FOURTH AMENDMENT TO ACCOUNTS AGREEMENT
Exhibit 10.1
EXECUTION COPY
FOURTH AMENDMENT TO ACCOUNTS AGREEMENT
This FOURTH AMENDMENT TO ACCOUNTS AGREEMENT, dated as of June 7, 2010 (this
“Agreement”), is by and among SOUTHWEST GEORGIA ETHANOL, LLC, a Georgia limited liability
company (the “Borrower”), WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the
Lenders (the “Administrative Agent”), WESTLB AG, NEW YORK BRANCH, as Collateral Agent for
the Senior Secured Parties (the “Collateral Agent”) and AMARILLO NATIONAL BANK, in its
capacity as the accounts bank and the securities intermediary (the “Accounts Bank”) under
the Accounts Agreement, dated as of November 20, 2007 (as amended, restated, supplemented or
otherwise modified from time to time through the date hereof, the “Accounts Agreement”),
among the Borrower, the Collateral Agent, the Administrative Agent, and the Accounts Bank.
WHEREAS, pursuant to the Senior Credit Agreement, dated as of November 20, 2007 (as amended,
restated, supplemented or otherwise modified from time to time through the date hereof, the
“Credit Agreement”), among the Borrower, each of the lenders from time to time party
thereto (the “Lenders”), the Administrative Agent, the Collateral Agent and WestLB AG, New
York Branch, as sole lead arranger, bookrunner and syndication agent, the Lenders agreed to make a
credit facility available to the Borrower, subject to the terms and conditions set forth therein;
and
WHEREAS, the Borrower has requested amendments to certain provisions of the Accounts Agreement
as further described below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in the
Credit Agreement, the Accounts Agreement and herein, and other good and valuable consideration the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Accounts Agreement.
2. Amendments to the Accounts Agreement.
| (a) | Section 6.01(b)(v) (Withdrawals from the Revenue Account) of the Accounts Agreement is hereby deleted and replaced with the following: |
“fifth,
(i) on any date when required pursuant to Section 3.10(a)(v) (Mandatory
Prepayment) of the Credit Agreement, to the Administrative Agent in the
amount certified by the Borrower in such Revenue Account Withdrawal
Certificate or otherwise instructed in writing to the Accounts Bank by the
Administrative Agent, for application as a prepayment of the Working Capital
Loans; and
(ii) after giving effect to clause (i) of this priority fifth, on
any date at the option of the Borrower pursuant to and to the extent
permitted by Section 3.09(a) (Optional Prepayment) of the Credit Agreement,
to the Administrative Agent in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate, for application as a prepayment of
the Working Capital Loans;”
| (b) | Section 6.01(b)(vi) (Withdrawals from the Revenue Account) of the Accounts Agreement is hereby deleted and replaced with the following: |
“sixth, on each Quarterly Payment Date to pay to the Administrative Agent,
for the account of the Senior Secured Parties, on a pro rata
basis, the amount certified by the Borrower in such Revenue Account
Withdrawal Certificate or otherwise instructed in writing to the Accounts
Bank by the Administrative Agent as (A) principal amounts due and payable
with respect to the Loans or (B) payments of Swap Termination Value then due
and payable by the Borrower with respect to any Interest Rate Protection
Agreements;”
| (c) | Section 6.01(b)(viii) (Withdrawals from the Revenue Account) of the Accounts Agreement is hereby deleted and replaced with the following: |
“eighth,
(i) on any Monthly Date, to the Administrative Agent in the amount certified
by the Borrower in such Revenue Account Withdrawal Certificate, or otherwise
instructed in writing to the Accounts Bank by the Administrative Agent, as
equal to the excess on such date of (x) the outstanding principal amount of
the Working Capital Loans plus the aggregate Maximum Available Amounts under
the outstanding Letters of Credit over (y) the Working Capital Loan
Commitment or the Working Capital Loan Available Amount, for application as
a prepayment of the Working Capital Loans; provided that on and after
September 30, 2011 payments under this clause (i) shall be made after any
payments required to be made by Section 7.01(w) (Debt Service
Reserve) of the Credit Agreement pursuant to clause (ii) of this
priority eighth; and
(ii) on each Monthly Date, to the Debt Service Reserve Account, in the
amount certified by the Borrower in such Revenue Account Withdrawal
Certificate or otherwise instructed in writing to the Accounts Bank by the
Administrative Agent as equal to the difference between (A) the Debt Service
Reserve Required Amount and (B) the funds on deposit in or standing to the
