Exhibit 10.1


 





 


Promissory
Note


 


	Date	 	Loan Amount	 	 	Interest Rate after Deferment Period	 	Deferment Period
	April 29, 2020	 	$	5,973,138.00	 	 	1.00% fixed per annum	 	6 months




 


This
Promissory Note (“Note”) sets forth and confirms the terms and conditions of a term loan to Pacific Ethanol, Inc. (whether
one or more than one, “Borrower”) from Bank of America, NA, a national banking association having an address of P.O.
Box 15220, Wilmington, DE 19886-5220 (together with its agents, affiliates, successors and assigns, the “Bank”) for
the Loan Amount and at the Interest Rate stated above (the “Loan”). The Loan is made pursuant to the Paycheck Protection
Program under the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The funding of the Loan is conditioned
upon approval of Borrower’s application for the Loan and Bank’s receiving confirmation from the SBA that Bank may proceed with
the Loan. The date on which the funding of the Loan takes place is referred to as the “Funding Date”. If the Funding
Date is later than the date of this Note, the Deferment Period commences on the Funding Date and ends six months from the Funding
Date. After sixty (60) days from the date the Loan is funded, but not more than ninety (90) days from the date the Loan is funded,
Borrower shall apply to Bank for loan forgiveness. If the SBA confirms full and complete forgiveness of the unpaid balance of
the Loan, and reimburses Bank for the total outstanding balance, principal and interest, Borrower’s obligations under the Loan
will be deemed fully satisfied and paid in full. If the SBA does not confirm forgiveness of the Loan, or only partly confirms
forgiveness of the Loan, or Borrower fails to apply for loan forgiveness, Borrower will be obligated to repay to the Bank the
total outstanding balance remaining due under the Loan, including principal and interest (the “Loan Balance”), and in
such case, Bank will establish the terms for repayment of the Loan Balance in a separate letter to be provided to Borrower, which
letter will set forth the Loan Balance, the amount of each monthly payment, the interest rate (not in excess of a fixed rate of
one per cent (1.00%) per annum), the term of the Loan, and the maturity date of two (2) years from the funding date of the Loan.
No principal or interest payments will be due prior to the end of the Deferment Period. Borrower promises, covenants and agrees
with Bank to repay the Loan in accordance with the terms for repayment as set forth in that letter (the “Repayment Letter”).
Payments greater than the monthly payment or additional payments may be made at any time without a prepayment penalty but shall
not relieve Borrower of its obligations to pay the next succeeding monthly payment.


 


In
consideration of the Loan received by Borrower from Bank, Borrower agrees as follows:


 


		1.	DEPOSIT
ACCOUNT/USE OF LOAN PROCEEDS: Borrower is required to maintain a deposit account with Bank of America, N.A. (the “Deposit
Account”) until the Loan is either forgiven in full or the Loan is fully paid by Borrower. Borrower acknowledges and agrees
that the proceeds of the Loan shall be deposited by Bank into the Deposit Account. The Loan proceeds are to not be used by Borrower
for any illegal purpose and Borrower represents to the Bank that it will derive material benefit, directly and indirectly, from
the making of the Loan.



 


		2.	DIRECT
DEBIT. If the Loan is not forgiven and a Loan Balance remains, Borrower agrees that on the due date of any amount due as set forth
in the Repayment Letter, Bank will debit the amount due from the Deposit Account established by Borrower in connection with this
Loan. Should there be insufficient funds in the Deposit Account to pay all such sums when due, the full amount of such deficiency
be shall be immediately due and payable by Borrower.



 


		3.	INTEREST
RATE: Bank shall charge interest on the unpaid principal balance of the Loan at the interest rate set forth above under “Interest
Rate” from the date the Loan was funded until the Loan is paid in full.



