SOUTHWEST GEORGIA FARM CREDIT, ACA REVOLVING CREDIT NOTE
Exhibit 10.33
$11,000,000
|
November 30, 2006 | |||
| Camilla, Georgia |
FOR VALUE RECEIVED, FIRST UNITED ETHANOL, LLC (the “Borrower”), a limited liability company
organized and existing under the laws of the State of Georgia, hereby promise to pay to the order
of SOUTHWEST GEORGIA FARM CREDIT, ACA, an agricultural credit association for itself and as
agent/nominee (the “Lender”), at its offices at 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx
00000, or such other place as Lender shall designate in writing from time to time, the principal
sum of ELEVEN MILLION and NO/100 DOLLARS ($11,000,000) (the “Loan”), or so much thereof as shall be
advanced pursuant to the Credit Facility Agreement of even date herewith between Borrower and
Lender (the “Credit Facility Agreement”), in United States Dollars, together with interest thereon
as hereinafter provided. The Credit Facility Agreement is hereby incorporated herein by reference.
This is the Revolving Credit Note referred to in the Credit Facility Agreement. All capitalized
terms used herein but not otherwise defined shall have the meanings as defined in the Credit
Facility Agreement. All advances from the Lender to Borrower hereunder may be repaid and
readvanced and shall be made in accordance with and pursuant to the terms of the Credit Facility
Agreement. The loan evidenced by this Note shall be for commercial purposes to support working
capital needs in connection with Xxxxxxxx’s business operations.
1. INTEREST.
1.1 Interest Rates. Pursuant to a Borrowing Notice, the Borrower shall have the
option of having interest calculated on the amount outstanding on the Revolving Credit Facility at
the Base Rate or LIBOR Rate pursuant to Section 2.6 of the Credit Facility Agreement.
Notwithstanding anything herein to the contrary, upon the occurrence of a Default or an Event of
Default (under the terms of the Credit Facility Agreement), interest shall accrue from the date of
such Default or Event of Default, as the case may be, at the Default Rate, without the taking of
any action or the giving of any notice by the Lender until such Default or Event of Default has
been cured to the satisfaction of Lender.
1.2 Initial Rate. The Base Rate, as defined in the Credit Facility Agreement, shall
initially be in effect from the Closing Date until a conversion to LIBOR occurs pursuant to the
terms of Section 1.3 below.
1.3 Conversions. Provided that no Default or Event of Default shall have occurred and
be continuing and subject to the limitations set forth below, the Borrower may on five (5) Business
Days’ notice on or before 11:00 A.M. Eastern time, convert the method of calculating interest from
the Base Rate to LIBOR, or from LIBOR to a Base Rate but only at the expiration of the applicable
Interest Period for such LIBOR Loans. Notice of any such conversions shall be communicated in
writing to the Lender by a Borrowing Notice.
1.4 Interest Payments. (a) The Borrower shall pay interest to the Lender on the
outstanding and unpaid principal amount of the funds advanced by the Lender for the period
commencing on the date of any such advance until the Loans shall be paid as and when due. In
addition, upon the occurrence of an Event of Default under Section 7.1 (a) or (b) of the Credit
Facility Agreement, interest shall accrue on the outstanding principal amount of the Loans at the
Default Rate until all amounts of principal and interest due is paid in full. (b) Interest on the
outstanding principal balance of the Loans shall be calculated on the basis of a year of 365 days
for the actual number of days elapsed. Any change in the Base Rate or LIBOR Rate shall be
effective as of the Business Day such change is announced by the Lender. (c) Interest on the
outstanding principal balance of the Loans shall be paid on the first Business Day of each calendar
month during each year, commencing on the first such date to occur after the date of the first
borrowing hereunder. (d) With respect to the Revolving Credit Facility, the Borrower may borrow,
repay and reborrow hereunder, on any Business Day when the Base Rate is in effect and on a LIBOR
Business Day when the LIBOR Rate is in effect for the Loans. Advances may be obtained from the
date hereof until, but (as to borrowings and reborrowings) not including, the Revolving Credit
Termination Date.
2. PRINCIPAL. The Loans shall be interest only until November 30, 2007, subject to
extensions as provided in the Credit Facility Agreement (the “Revolving Credit Termination Date”),
at which time all outstanding principal and interest shall be due, unless earlier accelerated. The
Borrower hereby agrees to pay the loans when due pursuant to the terms of this Note and the Credit
Facility Agreement. Such obligations are and shall be absolute as to the Borrower without notice,
claim, defense or setoff. All funds advanced under the Revolving Credit Facility, together with any
unpaid interest, shall become due and payable in full on the Revolving Credit Termination Date.
