exv10w34



 





Exhibit 10.34




LOAN AGREEMENT




between




MITCHELL COUNTY DEVELOPMENT AUTHORITY




and




FIRST UNITED ETHANOL, LLC




Dated as of November 1, 2006




 




This Loan Agreement and certain rights of Mitchell County Development Authority (the “Issuer”)
under this Loan Agreement have been assigned and pledged to, and are subject to a security interest
in favor of, Regions Bank, Atlanta, Georgia, as trustee under the Trust Indenture (the “Trustee”),
dated as of even date herewith, as amended or supplemented from time to time, between the Issuer
and the Trustee, which secures $10,000,000 in aggregate principal amount of Mitchell County
Development Authority Revenue Bonds (First United Ethanol, LLC Project), Series 2006 (the “Bonds”).
Information concerning such security interest may be obtained from the Trustee at Regions Bank,
Atlanta, Georgia.




 





This instrument was prepared by:




SELL & MELTON, L.L.P.

577 Mulberry Street, 14th Floor

P. O. Box 229

Macon, Georgia 31202-0229

Telephone:(478) 464-5322




 









 





INDEX




	 	 	 	 	 	 	 
	Section	 	Title	 	Page	 
	ARTICLE I
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	DEFINITIONS AND CERTAIN RULES OF INTERPRETATION	 	 	 	 
	Section 1.1.
	 	Definitions	 	 	-2-	 
	Section 1.2.
	 	Certain Rules of Interpretation	 	 	-2-	 
	 
	 	 	 	 	 	 
	ARTICLE II.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	REPRESENTATIONS	 	 	 	 
	 
	 	 	 	 	 	 
	Section 2.1.
	 	Representations by the Issuer	 	 	-3-	 
	Section 2.2.
	 	Representations by the Borrower	 	 	-4-	 
	 
	 	 	 	 	 	 
	ARTICLE III
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	CONSTRUCTION OF THE FACILITY; ISSUANCE OF THE BONDS	 	 	 	 
	Section 3.l.
	 	Construction of the Facility	 	 	-7-	 
	Section 3.2.
	 	Agreement to Issue Bonds; Application of Proceeds	 	 	-7-	 
	Section 3.3.
	 	Disbursement from the Project Fund	 	 	-7-	 
	Section 3.4.
	 	Obligation to Furnish Documents to Trustee and Issuer	 	 	-10-	 
	Section 3.5.
	 	Establishment of Completion Date	 	 	-10-	 
	Section 3.6.
	 	Borrower Required to Pay Project Costs If Project Fund Insufficient	 	 	-12-	 
	Section 3.7.
	 	Remedies Against Suppliers, Contractors and Subcontractors and Their Sureties	 	 	-12-	 
	Section 3.8.
	 	Fund Investments	 	 	-12-	 
	 
	 	 	 	 	 	 
	ARTICLE IV.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	SECURITY AGREEMENT; PROVISIONS FOR PAYMENT	 	 	 	 
	 
	 	 	 	 	 	 
	Section 4.l.
	 	Security Agreement	 	 	-13-	 
	Section 4.2.
	 	Payment Obligations of the Borrower	 	 	-13-	 
	Section 4.3.
	 	Other Payments; Trustee’s Fees and Expenses	 	 	-14-	 
	Section 4.4.
	 	Obligations of the Borrower Absolute and Unconditional	 	 	-14-	 
	Section 4.5.
	 	Borrower Consents to Assignment of Agreement and Security Agreement and Execution of Indenture	 	 	-15-	 
	Section 4.6.
	 	Borrower's Performance Under Indenture	 	 	-15-	 
	Section 4.7.
	 	Permitted Encumbrances	 	 	-15-	 






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	Section	 	Title	 	Page	 
	ARTICLE V
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	PARTICULAR AGREEMENTS	 	 	 	 
	Section 5.1.
	 	Maintenance and Operation of Project; Taxes; No Operation of Project by Issuer; Removal of Equipment	 	 	-17-	 
	Section 5.2.
	 	Indemnification of Issuer and Trustee	 	 	-17-	 
	Section 5.3.
	 	Covenants Regarding Maintenance of Borrower’s Existence	 	 	-18-	 
	Section 5.4.
	 	Annual Audit; Provision of Reports and Financial Information	 	 	-18-	 
	Section 5.5.
	 	Agreement of Issuer Not to Assign or Pledge	 	 	-20-	 
	Section 5.6.
	 	Redemption of Bonds	 	 	-20-	 
	Section 5.7.
	 	Reference to Bonds Ineffective After Bonds Paid	 	 	-20-	 
	Section 5.8.
	 	Assignment, Sale or Lease of Project	 	 	-20-	 
	Section 5.9.
	 	Notification of Act of Bankruptcy	 	 	-20-	 
	Section 5.10.
	 	Insurance	 	 	-21-	 
	Section 5.11.
	 	Condemnation of the Project	 	 	-22-	 
	Section 5.12.
	 	Inspections	 	 	-22-	 
	 
	 	 	 	 	 	 
	ARTICLE VI.
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	EVENTS OF DEFAULT AND REMEDIES	 	 	 	 
	Section 6.1.
	 	Events of Default Defined	 	 	-23-	 
	Section 6.2.
	 	Remedies	 	 	-24-	 
	Section 6.3.
	 	No Remedy Exclusive	 	 	-24-	 
	Section 6.4.
	 	Agreement to Pay Counsel Fees and Expenses	 	 	-24-	 
	Section 6.5.
	 	Waiver of Events of Default and Rescission of Acceleration	 	 	-25-	 
	 
	 	 	 	 	 	 
	ARTICLE VII
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	PREPAYMENT UNDER AGREEMENT	 	 	-26-	 
	Section 7.l.
	 	Option to Prepay Installment Amounts Under Agreement in Whole in Certain Events	 	 	-26-	 
	Section 7.2.
	 	Damage and Destruction	 	 	-27-	 
	 
	 	 	 	 	 	 
	ARTICLE VIII
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	MISCELLANEOUS	 	 	 	 
	Section 8.l.
	 	Term of Agreement	 	 	-28-	 
	Section 8.2.
	 	Notices	 	 	-28-	 
	Section 8.3
	 	Binding Effect	 	 	-29-	 
	Section 8.4.
	 	Severability	 	 	-29-	 
	Section 8.5.
	 	Amounts Remaining in Project Fund or Bond Fund or Special Fund	 	 	-29-	 
	Section 8.6.
	 	Delegation of Duties and Assignment of Rights by Issuer	 	 	-29-	 
	Section 8.7.
	 	Amendments, Changes and Modifications	 	 	-29-	 
	Section 8.8.
	 	Counterparts	 	 	-29-	 
	Section 8.9.
	 	Captions	 	 	-29-	 
	Section 8.10.
	 	Payments Due on Saturday, Sundays and Holidays	 	 	-29-	 






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	Section	 	Title	 	Page	 
	Section 8.11.
	 	Law Governing Construction of Agreement	 	 	-29-	 






EXHIBIT A — Requisition and Certification




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LOAN AGREEMENT




     THIS LOAN AGREEMENT (this “Agreement”) is entered into as of November 1, 2006, by and between
Mitchell County Development Authority (the “Issuer”), a public body corporate and politic created
and existing under the laws of the State of Georgia, as lender, and First United Ethanol, LLC (the
“Borrower”), a Georgia limited liability company, as Borrower.



W I T N E S S E T H:




     In consideration of the respective representations, covenants and agreements hereinafter
contained, the Issuer and the Borrower DO HEREBY AGREE, as follows;



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ARTICLE I.




DEFINITIONS AND CERTAIN RULES OF INTERPRETATION




     Section 1.1. Definitions . In addition to the words and terms elsewhere
defined herein, the following words and terms as used herein shall have the following meanings
unless the context or use clearly indicates another or different meaning or intent, and any other
words and terms defined in the Indenture shall have the same meanings when used herein as assigned
them in the Indenture unless the context or use clearly indicates another or different meaning or
intent:



     “Authorized Borrower Representative” means the person at the time designated to act on behalf
of the Borrower by written certificate furnished to the Issuer and the Trustee containing the
specimen signature of such person and signed on behalf of the Borrower by an authorized officer or
agent. Such certificate may designate an alternate or alternates;



     “County Representative” means the County Representative referred to in 4.03 of the County
Contract;



     “Fiscal Year” means July 1 through June 30;



     “Net Proceeds” when used with respect to any insurance or condemnation award, or with respect
to any other recovery or a contractual claim or claims for damage to or for the taking of property,
means the gross proceeds of such award remaining after payment of all expenses incurred in the
collection of such gross proceeds;



     “Permitted Encumbrances” means the permitted encumbrances set forth in Section 4.7 hereof;



     Section 1.2. Certain Rules of Interpretation . The definitions set forth in
Section 1.1 shall be equally applicable to both the singular and plural forms of the terms therein
defined and shall cover all genders.



     “Herein”, “hereby”, “hereunder”, “hereof”, “hereinbefore”, “hereinafter” and other equivalent
words refer to this Agreement and not solely to the particular Article, Section or subdivision
hereof in which such word is used.



     Reference herein to an Article number (e.g., Article IV) or a Section number
(e.g., Section 6.2) shall be construed to be a reference to the designated Article number
or Section number hereof unless the context or use clearly indicates another or different meaning
or intent.



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ARTICLE II.