 



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		4.	REPRESENTATIONS,
WARRANTIES AND COVENANTS. (1) Borrower represents and warrants to Bank, and covenants and agrees with Bank, that: (i) Borrower
has read the statements included in the Application, including the Statements Required by Law and Executive Orders, and Borrower
understands them. (ii) Borrower was and remains eligible to receive a loan under the rules in effect at the time Borrower submitted
to Bank its Paycheck Protection Program Application Form (the “Application”) that have been issued by the SBA implementing
the Paycheck Protection Program under Division A. Title I of the CARES Act (the “Paycheck Protection Program Rule”).
(iii) Borrower (a) is an independent contractor, eligible self-employed individual, or sole proprietor or (b) employs no more
than the greater of 500 employees or, if applicable, the size standard in number of employees established by the SBA in 13 C.F.R.
121.201 for Borrower’s industry. (iv) Borrower will comply whenever applicable, with the civil rights and other limitations
in the Application. (v) All proceeds of the Loan will be used only for business-related purposes as specified in the Application
and consistent with the Paycheck Protection Program Rule. (vi) To the extent feasible, Borrower will purchase only American-made
equipment and products. (vii) Borrower is not engaged in any activity that is illegal under federal, state or local law. (viii)
Borrower certifies that any loan received by Borrower under Section 7(b)(2) of the Small Business Act between January 31, 2020
and April 3, 2020 that will remain outstanding after funding of this Loan was for a purpose other than paying payroll costs and
other allowable uses loans under the Paycheck Protection Program Rule. (ix) Borrower was in operation on February 15, 2020 and
had employees for whom Borrower paid salaries and payroll taxes or paid independent contractors (as reported on Form(s) 1099-MISC).
(x) The current economic uncertainty makes the request for the Loan necessary to support the ongoing operations of Borrower. (xi)
All proceeds of the Loan will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments,
and utility payments, as specified under the Paycheck Protection Program Rule and Borrower acknowledges that if the funds are
knowingly used for unauthorized purposes, the federal government may hold Borrower and/or Borrower’s authorized representative
legally liable, such as for charges of fraud. (xii) Borrower has provided Bank true, correct and complete information demonstrating
that Borrower had employees for whom Borrower paid salaries and payroll taxes on or around February 15, 2020. (xiii) Borrower
has provided to Bank all documentation available to Borrower on a reasonable basis verifying the dollar amounts of average monthly
payroll costs for the calendar year 2019, which documentation shall include, as applicable, copies of payroll processor records,
payroll tax filings and/or Form 1099-MISC. (xiv) Borrower will promptly provide to Bank (a) any additional documentation that
Bank requests in order to verify payroll costs and (b) documentation verifying the number of full-time equivalent employees on
payroll as well as the dollar amounts of payroll costs, covered mortgage interest payments, covered rent payments, and covered
utilities for the eight week period following the Loan. (xv) Borrower acknowledges that (a) loan forgiveness will be provided
by the SBA for the sum of documented payroll costs, covered mortgage interest payments, covered rent payments, and covered utilities,
and not more than 25% of the Forgivable Amount may be for non-payroll costs (xvi) During the period beginning on February 15,
2020 and ending on December 31, 2020, Borrower has not and will not receive any other loan under the Paycheck Protection Program.
(xvii) Borrower certifies that the information provided in the Application and the information that Borrower provided in all supporting
documents and forms is true and accurate in all material respects. Borrower acknowledges that knowingly making a false statement
to obtain a guaranteed loan from SBA is punishable under the law, including under 18 USC 1001 and 3571 by imprisonment of not
