IRREVOCABLE CONFIRMATION NO.
SE446848W
$53,500,000
Mitchell County Development Authority
Variable Rate Demand Taxable Economic Development
Revenue Bonds, Series 2006
(First United Ethanol, LLC Project)
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November 30, 2006
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November 30, 2007
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To:
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Wells Fargo
Bank, National Association
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Corporate
Trust Department
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1300 SW
Fifth Avenue, 11 th Floor
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MAC
P6101-114
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Portland, OR
97201
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We hereby confirm
at the request of and for the account of Southwest Georgia Farm
Credit, ACA, a federally chartered instrumentality organized and
existing under the laws of the United States of America (the
“LOC Bank”), the Letter of Credit
No. 050-011-574509-01 issued by the LOC Bank on
November 30, 2006 as extended from time to time (as amended,
modified or supplemented from time to time, the “Letter of
Credit”). We hereby irrevocably authorize Wells Fargo Bank,
National Association, as Trustee (the “Trustee”) under
the terms and conditions more fully set forth in Trust Indenture,
dated as of October 1, 2006 (as amended, modified or
supplemented from time to time, the “Indenture”), by
and between the Mitchell County Development Authority (the
“Issuer”) and the Trustee, pursuant to which
$53,500,000 in aggregate principal amount of the Issuer’s
Variable Rate Demand Taxable Economic Development Revenue Bonds,
Series 2006 (First United Ethanol, LLC Project) (the
“Bonds”) were issued by the Issuer, $53,500,000
principal amount of which are currently outstanding, to draw on us
at sight up to a maximum aggregate amount of Fifty Five Million
Ninety-Seven Thousand Six Hundred Seventy-One Dollars and Twenty
Four Cents ($55,097,671.24) (the “Stated Amount”), upon
the terms and conditions hereinafter set forth, in the event that
the Trustee’s drawing presented to the LOC Bank is dishonored
(“dishonored draw”) for the reasons indicated below. Of
the Stated Amount:
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(1)
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an
amount not exceeding fifty three million five hundred thousand
dollars ($53,500,000) may be drawn upon for payment of the unpaid
principal amount of the Bonds (the “Principal
Portion”); and
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(2)
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an
amount not exceeding One Million Five Hundred Ninety-Seven Thousand
Six Hundred Seventy-One Dollars and Twenty Four Cents
($1,597,671.24) may be drawn upon for the payment of up to one
hundred and nine days (109) days’ accrued interest on
the Bonds at the maximum interest rate of ten percent (10%)
calculated on the basis of the actual number of days elapsed over a
year of 365 or 366 days, as applicable (the “Interest
Portion”), all effective immediately and expiring on the
Stated Expiration Date set forth above. This Confirmation is
irrevocable.
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In the event a
properly made request for a draw under the Letter of Credit is
dishonored by the LOC Bank (other than a dishonored draw due to
discrepant documents presented), or prior to a properly made draw
request to the LOC Bank you have knowledge that the LOC Bank or any
governmental authority having jurisdiction over the LOC Bank has
repudiated the Letter of Credit (any such event described above, a
“Dishonored Draw”), you shall be entitled to make a
draw hereunder as provided below.
Funds under this
Confirmation are available to the Trustee against its sight draft
presented to Wachovia Bank, National Association, in the form
attached hereto as Exhibit A , accompanied by a
Certificate in the form attached hereto as Exhibit B,
each signed by a duly authorized officer or signer of the Trustee
and accompanied by a copy of any draft and certificate submitted
(or, if the Letter of Credit has been repudiated, which would have
been submitted) to the LOC Bank for payment and refused.
Presentation of such draft and certificate shall be made at our
offices located at: Wachovia Bank, National Association, 401 Linden
Street 1st Floor Winston-Salem, North Carolina 27101 Attention:
Standby Letter of Credit Department. Any draws made by facsimile
will be made to (336) 735-0950/ 0952 and will be promptly
followed by an original, executed draft and certificate to our
offices (such draft and certificate shall provide the date when its
facsimile copy was sent to us). We will honor drawings hereunder
with our own funds.
Drafts drawn under
and in compliance with the terms of this Confirmation must be
presented to us before the close of business on the Stated
Expiration Date; provided, however, that this Confirmation shall be
automatically renewed without amendment for successive one
(1) year periods from the Stated Expiration Date and each
successive expiration date thereafter (each an “Expiration
Date”) to a final Expiration Date of November 30, 2013,
unless at least sixty (60) days prior to the applicable
Expiration Date we shall notify the Trustee by certified mail,
return receipt requested or courier mail, that we are not renewing
this Confirmation for any additional period. Notwithstanding the
foregoing, this Confirmation shall be renewed only (a) upon
the renewal of the Letter of Credit and (b) to an Expiration
Date which is not later than the scheduled expiration date of the
renewed Letter of Credit.
Multiple draws are
not permitted under this Confirmation.
As used herein,
“Business Day” means any day other than (1) a
Saturday or Sunday, (2) a day on which commercial banks in
(a) New York, New York, or (b) the city or cities in
which the (i) corporate trust office of the Trustee responsible for
administration of the Indenture, or (ii) the office of the LOC
Bank or our office at which demands for payment under the Letter of
Credit or this Confirmation, respectively, are to be presented, or
(iii) our branch through which we wire funds, are authorized
or required by law to close or (3) a day on which the New York
Stock Exchange is closed.
If a drawing is
made by the Trustee hereunder on a Business Day, and provided that
such drawing and the documents presented in connection therewith
conform to the terms and conditions hereof and are presented at
such office at or
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