REPRESENTATIONS





   Section 2.1. Representations by the Issuer . The Issuer makes the following
representations as the basis for the undertaking on its part herein contained:




     (a) Organization and Authority. The Issuer is a public body corporate and
politic, created and validly existing pursuant to the Constitution and laws of the State,
including particularly the provisions of the Act. The Issuer has all requisite power and
authority under the Act to (i) issue the Bonds, (ii) lend the proceeds thereof to the
Borrower to enable the Borrower to acquire, construct and install the project, and (iii)
enter into, and perform its obligations under this Agreement, the Indenture and the Security
Agreement.




     (b) Pending Litigation. There are no actions, suits, proceedings, inquiries or
investigations pending, or to the knowledge of the Issuer threatened, against or affecting
the Issuer in any court or before any governmental authority or arbitration board or
tribunal, which involve the possibility of materially and adversely affecting the
transactions contemplated by this Agreement or the Indenture or which, in any way, would
adversely affect the validity or enforceability of the Bonds, the Indenture, this Agreement,
the Security Agreement or any agreement or instrument to which the Issuer is a party and
which is used or contemplated for use in the consummation of the transactions contemplated
hereby or thereby.




     (c) Issue, Sale and Other Transactions Are Legal and Authorized. The issuance
and sale of the Bonds and the execution and delivery by the Issuer of this Agreement, the
Indenture and the Security Agreement, and the compliance by the Issuer with all the
provisions of each thereof and of the Bonds (i) are within the purposes, powers and
authority of the Issuer, (ii) have been done in full compliance with the provisions of the
Act, are legal and will not conflict with or constitute on the part of the Issuer a
violation of or a breach of or default under, or result in the creation of any lien, charge
or encumbrance upon any property of the Issuer (other than as contemplated by this
Agreement, the Indenture and the Security Agreement) under the provisions of, any charter,
instrument, by-law, indenture, mortgage, deed of trust, note agreement or other agreement or
instrument to which the Issuer is a party or by which the Issuer is bound, or any license,
judgment, decree, law, statute, order, rule or regulation of any court of governmental
agency or body having jurisdiction over the Issuer or any of its activities or properties,
and (iii) have been duly authorized by all necessary corporate action on the part of the
Issuer.




     (d) Governmental Consents. Neither the nature of the Issuer nor any of its



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activities or properties, nor any relationship between the Issuer and any other person, nor
any circumstance in connection with the offer, issue, sale or delivery of any of the Bonds
is such as to require the consent, approval or authorization of, or the filing, registration
or qualification with, any governmental authority on the part of the Issuer in connection
with the execution, delivery and performance of this Agreement, the Indenture and the
Security Agreement or the offer, issue, sale or delivery of the Bonds, other than those
already obtained.




     (e) No Defaults. No event has occurred and no condition exists with respect to
the Issuer which would constitute an “event of default” as defined in this Agreement, the
Indenture or the Security Agreement or which, with the lapse of time or with the giving of
notice or both, would become an “event of default” under this Agreement, the Indenture or
the Security Agreement. The Issuer is not in default under the Act or under any charter
instrument, by-law or other agreement or instrument to which it is a party or by which it is
bound.




     (f) No Prior Pledge. Neither this Agreement, the Security Agreement nor any of
the Pledged Revenues or the Trust Estate have been pledged or hypothecated in any manner or
for any purpose, other than as provided in the Indenture, Security Agreement and
Subordination Agreement, as security for the payment of the Bonds.




     (g) Nature and Location of Project. The financing of the Project is in
furtherance of the public purpose intended to be served by the Act. The Project will be
located entirely within the County.




     (h) No Liability of Issuer. Anything herein to the contrary notwithstanding,
nothing contained in this Agreement or in any other document that is a part of this
transaction, including, but not limited to, the Bond Resolution of the Issuer, the Security
Agreement, and/or the Indenture shall, in any manner whatsoever be deemed to constitute a
debt or a general obligation, or a pledge of the faith and credit of the Issuer, the State
of Georgia, or any political subdivision thereof, and does not directly or indirectly or
contingently, obligate the Issuer, said State or any political subdivision thereof to levy
or to pledge any form of taxation whatever for the payment of the principal indebtedness,
redemption premium (if any), interest, or any other indebtedness, costs, or expense.




     (i) No Personal Liability. No stipulation, obligation or agreement herein
contained shall be deemed to be a stipulation, obligation or agreement of any officer,
commissioner, agent or employee of the Issuer in his individual capacity, and no such
officer, commissioner, agent or employee shall be personally liable on the Bonds or be
subject to personal liability or accountability by reason of the issuance thereof.



     Section 2.2. Representations by the Borrower . The Borrower makes the
following representations as the basis for the undertakings on its part herein contained:




(a) Organization and Power. The Borrower (i) is a Georgia limited liability
company, and (ii) has all requisite power and authority and all necessary licenses and
permits to



-4-









 






own and operate its properties and to carry on its business as now being
conducted and as presently proposed to be conducted.




(b) Pending Litigation. There are no proceedings pending, or to the
knowledge of the Borrower threatened, against or affecting the Borrower in any court or
before any governmental authority or arbitration board or tribunal which involve the
possibility of materially and adversely affecting the properties, business, prospects,
profits or condition (financial or otherwise) of the Borrower, or the ability of the
Borrower to perform its obligations under this Agreement, the Bond Placement Agreement, or
the Security Agreement. The Borrower is not in default with respect to an order of any
court, governmental authority or arbitration board or tribunal.




(c) Agreements Are Legal and Authorized. The execution and delivery by the Borrower
of this Agreement, the Bond Placement Agreement, and the Security Agreement and the
compliance by the Borrower with all of the provisions hereof and thereof (i) are within the
power of the Borrower, (ii) will not conflict with or result in any breach of any of the
provisions of, or constitute a default under, or result in the creation of any lien, charge
or encumbrance (other than Permitted Encumbrances) upon any property of the Borrower under
the provisions of, any agreement, charter document, by-law or other instrument to which the
Borrower is a party or by which it may be bound, or any license, judgment, decree, law,
statute, order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Borrower or any of its activities or properties, and (iii) have been
duly authorized by all necessary action on the part of the Borrower.




(d) Governmental Consent. Neither the Borrower nor any of its business or
properties, nor any relationship between the Borrower and any other person, nor any
circumstances in connection with the execution, delivery and performance by the Borrower of
this Agreement, the Bond Placement Agreement, and the Security Agreement or the offer,
issue, sale or delivery by the Issuer of the Bonds, is such as to require the consent,
approval or authorization of, or the filing, registration or qualification with, any
governmental authority on the part of the Borrower other than those already obtained.




(e) No Defaults. No event has occurred and no condition exists with respect to the
Borrower that to the Borrower’s knowledge would constitute an “event of default” under this
Agreement, the Indenture, the Bond Placement Agreement, the Security Agreement, or which,
with the lapse of time or with the giving of notice or both, would become an “event of
default” under this Agreement, the Indenture, the Security Agreement, or the Bond Placement
Agreement. The Borrower is not in violation in any material respect of any agreement, or
other instrument to which it is a party or by which it may be bound.




(f) Compliance with Laws. To the Borrower’s knowledge, the Borrower is not in
violation of any laws, ordinances, governmental rules or regulations to which it is subject
and has not failed to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its properties or to the conduct of its



-5-









 






business, which violation or failure to obtain might materially and adversely affect the
properties, business, prospects, profits or conditions (financial or otherwise) of the
Borrower.




(g) Restrictions on the Borrower. The Borrower is not a party to any contract or
agreement that materially and adversely affects the business of the Borrower. The Borrower
is not a party to any contract or agreement that restricts the right or ability of the
Borrower to incur or guarantee indebtedness for borrowed money.




(h) Inducement. The issuance of the Bonds by the Issuer and the lending of the
proceeds thereof to the Borrower to enable the Borrower to acquire and rehabilitate the
Project have induced the Borrower to locate the Project in the County, which will directly
result in an increase in employment opportunities in the County.




(i) Operation of Project. The Borrower intends to operate the Project from the
Completion Date to the expiration or sooner termination of this Agreement as provided herein
as a “project” within the meaning of the Act.



ARTICLE III.




CONSTRUCTION OF THE FACILITY; ISSUANCE OF THE BONDS




     Section 3.l. Construction of the Facility . The Borrower agrees that the
construction of the Facility will be completed as promptly as practicable after receipt of the
proceeds from the sale of the Bonds, delays incident to strikes, riots, acts of God or the public
enemy or other causes beyond the reasonable control of the Borrower only excepted, but if such
construction is not completed, there shall be no resulting liability on the part of the Issuer and
no diminution in or postponement of the payments required to be paid by the Borrower hereunder.



     Section 3.2. Agreement to Issue Bonds; Application of Proceeds . In order to
provide funds for the payment of the cost of the Project, the Issuer agrees that as soon as
possible it will authorize, sell and cause to be delivered to the initial purchaser or purchasers
thereof, the Bonds, bearing interest and maturing as set forth in Article II of the Indenture, at a
price to be approved by the Borrower, and it will thereupon deposit the proceeds received from said
sale in the Project Fund.



     The Borrower may cause such changes to be made to the aforesaid plans and specifications for
the Project as it may desire provided that such changes shall not result in the Projects not being
a “project” within the meaning of the Act.



