PROMISSORY NOTE
(Final Payment)
FOR VALUE
RECEIVED, the undersigned, PACIFIC ETHANOL, INC, a Delaware
corporation, with its principal place of business at 400 Capitol
Mall, Suite 2060, Sacramento, California 95814 (“PEI”),
hereby promises to pay to LYLES MECHANICAL CO., a California
corporation, with its principal place of business at 1210 West
Olive Ave., Fresno, California 93728 or its
assigns (“Contractor”) the principal sum of
One Million, Five Hundred Thousand, and 00/100 Dollars
($1,500,000.00), together with interest thereon as hereinafter
provided until this Note is paid in full.
1.
Principal and Interest
Payments. The
principal amount of this Note represents the final payment due to
Contractor under the Construction Agreement for the Stockton
Project dated March 6, 2008, as amended (the "Construction
Agreement"). The principal amount and all accrued interest shall be
paid to Contractor on March 31, 2009. Interest on the unpaid
principal amount hereof shall accrue at a rate per annum equal to
the Prime Rate of interest as reported from time to time in The
Wall Street Journal, plus two percent (2.00%), computed on the
basis of a 360-day year of twelve 30-day months. All payments under
this Note shall be applied first to late fees and costs, if any,
second to interest then due, if any, and then to the remaining
principal balance under this Note.
2.
Payments and Computations.
All payments on account of
indebtedness evidenced by this Note shall be made not later than
5:00 p.m., California time, on the day when due in lawful money of
the United States. Payments are to be made at such place as
Contractor may, from time to time, in writing appoint, and in the
absence of such appointment, then at the principal place of
business of Contractor as set forth above.
3.
Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" under this Note:
(a)
Failure to Pay. Borrower shall fail to pay (i) when due any
principal payment on the date due hereunder, or (ii) any interest
or other payment required under the terms of this Note on the date
due or
(b)
Voluntary Bankruptcy or Insolvency Proceedings. Borrower
shall (i) apply for or consent to the appointment of a receiver,
trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in
writing its inability, to pay its debts generally as they mature,
(iii) make a general assignment for the benefit of its or any of
its creditors, (iv) be dissolved or liquidated, (v) become
insolvent (as such term may be defined or interpreted under any
applicable statute), (vi) commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or consent to any such
relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding
commenced against it, or (vii) take any action for the purpose of
effecting any of the foregoing; or
(c)
Involuntary Bankruptcy or Insolvency Proceedings.
Proceedings for the appointment of a receiver, trustee, liquidator
or custodian of Borrower or of all or a substantial part of the
property thereof, or an involuntary case or other proceedings
seeking liquidation, reorganization or other relief with respect to
Borrower or the debts thereof under any bankruptcy, insolvency or
other similar law now or hereafter in effect shall be commenced and
an order for relief entered or such proceeding shall not be
dismissed or discharged within sixty (60) days of
commencement.
4.
Rights of Contractor upon Default. Upon the occurrence or existence of any Event of
Default and at any time thereafter during
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