Contract
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
THE SECURITIES LAWS OF ANY STATE. NO TRANSFER, SALE OR OTHER DISPOSITION OF
THIS
NOTE MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THIS NOTE
HAS
BECOME EFFECTIVE UNDER SAID ACT, AND SUCH REGISTRATION OR QUALIFICATION AS
MAY
BE NECESSARY UNDER THE SECURITIES LAWS OF ANY STATE HAS BECOME EFFECTIVE, OR
THE
COMPANY HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PAYMENTS
OF PRINCIPAL AND INTEREST IN RESPECT OF THIS NOTE ARE SUBORDINATED, TO THE
EXTENT SPECIFIED IN THE INTERCREDITOR/SUBORDINATION AGREEMENT, DATED AS OF
JUNE
2, 2008, BY AND AMONG SHOW ME ETHANOL, LLC, THE MAKER, FCS FINANCIAL, PCA,
AND
EACH OF THE OTHER PERSONS SUBJECT TO SUCH AGREEMENT, TO PAYMENTS OF CERTAIN
SENIOR INDEBTEDNESS OF MAKER.
9%
SUBORDINATED SECURED PROMISSORY NOTE DUE JUNE 4 2010
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$______________
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June
5 2008
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FOR
VALUE
RECEIVED, the undersigned, Show Me Ethanol, LLC, a Missouri limited liability
company (“Maker”), promises to pay to the order of ______________, (“Payee,”
Payee and any subsequent holder(s) hereof are hereinafter referred to
collectively as “Holder”), the principal sum of _________ ($______), together
with interest on the outstanding Principal balance hereof from the date hereof
at the rate of nine percent (9%) per annum (computed on the basis of a 360-day
year for the actual number of days elapsed), on June 4 2010 (the “Maturity
Date”). Capitalized terms used herein without definition shall have the meanings
set forth in that certain Loan and Security Agreement dated as of the date
hereof which is being entered into in connection with this Note (the “Loan
Agreement”).
Interest
on the outstanding Principal balance hereof shall be due and payable annually,
in arrears, with the first installment being payable on the first anniversary
of
the Closing Date, as defined in the Purchase Agreement and thereafter on the
Maturity Date, at which time the entire outstanding Principal balance, together
with all accrued and unpaid interest, shall be immediately due and payable
in
full. The Maker shall make its interest payments under this Note on each payment
date referenced above by making a cash payment through the Agent (as defined
in
the Loan Agreement) to the Holder in an amount equal to nine percent (9%) per
annum of the Principal balance outstanding under this Note. Payments of
Principal and/or interest shall be made in lawful money of the United States
of
America to the registered Holder of this Note at the address shown in the
register maintained by the Agent for such purpose, all in the manner provided
in
the Loan Agreement.
This
Note
and the Loan Agreement are issued pursuant to the Purchase Agreement, effective
as of June 5 2008 (the “Purchase Agreement”), by and among Maker, the Payee and
the other lenders from time to time party thereto, the terms and provisions
of
which are incorporated herein by reference. The registered Holder is entitled
to
the benefits of this Note, the Purchase Agreement and the Loan Documents (as
defined in the Loan Agreement), as they relate to the Note, and may enforce
the
agreements of Maker contained herein and therein and exercise the remedies
provided hereby and thereby or otherwise available in respect hereto and thereto
only through the Agent and not individually as a Holder of the
Note.
The
Maker
may prepay outstanding Principal on the Note at any time and from time to time.
All payments shall be made on a pro rata basis according to the outstanding
Principal amount of the Notes held by the Lenders.
Upon
the
occurrence of any Event of Default as set forth in the Loan Agreement or herein,
except for an Event of Default resulting from an Act of Bankruptcy or Act of
Dissolution, the Agent at its option, may, without notice to Maker, accelerate
the maturity of the indebtedness evidenced hereby and declare this Note to
be
immediately due and payable, as well as any and all other indebtedness of Maker
to the Lenders. Upon the occurrence of any such Event of Default and the
acceleration of the maturity of the indebtedness evidenced by the Notes: (a)
Agent, on behalf of Holder, shall be immediately entitled to exercise any and
all rights and remedies possessed by Holder pursuant to the terms of this Note
and all of the other Loan Documents; and (b) Holder shall have any and all
other
rights and remedies that Lenders may now or hereafter possess at law, in equity
or by statute.
