EXHIBIT 10.4
PROMISSORY NOTE
$200,000.00 November 27, 1996
FOR VALUE RECEIVED, the undersigned, Alliance Farms Cooperative
Association, a Colorado corporation ("Borrower"), hereby promises to pay to the
order of Farmland Industries, Inc. a Kansas cooperative corporation ("Lender"),
the principal sum of Two Hundred Thousand and No/100 DOLLARS ($200,000.00).
Interest will be charged and compounded annually on the outstanding
principal balance of this Note or so much thereof as shall be advanced, at the
per annum rate equal to the sum of (a) one and one-quarter percent (1.25% or 125
basis points), plus (b) the National Variable Rate (collectively, the
"Applicable Rate") with the understanding that the National Variable Rate shall
be the rate most recently announced by CoBank, ACB (the "Bank") as its "National
Variable Rate." The National Variable Rate is one of the Bank's base rates and
serves as a basis upon which effective rates of interest are calculated for
those loans making reference thereto, and is evidenced by the recording thereof
after its announcement in such internal publication or publications as the Bank
may designate. The Applicable Rate shall be adjusted annually based on the
Base Rate in effect on the anniversary date of this Note. Interest shall be
computed on the basis of a 360-day year.
It is acknowledged that the Applicable Rate effective on the date of
the execution of this Note is nine and one-half percent (9.5%) per annum, and
this Note will initially bear interest at the rate of nine and one-half percent
(9.5%) per annum.
Principal and interest shall be payable as follows:
In installments of interest only on the 1st day of January, 1996, and
on the 1st day of each successive month thereafter until this Note is repaid in
full, and (b) a final payment of all outstanding principal and accrued but
unpaid interest due hereunder on the first to occur of (i) the closing date with
respect to Borrower's next issuance and sale of a block of at least seventeen
(17) shares of its common stock, $.01 par value, and (ii) the 27th day of
November, 2006; provided, however, that as of each anniversary of the date of
this Note, Lender shall adjust the amount of the monthly interest installments
to an amount calculated to be the interest payment sufficient to amortize the
then outstanding principal at the then Applicable Rate as if the outstanding
principal were to be fully amortized in equal monthly installments at the
Applicable Rate over the then remaining portion of an assumed original repayment
term of ten (10) years. Lender shall provide written notice to Borrower of the
amount of such adjusted interest payment promptly upon completing the
calculation thereof.
If any installment of this Note becomes due and payable on a Saturday,
Sunday or business holiday in the State of Missouri, payment shall be made on
the next successive business day with the same effect as though made on the due
date.
The Borrower reserves the right to prepay all or any portion of this
Note at any time and from time to time without premium or penalty of any kind.
All payments made hereunder shall be made in lawful currency of the
United States of America at Farmland Industries, P.O. Box 7305, Kansas City,
Missouri 64116, Attn: Paul Miller, or at such other place as the Lender may
designate in writing. All payments made hereunder, whether a scheduled
installment, prepayment, or payment as a result of acceleration, shall be
allocated first to accrued but unpaid interest, next to premiums, penalties, or
liquidated damage amounts, if any, due hereunder, next to installments of
principal overdue or currently due, and then to installments of principal
remaining outstanding hereunder in the inverse order of their maturity.
For the purposes of this Note, the following terms shall have the
following meanings:
(a) "Borrower" shall mean, jointly and severally, Alliance Farms
Cooperative Association, a Colorado corporation, its successors and assigns, and
all other persons or entities succeeding to the interest of the named Borrower
in the property encumbered by the Deed of Trust and any person or entity
becoming liable on this Note, the Deed of Trust, or any of the other Loan
Documents.
(b) "Default" shall mean the failure of Borrower to pay or perform as
required hereunder or as required under the Deed of Trust or the Loan Documents.
(c) "Event of Default" shall mean a Default for which there is no
opportunity to cure or for which all opportunities to cure have expired.
(d) "Lender" shall mean Farmland Industries, Inc., a Kansas
cooperative corporation, and its successors and assigns.
(e) "Loan Documents" shall mean collectively this Note, the Mortgage
and any and all other instruments, agreements and documents now or hereafter
evidencing, securing or otherwise relating to the debt evidenced by this Note.
(f) "Mortgage" shall mean those certain Illinois Mortgages executed
by Borrower, securing this Note and granting Lender a security interest in and
to Buyer's right, title and interest in certain property described therein.
Each person liable hereon agrees, to the extent permitted by law, to
pay all reasonable costs of collection, including attorneys' fees, paid or
incurred by the Lender in enforcing this Note or the rights and remedies herein
provided.
This Note is secured by the Mortgage. It is expressly agreed that all
of the covenants, conditions and agreements contained in those Mortgage and the
Loan Documents are hereby made part of this Note. This Note will be considered
in default (1) upon failure to pay any installment of principal or interest as
required herein on the due date thereof, or (2) upon any default under the
Mortgage or the Loan Documents, or (3) upon the occurrence of any event by which
under the terms of the Mortgage or the Loan Documents this Note may or shall
become due and payable. Upon the occurrence of an Event of Default, and after
expiration of the applicable cure period, Lender may, at its option, declare all
unpaid indebtedness, evidenced by this Note, and any modifications thereof, plus
any other sums owed by Borrower to Lender at the time of such declaration, to be
accelerated and immediately due and payable without notice regardless of the
date of maturity.
Failure at any time to exercise the foregoing or any other options
shall not constitute a waiver of the right to exercise the same or any other
option at any other time in respect of the same event or any other event.
The Borrower, for itself and/or any other entity or persons now or
hereafter liable hereon, hereby waives demand of payment, presentment for
payment, protest, notice of nonpayment or dishonor and any and all other notices
and demands whatsoever, and any and all delays or lack of diligence in the
collection hereof, and expressly consents and agrees to any and all extensions
or postponements of the time of payment hereof from time to time at or after
maturity and any other indulgence and waives all notice thereof.
By executing this Note on behalf of the Borrower, any individual
and/or entity which has signed this Note in a representative capacity on behalf
of Borrower does hereby represent to the Lender that such individual and/or
entity is duly authorized and empowered to execute and deliver this Note on
behalf of the Borrower and that this Note constitutes the legal and binding
obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
This Note shall be governed by and construed and enforced in
accordance with the laws of the State of Missouri (without reference to conflict
of laws principles of such state), except to the extent preempted by United
States federal law.
IN WITNESS WHEREOF, the undersigned has duly caused this Note to be
executed and delivered at the place specified above and as of the date first
written above.
ALLIANCE FARMS COOPERATIVE ASSOCIATION, a Colorado
corporation
By
Printed Name:
Title:
BORROWER