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Section 1


  1. CALIFORNIA ENERGY COMMISSION

  2. ENERGY EFFICIENCY AND RENEWABLE GENERATION EMERGING TECHNOLOGIES

  3. AGRICULTURE AND FOOD INDUSTRIES LOAN PROGRAM

  4. LOAN AGREEMENT



  5. LOAN NUMBER:



  6. PRINCIPAL AMOUNT:



  7. PROJECT TERM:



  8. This Loan Agreement (the "Agreement") is entered into as of the Effective Date, between the State Energy Resources Conservation and Development Commission (the "Energy Commission") and ______________, a ________ ("Borrower") located in ___________, California.



  9. STATUTORY AUTHORITY AND LOAN



  10. Pursuant to the purposes authorized by section 25650 of the California Public Resources Code (the "Agricultural Industry Energy Program" or "Program"), the Energy Commission has approved Borrower's loan application dated ______, which is not attached but is expressly incorporated by reference herein. The Energy Commission's approval of Borrower's loan application and the extension of credit under this Agreement are made on reliance of the truth and accuracy of the loan application, budget and other supporting documents provided by Borrower to the Energy Commission, which by executing this Agreement the Borrower represents under penalty of perjury are true and accurate in all respects.



  11. Subject to the terms, covenants, and conditions contained herein, and the Budget attached as Exhibit D hereto (the "Budget") to the extent it modifies Borrower's loan application, the Energy Commission agrees to make a loan to Borrower (the "Loan") in the amount of __________________ Dollars ($_________), evidenced by a Promissory Note (the "Promissory Note") for loan number __________ attached hereto as Exhibit A. In consideration for, and as an inducement to, the extension of credit under this Agreement, the Borrower agrees to provide the following collateral: ___________ [letter of credit] [certificate of deposit] The Loan Agreement, Promissory Note, Work Statement, Budget, as well as the Security Agreement and Assignment of Certificate of Deposit, if applicable, together are referred to as the Loan Documents ("Loan Documents").



  12. PURPOSE



  13. The Borrower agrees to expend all funds disbursed pursuant to this Agreement only for the purposes and in the amounts set forth in the attached Work Statement and Budget (the "Project"). Any other use of funds disbursed hereunder shall require prior written approval by the Energy Commission.



  14. LOAN DISBURSEMENT SCHEDULE



  15. Borrower shall be eligible to receive disbursement of funds by the Energy Commission upon Borrower's execution and delivery of the attached Promissory Note and any appropriate security instruments and required supplemental documents, including invoices as required in this section.



  16. Loan funds shall be disbursed on a reimbursement basis upon the Energy Commission's receipt of invoices submitted by Borrower. Borrower may invoice the Energy Commission for expenses after Borrower has received an invoice from a vendor or supplier for equipment or purchases that will be paid with Loan funds. Energy Commission staff will approve invoices only after verifying requested amounts against backup invoices to Borrower from vendors/suppliers and determining that expenses are appropriate and used for the authorized purposes for this Loan. A purchase order issued by Borrower to a vendor/supplier is not appropriate documentation for disbursement of Loan Funds. All expenditures must be incurred during the approved Project Term in order to be eligible for reimbursement. Expenditures incurred prior to the approved Project Term of this Agreement will not be reimbursed.



  17. All invoices must be submitted within sixty (60) days after Project completion.



  18. LOAN REPAYMENT AND INTEREST



  19. All Loan funds disbursed hereunder, together with all interest payable thereon, shall be repaid to the Energy Commission in accordance with the terms of the Promissory Note. The Loan shall bear simple interest at the annual rate set forth in the attached Promissory Note on the principal balance of Loan funds disbursed to the Borrower. Payment of said interest shall be due at the time of the annual scheduled Loan repayment installment to the Energy Commission, and interest shall accrue from the time of disbursement of Loan funds to the Borrower until receipt of full Loan repayment to the Energy Commission.



  20. EFFECTIVE DATE OF AGREEMENT



  21. This Agreement shall become effective on the date it is approved and executed by the Energy Commission in Sacramento, California (the "Effective Date").



