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SUBORDINATED REVOLVING CREDIT NOTE

Promissory Note

SUBORDINATED REVOLVING CREDIT NOTE | Document Parties: SOUTHWEST IOWA RENEWABLE ENERGY, LLC | BUNGE NA HOLDINGS, INC You are currently viewing:
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SOUTHWEST IOWA RENEWABLE ENERGY, LLC | BUNGE NA HOLDINGS, INC

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Title: SUBORDINATED REVOLVING CREDIT NOTE
Governing Law: Iowa     Date: 9/3/2009

SUBORDINATED REVOLVING CREDIT NOTE, Parties: southwest iowa renewable energy  llc , bunge na holdings  inc
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SUBORDINATED REVOLVING CREDIT NOTE

 

 

$10,000,000.00                                                                         St. Louis, Missouri

                                                                            August 26, 2009

 

FOR VALUE RECEIVED, on the last day of the Revolving Credit Period, the undersigned, SOUTHWEST IOWA RENEWABLE ENERGY, LLC, an Iowa limited liability company (the “Borrower”), hereby promises to pay to the order of BUNGE N.A. HOLDINGS, INC., a Delaware corporation (the “Lender”), the principal sum of Ten Million Dollars ($10,000,000.00), or such lesser sum as may then constitute the aggregate unpaid principal amount of all loans made by the Lender to the Borrower pursuant to this Note. Loans under this Note may be borrowed, paid, reborrowed and repaid, in whole or in part, subject to the terms and conditions of this Note. Notwithstanding any provision contained in this Note to the contrary, (a)  the aggregate principal amount of loans which the Lender shall be committed to have outstanding under this Note at any one time shall not exceed Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000.00) (the “Lender’s Commitment”), (b) the Lender shall have no obligation to make any loan under this Note if, after giving effect to such loan, the outstanding principal balance of this Note would exceed the amount of the Lender’s Commitment and (c) the Lender may make or refuse to make, in the Lender’s sole and absolute discretion, any loan requested by the Borrower under this Note which would cause the outstanding principal balance of this Note to exceed the amount of the Lender’s Commitment.  To the extent there are any loans then outstanding under this Note, the Borrower hereby covenants and agrees to make a mandatory prepayment on this Note on each Business Day in an amount equal to the amount, if any, by which the “Outstanding Revolving Advances” (as defined in the AgStar Credit Agreement) on such Business Day are less than the “Borrowing Base” (as defined in the AgStar Credit Agreement) on such Business Day, if, as and to the extent Borrower is then permitted to make such prepayment under the AgStar Credit Agreement (whether by making a drawing on its revolving line of credit under the AgStar Credit Agreement or otherwise).

 

The Borrower further promises to pay to the order of the Lender interest on the from time to time outstanding principal balance of this Note prior to the maturity of this Note as follows: (a) so long as no Event of Default under this Note has occurred and is continuing, at a rate per annum equal to Seven and One-Half Percent (7-1/2%) per annum over and above the Floating Rate (which rate of interest shall fluctuate as and when the Floating Rate shall change) and (b) so long as any Event of Default under this Note has occurred and is continuing, at a rate per annum equal to Ten and One-Half Percent (10-1/2%) per annum over and above the Floating Rate (which rate of interest shall fluctuate as and when the Floating Rate shall change).  Said interest shall be due and payable monthly in arrears on the last day of each month commencing August 31, 2009, and at the maturity of this Note, whether by reason of acceleration or otherwise.  From and after the maturity of this Note, whether by reason of acceleration or otherwise, interest shall accrue and be due and payable on the demand of the Lender on the from time to time outstanding principal balance of this Note at a rate per annum equal to Ten and One-Half Percent (10-1/2%) per annum over and above the Floating Rate (which rate of interest shall fluctuate as and when the Floating Rate shall change).

 

Interest on this Note shall be computed on the basis of a year of 360 days and paid for the

 

 

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actual number of days elapsed (including the first day but excluding the last day).  All payments received by the Lender under or in respect of this Note shall be allocated among the principal, interest, collection costs and expenses and other amounts due under this Note in such order and manner as the Lender shall elect.

 