Following
an Event of Default, all of Maker’s obligations under this Note shall, for such
time as Maker fails to cure the Event of Default, bear interest until paid
at an
annual rate (the “Default Rate”) equal to the lesser of (i) the rate that is
five percentage points (5%) in excess of the above-specified interest rate,
or
(ii) the maximum rate of interest allowed to be charged under applicable law
(the “Maximum Rate”), regardless of whether or not there has been an
acceleration of the payment of Principal. All such interest shall be paid at
the
time of and as a condition precedent to the curing of any such Event of
Default.
In
the
event this Note is placed in the hands of an attorney for collection, or if
Holder incurs any costs incident to the collection of the indebtedness evidenced
hereby, Maker and any endorsers hereof agree to pay to Holder an amount equal
to
all such costs, including without limitation all reasonable attorneys’ fees and
all court costs.
Presentment
for payment, demand, protest and notice of demand, protest and nonpayment are
hereby waived by Maker and all other parties hereto. No failure to accelerate
the indebtedness evidenced hereby by reason of an Event of Default hereunder,
acceptance of a past-due installment or other indulgences granted from time
to
time, shall be construed as a novation of this Note or as a waiver of such
right
of acceleration or of the right of Holder thereafter to insist upon strict
compliance with the terms of this Note or to prevent the exercise of such right
of acceleration or any other right granted hereunder or by applicable law.
No
extension of the time for payment of the indebtedness evidenced hereby or any
installment due hereunder, made by agreement with any person now or hereafter
liable for payment of the indebtedness evidenced hereby, shall operate to
release, discharge, modify, change or affect the original liability of Maker
hereunder or that of any other person now or hereafter liable for payment of
the
indebtedness evidenced hereby, either in whole or in part, unless Holder agrees
otherwise in writing. This Note may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
The
indebtedness and other obligations evidenced by this Note are further evidenced
by (i) the Purchase Agreement, (ii) the Loan Documents and (iii) certain other
instruments and documents, as may be required to protect and preserve the rights
of Maker and Payee, as more specifically described in the Purchase
Agreement.
All
agreements herein made are expressly limited so that in no event whatsoever,
whether by reason of advancement of proceeds hereof, acceleration of maturity
of
the unpaid balance hereof or otherwise, shall the amount paid or agreed to
be
paid to Holder for the use of the money advanced or to be advanced hereunder
exceed the Maximum Rate. If, from any circumstances whatsoever, the fulfillment
of any provision of this Note or any other agreement or instrument now or
hereafter evidencing, securing or in any way relating to the indebtedness
evidenced hereby shall involve the payment of interest in excess of the Maximum
Rate, then, ipso facto, the obligation to pay interest hereunder shall be
reduced to the Maximum Rate; and if from any circumstance whatsoever, Holder
shall ever receive interest, the amount of which would exceed the amount
collectible at the Maximum Rate, such amount as would be excessive interest
shall be applied to the reduction of the Principal balance remaining unpaid
hereunder and not to the payment of interest. This provision shall control
every
other provision in any and all other agreements and instruments existing or
hereafter arising between Maker and Holder with respect to the indebtedness
evidenced hereby.
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THIS
NOTE
SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE
LAWS
OF THE STATE OF MISSOURI, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW
OF SUCH STATE.
EACH
PARTY TO THIS NOTE HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS NOTE OR ANY AGREEMENTS OR TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY MAY BE BROUGHT IN THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI AND OF ALL MISSOURI
STATE COURTS SITTING IN XXXXXXX COUNTY, MISSOURI, AND HEREBY EXPRESSLY SUBMITS
TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF
AND EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS
ARE AN INCONVENIENT FORUM. IT IS FURTHER AGREED THAT VENUE FOR ANY SUCH ACTION
SHALL LIE EXCLUSIVELY WITH COURTS SITTING IN XXXXXXX COUNTY, MISSOURI, UNLESS
HOLDER AGREES TO THE CONTRARY IN WRITING. EACH PARTY HEREBY IRREVOCABLY CONSENTS
TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH SUIT,
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN THE LOAN AND SECURITY
AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 10 DAYS AFTER SUCH MAILING.
EACH
PARTY TO THIS NOTE HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS NOTE OR
ANY
OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER
OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. THE MAKER (I) CERTIFIES
THAT
NEITHER HOLDER NOR ANY REPRESENTATIVE OR ATTORNEY OF HOLDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT HOLDER WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK
TO ENFORCE THE FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT HOLDER HAS BEEN
INDUCED TO PURCHASE THIS NOTE BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
As
used
herein, the terms “Maker” and “Holder” shall be deemed to include their
respective successors, legal representatives and assigns, whether by voluntary
action of the parties or by operation of law.
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IN
WITNESS WHEREOF, this Note is executed on the date first above
written.
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By:
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Name:
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Title:
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