  22. The Borrower agrees to complete performance of its obligations under the Loan Documents within the time periods required by the Loan Documents and any fully executed amendments to the Loan Documents, if applicable.



  23. PREPAYMENT



  24. Borrower shall have the right to prepay all or any part of the outstanding balance of this Loan at any time without penalty. Any partial prepayment will not excuse any later scheduled payments until the Loan is paid in full. Prepayments shall be applied first to the payment of any outstanding late fees, then to interest and then to principal installments.



  25. PROMISSORY NOTE



  26. In order to evidence its debt to the Energy Commission hereunder, the Borrower agrees to, contemporaneously with the execution of this Agreement, execute and deliver to the Energy Commission the Promissory Note (attached as Exhibit A hereto).



  27. ACCOUNTS



  28. The Borrower agrees to establish on its books a separate account for this Loan. This account shall be maintained, and is subject to review and audit by the Energy Commission, as long as the Loan obligation remains unsatisfied.



  29. The Borrower further agrees to maintain records that accurately and fully show the date, amount, purpose, and payee of all expenditures drawn on said account for three (3) years after the date the Energy Commission determines this Loan is repaid in full.



  30. The Borrower further agrees to allow the Energy Commission or any other agency of the State of California (the "State") or the federal government, or their designated representatives, on written request, to have reasonable access to, and the right of inspection of, all books and records that pertain to the Loan account or the Project. The Borrower also agrees to submit to an independent audit, if requested by the Energy Commission, at the expense of the Borrower. Borrower agrees to maintain all such records for no less than three years after the date the Energy Commission determines this Loan is repaid in full, unless the Energy Commission notifies the Borrower prior to the expiration of such three-year period, that a longer period of record retention is necessary.



  31. OPERATION OF PROJECT



  32. The Borrower shall obtain and maintain in its records any and all permits and licenses required to install or operate the Project and shall comply with all local, state, and federal laws, rules and codes concerning the Project. The Borrower shall maintain the Project in good working order for the duration of the Loan and shall ensure that staff members are provided appropriate training on the operation and maintenance of the Project. The Borrower shall maintain insurance on the Project and, in the event of any casualty loss covered by such insurance policy, apply the proceeds to the repair of the Project or, with the written approval of the Energy Commission, may use the insurance proceeds to install alternate projects.





  33. The Borrower agrees to provide the Energy Commission with information necessary for administration of the Program for one year following completion of the Project. The necessary information includes, at a minimum, the following: (1) the annual computation of energy and other cost savings for the most recent fiscal year, calculated in the manner prescribed by the Energy Commission; and (2) any information or change in assumptions or operations which might affect the Energy Commission's initial determination of energy or other savings.



  34. The Borrower authorizes any official or agent of the Energy Commission or the State to conduct physical inspections of the Project before the commencement of the Project, and at any time prior to the final repayment of the Loan. In each contract entered into with suppliers of goods and services to install, conduct, or operate the Project, including management services, the Borrower shall include terms which allow any officer or agent of the Energy Commission or the State access to the Project site and to any books, documents, or records related to the Project.



  35. If, prior to final repayment of the Loan, the Borrower sells the equipment or material acquired and/or installed with the proceeds of the Loan, or transfers or sells the building, facility or system in which the Project has been implemented, then the Borrower shall apply the proceeds of any transfer or sale to repayment in full of any remaining unpaid principal balance, along with accrued interest and late fees, due under this Agreement at the time of repayment. The Borrower shall notify the Energy Commission within five business days of the date on which the Borrower enters into an agreement for such transfer or sale. The Borrower shall tender full payment to the Energy Commission within 30 calendar days of the date any such transfer or sale becomes final.



  36. The Energy Commission may request that Borrower host an open house at a host site to demonstrate the benefits of the technology funded by the Loan to target an audience interested in learning about energy efficiency advances in the industrial sector.