credit of the Debt Service
Reserve Account (including the Stated Amount of any Debt Service Reserve
Letter of Credit) on such Monthly Date;”
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| (d) | Section 6.01(b)(xiii) (Withdrawals from the Revenue Account) of the Accounts Agreement is hereby deleted and replaced with the following: |
“thirteenth,
(i) on each Quarterly Payment Date, (A) if the Historical Debt Service
Coverage Ratio as of such Quarterly Payment Date is less than 1.5:1.0, to
the Administrative Agent, all amounts on deposit in or standing to the
credit of the Revenue Account after the transfer required to be made
pursuant to priority twelfth, for application as a prepayment of the
Term Loans in accordance with Section 3.10(c) (Mandatory Prepayment) of the
Credit Agreement, as certified by the Borrower in such Revenue Account
Withdrawal Certificate or instructed in writing to the Accounts Bank by the
Administrative Agent, or (B) if the Historical Debt Service Coverage Ratio
as of such Quarterly Payment Date is greater than or equal to 1.5:1.0 and
the Prospective Debt Service Coverage Ratio as of such Quarterly Payment
Date is less than 1.5:1.0, as certified by the Borrower in such Revenue
Account Withdrawal Certificate or instructed in writing to the Accounts Bank
by the Administrative Agent, to the Prepayment Holding Account, all amounts
on deposit in or standing to the credit of the Revenue Account after the
transfer required pursuant to priority twelfth; and
(ii) after giving effect to clause (i) of this priority thirteenth
and to the extent funds are available in the Revenue Account, on any
Quarterly Payment Date on which the Borrower intends to make a Restricted
Payment or a payment pursuant to priority fourteenth, and on the
Final Maturity Date, to the Administrative Agent, for the account of the
Senior Secured Parties, in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate as necessary to pay Permitted
Interest Premium Amount payable in respect of the immediately preceding
Quarterly Period;”
| (e) | Section 6.01(b)(xv) (Withdrawals from the Revenue Account) of the Accounts Agreement is hereby deleted and replaced with the following: |
“fifteenth,
(i) to the fullest extent permitted by the terms of the Intercreditor
Agreement and to the extent funds are available in the Revenue Account, on
any Quarterly Payment Date on which the Borrower
intends to make a Restricted Payment and on the Final Maturity Date, to the
Administrative Agent, for the account of the Senior Secured Parties, in the
amount certified by the Borrower in such Revenue Account Withdrawal
Certificate as necessary to pay any accrued and unpaid Interest Premium; and
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(ii) after giving effect to clause (i) of this priority fifteenth,
subject to the satisfaction of the conditions set forth in Section 7.02(s)
(Negative Covenants—Restricted Payments) of the Credit Agreement, on, or
within thirty (30) days following, each Quarterly Payment Date, as and in
the amount certified by an Authorized Officer of the Borrower in a
Restricted Payment Certificate.”
| (f) | Exhibit C to the Accounts Agreement is hereby deleted and replaced with Exhibit A hereto. |
| (g) | Exhibit D to the Accounts Agreement is hereby deleted and replaced with Exhibit B hereto. |
3. Conditions to Effectiveness. This Agreement shall become effective as of the date of
the execution and delivery of a counterpart hereof by each of the Borrower, the Administrative
Agent, the Accounts Bank and the Collateral Agent.
4. Certification by the Borrower. This Agreement is made in reliance on the Borrower’s
certifications that (a) as of the date hereof, no Default or Event of Default that has not been
waived pursuant to the Credit Agreement has occurred and is continuing under the Credit Agreement,
and (b) all of the representations and warranties contained herein and in each other Financing
Document are true and correct in all respects, except to the extent that such representations or
warranties expressly relate solely to an earlier date.
5. Effect on Accounts Agreement. Except as expressly amended hereby or otherwise provided
herein, all of the terms and conditions of the Accounts Agreement and all other Financing Documents
remain in full force and effect, and none of such terms and conditions are, or shall be construed
as, otherwise amended or modified. The Accounts Agreement shall, together with the amendments set
forth herein, be read and construed as a single agreement. All references in the Accounts
Agreement and any documents, instruments and agreements related to it, shall hereafter refer to the
Accounts Agreement, as amended hereby.
