Attached files
file | filename |
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EX-10.1 - EXHIBIT 10.1 - FIRST UNITED ETHANOL LLC | c12846exv10w1.htm |
EX-10.2 - EXHIBIT 10.2 - FIRST UNITED ETHANOL LLC | c12846exv10w2.htm |
EX-31.1 - EXHIBIT 31.1 - FIRST UNITED ETHANOL LLC | c12846exv31w1.htm |
EX-32.1 - EXHIBIT 32.1 - FIRST UNITED ETHANOL LLC | c12846exv32w1.htm |
EX-10.3 - EXHIBIT 10.3 - FIRST UNITED ETHANOL LLC | c12846exv10w3.htm |
EX-31.2 - EXHIBIT 31.2 - FIRST UNITED ETHANOL LLC | c12846exv31w2.htm |
EX-32.2 - EXHIBIT 32.2 - FIRST UNITED ETHANOL LLC | c12846exv32w2.htm |
EX-10.4 - EXHIBIT 10.4 - FIRST UNITED ETHANOL LLC | c12846exv10w4.htm |
Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
þ | Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the quarterly period ended December 31, 2010
o | Transition report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the transition period from to
Commission file number 000-53039
FIRST UNITED ETHANOL, LLC
(Name of registrant as specified in its charter)
Georgia | 20-2497196 | |
(State or other jurisdiction of | (I.R.S. Employer Identification No.) | |
incorporation or organization) | ||
4433 Lewis B. Collins Road, Pelham, Georgia | 31779 | |
(Address of principal executive offices) | (Zip Code) |
(229) 522-2822
(Registrants telephone number)
(Registrants telephone number)
Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section
13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
o Yes þ No
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files).
o Yes
o No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer o | Accelerated filer o | Non-accelerated filer o | Smaller reporting company þ | |||
(Do not check if a smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act).
o Yes þ No
Indicate the number of shares outstanding of each of the issuers classes of common stock, as of
the latest practicable date: As of February 14, 2011 there were 81,984 membership units
outstanding.
INDEX
Page | ||||||||
3 | ||||||||
3 | ||||||||
18 | ||||||||
29 | ||||||||
29 | ||||||||
29 | ||||||||
29 | ||||||||
29 | ||||||||
32 | ||||||||
32 | ||||||||
33 | ||||||||
33 | ||||||||
33 | ||||||||
33 | ||||||||
Exhibit 10.1 | ||||||||
Exhibit 10.2 | ||||||||
Exhibit 10.3 | ||||||||
Exhibit 10.4 | ||||||||
Exhibit 31.1 | ||||||||
Exhibit 31.2 | ||||||||
Exhibit 32.1 | ||||||||
Exhibit 32.2 |
2
Table of Contents
PART I FINANCIAL INFORMATION
Item 1. | Financial Statements. |
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
December 31, 2010 | September 30, 2010 | |||||||
(Unaudited) | ||||||||
ASSETS |
||||||||
CURRENT ASSETS |
||||||||
Cash and cash equivalents |
$ | 214,407 | $ | 586,466 | ||||
Trade receivables, net of allowance for doubtful
accounts of approximately $88,000_and $30,000, respectively |
6,511,300 | 5,088,073 | ||||||
Due from broker |
457 | 457 | ||||||
Inventory |
8,652,987 | 9,859,841 | ||||||
Other assets |
1,361,299 | 1,100,281 | ||||||
Total current assets |
16,740,450 | 16,635,118 | ||||||
PROPERTY AND EQUIPMENT |
||||||||
Office building, furniture and equipment |
1,103,781 | 1,103,781 | ||||||
Land and improvements |
2,508,148 | 2,508,148 | ||||||
Plant buildings and equipment |
161,540,082 | 161,476,853 | ||||||
165,152,011 | 165,088,782 | |||||||
Less accumulated depreciation |
(19,731,570 | ) | (17,528,484 | ) | ||||
145,420,441 | 147,560,298 | |||||||
RESTRICTED CASH AND CERTIFICATES OF DEPOSIT |
149,149 | 2,779,643 | ||||||
FINANCING COSTS, net of amortization of $ and $2,894,432 |
| 3,723,703 | ||||||
TOTAL ASSETS |
$ | 162,310,040 | $ | 170,698,762 | ||||
LIABILITIES AND MEMBERS EQUITY |
||||||||
CURRENT LIABILITIES |
||||||||
Excess of outstanding checks over bank balance |
$ | 335,109 | $ | | ||||
Revolving line of credit |
14,699,991 | 13,634,129 | ||||||
Current portion of long-term debt |
104,382,072 | 11,081,911 | ||||||
Current portion of capital lease obligations |
1,241,343 | 1,706,620 | ||||||
Current portion of interest rate swap liability |
420,967 | 525,658 | ||||||
Accounts payable and accrued expenses |
8,642,910 | 11,979,176 | ||||||
Accrued interest |
3,181,806 | 847,363 | ||||||
Deferred revenue |
| 411,423 | ||||||
Total current liabilities |
132,904,198 | 40,186,280 | ||||||
INTEREST RATE SWAP LIABILITY |
| 131,414 | ||||||
CAPITAL LEASE OBLIGATIONS |
1,916,680 | 2,007,748 | ||||||
ACCRUED INTEREST |
| 1,374,686 | ||||||
LONG-TERM DEBT |
| 94,481,878 | ||||||
TOTAL LIABILITIES |
134,820,878 | 138,182,006 | ||||||
COMMITMENTS AND CONTINGENCIES |
||||||||
MEMBERS EQUITY |
||||||||
Membership contributions, 81,984 units issued and outstanding |
77,471,773 | 77,422,691 | ||||||
Accumulated deficit |
(49,982,611 | ) | (44,905,935 | ) | ||||
Total members equity |
27,489,162 | 32,516,756 | ||||||
TOTAL LIABILITIES AND MEMBERS EQUITY |
$ | 162,310,040 | $ | 170,698,762 | ||||
See Notes to Consolidated Financial Statements.
3
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
Three months ending | Three months ending | |||||||
December 31, 2010 | December 31, 2009 | |||||||
(Unaudited) | (Unaudited) | |||||||
Revenues |
$ | 71,872,501 | $ | 57,434,517 | ||||
Cost of goods sold |
69,249,844 | 47,490,413 | ||||||
Gross profit |
2,622,657 | 9,944,104 | ||||||
General and administrative expenses |
1,023,759 | 1,190,165 | ||||||
Operating income |
1,598,898 | 8,753,939 | ||||||
Other income (expense) |
||||||||
Unrealized gain (loss) on interest rate swap |
236,105 | 341,402 | ||||||
Interest expense |
(6,912,019 | ) | (2,133,776 | ) | ||||
Interest income |
340 | 234 | ||||||
(6,675,574 | ) | (1,792,140 | ) | |||||
Net income (loss) |
$ | (5,076,676 | ) | $ | 6,961,799 | |||
Net income (loss) per unit (Basic and Diluted) |
$ | (61.92 | ) | $ | 84.92 | |||
Weighted average units outstanding |
81,984 | 81,984 | ||||||
See Notes to Consolidated Financial Statements.
4
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
Three months ending | Three months ending | |||||||
December 31, 2010 | December 31, 2009 | |||||||
(Unaudited) | (Unaudited) | |||||||
CASH FLOWS FROM OPERATING ACTIVITIES |
||||||||
Net income (loss) |
$ | (5,076,676 | ) | $ | 6,961,799 | |||
Adjustments to reconcile net income (loss) to net
cash provided by (used in) operating activities: |
||||||||
Depreciation |
2,197,772 | 2,184,488 | ||||||
Amortization of deferred financing costs |
3,723,702 | 252,554 | ||||||
Non-cash compensation expense |
49,082 | 49,082 | ||||||
Unrealized (gain) on interest rate swap |
(236,105 | ) | (341,402 | ) | ||||
Provision (recovery) of doubtful receivables |
58,000 | 4,500 | ||||||
Changes in assets and liabilities: |
||||||||
Increase in trade receivables |
(1,481,227 | ) | (511,922 | ) | ||||
Increase in due from broker |
| (94,833 | ) | |||||
Decrease in inventory |
1,206,854 | 912,917 | ||||||
Increase in other assets |
(261,018 | ) | (83,302 | ) | ||||
Decrease in accounts payable and
accrued expenses |
(3,336,266 | ) | (2,335,020 | ) | ||||
Increase in accrued interest payable |
1,653,591 | 216,891 | ||||||
Decrease in deferred revenue |
(411,423 | ) | | |||||
Decrease in derivative financial instruments |
| (61,325 | ) | |||||
Net cash provided by (used in) operating activities |
(1,913,714 | ) | 7,154,427 | |||||
CASH FLOWS FROM INVESTING ACTIVITIES |
||||||||
Purchase of certificates of deposit |
| (50,000 | ) | |||||
Purchase of property and equipment, net of returns |
(57,914 | ) | (1,893 | ) | ||||
Net cash (used in) investing activities |
(57,914 | ) | (51,893 | ) | ||||
CASH FLOWS FROM FINANCING ACTIVITIES |
||||||||
Repayment of long-term debt and capital lease obligations |
(2,173,347 | ) | (1,608,529 | ) | ||||
Proceeds from revolving line of credit |
1,065,862 | | ||||||
Release (funding) of restricted cash balance |
2,371,945 | (84 | ) | |||||
Excess of outstanding checks over bank balance |
335,109 | (81,555 | ) | |||||
Net cash provided by (used in) financing activities |
1,599,569 | (1,690,168 | ) | |||||
Increase (decrease) in cash and cash equivalents |
(372,059 | ) | 5,412,366 | |||||
Cash and cash equivalents, beginning of period |
586,466 | | ||||||
Cash and cash equivalents, end of period |
$ | 214,407 | $ | 5,412,366 | ||||
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION |
||||||||
Cash paid for interest |
$ | 2,228,560 | $ | 2,403,081 | ||||
SUPPLEMENTAL DISCLOSURE OF NONCASH INVESTING AND FINANCING ACTIVITIES |
||||||||
Repayment of notes and interest payable paid by Bond Trustee |
$ | 1,070,285 | $ | 1,338,750 |
See Notes to Consolidated Financial Statements.
5
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 1. ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES
Nature of Business
First United Ethanol, LLC and subsidiary (the Company) is located near Camilla, Georgia. The
Company operates a 100 million gallon name plate capacity ethanol plant with distribution within
the United States. The Company formally began ethanol operations in October 2008.
The Company was formally organized as a limited liability company on March 9, 2005 under the name
Mitchell County Research Group, LLC. In September 2005, the Company formally changed its name to
First United Ethanol, LLC. In November 2007, the Companys wholly owned subsidiary, Southwest
Georgia Ethanol, LLC (SWGE) was formed in conjunction with the debt financing agreement with West
LB. First United Ethanol, LLC transferred the majority of its assets and liabilities to Southwest
Georgia Ethanol, LLC.
During the first quarter of the fiscal year ending September 30, 2011, the Company continued to
suffer losses from operations thus continuing liquidity restraints due to limits on its working
capital line which was up for renewal in February 2011. Faced with these constraints, on February
1, 2011, Southwest Georgia Ethanol, LLC, the wholly owned subsidiary, filed voluntary petitions for
relief (collectively, the Bankruptcy Filing) under Chapter 11 (Chapter 11) of the United States
Bankruptcy Code (the Bankruptcy Code) with the United States Bankruptcy Court for the Middle
District of Georgia Albany Division (the Bankruptcy Court). SWGE intends to continue to operate
its business as debtor-in-possession under the jurisdiction of the Bankruptcy Court and in
accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy
Court. See Note 9 Subsequent Events.