  37. DEFAULT



  38. The Borrower's failure to comply with any of the terms of the Loan Documents shall constitute a breach of this Agreement and an Event of Default. In the event of any default, the Energy Commission may, in its discretion, declare this Agreement to have been breached and be released from any further performance hereunder. Events of default are detailed in the Promissory Note and are incorporated herein by reference.



  39. B. In the event of any default or breach of this Agreement by the Borrower, the Energy Commission, without limiting any of its other legal rights or remedies, may accelerate the Loan and declare any remaining unpaid principal balance, along with accrued interest and late fees, immediately due and payable, as provided in the Promissory Note evidencing this Loan.



  40. REPORTING



  41. A final report is due no later than 60 days after Project completion. The final report is used to inform the Energy Commission that the Project has been fully installed and the equipment is or will be operational at the start of the production season.



  42. Progress reports are due semi-annually until Project completion. Reports are due January 31st (for the July 1 December 31 period) and July 31st for the January 1 June 30 period).



  43. If requested by the Energy Commission, Borrower shall submit, within ten (10) days after the Energy Commission's written request, a status report on its activities to date, pursuant to this Agreement.



  44. Reports shall be in a format as determined by the Energy Commission.



  45. 12. LETTER OF CREDIT



  46. If Borrower has provided a letter of credit ("Letter of Credit"), this paragraph applies. In consideration for, and as an inducement to, the extension of credit under this Agreement, the Borrower agrees to provide to the Energy Commission a Letter of Credit. Borrower shall provide to the Energy Commission an irrevocable, unconditional, non-transferable standby Letter of Credit in the amount of $_______from ________ [bank], a nationally or state chartered, FDIC-insured financial institution. This Letter of Credit shall be provided in a form and on terms designated and/or approved by the Energy Commission. Pursuant to California Commercial Code section 5102(a)(3), the Energy Commission shall be named as beneficiary of the Letter of Credit. The Letter of Credit required by this paragraph is a condition precedent to making the Loan, and is relied upon by the Energy Commission in extending credit to the Borrower. The Letter of Credit requirement shall be in force on a continuing basis throughout the term of the Loan until the Loan is repaid in full.



  47. CERTIFICATE OF DEPOSIT



  48. If Borrower has provided a certificate of deposit ("Certificate of Deposit"), this paragraph applies. In consideration for, and as an inducement to, the extension of credit under this Agreement, the Borrower agrees to assign to the Energy Commission all of its right, title and interest in a Certificate of Deposit. Borrower shall assign to the Energy Commission all of its right, title and interest in a Certificate of Deposit in the amount of $_____, including any earned interest, from ___ [bank], a nationally or state chartered, FDIC-insured financial institution. Borrower has executed a Security Agreement and Assignment of Certificate of Deposit, which evidences the Energy Commission's security interest in Borrower's Certificate of Deposit as collateral for the Loan. The Certificate of Deposit required by this paragraph is a condition precedent to making the Loan, and is relied upon by the Energy Commission in extending credit to the Borrower. The Certificate of Deposit requirement shall be in force on a continuing basis throughout the term of the Loan until the Loan is repaid in full.



  49. 14. PUBLIC WORK AND PAYMENT OF PREVAILING WAGE



  50. For purposes of this Agreement, the Project is identified as a "public work" as defined in Chapter 1 of Part 7 of Division 2 of the California Labor Code, commencing with Section 1720, including section 1781 thereof. Projects that are "public works" must ensure that all covered workers are paid prevailing wages pursuant to California Labor Code section 1771.



  51. A. Borrower/General Requirements



  52. 1. Borrower shall comply with state prevailing wage law, Chapter 1 of Part 7 of Division 2 of the Labor Code, commencing with Section 1720; and Title 8, California Code of Regulations, Chapter 8, Subchapter 3, commencing with Section 16000, for all construction, alteration, demolition, installation, repair or maintenance work performed on the Project funded by this Agreement. For purpose of compliance with prevailing wage law, Borrower shall comply with provisions applicable to an awarding body. Compliance with state prevailing wage law includes without limitation: payment of prevailing wage as applicable; overtime and working hour requirements; apprenticeship obligations; payroll recordkeeping requirements; and other obligations as required by law.