     Section 3.3. Disbursement from the Project Fund . The Issuer will in the
Indenture authorize and direct the Trustee to use the moneys in the Project Fund for the following
purposes but, subject to the provisions of Section 3.8 hereof, for no other purposes:



-6-









 






     (a) payment of the initial or acceptance fee of the Trustee and fees and expenses of
its Counsel, the fees for recording the deeds whereby the appropriate title in and to the
Project land has been acquired by the Borrower, payments for title examination and
insurance, and any title curative documents that the Borrower may deem desirable to file for
record in order to perfect or protect its title in and to the Project land and the fees and
expenses in connection with any actions or proceedings that the Borrower may deem desirable
to bring in order to perfect its title in and to the Project land;




(b) payment to the Borrower of such amounts, if any, as shall be necessary to reimburse the
Borrower in full for all advances and payments made by it prior to or after the delivery of
the Bonds for expenditures in connection with the acquisition by the Borrower of appropriate
title in and to the Project land (including the cost of such acquisition and of any
rights-of-way for the purpose of providing access to and from the Project land), clearing
the same, site improvement, the preparation of plans and specifications for the Project
(including any preliminary study or planning of the Project or any aspect thereof), the
acquisition, construction and installation of the project equipment and the acquisition,
construction and installation necessary to provide utility services or other facilities
including trackage to connect the Project with public transportation facilities, and all
real or personal properties deemed necessary in connection with the Project, or any one or
more of said expenditures (including architectural, engineering and supervisory services)
with respect to any of the foregoing;




(c) payment of, or reimbursement of the Borrower and the Issuer for, the legal and
accounting fees and expenses, financial consultants’ fees, financing charges (including
underwriting or placement fees) and printing and engraving costs incurred in connection with
the authorization, sale and issuance of the Bonds, the preparation of this Agreement, the
Security Agreement, the Indenture, the Financing Statements and all other documents in
connection therewith and in connection with the acquisition of appropriate title in and to
the Project land, including fees for recording the Indenture, the Security Agreement, and
the Financing Statements;




     (d) payment of, or reimbursement of the Borrower for, labor, services, material,
supplies and/or equipment used or furnished in site improvement and in the construction of
the Facility, all as provided in the plans and specifications therefor, payment for the cost
of the acquisition and installation of furniture, fixtures and equipment constituting part
of the Project, payment for the cost of acquisition, construction and installation of
utility services or other facilities including trackage to connect the Project with public
transportation facilities, and all real and personal
properties deemed necessary in connection with the Project and payment for the miscellaneous
expenses incidental to any of the foregoing;




     (e) payment of, or reimbursement of the Borrower for, the fees, if any, for
architectural, engineering and supervisory services with respect to the Project;



-7-









 






     (f) payment of, or reimbursement of the Borrower and the Issuer for, as such payments
become due, the fees and expenses of the Trustee, the Bond Registrar, the paying agent, the
fees and expenses of Counsel to the Underwriter or its affiliates or subsidiaries and the
fees and expenses of their Counsel properly incurred under the Indenture that may become due
during the Construction Period; and payment into the Bond Fund of sufficient moneys to pay
interest on the Bonds accruing during the Construction Period;




     (g) payment of, or reimbursement of the Borrower and the Issuer for, any other legal
and valid costs and expenses relating to the Project; and




     (h) all moneys remaining in the Project Fund (including moneys earned on investments
made pursuant to the provisions of Section 3.8 hereof) after the Completion Date and payment
in full of the costs of the Project, and after payment of all other items provided for in
the preceding subsections of this Section then due and payable, shall at the direction of
the Borrower be (i) subject to Section 5.9(d), used to acquire, construct and install
additions, extensions and improvements to the Project in accordance with amended plans and
specifications therefor duly filed with the Issuer, (ii) used by the Trustee, to the maximum
extent practicable consistent with making partial redemptions in amounts of not less than
$100,000 or integral multiples thereof, for the redemption of Bonds at the earliest date
permitted by the Indenture or the purchase of Bonds for the purpose of cancellation at any
time prior to the earliest date permitted by the Indenture for the redemption of Bonds, or
(iii) paid into the Bond Fund to pay interest on the Bonds or into the Debt Service Reserve
Fund to replenish the balance thereof, or (iv) a combination of (i), (ii) or (iii) as is
provided in such direction, provided that amounts approved by the Authorized Borrower
Representative shall be retained by the Trustee in the Project Fund for payment of costs not
then due and payable. Any balance remaining of such retained moneys after full payment of
all such Project costs shall be used by the Trustee as directed by the Borrower in the
manner specified in clauses (i), (ii), (iii) or (iv) of this subsection.



     The payments specified in subsections (a) through (g) of this Section (other than payment of
interest on the Bonds accruing prior to the Completion Date) shall be made by the Trustee only upon
receipt of the following:



     (1) a written requisition for such payment in the form attached hereto as Exhibit A
respectively signed by the Authorized Borrower Representative and approved by the County
Representative certifying:




(i) that an obligation in the stated amount has been incurred in connection with the
issuance of the Bonds or the construction of the Facility;




(ii) that such obligation is a proper charge against the Project Fund and has not been the
basis of any previous withdrawal from the Project Fund, and specifying the purpose



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and
circumstances of such obligation in reasonable detail and the name and address of the person
to whom such obligation is owed;




(iii) that (A) he has no notice of any vendors’, materialmen’s, mechanics’, suppliers’ or
other similar liens or right to liens, chattel mortgages or conditional sales contracts, or
other contracts or obligations which should be satisfied or discharged before payment of
such obligation is made, or (B) such requisition is for the purpose of obtaining funds to be
used to satisfy or discharge a lien or contract of the type described in (A) above;




(iv) that such requisition contains no request for payment on account of any portion of such
obligation which the Borrower is, as of the date of such requisition, entitled to retain
under any retained percentage agreements;




(v) that each and every representation of the Borrower set forth in this Agreement is true
and correct on and as of the date of such requisition;




     (vi) that no default or event of default has occurred and is then continuing; and




     (vii) the Project costs then incurred and the estimated costs of completing the Project
that the amount remaining in the Project Fund for disbursement, after giving effect to the
requested disbursement, will be sufficient to complete the Project or, if that is not the
case, stating that the Borrower has on hand or has the ability to obtain the additional
funds required to complete the Project.



     (2) with respect to any such requisition for payment for labor, services, material, supplies
or equipment, an additional certificate, signed by the Authorized Borrower Representative
certifying that insofar as such obligation was incurred for labor, services, material, supplies
and/or equipment in connection with the Construction of the Facility, such labor and/or services
were actually performed in a satisfactory manner and such material, supplies and/or equipment were
actually used in or about the Construction of the Facility or delivered (and remain) at the Project
Site for that purpose.



     In making any such payment from the Project Fund the Trustee may rely on any such requisitions
and any such certificates delivered to it pursuant to this Section and the Trustee shall be
relieved of all liability with respect to making such payments in accordance with any such
requisitions and such supporting certificate or certificates without inspection of the Project or
any other investigation. Disbursements from the Project Fund for deposit in the Bond Fund to pay
interest on the Bonds accruing during the Construction Period may be made by the Trustee at
the written request of the Borrower when interest is due on the Bonds without the necessity of
receiving any such written requisition or supporting certificates pertaining thereto.



     In addition to the other requirements for disbursements from the Project Fund, the following
shall be conditions precedent to the Trustee’s duty to make such disbursements:



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     (a) The Borrower shall have submitted the requisition not less than five (5) business
days before the disbursement is to be made complying in form and substance with the
requirements of this Section 3.3 and, in the case of the final disbursement, Section 3.5
hereof; and




     (b) The Trustee shall not have received written notice that an event of default shall
then exist or that an event or failure shall have occurred which, with the giving of notice
or the passage of time or both, would constitute an event of default.



     Section 3.4. Obligation to Furnish Documents to Trustee and Issuer . The
Borrower agrees to furnish to the Trustee the documents referred to in Section 3.3 hereof that are
required to effect payments out of the Project Fund, and to cause such requisitions and
certificates to be directed by the Authorized Borrower Representative to the Trustee as may be
necessary to effect such payments. Such obligation of the Borrower is subject to any provisions
hereof or of the Indenture requiring additional documentation with respect to payments and shall
not extend beyond the moneys in the Project Fund available for payment under the terms of the
Indenture.



     Section 3.5. Establishment of Completion Date . The Completion Date shall be
evidenced to the Trustee by a certificate signed by the Authorized Borrower Representative stating
that, except for amounts retained by the Trustee for Project costs not then due and payable as
provided in Section 3.3(h) hereof,




     (a) the Construction of the Facility has been completed substantially in accordance
with the plans and specifications therefor and all labor, services, materials, supplies or
equipment used in such construction has been paid for,




     (b) all other facilities necessary in connection with the Project have been acquired,
constructed and installed substantially in accordance with the plans and specifications
therefor and all costs and expenses incurred in connection therewith have been paid,




     (c) the Facility and all other facilities in connection therewith have been acquired,
constructed and installed to the satisfaction of the Borrower and are suitable and
sufficient for the efficient operation of the Project for its intended purposes, and




(d) the original or a true and correct copy of a certificate of occupancy, if required, and
any other permissions required of governmental authorities for the occupancy of the Facility
have been obtained.


Notwithstanding the foregoing, such certificate by the Authorized Borrower Representative shall
state that it is given without prejudice to any rights of the Borrower against third parties which
exist on the date of such certificate or which may subsequently come into being. The Borrower
shall furnish a copy of such certificate to the Issuer at the same time such document is furnished
to the Trustee.