more than five years and/or a fine of up to $250,000; under 15 USC 645 by imprisonment of not more than two years and/or a fine
of not more than $5,000; and, if submitted to a Federally insured institution, under 18 USC 1014 by imprisonment of not more than
thirty years and/or a fine of not more than $1,000,000. (xviii) Borrower understands, acknowledges and agrees that Bank can share
any tax information received from Borrower or any Owner with SBA’s authorized representatives, including authorized representatives
of the SBA Office of Inspector General, for the purpose of compliance with SBA Loan Program Requirements and all SBA reviews.
(xix) Neither Borrower nor any Owner, is presently suspended, debarred, proposed for debarment, declared ineligible, voluntarily
excluded from participation in this transaction by any Federal department or agency, or presently involved in any bankruptcy.
(xx) Neither Borrower, nor any Owner, nor any business owned or controlled by any of them, ever obtained a direct or guaranteed
loan from SBA or any other Federal agency that is currently delinquent or has defaulted in the last 7 years and caused a loss
to the government. (xxi) Neither Borrower, nor any Owner, is an owner of any other business or has common management with any
other business, except as disclosed to the Bank in connection with the Borrower’s Application. (xxii) Borrower did not receive
an SBA Economic Injury Disaster Loan between January 31, 2020 and April 3, 2020, except as disclosed to the Bank in connection
with the Borrower’s Application. (xxiii) Neither Borrower (if an individual), nor any individual owning 20% or more of the
equity of Borrower (each, an “Owner”), is subject to an indictment, criminal information, arraignment, or other means
by which formal criminal charges are brought in any jurisdiction, or presently incarcerated, on probation or parole. (xxiv) Neither
Borrower (if an individual), nor any Owner, has within the last 5 years been convicted; pleaded guilty; pleaded nob contendere;
been placed on pretrial diversion; or been placed on any form of parole or probation (including probation before judgment) for
any felony. (xxv) The United States is the principal place of residence for all employees of Borrower included in Borrower’s
payroll calculation included in the Application. (xxvi) The Borrower correctly indicated on its Application whether it is a franchise
that is listed in the SBA’s franchise directory. (xxvii) If Borrower is claiming an exemption from all SBA affiliation rules
applicable to Paycheck Protection Program loan eligibility under the religious exemption to the affiliation rules, Borrower has
made a reasonable, good faith determination that it qualifies for such religious exemption under 13 C.F.R. 121.103(b)(10), which
provides that “[t]he relationship of a faith-based organization to another organization is not considered an affiliation
with the other organization...if the relationship is based on a religious teaching or belief or otherwise constitutes a part of
the exercise of religion.” (2) At all times during the term the of the Loan, Borrower represents and warrants to the Bank,
that (i) if Borrower is anything other than a natural person, it is duly formed and existing under the laws of the state or other
jurisdiction where organized; (ii) this Note, and any instrument or agreement required under this Note, are within Borrower’s
powers, have been duly authorized, and do not conflict with any of its organizational papers; (iii) the information included in
the Beneficial Ownership Certification most recently provided to the Bank, if applicable, is true and correct in all respects;
and (iv) in each state in which Borrower does business, it is properly licensed, in good standing, and, where required, in compliance
with fictitious name (e.g. trade name or d/b/a) statutes. IF THE FUNDING DATE IS AFTER THE DATE OF THIS NOTE, BORROWER AGREES
THAT BORROWER SHALL BE DEEMED TO HAVE REPEATED AND REISSUED, IMMEDIATELY PRIOR TO THE FUNDING ON THE FUNDING DATE, THE REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS SET FORTH ABOVE IN THIS PARAGRAPH



