Exhibit 10.34


 


PLAINSCAPITAL BANK – LOAN NO.


 


PROMISSORY NOTE


 


	$7,500,000.00	DECEMBER 13, 2013


 


FOR VALUE RECEIVED,
JBGL CAPITAL, LP, a Delaware limited partnership (“Debtor”), unconditionally promises to pay to
the order of PLAINSCAPITAL BANK, a Texas state bank (together with its successors and assigns, “Lender”),
without setoff, at its offices at 2323 Victory Avenue, Dallas (Dallas County), TX 75219, or at such other place as may be designated
by Lender, the principal amount of SEVEN MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($7,500,000.00), or so much thereof
as may be advanced from time to time in immediately available funds, together with, interest computed daily on the outstanding
principal balance hereunder, at an annual interest rate (the “Rate"), and in accordance with the payment
schedule indicated below. This PROMISSORY NOTE (this “Note”) is executed pursuant to and evidences
the loan funded by Lender under, and secured in part by, (a) that certain LOAN AGREEMENT dated as of even date herewith
(the “Effective Date"), between Debtor and Lender (as amended, restated or otherwise modified from time
to time, the “Loan Agreement") and (b) each certain Deed of Trust (as defined in the Loan Agreement),
to which reference is for a statement of the collateral, rights and obligations of Debtor and Lender in relation thereto, but
neither this reference to the Loan Agreement, each Deed of Trust nor any provision thereof shall affect or impair the absolute
and unconditional obligation of Debtor to pay unpaid principal of and interest on this Note when due. Capitalized terms not otherwise
defined herein shall have the same meanings as in the Loan Agreement.


 


1.         Rate.
Prior to the Maturity Date or an Event of Default, the Rate shall be the LESSER of (a) the MAXIMUM RATE, or
(b) the GREATER of (i) the PRIME RATE plus ONE PERCENT (1.00%), or (ii) FIVE PERCENT
(5.00%) (the interest rate floor). From and after the Maturity Date, the Rate shall be the Maturity Rate. The term “Prime
Rate” means a variable rate of interest per annum equal to the prime rate as published from time to time in the “Bonds.
Rates & Yields” table of The Wall Street Journal. If such prime rate, as so quoted, is split between two or
more different interest rates, then the Prime Rate shall be the highest of such interest rates. If the prime rate is no longer
published in the “Bonds, Rates & Yields” table of The Wall Street Journal, then the Prime Rate shall
be (a) the rate of interest per annum established from time to time by Lender and designated as its base or prime rate, which may
not necessarily be the lowest rate charged by Lender and is set by Lender in its sole discretion, or (b) if Lender does not publish
or announce a base or prime rate, or does so infrequently or sporadically, then the Prime Rate shall be determined by reference
to another base rate, prime rate, or similar lending rate index, generally accepted on a national basis, as selected by Lender
in its sole and absolute discretion. Notwithstanding any provision of this Note or any other agreement or commitment between Debtor
and Lender, whether written or oral, express or implied, Lender shall never be entitled to charge, receive or collect, nor shall
amounts received hereunder be credited so that Lender shall be paid, as interest a sum greater than interest at the Maximum Rate.
It is the intention of the parties that this Note, and all instruments securing the payment of this Note or executed or delivered
in connection therewith, shall comply with applicable law. If Lender ever contracts for, charges, receives or collects anything
of value which is deemed to be interest under applicable law, and if the occurrence of any circumstance or contingency, whether
acceleration of maturity of this Note, prepayment of this Note, delay in advancing proceeds of this Note or any other event, should
cause such interest to exceed the Maximum Rate, any amount which exceeds interest at the Maximum Rate shall be applied to the reduction
of the unpaid principal balance of this Note or any other Indebtedness, and if this Note and such other Indebtedness are paid in
foil, any remaining excess shall be paid to Debtor. In determining whether the interest exceeds interest at the Maximum Rate, the
total amount of interest shall be spread, prorated and amortized throughout the entire term of this Note until its payment in full.
The term “Maximum Rate” as used in this Note means the maximum nonusurious rate of interest per annum
permitted by whichever of applicable United States federal law or Texas law permits the higher interest rate, including to the
extent permitted by applicable law, any amendments thereof hereafter or any new law hereafter coming into effect to the extent
a higher Maximum Rate is permitted thereby. If at any time the Rate shall exceed the Maximum Rate, the Rate shall be automatically
limited to the Maximum Rate until the total amount of interest accrued hereunder equals the amount of interest which would have
accrued if there had been no limitation to the Maximum Rate. To the extent, if any, that Chapter 303 of the Texas Finance Code,
as amended, (the “Act") is relevant to Lender for purposes of determining the Maximum Rate, the parties
elect to determine the Maximum Rate under the Act pursuant to the “weekly ceiling” from time to time in effect, as
referred to and defined in §303.001-303.016 of the Act; subject, however, to any right Lender subsequently may have under
applicable law to change the method of determining the Maximum Rate.