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     The aforesaid certificate of the Authorized Borrower Representative shall be furnished to the
Trustee, Issuer and Bondholders and shall be accompanied by:




     (i) An as-built survey of the Project Site within sixty (60) days of the completion of
the construction of the Facility, prepared by a registered surveyor licensed by the State of
Georgia acceptable to the Issuer, showing the dimensions and location of all improvements on
the Project Site, as completed;




     (ii) A certificate of the Borrower stating (i) that the construction of the Facility,
including all machinery, equipment, fittings and fixtures required to be installed by the
plans and specifications, has been completed substantially in accordance with the plans and
specifications therefor and in accordance with all applicable governmental requirements
relating to the Project, and (ii) that direct connection has been made to all abutting
public utilities necessary for full operation and use of the Project, including, without
limitation, water, storm and sanitary sewer, electricity, gas and telephone; and,




     (iii) A final affidavit of each contractor which furnished services or materials for
the Project, sworn to by an authorized agent of such contractor and dated not more than five
(5) business days prior to the date of such requisition for disbursement, in a form which
shall include without limitation, (i) a specific representation and warranty that all
payments made to the contractor by the Borrower have been used by the contractor solely to
pay for costs of the Project, (ii) a statement that the agreed price of work done, material
furnished and services furnished or rendered has been paid, and (iii) a statement that there
are no liens of such contractor or sub-contractors, mechanics’ liens, or laborers’ liens
that have been filed of record.



     Section 3.6. Borrower Required to Pay Project Costs If Project Fund Insufficient
. If the moneys in the Project Fund available for payment of the cost of the Project should
not be sufficient to pay the cost thereof in full, the Borrower agrees to complete the Project and
to pay all that portion of the cost of the Project as may be in excess of the moneys available
therefor in the Project Fund. The Issuer does not make any warranty, either express or implied,
that the moneys which will be paid into the Project Fund and which, under the provisions of this
Agreement, will be available for payment of the cost of the Project will be sufficient to pay all
costs which will be incurred in that connection. The Borrower agrees that if after exhaustion of
the moneys in the Project Fund the Borrower should pay any portion of the cost of the Project
pursuant to the provisions of this Section, it shall not be entitled to any reimbursement therefor
from the Issuer or from the Trustee or from the holders or owners of any of the Bonds, nor shall it
be entitled to any diminution in or postponement of the payments required to be made hereunder.



     Section 3.7. Remedies Against Suppliers, Contractors and Subcontractors and Their
Sureties . The Borrower may prosecute or defend any action or proceeding or take any other
action involving any defaulting supplier, contractor, subcontractor or surety therefor which the
Borrower deems reasonably necessary, and in such event the Issuer agrees to cooperate fully



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with
the Borrower, to the extent it might lawfully do so, in any such action or proceeding. Any moneys
recovered by way of damages, refunds, adjustments or otherwise in connection with the foregoing
shall belong to the Borrower.



     Section 3.8. Fund Investments . Any moneys held by the Trustee in trust funds
created under the Indenture shall be invested or reinvested by the Trustee to the extent permitted
by the laws of the State as provided in the Indenture.



ARTICLE IV.




SECURITY AGREEMENT; PROVISIONS FOR PAYMENT




          Section 4.l. Security Agreement . The Issuer acknowledges that the Security
Agreement will be assigned by the Issuer to the Trustee pursuant to the Indenture as security for
the payment of the Bonds. The Issuer will not be vested with any other interest in the Facility as
a result of issuing the Bonds to finance the cost of the rehabilitation/reconfiguration and
installation thereof.




Section 4.2. Payment Obligations of the Borrower .





     (a) The Borrower shall remit to the Trustee monies sufficient to permit the Trustee
(understanding that for the purpose of making the payments required by Section 4.2(a)(i)
below, the Trustee will draw first from Capitalized Interest), to make the payments of
deposits set forth below in order of priority set forth:




(i) First, on the first day of each consecutive calendar month, beginning with
December 1, 2006, for deposit into the Interest Account of the Bond Fund one-twelfth
of the amount equal to the next interest payment coming due on the Bonds on the next
Interest Payment Date;




(ii) Second, on the first day of each consecutive calendar month, beginning with
December 1, 2007, for deposit into the Principal Account of the Bond Fund
one-twelfth of the amount equal to the next principal or mandatory sinking fund
redemption payment coming due on the Bonds; and




(iii) Third, for payment to replenish any deficiency in the Debt Service Reserve
Fund, as set forth in Sections 606 and 915 of the Indenture.




     All such payments shall be made to the Trustee at its principal corporate trust office
in Atlanta, Georgia, or such other location as is specified in writing by the Trustee, in
lawful money of the United States of America which will be immediately available on the date
each such payment is due. Each payment shall be sufficient to pay the total



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amount of
principal of (whether at maturity, by mandatory sinking fund redemption pursuant to the
provisions of Section 304 of the Indenture, or by acceleration, or optional redemption), and
redemption premium (if any) and interest on, the Bonds due on such payment date. Anything
herein to the contrary notwithstanding, if on any such payment date, the balance in the Bond
Fund is insufficient to make the required payments of principal of, and redemption premium
(if any) and interest on, the Bonds on such date, the Borrower shall forthwith pay any such
deficiency.




(b) The Borrower further agrees that in the event payment of the principal of, and the
interest on, the Bonds is accelerated upon the occurrence of an event of default under the
Indenture, all amounts payable under Section 4.2(a) hereof for the remainder of the term
hereof shall be accelerated.




(c) Any amount held in the Bond Fund on any payment date specified in Subsection (a) above
shall be credited against the payments required to be made by the Borrower on such payment
date.




     (d) If all of the Bonds then outstanding are called for redemption, any amounts held in
the Project Fund and the Bond Fund on such redemption date shall be used to pay the
principal of, the redemption premium (if any) and the interest on, the Bonds to be redeemed
and shall reduce the amounts to be then paid by the Borrower pursuant to Subsection (a)
above to effect such redemption.




(e) If the Borrower should fail to make any of the payments required in Subsection (a)
above, the item or installment which the Borrower has failed to make shall continue as an
obligation of the Borrower until the same shall have been fully paid, and the Borrower
agrees to pay the same with interest thereon at the rate per annum borne by the Bonds until
paid in full.



     Anything herein, in the Indenture or in the Bonds, to the contrary notwithstanding, the
obligations of the Borrower hereunder shall be subject to the limitation that payments constituting
interest under this Section shall not be required to the extent that the receipt of such
payment by the holder of any Bond would be contrary to the provisions of law applicable to such
holder which limit the maximum rate of interest which may be charged or collected by such holder.



     Section 4.3. Other Payments; Trustee’s Fees and Expenses . In addition to
payment of the amounts specified in Section 4.2(a) hereof, the Borrower agrees to pay to the
Trustee, (a) an amount equal to the reasonable fees and charges of the Trustee incurred under the
Indenture, and (b) the reasonable fees and charges of the Trustee and any other paying agent for
acting as paying agent and Bond Registrar as provided in the Indenture, as and when the same become
due, including the reasonable fees of Counsel, as and when the same become due; provided that no
such payments shall be due if such payments are attributed to or occasioned by errors or mistakes
committed by the Trustee or Trustee’s counsel in connection with its duties as




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specifically set forth in the Indenture.




     If the Borrower should fail to make any of the payments required in this Section, the item or
installment which the Borrower has failed to make shall continue as an obligation of the Borrower
until the same shall have been fully paid, and the Borrower agrees to pay the same with interest
thereon at the rate per annum borne by the Bonds until paid in full.



     Section 4.4. Obligations of the Borrower Absolute and Unconditional . The
obligations of the Borrower to make the payments required in Section 4.2 hereof and to perform and
observe the other agreements on its part contained herein shall be absolute and unconditional and
shall not be subject to diminution by set-off, counterclaim, abatement or otherwise. Until such
time as the principal of, and the interest on, the Bonds shall have been paid in full, the Borrower
(a) will not suspend or discontinue any payments provided for in Section 4.2 hereof except to the
extent the same have been prepaid, (b) will perform and observe all its other agreements contained
herein, and (c) except as provided in Sections 7.l and 7.2 hereof, will not terminate this
Agreement for any cause, including, without limiting the generality of the foregoing, any acts or
circumstances that may constitute failure of consideration, sale, loss, eviction or constructive
eviction, destruction of or damage to the Project, commercial frustration of purpose, any change in
the tax or other laws of the United States of America or of the State or any political subdivision
of either, or any failure of the Issuer to perform and observe any agreement, whether express or
implied, or any duty, liability or obligation arising out of or in connection herewith or with the
Indenture. Nothing contained in this Section shall be construed to release the Issuer from the
performance of any of the agreements on its part herein contained; and if the Issuer should fail to
perform any such agreement, the Borrower may institute such action against the Issuer as the
Borrower may deem necessary to compel performance or recover its damages for nonperformance so long
as such action shall not do violence to the agreements on the part of the Borrower contained in the
preceding sentence.



     Nothing contained herein shall be construed as a waiver of any rights which the Borrower may
have against the Issuer under this Agreement, or against any person under this Agreement, the
Indenture or otherwise, or under any provision of law.