 



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		5.	EVENTS
                                         OF DEFAULT: If the Loan is not forgiven and a Loan Balance remains, then from the date
                                         the Repayment Letter is sent to Borrower until the Loan Balance is fully paid, the occurrence
                                         and continuation of any of the following events shall constitute a default hereunder:
                                         (i) insolvency, bankruptcy, dissolution, issuance of an attachment or garnishment against
                                         Borrower; (ii) failure to make any payment when due under the Loan or any or all other
                                         loans made by Bank to Borrower, and such failure continues for ten (10) days after it
                                         first became due; (iii) failure to provide current financial information promptly upon
                                         request by Bank; (iv) the making of any false or materially misleading statement on any
                                         application or any financial statement for the Loan or for any or all other loans made
                                         by Bank to Borrower, (v) Bank in good faith believes the prospect of payment under the
                                         Loan or any or all other loans made by Bank to Borrower is impaired; (vi) Borrower under
                                         or in connection with the Loan or any or all other loans made by Bank to Borrower fails
                                         to timely and properly observe, keep or perform any term, covenant, agreement, or condition
                                         therein; (vii) default shall be made with respect to any other indebtedness for borrowed
                                         money of Borrower, if the default is a failure to pay at maturity or if the effect of
                                         such default is to accelerate the maturity of such indebtedness for borrowed money or
                                         to permit the holder or obligee thereof or other party thereto to cause any such indebtedness
                                         for borrowed money to become due prior to its stated maturity; (viii) the Bank in its
                                         sole discretion determines in good faith that an event has occurred that materially and
                                         adversely affects Borrower; (ix) any change shall occur in the ownership of the Borrower;
                                         (x) permanent cessation of Borrower’s business operations; (xi) Borrower, if an
                                         individual, dies, or becomes disabled, and such disability prevents the Borrower from
                                         continuing to operate its business; (xii) Bank receives notification or is otherwise
                                         made aware that Borrower, or any affiliate of Borrower, is listed as or appears on any
                                         lists of known or suspected terrorists or terrorist organizations provided to Bank by
                                         the U.S. government under the USA Patriot Act of 2001; and (xiii) Borrower fails to maintain
                                         the Deposit Account with the Bank.



 


		6.	REMEDIES:
                                         If the Loan is not forgiven and a Loan Balance remains, then from the date the Repayment
                                         Letter is sent to Borrower, upon the occurrence of a default, all or any portion of the
                                         entire amount owing on the Loan, and any and all other loans made by Bank to Borrower,
                                         shall, at Bank’s option, become immediately due and payable without demand or notice.
                                         Upon a default, Bank may exercise any other right or remedy available to it at law or
                                         in equity. All persons included in the term “Borrower” are jointly and severally
                                         liable for repayment, regardless of to whom any advance of credit was made. Borrower
                                         shall pay any costs Bank may incur including without limitation reasonable attorney’s
                                         fees and court costs should the Loan and/or any and all other loans made by Bank to Borrower
                                         be referred to an attorney for collection to the extent permitted under applicable state
                                         law. EACH PERSON INCLUDED IN THE TERM BORROWER WAIVES ALL SURETYSHIP AND OTHER SIMILAR
                                         DEFENSES TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.



 


		7.	CREDIT
                                         INVESTIGATION: If the Loan is not forgiven and a Loan Balance remains, then from the
                                         date the Repayment Letter is sent to Borrower until the Loan Balance is fully paid, Borrower
                                         authorizes Bank and any of its affiliates at any time to make whatever credit investigation
                                         Bank deems is proper to evaluate Borrower’s credit, financial standing and employment
                                         and Borrower authorizes Bank to exchange Borrower’s credit experience with credit
                                         bureaus and other creditors Bank reasonably believes are doing business with Borrower.
                                         Borrower also agrees to furnish Bank with any financial statements Bank may request at
                                         any time and in such detail as Bank may require.



 


		8.	NOTICES:
                                         Borrower’s request for Loan forgiveness, and the documentation that must accompany
                                         that request, shall be submitted to Bank by transmitting the communication to the electronic
                                         address, website, or other electronic transmission portal provided by Bank to Borrower.
                                         Otherwise, all notices required under this Note shall be personally delivered or sent
                                         by first class mail, postage prepaid, or by overnight courier, to the addresses on the
                                         signature page of this Note, or sent by facsimile to the fax number(s) listed on the
                                         signature page, or to such other addresses as the Bank and the Borrower may specify from
                                         time to time in writing (any such notice a “Written Notice”). Written
                                         Notices shall be effective (i) if mailed, upon the earlier of receipt or five (5) days
                                         after deposit in the U.S. mail, first class, postage prepaid, (ii) if telecopied, when
                                         transmitted, or (iii) if hand-delivered, by courier or otherwise (including telegram,
                                         lettergram or mailgram), when delivered. In lieu of a Written Notice, notices and/or
                                         communications from the Bank to the Borrower may, to the extent permitted by law, be
                                         delivered electronically (i) by transmitting the communication to the electronic address
                                         provided by the Borrower or to such other electronic address as the Borrower may specify
                                         from time to time in writing, or (ii) by posting the communication on a website and sending
                                         the Borrower a notice to the Borrower’s postal address or electronic address telling
                                         the Borrower that the communication has been posted, its location, and providing instructions
                                         on how to view it (any such notice, an “Electronic Notice”). Electronic
                                         Notices shall be effective when presented to the Borrower, or is sent to the Borrower’s
                                         electronic address or is posted to the Bank’s website. To retain a copy for your
                                         records, please download and print or save a copy to your device.