  53. 2. Borrower shall certify to the Energy Commission on each invoice, that prevailing wages were paid to eligible workers who provided labor for work covered by the invoice and that the Borrower and all contractors complied with prevailing wage laws.



  54. Flowdown Requirements



  55. Borrower shall ensure that all agreements with contractors for construction, alteration, demolition, installation, repair or maintenance work for the Project contain the following provisions:



  56. 1. Contractor shall comply with state prevailing wage law, Chapter 1 of Part 7 of Division 2 of the Labor Code, commencing with Section 1720; and Title 8, California Code of Regulations, Chapter 8, Subchapter 3, commencing with Section 16000, for all construction, alteration, demolition, installation, repair or maintenance work performed under the contract. Contractor's obligations under prevailing wage laws include without limitation: pay not less than the applicable prevailing wage for public works activities performed on the Project; comply with overtime and working hour requirements; comply with apprenticeship obligations; comply with payroll recordkeeping requirements; and comply with other obligations as required by law.



  57. 2. Contractor shall ensure that the above requirements are included in all subcontracts for construction, alteration, demolition, installation, repair or maintenance work for the Project.



  58. 15. GENERAL TERMS



  59. A. Indemnification by Borrower



  60. The Borrower agrees to indemnify, defend, and save harmless the Energy Commission and the State and their officers, agents, and employees from any and all claims, losses, or costs (including reasonable attorney fees) arising out of, resulting from, or in any way connected with the Loan or this Agreement, or the financing or the operation of the Project financed with the Loan.



  61. B. Ownership of Equipment and Material



  62. All equipment and material acquired under this Agreement shall become the property of the Borrower at time of acquisition or purchase. The Borrower shall obtain and maintain in its records a written waiver of all claims, other than those previously made in writing and still unsettled, from each contractor who supplies goods and services, including management services, in connection with the Project.



  63. C. Independent Capacity



  64. The Borrower, and the agents and employees of Borrower, in the performance of this Agreement, shall and do act in an independent capacity, and they acknowledge and agree that they are not officers or employees or agents of the Energy Commission or the State of California and accordingly they are not authorized to act, and may not act, in such capacity.



  65. D. Assignment



  66. Without the written consent of the Energy Commission, this Agreement is not assignable or transferable by Borrower either in whole or in part. The Energy Commission may assign its rights under this Agreement for security purposes, and in such event the assignee of this Agreement shall be entitled to enforce the provisions hereof and shall be a third party beneficiary of this Agreement.



  67. E. Time of the Essence



  68. Time is of the essence in this Agreement. Borrower is required to take timely actions which, taken collectively, move to completion the purpose for which this Loan was awarded. The Energy Commission Project Manager will periodically evaluate the progress toward completion.



  69. F. Amendment



  70. No amendment or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto.



  71. G. Severability



  72. In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement continue to have force and effect and shall not be affected thereby.



  73. H. Governing Law and Venue



  74. This Agreement is governed by and shall be interpreted in accordance with the laws of the State of California. Venue shall be in Sacramento County. In any contest arising under the Loan Documents, the Energy Commission and the Borrower agree to waive a trial by jury.



  75. I. Non-discrimination



  76. During the performance of this Agreement, Borrower and its contractors and subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee or applicant for employment because of age (40 and over), ancestry, color, religious creed, disability (mental and physical) including HIV and AIDS, marital status, medical condition (cancer and genetic characteristics), national origin, race, sex, sexual orientation, family care leave, nor any other classification protected under state or federal law. Borrower and its contractors and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free from such discrimination and harassment. Borrower and its contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code Section 12990 (a f) et seq.) and the applicable regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code Section 12990 (a f), set forth in Chapter 5 of Division 4 of Title 2 of the California Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as if set forth in full. Borrower and its contractors and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. Borrower and its contractors shall include the nondiscrimination and compliance provisions of this clause in all subcontracts to perform work under this Agreement.