The accompanying unaudited condensed consolidated financial statements have been prepared assuming
we will continue as a going concern, which assumes continuity of operations and realization of
assets and satisfaction of liabilities in the ordinary course of business. Our ability to continue
as a going concern is dependent upon, among other things, (i) our ability to secure the remainder
debtor-in-possession financing; (ii) our ability to comply with the terms and conditions of any
debtor-in-possession financing entered by the Bankruptcy Court in connection with the Chapter 11
cases; (iii) our ability to maintain adequate cash on hand; (iv) our ability to generate cash from
operations; (v) our ability to obtain confirmation of and to consummate a plan of reorganization
under the Bankruptcy Code; (vi) the cost, duration and outcome of the reorganization process; and
(vii) our ability to achieve profitability. Uncertainty as to the outcome of these factors raises
substantial doubt about the Companys ability to continue as a going concern. We are currently
evaluating various courses of action to address the operational and liquidity issues the Company is
facing and there can be no assurance that any of these efforts will be successful. The accompanying
consolidated financial statements do not include any adjustments that might result should we be
unable to continue as a going concern.
Basis of Presentation
The consolidated financial statements and related notes have been prepared in accordance with
accounting principles generally accepted in the United States of America.
The accompanying financial information of the Company is unaudited; however, such information
reflects all adjustments (consisting of normal recurring adjustments) which are, in the opinion of
management, necessary for a fair presentation of the financial position and results of operations.
The results of operations for the three months ended December 31, 2010 are not necessarily
indicative of the results that may be expected for the full year. These statements should be read
in conjunction with the financial statements and related notes included in the Companys Annual
Report on Form 10-K for the year ended September 30, 2010.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and its 100% owned
subsidiary. All material inter-company accounts and transactions are eliminated in consolidation.
6
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Use of Estimates
The preparation of consolidated financial statements, in conformity with accounting principles
generally accepted in the United States of America requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, and the disclosures of
contingent assets and liabilities and other items, as well as the reported revenues and expenses.
Actual results could differ from those estimates.
Cash and Cash Equivalents and Restricted Cash and Certificates of Deposit
The Company considers all highly liquid investments with original maturities of three months or
less to be cash equivalents. The Companys cash balances are maintained in bank depositories and
periodically exceed federally insured limits. The Company has not experienced losses in these
accounts. The Company segregates cash held in escrow, cash restricted and certificates of deposit
restricted for use by debt agreements as non-current.
Trade Accounts Receivable
Trade accounts receivable are recorded at original invoice amounts less an estimate made for
doubtful receivables based on a review of all outstanding amounts on a monthly basis. Management
determines the allowance for doubtful accounts by regularly evaluating individual customer
receivables and considering customers financial condition, credit history and current economic
conditions. Receivables are written off when deemed uncollectible. Recoveries of receivables
written off are recorded when received.
Inventories
Ethanol and related products, raw materials and work-in-process are valued using methods which
approximate the lower of cost (first-in, first-out) or market. In the valuation of inventories and
purchase and sale commitments, market is based on current replacement values except that it does
not exceed net realizable values and is not less than net realizable values reduced by allowances
for approximate normal profit margin.
Financing Costs
Financing costs associated with the loans discussed in Note 7 have been recorded at cost and
include expenditures directly related to securing debt financing. In February 2011, the Company
filed for Chapter 11 Bankruptcy (see Note 1) relief from the loans which gave rise to the deferred
financing costs. In conjunction with this filing, the Company expensed the remaining net book
value of its deferred financing costs as of December 31, 2010. The financing costs are included in
interest expense in the statement of operations and total approximately $3,724,000 for the three
months ended December 31, 2010.
Property and Equipment
Property and equipment is stated at cost. Depreciation is computed using the straight-line method
over the following estimated useful lives:
Buildings
|
20 Years | |
Plant and Process Equipment
|
5-20 Years | |
Office Furniture and Equipment
|
3-10 Years |
Maintenance and repairs are charged to expense as incurred; major improvements and betterments are
capitalized. The present value of capital lease obligations are classified as long-term debt and
the related assets are included in property and equipment. Amortization of assets under capital
lease is included in depreciation expense.
7
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate
that the carrying amount of the asset may not be recoverable. An impairment loss would be
recognized when estimated undiscounted future cash flows from operations are less than the carrying
value of the asset group. An impairment
loss would be measured by the amount by which the carrying value of the asset exceeds the fair
value of the asset. In accordance with Company policies, management has evaluated the plant for
possible impairment based on projected undiscounted future cash flows from operations. Management
has determined that its projected undiscounted future cash flows from operations exceed the
carrying value of the plant and that no impairment exists at December 31, 2010. However, due to
the Companys recent filing for Bankruptcy protection, there can be no assurances that the value of
the plant will be recovered through future cash flows.
Investment in Commodities Contracts, Derivative Instruments and Hedging Activities
The Company is exposed to certain risks related to its ongoing business operations. The primary
risks that the Company manages by using forward or derivative instruments are price risk on
anticipated purchases of corn and natural gas.
The Company is subject to market risk with respect to the price and availability of corn, the
principal raw material used to produce ethanol and ethanol by-products. In general, rising corn
prices result in lower profit margins and, therefore, represent unfavorable market conditions.
This is especially true when market conditions do not allow the Company to pass along increased
corn costs to our customers. The availability and price of corn is subject to wide fluctuations
due to unpredictable factors such as weather conditions, farmer planting decisions, governmental
policies with respect to agriculture and international trade and global demand and supply.
Certain contracts that literally meet the definition of a derivative may be exempted from
derivative accounting as normal purchases or normal sales. Normal purchases and normal sales are
contracts that provide for the purchase or sale of something other than a financial instrument or
derivative instrument that will be delivered in quantities expected to be used or sold over a
reasonable period in the normal course of business. Contracts that meet the requirements of normal
purchases or sales are documented as such and exempted from the accounting and reporting
requirements of derivative accounting.
The Company enters into firm-price purchase commitments every month with its natural gas suppliers
under which they agree to buy natural gas at a price set in advance of the actual delivery of that
natural gas to us. Under these arrangements, the Company assumes the risk of a price decrease in
the market price of natural gas between the time this price is fixed and the time the natural gas
is delivered. The Company accounts for these transactions as normal purchases, and accordingly,
does not mark these transactions to market nor does the Company record the commitment on the
balance sheet.
The Company enters into short-term cash, options and futures contracts as a means of securing corn
pricing for the ethanol plant and managing exposure to changes in commodity prices. The Company
maintains a risk management strategy that uses derivative instruments to minimize significant,
unanticipated earnings fluctuations caused by market fluctuations. The Companys specific goal is
to protect the Company from large moves in commodity costs. All derivatives will be designated as
non-hedge derivatives for accounting purposes and the contracts will be accounted for at fair
value. Although the contracts will be effective economic hedges of specified risks, they are not
designated as and accounted for as hedging instruments.
As part of its trading activity, the Company uses futures and option contracts offered through
regulated commodity exchanges to reduce risk and is exposed to risk of loss in the market value of
inventories. To reduce that risk, the Company generally takes positions using cash and futures
contracts and options.
To ensure an adequate supply of corn to operate the plant, the Company enters into contracts to
purchase corn from local farmers and its major suppliers. At December 31, 2010, the Company had
fixed price contracts totaling approximately $9,195,000 based upon the average per bushel price.
8
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The Company has also managed a portion of its floating interest rate exposure through the use of
interest rate derivative contracts. The Companys forward LIBOR-based contract reduces risk from
interest rate movements as gains and losses on the contract offset portions of the interest rate
variability of our variable-rate debt. The notional amount of the swap at December 31, 2010 and
September 30, 2010 was $19,788,837 and $25,182,610, respectively. The effect of the swap is to
limit the interest rate exposure on the LIBOR component to a fixed rate of 4.04% compared to a
variable interest rate. The swaps notional amount will decrease quarterly to $0 by the termination
date of December 31, 2011. The counterparty to the contracts is a large commercial bank, and the
Company does not anticipate their nonperformance. The swap is designated as a non-hedge derivative
and is accounted for as mark to market. The estimated fair value of this agreement at December 31,
2010 and September 30, 2010, was a liability of approximately $420,967 and $657,000, respectively.
Derivatives not designated as hedging instruments at December 31, 2010 and 2009 and September 30,
2010 were as follows:
Balance Sheet | December 31, | September 30, | ||||||||
Classification | 2010 | 2010 | ||||||||
Interest rate swap |
(Current Liabilities) | (420,967 | ) | (525,658 | ) | |||||
Interest rate swap |
(Non-Current Liabilities) | (131,414 | ) |
Statement of | Three months | Three months | ||||||||
Operations | December 31, | December 31, | ||||||||
Classification | 2010 | 2009 | ||||||||
Net realized and unrealized
gains related to futures and
options contracts corn |
Cost of goods sold | | (112,450 | ) | ||||||
Net realized and unrealized
Gains (losses) related to the
interest rate swap |
Other non-operating (expense) | 236,105 | (114,802 | ) |
Revenue Recognition
The Company recognizes revenue when it is realized or realizable and earned. The Company considers
revenue realized or realizable and earned when it has persuasive evidence of an arrangement,
delivery has occurred, the sales price is fixed or determinable, and collection is reasonably
assured.
Revenue from the production of ethanol and related products is recorded at the time title and all
risks of ownership transfer to customers, which is typically upon loading and shipping of the
product from the facility. Commissions are included in cost of goods sold. In addition, shipping
and handling costs incurred by the Company for the sale of ethanol and related products are
included in cost of goods sold.
Revenue by product is as follows for the three months ending December 31, 2010 and 2009:
2010 | 2009 | |||||||
Ethanol |
$ | 57,469,774 | $ | 48,564,366 | ||||
Distillers grain |
14,054,508 | 8,865,724 | ||||||
Other |
348,219 | 4,427 | ||||||
Total |
$ | 71,872,501 | $ | 57,434,517 | ||||
Interest income is recognized as earned.
9
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Net Income (Loss) per Membership Unit
For purposes of calculating basic and diluted net income (loss) per member unit, units subscribed
and issued by the Company are considered outstanding on the effective date of issue and are
weighted by days outstanding.
Income Taxes
The Company is organized as a partnership for federal and state income tax purposes and generally
does not incur income taxes. Instead, the Companys earnings and losses are included in the income
tax returns of the members. Therefore, no provision or liability for federal or state income taxes
has been included in these financial statements.
Management has evaluated the Companys tax positions under the Financial Accounting Standards Board
issued guidance on accounting for uncertainty in income taxes and concluded that the Company has
taken no uncertain tax positions that require adjustment to the financial statements to comply with
the provisions of this guidance. With few exceptions, the Company is no longer subject to income
tax examinations by the U.S. Federal, state or local authorities for the years before 2007.
Fair Value of Financial Instruments
Financial instruments include cash and cash equivalents, derivative instruments, trade receivables,
accounts payable, and accrued expenses. Management believes the fair value of each of these
financial instruments approximates their carrying value on the balance sheet as of the balance
sheet date. The fair value of current financial instruments is estimated to approximate carrying
value due to the short-term nature of these instruments. The Company believes it is not practical
to estimate the fair value of the long-term debt.
Risks and Uncertainties
The Company has certain risks and uncertainties that it will experience during volatile market
conditions, which can have a severe impact on operations. The Companys revenues are derived from
the sale and distribution of ethanol and distiller grains to customers primarily located in the
United States. Corn for the production process is supplied to the plant primarily from local
agricultural producers and from purchases on the open market.
The Companys operating and financial performance is largely driven by the prices at which we sell
ethanol and the net expense of corn. The price of ethanol is influenced by factors such as supply
and demand, weather, government policies and programs, and unleaded gasoline and the petroleum
markets, although since 2005 the prices of ethanol and gasoline began a divergence with ethanol
selling for less than gasoline at the wholesale level. Excess ethanol supply in the market, in
particular, puts downward pressure on the price of ethanol. Our largest cost of production is
corn. The cost of corn is generally impacted by factors such as supply and demand, weather,
government policies and programs, and our risk management program used to protect against the price
volatility of these commodities.
The current U.S. economic condition has reduced the nations demand for energy. In addition, the
VEETC credit of $0.45 is set to expire in December 2011, creating additional uncertainty to the
future of ethanol production. The ethanol boom of recent years has spurred overcapacity in the
industry and production capacity is currently exceeding the RFS mandates. As such, the Company may
need to evaluate whether crush margins will be sufficient to operate the plant and generate enough
debt service. In the event crush margins become negative for an extended period of time, the
Company may be required to reduce capacity or shut down the plant. The Company will continue to
evaluate crush margins on a regular basis.