6. Authority; Etc. The execution and delivery by the Borrower of this Agreement and the
performance by the Borrower of all of its agreements and obligations under the Accounts Agreement
as amended hereby are within its organizational authority and have been duly authorized by all
necessary organizational action on the part of, and this Agreement has been duly and validly
executed by, the Borrower.
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7. Miscellaneous.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(b) Section headings in this Agreement are included herein for convenience of reference only
and shall not constitute a part of this Agreement or the Accounts Agreement for any other purpose
or be given any substantive effect.
(c) The Borrower and the Administrative Agent acknowledge and agree that this Agreement is a
Financing Document.
(d) This Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered shall be deemed an
original, but all of which counterparts together shall constitute but one and the same instrument.
(e) Delivery of an executed counterpart of a signature page of this Agreement by telecopy or
portable document format shall be effective as delivery of a manually executed counterpart of this
Agreement.
[Remainder of page intentionally blank. Next page is signature page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers as of the day and year first above written.
| SOUTHWEST GEORGIA ETHANOL, LLC, as Borrower |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||
| Title: | Chief Financial Officer | |||
| WESTLB AG, NEW YORK BRANCH, as Administrative Agent |
||||
| By: | /s/ ▇. ▇▇▇▇▇ Min | |||
| Name: | ▇. ▇▇▇▇▇ Min | |||
| Title: | Managing Director | |||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | |||
| Title: | Director | |||
| WESTLB AG, NEW YORK BRANCH, as Collateral Agent |
||||
| By: | /s/ ▇. ▇▇▇▇▇ Min | |||
| Name: | ▇. ▇▇▇▇▇ Min | |||
| Title: | Managing Director | |||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇▇ | |||
| Title: | Director | |||
| AMARILLO NATIONAL BANK, as the Accounts Bank |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Executive Vice President | |||
Signature Page to Fourth Amendment to Accounts Agreement
EXHIBIT A
EXHIBIT C
to Accounts Agreement
to Accounts Agreement
[FORM OF]
REVENUE ACCOUNT WITHDRAWAL CERTIFICATE
REVENUE ACCOUNT WITHDRAWAL CERTIFICATE
Date: [________]
AMARILLO NATIONAL BANK, as Accounts Bank
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President
Reference is made to Section 6.01(b) of the Accounts Agreement dated as of
November 20, 2007 (the “Accounts Agreement”), by and among SOUTHWEST GEORGIA ETHANOL,
LLC, as Borrower (the “Borrower”), AMARILLO NATIONAL BANK, as Accounts Bank (the
“Accounts Bank”) and Securities Intermediary, WESTLB AG, NEW YORK BRANCH, as Collateral
Agent for the Senior Secured Parties and WESTLB AG, NEW YORK BRANCH, as Administrative Agent for
the Lenders. Capitalized terms used herein but not otherwise defined herein shall have the
respective meanings set forth in the Accounts Agreement.
The Borrower hereby directs the Accounts Bank to withdraw and transfer, from the account
entitled Revenue Account, No. 129992 (the “Revenue Account”), on [_____], 20[_____] (the
“Revenue Account Withdrawal Date”), the following amounts: [Note: each Revenue Account
Withdrawal Certificate should only list the priorities that are relevant on such Revenue Account
Withdrawal Date.]