 




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2.         Accrual
Method. Interest on the Indebtedness evidenced by this Note shall be computed on the
basis of a THREE HUNDRED SIXTY (360) day year and shall accrue on the actual number of days elapsed for any whole or partial
month in which interest is being calculated. In computing the number of days during which interest accrues, the day on which funds
are initially advanced shall be included regardless of the time of day such advance is made, and the day on which funds are repaid
shall be included unless repayment is credited prior to the close of business on the Business Day received as provided herein.


 


3.         Rate
Change Date. The Rate will change unless otherwise provided each time and as of the
date that the Prime Rate changes.


 


4.         Payment
Schedule. Except as expressly provided herein to the contrary, all payments on this
Note shall be applied in the following order of priority: (a) the payment or reimbursement of any expenses, costs or obligations
(other than the outstanding principal balance hereof and interest hereon) for which either Debtor shall be obligated or Lender
shall be entitled pursuant to the provisions of this Note or the other Loan Documents, (b) the payment of accrued but unpaid interest
hereon, and (c) the payment of all or any portion of the principal balance hereof then outstanding hereunder, in the direct order
of maturity. If an Event of Default exists under any of the other Loan Documents, then Lender may, at the sole option of Lender,
apply any such payments, at any time and from time to time, to any of the items specified in clauses (a), (b) or (c) above without
regard to the order of priority otherwise specified herein and any application to the outstanding principal balance hereof may
be made in either direct or inverse order of maturity. If any payment of principal or interest on this Note shall become due on
a day other than a Business Day, such payment shall be made on the next succeeding Business Day and such extension of time shall
be included in computing interest in connection with such payment. The outstanding principal of this Note shall be due and payable
on the earliest of (i) the acceleration of fee Indebtedness pursuant to the terms of the Loan Documents; or (ii) DECEMBER 13,
2015 (the earliest of such dates being the “Maturity Date”). Accrued and unpaid interest on the outstanding
principal balance of this Note shall be due and payable monthly commencing on JANUARY 13, 2014, and continuing on the same
day of each calendar month thereafter and on the Maturity Date. Debtor may borrow, repay and reborrow hereunder at any time, up
to a maximum aggregate amount outstanding at any one time equal to the principal amount of this Note, provided that Debtor is not
in default under any provision of this Note, any other documents executed in connection with this Note, or any other Loan Documents
now or hereafter executed in connection with any other obligation of Debtor to Lender, and provided that the borrowings hereunder
do not exceed the Borrowing Base or other limitation on borrowings by Debtor. Lender shall incur no liability for its refusal to
advance funds based upon its determination that any conditions of such further advances have not been met. Lender’s records
of the amounts borrowed from time to time shall be conclusive proof thereof. Lender and Debtor expressly agree that Chapter 346
of the Act shall not apply to this Note or to any advances under this Note and that neither this Note or any such advances shall
be governed by or subject to the provisions of such Chapter in any manner whatsoever.


 


5.         Delinquency
Charge. In the event any installment owing under this Note, or any part thereof, remains
unpaid for TEN (10) or more days past the due date thereof as provided above, Debtor shall pay to Lender, in addition to
any other amounts to which Lender may be entitled hereunder, a reasonable late payment fee equal to FIVE PERCENT (5.00%)
of the amount of said installment, which amount is stipulated by Debtor to be reasonable in order to compensate Lender for its
additional costs incurred as a result of having to attend to such delinquency. This late charge should be paid only once as to
such amount as is due and owing, but promptly, as to each respective late payment. It is further agreed that the imposition of any
such late payment fee shall in no way prejudice or limit Lender’s rights or remedies against Debtor under this Note or any
of the other Loan Documents. In the event any check or other payment item used to make a payment to Lender is dishonored for any
reason, Debtor shall pay to Lender, in addition to any other amounts to which Lender may be entitled hereunder, a reasonable processing
fee of THIRTY AND NO/100 DOLLARS ($30.00) (or the maximum amount provided from time to time in Section 3.506(b) of the Texas
Business and Commerce Code). This processing fee should be paid once with respect to each dishonor of a check or other payment
item. It is farther agreed that the imposition of any such processing fee shall in no way prejudice or limit Lender’s rights
or remedies against Debtor under this Note or any of the other Loan Documents.