     Section 4.5. Borrower Consents to Assignment of Agreement and Security Agreement
and Execution of Indenture . The Borrower understands that the Issuer, as security for the
payment of the principal of, and the interest on, the Bonds, will assign and pledge to, and create
a security interest in favor of, the Trustee pursuant to the Indenture certain of its rights, title
and interest in and to this Agreement including all Pledged Revenues and in the Security Agreement,
reserving, however, its rights (a) pursuant to this Agreement and the Security Agreement providing
that notices, approvals, consents, requests and other communications be given to the Issuer, (b) to
reimbursement and payment of costs and expenses under Sections 5.2 and 6.4 hereof, and (c) to
indemnification and to exemption from liability, both individual and corporate, under Section 5.2
hereof, and the Borrower hereby agrees and consents to such assignment and pledge. The Borrower
acknowledges that it has received a copy of the Indenture and consents to the execution of the same
by the Issuer and Trustee.



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     Section 4.6. Borrower’s Performance Under Indenture . The Borrower agrees,
for the benefit of the Bondholders, to do and perform all acts and things contemplated in the
Indenture to be done or performed by it.



     Section 4.7. Permitted Encumbrances . As of any particular time, the Borrower
shall be permitted to suffer the following permitted encumbrances of the Facility (i) liens for ad
valorem taxes, special assessments, and other charges not then delinquent, or for taxes,
assessments, and other charges being contested in accordance with Section 1.02 of the Security
Agreement; (ii) this Agreement, the Security Agreement and the Indenture; (iii) presently existing
utility, access, and other easements and rights of way, restrictions, and exceptions described in
the title policy which shall be provided by the Borrower; liens for the financing of accounts
receivable of the Borrower; (iv) inchoate mechanics’ and materialmen’s liens which arise by
operation of law, but which have not been perfected by the required filing of record for work done
or material delivered after the date of recording the Security Agreement and Assignment in
connection with additions or alterations to the Facility; (v) the mechanics’ and materialmen’s
liens permitted by Section 1.02 of the Security Agreement; and (vi) mortgages and other
encumbrances which are junior to the lien of the Security Agreement, subject to the written
approval of the Issuer, which approval shall not be unreasonably withheld.



ARTICLE V.




PARTICULAR AGREEMENTS




     Section 5.1. Maintenance and Operation of Project; Taxes; No Operation of Project
by Issuer; Removal of Equipment . The Borrower will at its own expense, keep the Project in
good repair and operating condition (normal wear and tear excepted) and keep the Project free and
clear of all encumbrances, except Permitted Encumbrances. The Borrower may make any additions or
alterations to the Project which it may deem desirable for its efficient operation which will not
adversely affect the value or the revenue producing capability of the Project, provided that all
such additions and alterations are located wholly on the Project Site and comply in all material
respects with all federal, state, and local laws, statutes, ordinances, rules and regulations as
are applied to the Project. The Borrower further agrees that it will pay all taxes levied with
respect to the Project and the income therefrom. Particularly, the Borrower agrees to pay all ad
valorem taxes to the appropriate governmental bodies, and the Borrower agrees that it shall not
attempt to obtain any exemption from paying such taxes. If the Borrower determines that any items
of equipment included in the Project (the “Equipment”) have become inadequate, obsolete, worn out,
unsuitable, undesirable or unnecessary, the items may be removed from the Project provided the
Borrower (1) substitutes and installs other furnishing or equipment of equal or greater utility, or
(2) in lieu of
such substitution pays into the Bond Fund an amount equal to any proceeds realized from the sale or
scrapping of any such items or any amount equal to any credit received from trade-in for items not
to be installed in the Project, or (3) in the case of sale



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of the Equipment to the Borrower or an
affiliate or other disposition, pays into the Bond Fund an amount equal to the greater of the
amounts and credits received or the fair market value of the items disposed of. The requirement to
pay to the Bond Fund is applicable only to the extent that the equipment to be sold or otherwise
disposed of in the aggregate has a value of $15,000 or more. Nothing contained in this Agreement
shall be deemed to authorize or require the Issuer to operate the Project or to conduct any
business enterprise therewith.




     Section 5.2. Indemnification of Issuer and Trustee .




     (a) Borrower agrees to and shall indemnify and save the Issuer and the Trustee harmless
against and from all claims by or on behalf of any person, firm or corporation arising from
the conduct or management of, or from any work or thing done on the Project and against and
from all claims arising from (i) any condition of or operation of the Project, (ii) any
breach or default on the part of Borrower in the performance of any of its obligations under
this Agreement, (iii) any act or negligence of Borrower or of any of its agents,
contractors, servants, employees or licensees, or (iv) any act or negligence of any assignee
or lessee of Borrower, or of any agents, contractors, servants, employees or licensees of
any assignee or lessee of Borrower, provided however, this indemnity shall not apply to any
acts of gross negligence or willful misconduct of the Issuer or the Trustee. The Borrower
shall indemnify and save the Issuer and the Trustee harmless from and against all reasonable
costs and expenses incurred in or in connection with any such claim arising as aforesaid
from (i), (ii), (iii) or (iv) supra, or in connection with any action or proceeding
brought thereon, including reasonable attorneys’ fees actually incurred, and upon notice
from the Issuer, or the Trustee, Borrower shall defend them or either of them in any such
action or proceeding.




     (b) The Borrower agrees that it will indemnify and hold the Trustee harmless, pursuant
to Section 1015 of the Indenture, from any and all liability, cost, or expense, including
attorneys’ fees, incurred without gross negligence or bad faith in the course of the
Trustee’s duties, including any act, omission, delay, or refusal of the Trustee in reliance
upon any signature, certificate, order, demand, instruction, request, notice, or other
instrument or document believed by it to be valid, genuine and sufficient.




     (c) Notwithstanding the fact that it is the intention of the parties that the Issuer
shall not incur pecuniary liability by reason of the terms of this Agreement, or the
undertakings required of the Issuer hereunder, by reason of (i) the issuance of the Bonds;
(ii) the execution of the Indenture; (iii) the performance of any act required of it by this
Agreement or the Indenture; (iv) the performance of any act requested of it by the Borrower;
or (v) any other costs, fees, or expenses incurred by the Issuer with respect to the Project
or the financing thereof, including all claims, liabilities or losses arising in connection
with the violation of any statutes or regulations pertaining to the foregoing, nevertheless,
if the Issuer should incur any such pecuniary liability then in such event the
Borrower shall indemnify and hold harmless the Issuer against all claims by or on behalf of
any person, firm or corporation, arising out of the same, and all reasonable costs and
expenses incurred in connection with any such claim or in connection with any action or
proceeding brought thereon, and upon notice from the Issuer, the Borrower shall defend



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the
Issuer in any such action or proceeding and pay the reasonable attorneys’ fees of the Issuer
actually incurred in defending any such action.



     The provisions of this Section shall survive the termination of this Agreement.



     Section 5.3. Covenants Regarding Maintenance of Borrower’s Existence . The
Borrower covenants that so long as this Agreement is in effect, it will maintain its existence and
will not merge or consolidate with any other corporation or sell or otherwise dispose of all or
substantially all of its assets, provided that the Borrower may, subject to the approval of the
Issuer, which approval shall not be unreasonably withheld, merge or consolidate with another
corporation or sell or otherwise transfer to another domestic partnership, corporation or other
business entity all or substantially all of its assets as an entirety and thereafter dissolve,
provided any surviving, resulting or transferee entity (the “Surviving Entity”) (i) is authorized
to do business in the State of Georgia, (ii) is a domestic corporation, partnership, or other
entity, or, if a natural person, is a resident of the United States of America, (iii) assumes in
writing all of the obligations of the Borrower under this Agreement and Security Agreement, and
(iv) has net worth (after giving effect to such transaction) at least equal to that of the Borrower
immediately prior to such transaction.



     The Borrower shall preserve and keep in full force and effect all licenses and permits
necessary to the proper conduct of its business.



     Section 5.4. Annual Audit; Provision of Reports and Financial Information .



          (a) The Borrower shall furnish an Operating Budget to the Trustee, the Issuer and the
Bondholders at least sixty (60) days before the beginning of each of its Fiscal Years. The
Borrower will prepare, and file with the Trustee and Bondholders, a report with respect to any
monthly expenditure for operating expenses that exceeds the amount therefor set forth in such
Operating Budget by more than ten percent (10%).




          (b) The Borrower shall provide the Issuer (if requested by the Issuer), the Trustee and the
Bondholders with copies of the following items (each of which must show budgeted and actual results
for the relevant period, the year-to-date and the corresponding period and year-to-date for the
immediately preceding Fiscal Year):




               (i) Within 25 days after the end of each calendar month, unaudited monthly statements of the
Borrower’s operations, its balance sheet, a calculation of compliance with the financial covenants
hereinafter set forth, and statement of cash flows; and



               (ii) Within 90 days after the end of each Fiscal Year, the Borrower’s
audited financial statements prepared in accordance with generally accepted accounting principles
and a calculation of compliance with the financial covenants hereinbelow set forth.



          (c) Concurrently with the delivery of any audited financial statements, the Borrower shall
deliver or cause to be delivered to the Issuer (if requested by the Issuer), the Trustee and the
Bondholders a certificate signed by the chief financial officer of the Borrower





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that, to the best
knowledge of the signer, after a review of the provisions of the Agreement, no event has occurred
which, with the giving of notice or the passage of time, would constitute an event of default
thereunder and a certificate signed by the accountant which audited such financial statements that
nothing came to the attention of such accountant during the course of such audit which caused such
accountant to believe any such event of default had occurred.




