SERIES E UNIT ISSUANCE AGREEMENT
THIS SERIES E UNIT ISSUANCE AGREEMENT (this "Agreement") is entered
into as of the 7th day of March, 2008, by and among Xxxxx North America, Inc., a
corporation organized and existing under the laws of New York ("Bunge"), and
Southwest Iowa Renewable Energy, LLC, a limited liability company organized and
existing under the laws of Iowa ("SIRE," and together with Bunge, the "Parties"
and each individually a "Party").
RECITALS
WHEREAS, Bunge holds Series B Units in SIRE pursuant to the terms of that
certain Second Amended and Restated Operating Agreement of SIRE, as amended
effective March 7, 2008 (the "Operating Agreement");
WHEREAS, SIRE has created Series D Units and Series E Units (as defined in
the Operating Agreement) holding the rights, powers and preferences as set forth
in the Operating Agreement;
WHEREAS, pursuant to that certain Promissory Note of SIRE of even date
herewith payable to the order of Commerce Bank (the "Bridge Lender"), the
Bridge Lender has agreed to make a term loan to SIRE in the maximum principal
amount of up to $36,000,000) (as the same may from time to time be amended,
modified, extended, renewed or restated, the "Bridge Loan") to finance a portion
of the costs incurred or to be incurred by SIRE in connection with SIRE's
construction of an ethanol facility in Council Bluffs, Iowa (the "Facility");
WHEREAS, in connection with the transactions contemplated by the Bridge
Loan: (1) Bunge has caused UMB Bank (the "Bunge L/C Bank") to issue its
Irrevocable Letter of Credit No. S500381 of even date herewith in the original
face amount of $27,360,000 for the account of Bunge and for the benefit of the
Bridge Lender (as the same may from time to time be amended, modified, extended,
renewed or restated, the "Bunge L/C"); (2) Bunge has executed and delivered to
the Bunge L/C Bank a reimbursement agreement of even date herewith (as the same
may from time to time be amended, modified, extended, renewed or restated, the
"Bunge Reimbursement Agreement") pursuant to which Bunge is required to
reimburse the Bunge L/C Bank for all payments made by the Bunge L/C Bank to the
Bridge Lender under or in respect of the Bunge L/C; (3) ICM, Inc. ("ICM") has
caused Intrust Bank, N.A. (the "ICM L/C Bank") to issue its Irrevocable Letter
of Credit No. 08SBLC0345 of even date herewith in the original face amount of
$8,640,000 for the account of ICM and for the benefit of the Bridge Lender (as
the same may from time to time be amended, modified, extended, renewed or
restated, the "ICM L/C"); and (4) ICM has executed and delivered to the ICM L/C
Bank a reimbursement agreement of even date herewith (as the same may from time
to time be amended, modified, extended, renewed or restated, the "ICM
Reimbursement Agreement") pursuant to which ICM is required to reimburse the ICM
L/C Bank for all payments made by the ICM L/C Bank to the Bridge Lender under or
in respect the ICM L/C;
WHEREAS, in connection with the transactions contemplated by this
Agreement, SIRE is undertaking a private placement of Units (as defined in the
Operating Agreement) pursuant to an exemption from registration under the
Securities Act of 1933 and the regulations promulgated thereunder (the "Private
Placement"); and
WHEREAS, in order to induce Bunge to cause the Bunge L/C Bank to issue the
Bunge L/C for the benefit of the Bridge Lender and in partial consideration for
Bunge causing the Bunge L/C to be issued, SIRE has agreed to issue Series E
Units to Bunge upon the terms and subject to the conditions contained in this
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and other
consideration hereinafter set forth, the receipt and sufficiency of which hereby
are acknowledged, the Parties agree as follows:
1. Issuance of Series E Units With Respect to L/C. If (a) the Bunge L/C
Bank makes any payment to the Bridge Lender under or in respect of the Bunge L/C
or (b) Bunge makes any payment to the Bridge Lender which reduces amounts owed
by SIRE under or in respect of the Bridge Loan when any such amounts become due
and payable (whether such amounts consist of principal, interest, fees and/or
other amounts) (and SIRE hereby agrees that Bunge shall have the right to make
any such payments for the account and benefit of SIRE at any time in Bunge's
sole and absolute discretion after such amounts become due and payable), then
