EXHIBIT 10.46
PACIFIC ETHANOL MADERA LLC
Senior Construction Loan Note Due October 13, 2007
No. 2
Amount: US$11,900,000 Date: April 13, 2006
FOR VALUE RECEIVED, PACIFIC ETHANOL MADERA LLC, a Delaware
limited liability company ("PAYOR"), hereby unconditionally promises to pay to
the order of COMERICA BANK, a Michigan banking corporation (herein called "NOTE
HOLDER"), or its permitted assigns, the principal sum of ELEVEN MILLION, NINE
HUNDRED THOUSAND Dollars ($11,900,000), or so much thereof as may be advanced
pursuant to the Loan Agreement (as defined below), on the Construction Loan
Maturity Date, or such earlier date as the same may become due and payable
hereunder or under the Loan Agreement, payable as set forth below and in the
Loan Agreement.
All payments under this Construction Loan Note will be payable
without setoff, counterclaim or deduction of any kind in lawful money of the
United States of America and in immediately available funds not later than 1:00
p.m., New York City time, on the date when due to Note Holder.
This Construction Loan Note is one of the Construction Loan
Notes referred to in and issued subject to the Construction and Term Loan
Agreement, dated April __, 2006 (as amended, modified or supplemented from time
to time, the "LOAN AGREEMENT"), among Payor and Note Holder, as a Construction
Lender, and the other parties thereto. Except as otherwise defined herein, each
capitalized term used herein has the meaning set forth for such term in the Loan
Agreement.
On each Construction Loan Funding Date and on each other day
on which Note Holder makes a Construction Loan to Payor in accordance with the
Loan Agreement, Note Holder is hereby authorized to make a notation on Schedule
I hereto as to the date and the amount of each Construction Loan evidenced by
this Construction Loan Note. Failure to make any such notation will not limit or
otherwise affect the obligations of Payor hereunder or under the Loan Agreement.
Xxxxx agrees that this Construction Loan Note, upon each entry being duly made
and absent manifest error, constitutes PRIMA FACIE evidence of the indebtedness
of Payor and is enforceable against Payor with the same force and effect as if
such amounts were set forth in separate Construction Loan Notes executed by
Payor.
This Construction Loan Note is subject to mandatory prepayment
in whole or in part and optional prepayment (in connection with a refinancing of
the Construction Loans by Term Loans) in whole or in part as provided in the
Loan Agreement.
1
Payor will pay interest on the unpaid principal amount hereof
at the applicable interest rate per annum as determined pursuant to Section 2.3
of the Loan Agreement. Interest will be computed on the actual number of days
elapsed over a 360-day year. Interest will be payable (i) in accordance with
Section 2.3 of the Loan Agreement and (ii) concurrently with any prepayment, at
maturity (by acceleration or otherwise) and, after such maturity, on demand.
This Construction Loan Note is hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of acceleration of the
maturity of any indebtedness evidenced hereby or otherwise, will the interest
contracted for or charged or received by Note Holder exceed the maximum amount
permissible under applicable Law. If, under any circumstance whatsoever,
interest would otherwise be payable to Note Holder in excess of the maximum
lawful amount, the interest payable to Note Holder will be reduced to the
maximum amount permitted under applicable Law, and the amount of interest for
any subsequent period to the extent less than that permitted by applicable Law,
will to that extent be increased by the amount of such reduction.
Payor hereby irrevocably authorizes Note Holder to calculate
the amount of each interest payment to be evidenced by this Construction Loan
Note in accordance with the provisions of the Loan Agreement.
Upon the occurrence and during the continuance of an Event of
Default (other than an Event of Default caused solely by Xxxxxxxx's failure to
comply with Section 5.1(p) of the Loan Agreement), Payor will pay, pursuant to
the terms of the Loan Agreement, interest on all amounts outstanding hereunder
(whether or not past due) at a rate per annum equal to 2% plus the Construction
Loan Interest Rate; otherwise the principal hereof and accrued interest hereon
will become, or may be declared to be, forthwith due and payable in the manner,
on the conditions and with the effect provided in the Loan Agreement.
Payor will pay the costs and expenses, including attorneys'
fees, incurred by Note Holder in enforcing any of its rights under the Loan
Agreement, this Construction Loan Note, the Security Documents or any other Loan
Document or in complying with any subpoena or other legal process served upon
Note Holder in connection with the Loan Agreement, the Notes, the Security
Documents or any other Loan Document, or the transactions contemplated thereby,
including without limitation costs and expenses incurred in any bankruptcy case,
in accordance with the provisions of the Loan Agreement.
This Construction Loan Note is secured by the Collateral
described in the Security Documents and any other agreement which by its terms
provides security for this Construction Loan Note. This Construction Loan Note
is the obligation solely of Payor and Note Holder will have access only to the
Collateral for repayment. This Construction Loan Note will be binding upon Payor
and its successors and will inure to the benefit of Note Holder and its
successors and permitted assigns.
2
Payor hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Construction Loan Note except as
specifically provided in the Loan Agreement.
Any provision of this Construction Loan Note which is
prohibited or unenforceable in any jurisdiction will, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and without affecting the validity
or enforceability of such or any other provision in any other jurisdiction.
THIS CONSTRUCTION LOAN NOTE WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW PROVISIONS THEREOF (OTHER THAN SECTION 5.1401 OF THE GENERAL
OBLIGATIONS LAW AND ANY SUCCESSOR STATUTE THERETO). Payor hereby knowingly,
voluntarily and intentionally waives any right it may have to a trial by jury in
any litigation or claim which is based hereon, or arises out of, under, or in
connection with, this Construction Loan Note. Any legal action or proceeding
with respect to this Construction Loan Note may be brought in the courts of the
State of New York or the United States of America sitting in the Borough of
Manhattan, and Payor hereby accepts for itself and in respect of its property,
generally and unconditionally, the exclusive jurisdiction of the aforesaid
courts. Further, Payor hereby irrevocably waives any objection, including
without limitation any objection to the laying of venue or based on the grounds
of forum non conveniens, which it may now or hereafter have to the bringing of
any such action or proceeding in such jurisdictions.
PAYOR:
PACIFIC ETHANOL MADERA LLC
By /S/ XXXX XXXXXX
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Name:
Title:
3
SCHEDULE I
Amount of Unpaid Aggregate Principal Notation
Date Construction Loan Amount of Construction Loans Made by
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