 




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6.         Waivers,
Consents and Covenants. Debtor, any indorser or guarantor hereof, or any
other party hereto (individually an “Obligor” and collectively
“Obligors”) and each of them jointly and severally: (a) waives presentment, demand, protest, notice
of demand, notice of intent to accelerate, notice of acceleration of maturity, notice of protest, notice of nonpayment,
notice of dishonor, and any other notice required to be given under the law to any Obligor in connection with the delivery,
acceptance, performance, default or enforcement of this Note, any indorsement or guaranty of this Note, or any other
documents executed in connection with this Note or any other Loan Documents now or hereafter executed in connection with any
obligation of Debtor to Lender; (b) consents to all delays, extensions, renewals or other modifications of this Note or the
Loan Documents, or waivers of any term hereof or of the Loan Documents, or release or discharge by Lender of any Obligors, or
release, substitution or exchange of any security for the payment hereof, or the failure to act on the part of Lender, or any
indulgence shown by Lender (without notice to or further assent from any Obligors); (c) agrees that no such action, failure
to act or failure to exercise any right or remedy by Lender shall in any way affect or impair the obligations of any Obligors
or be construed as a waiver by Lender of, or otherwise affect, any of Lender’s rights under this Note, under any
indorsement or guaranty of this Note or under any of the Loan Documents; and (d) agrees to pay, on demand, all costs and
expenses of collection or defense of this Note or of any indorsement or guaranty hereof and/or the enforcement or defense of
Lender’s rights with respect to, or the administration, supervision, preservation, or protection of, or realization
upon, any property securing payment hereof, including, without limitation reasonable attorney’s fees, including fees
related to any suit, mediation or arbitration proceeding, out of court payment agreement, trial, appeal, bankruptcy
proceedings or other proceeding, in such amount as may be determined reasonable by any arbitrator or court, whichever is
applicable.


 


7.         Prepayments.
Prepayments may be made in whole or in part at any time without premium or penalty.


 


8.         Remedies
Upon Default. Whenever there is an Event of Default under the Loan Documents the
entire balance outstanding hereunder and all other obligations of any Obligor to Lender (however acquired or evidenced)
shall, at the option of Lender, become immediately due and payable and any obligation of Lender to permit further borrowing
under this Note shall immediately cease and terminate. From and after (a) an Event of Default, or (b) the Maturity Date
(whether by acceleration or otherwise), the Rate on the unpaid principal balance of this Note shall be increased at
Lender’s discretion up to the lesser of (i) EIGHTEEN PERCENT (18.00%), or
(ii) the MAXIMUM RATE (the “Maturity Rate”). The provisions herein for a
Maturity Rate (a) shall not be deemed to extend the time for any payment hereunder or to constitute a “grace
period” giving Obligors a right to cure any default, and (b) shall be deemed the contract rate of interest applicable
to the outstanding principal balance of the Note from and after the occurrence of one of the events set forth in this
Section. Lender’s option, any accrued and unpaid interest, fees or charges may, for purposes of computing and accruing
interest on a daily basis after the due date of this Note or any installment thereof, be deemed to be a part of the principal
balance, and interest shall accrue on a daily compounded basis after such date at the Maturity Rate provided in this Note
until the entire outstanding balance of principal and interest is paid in full. Upon an Event of Default, Lender is hereby
authorized at any time, at its option and without notice or demand, to set off and charge against any deposit accounts of any
Obligor (as well as any money, instruments, securities, documents, chattel paper, credits, claims, demands, income and any
other property, rights and interests of any Obligor), which at any time shall come into the possession or custody or under
the control of Lender or any of its agents, affiliates or correspondents, any and all obligations due hereunder.
Additionally, Lender shall have all rights and remedies available under each of the Loan Documents, as well as all rights and
remedies available at law or in equity.


 


9.         Waiver.
The failure at any time of Lender to exercise any of its options or any other rights hereunder shall not constitute a waiver thereof,
nor shall it be a bar to the exercise of any of its options or rights at a later date. All rights and remedies of Lender shall
be cumulative and may be pursued singly, successively or together, at the option of Lender. The acceptance by Lender of any partial
payment shall not constitute a waiver of any default or of any of Lender’s rights under this Note. No waiver of any of its
rights hereunder, and no modification or amendment of this Note, shall be deemed to be made by Lender unless the same shall be
in writing, duly signed on behalf of Lender, each such waiver shall apply only with respect to the specific instance involved,
and shall in no way impair the rights of Lender or the obligations of Obligors to Lender in any other respect at any other time.