10
Table of Contents
FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 2. INVENTORIES
A summary of inventories at December 31, 2010 and September 30, 2010 is as follows:
December 31, | September 30, | |||||||
2010 | 2010 | |||||||
Corn |
$ | 2,303,077 | $ | 4,943,188 | ||||
Denaturant and chemical supplies |
430,051 | 432,434 | ||||||
Work in process |
1,728,000 | 1,902,712 | ||||||
Ethanol |
3,223,279 | 1,618,807 | ||||||
Distiller grains |
968,580 | 962,700 | ||||||
Total |
$ | 8,652,987 | $ | 9,859,841 | ||||
NOTE 3. MEMBERS EQUITY
In August 2010, the Board of Directors voted to begin the process of reclassification and
reorganization of the Companys membership units. The Company filed a preliminary proxy statement
with the SEC on October 15, 2010 giving notice to the unit holders of a special meeting in which
they will be asked to approve a proposed Third Amended and Restated Operating Agreement. The SEC
is currently reviewing the proposed transaction. The result of such amendment and restatement will
be the reclassification of the Companys units into newly authorized Class A, Class B and Class C
Units. If the transaction is completed, the units of the Companys unit holders of record who hold
100 or more of common equity units will be renamed as Class A Units. Unit holders of record who
hold at least 99 units but no more than 21 units will receive one Class B Unit for each common
equity unit held by such unit holders immediately prior to the effective time of the
reclassification. Unit holders of record who hold 20 or fewer units will receive one Class C Unit
for each common equity unit held by such unit holders immediately prior to the effective time of
the reclassification. The effect of the reclassification will be to reduce the recorded number of
unit holders of the Companys common equity units to less than 300. This would enable the Company
to voluntarily terminate the registration of its units under the Securities and Exchange Act of
1934 and remove its public reporting obligations.
NOTE 4. RELATED PARTIES
An entity which has common ownership with Fagen, Inc., the Companys principal vendor in the
construction of the ethanol facility, is also a Member of the Company and holds approximately 1.2%
of the outstanding units. In addition, the Company has a subordinated promissory note due Fagen,
Inc. in the amount of $3,977,545 as of December 31, 2010 and September 30, 2010.
The Company purchased corn at market prices in the amount of $919,057 and $732,600 for the three
months ending December 31, 2010 and 2009, respectively, from certain Directors in the normal course
of business.
NOTE 5. LEASES
The Company leases operating machinery under a lease agreement with De Lage Landen which is
accounted for as a capital lease. The lease will expire in 2013. The assets have a capitalized
cost of $157,664 included in property and equipment as of December 31, 2010 and September 30, 2010.
Accumulated depreciation totaled $35,474 and $31,532 as of December 31, 2010 and September 30,
2010, respectively.
The Company entered into an Excess Facilities Charge Agreement with Georgia Power Company in which
Georgia Power installed a power substation to augment the Companys power system. The cost of the
substation is charged to the Company over a three year period requiring annual payments of
principal and interest totaling $686,309 beginning June 30, 2009. The Company has accounted for
this agreement as a capital lease. The present value of future payments due under the lease of
$1,834,512 is included in property and equipment as of December 31, 2010
and September 30, 2010. Accumulated depreciation totaled $206,382 and $183,451 as of December 31,
2010 and September 30, 2010, respectively.
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The Company also entered into a Natural Gas Facilities Agreement with the City of Camilla for a
high pressure gas main to serve the plant and purchase natural gas from the City of Camilla. The
City of Camilla owns and operates the gas main and leases its usage to the Company. The agreement
calls for a monthly facilities charge, in addition to the normal consumption charges, equal to the
cost of the installation of the gas main over an 80 month period beginning June 2009 and requiring
principal and interest payments of approximately $43,000 each month. The Company has accounted for
the facilities lease charges as a capital lease. The present value of future payments under the
lease of $2,777,960 is included in as an asset in property and equipment as of December 31, 2010
and September 30, 2010. Accumulated depreciation totaled $312,520 and $277,796 as of December 31,
2010 and September 30, 2010, respectively.
A summary of capital leases as of December 31, 2010 and September 30, 2010 is as follows:
December 31, | September 30, | |||||||
2010 | 2010 | |||||||
De Lage Landen Financial Services, 60 months,
interest rate of 7.5% |
$ | 89,040 | $ | 96,778 | ||||
Georgia Power Substation lease, 36 months,
interest rate of 5.85% |
841,825 | 1,299,364 | ||||||
Natural Gas Facilities lease, 80 months,
interest rate of 6.59% |
2,227,158 | 2,318,226 | ||||||
3,158,023 | 3,714,368 | |||||||
Less current portion |
(1,241,343 | ) | (1,706,620 | ) | ||||
$ | 1,916,680 | $ | 2,007,748 | |||||
The Company also entered into operating leases with Trinity Industries Leasing Company for the use
of rail cars and tanker cars. The tanker car lease expires November 2017 and the rail car lease
expires February 2012. During the year ending September 30, 2009, the Company determined that a
portion of the tanker cars under the non-cancelable lease will not be utilized and have no future
benefit. Accordingly, the Company recorded a liability and a charge to income in the amount
$745,000 for the future lease payments associated with the unused tanker cars. The remaining
accrual as of December 31, 2010 and September 30, 2010 was $37,250 and $149,000, respectively.
NOTE 6. DEBT FINANCING ARRANGEMENTS
The Companys long-term debt outstanding as of December 31, 2010 and September 30, 2010 is
summarized as follows:
December 31, | September 30, | |||||||
2010 | 2010 | |||||||
West LB Term Loan, variable interest rates
from 4.00% 4.28% |
$ | 90,600,000 | $ | 92,200,000 | ||||
Subordinated Fagen note, 4% through
June 30, 2010 and 8% thereafter |
3,977,545 | 3,977,545 | ||||||
Subordinated debt facility, interest rate
of 7.5%, described below |
8,615,000 | 9,250,000 | ||||||
Subordinated note payable to Mitchell County
Development Authority, as described below |
1,070,285 | | ||||||
Notes payable John Deere Credit,
interest rate of 5.3%, described below |
119,242 | 136,244 | ||||||
104,382,072 | 105,563,789 | |||||||
Less current portion |
(104,382,072 | ) | (11,081,911 | ) | ||||
$ | | $ | 94,481,878 | |||||
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
West LB Credit Arrangement Senior Debt
SWGE entered into a senior credit agreement that provided for (1) a construction loan facility in
an aggregate amount of up to $100,000,000, which converted to a term loan on February 20, 2009
(Conversion Date) that matures on February 20, 2015 (the Final Maturity Date); and (2) a
working capital loan in an aggregate amount of up to $15,000,000 which matures February 20, 2011.
The primary purpose of the credit facility was to finance the construction and operation of the
Companys ethanol plant.
The principal amount of the term loan facility is payable in quarterly payments of $1,600,000,
which began September 30, 2009, and the remaining principal amounts are fully due and payable on
February 20, 2015. Interest is payable quarterly. SWGE has the option to select between two
floating interest rate loans under the terms of the senior credit agreement: Base Rate Loans bear
interest at the Administrative Agents base rate (which is the higher of the federal funds
effective rate plus 0.50% and the Administrative Agents prime rate) plus 2.75% per annum.
Eurodollar Loans bear interest at LIBOR plus 3.75%. The Company has entered into an interest rate
swap with WestLB to effectively convert a portion of the variable rate interest into a fixed rate,
with the LIBOR component fixed at 4.04% (See Note 1).
Under the terms of the senior credit agreement, SWGE has agreed to pay a quarterly commitment fee
equal to .20% per annum on the unused portion of the working capital loan. SWGEs obligations under
the senior credit agreement are secured by a first-priority security interest in all of the
Companys assets, including its equity interest in SWGE.
The senior credit agreement also required SWGE to enter into an accounts agreement among SWGE,
Amarillo National Bank, as the Accounts Bank and Securities Intermediary, and WestLB as the
collateral agent and administrative agent. Among other things, the accounts agreement establishes
certain special, segregated project accounts and establishes procedures for the deposits and
withdrawals of funds into these accounts. Substantially all cash of SWGE is required to be
deposited into the project accounts subject to security interests to secure obligations in
connection with the senior credit. Funds are released from the project accounts in accordance with
the terms of the accounts agreement.
As of December 31, 2010 and September 30, 2010, the Company had drawn $14,699,991 on the
$13,784,129 working capital loan.
On June 7, 2010, the Company executed the Sixth amendment to its Senior Credit Agreement and its
Fourth amendment to its Accounts Agreement with WestLB. Pursuant to the amended agreements, the
Company is required to maintain a certain level of working capital. Pursuant to the amended loan
agreements, the Company is required to have a working capital deficit of ($9,000,000) or less as of
September 30, 2010, and ($7,000,000) or less as of December 31, 2010. Subsequent to December 31,
2010, the working capital deficit requirement will remain at ($7,000,000) for the term of the loan.
In the event the Company is unable to meet the level of working capital required under the amended
loan agreements the Company will be assessed a five percent (5%) interest fee on the outstanding
loans for any quarter for which it is not in compliance. This fee payment is in addition to the
interest the Company is required to pay on its outstanding debt pursuant to the original loan
agreements. This additional interest fee will be accrued and due February 2015, the final maturity
date for the Companys outstanding term loan with West LB. Furthermore, and regardless of whether
the Company has maintained the required level of working capital, the Company will be required to
make an additional quarterly principal payment of $150,000 toward its outstanding working capital
loan balance for each quarter beginning September 30, 2010. This arrangement is distinct from the
borrowing base formula and borrowing base certificates previously utilized to monitor compliance
with the Companys working
capital loan. This amendment also removes the borrowing base financial covenant from the terms of
the loan, thereby removing the requirement for waivers.
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The Company did not meet the working capital deficits of ($7,000,000) and ($9,000,000) required as
of December 31, 2010 and September 30, 2010, respectively. The resulting penalty fees of
approximately $1,375,000 per quarter were charged to interest expense as of December 31, 2010 and
as of September 30, 2010 and are included as a current liabilities.
On February 1, 2011, SWGE filed a voluntary petition for relief (Bankruptcy Filing) under chapter
11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Middle
District of Georgia. The Bankruptcy Filing is a result of the Companys ongoing liquidity
constraints and the willingness of the Companys lending group to work with SWGE to restructure its
financing facility. SWGEs Bankruptcy Filing constituted an event of default under the Companys
loan agreement and related documents. Under the terms of the loan agreement, the Bankruptcy Filing
caused the Lenders term loan commitments and working capital loan commitments to be terminated
automatically, and the principal amount of the loans and all other obligations then outstanding
together with accrued interest thereon and any unpaid accrued fees owed to Lenders automatically
became immediately due and payable. However, pursuant to the Bankruptcy Code, this default
provision and the acceleration provisions applicable to the debt obligations described above are
generally unenforceable, and any remedies that may exist related to such default are stayed under
section 362 of the Bankruptcy Code. Furthermore, WestLB has not accelerated payment of SWGEs loans
pursuant to the Bankruptcy Filing. For financial reporting purposes, the full amount of the term
loan and working capital loan are presented as current liabilities.
Subordinated Debt Facility
The Company has a subordinated debt financing arrangement pursuant to which the Mitchell County
Development Authority issued $10,000,000 of revenue bonds that were placed with Wachovia Bank. The
Company signed a promissory note, which is collateralized by the Companys assets and the proceeds
were placed in a Bond Trustee account with Regions Bank. The interest rate for this note is 7.5%.
The Company is required to maintain a debt service reserve with the Bond Trustee of at least
$1,180,000. This note is subordinated to the West LB debt agreement, which currently prohibits the
Company from making any debt service payments. As a result, the Bond Trustee made the annual
interest and principal payment to the bond holders of approximately $1,339,000 in December 2009
from the debt service reserve. The annual principal and interest payment due to the bond holders
for December 2010 was funded by the Mitchell County Development Authority to the extent funds were
not available in the debt service reserve account. The Company signed a subordinated promissory
note to Mitchell County in the amount of $1,070,285 in exchange for this funding. The note is due
December 1, 2021 and bears interest at 7.5%. Any remaining funds held in the Bond Trustee account
are classified as non-current restricted cash and cash equivalents in the Companys consolidated
balance sheet. The subordinated debt is a 15 year note with annual principal payments each
December due to the bond holders in 2011 of $530,000, in 2012 of $570,000, in 2013 of $615,000, in
2013 of $660,000, in 2015 of $710,000 and $6,240,000 thereafter. Due to the current financial
situation and bankruptcy proceeding, this debt has been classified as current.
