FIRST UNITED ETHANOL, LLC
W.R. TAYLOR & COMPANY,
LLC,
Dated as of October 1,
2006
This REMARKETING
AGREEMENT, dated as of October 1, 2006 (the “Remarketing
Agreement”), is by and between First United Ethanol, LLC (the
“Borrower”) and W.R. Taylor & Company, LLC
(“Taylor”), as the remarketing agent (the
“Remarketing Agent”), and is entered into in connection
with $29,000,000 Mitchell County Development Authority Variable
Rate Demand Solid Waste Disposal Revenue Bonds (First United
Ethanol, LLC Project), Series 2006 (the “Bonds”),
issued by the Mitchell County Development Authority (the
“Issuer”) for the benefit of the Borrower.
Section 1.01.
Capitalized Terms .
Capitalized terms
used in this Remarketing Agreement, unless otherwise defined
herein, shall have the meanings assigned to them in the Trust
Indenture (“Indenture”) dated as of October 1,
2006, between the Issuer and [ ], as trustee (the
“Trustee”).
Section 1.02.
Rules of Interpretation .
(a) This
Remarketing Agreement shall be interpreted in accordance with and
governed by the laws of the State of Georgia.
(b) The words
“herein” and “hereof” and words of similar
import, without reference to any particular Article, Section or
subsection, refer to this Remarketing Agreement as a whole rather
than to any particular Article, Section or subsection
hereof.
(c) The
headings of Articles and Sections herein are for convenience only
and shall not affect the construction hereof.
Section 2.01.
Remarketing Agent’s Acceptance and Qualification
.
(a) Taylor
hereby accepts the appointment pursuant to the Indenture of Taylor
to be the Remarketing Agent for the Bonds.
(b) Taylor
hereby represents that it is a member of the National Association
of Securities Dealers, Inc., and is authorized to perform all of
the duties of the Remarketing Agent imposed by the Indenture and
this Remarketing Agreement.
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(c) The
Remarketing Agent shall have the right in its sole discretion to
refuse to remarket the Bonds (i) if any Event of Default under
the Indenture or the Agreement shall have occurred and be
continuing, (ii) if any Event of Default under the
Reimbursement Agreement shall have occurred and be continuing which
gives the Bank the right to exercise any of the remedies referred
to in Article 13 of the Reimbursement Agreement, or
(iii) if the Bank’s obligations to pay under the Letter
of Credit or to purchase or redeem Bonds under the Reimbursement
Agreement shall have been suspended or terminated (or notice of
such suspension or termination given) and no Alternate Letter of
Credit shall have been issued and delivered to the Trustee and then
be in effect, or (iv) if it shall have determined in its sole
discretion, after consultation with its counsel, that a Disclosure
Statement (as defined in Section 3.01 hereof), or an amendment
or supplement thereto, is required for distribution to prospective
purchasers and that such a Disclosure Statement or an amendment or
supplement thereto, is not available, or if available, is not
reasonably satisfactory to it and its counsel in form or substance,
or (v) if it shall receive (x) an opinion of its counsel,
after consultation with Bond Counsel, that a substantial legal
basis exists upon which the exclusion of interest on the Bonds from
gross income of the owner can be challenged, or (y) an opinion
of its counsel that a substantial legal basis exists upon which
either the exemption from registration of the Bonds, the
Reimbursement Agreement or the Letter of Credit, either
individually or collectively, under the Securities Act of 1933, as
amended, or the exemption from qualification of the Indenture under
the Trust Indenture Act of 1939, as amended, can be
challenged.
(d) Nothing
contained herein or in the Indenture shall be construed to obligate
Taylor to purchase, sell, hold or deal in the Bonds as a principal.
Taylor shall not be required to use any of its own funds, or
otherwise incur financial liability, in carrying out its duties
hereunder; provided, however, that Taylor may, at its sole
discretion, purchase, sell, hold or deal in the Bonds for its own
account.
Section 2.02.
Remarketing Agent’s Obligations .
The Remarketing
Agent, shall:
(a) hold all
moneys delivered to it as Remarketing Agent for the purchase of
Bonds, in remarketing transactions pursuant to the Indenture, as
agent and bailee of, and in escrow for the benefit of, (i) the
person or entity which has so delivered those moneys, until the
Bonds purchased with those moneys have been delivered to or for the
account of that person or entity and (ii) thereafter, the person or
entity which has so tendered the Bonds for purchase until those
moneys have been delivered to or for the account of that person or
entity;
(b) keep such
books and records with respect to its activities as Remarketing
Agent hereunder as is consistent with prudent industry practice,
which books and records shall be available for inspection, upon
reasonable notice, by the Trustee and the Borrower;
(c) subject
to Section 2.01(c) hereof, use its best efforts to remarket
Bonds tendered for purchase pursuant to the Indenture (whether at
the option of the owners thereof or pursuant to mandatory tender
for purchase);
(d) (i) determine
the Variable Rate in accordance with the provisions therefor in the
form of Bond and the Indenture, (ii) determine the Fixed
Interest Rate in accordance with the provisions therefor in
Section 4.02 of the Indenture and the form of Bond, and
(iii) give notice to the Tender Agent, the Borrower and the
Trustee of such rates and the terms in accordance with the
provisions therefor in the form of Bond and the Indenture;
and
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(e) assume
all other obligations, duties and rights of the Remarketing Agent
in accordance with the Indenture, including, in particular,
Article III, Article IV, Section 10.11, and Section
10.12 thereof.
Section 3.01.
Provision of Disclosure Materials .
If the Remarketing
Agent determines that it is necessary or desirable to use a
disclosure statement (a “Disclosure Statement”) in
connection with any remarketing of Bonds, the Remarketing Agent
will so notify the Borrower. The Borrower agrees to provide for the
use of the Remarketing Agent in connection with remarketing of the
Bonds a Disclosure Statement reasonably satisfactory to the
Remarketing Agent. The Borrower agrees to supply to the Remarketing
Agent such number of copies of the Disclosure Statement and
documents related thereto as are reasonably requested from time to
time by the Remarketing Agent and further agrees to amend the
Disclosure Statement (and/or any documents incorporated by
reference therein) so that at all times the Disclosure Statement
and documents related thereto will not contain any untrue statement
of a material fact relating to the Borrower or the Project or omit
to state a material fact relating to the Borrower or the Project
necessary to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading. The
Borrower agrees to promptly advise the Remarketing Agent of any
information concerning any event with respect to the Borrower which
may be required to be included in a Disclosure Statement or an
amendment or supplement thereto. In addition, the Borrower agrees
to take all steps, at their own expense, reasonably requested by
the Remarketing Agent to (a) either (i) register the
Bonds for sale under the applicable federal or state securities
laws or to qualify the Indenture under the Trust Indenture Act of
1939, as amended, if required, or (ii) cause the Bonds
required to be so registered to cease to be outstanding within the
meaning of the Indenture and to cause the Indenture required to be
so qualified to be discharged in accordance with its terms, or
(b) enable the Remarketing Agent to establish a “due
diligence” defense to any action commenced against the
Remarketing Agent in respect of a Disclosure Statement.
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