          (d) The Borrower shall also furnish to the Issuer, the Trustee and the Bondholders, upon
receipt thereof by the Borrower: (i) a copy of any letter or report with respect to the management
of the Borrower’s operations submitted to the Borrower by its accountants in connection with any
annual or interim audit of the Borrower’s accounts, and a copy of any written response of the
Borrower to any such letter or report, (ii) evidence of the continued licensure by the State of
Georgia and any other regulatory body, and (iii) a copy of all inspection reports by any agency of
the State of Georgia or any other regulatory body.




          (e) The Borrower shall also furnish to the Issuer (if requested by the Issuer), the Trustee
and the Bondholders, on an annual basis, a report detailing all capital improvements to the
Facility.




          (f) The Borrower shall send a copy of any written opinion, report or certificate provided to
it by a Management Consultant to the Issuer (if requested by the Issuer), the Trustee and the
Bondholders.




          (g) The Borrower shall send to the Underwriter, to each holder of not less than $1,000,000 in
aggregate principal amount of Bonds, and, upon request by any Bondholder, at such Bondholder’s
expense, a copy of any budget, statement, certificate or report referred to in this Section 5.4
hereof.




     The Trustee shall have no duty to review the foregoing items deposited with it and shall
hold such items as a repository on behalf of the Bondholders.



     Section 5.5. Agreement of Issuer Not to Assign or Pledge . Except for the
assignment and pledge of the Trust Estate in the Indenture, and as permitted in the Security
Agreement the Issuer agrees that it will not attempt to further assign, pledge, transfer or convey
its interest in or create any assignment, pledge, lien, charge or encumbrance of any form or nature
with respect to the Trust Estate.



     Section 5.6. Redemption of Bonds . The Issuer or the Trustee, at the request
at any time of the Borrower and if the same are then redeemable, shall forthwith take all steps
that may be necessary under the applicable redemption
provisions of the Indenture to effect redemption of all or any portion of the Bonds, as may be
specified by the Borrower, on the earliest redemption date on which such redemption may be made
under such applicable provisions or upon the date set for the redemption by the Borrower pursuant
to Sections 7.1 and 7.2 hereof. As long as the Borrower is not in default hereunder and the Issuer
is not obligated to call Bonds pursuant to the terms of the Indenture, neither the Issuer nor the
Trustee shall redeem any Bond prior to its stated maturity unless requested to do so in writing by
the Borrower.



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     Section 5.7. Reference to Bonds Ineffective After Bonds Paid . Upon payment
in full of the Bonds and all fees and charges of the Trustee, all references herein to the Bonds
and the Trustee shall be ineffective and neither the Issuer, the Trustee nor the holders of any of
the Bonds shall thereafter have any rights hereunder and the Borrower shall have no further
obligation hereunder, saving and excepting those that shall have theretofore vested and any right
of the Issuer or the Trustee to indemnification under Section 5.2 hereof, which right shall survive
the payment of the Bonds and the termination of this Agreement. Reference is hereby made to
Section 802 of the Indenture which sets forth the conditions upon the existence or occurrence of
which payment in full of the Bonds shall be deemed to have been made.



     Section 5.8. Assignment, Sale or Lease of Project . Subject to the provisions
of Section 5.3 hereof, the Borrower may assign its interest in this Agreement and may sell or lease
the Project, in whole or in part, with the prior written consent of the Issuer, which consent shall
not be unreasonably withheld; provided that the Trustee shall be furnished with an opinion from
Bond Counsel experienced and acceptable to the Issuer that such sale, lease, or assignment will not
adversely affect the excludability from gross income for Federal income taxation purposes of
interest on the Bonds. No assignment or lease or sale shall relieve the Borrower of primary
liability for payments due hereunder and of the performance of all other obligations required
hereunder.



     Section 5.9. Notification of Act of Bankruptcy . The Borrower agrees to
notify the Trustee as soon as possible of the occurrence of an Act of Bankruptcy or any event
which, with the lapse of time, would constitute an Act of Bankruptcy. The Borrower further agrees
to notify the Trustee within ninety-five (95) days following final payment of the Bonds, whether by
redemption or otherwise, of the occurrence or non-occurrence of an Act of Bankruptcy during the
period commencing ninety (90) days prior to such final payment and ending on the ninety-first
(91st) day following such final payment.



     Section 5.10. Insurance . The Borrower shall maintain insurance of such
type and in amounts as is customarily carried and against such risks as are customarily insured
against by businesses of like size and character in the State of Georgia, including but not limited
to the following:




     (a) insurance upon the repair or replacement basis in an amount of not less than 100%
of the then actual cost of replacement (excluding costs of replacing excavations and
foundations but without deduction for depreciation) of the Project
against loss or damage by fire, lighting, windstorm, hail, explosion, riot, riot attending a
strike, civil commotion, aircraft, vehicles, and smoke and such other risks as are not or
hereafter included in the uniform standard extended coverage endorsement in common use for
similar structures (including vandalism and malicious mischief);




     (b) business interruption insurance (also referred to as “use and occupancy insurance”
or “rental income insurance”) in an amount not less than the principal and interest payments
required for the next succeeding twelve (12) months, covering loss of revenues and other
income by the Borrower by reason of total or partial suspension of, or interruption in the
operation of the Project cause by damage or destruction of the Project;



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     (c) boiler explosion insurance or steam boilers, if any, pressure vessels, and pressure
piping in an amount no less than 100% of the actual cost of repair or replacement of the
Project (with deductible provisions not to exceed $1,000 in any one occurrence) provided,
that such insurance need not be taken out until steam boilers, pressure vessels, or pressure
piping have been installed in the Project;




     (d) comprehensive general liability insurance providing insurance (with deductible
provisions not exceeding $5,000) to the extent of not less than $500,000 per occurrence
against liability for personal and bodily injury including death resulting therefrom,
$100,000 per occurrence for damage to property, including loss of use thereof, occurring on
or in any way related to the Project or any part thereof, with excess liability or
“umbrella” insurance for claims under such coverage in the aggregate of not less than
$2,000,000;




     (e) worker’s compensation coverage as required by the laws of the State of Georgia; and




     (f) insurance under the Federal Flood Insurance Program will be maintained at all times
within the minimum requirements and amounts required for federally financed or assisted
loans under the Flood Disaster Protection Act of 1973, as amended, if the Project is
eligible under such program.



     Proceeds of insurance required by (a), (c), and (f) in excess of $25,000 will be paid to the
Trustee and deposited into the Special Fund and disbursed by it in accordance with instructions
from the Borrower for the restoration of the Project except as otherwise provided in Section 7.1(a)
hereof. All policies of insurance shall provide for payment to the Issuer, the Borrower, and the
Trustee as their respective interests may appear, and the policies required by (a), (c) and (f)
shall name the Trustee as mortgagee.



     The Trustee shall have no duty to review the insurance required by this Section 5.10 (or the
certificates thereof) or to inquire as to the compliance thereof with this Section 5.10.



     Section 5.11. Condemnation of the Project . Unless the Borrower elects to
exercise any option it may have to prepay the Bonds, and if prior to full payment of the Bonds, or
provision for payment thereof having been
made, title to or temporary use of the Project is taken in any condemnation proceeding, the
proceeds of any condemnation award will be paid to the Trustee and applied, as directed by the
Borrower, to (a) the restoration of the Project, (b) the acquisition of a suitable replacement
which must be approved by the Issuer, or (c) redemption of all or a portion of the Bonds. If less
than all of the Bonds are redeemed, the Borrower must furnish a certificate of an independent
consulting architect (who must be approved by the Issuer) that the property taken was not
essential to the Borrower’s use and occupancy of the Project or that the Project has been restored
to a condition substantially equivalent to its condition prior to such taking or that a suitable
replacement has been found. Any condemnation award remaining after the costs of such restoration
or replacement will be paid into the Bond Fund and used to redeem



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the Bonds. Any condemnation
awards paid to the Borrower for damage to or taking of its own property not subject to the lien of
the Indenture shall be retained by the Borrower.




     If title to or the temporary use of a “substantial portion of the Project” is taken in any
condemnation proceeding, defined as such taking which results, in the opinion of an independent
consulting architect, in the Borrower being thereby prevented from carrying on its normal
operations for a period of three consecutive months, the Borrower will have the option to prepay
the Bonds by paying to the Trustee an amount equal to 100% of the principal amount of the Bonds,
plus accrued interest to the prepayment date.



     Section 5.12. Inspections . The Borrower covenants that it shall permit the
Issuer, Trustee, Underwriter, or any Bondholder holding, or group of Bondholders holding in the
aggregate, twenty-five percent (25%) or more in principal amount of all outstanding Bonds, or any
authorized representative of the foregoing, to examine, visit, and inspect, at any reasonable time
during normal business hours, upon reasonable notice to the Borrower, the Facility and their
respective accounts, books and records, including their receipts, disbursements, contracts,
investments and any other matters relating thereto and to their financial standing, and to supply
such reports and information as the Issuer and the Trustee (provided the Trustee shall have no duty
so to inspect) shall reasonably request.



ARTICLE VI.




EVENTS OF DEFAULT AND REMEDIES




     Section 6.1. Events of Default Defined . The following shall be “events of
default” hereunder and the term “event of default” shall mean, whenever it is used herein, any one
or more of the following events:




     (a) failure by the Borrower to make any payment required to be made under Section
4.2(a) hereof within five (5) business days of when the same becomes due and payable,
provided that this event of default may be cured by either a draw from the Debt Service
Reserve Fund by the Trustee or a payment by the County to the Trustee under the County
Contract or any combination thereof, so long as such draw is made by, or such payment is
made to, the Trustee within ten (10) business days of when such payment
required to be made under Section 4.2(a) hereof became due and payable;




     (b) failure by the Borrower to observe and/or perform any agreement hereunder or under
the Security Agreement, other than as referred to in subsection (a) or (b) of this Section,
for a period of thirty (30) days after written notice, specifying such failure and
requesting that it be remedied, given to the Borrower by the Issuer or the Trustee;
provided, however, in the case of any such default which can be cured with due diligence but
not within such 30-day period, the Borrower’s failure to proceed promptly to cure such
default and thereafter prosecute the curing of such default with due diligence.



