waive any
other breach hereunder. No waiver, amendment, release or modification of this Guaranty shall be
established by conduct, custom or course of dealing, but solely by an instrument in writing duly
executed by the parties thereunto duly authorized by this Guaranty.
Section 3.4. Notices.
Except as otherwise provided herein, all notices or other communications hereunder shall be
sufficiently given and shall be deemed given when delivered by hand delivery or on the second day
following the day on which the same has been mailed, postage prepaid, by certified mail, addressed
as follows if to the Trustee:
Xxxxx Fargo Bank, National Association
0000 X Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Trust
0000 X Xxxxxx
Xxxxxxx, XX 00000
Attn: Corporate Trust
together with other addresses furnished to Guarantor from time to time, and if to the Guarantor:
Section 3.5. Counterparts.
This Guaranty constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, between the parties with respect to the subject matter
hereof and may be executed simultaneously in several counterparts, each of which shall be deemed
an original and all of which together shall constitute one and the same instrument.
Section 3.6. Severability.
The invalidity or unenforceability of any one or more phrases, sentences, clauses or Sections
in this Guaranty contained, shall not affect the validity or enforceability of the remaining
portions of this Guaranty, or any part thereof.
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Section 3.7. Governing Law.
This Guaranty shall be governed by and construed in accordance with the laws of the State of
Nebraska.
Section 3.8. Successors and Assigns.
This Guaranty shall be binding upon, inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed, all as of the date
first above written.
| Guarantor: | ||||||
| SIOUXLAND ETHANOL, LLC | ||||||
| By: | /s/ Xxx Xxxxx | |||||
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