Subordinated Fagen Note
On June 30, 2009, SWGE entered into a subordinated promissory note agreement in the amount of
$3,977,545 due Fagen, Inc., a related party, for the remaining design-build contract balance. The
note bears interest at 4% through June 30, 2010 and 8% thereafter through maturity on June 30,
2011. Interest is payable quarterly. The first principal payment of $500,000 was due as of
September 30, 2009 along with an annual principal payment of $1,738,772 that was due June 30, 2010.
The final payment of $1,738,772 is due June 30, 2011. This note is subordinated to the West LB
debt agreement, which currently prohibits the Company from making the principal and interest
payments on the schedule described above. The note of $3,977,545 is included in current maturities
of long-term debt per the agreement. However, the earliest any payment will likely be made is in
2014.
Other Notes Payable
The Company financed the acquisition of certain equipment through two identical notes payable to
John Deere Credit. The notes amortize over four years (maturity in August 2012) with monthly
principal and interest payments
and are secured by the equipment. The interest rate is 5.3%. The combined outstanding balance on
these two notes payable is $119,242 and $136,244 as of December 31, 2010 and September 30, 2010,
respectively. Due to the current financial situation and bankruptcy proceeding, this debt has been
classified as current.
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 7. FAIR VALUE MEASUREMENTS
Fair value is the price that would be received to sell an asset or paid to transfer a liability in
an orderly transaction between market participants at the measurement date. In determining fair
value, the Company uses various methods including market, income and cost approaches. Based on
these approaches, the Company often utilized certain assumptions that participants would use in
pricing the asset or liability, including assumptions about risk and/or the risks inherent in the
inputs to the valuation technique. These inputs can be readily observable, market-corroborated or
generally unobservable inputs. The Company utilizes valuation techniques that maximize the use of
observable inputs and minimize the use of unobservable inputs. Based on the observable inputs used
in the valuation techniques, the Company is required to provide the following information according
to the fair value hierarchy.
The fair value hierarchy ranks the quality and reliability of the information used to determine
fair values. Financial assets and liabilities carried at fair value will be classified and
disclosed in one of the following three categories:
Level 1 Observable inputs | unadjusted quoted prices in active markets for identical assets and liabilities; | |||
Level 2 Observable inputs | other than quoted prices included in Level 1 that are observable for the asset or liability through corroboration with market data; and | |||
Level 3 Unobservable inputs | includes amounts derived from valuation models where one or more significant inputs are unobservable. |
The Company has classified its investments in marketable securities and derivative instruments into
these levels depending on the inputs used to determine their fair values. The Companys investments
in marketable securities consist of money market funds restricted by the bond holders which are
based on quoted prices and are designated as Level 1. The Companys derivative instruments consist
of commodity positions. The fair value of the commodity positions are based on quoted prices on
the commodity exchanges and are designated as Level 1 and the fair value of the interest rate swap
is based on quoted prices on similar assets or liabilities in active markets and discounts to
reflect potential credit risk to lenders and are designated as Level 2.
The following table summarizes fair value measurements by level at December 31, 2010:
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
Liabilities: |
||||||||||||||||
Derivative instruments: |
||||||||||||||||
Interest rate swap |
$ | $ | 420,967 | $ | $ | 420,967 | ||||||||||
Total liabilities |
$ | $ | 420,967 | $ | $ | 420,967 | ||||||||||
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
The following table summarizes fair value measurements by level at September 30, 2010:
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
Assets: |
||||||||||||||||
Investments in marketable
securities, included in
restricted cash |
$ | 258,476 | $ | | $ | | $ | 258,476 | ||||||||
Total assets |
$ | 258,476 | $ | | $ | | $ | 258,476 | ||||||||
Liabilities: |
||||||||||||||||
Derivative instruments: |
||||||||||||||||
Interest rate swap |
$ | | $ | 657,072 | $ | | $ | 657,072 | ||||||||
Total liabilities |
$ | | $ | 657,072 | $ | | $ | 657,072 | ||||||||
Certain financial assets and liabilities are measured at fair value on a non-recurring basis; that
is the instruments are not measured at fair value on an ongoing basis but are subject to fair value
adjustments in certain circumstances, for example, when there is evidence of impairment.
NOTE 8. SUBSEQUENT EVENTS
On February 1, 2011, SWGE, the Companys wholly owned subsidiary, filed a voluntary petition for
relief (collectively, the Bankruptcy Filing) under chapter 11 of the United States Bankruptcy
Code (the Bankruptcy Code) in the United States Bankruptcy Court for the Middle District of
Georgia (the Bankruptcy Court). SWGEs Chapter 11 case (the Case) is being administered by
the Bankruptcy Court as Case No. 11-10145. SWGE is continuing to operate its business and manage
its assets as a debtor-in-possession under the jurisdiction of the Bankruptcy Court and in
accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy
Court. A group of SWGEs secured bank lenders have agreed to support the Companys on-going
restructuring efforts with a $10 million debtor-in-possession financing facility.
The Bankruptcy Filing is a result of SWGEs ongoing liquidity constraints and the willingness of
SWGEs lending group to work with SWGE to restructure its financing facility. SWGEs Bankruptcy
Filing constituted an event of default under SWGEs loan agreement and related documents with
WestLB AG, New York Branch, AgCountry Farm Credit Services, FCLA, AgFirst Farm Credit Bank, Bank of
Camilla, CoBank, ACB, Farm Credit Bank of Texas, Northwest Farm Credit Services, PCA, and Planters
and Citizens Bank (collectively referred to herein as Lenders). WestLB AG, New York Branch
(WestLB) is the servicing agent for the loans evidenced by SWGEs loan agreement and related
documents with its Lenders. The primary loan agreement is the Senior Credit Agreement (the Loan
Agreement) dated November 20, 2007. The Loan Agreement initially provided SWGE with a construction
loan of approximately $100 million, which was subsequently converted to a term loan, and a $15
million working capital loan (the Loans). The Loan Agreement and its amendments contain various
covenants and restrictions with which SWGE is obligated to comply. The Loans are secured by a
mortgage and security interest granted by SWGE in favor of the Lenders in all of SWGEs real
property and personal property. Pursuant to a Pledge and Security Agreement also dated November 20,
2007, the Company pledged its equity interest in SWGE to the Lenders as additional collateral for
the Loans to SWGE. As of February 1, 2011 SWGEs outstanding obligations to the Lenders were
approximately $107 million. The parent company has net assets of approximately $340,000 as of
December 31, 2010, excluding its investment in SWGE. The remaining net assets of the Company on a
consolidated basis are within the subsidiary SWGE, whose stock has been pledged as collateral to
the Lenders.
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FIRST UNITED ETHANOL, LLC AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
Under the terms of the Loan Agreement, the Bankruptcy Filing caused the Lenders term loan
commitments and working capital loan commitments to be terminated automatically, and the principal
amount of the loans and all other obligations then outstanding together with accrued interest
thereon and any unpaid accrued fees owed to Lenders automatically became immediately due and
payable. However, pursuant to the Bankruptcy Code, this default provision and the acceleration
provisions applicable to the debt obligations described above are generally unenforceable, and any
remedies that may exist related to such default are stayed under section 362 of the Bankruptcy
Code. Furthermore, WestLB has not accelerated payment of SWGEs loans pursuant to the Bankruptcy
Filing. The Company and SWGE have been in communication with WestLB, which has indicated that it
will defer
further action regarding SWGEs Loan Agreement compliance, and has agreed to work with SWGE in
support of SWGEs on-going reorganization efforts in the Chapter 11 proceeding.
American Institute of Certified Public Accountants Statement of Position 90-7, Financial Reporting
by Entities in Reorganization under the Bankruptcy Code (SOP 90-7), which is applicable to
companies in Chapter 11, generally does not change the manner in which financial statements are
prepared. However, SOP 90-7 does require that the financial statements for periods subsequent to
the filing of the Chapter 11 petition distinguish transactions and events that are directly
associated with the reorganization from the ongoing operations of the business. Revenues, expenses
(including professional fees), realized gains and losses, and provisions for losses that can be
directly associated with the reorganization and restructuring of the business must be reported
separately as reorganization items in the consolidated statements of operations beginning in the
quarter ending March 31, 2011. The consolidated balance sheet must distinguish pre-petition
liabilities subject to compromise from both those pre-petition liabilities that are not subject to
compromise and from post-petition liabilities. Liabilities that may be affected by the plan must
be reported at the amounts expected to be allowed, even if they may be settled for lesser amounts.
In addition, cash provided by reorganization items must be disclosed
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Item 2. | Managements Discussion and Analysis of Financial Condition and Results of Operations. |
We prepared the following discussion and analysis to help you better understand our financial
condition, changes in our financial condition, and results of operations for the three month period
ended December 31, 2010, compared to the same period of the prior fiscal year. This discussion
should be read in conjunction with the consolidated financial statements and the Managements
Discussion and Analysis section for the fiscal year ended September 30, 2010, included in the
Companys Annual Report on Form 10-K.
Cautionary Statements Regarding Forward-Looking Statements
This report contains forward-looking statements that involve future events, our future
performance and our future operations and actions. In some cases you can identify forward-looking
statements by the use of words such as may, should, anticipate, believe, expect, plan,
future, intend, could, estimate, predict, hope, potential, continue, or the
negative of these terms or other similar expressions. These forward-looking statements are only
our predictions and involve numerous assumptions, risks and uncertainties. Our actual results or
actions may differ materially from these forward-looking statements for many reasons, including the
following factors:
| Our ability to continue as a going concern; |
| Our ability to operate pursuant to the terms and conditions of any
debtor-in-possession (DIP) financing order entered by the Bankruptcy Court in
connection with the Bankruptcy Cases; |
| Our ability to obtain Court approval with respect to motions in the Chapter 11
proceedings prosecuted by us from time to time, including approval of motions relating
to the priority of the lenders security interest under any DIP financing; |
| Our ability to obtain and maintain normal terms with vendors and service providers; |
| Our ability to maintain contracts that are critical to our operations; |
| Changes in our business strategy, capital improvements or development plans; |
| Volatility of corn, natural gas, ethanol, unleaded gasoline, distillers grains and
other commodities prices; |
| Limitations and restrictions contained in the instruments and agreements governing
our indebtedness; |
| Our ability to generate sufficient liquidity to fund our debt service requirements
and capital expenditures; |
| Our ability to comply with our loan covenants and to obtain waivers from our lender
for any non-compliance with those covenants; |
| Our ability to maintain liquidity and operate our business; |
| The results of our hedging transactions and other risk management strategies; |
| Our inelastic demand for corn, as it is the only available feedstock for our plant; |
| Changes in the environmental regulations or in our ability to comply with the
environmental regulations that apply to our plant site and our operations; |
| The effects of mergers or consolidations in the ethanol industry; |
| Changes in general economic conditions or the occurrence of certain events causing
an economic impact in the agriculture, oil or automobile industries; |
| Changes in the availability of credit to support the level of liquidity necessary to
implement our risk management activities; |
| Changes in or elimination of federal and/or state laws (including the elimination of
any federal and/or state ethanol tax incentives); |
| Overcapacity within the ethanol industry; |
| Changes and advances in ethanol production technology that may make it more
difficult for us to compete with other ethanol plants utilizing such technology; |
| Our reliance on key management personnel; |
| The development of infrastructure related to the sale and distribution of ethanol;
and |
| Competition in the ethanol industry and from other alternative fuel additives. |
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Our actual results or actions could and likely will differ materially from those anticipated
in the forward-looking statements for many reasons, including the reasons described in this report.
We are not under any duty to update the forward-looking statements contained in this report. We
cannot guarantee future results, levels of activity, performance or achievements. We caution you
not to put undue reliance on any forward-looking statements, which speak only as of the date of
this report. You should read this report and the documents that we reference in this report and
have filed as exhibits completely and with the understanding that our actual future results may be
materially different from what we currently expect. We qualify all of our forward-looking
statements by these cautionary statements.