(i) in accordance with priority first of Section 6.01(b) of the Accounts
Agreement, [_____] Dollars ($[_____]) to the Operating Account;
(ii) in accordance with priority second of Section 6.01(b) of the
Accounts Agreement, [_____]Dollars ($[_____]) to the Maintenance Capital Expense Account;
(iii) in accordance with priority third of Section 6.01(b) of the Accounts
Agreement, [_____]Dollars ($[_____]) to the Administrative Agent, for the account of the Senior Secured Parties, for
payment of Fees, costs and expenses due and payable under the Financing Documents;
(iv) in accordance with priority fourth of Section 6.01(b) of the Accounts Agreement, to the
Administrative Agent, for the account of the Senior Secured Parties, (A) [_____] Dollars ($[_____])
for payment of interest due and payable under the Financing
Documents and (B) [_____] Dollars ($[_____]) for payment of fees, expenses and Net Swap
Payments owing to Interest Rate Protection Providers;
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(v) in accordance with priority fifth of Section 6.01(b) of the Accounts
Agreement, [_____] Dollars ($[_____]) to the Administrative Agent, for the account of the Working Capital Lenders, as a
payment of the Working Capital Loans;
(vi) in accordance with priority sixth of Section 6.01(b) of the Accounts
Agreement, [_____] Dollars ($[_____]) to the Administrative Agent for the account of the Construction/Term Lenders, to
pay principal amounts due and payable with respect to the Term Loans, [_____] Dollars ($[_____]) to
the Administrative Agent for the account of the Working Capital Lenders, to pay principal amounts
due and payable with respect to the Working Capital Loans, and [_____] Dollars ($[_____]) to the
Administrative Agent for the account of the Interest Rate Protection Providers, to pay Swap
Termination Value then due and payable by the Borrower with respect to any Interest Rate Protection
Agreements;
(vii) in accordance with priority seventh of Section 6.01(b) of the Accounts Agreement,
[_____] Dollars ($[_____]) to the Working Capital Reserve Account;
(viii) in accordance with priority eighth of Section 6.01(b) of the Accounts Agreement,
[_____] Dollars ($[_____]) to the Debt Service Reserve Account and[_____] Dollars ($[_____]) to the
Administrative Agent for the account of the Working Capital Lenders, to pay principal amounts due
and payable with respect to the Working Capital Loans;
(ix) in accordance with priority ninth of Section 6.01(b) of the Accounts
Agreement, [_____] Dollars ($[_____]) to the Second Lien Agent, for the account of the Second Lien Claimholders, as
Current Priority Subordinated Interest;
(x) in accordance with priority tenth of Section 6.01(b) of the Accounts
Agreement, [_____] Dollars ($[_____]) to the Administrative Agent for application as a prepayment of the Term Loans in
accordance with Section 3.10(b) (Mandatory Prepayment) of the Credit Agreement;
(xi) in accordance with priority eleventh of Section 6.01(b) of the Accounts Agreement,
[_____] Dollars ($[_____]) to [insert name of relevant taxing authority(ies) or Affiliate(s)] for
payment of a Permitted Tax Distribution;
(xii) in accordance with priority twelfth of Section 6.01(b) of the Accounts Agreement,
[_____] Dollars ($[_____]) to the Administrative Agent for application as a prepayment of the Term
Loans in accordance with Section 3.10(b) (Mandatory Prepayment) of the Credit Agreement;
(xiii) in accordance with priority thirteenth of Section 6.01(b) of the Accounts Agreement,
[_____] Dollars ($[_____])[to the Administrative Agent for application as a prepayment of the Term
Loans in accordance with Section 3.10(c) (Mandatory Prepayment) of the Credit Agreement] [to the
Prepayment Holding Account] and [_____] Dollars ($[_____]) to the Administrative Agent for
application as a payment of Permitted Interest Premium Amount in accordance with Section 3.06(c) of
the Credit Agreement;
(xiv) in accordance with clause (i) of priority fifteenth of Section 6.01(b) of the Accounts
Agreement, [_____] Dollars ($[_____]) to the Administrative Agent for application as a payment of
Interest Premium in accordance with Section 3.06(c) of the Credit Agreement.
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In support of such direction, the undersigned, on behalf of the Borrowers, hereby represents
and certifies, as of the date hereof and as of the Revenue Account Withdrawal Date, as follows:
(a) [in the case of transfers pursuant to priority first of Section 6.01(b) of the Accounts
Agreement, (i) the amounts to be transferred are required to pay Operation and Maintenance Expenses
that, in each such case are then due and payable, and (ii) the aggregate amount of withdrawals
(other than for amounts to pay Operation and Maintenance Capital Expenses for the cost of corn and
natural gas) pursuant to priority first of Section 6.01(b) of the Accounts Agreement, for the then
current calendar month, including amounts proposed to be drawn on such date, does not exceed the
Permitted Budgeted Operating Expenses Levels for such calendar month;]
(b) [in the case of transfers pursuant to priority second of Section 6.01(b) of the Accounts