Bunge shall notify SIRE in writing (the "L/C Payment Notice") of the making of,
and the amount of, any such payments made by the Bunge L/C Bank or Bunge
pursuant to (a) or (b) above (each, a "Bridge Loan Payment") and SIRE shall
immediately (but in no event later than three (3) business days following SIRE's
receipt of the L/C Payment Notice from Bunge of the applicable Bridge Loan
Payment) reimburse Bunge for the amount of the Bridge Loan Payment (the "L/C
Reimbursement Obligation") by issuing to Bunge (no later than three (3) business
days following SIRE's receipt of the L/C Payment Notice from Bunge of the
applicable Bridge Loan Payment) that number of Series E Units which are
determined by dividing the amount of the Bridge Loan Payment contained in the
L/C Payment Notice by the lesser of (y) $3,000, or (z) one-half (1/2) of the
lowest purchase price paid by any party for a Unit who acquired (or who has
entered into any agreement, instrument or document to acquire) such Unit after
the date hereof but prior to the date of the Bridge Loan Payment as part of the
Private Placement. In the event SIRE is legally prohibited from issuing Series E
Units to satisfy the L/C Reimbursement Obligation, SIRE shall be obligated to
pay Bunge the amount of the L/C Reimbursement Obligation in cash; provided,
however, that any such cash payment obligation is and shall be fully
subordinated to the payment in full of all of SIRE's indebtedness, liabilities
and obligations under or in respect of the Bank Group Facility pursuant to
documentation in form and substance satisfactory to the lenders under the Bank
Group Facility. For purposes of this Agreement, "Bank Group Facility" means the
credit facility from certain lenders and AgStar Financial Services, PCA, as
administrative agent, to SIRE
evidenced by that certain Credit Agreement dated May 2, 2007, as amended by that
certain First Amendment to Credit Agreement dated os of March 7, 2008, and as
the same may from time to time be further amended, modified, extended, renewed
or restated. Any portion of the L/C Reimbursement Obligation which is not paid
or satisfied in full on or before the date which is three (3) business days
following the date of SIRE's receipt of the L/C Payment Notice from Bunge of the
applicable Bridge Loan Payment shall bear interest from its due date until paid
in full at a rate per annum equal to the lesser of (a) LIBOR plus nine percent
(9%) per annum, and (b) the maximum rate allowable under applicable law. "LIBOR"
means the daily average of interbank offered rates for US Dollar deposits in the
London market based on quotations at major banks, as published under the heading
"London Interbank Offered Rates (LIBOR)" in the "Money Rates" column of The Wall
Street Journal for a one month maturity, and LIBOR shall fluctuate as and when
such published rate changes.
2. Preemptive Right to Purchase Units. Bunge shall have the right to
purchase its Pro Rata Share of any Units that SIRE may from time to time issue
after the date of this Agreement. Bunge's "Pro Rata Share" for purposes of this
right is the ratio of (a) the number of Series B Units, Series D Units, Series E
Units and any other Units of SIRE then owned by Bunge (and including any Series
E Units which must be issued to Bunge pursuant to either Section 1 or Section
2), and (b) the total number of Units of SIRE then outstanding. In addition to
Bunge's rights under the Operating Agreement, if SIRE proposes to issue any
Units, it shall give Bunge written notice of its intention to issue such Units
(a "Unit Notice"), describing the purchase price and the general terms upon
which SIRE proposes to issue such Units. Bunge shall have ten (10) business days
from the date of actual receipt of any such Unit Notice to agree in writing to
purchase up to its Pro Rata Share of Units upon the terms contained in the
Notice. Bunge shall exercise such right by giving written notice to SIRE and
stating therein the quantity of Units to be purchased (not to exceed Bunge's Pro
Rata Share). If Bunge fails to so agree in writing within such ten (10) day
period to purchase Bunge's full Pro Rata Share of any Units, then Bunge shall
forfeit the right hereunder to purchase that part of its Pro Rata Share of such
new Units that Bunge did not so agree to purchase. The foregoing shall not
preclude Bunge from purchasing more than its Pro Rata Share of Units to the
extent offered by SIRE.
