Exhibit 10.2


 





 


Promissory
Note


 


	Date	 	Loan Amount	 	 	Interest Rate after Deferment Period	 	Deferment Period
	May 01, 2020	 	$	3,886,729.20	 	 	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 Pekin, LLC (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 55,000; 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 nolo 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. (I) 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 Pekin, LLC	 
	 	 
	/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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