REMARKETING AGREEMENTAdvertising or Marketing Agreement |
|
|
|
You are currently viewing: This Advertising or Marketing Agreement involves
FIRST UNITED ETHANOL LLC | W.R. TAYLOR & COMPANY, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
Search Advertising or Marketing Agreement by:
Exhibit 10.31
REMARKETING AGREEMENT
by and between
FIRST UNITED ETHANOL, LLC
and
W.R. TAYLOR & COMPANY, LLC,
Dated as of October 1, 2006
REMARKETING AGREEMENT
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 $53,500,000 Mitchell
County Development Authority Variable Rate Demand Taxable Economic Development
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.
ARTICLE I
Definitions
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 Wells Fargo Bank, National Association, 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.
ARTICLE II
Remarketing Agent
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.
1
(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
2
(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.
ARTICLE III
Disclosure
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.
ARTICLE IV
General
Section 4.01.
Indemnification of Remarketing Agent.
The
Borrower agrees to indemnify and hold harmless the Remarketing Agent and each
member, trustee, partner, officer, official or employee thereof and any person
who controls the Remarketing Agent within the meaning of the Securities Act of
1933, against any and all losses, claims, damages and liabilities arising out
of (i) the failure to provide to the Remarketing Agent information
concerning the Borrower or the Project which should have been included in a
Disclosure Statement or which would have caused the Remarketing Agent, in the
exercise of its reasonable judgment, to request that the Borrower prepare a
Disclosure Statement, or amend or supplement an existing Disclosure Statement,
for use by the
3
Remarketing Agent in the remarketing of the Bonds or (ii) any statement or information concerning the Borrower or the Project contained in the Disclosure Statement provided pursuant to Section 3.01 hereof that is untrue in any material respect, or the omission therefrom of any information concerning the Borrower or the Project which should be contained therein which is necessary to make the statements therein, in light of the circumstances under which they are made, not misleading in any material respect, and to the extent of the aggregate amount paid in settlement of any litigation commenced or threatened arising from a claim based upon any such untrue statement or omission if such settlement is effected with the written consent of the Borrower; provided that, the Borrower shall not be liable in any case if a court of competent jurisdiction has rendered a final judgment to the effect that the loss, claim, damage or liability has been asserted by a person who purchased one or more Bonds from the Remarketing Agent and resulted solely from the failure of the Remarketing Agent to deliver or cause to be delivered to that person the Disclosure Statement or any amendment or supplement thereto that had been timely prepared and was then available to the Remarketing Agent, and that such delivery to such person would have been a valid and complete defense to the action from which such loss, claim, damage or liability arose. In case any claim shall be made or action brought against the Remarketing Agent or any indemnified person (as aforesaid) in respect of which indemnity may be sought against and the Borrower, the Remarketing Agent shall promptly notify the Borrower in writing, setting forth the particulars such claim or action, and the Borrower shall assume the defense thereof including the retaining of counsel (who shall be reasonably satisfactory to the Remarketing Agent) and the payment, as incurred, of all expenses reasonably incurred by the Remarketing Agent or such other indemnified person; provided, however, that if the Remarketing Agent is advised in an opinion of counsel that there may be legal defenses available to the Remarketing Agent which are adverse to or in conflict with those available to the Borrower, or that the defense of the Borrower should be handled by separate counsel, the Borrower shall not assume such defense of the Remarketing Agent, the Borrower shall be responsible for the payment, as incurred, of the reasonable fees and expenses of counsel retained by the Remarketing Agent in assuming its own defense and for all other expenses reasonably incurred by the Remarketing Agent in connection with such defense, and provided also that if the Borrower shall have failed to assume the defense of such action or to retain counsel reasonably satisfactory to the Remarketing Agent within a reasonable time after notice of the commencement of such action, the reasonable fees and expenses of counsel retained by the Remarketing Agent and all other expenses reasonably incurred by the Remarketing Agent in connection with such defense shall be paid, as incurred, by the Borrower. Notwithstanding, and in addition to, any of the foregoing, the Remarketing Agent or any such indemnified person (as aforesaid) shall have t