Available Information
Information about us is also available at our website at www.firstunitedethanol.com, under
Investor Relations, which includes links to reports we have filed with the Securities and
Exchange Commission. The contents of our website are not incorporated by reference in this
Quarterly Report on Form 10-Q.
Business Overview
First United Ethanol, LLC (we, us, FUEL, First United, or the Company) was formed as
a Georgia limited liability company on March 9, 2005, for the purpose of raising capital to
develop, construct, own and operate a 100 million gallon per year ethanol plant near Camilla,
Georgia. In November 2007, the Companys wholly owned subsidiary, Southwest Georgia Ethanol, LLC
(SWGE) was formed in conjunction with the debt financing agreement with West LB. First United
Ethanol, LLC transferred the majority of its assets and liabilities to Southwest Georgia Ethanol,
LLC. We completed construction of our ethanol plant in October 2008 and plant operations commenced
on October 10, 2008.
Our revenues are derived from the sale and distribution of our ethanol and distillers grains
primarily in the southeastern United States. Our ethanol plant currently operates at or near its
nameplate capacity. A significant percentage of our corn is supplied to us by train and is
originated primarily from the eastern Corn Belt; however, we are able to originate an increasing
percentage of our corn from local producers. Currently, approximately 98% of our ethanol is being
shipped out of our facility by truck to local and regional blending terminals.
Additionally, as of the date of this report, approximately 100% of our dried distillers grains
are being shipped out of our facility by truck to local livestock and poultry operations.
Recent Events
Chapter 11 Bankruptcy
On February 1, 2011, SWGE, a wholly owned subsidiary of the Company, filed a voluntary
petition for relief (collectively, the Bankruptcy Filing) under chapter 11 of the United States
Bankruptcy Code (the Bankruptcy Code) in the United States Bankruptcy Court for the Middle
District of Georgia (the Bankruptcy Court). SWGEs chapter 11 case (the Case) is being
administered by the Bankruptcy Court as Case No. 11-10145. SWGE is continuing to operate its
business and manage its assets as a debtor-in-possession under the jurisdiction of the Bankruptcy
Court and in accordance with the applicable provisions of the Bankruptcy Code and orders of the
Bankruptcy Court.
The Bankruptcy Filing is a result of SWGEs ongoing liquidity constraints and the willingness
of SWGEs lending group to work with SWGE to restructure its financing facility. SWGEs Bankruptcy
Filing constituted an event of default under SWGEs loan agreement and related documents with
WestLB AG, New York Branch, AgCountry Farm Credit Services, FCLA, AgFirst Farm Credit Bank, Bank of
Camilla, CoBank, ACB, Farm Credit Bank of Texas, Northwest Farm Credit Services, PCA, and Planters
and Citizens Bank (collectively referred to herein as Lenders). WestLB AG, New York Branch
(WestLB) is the servicing agent for the loans evidenced by SWGEs loan agreement and related
documents with its Lenders. The primary loan agreement is the Senior Credit Agreement (the Loan
Agreement) dated November 20, 2007. The Loan Agreement initially provided SWGE with a construction
loan of approximately $100 million, which was subsequently converted to a term loan, and a $15
million working capital loan (the Loans). The Loan Agreement and its amendments contain various
covenants and restrictions with which SWGE is obligated to comply. The Loans are secured by a
mortgage and security interest
granted by SWGE in favor of the Lenders in all of SWGEs real property and personal property.
Pursuant to a Pledge and Security Agreement also dated November 20, 2007, the Company pledged its
equity interest in SWGE to the Lenders as additional collateral for the Loans to SWGE. As of
February 1, 2011 SWGEs outstanding obligations to the Lenders were approximately $107 million.
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Under the terms of the Loan Agreement, the Bankruptcy Filing caused the Lenders term loan
commitments and working capital loan commitments to be terminated automatically, and the principal
amount of the loans and all other obligations then outstanding together with accrued interest
thereon and any unpaid accrued fees owed to Lenders automatically became immediately due and
payable. However, pursuant to the Bankruptcy Code, this default provision and the acceleration
provisions applicable to the debt obligations described above are generally unenforceable, and any
remedies that may exist related to such default are stayed under section 362 of the Bankruptcy
Code. Furthermore, WestLB has not accelerated payment of SWGEs loans pursuant to the Bankruptcy
Filing. The Company and SWGE have been in communication with WestLB, which has indicated that it
will defer further action regarding SWGEs Loan Agreement compliance, and has agreed to work with
SWGE in support of SWGEs on-going reorganization efforts in the chapter 11 proceeding.
Debtor-in-Possession Financing
On February 4, 2011, SWGE entered into a Debtor-In-Possession Credit Agreement (the DIP
Credit Agreement) with WestLB, AgFirst Farm Credit Bank and Farm Credit Bank of Texas
(collectively the DIP Lenders) for a debtor-in-possession revolving credit facility. WestLB is
also serving as the administrative agent and collateral agent under the DIP Credit Agreement. On
February 23, 2011 the Bankruptcy Court entered a final order approving the DIP Credit Agreement.
The DIP Credit Agreement provides for commitments to provide debtor-in-possession financing to
SWGE in the maximum amount of $10,000,000 (the DIP Loan), subject to the terms and conditions set
forth in the DIP Credit Agreement and related documents. The DIP Loan may be used to fund, subject
to limitations set forth in the DIP Credit Agreement, the financing of SWGEs post-petition working
capital, general corporate purposes, the administration of the Case and such pre-petition expenses
as are approved by the Bankruptcy Court and paid in accordance with the applicable budget. The
obligations under the terms of the DIP Credit Agreement and related documents constitute
superpriority claims under the Bankruptcy Code and are secured by a lien in favor of the DIP
Lenders on collateral constituting substantially all of SWGEs assets.
The DIP Loan matures six months from the date the DIP Credit Agreement was executed unless it
becomes due earlier by reason of acceleration or pursuant to certain procedural triggers connected
to the Case. SWGEs debt obligations outstanding under the DIP Credit Agreement shall generally
accrue interest at a rate equal to the LIBOR rate plus 9.0 percent per annum. As of the date the
DIP Credit Agreement was executed by the parties, the calculated annualized interest rate was
approximately 12%. SWGE will pay to WestLB, as the administrative agent, and to the DIP Lenders,
for their own account, certain fees, including a facility fee, a structuring fee as well as a
monthly commitment fee.
Under the DIP Credit Agreement, SWGE is subject to certain affirmative and negative covenants,
an obligation to deliver financial statements and operating budgets at specified intervals, and
other terms and conditions. The failure to meet certain covenants or the occurrence of other
specified events could constitute an event of default and may result in the DIP Loan becoming
immediately due and payable.
The foregoing description of the DIP Credit Agreement does not purport to be complete and is
qualified in its entirety by reference to the DIP Credit Agreement and related documents, which
have been filed as exhibits to this report.
Deregistration
We are currently in the process of requesting approval from the Securities and Exchange
Commission to engage in a reclassification and reorganization of the Companys membership units.
The proposed transaction will provide for the reclassification of the Companys membership units
into three separate and distinct classes.
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If the proposed reclassification is approved by the Securities and Exchange Commission as well
as the Companys members, we expect that each member of record holding 100 or more units will
receive one Class A unit for each common equity unit held by such unit holder prior to the
reclassification; each member of record holding 21 to 99 units will receive one Class B unit for
each common equity unit held by such unit holder immediately prior to the reclassification; and
each member of record holding 20 or fewer units will receive one Class C unit for each common
equity unit held by such unit holder immediately prior to the reclassification.
If the Companys members approve the requisite amendment to the Companys operating agreement
and the reclassification is implemented, the Company anticipates having fewer than 300 unit holders
of record of its common equity units and fewer than 500 unit holders of record of each of the
additional classes, which would enable the Company to voluntarily terminate the registration of its
units under the Securities and Exchange Act of 1934.
We expect that the classes of units will be distinguished from one another based on voting
rights. If the Companys members approve the proposed amendment to the Companys operating
agreement and the reclassification is implemented, we expect that Class A unit holders would be
entitled to vote on all matters for which unit holder approval is required under the Companys
operating agreement or state law; Class B unit holders would be entitled to vote on the election of
the Companys governors and the voluntary dissolution of the Company; and Class C unit holders
would be entitled to vote only on the voluntary dissolution of the Company. With respect to
potential future dividends, each membership unit will receive its equal portion of a declared
dividend, regardless of its class.
Results of Operations for the Three Months Ended December 31, 2010 and 2009
The following table shows the result of our operations and the percentage of revenues, cost of
goods sold, operating expenses and other items to total revenues in our statement of operations for
the three months ended December 31, 2010 and 2009:
Three Months Ended | Three Months Ended | |||||||||||||||
December 31, 2010 | December 31, 2009 | |||||||||||||||
(Unaudited) | (Unaudited) | |||||||||||||||
Statement of Operations Data | Amount | Percent | Amount | Percent | ||||||||||||
Revenues |
$ | 71,872,501 | 100.00 | % | $ | 57,434,517 | 100.00 | % | ||||||||
Cost of Goods Sold |
$ | 69,249,844 | 96.35 | % | $ | 47,490,413 | 82.69 | % | ||||||||
Gross Profit (Loss) |
$ | 2,622,657 | 3.65 | % | $ | 9,944,104 | 17.31 | % | ||||||||
General and Administrative
Expenses |
$ | 1,023,759 | 1.43 | % | $ | 1,190,165 | 2.07 | % | ||||||||
Operating Income (Loss) |
$ | 1,589,898 | 2.22 | % | $ | 8,753,939 | 15.24 | % | ||||||||
Other (Expense) |
$ | (6,675,574 | ) | (9.29 | )% | $ | (1,792,140 | ) | (3.12 | )% | ||||||
Net Income(Loss) |
$ | (5,076,676 | ) | (7.06 | )% | $ | 6,961,799 | 12.12 | % |
The following table shows the sources of our revenue for the three months ended December 31,
2010 and 2009:
Three Months Ended | Three Months Ended | |||||||||||||||
December 31, 2010 | December 31, 2009 | |||||||||||||||
(2011 Fiscal Year) | (2010 Fiscal Year) | |||||||||||||||
Revenue Source | Amount | % of Revenues | Amount | % of Revenues | ||||||||||||
Ethanol Sales |
$ | 57,469,774 | 79.96 | % | $ | 48,564,366 | 84.56 | % | ||||||||
Dried Distillers Grains Sales |
$ | 12,668,017 | 17.63 | % | $ | 8,438,770 | 14.69 | % | ||||||||
Wet Distillers Grains Sales |
$ | 1,386,491 | 1.93 | % | $ | 426,954 | 0.74 | % | ||||||||
Other Revenue |
$ | 348,219 | 0.48 | % | $ | 4,427 | 0.01 | % | ||||||||
Total Revenues |
$ | 71,872,501 | 100.00 | % | $ | 57,434,517 | 100.00 | % |
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Revenues
Our revenues from operations come from two primary sources: sales of fuel ethanol and sales of
distillers grains.
During our first fiscal quarter of our 2011 fiscal year, our total revenue increased
significantly compared to the first fiscal quarter of our 2010 fiscal year. Management attributes
this increase in total revenue primarily with a significant increase in the average price we
received per gallon of ethanol sold during our fiscal quarter ending December 31, 2010. Our total
revenue was approximately $71,872,501 for the fiscal quarter ended December 31, 2010 and
$57,434,517 for the fiscal quarter ended December 31, 2009, an increase of approximately 25%.
Ethanol
The total gallons of ethanol that we sold during our fiscal quarter ended December 31, 2010
was approximately 7.6% more than during our fiscal quarter ended December 31, 2009. Management
attributes this increase in ethanol sales with the fact that we are now able to operate the plant
at a higher run-rate. This disparity in our quarter over quarter production is primarily due to
mechanical issues that curtailed our ethanol production during the first quarter of our 2010 fiscal
year. In addition to the increase in the number of gallons of ethanol we sold was a 10% increase in
the average price we received per gallon of ethanol sold during our fiscal quarter ended December
31, 2010 compared to our fiscal quarter ended December 31, 2009. Management attributes this
increase in the average price we received per gallon of ethanol with higher gasoline prices and
increased ethanol exports experienced in recent months. These increases in ethanol exports and
prices mostly occurred during our fourth quarter of 2010.