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     (c) any representation by or on behalf of the Borrower contained in this Agreement or
in any instrument furnished in compliance with or in reference to this Agreement or the
Indenture proves false or misleading in any material respect as of the date of the making or
furnishing thereof;




(d) the operations of the Facility fail to generate ethanol sales of $1,000,000 or more for
any calendar month after September 30, 2008;




(e) the Facility closes or ceases to operate for more than thirty (30) consecutive days
after it has been placed in service, unless such closing or cessation of operations is
caused by an act of God, regulatory intervention or other cause outside the control of the
Borrower, in which case said thirty (30) consecutive days shall be tolled until such
involuntary closing or cessation has terminated;




(f) the Borrower defaults on any indebtedness in excess of $1,000,000, provided that in the
event that any such indebtedness is being contested in good faith and has not been
accelerated, such alleged indebtedness shall not constitute an Event of Default under this
Section 6.1(f) until there is a final determination that such amount is owed by the
Borrower;




(g) the Debt Service Reserve Fund is used to make all or any part of a debt service payment
on the Bonds and is not replenished in full within twelve (12) months, as set forth in
Section 606 of the Indenture;




     (h) the occurrence of an Act of Bankruptcy, dissolution, liquidation, insolvency
proceeding, or reorganization; and




     (i) an “event of default” occurs and is continuing under the Indenture.



     Section 6.2. Remedies . Whenever an event of default shall have happened and
be continuing, the Trustee, as the assignee and pledgee of the Issuer under the Indenture, may take
any one or more of the following remedial steps:




     (a) If the Trustee has accelerated payment of the Bonds under the Indenture, the
Trustee shall declare all payments required to be made under Section 4.2(a) hereof to
be immediately due and payable, whereupon the same shall become immediately due and payable;
provided, however, that upon the occurrence of an event of default described in Subsections
6.l(a) or (b) hereof, all payments required to be made under Section 4.2(a) hereof shall
become immediately due and payable without any further act or action on the part of any
person. If all payments required to be made under Section 4.2(a) hereof are accelerated,
the amount then due and payable by the Borrower as accelerated payments shall be the sum of
(i) the aggregate principal amount of the outstanding Bonds, (ii) all interest on the Bonds
then due and to become due to maturity whether by acceleration or otherwise, and (iii) all
other amounts due and payable to the Bondholders and/or to the Trustee with respect to the
payment of the Bonds including reasonable Counsel fees.



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     (b) Procedures pursuant to the terms of the Security Agreement and/or County Contract.




(c) The Trustee may take whatever action at law or in equity may appear necessary or
desirable to collect any sums then due and thereafter to become due hereunder or to enforce
performance and the observance of any agreement of the Borrower hereunder.


Any amounts collected pursuant to action taken under this Section shall be paid into the
appropriate account in the Bond Fund and applied in accordance with the provisions of the Indenture
and after payment in full of the Bonds and the payment of any costs occasioned by an event of
default hereunder, any excess moneys in the Bond Fund shall be returned to the Borrower.




     Section 6.3. No Remedy Exclusive . No remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy hereunder or now or
hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or
power accruing upon the occurrence of any event of default shall impair any such right or power or
shall be construed to be a waiver thereof, but any such right or power may be exercised from time
to time and as often as may be deemed expedient. The Trustee and the holders of the Bonds, subject
to the provisions of the Indenture, shall be entitled to the benefit of all agreements herein
contained.



     Section 6.4. Agreement to Pay Counsel Fees and Expenses . If there should
occur a default or an event of default hereunder and the Trustee or Issuer should employ Counsel or
incur other expenses for the collection of sums due hereunder or the enforcement of performance or
observance of any agreement on the part of the Borrower herein contained, the Borrower agrees that
it will on demand therefor pay to the Trustee and/or Issuer the reasonable fee of such Counsel
actually incurred and such other reasonable expenses so incurred by the Trustee and/or Issuer.



     If the Borrower should fail to make any payments required in this Section, such item shall
continue as an obligation of the Borrower until the same shall have been paid in full, and the
Borrower agrees to pay the same with interest thereon from the date such payment was due at the
rate per annum borne by the Bonds until paid in full.



     The provisions of this Section shall survive the termination of this Agreement.



     Section 6.5. Waiver of Events of Default and Rescission of Acceleration . If,
in compliance with the requirements of Section 906 of the Indenture, the Trustee shall waive any
event of default as therein defined and its consequences or rescind any declaration of acceleration
of payments of the principal of and interest on the Bonds, such waiver shall also waive any event
of default hereunder and its consequences and such rescission of a declaration of acceleration of
the principal of and interest on the Bonds shall also rescind any declaration of any acceleration
of all payments required to be made under Section 4.2 hereof. In case of any



-23-









 




such waiver or
rescission, or in case any proceeding taken by the Trustee on account of any such event of default
shall have been discontinued or abandoned or determined adversely, then and in every such case the
Issuer, the Borrower, the Trustee, and the holders of the Bonds shall be restored to their former
positions and rights hereunder, but no such waiver or rescission shall extend to any subsequent or
other event of default or impair any right consequent thereon.




ARTICLE VII.




PREPAYMENT UNDER AGREEMENT 




     Section 7.l. Option to Prepay Installment Amounts Under Agreement in Whole in
Certain Events . The Borrower shall have, and is hereby granted, the option to prepay at par
in whole the installment amounts required to be made under Section 4.2(a) hereof and to cancel or
terminate this Agreement if any of the following shall have occurred:




     (a) the Project shall have been damaged or destroyed to such an extent that, in the
judgment of the Borrower, (i) it cannot be reasonably restored within a period of three (3)
consecutive months to the condition thereof immediately preceding such damage or
destruction, (ii) the Borrower is thereby prevented from carrying on its normal operations
at the Project for a period of three (3) consecutive months, or (iii) to the extent that the
cost of restoration thereof would exceed the net proceeds of insurance required to be
carried thereto pursuant to Section 5.10 hereof.




     (b) title in and to, or the temporary use of, all or substantially all of the Project
shall have been taken under the exercise of the power of eminent domain by any governmental
authority, or person acting under governmental authority (including such a taking as, in the
judgment of the Borrower, results in the Borrower being prevented thereby from carrying on
its normal operations at the Project for a period of three (3) consecutive months).




     (c) as a result of any changes in the Constitution of the State of Georgia or the
Constitution of the United States of America or of legislative or administrative action
(whether state or federal), or by final decree, judgment, or order of any court or
administrative body (whether state or federal) entered after the contest thereof by the
Borrower in good faith, the Agreement shall become void or unenforceable or impossible of
performance.




     (d) legal curtailment of the Borrower’s use and occupancy of all or substantially all
of the Project for any reason other than that set forth in Subsection (b), which curtailment
shall, in the judgment of the Borrower, prevent the Borrower from carrying on its normal
operations at the Project for a period of three (3) consecutive months.



-24-









 






     (e) this Agreement is terminated prior to its expiration for any reason other than the
occurrence of an event of default.




     (f) the Borrower shall exercise its option to prepay pursuant to Section 305 of the
Indenture.


To exercise such option, the Borrower (i) shall, within ninety (90) days following the event giving
rise to the Borrower’s desire to exercise such option, deliver to the Issuer and the Trustee a
certificate, executed by an officer of the Borrower, stating (A) the event giving rise to the
exercise of such option, (B) that the Borrower has directed the Trustee to redeem all of the Bonds
in accordance with the provisions of the Indenture, (C) that the Borrower has discontinued, or at
the earliest practicable date will discontinue, its operation of the Project, and (D) the date upon
which such prepayment is to be made, which date shall not be less than forty-five (45) days nor
more than ninety (90) days from the date such notice is mailed; and (ii) shall make arrangements
satisfactory to the Trustee for the giving of the required notice of redemption price which shall
be paid to the Trustee by the Borrower upon its exercise of the option granted in this Section
shall be the sum of the following:





     (1) an amount of money which, when added to the amount then on deposit in the Bond
Fund, will be sufficient to pay and redeem all of the then outstanding Bonds on the earliest
applicable redemption date including, without limitation, principal plus accrued interest
thereon to said redemption date, plus




     (2) an amount of money equal to the Trustee’s and paying agents’ fees and expenses
under the Indenture accrued and to accrue until such final payment and redemption of the
Bonds.



     Section 7.2. Damage and Destruction .



     Pursuant to Section 7.1 hereof, unless the Borrower elects to exercise any option it may have
to prepay amounts payable under this Agreement, and if prior to full payment of the amounts payable
under this Agreement, or unless provision for payment thereof has been made, the Facility is
damaged or destroyed by fire or other casualty, all Net Proceeds, if in excess of
$5,000, will be paid to and held by the Trustee, whereupon (i) the Borrower will proceed promptly
to repair, rebuild, or restore the property damaged or destroyed to substantially the same
condition as existed prior to the event causing such damage or destruction and (ii) the Trustee
will apply so much as may be necessary of the Net Proceeds to the cost of repair, rebuilding and
restoration. If Net Proceeds are not sufficient to pay for such repair, rebuilding, or
restoration, the Borrower will nonetheless complete same. Any Net Proceeds remaining after payment
of all the costs of such repair, rebuilding or restoration will be paid into the Bond Fund and used
to redeem the Bonds.