3. TENDER OF PAYMENT. Each payment of principal (including any prepayment) and each
payment of interest shall be made to the Lender at the Principal Office of the Lender, in Dollars
and in immediately available funds before 2:00 P.M. Eastern time on the date such payment is due.
The Lender may, but shall not be obligated to, debit the amount of any such payment which is not
made by such time to any ordinary deposit account of the Borrower with the Lender.
4. NON-CONFORMING PAYMENTS. The Lender shall deem any payment by or on behalf of the
Borrower hereunder or under Sections 2.3 and 2.4 of the Credit Facility Agreement that is not made
both (a) in Dollars and in immediately available funds and (b) prior to 2:00 P.M. Eastern time to
be a non- conforming payment. Any such payment shall not be deemed to be received by the Lender
until the time such funds become available funds. The Lender shall give prompt telephonic notice to
the Borrower if any payment is non-conforming. For the first thirty (30) days after payment is
due, interest shall continue to accrue on any principal as to which a non-conforming payment is
made until such funds become available funds at the then applicable standard rate of interest.
5. PREPAYMENT. The Borrower shall have the right to repay the amounts outstanding under
the Revolving Credit Facility at any time in whole or in part plus, in the case of prepayment of a
LIBOR Loan, the Lender’s direct costs associated with the breakage of any LIBOR contracts resulting
from such prepayment. Notwithstanding the above, however, Borrower shall be obligated to pay any
fees owed under Section 2.8 of the Credit Facility Agreement, if any, outstanding at the time of
said prepayment.
2
6. SECURITY FOR THE NOTE. This Note is executed and delivered in accordance with a
commercial transaction described in the Credit Facility Agreement. As security for all Obligations,
the Borrower has granted the Lender a continuing first priority lien and security interest in,
pledge of and right of set-off against the Collateral as set forth in the Credit Facility Agreement
and the Security Agreement.
7. DEFAULT RATE. At the time of an occurrence of a Default or an Event of Default
hereunder or as described in Section 7.1 (a) and (b) of the Credit Facility Agreement, interest
shall accrue on the outstanding principal amount of the Loans at the Default Rate until all amounts
of principal and interest due is paid in full. The Default Rate means an annual interest rate equal
to the Base Rate in effect at the time of the occurrence of the Event of Default plus an additional
2%.
8. INDEMNIFICATION.
8.1 Borrower hereby indemnifies and agrees to defend and hold harmless Lender, its officers,
employees and agents, from and against any and all losses, damages, or liabilities and from any
suits, claims or demands, including reasonable attorneys’ fees incurred in investigating or
defending such claim, suffered by any of them and caused by, arising out of, or in any way
connected with the Credit Facility Agreement, the Security Agreement or this Note (collectively the
“Loan Documents”) or the transactions contemplated therein (unless determined by a final judgment
of a court of competent jurisdiction to have been caused solely by the gross negligence or willful
misconduct of any of the indemnified parties).
8.2 In case any action shall be brought against Lender, its officers, employees or agents, in
respect to which indemnity may be sought against Borrower, Lender or such other party shall
promptly notify Borrower and Borrower shall assume the defense thereof, including the employment of
counsel selected by Xxxxxxxx and satisfactory to Lender, the payment of all costs and expenses and
the right to negotiate and consent to settlement. Lender shall have the right, at its sole option,
to employ separate counsel in any such action and to participate in the defense thereof, all at
Borrower’s sole cost and expense. Borrower shall not be liable for any settlement of any such
action effected without its consent (unless Xxxxxxxx fails to defend such claim), but if settled
with Xxxxxxxx’s consent, or if there be a final judgment for the claimant in any such action,
Xxxxxxxx agrees to indemnify and hold harmless Lender from and against any loss or liability by
reason of such settlement or judgment.
9. EVENTS OF DEFAULT. An Event of Default shall exist if any of the following shall occur:
(i) Payment of Principal. If the Borrower fails to pay any principal of the
Loans when due (except as permitted in Section 7.1(b) of the Credit Facility Agreement); or
(ii) Payment of Interest and Fees. If the Borrower defaults in the payment of
any interest upon any of the Loans or any fees hereunder or under the Credit Facility
Agreement when due (except that the Lender will give the Borrower at least one Business
Day’s notice if it fails to receive any interest payment or fee payment when due (other
3
than at maturity for which no notice is required) and provided the Lender shall not be
obligated to deliver such notice on more than two occasions in any twelve-month period; or
(iii) Default under Reimbursement Documents. The occurrence of any Event of
Default under the Credit Facility Agreement, the Reimbursement Agreement or any of the
Reimbursement Documents, the Bonds or any of the Bond Documents (as defined in the
Reimbursement Agreement).