The ethanol industry relies on the Federal Volumetric Ethanol Excise Tax Credit (VEETC) to
reduce the cost of ethanol to fuel blenders. Accordingly, VEETC causes increased demand for ethanol
related to what is called discretionary blending. Discretionary blending is where fuel blenders use
ethanol to increase octane in the fuels that are produced as well as reduce the price of gasoline
at levels beyond what is mandated by the renewable fuels standard. However, when the price of
ethanol increases relative the price of gasoline, after taking into account the VEETC, the amount
of discretionary blending by fuel blenders decreases thereby decreasing ethanol demand. As a
result, if the VEETC is not renewed past December 31, 2011, management anticipates that the price
of ethanol will decrease. Management anticipates ethanol production will be steady during our 2011
fiscal year provided the ethanol industry can maintain current ethanol prices. However, in the
event ethanol prices decrease significantly, we may be forced to reduce ethanol production during
times when our operating margins are unfavorable. Further, our operating margins also depend on
corn prices which can affect the spread between the price we receive for our ethanol and our raw
material costs. In times when this spread decreases or becomes negative, we may reduce or terminate
ethanol production until these spreads become more favorable.
Distillers Grains
We produce distillers grains for sale primarily in two forms, distillers dried grains with
solubles (DDGS) and wet distillers grains (WDG). During our fiscal quarter ended December 31, 2010,
we experienced a shift in the mix of distillers grains we sold in the form of DDGS versus WDG
compared to our fiscal quarter ended December 31, 2009. During our fiscal quarter ended December
31, 2010, we sold less of our total distillers grains in the form of DDGS that we did for the same
period in 2009. Conversely, during our fiscal quarter ended December 31, 2010 we sold more of our
total distillers grains in the form of WDG that we did for the same period in 2009. Management
attributes this shift in the mix of our distillers grains sales with an increase in local demand
for WDG during our 2010 fiscal year compared to our 2009 fiscal year. As more of our distillers
grains are shipped inside of our local market, we sell more of our distillers grains in the wet
form since it is less expensive to produce the WDG. Market factors dictate whether we sell more
DDGS versus WDG.
Management anticipates demand for distillers grains will remain steady or increase, especially
if corn prices trend higher during our 2011 fiscal year. Management believes that increased revenue
from distillers grains sales during times when corn prices are high helps us to somewhat offset our
increased cost of goods sold from the higher corn prices.
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Cost of Goods Sold
Our cost of goods sold was approximately $69,300,000 or 96% of our revenues for the three
month period ended December 31, 2010. Our two primary costs of producing ethanol and distillers
grains are the cost of corn and natural gas. Approximately 84.8% of our cost of goods sold is
attributable to corn costs and approximately 5.8% is attributable to natural gas costs. Our per
gallon cost of for corn during our 2010 fiscal year was approximately 5% lower than the amount we
paid during our 2009 fiscal year. Our lower per gallon cost of corn is primarily due to increased
production levels which led to a 6% increase in ethanol yield at our facility. For the quarter ended December 31, 2010 our per gallon cost of corn was 47% higher than our
per gallon cost of corn for the same period in 2009. This dramatic increase in the price of corn has caused tight operating margins for our Company.
These efficiencies have been somewhat mitigated by market corn prices which started to
increase during our 2010 fiscal year starting in July and continuing into the middle of December
2010. Management attributes this increase in corn prices with uncertainty regarding weather factors
that resulted in decreased yields in some parts of the United States. This led to fears regarding
an imbalance between corn supply and demand which had a negative impact on corn prices. Management
anticipates that corn prices will continue to be volatile until corn planting and thereafter will
be subject to weather factors that may influence corn prices during the 2011 growing season.
Management anticipates that natural gas prices will remain steady during our 2011 fiscal year
unless demand significantly increases due to improved global economic conditions. Management
anticipates that our natural gas consumption may increase during our 2011 fiscal year due to
increased ethanol and distillers grains production compared to our 2010 fiscal year.
Our other costs of goods sold include denaturant, process chemicals, electricity,
transportation, and direct labor. Together these costs represent approximately 0.094% of our cost
of goods sold. We do not anticipate these costs to be as volatile as our corn and natural gas
expenses. However, our transportation, electrical and denaturant costs are directly tied to the
price of energy generally and, therefore, may fluctuate along with the price of petroleum based
energy products.
General and Administrative Expenses
Our general and administrative expenses as a percentage of revenues were 1.4% for the three
month period ended December 31, 2010, and our general and administrative expenses as a percentage
of revenues were 2.07% for the three month period ended December 31, 2009. Operating expenses
consist primarily of payroll, employee benefits, and professional fees and have been decreasing
since beginning operations due to our ability to make our internal operations more efficient.
Operating Income
Our operating income for the three months ended December 31, 2010 was approximately 2.2% of
our revenues, compared to an operating income of 15.2% of our revenues for the three months ended
December 31, 2009. Our operating income is the result of positive operating margins; however,
operating margins deteriorated from our three months ended December 31, 2009 to our three months
ended December 31, 2010 as corn prices increased more rapidly that ethanol prices.
Other (Expense)
We had total other expense for the fiscal quarter ended December 31, 2010 of approximately
$6,675,000 resulting primarily from our interest expense for the period. Interest expense for the
period was approximately $6,910,000 which was offset by an unrealized gain of approximately
$240,000 for the change in fair value of our interest rate swap agreement.
Net Income (Loss)
Our net loss for the three months ended December 31, 2010 was approximately 7.1% of our
revenues, compared to our net income for the three months ended December 31, 2009 which was
approximately 12.1% of our
revenues. Our net income (loss) is primarily the result of our interest expense and financing
costs relative to our revenues during our three months ended December 31, 2010.
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Additional Information
The following table shows additional data regarding production and price levels for our
primary inputs and products for the three months ended December 31, 2010 and 2009.
Percentage of Increase (Decrease) for | ||||
comparison of Three Months Ended | ||||
December 31, 2010 to December 31, 2009 | ||||
Production: |
||||
Ethanol sold (gallons) |
7.6 | % | ||
Dried distillers grains sold (tons) |
20.3 | % | ||
Wet distillers grains sold (tons) |
(12.2 | %) | ||
Revenues: |
||||
Ethanol average price per gallon |
10.0 | % | ||
Dried distillers grains revenue per gallon of ethanol sold |
39.5 | % | ||
Wet distillers grains revenue per gallon of ethanol sold |
201.8 | % | ||
Total revenue per gallon of ethanol sold |
16.3 | % | ||
Costs: |
||||
Corn cost per gallon of ethanol sold (including freight) |
47.3 | % | ||
Overhead and other direct costs per gallon of ethanol sold |
2.7 | % | ||
Total cost per gallon of ethanol sold |
36.5 | % |
During the quarter ended December 31, 2010, our market price of ethanol increased
approximately 10% compared to the three month period ended December 31, 2009. If our average price
received per gallon of ethanol had been $0.10 lower, our gross margin for the quarter would have
decreased by approximately $2,411,606, assuming our other revenues and costs remained unchanged.
During the quarter ended December 31, 2010, the market price of dried distillers grains
increased approximately 40% compared to the three month period ended December 31, 2009. If our
average price received per ton of dried distillers grains had been $1.00 lower, our gross margin
for the quarter would have decreased by approximately $75,000, assuming our other revenues and
costs remained unchanged.
During the quarter ended December 31, 2010, the market price of corn on a per gallon basis
increased by approximately 47% compared to the three month period ended December 31, 2009. If our
average price paid per bushel of corn had been $0.25 higher, our gross margin for the quarter would
have decreased by approximately $2,248,000, assuming our other revenues and costs remained
unchanged.
Changes in Financial Condition for the Three Months Ended December 31, 2010
Our current assets at December 31, 2010 were fairly steady compared to our fiscal year ended
September 30, 2010. As of December 31, 2010, we had an increase in trade receivables, which was
largely offset by a decrease in inventory on hand.
Our net property and equipment was approximately $2,000,000 lower at December 31, 2010
compared to September 30, 2010 as a result of depreciation expense taken for the quarter. We do
not expect any significant additional capital expenditures as our plant is now complete.
The financing costs associated with the loans discussed in Note 6 to our financial statements
have been recorded at cost and include expenditures directly related to securing debt financing.
In February 2011, SWGE filed for Chapter 11 Bankruptcy relief from the loans which gave rise to the
deferred financing costs. In conjunction with this filing, the Company expensed the remaining net
book value of its deferred financing costs as of December 31,
2010. The financing costs are included in interest expense in the statement of operations and
total approximately $3,724,000 for the three months ended December 31, 2010.
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We experienced a significant increase in our total current liabilities on December 31, 2010
compared to September 30, 2010 and a corresponding decrease in our long-term liabilities as of
December 31, 2010 compared to September 30, 2010, primarily as a result of bringing our long-term
debt current in accordance with the certain accounting standards. At December 31, 2010, we had
approximately $132,900,000 outstanding in the form of current liabilities, compared to
approximately $40,000,000 at September 30, 2010.
Liquidity and Capital Resources
The accompanying unaudited condensed consolidated financial statements have been prepared
assuming we will continue as a going concern, which assumes continuity of operations and
realization of assets and satisfaction of liabilities in the ordinary course of business.
During the first quarter of the fiscal year ending September 30, 2011, the Company continued
to suffer losses from operations thus continuing liquidity restraints due to limits on its working
capital line which was up for renewal in February 2011. Faced with these constraints, on February
1, 2011, SWGE, the Companys wholly owned subsidiary, filed voluntary petitions for relief
(collectively, the Bankruptcy Filing) under Chapter 11 (Chapter 11) of the United States
Bankruptcy Code (the Bankruptcy Code) with the United States Bankruptcy Court for the Middle
District of Georgia Albany Division (the Bankruptcy Court). SWGE intends to continue to operate
its business as debtor-in-possession under the jurisdiction of the Bankruptcy Court and in
accordance with the applicable provisions of the Bankruptcy Code and orders of the Bankruptcy
Court. See Note 8 Subsequent Events.
To improve plant operations and profitability, the Company hired an outside third party to
look at the efficiency of the plant and provide suggestions and solutions to increase the
operational effectiveness. These studies have been completed and outlined several areas where the
Company could make improvements. Some of the improvements were immediately implemented with
positive results already being shown. The Company believes that with improvements already
implemented and the additional improvement being made, that the operational efficiency of the plant
will increase significantly, allowing the plant to run profitably. Additionally, the Companys
profitability is also dependent upon a number of other factors noted elsewhere in these financial
statements, including stable and positive crush margins. Management believes that once they solve
their working capital needs, they will be able to better manage the commodity risk by being able to
utilize futures and options more frequently and to lock in positive crush margin.
The following table shows cash flows for the three months ended December, 2010 and 2009:
Three Months Ended | ||||||||
December 31 | ||||||||
2010 | 2009 | |||||||
Net cash provided by (used in ) operating activities |
$ | (1,913,714 | ) | $ | 7,154,427 | |||
Net cash (used in) investing activities |
$ | (57,914 | ) | $ | (51,893 | ) | ||
Net cash provided by (used in) financing activities |
$ | 1,599,569 | $ | (1,690,168 | ) | |||
Net increase (decrease) in cash and cash equivalents |
$ | (372,059 | ) | $ | 5,412,366 | |||
Cash and cash equivalents, end of period |
$ | 214,407 | $ | 5,412,366 |
Operating Cash Flows. We experienced a significant decrease in net cash provided by operating
activities and an increase in cash used in operating activities during the three months ended
December 31, 2010 compared to the same period of 2009. This decrease in net cash provided by
operating activities was primarily a result of the $1,635,000 net loss we experienced during the
three months ended December 31, 2010. Cash used in operating activities was approximately
$1,900,000 for the three months ended December 31, 2010 compared to cash provided by operating
activities of approximately $7,150,000 for the same period in 2009.