     If substantially all of the Facility is damaged or destroyed, the Borrower will have the
option to prepay the Bonds by paying to the Trustee an amount equal to 100% of the principal amount
of the Bonds outstanding plus accrued interest to the redemption date, but with no premium. If the
Borrower exercises its option to prepay the Bonds, “damage or destruction of



-25-









 




substantially all of
the Project” is defined as such damage or destruction which prevents the Borrower from carrying on
its normal operations in the Facility for more than three consecutive months, or if the Facility
cannot be repaired, rebuilt or restored within three consecutive months or if the cost of repair,
rebuilding or restoration exceeds the Net Proceeds.




ARTICLE VIII.




MISCELLANEOUS




     Section 8.l. Term of Agreement . This Agreement shall terminate when payment
in full of the Bonds shall have been made.



     Section 8.2. Notices . All notices, approvals, consents, requests and other
communications hereunder shall be in writing and shall be deemed to have been given when delivered
or mailed by First Class Registered or Certified Mail, Return Receipt Requested, postage prepaid,
and addressed as follows:



	 	 	 
	(a) If to the Issuer:

	 	Mitchell County Development Authority
	 

	 	c/o Ms. Marilyn Royal
	 

	 	Executive Director
	 

	 	P.O. Box 692
	 

	 	Camilla, Georgia 31730
	 
	 	 
	with a copy to:

	 	Alfred J. Powell, Jr., Esq.
	 

	 	Powell & Waters P.C.
	 

	 	55 East Oakland Avenue
	 

	 	P.O. Box 188
	 

	 	Camilla, Georgia 31730-1832
	 
	 	 
	(b) If to the Borrower:

	 	First United Ethanol, LLC
	 

	 	2 West Broad Street
	 

	 	Camilla, Georgia 31730
	 
	 	 
	(c) If to the Trustee:

	 	Regions Bank
	 

	 	Attn: Richard (Rick) Jaegle
	 

	 	260 Peachtree Street
	 

	 	Suite 1800
	 

	 	Atlanta, Georgia 30303
	 
	 	 
	(e) If to the
	 	 
	      Placement Agent:

	 	Morgan Keegan & Company, Inc.
	 

	 	Attn: Cliff Kimsey, First VP
	 

	 	Two Buckhead Plaza, Suite 702
	 

	 	3050 Peachtree Road, N.W.
	 

	 	Atlanta, Georgia 30305






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     A duplicate copy of each notice, approval, consent, request or other communication given
hereunder by the Issuer, the Borrower, or the Trustee shall also be given to all of the others.
The Issuer, the Borrower, or the Trustee may, by notice given hereunder, designate any further or
different addresses to which subsequent notices, approvals, consents, requests or other
communications shall be sent or persons to whose attention the same shall be directed.



     Section 8.3 Binding Effect . This Agreement shall inure to the benefit of and
shall be binding upon the Issuer, the Borrower and their respective successors and assigns.



     Section 8.4. Severability . If any provision hereof shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.



     Section 8.5. Amounts Remaining in Project Fund or Bond Fund or Special Fund .
It is agreed by the parties hereto that any amounts remaining in the Project Fund or the Bond Fund
upon expiration or sooner termination of this Agreement, after payment in full of the Bonds and
payment of the fees, charges and expenses of the Trustee; and any paying agents in accordance with
the Indenture, shall belong to and be paid to the Borrower by the Trustee.



     Section 8.6. Delegation of Duties and Assignment of Rights by Issuer . It is
agreed that under the terms of this Agreement the Issuer has delegated certain of its duties
thereunder to the Borrower and that under the terms of the Indenture the Issuer has assigned
certain of its rights thereunder to the Trustee. The fact of such delegation shall be deemed a
sufficient compliance by the Issuer to satisfy the duties so delegated and the Issuer shall not be
liable in any way by reason of acts done or omitted by the Borrower, the Authorized Borrower
Representative or the Trustee. The Issuer shall have the right at all times to act in reliance
upon the authorization, representation or certification of the Authorized Borrower Representative
or the Trustee.



     Section 8.7. Amendments, Changes and Modifications . Except as otherwise
provided herein or in the Indenture, subsequent to the date of issuance and delivery of the Bonds
and prior to their payment in full, this Agreement may not be effectively amended except as
provided in Article XIII of the Indenture and may not be effectively amended or terminated without
the written consent of the Trustee.



     Section 8.8. Counterparts . This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.



     Section 8.9. Captions . The captions and headings herein are for convenience
only and in no way define, limit or describe the scope or intent of any provisions hereof.



     Section 8.10. Payments Due on Saturday, Sundays and Holidays . In any case
where the date of payment of the principal of or interest on the Bonds or the date fixed for
prepayment of the Bonds shall be in the city of payment a Saturday, Sunday or a legal holiday or a
day on



-27-









 




which banking institutes are authorized by law to close, then payment of such principal or
interest need not be made on such date but may be made on the next succeeding business date with
the same force and effect as if made on the date of stated Payment Date; provided, however,
interest shall accrue until the moneys are received by the Bondholder(s).




     Section 8.11. Law Governing Construction of Agreement . This Agreement shall
be governed by, and construed in accordance with, the laws of the State.



     IN WITNESS WHEREOF, the Issuer and the Borrower have caused this Agreement to be executed as
of the date first above written.



	 	 	 	 	 	 	 
	 	 	Mitchell County Development Authority	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	      /s/ Charles Rooks
 

               Vice Chairman
	 	 






[SEAL]




Attest:




	 	 	 
	         /s/ Marilyn Royal
 

Secretary

	 	 






-28-









 






	 	 	 	 	 	 	 
	 	 	FIRST UNITED ETHANOL, LLC	 	 
	 
	 	 	 	 	 	 
	[SEAL]
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	BY:
	 	       /s/ Murray Campbell
 

               Managing Member
	 	 






-29-









 






EXHIBIT A




REQUISITION AND CERTIFICATION




Requisition No.                          Date:                     



Regions Bank, as Trustee under the
Trust Indenture dated as of November 1, 2006, relating
to $10,000,000 Mitchell County Development Authority
Revenue Bonds (First United Ethanol, LLC Project), Series 2006




     The undersigned Authorized Borrower Representative designated pursuant to the terms of a Loan
Agreement, dated as of November 1, 2006 (the “Agreement”), between Mitchell County Development
Authority, a public body corporate and politic created and existing under the laws of the State of
Georgia (the “Issuer”), and First United Ethanol, LLC, a Georgia limited liability company (the
“Borrower”), hereby request that there be paid from the Project Fund (hereinbelow described) the
sum of $                    , and in that connection with respect to the use of the proceeds of
Mitchell County Development Authority Revenue Bonds (First United Ethanol, LLC Project), Series
2006 (the “Bonds”), DOES HEREBY CERTIFY, as follows:



     1. The requested payment is requested in order to satisfy an obligation in the stated amount
that has been incurred in connection with the issuance of the Bonds or the acquisition or
rehabilitation/reconfiguration of the Project and is a proper charge Against Mitchell County
Development Authority Project Fund — First United Ethanol, LLC Project, 2006, and has not been the
basis of any previous withdrawal from said Project Fund.



     2. Payment should be made to:



     Name:



     Address:



     3. Attached hereto is a bill, statement of account or a schedule showing in reasonable detail
the items with respect to which payment is being requested, and, if the Borrower or the Issuer is
to be reimbursed, proof of payment of such items is attached hereto, which proof is satisfactory to
the undersigned and the Trustee may act thereon.



     4. (a) The Borrower has no notice of any vendors,’ materialmens,’ mechanics,’ suppliers’ or
other similar liens or right to liens, chattel mortgages or conditional sales contracts, or other
contracts or obligations which should be satisfied or discharged before payment of such obligation
is made, or (b) this requisition is for the purpose of obtaining funds to be used to satisfy or
discharge a lien or contract of the type described in (a) above.



A-1





 









 








     5. This requisition contains no request for payment on account of any portion of such
obligation which the Borrower is, as of the date hereof, entitled to retain under retained
percentage agreements.



     6. Each and every representation of the Borrower set forth in the Agreement is true and
correct on and as of the date of this requisition.



     7. No default or event of default under the Agreement has occurred and is now continuing.



     8. The costs incurred as of the date of this requisition, when added to the estimated cost of
completing the “Project” (defined in the Agreement) demonstrate that the amount remaining in the
Project Fund for disbursement, after giving effect to the disbursement requested by this
requisition, will be sufficient to complete the Project or, if this is not the case, demonstrate
that the Borrower has on hand or has the ability to obtain the additional funds required to
complete the Project.



     9. With respect to any such item representing payment for labor, services, material, supplies
and/or equipment, insofar as such obligation was incurred for labor, services, material, supplies
and/or equipment in connection with the acquisition, construction and installation of the Project,
(i) such labor and/or services were actually performed in a satisfactory manner, and (ii) such
material, supplies and/or equipment were actually used in or about the construction of the Project
or delivered at the Project Site for that purpose and the item of equipment with respect to which
such payment is requested constitutes a portion of the Project.



	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Authorized Borrower Representative
	 	 






A-2