(iv) Payment of Other Obligations. If the Borrower defaults in the payment of
principal of, by acceleration or otherwise, or interest on any other Indebtedness of greater
than $100,000 in the aggregate beyond any period of grace provided with respect thereto
(unless such Indebtedness is being disputed in good faith by the Borrower), or in the
performance of any other term or condition contained in any agreement under which any such
other Indebtedness is created, if the effect of such default is to cause, or permit the
holder or holders of such Indebtedness to cause such Indebtedness to become due prior to its
stated maturity; or
(v) Representation or Warranty. If any representation or warranty made by the
Borrower in the Credit Facility Agreement, or in any writing furnished in connection with or
pursuant to this Note or the Credit Facility Agreement shall be false, misleading or
inaccurate or incomplete in any material respect on the date as of which made; or
(vi) Liquidation or Dissolution. Liquidation or dissolution of the Borrower or
suspension of the business of the Borrower or filing by the Borrower of a voluntary petition
in bankruptcy or a voluntary petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under the Bankruptcy Code, as amended, or
under any other insolvency act or law, state or Federal, now or hereafter existing, or any
other action of the Borrower indicating its consent to, approval of, or acquiescence in any
petition or proceedings; the application by the Borrower for, or the appointment by consent
or acquiescence of, a custodian, receiver or a trustee of the Borrower or for all or a
substantial part of its property; the making by the Borrower of an assignment for the
benefit of creditors, the inability of the Borrower or the admission by the Borrower in
writing of its inability to pay its debts as they mature or the failure to pay its debts as
they mature; or
(vii) Bankruptcy, Etc. Filing of an involuntary petition against the Borrower
in bankruptcy or seeking reorganization, arrangement, readjustment of its or their debts or
for any other relief under the Bankruptcy Code, as amended, or under any other insolvency
act or law, state or Federal, now or hereafter existing, or the involuntary appointment of a
custodian, receiver or trustee for the Borrower or for all or a substantial part of its
property, or the issuance of a warrant of attachment, execution or similar process against
any substantial part of the property of the Borrower, and the continuance of any of such
events for sixty (60) days undismissed or undischarged; or
4
(viii) Order of Dissolution. If any order is entered in any proceedings
against the Borrower decreeing its dissolution or split-up, and such order remains in effect
for more than sixty (60) days; or
(ix) Judgment. If a final judgment, which with other outstanding final
judgments against the Borrower exceeds an aggregate of $50,000, shall be rendered against
the Borrower and if within thirty (30) days after entry thereof such judgment shall not have
been discharged, bonded or execution thereof stayed pending appeal, or if within thirty (30)
days after the expiration of any such stay such judgment shall not have been discharged; or
(x) Pension Plan. If (a) any material unfunded or underfunded or statutory
liability is incurred by the Borrower under ERISA, or (b) any Reportable Event occurs under
ERISA which event the PBGC determines to constitute grounds for termination of any employee
benefit plan established or maintained by the Borrower which is not cured within 45 day of
receipt of notice of such event; or
(xi) Other Instruments. If an Event of Default shall occur under the Credit
Facility Agreement or any other Loan Document which has not been cured within any applicable
cure period provided therein, or if for any reason other than the release or termination
thereof by the Lender, any Loan Document shall be deemed unenforceable by a court of
competent jurisdiction or shall no longer be effective, or the Borrower shall contend that
this Note, the Credit Facility Agreement or any other Loan Document(s), or any provision of
any of them, are not enforceable; or
(xii) Certain Covenants. If the Borrower defaults in the performance or
observance of any agreement or covenant binding on it contained in Article IX and Article X
of the Credit Facility Agreement; or
(xiii) Other Covenants. If the Borrower defaults in the performance or
observance of any other agreement, covenant, term or condition binding on it contained in
the Credit Facility Agreement and such default shall not have been remedied within thirty
(30) days; or
(xiv) Cross-Defaults. This Note and the Reimbursement Note are cross-defaulted
such that a default on either note shall be a default on the other.
