Exhibit 10.9


 


	
  

  	
  ED & F MAN TREASURY MANAGEMENT plc

  



 


28th May 2009


 


Mr T Masilla


Westway Group, Inc


365 Canal
Street


Suite 2900


New Orleans


LA 70130


USA


 


Dear Tom


 


In accordance
with our existing practices with you, this letter sets out the basis upon which
ED&F Man Treasury Management plc (“MTM”) makes available until 31st August 2009 the following facilities to Westway Group and its subsidiaries :


 


a)              a foreign exchange facility;


 


b)             an overdraft facility in foreign currencies;
and


 


c)              a facility for standby and documentary
letters of credit, bonds and guarantees (“Contingent Liabilities”)


 


a) The foreign exchange facility


 


Westway Group, Inc and its
subsidiaries may request MTM to transact foreign
exchange contracts for both spot and forward delivery up to 180 days from the
date of the contract for the sale or purchase of any freely convertible
currency.  You will benefit from the same
rate as MTM is given by the bank which is used to
hedge each foreign exchange contract. The net marked to market exposure limit
will be US$1,000,000, to be calculated by MTM.  Should you
exceed the exposure limit, you will pay the necessary margin in cash to reduce
the exposure to within the limit.  The
foreign exchange contracts will be settled via your overdraft facility in
foreign currencies.  You hereby agree to
check all confirmations sent to you within one day of receipt of such
confirmations.  You will notify any
discrepancies to Treasury Operations immediately and your failure to do so will
be at your risk.  Treasury Operations
will only accept payment instructions from you which are duly authorised in
accordance with your signature mandates.


 

















 


b) Overdraft facility in foreign currencies


 


Westway Group, Inc and its
subsidiaries may borrow up to an aggregate limit of the equivalent of US$5,000,000 in various currencies by overdrawing your
current accounts with MTM, by way of your issuing a
payment instruction in accordance with our existing practices.  Interest on such accounts will be charged at
the one month LIBOR rate plus 3.5%, fixed daily.  This is the same charging mechanism as you
have benefitted from historically.  The outstanding amounts under this overdraft
facility will be payable on demand.


 


For deposits
of any kind, you will be paid interest based on LIBOR.  Interest will be credited by MTM on a monthly basis, and calculated on a 365 day year
for Sterling deposits, and a 360 day year for deposits in other currencies.


 


c) The contingent liability facility


 


Subject to MTM having available credit facilities over and above those
required for its own business, MTM will request its
banks to issue contingent liabilities on their terms and conditions in the name
of Westway Group, Inc or any of its subsidiaries, but
under the risk and responsibility of MTM in relation to
the banks we use to issue such instruments. 
Requests to issue contingent liabilities must be signed in accordance
with your signature mandate.  Please sign
and return the attached General Counter Indemnity which will cover any
instruments outstanding at today’s date, and any instruments we agree to issue
on your behalf in the future.  You will
be charged fees of 2% per annum, payable monthly on such contingent
liabilities, or such higher amounts as MTM may itself
have to pay to its banks.


 


MTM shall be entitled to
terminate or suspend any of the above arrangements following any default by Westway Group, Inc and/or any of its subsidiaries in
respect of any of these arrangements or the Interim Facility Agreement dated 28th May 2009.


 


Please sign
the attached list of outstanding current account balances, foreign exchange
contracts and contingent liabilities to signify that you accept responsibility
for their due and prompt performance.


 


This letter is
hereby designated a Finance Document under the Facility Agreement for US$100,000,000 dated 28th May 2009 between Westway
Group, Inc, Westway Holdings Netherlands BV as
borrowers, Westway Group, Inc as guarantor, and ED&F Man Treasury Management plc as lender.


 

















 


Please sign
and return the attached duplicate of this letter, the attached General
Counter-indemnity, and the attached outstanding liabilities in respect of
current account overdrafts, foreign exchange contracts and contingent
liabilities.


 


Yours
sincerely


 


	
  /s/ Molly W
  Harvey

  	
   

  
	
  Molly W
  Harvey

  



Director


 


ACCEPTED AND
AGREED


For and on
behalf of Westway Group, Inc and its subsidiaries


 


	
  /s/ Thomas Masilla

  	
   

  
	
  Thomas Masilla

  



Chief
Financial Officer


 

















 


EXISTING CONTINGENT LIABILITIES as at 28th May 2009


WESTWAY GROUP, INC


 


1) Westway
Terminals Nederland BV - EUR 1,487,672.00 Customs
Bond, issued by Fortis Bank, Amsterdam in favour of Belastingdienst
Douane  Noord - no expiry
date.


 


2) Westway
Feeds Products Inc.- US$333,900.00 a Performance Bond
issued by Fortis Bank, London, in favour of Green Earth Fuels of Houston LLC -
current expiry date 20th June 2009.