 


		9.	CHOICE
                                         OF LAW; JURISDICTION; VENUE. (1) At all times that Bank is the holder of this Note, except
                                         to the extent that any law of the United States may apply, this Note shall be governed
                                         and interpreted according to the internal laws of the state of Borrower’s principal
                                         place of business (the “Governing Law State”), without regard to any choice
                                         of law, rules or principles to the contrary. However, the charging and calculating of
                                         interest on the obligations under this Note shall be governed by, construed and enforced
                                         in accordance with the laws of the state of North Carolina and applicable federal law.
                                         Nothing in this paragraph shall be construed to limit or otherwise affect any rights
                                         or remedies of Bank under federal law. Borrower and Bank agree and consent to be subject
                                         to the personal jurisdiction of any state or federal court located in the Governing Law
                                         State so that trial shall only be conducted by a court in that state. (2) Notwithstanding
                                         the foregoing, when SBA is the holder, this Note will be interpreted and enforced under
                                         federal law, including SBA regulations. Lender or SBA may use state or local procedures
                                         for filing papers, recording documents, giving notice, foreclosing liens, and other purposes.
                                         By using such procedures, SBA does not waive any federal immunity from state or local
                                         control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert
                                         against SBA any local or state law to deny any obligation, defeat any claim of SBA, or
                                         preempt federal law.



 



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		10.	MISCELLANEOUS.
                                         The Loan may be sold or assigned by Bank without notice to Borrower. Borrower may not
                                         assign the Loan or its rights hereunder to anyone without Bank’s prior written
                                         consent. If any provision of this Note is contrary to applicable law or is found unenforceable,
                                         such provision shall be severed from this Note without invalidating the other provisions
                                         thereof. Bank may delay enforcing any of its rights under this Note without losing them,
                                         and no failure or delay on the part of Bank in exercising any right, power or privilege
                                         hereunder shall operate as a waiver thereof; nor shall any single or partial exercise
                                         of any right, power or privilege hereunder preclude any other or future exercise thereof
                                         or the exercise of any other right, power or privilege. Bank, by its acceptance hereof,
                                         and the making of the Loan and Borrower understand and agree that this Note constitutes
                                         the complete understanding between them. This Note shall be binding upon Borrower, and
                                         its successors and assigns, and inure to the benefit of Bank and its successors and assigns.



 


		11.	BORROWING
AUTHORIZED. The signer for Borrower represents, covenants and warrants to Bank that he or she is certified to borrow for the Borrower
and is signing this Note as the duly authorized sole proprietor, owner, sole shareholder, officer, member, managing member, partner,
trustee, principal, agent or representative of Borrower, and further acknowledges and confirms to Bank that by said signature
he or she has read and understands all of the terms and provisions contained in this Note and agrees and consents to be bound
by them. This Note and any instrument or agreement required herein, are within the Borrower’s powers, have been duly authorized,
and do not conflict with any of its organizational papers. The individuals signing this Agreement on behalf of each Borrower are
authorized to sign such documents on behalf of such entities. For purposes of this Note only, the Bank may rely upon and accept
the authority of only one signer on behalf of the Borrower, and for this Note, this resolution supersedes and replaces any prior
and existing contrary resolution provided by Borrower to Bank.