The Borrower may request a loan under this Note by providing the Lender with written notice thereof no later than 10:00 a.m. (St. Louis time) at least one (1) Business Day before the Business Day such loan is to be made. Each request that the Lender make a loan under this Note (a “Borrowing Notice”) shall specify (a) the amount of the loan requested, which must be at least $100,000.00 or any larger multiple of $100,000.00 and (b) the date on which such loan is to be made, which must be a Business Day during the Revolving Credit Period. If, after giving effect to such loan, the outstanding principal balance of this Note would not exceed the amount of the Lender’s Commitment, subject to the terms and conditions of this Note and provided that the Lender has received the applicable Borrowing Notice, the Lender shall (unless the Lender determines that any applicable condition specified in the immediately following paragraph has not been satisfied) make the proceeds of such loan available to the Borrower in immediately available funds not later than 2:30 p.m. (St. Louis time) on the Business Day specified in the Borrowing Notice by wire transferring the amount of such loan to Borrower's Money Market, Treynor State Bank, Treynor, Iowa, Bankers' Bank, Madison, WI (ABA Routing No. 075912479), credit Treynor State Bank (ABA# 104920442), further credit to SIRE account #2101880 or to such other bank account of the Borrower as the Borrower may from time to time designate in writing. If, after giving effect to such loan, the outstanding principal balance of this Note would exceed the amount of the Lender’s Commitment and the Lender elects to make the requested loan to the Borrower (and the Lender shall have the right to make or not make any such loan requested by the Borrower in the Lender’s sole and absolute discretion), the Lender shall make the proceeds of such loan available to the Borrower in immediately available funds not later than 2:30 p.m. (St. Louis time) on the Business Day specified in the Borrowing Notice by wire transferring the amount of such loan to the Borrower’s Money Market, Treynor State Bank, Treynor, Iowa, Bankers' Bank, Madison, WI (ABA Routing No. 075912479), credit Treynor State Bank (ABA# 104920442), further credit to SIRE account #2101880 or to such other bank account of the Borrower as the Borrower may from time to time designate in writing. Each request by the Borrower for a loan under this Note shall constitute a representation and warranty by the Borrower that all of the representations and warranties made by the Borrower in this Note are true and correct on and as of the date of such loan as if made on and as of the date of such loan. The Borrower hereby authorizes the Lender to rely on facsimile, e-mail or written instructions of any person identifying himself or herself as one of the individuals listed on Schedule 1 attached hereto and incorporated herein by reference, and on any signature of any such designated individual which the Lender in good faith believes to be genuine, and the Borrower shall be bound thereby in the same manner as if such person were actually authorized or such signature were genuine. The Borrower also hereby agrees to defend and indemnify the Lender and hold the Lender harmless from and against any and all claims, demands, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) relating to or arising out of or in connection with the acceptance of instructions for making loans or repayments under this Note.

 

Notwithstanding any provision contained in this Note to the contrary, the Lender shall have no obligation to make any loan under this Note unless: (a) the Lender shall have received a

 

 

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Borrowing Notice for such loan; (b) immediately before and immediately after giving effect to such loan, the outstanding principal balance of this Note shall not exceed the amount of the Lender’s Commitment; (c) immediately before and immediately after giving effect to such loan, no Event of Default and no event which with the passage of time or the giving of notice or both would constitute an Event of Default under this Note shall have occurred and be continuing; (d) immediately before and immediately after giving effect to such loan, no “Event of Default” (as defined therein) and no event which with the passage of time or the giving of notice or both would constitute an “Event of Default” (as defined therein) under the AgStar Credit Agreement shall have occurred and be continuing; (e) no material adverse change in the properties, assets, liabilities, business, operations, income or condition (financial or otherwise) of the Borrower shall have occurred since the date of this Note be continuing; (f) all of the representations and warranties made by the Borrower in this Note shall be true and correct in all material respects on and as of the date of such loan as if made on and as of the date of such loan; and (g) immediately before and immediately after giving effect to such loan, the “Outstanding Revolving Advances” (as defined in the AgStar Credit Agreement) are at least equal to the “Borrowing Base” (as defined in the AgStar Credit Agreement). Each request for a loan by the Borrower under this Note shall be deemed to be a certification by the Borrower on the date of the making of such loan that the statements set forth in clauses (b), (c), (d), (e), (f) and (g) of the immediately preceding sentence are true and correct on and as of such date.

 

The Lender shall record in its books and records the date and amount of each loan made by it to the Borrower under this Note and the date and amount of each payment of principal and/or interest made by the Borrower with respect thereto; provided, however, that the obligation of the Borrower to repay each loan made by the Lender to the Borrower under this Note shall be absolute and unconditional, notwithstanding any failure of the Lender to make any such recordation or any mistake by the Lender in connection with any such recordation.  The books and records of the Lender showing the account between the Lender and the Borrower shall be admissible in evidence in any action or proceeding and shall constitute prima facie proof of the items therein set forth.

 

The Borrower shall have the right to prepay all at any time or any portion of the from time to time outstanding principal balance of this Note at any time without penalty or premium.

 

The Borrower shall make each payment of principal of, and interest on, this Note and all other amounts payable under this Note not later than 12:00 noon (St. Louis time) on the date when due by wire transferring such amounts to the Lender’s Account No. 323-891918 at  JP Morgan Chase (ABA Routing No. 0210-0002-1) or to such other bank account of the Lender as the Lender may from time to time designate in writing.  Any such payment received by the Lender after 12:00 noon (St. Louis time) shall be deemed to have been paid on the next succeeding Business Day.  Whenever any payment of principal of, or interest on, this Note shall be due on a day which is not a Business Day, the date for payment thereof shall be extended to the next succeeding Business Day.  If the date for any payment of principal is extended by operation of law or otherwise, interest thereon, at the then applicable rate, shall be payable for such extended time. The acceptance by the Lender of any payment of principal or interest due under this Note after the date it is due shall not be held to establish a custom or waive any rights of the Lender to enforce prompt payment of any further payments or otherwise.

 

 

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The Borrower hereby represents and warrants to the Lender that (a) all of the proceeds of each loan evidenced by this Note will be used by Borrower solely for the working capital purposes of the Borrower, (b) the Borrower is a limited


 
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