10. RIGHTS AND REMEDIES. Upon the occurrence of an Event of Default (which has not been
cured within the applicable cure period) and during the continuation thereof (provided that the
continuation of the Event of Default shall not be necessary if the Loans has been accelerated), the
Lender may, at its sole option, exercise any right, power or remedy permitted by law or as set
forth herein or in the Credit Facility Agreement, the Security Agreement or in any other Loan
Document including, without limitation, (i) cease making advances under the Revolving Credit
Facility or impose additional conditions or restrictions on the making of any future advances
thereunder (ii) declare any or all of the Loans, and all other Obligations owing by the Borrower to
the Lender to be forthwith due and payable; whereupon such Loans and any other such Obligations
shall forthwith become due and payable, without presentment, demand,
5
protest or other notice of any kind, all of which are expressly waived, anything contained herein
or in the other Loan Documents to the contrary notwithstanding.
11. MISCELLANEOUS.
11.1 No Implied Waiver. Lender shall not be deemed to have modified or waived any of
its rights or remedies hereunder unless such modification or waiver is in writing and signed by
Xxxxxx, and then only to the extent specifically set forth therein. A waiver in one event shall
not be construed as continuing or as a waiver of or bar to such right or remedy in a subsequent
event. After any acceleration of, or the entry of any judgment on, this Note, the acceptance by
Xxxxxx of any payments by or on behalf of Borrower on account of the indebtedness evidenced by this
Note shall not cure or be deemed to cure any Event of Default or reinstate or be deemed to
reinstate the terms of this Note absent an express written agreement duly executed by Xxxxxx and
Xxxxxxxx.
11.2 Waiver. To the fullest extent permitted by applicable law, Borrower waives
demand, notice, presentment, protest, demand for payment, notice of dishonor, notice of protest and
diligence of collection of this Note. Borrower consents to any and all extensions of time,
renewals, waivers, or modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and to the release of any collateral, with or without substitution.
Xxxxxxxx agrees that makers, endorsers, guarantors and sureties may be added or released without
notice and without affecting Borrower’s liability hereunder. The liability of Borrower shall not
be affected by the failure of Lender to perfect or otherwise obtain or maintain the priority or
validity of any security interest in any collateral. The liability of Borrower shall be absolute
and unconditional and without regard to the liability of any other party hereto.
11.3 Binding Effect. The covenants, conditions, waivers, releases and agreements
contained in this Note shall bind, and the benefits thereof shall inure to, the parties hereto and
their respective heirs, executors, administrators, successors and assigns; provided, however, that
this Note cannot be assigned by Borrower without the prior written consent of Lender, and any such
assignment or attempted assignment by Borrower shall be void and of no effect with respect to
Lender.
11.4 Notices. All notices, requests and demands to or upon the respective parties
hereto (other than routine billing notices) shall be deemed to have been given or made on the
Domestic Business Day deposited in the mail, postage prepaid, or when delivered by Federal Express,
in the case of telegraphic notice, when delivered to the telegraph company to the addresses listed
in the Credit Facility Agreement.
11.5 Continuing Enforcement. If, after receipt of any payment of all or any part of
this Note, Lender is compelled or agrees, for settlement purposes, to surrender such payment to any
person or entity for any reason (including, without limitation, a determination that such payment
is void or voidable as a preference or fraudulent conveyance, an impermissible setoff, or a
diversion of trust funds), then this Note and the other Loan Documents shall continue in full force
and effect or be reinstated, as the case may be, and Borrower shall be liable for, and shall
indemnify, defend and hold harmless Lender with respect to, the full amount so surrendered. The
provisions of this Section shall survive the cancellation or termination of this Note and shall
6
remain effective notwithstanding the payment of the obligations evidenced hereby, the release
of any security interest, lien or encumbrance securing this Note or any other action which Lender
may have taken in reliance upon its receipt of such payment. Any cancellation, release or other
such action shall be deemed to have been conditioned upon any payment of the obligations evidenced
hereby having become final and irrevocable.
11.6 Waiver of Jury Trial. XXXXXXXX AND XXXXXX AGREE THAT, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY XXXXXX OR
BORROWER, ON OR WITH RESPECT TO THIS NOTE OR ANY OTHER LOAN DOCUMENT OR THE DEALINGS OF THE PARTIES
WITH RESPECT HERETO OR THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. XXXXXX AND
BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND INTELLIGENTLY, AND WITH THE ADVICE
OF THEIR RESPECTIVE COUNSEL, WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL
BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. FURTHER, BORROWER WAIVES ANY RIGHT IT MAY HAVE TO
CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE,
CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. XXXXXXXX
ACKNOWLEDGES AND AGREES THAT THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS NOTE AND THAT
LENDER WOULD NOT EXTEND CREDIT TO BORROWER IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART
OF THIS NOTE.
11.7 Amendment. Any provision of this Note, the Credit Facility Agreement and the
other Loan Documents may be waived or modified only by an instrument in writing signed by the
Borrower and the Lender.
