THIS SECURITY
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT ”), OR UNDER ANY
STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFEREED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED OR ENCUMBERED UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY
ONLY (A) TO THE ISSUER OF THIS SECURITY OR AN AFFILIATE OF THE
ISSUER, OR (B) IF THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE
144A”) TO A PERSON IT REASONABLY BELIEVES IS A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
NOTWITHSTANDING
ANYTHING IN THIS NOTE TO THE CONTRARY, ANY RIGHT TO PAYMENT
HEREUNDER, THE LIEN OR SECURITY INTEREST GRANTED TO THE HOLDER, THE
EXERCISE OF ANY RIGHT OR REMEDY BY THE DESIGN-BUILDER HEREUNDER,
AND EACH PROVISION OF THIS NOTE ARE SUBJECT TO THE PROVISIONS OF
THE SUBORDINATION AGREEMENT, DATED ON OR ABOUT THE DATE HEREOF,
AMONG THE HOLDER, THE OBLIGOR AND WESTLB AG, NEW YORK BRANCH (THE
“SUBORDINATION AGREEMENT’). IN THE EVENT OF ANY
CONFLICT BETWEEN THE TERMS OF THE SUBORDINATION AGREEMENT AND THIS
NOTE, THE TERMS OF SUBORDINATION AGREEMENT SHALL GOVERN AND
CONTROL.
SOUTHWEST GEORGIA ETHANOL,
LLC
SUBORDINATED PROMISSORY NOTE DUE
JUNE 30, 2011
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$3,977,544.83
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June 30, 2009
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FOR VALUE
RECEIVED, the undersigned, SOUTHWEST GEORGIA ETHANOL, LLC, a
Georgia limited liability company (the
“Obligor”), hereby promises to pay to the order
of FAGEN, INC., a Minnesota corporation, or its permitted assigns
(as the case may be, the “Holder” ), the
principal sum of THREE MILLION NINE HUNDRED SEVENTY-SEVEN THOUSAND
FIVE HUNDRED FORTY-FOUR DOLLARS AND EIGHTY-THREE CENTS
($3,977,544.83), with interest on the outstanding principal amount
as provided below.
(i) The Obligor will make a principal
payment in the amount of five hundred thousand dollars ($500,000)
not later than the date that is ninety (90) days after the
date first set forth above.
(ii) The Obligor will make additional
payments of principal on the dates and in the amounts provided in
Schedule B attached hereto.
(iii) All remaining unpaid principal (if
any) and accrued and unpaid interest due hereunder shall be payable
on or prior to June 30, 2011 (the “Maturity
Date”).
Interest . The Obligor promises to pay to the order of
the Holder cash interest on the principal amount hereof at a rate
per annum equal to four percent (4%) through June 30, 2010,
and at a rate per annum equal to eight percent (8%) thereafter.
Interest shall be payable in arrears on a quarterly basis on the
dates provided in Schedule A attached hereto and shall
be calculated on the basis of a year of 365 days and for the
number of days actually elapsed.
Prepayment. The Obligor shall have the right to pay the
principal hereof in whole or in part without penalty at any time
prior to the Maturity Date.
No
Waiver. No failure or
delay by the Holder in exercising any right, power or privilege
under this Note shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by
law. No course of dealing between the Obligor and the Holder shall
operate as a waiver of any rights by the Holder.
Waiver of
Presentment and Notice of Dishonor. The Obligor and all endorsers, guarantors and
other parties that may be liable under this Note hereby waive
presentment, dishonor, demand, protest and notice of presentment,
notice of protest and notice of dishonor of any of the
obligati
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