3. Representations of SIRE. SIRE hereby represents and warrants to
Bunge as follows: (a) the Units to be issued by SIRE pursuant to the terms of
this Agreement have been duly and validly authorized and, when issued to Bunge
pursuant to the terms of this Agreement, will be duly and validly issued, fully
paid and non-assessable and free of any security interest, other encumbrance or
adverse claim and free of any statutory and contractual preemptive rights,
rights of first refusal and similar rights, and (b) the execution, delivery and
performance of this Agreement by SIRE, the issuance of the Units to Bunge in
accordance with the terms of this Agreement, and the consummation of the
transactions contemplated hereby will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any event which, with
notice, lapse of time or both, would result in any breach or violation of,
constitute a default under or give the holder of any indebtedness the right to
require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (or result in the creation or imposition of a lien, charge
or encumbrance on any property or assets of SIRE under) (i) the Articles of
Organization of SIRE or the Operating Agreement, or (ii) any indenture,
mortgage,
deed of trust, bank loan or credit agreement or other evidence of indebtedness,
or any license, lease, contract or other agreement or instrument to which SIRE
is a party or by which any of its properties may be bound or affected, or (iii)
any federal, state, local or foreign law, regulation or rule, or (iv) any
decree, judgment or order applicable to SIRE or any of its properties.
4. Covenants. SIRE covenants and agrees that:
(a) its Board of Managers shall not allow, or propose to allow, any
amendment, modification or change to SIRE's Articles of Organization or the
Operating Agreement, or enter into any other agreement or instrument, which is
inconsistent with the terms of this Agreement, or that would otherwise limit the
rights, privileges or preferences of Bunge under the terms of this Agreement or
the rights, privileges or preferences of the Units in existence under the
Operating Agreement as amended and restated on the date hereof;
(b) in the event that (a) the ICM L/C Bank makes any payment to the Bridge
Lender under or in respect of the ICM L/C or (b) ICM makes any payment to the
Bridge Lender which reduces amounts owed by SIRE under or in respect of the
Bridge Loan (whether such amounts consist of principal, interest, fees and/or
other amounts) (and SIRE hereby agrees that ICM shall have the right to make any
such payments when any such amounts become due and payable for the account and
benefit of SIRE at any time in ICM's sole and absolute discretion after such
amounts become due and payable), then SIRE shall either reimburse ICM for the
amount of such payments (on a pro-rata basis with SIRE's payments of the
Reimbursement Obligation) or in lieu thereof issue to ICM Series C Units as set
forth in that certain Series C Unit Issuance Agreement between SIRE and ICM of
even date herewith and SIRE shall not issue any other series of Units to ICM in
connection with any such payments made by ICM. SIRE may not amend such Series C
Unit Issuance Agreement without the prior written consent of Bunge;
(c) SIRE will use best efforts to raise funds in the Private Placement, or
in such other form of equity or debt financing which SIRE's Board of Directors
deems necessary, in an amount sufficient to pay off the Bridge Loan in full
prior to its maturity and SIRE will use all funds received by SIRE pursuant to
the Private Placement or such other equity or debt financing first to reduce
amounts owed by SIRE under or in respect of the Bridge Loan;
(d) SIRE shall pay to Bunge a fee in an amount equal to 6% per annum
(computed on an actual day, 360 day year basis) of the undrawn face amount of
the Bunge L/C (the "Fee"). The Fee shall be due and payable on the maturity date
of the Bridge Loan, or if later, on the date of the expiration or termination of
the Bunge L/C. SIRE shall also reimburse Bunge for all out-of-pocket costs and
expenses, including, without limitation, reasonable attorneys' fees and
expenses, paid or incurred by Bunge in connection with the transactions
contemplated by this Agreement. Bunge shall invoice SIRE for all such costs and
expenses on a monthly basis. SIRE shall pay all invoices within ten (10) days of
receipt by SIRE. Any amounts not paid by SIRE when due shall bear interest at a
rate per annum equal to the lesser of (a) LIBOR plus nine percent (9%) per
annum; and (b) the maximum rate allowable under applicable law;
(e) upon execution of this Agreement, counsel for SIRE shall deliver to
Bunge a legal opinion in the form of Exhibit A attached hereto; and
(g) upon each issuance to Bunge of Units pursuant to the terms of this
Agreement, counsel for SIRE shall deliver to Bunge a legal opinion in the form
of Exhibit B attached hereto.
5. Miscellaneous.
(a) Amendment; Entire Agreement; No Third Party Beneficiaries. No
amendments or modifications of this Agreement shall be valid unless evidenced in
writing and signed by duly authorized representatives of both the Parties. This
Agreement constitutes the entire agreement among the Parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, among the Parties with respect to the subject matter
hereof and is not intended to confer upon any other person any rights or
remedies hereunder.