11.8 Costs, Expenses and Taxes. The Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses in connection with the preparation, execution, delivery, filing,
recording and administration of this Note, the Credit Facility Agreement, the Mortgage, the
Security Agreement and any of the other Loan Documents, including, without limitation, the fees and
expenses of counsel for the Lender, with respect thereto and with respect to advising the Lender as
to its respective rights and responsibilities under this Agreement, the Notes or any of the other
Loan Documents, and all costs and expenses, if any, in connection with the enforcement of this
Agreement, the Revolving Credit Note, or any of the other Loan Documents provided, however, that
attorneys’ fees reimbursed in connection with the enforcement of any of the Loan Documents or the
collection of sums due thereunder shall be limited to fees charged at customary hourly rates for
the hours actually worked rather than a percentage of the amount collected. In addition, the
Borrower shall pay any and all stamp and other taxes and fees payable or determined to be payable
in connection with the execution, delivery, filing or recording of this Agreement, the Revolving
Credit Note, the Mortgage, the Security Agreement and other Loan Documents and the other documents
to be delivered under any such Loan Documents, and agrees to hold the Lender harmless from and
against any and all liabilities with respect to or resulting from any delay in paying or omission
to pay such taxes and fees.
7
11.9 Governing Law. GOVERNING LAW, JURISDICTION, VENUE AND SERVICE. THIS NOTE
SHALL BE INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF THE STATE OF GEORGIA
WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES. THE BORROWER HEREBY CONSENT TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF DECATUR COUNTY, GEORGIA AND THE UNITED STATES DISTRICT COURT FOR
GEORGIA, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL MAY BE TAKEN FROM SUCH
COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ANY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS OR WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY. THE BORROWER EXPRESSLY WAIVES ANY CLAIM THAT SUCH COURTS ARE AN INCONVENIENT
FORUM OR AN IMPROPER FORUM BASED UPON LACK OF VENUE. THE BORROWER FURTHER WAIVES TO THE EXTENT
PERMITTED BY GOVERNING LAW PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT, AND CONSENTS THAT ALL
SUCH SERVICE OF PROCESS BE MADE BY MESSENGER, CERTIFIED MAIL OR REGISTERED MAIL DIRECTED TO
OBLIGORS AT THE ADDRESS SET FORTH HEREIN ITS SIGNATURE HERETO AND SERVICE SO MADE SHALL BE DEEMED
TO BE COMPLETED UPON THE EARLIER OF ACTUAL RECEIPT OR THREE (3) BUSINESS DAYS AFTER THE SAME SHALL
HAVE BEEN POSTED TO THE BORROWER’S ADDRESS.
11. 10 Assignments and Participations. The Borrower acknowledges and agrees that the
Lender may, without prior consent of or notice to the Borrower, assign, sell or transfer the
Obligations or this Note or any of the Loan Documents, or interests therein, in whole or in part,
or grant or sell one or more participations in the Obligations or portions thereof from time to
time. In the event the Lender assigns, sells or transfers any portion of the Obligations or any
interest in this Note or the Loan Documents, the Borrower agrees to execute and deliver any
documents or instruments necessary in the Lender’s opinion to carry out such assignment, transfer
or sale, including without limitation execution and delivery of a new Revolving Credit Note in
favor of the assignee, transferee or purchaser.
11.11 Severability. In case any one or more of the provisions contained in this Note
or in the Credit Facility Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained in this
Note or other Loan Documents, shall not in any way be affected or impaired thereby, and this Note,
the Credit Facility Agreement and the Loan Documents shall otherwise remain in full force and
effect.
11.12 Usury. Anything contained herein or in the Loan Documents to the contrary
notwithstanding, if for any reason the effective rate of interest on such advances should exceed
the maximum lawful rate of interest, the effective rate of interest shall be deemed reduced to and
shall be such maximum lawful rate, and any sums of interest which have been collected in excess
of such maximum lawful rate shall be applied by the holders of this Note as a credit against the
unpaid principal amount due hereunder.
8
[Balance of Page Intentionally Left Blank]
9
[Signature Page of Revolving Credit Note]
IN WITNESS WHEREOF, the Borrower, intending to be legally bound, has duly
executed and delivered this Note as of the day and year first above written.
| BORROWER: | ||||||
| FIRST UNITED ETHANOL, LLC | ||||||
| By: | /s/ Xxxxxx Xxxxxxxx | |||||
| Name: | Xxxxxx Xxxxxxxx | |||||
| Its: | Chairman | |||||
10