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Investing Cash Flows. Cash used in investing activities was approximately $58,000 for the
three months ended December 31, 2010. This amount is similar to the amount of cash used in
investing activities for three months ended December 31, 2009.
Financing Cash Flows. Cash provided by financing activities was approximately $1,600,000 for
the three months ended December 31, 2010. This cash was primarily provided by drawing on our
revolving line of credit and the release of restricted cash, both of which were partially offset by
the repayment of long term debt and capital lease obligations. During our three months ended
December 31, 2009 we were able to repay approximately $1,600,000 of our long terms debt and capital
lease obligations without having to draw on our other debt facilities.
Our liquidity, results of operations and financial performance will be impacted by many
variables, including the market price for commodities such as, but not limited to, corn, ethanol
and other energy commodities, as well as the market price for any co-products generated by the
facility and the cost of labor and other operating costs.
Senior Credit Facility
On November 20, 2007, First United and Southwest Georgia Ethanol, LLC (SWGE), our wholly
owned subsidiary, entered into a senior credit agreement with WestLB that provides for (1) a
construction loan facility in an aggregate amount of up to $100,000,000, which converted to a term
loan on February 20, 2009 (Conversion Date) that matures on February 20, 2015 (the Final
Maturity Date); and (2) a working capital loan in an aggregate amount of up to $15,000,000 which
matures February 20, 2011. The primary purpose of the credit facility was to finance the
construction and operation of the Companys ethanol plant.
The principal amount of the term loan facility is payable in quarterly payments ranging from
$1,500,000 to $1,600,000 beginning September 30, 2009, and the remaining principal amounts are
fully due and payable on February 20, 2015. Interest is payable quarterly. SWGE has the option to
select between two floating interest rate loans under the terms of the senior credit agreement:
Base Rate Loans bear interest at the Administrative Agents base rate (which is the higher of the
federal funds effective rate plus 0.50% and the Administrative Agents prime rate) plus 2.75% per
annum. Eurodollar Loans bear interest at LIBOR plus 3.75%. The Company has entered into an interest
rate swap with WestLB to effectively convert a portion of the variable rate interest into a fixed
rate, with the LIBOR component fixed at 4.04%.
Under the terms of the senior credit agreement, SWGE has agreed to pay a quarterly commitment
fee equal to 0.50% per annum on the unused portion of the construction loan/term loan and .20% per
annum on the unused portion of the working capital loan. SWGEs obligations under the senior credit
agreement are secured by a first-priority security interest in all of the Companys assets,
including its equity interest in SWGE.
The senior credit agreement also required SWGE to enter into an accounts agreement among SWGE,
Amarillo National Bank, as the Accounts Bank and Securities Intermediary, and WestLB as the
collateral agent and administrative agent. Among other things, the accounts agreement establishes
certain special, segregated project accounts and establishes procedures for the deposits and
withdrawals of funds into these accounts. Substantially all cash of SWGE is required to be
deposited into the project accounts subject to security interests to secure obligations in
connection with the senior credit. Funds are released from the project accounts in accordance with
the terms of the accounts agreement.
As of December 31, 2010 and September 30, 2009, the Company had drawn $14,699,991 and
$11,081,911 on the working capital loan, respectively.
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Subordinated Debt
The Company has a subordinated debt financing arrangement pursuant to which the Mitchell
County Development Authority issued $10,000,000 of revenue bonds that were placed with Wachovia
Bank. The Company signed a promissory note, which is collateralized by the Companys assets and the
proceeds were placed in a Bond Trustee account with Regions Bank. The interest rate for this note
is 7.5%. The Company is required to maintain a debt service reserve with the Bond Trustee of at
least $1,180,000. This note is subordinated to the West LB debt
agreement, which currently prohibits the Company from making any debt service payments. As a
result, the Bond Trustee made the annual interest and principal payment to the bond holders of
approximately $1,339,000 in December 2009 from the debt service reserve. The funds held in the Bond
Trustee account are classified as non-current restricted cash and cash equivalents in the Companys
consolidated balance sheet. The subordinated debt is a 15 year note with annual principal payments
each December due to the bond holders in 2010 of $635,000, in 2011 of $530,000, in 2012 of
$570,000, in 2013 of $615,000, in 2014 of $660,000 and $6,240,000 thereafter. The $635,000 due in
2010 has been classified as a current maturity of long-term debt per the agreement. However any
payment will come from the debt service fund due to the subordination.
On June 30, 2009, SWGE entered into a subordinated promissory note agreement in the amount of
$3,977,545 due Fagen, Inc., a related party, for the remaining design-build contract balance. The
note bears interest at 4% through June 30, 2010 and 8% thereafter through maturity on June 30,
2011. Interest is payable quarterly. The first principal payment of $500,000 was due as of
September 30, 2009 along with an annual principal payment of $1,738,772 that was due June 30, 2010.
The final payment of $1,738,772 is due June 30, 2011. This note is subordinated to the West LB
debt agreement, which currently prohibits the Company from making the principal payments on the
schedule described above. The note of $3,977,545 is included in current maturities of long-term
debt per the agreement. However, the earliest any payment will likely be made is in 2014.
Other Notes Payable
The Company financed the acquisition of certain equipment through two identical notes payable
to John Deere Credit. The notes amortize over four years (maturity in August 2012) with monthly
principal and interest payments and are secured by the equipment. The interest rate is 5.3%. The
combined outstanding balance on these two notes payable is $136,244 and $202,050 as of September
30, 2010 and 2009, respectively.
The Companys long-term debt outstanding as of December 31, 2010 and September 30, 2010 is
summarized as follows:
December 31, | September 30, | |||||||
2010 | 2010 | |||||||
West LB Term
Loan, variable interest rates from 4.00% 4.28% |
$ | 90,600,000 | $ | 92,200,000 | ||||
Subordinated Fagen note, 4% through June 30, 2010 and 8% thereafter |
3,977,545 | 3,977,545 | ||||||
Subordinated debt facility, interest rate of 7.5%, described below |
8,615,000 | 9,250,000 | ||||||
Subordinated note payable to Mitchell County Development Authority |
1,070,285 | | ||||||
Notes payable John Deere Credit, interest rate of 5.3%, described below |
119,242 | 136,244 | ||||||
104,382,072 | 105,563,789 | |||||||
Less current portion |
(104,382,072 | ) | (11,081,911 | ) | ||||
$ | | $ | 94,481,878 | |||||
Summary of Critical Accounting Policies and Estimates
Management uses estimates and assumptions in preparing our financial statements in accordance
with generally accepted accounting principles. These estimates and assumptions affect the reported
amounts of assets and liabilities, the disclosure of contingent assets and liabilities, and the
reported revenues and expenses. The fair value of our cash and equivalents approximates their
carrying value.
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Derivative Instruments
We occasionally enter into short-term cash grain, option and futures contracts as a means of
securing corn for the ethanol plant and managing exposure to changes in commodity. We may also
enter into short-term forward, option and futures contracts for sales of ethanol to manage exposure
to changes in energy prices. All of our derivatives are designated as non-hedge derivatives, and
accordingly are recorded at fair value with changes in fair value recognized in net income.
Although the contracts are considered economic hedges of specified risks, they are not designated
as and accounted for as hedging instruments.
As part of our trading activity, we use futures and option contracts offered through regulated
commodity exchanges to reduce our risk and we are exposed to risk of loss in the market value of
inventories. To reduce that risk, we generally take positions using cash and futures contracts and
options.
Unrealized gains and losses related to derivative contracts for corn purchases are included as
a component of cost of goods sold and derivative contracts related to ethanol sales are included as
a component of revenues in the accompanying financial statements. The fair values of derivative
contracts are presented on the accompanying balance sheet as derivative financial instruments.
Lower of cost or market accounting for inventory and forward purchase contracts
With the significant change in the prices of our main inputs and outputs, the lower of cost or
market analysis of inventories and purchase commitments can have a significant impact on our
financial performance. The impact of market activity related to pricing of corn and ethanol will
require us to continuously evaluate the pricing of our inventory and purchase commitments under a
lower of cost or market analysis.
Impairment Analysis
Maintenance and repairs are charged to expense as incurred; major improvements and betterments
are capitalized. Long-lived assets are reviewed for impairment whenever events or changes in
circumstances indicate that the carrying amount of the asset may not be recoverable. An impairment
loss would be recognized when estimated undiscounted future cash flows from operations are less
than the carrying value of the asset group. An impairment loss would be measured by the amount by
which the carrying value of the asset exceeds the fair value of the asset. In accordance with our
policies, management has evaluated the plant for possible impairment based on projected future cash
flows from operations. Management has determined that its projected future cash flows from
operations exceed the carrying value of the plant and that no impairment exists at December 31,
2010.
Long-lived assets are reviewed for impairment whenever events or changes in circumstances
indicate that the carrying amount of the asset may not be recoverable. An impairment loss would be
recognized when estimated undiscounted future cash flows from operations are less than the carrying
value of the asset group. An impairment loss would be measured by the amount by which the carrying
value of the asset exceeds the fair value of the asset. In accordance with Company policies,
management has evaluated the plant for possible impairment based on projected undiscounted future
cash flows from operations. Management has determined that its projected undiscounted future cash
flows from operations exceed the carrying value of the plant and that no impairment exists at
December 31, 2010. However, due to the Companys recent filing for Bankruptcy protection, there
can be no assurances that the value of the plant will be recovered through future cash flows.
Fair Value of Financial Instruments
Financial instruments include cash and cash equivalents, derivative instruments, other
receivables, accounts payable, accrued expenses and long-term debt. Management believes the fair
value of each of these financial instruments approximates their carrying value in the balance sheet
as of the balance sheet date. The fair value of current financial instruments is estimated to
approximate carrying value due to the short-term nature of these instruments. The fair value of
derivative financial instruments is based on quoted market prices. The fair value of the long-term
debt is estimated based on anticipated interest rates which management believes would currently be
available to the Company for similar issues of debt, taking into account the current credit risk of
the Company and the other market factors.
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Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements.
Item 3. | Quantitative and Qualitative Disclosures about Market Risks |
We are a smaller reporting company as defined by Rule 12b-2 of the Securities Exchange Act of
1934 and are not required to provide information under this item.
Item 4. | Controls and Procedures. |
Management of FUEL is responsible for maintaining disclosure controls and procedures that are
designed to ensure that information required to be disclosed in the reports that the Company files
or submits under the Securities Exchange Act of 1934 (the Exchange Act) is recorded, processed,
summarized and reported within the time periods specified in the Securities and Exchange
Commissions rules and forms. In addition, the disclosure controls and procedures must ensure that
such information is accumulated and communicated to the Companys management, including its Chief
Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding
required financial and other required disclosures.
Our management, including our Chief Executive Officer, Murray Campbell, along with our Chief
Financial Officer, Larry Kamp, have reviewed and evaluated the effectiveness of our disclosure
controls and procedures (as defined in Rule 13a 15(e) under the Exchange Act of 1934, as
amended) as of December 31, 2009. Based upon this review and evaluation, these officers have
concluded that our disclosure controls and procedures are effective to ensure that information
required to be disclosed in the reports that we file or submit under the Exchange Act is recorded,
processed, summarized and reported within the time periods required by the forms and rules of the
Securities and Exchange Commission; and to ensure that the information required to be disclosed by
an issuer in the reports that it files or submits under the Exchange Act is accumulated and
communicated to our management including our principal executive and principal financial officers,
or person performing similar functions, as appropriate to allow timely decisions regarding required
disclosure.
There were no changes in our internal control over financial reporting that occurred during
the period covered by this quarterly report that have materially affected, or are reasonably likely
to materially affect, our internal control over financial reporting.
PART II OTHER INFORMATION
Item 1. | Legal Proceedings. |
On February 1, 2011, SWGE, a wholly owned subsidiary of the Company, filed a voluntary
petition for relief under chapter 11 of the United States Bankruptcy Code in the United States
Bankruptcy Court for the Middle District of Georgia. The chapter 11 case is being administered by
the Bankruptcy Court as Case No. 11-10145. SWGE intends to continue to operate its business as
debtor-in-possession under the jurisdiction of the Bankruptcy Court and in accordance with the
applicable provisions of the Bankruptcy Code and orders of the Bankruptcy Court. As a result of the
filing, attempts to collect, secure, or enforce remedies with respect to pre-petition claims
against SWGE are subject to the automatic stay provisions of section 362 of the Bankruptcy Code.
