EXHIBIT 10.4
CONSTRUCTION/TERM LOAN
NOTE
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$24,650,000.00
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May 9, 2008
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For value
received, the undersigned, BLACKHAWK BIOFUELS, LLC ,
a Delaware limited liability company (the “Borrower”),
promises to pay to the order of FIFTH THIRD BANK , a
Michigan banking corporation, (the “Lender”) in lawful
money of the United States of America, the principal sum of
Twenty-Four Million Six Hundred Fifty Thousand and 00/100 Dollars
($24,650,000.00) or such lesser amount as may be disbursed
hereunder, together with interest on each disbursement of the
aforesaid principal sum, from the date of such disbursement, at the
rate provided for herein.
This
Construction/Term Loan Note (the “Note”) is the
Construction/Term Loan Note referred to in, and is issued pursuant
to, that certain Loan Agreement between Borrower and Lender dated
of even date herewith (as amended or otherwise modified from time
to time, the “Loan Agreement”), and is entitled to all
of the benefits and security of the Loan Agreement. All of
the terms, covenants and conditions of the Loan Agreement and all
other instruments evidencing or securing the indebtedness hereunder
are hereby made a part of this Note and are deemed incorporated
herein in full. All capitalized terms used herein, unless
otherwise specifically defined in this Note, shall have the
meanings ascribed to them in the Loan Agreement.
Interest hereunder shall (i) accrue on the
principal amount outstanding at the end of each day at a
variable rate per annum as set forth in Section 3.1 of the
Loan Agreement and (ii) be computed on the basis of actual
days elapsed over the period of a 360-day year.
Upon or after the occurrence and during the
continuation of any Event of Default hereunder, under the terms of
the Leasehold Mortgage (as hereinafter defined), or under the Loan
Agreement, the outstanding principal balance of this Note shall
bear interest at a variable rate per annum equal to the Default
Rate.
The principal
amount and accrued interest of this Note shall be due and payable
on the dates and in the manner set forth in the Loan
Agreement.
Lender is
authorized to rely on the oral or written loan requests, including
facsimile, telecopy or telegraphic loan requests, which Lender
believes in its good faith judgment to emanate from a properly
authorized representative of Borrower, whether or not that is in
fact the case.
In no contingency
or event whatsoever, whether by reason of advancement of the
proceeds hereof or otherwise, shall the amount paid or agreed to be
paid to Lender for the use, forbearance or detention of money
advanced hereunder exceed the highest lawful rate permissible under
any law which a court of competent jurisdiction may deem applicable
hereto.
This Note is
secured by, among other things, a Mortgage of Leasehold,
Security Agreement, Assignment of Rents and Leases and Fixture
Filing executed and delivered as of the date hereof, encumbering
certain real estate in the County of Vermilion, Illinois
(hereinafter, as amended, restated or rep