(b) Successors and Assigns. This Agreement shall not be assignable by
either Party without the prior written consent of the other Party hereto.
Subject to the foregoing sentence, this Agreement shall be binding upon and
inure to the benefit of the Parties and their successors and permitted assigns.
(c) Notices. Any written notice, direction, instruction, request or other
communication required or permitted under this Agreement shall be deemed to have
been duly given on the date of receipt, and shall be either served personally or
by facsimile to the Party to whom notices are to be given, or mailed to the
Party to whom notices are to be given, by first class registered or certified
mail, return receipt requested, postage prepaid, and addressed to the addressee
at the address stated opposite its name below, or at the most recent address
specified by written notice given to the other Party in the manner provided in
this Section 5(c).
If to Bunge:
Xxxxx North America, Inc.
00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Manager - Biofuels
Facsimile: 000-000-0000
with a copy to:
Xxxxx North America, Inc.
00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
If to SIRE:
Southwest Iowa Renewable Energy, LLC
000 X. Xxx 0, XX Xxx 000
Xxxxxxx, XX 00000-0000
Attn: General Manager
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Husch Xxxxxxxxx Xxxxxxx LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of Missouri (without reference
to conflict of law principles).
(e) Injunctive Relief. In addition to its right to damages and any other
right it may have, each Party hereto shall have the right to obtain injunctive
or other equitable relief to restrain any breach or threatened breach of or
otherwise to specifically enforce this Agreement, it being agreed that money
damages alone would be inadequate to compensate such Party and would be an
inadequate remedy for such breach.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and the Parties hereto may execute this Agreement by signing any
such counterpart.
(g) Publicity. No Party shall, without the approval of the other, make any
press release or other public announcement concerning the existence of this
Agreement or the terms of this Agreement, except as and to the extent such Party
determines that such action is advisable or required by law, in which case the
other Party shall be advised and the Parties shall use their reasonable efforts
to cause a mutually agreeable release or announcement to be issued.
[The remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
Southwest Iowa Renewable Energy, LLC
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: President & CEO
Xxxxx North America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A
OPINION OF HUSCH XXXXXXXXX XXXXXXX LLP
March 7, 0000
Xxxxx Xxxxx Xxxxxxx, Inc.
00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Re: Series E Unit Issuance Agreement, dated March 7, 2008, by and among
Xxxxx North America, Inc. and Southwest Iowa Renewable Energy, LLC
Dear Ladies and Gentlemen:
We have acted as counsel for Southwest Iowa Renewable Energy, LLC, an
Iowa limited liability company ("SIRE"), in connection with the execution of
that certain Series E Unit Issuance Agreement, dated March 7, 2008, by and among
Xxxxx North America, Inc. ("Bunge") and SIRE (the "Transaction Document"). This
opinion is delivered pursuant to Section 4(e) of the Transaction Document.
Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Transaction Document.
Section 1. In rendering this opinion, we have reviewed an original as
signed, or a copy of the original showing signatures and identified to us as a
true copy of the original as signed, of the Transaction Document.
In rendering the following opinions, as to factual matters that affect
our opinions, we have, with your approval, relied on (and assumed the accuracy
of) certificates, statements and other representations of officers of SIRE and
others including certificates of public officials (the "Public Documents"). We
have also reviewed the organizational documents of SIRE, including its Articles
of Organization, Amended and Restated Operating Agreement and such other matters
as we have deemed appropriate to giving the opinions contained herein.
Section 2. Based on the foregoing and in reliance thereon and on the
assumptions and subject to the qualifications and limitations set forth in this
opinion, we are of the opinion that:
2.1 SIRE is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of Iowa with full
limited liability company power and authority to own, lease and operate its
properties and conduct its business, including, without limitation, to issue,
sell and deliver the Series E Units as contemplated by the Transaction Document.
2.2 The Transaction Document has been duly authorized, executed and
delivered by SIRE, and is a valid and binding agreement, enforceable against
SIRE in accordance with its terms.