Item 1A. | Risk Factors. |
You should carefully read and consider the risks and uncertainties below and the other
information contained in this report. The risks and uncertainties described below are not the only
ones we may face. The following risks, together with additional risks and uncertainties not
currently known to us or that we currently deem immaterial could impair our financial condition and
results of operation.
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SWGE filed for reorganization under Chapter 11 on February 1, 2011 and is subject to the risks
and uncertainties associated with the Bankruptcy Case. For the duration of the Bankruptcy Case, our
operations and our ability to execute our business strategy will be subject to the risks and
uncertainties associated with bankruptcy. These risks include:
| our ability to continue as a going concern; |
| our ability to operate within the restrictions and the liquidity limitations of
any DIP financing arrangement in connection with the Bankruptcy Case; |
| our ability to obtain Bankruptcy Court approval with respect to motions filed in
the Bankruptcy Case from time to time; |
| our ability to develop, prosecute, confirm and consummate a plan of
reorganization with respect to the Chapter 11 proceedings; |
| our ability to obtain and maintain normal payment and other terms with
customers, vendors and service providers; |
| our ability to maintain contracts that are critical to our operations; |
| our ability to attract, motivate and retain key employees; |
| our ability to attract and retain customers; and |
| our ability to fund and execute our business plan. |
We will also be subject to risks and uncertainties with respect to the actions and
decisions of our creditors and other third parties who have interests in the Bankruptcy Case that
may be inconsistent with our plans.
These risks and uncertainties could affect our business and operations in various ways.
For example, negative events or publicity associated with the Bankruptcy Case could adversely
affect our relationships with our vendors and employees, as well as with customers, which in turn
could adversely affect our operations and financial condition. Also, pursuant to the Bankruptcy
Code, we need Bankruptcy Court approval for transactions outside the ordinary course of business,
which may limit our ability to respond timely to events or take advantage of opportunities. Because
of the risks and uncertainties associated with the Bankruptcy Case, we cannot predict or quantify
the ultimate impact that events occurring during the Chapter 11 reorganization process will have on
our business, financial condition and results of operations, and there is no certainty as to our
ability to continue as a going concern.
A long period of operating under Chapter 11 could harm our business. A long period of
operating under Chapter 11 could adversely affect our business and operations. So long as the
Bankruptcy Case continues, our senior management will be required to spend a significant amount of
time and effort dealing with the Bankruptcy Case instead of focusing exclusively on business
operations. A prolonged period of operating under Chapter 11 will also make it more difficult to
attract and retain management and other key personnel necessary to the success of our business. In
addition, the longer the Bankruptcy Cases continue, the more likely it is that our vendors will
lose confidence in our ability to successfully reorganize our business, and they may seek to
establish alternative arrangements for providing us with goods and services, including alternative
payment arrangements, which in turn could have an adverse effect on our liquidity and/or results of
operations. Our having sought bankruptcy protection may also adversely affect our ability to
negotiate favorable terms from suppliers, contract or trading counterparties and others and to
attract and retain customers and counterparties. The failure to obtain such favorable terms and to
attract and retain customers and other contract or trading counterparties could adversely affect
our financial performance.
We have substantial liquidity needs and may be required to seek additional financing. Our
principal sources of liquidity have historically consisted of cash provided by operations, cash and
cash equivalents on hand and available borrowings under our credit agreements. Our liquidity
position is significantly influenced by our operating results, which in turn are substantially
dependent on commodity prices, especially prices for corn, ethanol, natural gas and unleaded
gasoline. As a result, adverse commodity price movements adversely impact our liquidity. We face
uncertainty regarding the adequacy of our liquidity and capital resources and have limited access
to additional financing. In addition to the cash requirements necessary to fund ongoing operations,
we have incurred significant professional fees and other costs in connection with the Bankruptcy
Case and expect that we will continue to incur significant professional fees and costs. We cannot
assure you that the amounts of cash available
from operations, together with any DIP financing, will be sufficient to fund our operations,
including operations during the period until such time as we are able to propose a plan of
reorganization that will receive the requisite acceptance by creditors and be confirmed by the
Bankruptcy Court.
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We may not have sufficient cash to service our indebtedness and other liquidity requirements.
Our ability to service any DIP financing indebtedness and successfully consummate a plan of
reorganization will depend, in part, on our ability to generate cash. We cannot be certain that
cash on hand together with cash from operations will by itself be sufficient to meet our cash and
liquidity needs. If we are unable to generate enough cash to meet our liquidity needs, we could be
forced to discontinue some or all of our operations.
Our DIP financing imposes significant operating and financial restrictions on us, compliance
or non-compliance with which could have a material adverse effect on our liquidity and operations.
Restrictions imposed by the terms of our DIP financing could adversely affect us by
limiting our ability to plan for or react to market conditions or to meet our capital needs and
could result in an event of default under the DIP financing. These restrictions will limit our
ability, subject to certain exceptions, to, among other things:
| incur additional indebtedness; |
| make prepayments on or purchase indebtedness in whole or in part; |
| make investments; |
| enter into transactions with affiliates on other than arms-length terms; |
| create or incur liens to secure debt; |
| consolidate or merge with another entity; |
| lease, transfer or sell assets and use proceeds of permitted asset leases,
transfers or sales; |
| incur dividend or other payment restrictions; |
| make capital expenditures beyond specified limits; and |
| engage in specified business activities. |
These limitations could have a material adverse effect on our liquidity and operations. If we
fail to comply with the restrictions under any DIP financing and are unable to obtain a waiver or
amendment or a default exists and is continuing under the DIP financing, the lenders could declare
outstanding borrowings and other obligations under the DIP financing immediately due and payable.
Our ability to comply with these restrictions may be affected by events beyond our control, and any
material deviations from our forecasts could require us to seek waivers or amendments of covenants
or alternative sources of financing or to reduce expenditures. We cannot assure you that such
waivers, amendments or alternative financing could be obtained, or if obtained, would be on terms
acceptable to us. If we are unable to comply with the terms of the DIP financing, or if we fail to
generate sufficient cash flow from operations, or, if it became necessary, to obtain such waivers,
amendments or alternative financing, it could adversely impact the timing of, and our ultimate
ability to successfully implement, a plan of reorganization.
Risks Relating to Our Business
If the Federal Volumetric Ethanol Excise Tax Credit (VEETC) expires on December 31, 2011, it
could negatively impact our profitability. The ethanol industry is benefited by VEETC which is a
federal excise tax credit of 45 cents per gallon of ethanol blended with gasoline. This excise tax
credit is set to expire on December 31, 2011. We believe that VEETC positively impacts the price of
ethanol. If VEETC is allowed to expire, it could negatively impact the price we receive for our
ethanol and could negatively impact our profitability.
We have a significant amount of debt, and our existing debt financing agreements contain, and
our future debt financing agreements may contain, restrictive covenants that limit distributions
and impose restrictions on the operation of our business. The use of debt financing makes it more
difficult for us to operate because we must make principal and interest payments on the
indebtedness and abide by covenants contained in our debt financing agreements. The level of our
debt may have important implications on our operations, including, among other things: (a) limiting
our ability to obtain additional debt or equity financing; (b) placing us at a competitive
disadvantage because we may be more leveraged than some of our competitors; (c) subjecting all or
substantially all of our assets to liens, which means that there may be no assets left for unit
holders in the event of a liquidation; and (d) limiting our ability to make business and
operational decisions regarding our business,
including, among other things, limiting our ability to pay dividends to our unit holders, make
capital improvements, sell or purchase assets or engage in transactions we deem to be appropriate
and in our best interest.
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Our financial performance is significantly dependent on corn and ethanol prices and generally
we will not be able to pass on increases in input prices to our customers. Our results of
operations and financial condition are significantly affected by the cost and supply of corn and
the market price of ethanol. Changes in the relative prices of corn and ethanol are subject to and
determined by market forces over which we have no control.
The spread between ethanol and corn prices can vary significantly. Our gross margins depend
principally on the spread between ethanol prices and corn prices. The spread between the price of a
gallon of ethanol and the cost of corn required to produce a gallon of ethanol will likely continue
to fluctuate. A protracted reduction in the spread between ethanol and corn prices, whether a
result of an increase in corn prices or a reduction in ethanol prices, would adversely affect our
results of operations and financial condition.
Risks Related to Ethanol Industry
The California Low Carbon Fuel Standard may decrease demand for corn based ethanol which could
negatively impact our profitability. Recently, California passed a Low Carbon Fuels Standard
(LCFS). The California LCFS requires that renewable fuels used in California must accomplish
certain reductions in greenhouse gases which are measured using a lifecycle analysis. Management
believes that these new regulations could preclude corn based ethanol produced in the Midwest from
being used in California. California represents a significant ethanol demand market. If the ethanol
industry is unable to supply ethanol to California, it could significantly reduce demand for the
ethanol we produce. Any decrease in ethanol demand could negatively impact ethanol prices which
could reduce our revenues and negatively impact our ability to profitably operate the ethanol
plant.
Overcapacity within the ethanol industry could cause an oversupply of ethanol and a decline in
ethanol prices. Excess capacity in the ethanol industry would have an adverse impact on our results
of operations, cash flows and general financial condition. Excess capacity may also result or
intensify from increases in production capacity coupled with insufficient demand. If the demand for
ethanol does not grow at the same pace as increases in supply, we would expect the price for
ethanol to decline.
Risks Related to Regulation and Governmental Action
Changes in environmental regulations or violations of the regulations could be expensive and
reduce our profitability. We are subject to extensive air, water and other environmental laws and
regulations. In addition, some of these laws require our plant to operate under a number of
environmental permits. These laws, regulations and permits can often require expensive pollution
control equipment or operation changes to limit actual or potential impacts to the environment. A
violation of these laws and regulations or permit conditions can result in substantial fines,
damages, criminal sanctions, permit revocations and/or plant shutdowns. In the future, we may be
subject to legal actions brought by environmental advocacy groups and other parties for actual or
alleged violations of environmental laws or our permits. Additionally, any changes in environmental
laws and regulations, both at the federal and state level, could require us to spend considerable
resources in order to comply with future environmental regulations. The expense of compliance could
be significant enough to reduce our profitability and negatively affect our financial condition.
Item 2. | Unregistered Sales of Equity Securities and Use of Proceeds. |
None.
Item 3. | Defaults Upon Senior Securities. |
None.
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Item 4. | Removed and Reserved |
Item 5. | Other Information. |
None.
Item 6. | Exhibits. The following exhibits are included herein: |
Exhibit No. | Description | |||
10.1 | Debtor-in-Possession Credit Agreement between Southwest
Georgia Ethanol, LLC and WestLB AG dated February 4, 2011. |
|||
10.2 | Pledge and Security Agreement between First United Ethanol,
LLC, Southwest Georgia Ethanol, LLC and WestLB AG dated
February 4, 2011. |
|||
10.3 | Debtor-in-Possession Accounts Agreement between Southwest
Georgia Ethanol, LLC, Amarilla National Bank and WestLB Ag
dated February 4, 2011. |
|||
10.4 | Deed to Secure Debt, Security Agreement and Assignment of
Leases, Rents and Security Deposits between Southwest Georgia
Ethanol, LLC and WestLB Ag dated February 4, 2011. |
|||
31.1 | Certificate Pursuant to 17 CFR 240.15d-14(a). |
|||
31.2 | Certificate Pursuant to 17 CFR 240.15d-14(a). |
|||
32.1 | Certificate Pursuant to 18 U.S.C. § 1350. |
|||
32.2 | Certificate Pursuant to 18 U.S.C. § 1350. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
FIRST UNITED ETHANOL, LLC |
||||
Date: February 18, 2011 | /s/ Murray Campbell | |||
Murray Campbell | ||||
Chief Executive Officer | ||||
Date: February 18, 2011 | /s/ Lawrence Kamp | |||
Lawrence Kamp | ||||
Chief Financial Officer |
33