 


Accepted for and on behalf
of Westway Group, Inc


 


	
  /s/ Thomas Masilla

  	
   

  
	
  Thomas Masilla

  



Chief Financial Officer
















 


GENERAL COUNTER INDEMNITY


 


	
  TO:

  	
   

  	
  E D & F Man Treasury Management plc

  
	
   

  	
   

  	
  Cottons Centre, Hay’s Lane, London SE1 2QE address

  



 


WHEREAS


 


from time to time pursuant to and in accordance with the facility
letter dated 28th May 2009
agreed between us we, Westway Group, Inc (the “Company”)  may request and you may agree, on our behalf,
and at our risk and responsibility in our own name or in the name of our
subsidiaries, to issue indemnities, standby letters of credit, guarantees, bid
bonds, performance bonds, advance payment bonds or retention bonds and similar
instruments (each an “Undertaking” and together the “Undertakings” which
expression includes any amendment or variation thereto effected at our
request);


 


NOW THEREFORE


 


In consideration of your issuing or procuring the issuing of any
Undertaking pursuant to our request we hereby agree as follows:


 


1.                                      To
indemnify you and keep you indemnified from and against all actions,
proceedings, claims and demands which may be brought or made against you and
all losses, costs, charges, damages and expenses (including all reasonable
legal and other costs, charges and expenses you may incur in connection with
any Undertaking, or in enforcing or attempting to enforce your rights under
this Indemnity) which you may incur or sustain or for which you may become
liable by reason either directly or indirectly of you having issued any
Undertaking (the “Liabilities”) and to pay to you on demand all payments,
losses, costs, charges and expenses (including all reasonable legal and other
costs, charges and expenses you may incur in connection with any Undertaking,
or in enforcing or attempting to enforce your rights under this Indemnity)
made, incurred or sustained by you in consequence thereof or arising therefrom
together with interest thereon at your prevailing rate for the time being for
call money loans in the appropriate currency in the London Interbank market
from the date on which any Liability was first paid or incurred by you to the
date of actual payment thereof in full by us after as well as before judgment.


 


2.                                      To
further indemnify you against any loss incurred by you as a result of any
judgment or order being given or made for the payment of any amount due
hereunder and such judgment or order being expressed in a currency other than
that in which such amount is payable by us hereunder, and as a result of any
variation having occurred in rates of exchange between the date at which such
amount is converted into such other currency for the purposes of such judgment
or order and the date of actual payment pursuant thereto. The foregoing
indemnity shall constitute a separate and independent obligation on our part
and shall continue in full force and effect notwithstanding any such judgment
or order as aforesaid.


 


3.                                      With
respect to any Undertaking issued pursuant to our request you are hereby
irrevocably authorised and directed to pay forthwith any sums which may be
demanded of you from time to time and which appear or purport on their face to
be made in accordance with the terms of such Undertaking and 


 

















 


by or on behalf of the beneficiary of the relevant Undertaking up to
the limit of your liability under such Undertaking without any reference to or
any necessity for confirmation or verification on our part; provided always that
in the event that an Undertaking stipulates that a demand made upon you shall
be accompanied by any document or documents then such document or documents
must appear on its or their face to be in accordance with the terms of the
Undertaking.


 


4.                                      This
Indemnity shall be a continuing indemnity and shall extend to the ultimate
balance of the Liabilities incurred by you under or pursuant to the
Undertakings. This Indemnity shall be in addition to any other security held by
you in respect of the Undertakings.


 


5.                                      All
amounts payable by us hereunder shall be paid to you in immediately available
funds in the same currency stipulated in the demand pursuant to which such
payment is made at your office or such bank or office as you may designate and
made without set-off or counter-claim and free and clear of all taxes and
without any deduction whatsoever. If we are obliged to make any such deduction
we will pay such additional amounts as may be necessary to ensure that you
receive an amount equal to the full amount demanded.


 


6.                                      You
are to be at liberty, but not bound, to resort for your own benefit to any
other means of payment at any time and in any order you think fit without
thereby diminishing our liability hereunder and you may enforce your rights
under this Indemnity either for the payment of the ultimate balance after
resorting to other means of payment or for the balance due at any time
notwithstanding that other means of payment have not been resorted to and in
the latter case without entitling us to any benefit from such other means of
payment so long as any monies remain due or owing or payable (whether actually
or contingently) from or by us to you.


 


7.                                      This
Indemnity shall be governed by and construed in accordance with English
law.  The courts of England have
exclusive jurisdiction to settle any dispute arising out of or in connection
with this Indemnity (including a dispute regarding the existence, validity or
termination of this Indemnity).


 


IN WITNESS whereof this Indemnity has been signed on behalf of the
Company.


 


 


	
  By:

  	
  /s/ Thomas
  Masilla

  	
   

  
	
   

  	
  Thomas Masilla

  
	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  28th May 2009