2.3 The Units to be issued to Bunge by SIRE pursuant to the terms of
the Transaction Document (a) have been duly authorized, and (b) when issued to
Bunge pursuant to the terms of the Transaction Document, (i) after either the
Bunge L/C Bank makes a payment to the Bridge Lender under or in respect of the
Bunge L/C or Bunge makes any payment to the Bridge Lender which reduces amounts
owed by SIRE under or in respect of the Bridge Loan when any such amounts become
due and payable, in each case in accordance with the Transaction Document, and
(ii) after Bunge has provided the L/C Payment Notice in accordance with the
Transaction Document, such Units will be fully paid and non-assessable.
2.4 The execution, delivery and performance by SIRE of the Transaction
Document is not in contravention of or in conflict with any term or provision of
the Articles of Organization and Amended and Restated Operating Agreement of
SIRE or violate and will not violate any provision of any law, statute, rule or
regulation, to our knowledge, presently in effect having applicability to SIRE.
2.5 To the best of our knowledge, the execution, delivery and
performance by SIRE of the Transaction Document will not constitute a material
breach or default under any material agreements to which SIRE is a party.
Section 3. Our opinions are based on the assumptions (upon which we
have relied with your consent) and subject to the qualifications and
limitations, set forth in this letter, including the following:
3.1 We express no opinion as to any laws other than the laws of the
States of Iowa and Missouri. We express no opinion as to the effect on the
Transaction Document of local law which shall include charters, ordinances,
administrative opinions and rules and regulations of cities, counties, towns,
municipalities and special political subdivisions (whether created or enabled
through legislative action at the federal, state or regional level).
3.2 We have assumed for purposes of this opinion that: (a) the parties
to the Transaction Document other than SIRE (the "Other Parties") are duly
organized, validly existing and in good standing with full power and authority
to enter into, execute, deliver and perform the Transaction Document and their
respective obligations thereunder; (b) the Transaction Document has been duly
authorized by the Other Parties and the Other Parties have duly executed and
delivered the Transaction Document to which they are a signatory; (c) the Other
Parties have satisfied those legal requirements that are applicable to each of
them to the extent necessary to make the Transaction Document enforceable
against each of them; (d) the Other Parties have complied with all legal
requirements pertaining to each of their status as such status relates to their
rights to enforce the Transaction Document against SIRE; (e) each natural person
executing the Transaction Document is legally competent; (f) all signatures are
genuine, the Transaction Document submitted to us as original is authentic and
any copies submitted to us conform to the original; (g) the Transaction Document
is complete (including, without limitation, all amendments and exhibits
thereto); (h) any certifications dated prior to closing remain true as of
closing; (i) each Public Document is accurate, complete and authentic and all
official public records are accurate and complete; (j) there has not been any
mutual mistake of fact or fraud,
duress or undue influence; (k) the conduct of the parties to the Transaction
Document has complied with any requirement of good faith, fair dealing and
conscionability; (l) the Other Parties and any agent acting for the Other
Parties in connection with the Transaction Document have acted in good faith and
without notice of any defense against the enforcement of any rights created by,
or adverse claim to any property or security interest transferred or created as
part of, the Transaction Document; (m) there are no agreements or understandings
among the parties, written or oral, and there is no usage of trade or course of
prior dealing among the parties that would, in either case, define, supplement
or qualify the terms of the Transaction Document; (n) all statutes, judicial and
administrative decisions, and rules and regulations of governmental agencies,
constituting the law of the State of Iowa, are generally available (i.e., in
terms of access and distribution following publication or other release) to
lawyers practicing in those states, and are in a format that makes the legal
research reasonably feasible; (o) the constitutionality or validity of a
relevant statute, rule, regulation or agency action is not in issue unless a
reported decision in the State of Iowa has specifically addressed but not
resolved, or has established, its unconstitutionality or invalidity; (p) none of
the Other Parties or SIRE will in the future take any discretionary action
(including a decision not to act) permitted under the Transaction Document that
would result in a violation of law or constitute a breach or default under any
agreement by which it is bound; (q) all Other Parties to the Transaction
Document and SIRE will act in accordance with, and will refrain from taking any
action that is forbidden by, the terms and conditions of the Transaction
Document; and (r) the Other Parties will comply with all requirements of
applicable procedural and substantive law, and will act in good faith and in a
commercially reasonable manner in the exercise of any rights or enforcement of
any remedies under the Transaction Document.