Agreement, (i) the amounts to be transferred are necessary to pay Maintenance Capital Expenses
that, in each such case, are or will become due and payable during the immediately succeeding
calendar month, and (ii) such transfer has been approved by the Independent Engineer if (A) such
Maintenance Capital Expenses are incurred or to be incurred for compliance with any Environmental
Law or other applicable Law and (I) would exceed five hundred thousand Dollars ($500,000) or (II)
together with all previous transfers to the Maintenance Capital Expense Account pursuant to this
clause (A) during the current Fiscal Year, would exceed, in the aggregate, one million Dollars
($1,000,000) or (B) such Maintenance Capital Expenses are for any other purpose and, taken together
with all previous transfers to the Maintenance Capital Expense Account pursuant to this clause (B)
during the current Fiscal Year, would exceed, in the aggregate, five hundred thousand Dollars
($500,000);]
(c) [in the case of transfers pursuant to priority third of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer is the amount necessary to pay Fees, costs and expenses due
and payable under the Financing Documents;]
(d) [in the case of transfers pursuant to priority fourth of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer is the amount necessary to pay interest due and payable
under the Financing Documents and any fees, expenses or Net Swap Payments owing to any Interest
Rate Protection Provider;]
(e) [in the case of transfers pursuant to priority fifth of Section 6.01(b) of the Accounts
Agreement, such amount [is to be transferred to the Administrative Agent to be applied as a
mandatory prepayment of Working Capital Loans pursuant to Section 3.10(a)(v) (Mandatory
Prepayments) of the Credit Agreement][is to be transferred to the Administrative Agent to be
applied as an optional prepayment of the Working Capital Loans pursuant to Section 3.09(d)(ii)
(Optional Prepayments) of the Credit Agreement and such transfer is permitted by Section 3.09(a)
(Optional Prepayment) of the Credit Agreement];]
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(f) [in the case of a transfer pursuant to priority sixth of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer is equal to [the principal amounts due and payable with
respect to the Term Loans [plus the principal amounts due and payable with respect to the Working
Capital Loans] [plus Swap Termination Value then due and payable by the Borrower with respect to
any Interest Rate Protection Agreements];]
(g) [in the case of a transfer pursuant to priority seventh of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer is equal to the difference between (i) the Working Capital
Reserve Required Amount and (ii) the funds on deposit in or standing to the credit of the Working
Capital Reserve Account on such Revenue Account Withdrawal Date;]
(h) [in the case of a transfer pursuant to clause (i) of priority eighth of Section 6.01(b) of
the Accounts Agreement, the amount of such transfer is equal to the excess on such Revenue Account
Withdrawal Date of (x) the outstanding principal amount of the Working Capital Loans plus the
aggregate Maximum Available Amounts under the outstanding Letters of Credit over (y) the Working
Capital Loan Commitment or the Working Capital Loan Available Amount;] [in the case of a transfer
pursuant to clause (ii) of priority eighth of Section 6.01(b) of the Accounts Agreement, the amount
of such transfer is equal to the difference between (A) the Debt Service Reserve Required Amount
and (B) the funds on deposit in or standing to the credit of the Debt Service Reserve Account
(including the Stated Amount of any Debt Service Reserve Letter of Credit) on such Revenue Account
Withdrawal Date;]1
(i) [in the case of a transfer pursuant to priority ninth of Section 6.01(b) of the Accounts
Agreement, no Default or Event of Default has occurred and is continuing, and the amount of such
transfer equals Current Priority Subordinated Interest for the Quarterly Period ending on such
Quarterly Payment Date;]
(j) [in the case of a transfer pursuant to priority tenth of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer equals fifty percent (50%) of the cash remaining in the
Revenue Account after the transfer required (if any) pursuant to priority ninth of Section 6.01(b)
of the Accounts Agreement;]
(k) [in the case of a transfer pursuant to priority eleventh of Section 6.01(b) of the
Accounts Agreement, no Default or Event of Default has occurred and is continuing and such transfer
is for a Permitted Tax Distribution;]
(l) [in the case of a transfer pursuant to priority twelfth of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer equals the amount which, after giving
effect to the transfer thereof, will cause the then-outstanding principal amount of the Term
Loans to equal to the Target Balance Amount for such Quarterly Payment Date;]
| 1 | On and after September 30, 2011, payments under clause (i) of priority eighth shall be made after any payments required to be made pursuant to clause (ii) of priority eighth |
C-4