 


		12.	ELECTRONIC
COMMUNICATIONS AND SIGNATURES. This Note and any document, amendment, approval, consent, information, notice, certificate, request,
statement, disclosure or authorization related to this Note (each a “Communication”), including Communications required
to be in writing, may, if agreed by the Bank, be in the form of an Electronic Record and may be executed using Electronic Signatures,
including, without limitation, facsimile and/or .pdf. The Borrower agrees that any Electronic Signature (including, without limitation,
facsimile or .pdf) on or associated with any Communication shall be valid and binding on the Borrower to the same extent as a
manual, original signature, and that any Communication entered into by Electronic Signature, will constitute the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in accordance with the terms thereof to the same extent
as if a manually executed original signature was delivered to the Bank. Any Communication may be executed in as many counterparts
as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same Communication.
For the avoidance of doubt, the authorization under this paragraph may include, without limitation, use or acceptance by the Bank
of a manually signed paper Communication which has been converted into electronic form (such as scanned into PDF format), or an
electronically signed Communication converted into another format, for transmission, delivery and/or retention. The Bank may,
at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic
Copy”), which shall be deemed created in the ordinary course of the Bank’s business, and destroy the original
paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original
for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything
contained herein to the contrary, the Bank is under no obligation to accept an Electronic Signature in any form or in any format
unless expressly agreed to by the Bank pursuant to procedures approved by it; provided, further, without limiting the foregoing,
(a) to the extent the Bank has agreed to accept such Electronic Signature, the Bank shall be entitled to rely on any such Electronic
Signature without further verification and (b) upon the request of the Bank any Electronic Signature shall be promptly followed
by a manually executed, original counterpart. For purposes hereof, “Electronic Record” and “Electronic
Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time
to time.



 



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		13.	CONVERSION
TO PAPER ORIGINAL. At the Bank’s discretion the authoritative electronic copy of this Note (“Authoritative Copy”)
may be converted to paper and marked as the original by the Bank (the “Paper Original”). Unless and until the Bank
creates a Paper Original, the Authoritative Copy of this Agreement: (1) shall at all times reside in a document management system
designated by the Bank for the storage of authoritative copies of electronic records, and (2) is held in the ordinary course of
business. In the event the Authoritative Copy is converted to a Paper Original, the parties hereto acknowledge and agree that:
(1) the electronic signing of this Agreement also constitutes issuance and delivery of the Paper Original, (2) the electronic
signature(s) associated with this Agreement, when affixed to the Paper Original, constitutes legally valid and binding signatures
on the Paper Original, and (3) the Borrower’s obligations will be evidenced by the Paper Original after such conversion.



 


		14.	BORROWER
ATTESTATION. Borrower attests and certifies to Bank that it has not provided false or misleading information or statements to
the Bank in its application for the Loan, and that the certifications, representations, warranties, and covenants made to the
Bank in this Note and elsewhere relating to the Loan are true, accurate, and correct. Borrower further attests and certifies to
Bank that it is has read, understands, and acknowledges that the Loan is being made under the CARES Act, and any use of the proceeds
of the Loan other than as permitted by the CARES Act, or any false or misleading information or statements provided to the Bank
in its application for the Loan or in this Note may subject the Borrower to criminal and civil liability under applicable state
and federal laws and regulations, including but not limited to, the False Claims Act, 31 U.S.C. Section 3729, et. seq. Borrower
further acknowledges and understands that this Note is not valid and effective until and unless Borrower’s application for
the Loan is approved and Bank’s receiving confirmation from the SBA that Bank may proceed with the Loan.



 


IN
WITNESS WHEREOF, I, the authorized representative of the Borrower, hereto have caused this Promissory Note to be duly executed
as of the date set forth below.


 


	BORROWER:
    Pacific Ethanol, Inc.	 
	 	 
	/s/
    Michael Kramer	 
	Signature of Authorized
    Representative of Borrower 	 
	 	 
	Michael Kramer	 
	Print Name	 
	 	 
	Authorized Representative	 
	Title	 


 


STREET
ADDRESS: 400 Capitol Mall Suite 2060 


 


CITY/STATE/ZIP
CODE: Sacramento, CA, 95814


 




 


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