3.3 Our opinions are subject to: (i) the effect of applicable
bankruptcy, insolvency, reorganization, arrangement, moratorium, fraudulent
transfer or fraudulent conveyance and other similar laws affecting creditor's
rights generally and judicially developed doctrines relevant to any of the
foregoing laws, such as substantive consolidation of entities; (ii) limitations
imposed by equitable doctrines, including without limitation, limitations upon
the specific enforceability of provisions of the Transaction Document, concepts
of materiality, reasonableness (including commercial reasonableness of the sale
or disposition of collateral), good faith and fair dealing, and the availability
of injunctive relief or other equitable remedies (regardless whether considered
in a proceeding in equity or at law); and (iii) judicial discretion regarding
the determination of damages and entitlement to attorneys' fees and other costs.
Enforceability of certain provisions purporting to waive the benefits of
statutory provisions or constitutional or common law rights or providing for
indemnification, exculpation or release may be limited or otherwise affected by
limitations based on statutes, case law or public policy. The opinions in this
letter do not include any opinion as to the enforceability of (a) any waiver of
jury trial; (b) any choice of law provision; (c) any choice of forum or choice
of venue provision; (d) a remedy under certain circumstances where another
remedy has been elected; (e) the right of a creditor to use force or cause a
breach of the peace in enforcing rights; (f) any power of attorney; (g) the
provisions of the Transaction Document which release, exculpate or exempt a
party from, or require indemnification of a party for, liability for its own
action or inaction, to the extent the action or inaction involves (I) gross
negligence, recklessness, willful misconduct or unlawful conduct or (II)
negligence to the extent the provisions are insufficiently explicit; and (h) the
balance of the Transaction Document, where parts of the Transaction Document may
be unenforceable under circumstances in which the unenforceable portion is an
essential part of the agreed upon exchange.
3.4 As to matters of fact, we have assumed all representations of SIRE
and the Other Parties in the Transaction Document are true. When an opinion is
stated to be "to the best of our knowledge" or the statement is made that "we
have no knowledge," or other words of similar import appear, the language means
only that we have no actual knowledge to the contrary and does not indicate or
imply any investigation or inquiry, of SIRE or others, on our part, other than
our review of the representations and warranties contained in the Transaction
Document. For this purpose, "we" means only those attorneys within our firm who
have done substantive work on this opinion.
3.5 We express no opinion with respect to the application or effect of
the securities or environmental laws, regulations or codes of the States of Iowa
and Missouri or any other jurisdiction.
3.6 We neither express nor imply any opinion as to the creation,
perfection or priority of any security interest or lien against the real or
personal property of SIRE.
3.7 This opinion is limited to the matters specifically stated in this
letter, and no further opinion is to be implied or may be inferred beyond the
opinions specifically stated herein. Unless otherwise stated herein, we have
made no independent investigation regarding factual matters. This opinion is
based solely on the state of the law as of the date of this opinion, and we
specifically disclaim any obligation to monitor any of the matters stated in
this opinion or to advise the persons entitled to rely on this opinion of any
change in law or fact after the date of this opinion which might affect any of
the opinions stated herein.
This opinion is rendered solely for your benefit in connection with the
execution and delivery by SIRE of the Transaction Document, and may not be
released to or relied upon by any other person or for any other purpose without
our prior written consent.
Yours very truly,
EXHIBIT B
OPINION OF HUSCH XXXXXXXXX XXXXXXX LLP
[date]
Xxxxx North America, Inc.
00000 Xxxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
1. Southwest Iowa Renewable Energy, LLC ("SIRE") has been duly organized and
is validly existing as a limited liability company in good standing under
the laws of the Iowa, with full limited liability company power and
authority to own, lease and operate its properties and conduct its
business, including, without limitation, to issue, sell and deliver the
Series E Units as contemplated by that certain Series E Unit Issuance
Agreement (the "Agreement") dated _____, 2008 between SIRE and Xxxxx North
America, Inc. ("Bunge").
2. The Agreement has been duly authorized, executed and delivered by SIRE.
3. The Units issued to Bunge on the date hereof pursuant to the terms of the
Agreement have been duly authorized and validly issued and, when issued to
Bunge will be fully paid and non-assessable and free of any security
interest, other encumbrance or adverse claim and free of any statutory and
contractual preemptive rights, rights of first refusal and similar rights.
[appropriate terms and conditions]
Capitalized terms used herein without definition shall have the respective
meanings ascribed to them in the Agreement.
