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
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
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.
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
|