 




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PLAINSCAPITAL BANK – JBGL CAPITAL, LP



    	 



    

 


10.         Applicable
Law, Venue and Jurisdiction. Debtor agrees that this Note shall be deemed to have
been made in the State of Texas at Lender’s address indicated at the beginning of this Note and shall be governed by, and
construed in accordance with, the laws of the State of Texas and is performable in the City and County of Texas indicated at the
beginning of this Note. In any litigation in connection with or to enforce this Note or any indorsement or guaranty of this Note
or any Loan Documents, Obligors, and each of them, irrevocably consent to and confer personal jurisdiction on the courts of the
State of Texas or the United States courts located within the State of Texas. Nothing contained herein shall, however, prevent
Lender from bringing any action or exercising any rights within any other state or jurisdiction or from obtaining personal jurisdiction
by any other available under applicable law.


 


11.         Partial
Invalidity. The unenforceability or invalidity of any provision of this Note shall
not affect the enforceability or validity of any other provision herein and the invalidity or unenforceability of any provision
of this Note or of the Loan Documents to any person or circumstance shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.


 


12.         Binding
Effect. This Note shall be binding upon and inure to the benefit of Obligors and Lender
and their respective successors, assigns, heirs and personal representatives, provided, however, that no obligations of Obligors
hereunder can be assigned without prior written consent of Lender.


 


13.         Controlling
Document. To the extent that this Note conflicts with or is in any way incompatible
with any other document related specifically to the loan evidenced by this Note, this Note shall control over any other such document,
and if this Note does not address an issue, then each other such document shall control to the extent that it deals most specifically
with an issue.


 


14.         Commercial
Purpose. DEBTOR REPRESENTS TO LENDER THAT THE PROCEEDS OF THIS LOAN ARE TO BE USED
PRIMARILY FOR BUSINESS, COMMERCIAL OR AGRICULTURAL PURPOSES AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES DEBTOR ACKNOWLEDGES
HAVING READ AND UNDERSTOOD, AND AGREES TO BE BOUND BY, ALL TERMS AND CONDITIONS OF THIS NOTE.


 


15.         Collection.
If this Note is placed in the hands of an attorney for collection, or if it is collected through any legal proceeding at law or
in equity or in bankruptcy, receivership or other court proceedings, Debtor agrees to pay all costs of collection, including, but
not limited to, court costs and reasonable attorneys’ fees.


 


16.         Notice
of Balloon Payment. At maturity (whether by acceleration or otherwise), Debtor must
repay the entire principal balance of this Note and unpaid interest then due. Lender is under no obligation to refinance the outstanding
principal balance of this Note (if any) at that time. Debtor will, therefore, be required to make payment out of other assets Debtor
may own; or Debtor will have to find a lender willing to lend Debtor the money at prevailing market rates, which may be higher
than the interest rate on the outstanding principal balance of this Note. If Obligors have guaranteed payment of this Note, Obligors
may be required to perform under such guaranty.


 


17.         Waiver
of Jury Trial. DEBTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING,
OR COUNTERCLAIM THAT RELATES TO OR ARISES OUT OF THIS NOTE OR ANY OF THE LOAN DOCUMENTS OR THE ACTS OR FAILURE TO ACT OF OR BY
LENDER IN THE ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF THIS NOTE OR THE OTHER LOAN DOCUMENTS. 


 


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    	PROMISSORY NOTE – PAGE 4
PLAINSCAPITAL BANK – JBGL CAPITAL, LP



    	 



    

 


EXECUTED as of the Effective Date.


 


	DEBTOR:	 	 	ADDRESS:
	 	 	 	 
	JBGL CAPITAL, LP	 	3131 Harvard Ave. Suite 103 
	 	 	 	Dallas, TX 75205
	By:	/s/ James R. Brickman	 	 
	Name:	James R. Brickman	 	 
	Title:	Sub-Advisor, sub-advisor to

Greenlight Capital, Inc., a Delaware 

corporation, Advisor to Greenlight 

Capital, LLC, a Delaware limited 

liability company, its General 

Partner	 	 


 





 




    	PROMISSORY NOTE – PAGE 5
PLAINSCAPITAL BANK – JBGL CAPITAL, LP