(m) [in the case of a transfer pursuant to clause (i) of priority thirteenth of Section
6.01(b) of the Accounts Agreement, [the Historical Debt Service Coverage Ratio as of such Quarterly
Payment Date is less than 1.5:1.0][the Historical Debt Service Coverage Ratio as of such Quarterly
Payment Date is greater than or equal to 1.5:1.0 and the Prospective Debt Service Coverage Ratio as
of such Quarterly Payment Date is less than 1.5:1.0], and the amount of such transfer equals all
amounts on deposit in or standing to the credit of the Revenue Account after the transfer required
to be made pursuant to priority twelfth of Section 6.01(b) of the Accounts Agreement] [in the case
of a transfer pursuant to clause (ii) of priority thirteenth of Section 6.01(b) of the Accounts
Agreement, the amount of such transfer is the amount necessary to pay Permitted Interest Premium
Amount payable in respect of the immediately preceding Quarterly Period]2;
(n) [in the case of a transfer pursuant to clause (i) of priority fifteenth of Section 6.01(b)
of the Accounts Agreement, the amount of such transfer is the amount necessary to pay all accrued
and unpaid Interest Premium permitted by the terms of the Intercreditor Agreement to be paid on the
Revenue Account Withdrawal Date]3;
(o) the undersigned is an Authorized Officer of the Borrower;
(p) this Post-Conversion Revenue Account Withdrawal Certificate is being delivered to the
Accounts Bank not later than 2:00 p.m. Eastern time on the Revenue Account Withdrawal Date, and the
Revenue Account Withdrawal Date is a [Business Day4] [Monthly Date5]
[Quarterly Payment Date6];
(q) all conditions set forth in the Accounts Agreement for the withdrawals requested hereby
have been satisfied; and
(r) on the date hereof, [the Conversion Date has occurred,]7 no Notice of
Suspension is in effect and no Default or Event of Default would occur after giving effect to any
application of funds contemplated hereby.
| 2 | Applies to transfers on any Quarterly Payment Date on which the Borrower intends to make a Restricted Payment or a payment pursuant to priority fourteenth, and on the Final Maturity Date. | |
| 3 | Applies to transfers on any Quarterly Payment Date on which the Borrower intends to make a Restricted Payment and on the Final Maturity Date. | |
| 4 | Applies to transfers pursuant to priorities first, third, fourth and fifth of Section 6.01(b) of the Accounts Agreement. | |
| 5 | Applies to transfers pursuant to priorities, second, seventh and eighth of Section 6.01(b) of the Accounts Agreement. | |
| 6 | Applies to transfers pursuant to priorities sixth, ninth, tenth, eleventh, twelfth and thirteenth of Section 6.01(b) of the Accounts Agreement. | |
| 7 | Applies to all transfers except pursuant to priorities first, third and fourth of Section 6.01(b) of the Accounts Agreement. |
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The undersigned is executing this Revenue Account Withdrawal Certificate not in an individual
capacity but as an Authorized Officer of the Borrower.
[The remainder of this page is intentionally blank. The next page is the signature page.]
| CC: Administrative Agent |
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IN WITNESS WHEREOF, the undersigned has caused this Revenue Account Withdrawal Certificate to
be executed and delivered as of the day and year first above written.
| SOUTHWEST GEORGIA ETHANOL, LLC, as Borrower |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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EXHIBIT B
EXHIBIT D
to Accounts Agreement
to Accounts Agreement
[FORM OF]
RESTRICTED PAYMENT CERTIFICATE
RESTRICTED PAYMENT CERTIFICATE
Date: [_____ __,____]
AMARILLO NATIONAL BANK, as Accounts Bank
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive Vice President
Reference is made to [priority fourteenth of Section 6.01(b)][clause (ii) of priority
fifteenth of Section 6.01(b)][Section 11.01(b)(i)] of the Accounts Agreement dated as of November
20, 2007 (the “Accounts Agreement”), by and among SOUTHWEST GEORGIA ETHANOL, LLC, as
Borrower (the “Borrower”), AMARILLO NATIONAL BANK, as Accounts Bank (the “Accounts
Bank”) and Securities Intermediary, WESTLB AG, NEW YORK BRANCH, as Collateral Agent for the
Senior Secured Parties and WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the Lenders.
Capitalized terms used herein but not otherwise defined herein shall have the respective meanings
set forth in the Accounts Agreement.
The Borrower hereby directs the Accounts Bank to withdraw and transfer on [_____], 20[_____] (the
“Restricted Payment Date”) the following amounts:
[(i) from the account entitled Revenue Account, No. 129992 (the “Revenue Account”) in
accordance with [priority fourteenth][clause (ii) of priority fifteenth] of Section 6.01(b) of the
Accounts Agreement, the amounts and to the payees, in each case as set forth on Schedule D-1 attached hereto;]
[(ii) from the account entitled Prepayment Holding Account, No. 129984 (the “Prepayment
Holding Account”) in accordance with Section 11.01(b)(i) of the Accounts Agreement, [_____] Dollars ($[_____]) for deposit into the Revenue
Account.]
