Unassociated Document


     

    SECURED
PROMISSORY NOTE

     

    


    
      	
              $5,066,985.18

            	
              March
      30, 2010

            


    

     

    


    FOR VALUE
RECEIVED, Cullen Agricultural Holding Corp., a Delaware corporation (“Maker”),
having an address at is 320 East Clayton Suite 514, Athens, Georgia 30601,
hereby promises to pay to the order of Cullen Inc Holdings Ltd., its heirs,
administrators, executors, guardians, successors and/or assigns (any of which is
hereinafter referred to as “Holder” or “Payee”), at 8 Airpark Drive, Airport
Oaks, Manukau, Auckland, New Zealand, in lawful money of the United States, the
sum of FIVE MILLION SIXTY SIX THOUSAND NINE HUNDRED EIGHTY FIVE and 18/100
DOLLARS, ($5,066,985.18) (“Principal Amount”) on January 20, 2011 (the “Maturity
Date”).  This Note will bear interest at 8% per annum payable in full
upon the Maturity Date.  Upon payment of the Principal Amount of the
Note and all accrued but unpaid interest on the Note, this Note and Maker’s
obligations hereunder shall be discharged and fully satisfied. This Note may be
prepaid in whole or in part at any time without penalty or premium but with
payment of accrued interest to the date of prepayment, if any.

    


    If this
Note is not repaid on the Maturity Date or such earlier date as to which the
repayment obligation may be accelerated as indicated below, the rate of interest
applicable to the unpaid Principal Amount shall be adjusted to eighteen percent
(18%) per annum from the Maturity Date (or such earlier date if the obligation
to repay this Note is accelerated) until the date of repayment; provided, that
in no event shall the interest rate exceed the Maximum Rate (defined below). If
it is determined that, under the laws relating to usury applicable to Maker or
the indebtedness evidenced by this Note (“Applicable Usury Laws”), the interest
charges and fees payable by Maker in connection herewith or in connection with
any other document or instrument executed and delivered in connection herewith
cause the effective interest rate applicable to the indebtedness evidenced by
this Note to exceed the maximum rate allowed by law (the “Maximum Rate”), then
such interest shall be recalculated for the period in question and any excess
over the Maximum Rate paid with respect to such period shall be credited,
without further agreement or notice, to the Principal Amount outstanding
hereunder to reduce the Principal Amount by such excess with the same force and
effect as though Maker had specifically designated such excess to be so applied
to principal and Holder had agreed to accept such excess as a premium free
prepayment.  All such deemed prepayments shall be applied to the
principal balance payable at maturity.

    


    This Note
shall be binding upon the Maker and its legal representatives, heirs and
assigns.  This Note
supersedes and replaces in its entirety that certain promissory note issued by
Maker to Payee on October
22, 2009.

    


    This Note is secured by a mortgage on
certain property more specifically described in a “Deed to Secure Debt and
Security Agreement with Power of Sale” of even date herewith executed for the benefit of the Holder
(“Mortgage”).  Reference herein to the Mortgage shall in no way impair
the absolute and unconditional obligation of the Maker to pay both principal and
interest, if any, as provided herein.

    


    The
entire unpaid balance of this Note shall immediately become due and payable at
the election of the Holder without notice or demand if one or more of the
following events occur:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    (a)           Default
by the Maker, in the observance or performance of any covenant or agreement
contained in this Note or the Mortgage and such default shall remain unremedied
for a period of ten (10) days after notice has been given to the Maker to cure
such default;

    


    (b)           The
filing of a petition by or against the Maker for relief under any provisions of
any statute or law relating to bankruptcy, or the appointment of a receiver or
trustee for all or any part of the property of the Maker, provided that if
instituted against the Maker, the same are not dismissed or vacated within
thirty (30) days, or any adjudication that the Maker is insolvent or bankrupt,
or the making of any assignments by the Maker for the benefit of
creditors.

    


    Maker
agrees that Holder shall be entitled to collect from Maker all of Holder’s
reasonable attorneys’ fees and expenses relating to such action or
proceeding.

    Maker
hereby waives presentment, demand for payment, notice of dishonor, notice of
protest and protest and all other notices or demands in connection with the
delivery, acceptance, performance, default or endorsement of this
Note.

    


    Notice or
demand under this Note shall be deemed to have been sufficiently given if
hand-delivered or sent by nationally recognized overnight courier for next-day,
early-morning delivery, to Maker at its address indicated above and the date of
such notice or demand shall be the date of hand-delivery or the date following
the delivery to the courier.

    


    Maker
hereby waives presentment, demand for payment, notice of dishonor, notice of
protest and protest and all other notices or demands in connection with the
delivery, acceptance, performance, default or endorsement of this
Note.  This Note shall be governed by and construed and enforced in
accordance with the internal law of the State of Georgia, without giving effect
to principles of conflicts of law.  Maker hereby agrees that any
action, proceeding or claim against it arising out of or relating in any way to
this Note may be brought and enforced in the Federal or state courts of the
State of Georgia and irrevocably submits to such jurisdiction.  Maker
hereby waives any objection to such jurisdiction and that such courts represent
an inconvenient forum.  MAKER FURTHER WAIVES TRIAL BY JURY
AND WAIVES THE RIGHT TO INTERPOSE ANY DEFENSE, SETOFF OR COUNTERCLAIM OF ANY
NATURE OR DESCRIPTION.  Maker agrees that Holder shall be
entitled to collect from Maker all of Holder’s reasonable attorneys’ fees and
expenses relating to such action or proceeding.

     

    
      
        	 	
                CULLEN
      AGRICULTURAL HOLDING
      CORP.

              	 
	 	 	 	 
	
              	
                By:
      

              	 	 
	 	 	Name:
      Eric J. Watson	 
	 	 	Title:
      Chief Executive Officer