D-1
In support of such direction, the undersigned, on behalf of the Borrower, hereby represents
and certifies, as of the date hereof and as of the Restricted Payment Date, as follows:
(a) The undersigned is an Authorized Officer of the Borrower.
(b) The Conversion Date has occurred.
(c) This Restricted Payment Certificate is being delivered to the Accounts Bank with a copy to
the Administrative Agent not later than 2:00 p.m. Eastern time on the Restricted Payment Date, and
the Restricted Payment Date is a Quarterly Payment Date [or another Business Day that is within
thirty (30) days following a Quarterly Payment Date]1.
(d) All conditions set forth in the Accounts Agreement and the Credit Agreement (including
Section 7.02(s) of the Credit Agreement) for the withdrawal(s) requested hereby have been
satisfied.
(e) No Notice of Suspension is in effect, no Default or Event of Default has occurred and is
continuing, and no Default or Event of Default would occur after giving effect to the Restricted
Payment(s) to be made with the proceeds of the withdrawals requested hereby.
(f) The Debt Service Reserve Account is fully funded in an amount not less than the Debt
Service Reserve Required Amount. The Working Capital Reserve Account is fully funded in an amount
not less than the Working Capital Reserve Required Amount.
(g) Each of the Historical Debt Service Coverage Ratio and the Prospective Debt Service
Coverage Ratio, calculated as of the most recent Quarterly Payment Date or, if such Restricted
Payment Date is a Quarterly Payment Date, as of such Quarterly Payment Date, is greater than or
equal to 1.5:1:0, and a detailed calculation of such Historical Debt Service Coverage Ratio and
such Prospective Debt Service Coverage Ratio is set forth in Schedule D-2 attached hereto.
| 1 | Applicable only for transfers pursuant to clause (ii) of priority fifteenth of Section 6.01(b) of the Accounts Agreement. |
D-2
[(h) All of the transfers and payments set forth in [priorities first through thirteenth of
Section 6.01(b)][priorities first through clause (i) of priority fifteenth of Section 6.01(b)] of
the Accounts Agreement have been made, or will be made, before the consummation of the withdrawals
requested hereby and in accordance with the terms of each Revenue Account Withdrawal Certificate issued
or to be issued as of the Restricted Payment Date.]2
[(i) The funds to be withdrawn from the Revenue Account pursuant to priority fourteenth of
Section 6.01(b) of the Accounts Agreement will be applied to pay amounts due and owing for
interest, fees, expenses, principal and other amounts then due and owing with respect to the
Subordinated Debt.]
[(j) If the Restricted Payment Date is a Business Day that is within thirty (30) days
following a Quarterly Payment Date, the withdrawal pursuant to clause (ii) of priority fifteenth of
Section 6.01(b) of the Accounts Agreement is being made only from funds on deposit in or standing
to the credit of the Revenue Account at clause (ii) of priority fifteenth on such Quarterly Payment
Date.]
The undersigned officer is executing this Restricted Payment Certificate not in an individual
capacity but as an Authorized Officer of the Borrower.
[The remainder of this page is intentionally blank. The next page is the signature page.]
cc: Administrative Agent
| 2 | Applicable only for transfers pursuant to priority fourteenth of Section 6.01(b) or clause (ii) of priority fifteenth of Section 6.01(b) of the Accounts Agreement. |
D-3
IN WITNESS WHEREOF, the undersigned has caused this Restricted Payment Certificate to be
executed and delivered as of the day and year first above written.
| SOUTHWEST GEORGIA ETHANOL, LLC, as Borrower |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
D-4
Schedule D-1 to
Restricted Payment Certificate
Restricted Payment Certificate
WITHDRAWALS FROM REVENUE ACCOUNT
[details to be attached]
Withdrawals from Revenue Account for the making of Restricted Payments:
| Payee | Amount | Wire Instructions | ||||||||||
| $ | ||||||||||||
Schedule D-2 to
Restricted Payment Certificate
Restricted Payment Certificate
HISTORICAL DEBT SERVICE COVERAGE RATIO AND PROSPECTIVE
DEBT SERVICE COVERAGE RATIO CALCULATIONS
DEBT SERVICE COVERAGE RATIO CALCULATIONS