  77. J. Incorporation of Public Resources Code



  78. Public Resources Codes section 25650, together with any applicable rules, regulations or procedures authorized by such statute, is incorporated by reference in this Agreement.



  79. K. Borrower Authorization



  80. The Borrower certifies that it has full power and authority to enter into this Agreement, and this Agreement has been duly authorized, executed and delivered by the Borrower. The Borrower acknowledges that the resolution of its governing body or other official action authorizing it to enter into this Agreement also authorizes such further acts as are necessary, including execution of the Promissory Note as well as Security Agreement and Assignment of Certificate of Deposit, if applicable, to implement and further the intent of this Agreement.



  81. 16. NOTICE



  82. Any notice required to be given to the Energy Commission hereunder shall be sent to the Energy Commission at 1516 Ninth Street, MS-1, Sacramento, California 95814, attention Grants and Loans Office Manager, or at such other address as the Energy Commission may designate in writing to the Borrower. Any notice required to be given to the Borrower hereunder shall be sent to the address shown below the Borrower's execution of this Agreement, or at such other address as the Borrower shall designate in writing to the Energy Commission. Notice to either party may be given using the following delivery methods: U.S. Mail, overnight mail, or personal delivery, providing evidence of receipt, to the respective parties identified in this Agreement. Delivery by fax or e-mail is not considered notice for the purposes of this Agreement. Notice shall be effective when received, unless otherwise stated in the Loan Documents or unless a legal holiday for the State commences on the date of the attempted delivery in which case the effective date shall be postponed 24 hours, or whenever the next business day occurs.



Section 2


  1. IN WITNESS WHEREOF, this Loan Agreement has been executed by the parties hereto.



  2. STATE ENERGY RESOURCES CONSERVATION AND DEVELOPMENT COMMISSION BORROWER (If other than an individual, state whether a corporation, partnership, etc.)

  3. NAME OF BORROWER

  4. John P. Butler II, SSM-I PRINTED NAME OF AUTHORIZED SIGNATURE PRINTED NAME OF AUTHORIZED SIGNATURE

  5. AUTHORIZED SIGNATURE AUTHORIZED SIGNATURE

  6. Manager, Grants and Loans Office TITLE TITLE

  7. DATE DATE

  8. MAILING ADDRESS:









  9. AMOUNT ENCUMBERED FISCAL YEAR FUND LOAN NO. $

  10. APPROPRIATION ORG.



  11. Program LINE ITEM ALLOTMENT

  12. APPROPRIATION AUG LINE ITEM ALLOTMENT

  13. I HEREBY CERTIFY UPON MY OWN PERSONAL KNOWLEDGE THAT BUDGETED FUNDS ARE AVAILABLE FOR THE PERIOD AND PURPOSE OF THE EXPENDITURE STATED ABOVE. SIGNATURE OF ACCOUNTING OFFICER



  14. DATE

Section 3


  1. EXHIBIT A



  2. PROMISSORY NOTE



  3. LOAN NUMBER:



  4. PRINCIPAL AMOUNT:



  5. INTEREST RATE:



  6. For value received, the undersigned, (hereinafter referred to as the "Borrower"), promises to pay to the order of the State Energy Resources Conservation and Development Commission (hereinafter referred to as the "Energy Commission"), at its principal place of business at 1516 Ninth Street, Sacramento, California 95814, or at such other place as the Energy Commission may designate, the principal sum of _________________________ Dollars ($_________) or such lesser amount as shall equal the aggregate amount disbursed to the Borrower by the Energy Commission pursuant to the Loan Documents between the Borrower and the Energy Commission, together with interest thereon at the rate of ___ percent per annum on the unpaid principal balance, computed from the date of each disbursement to the Borrower, until the Loan is repaid by the Borrower. Principal, together with interest thereon, is due and payable in annual installments as specified in the Estimated Amortization Schedule, attached hereto as Exhibit B, and as amended in the Final Amortization Schedule, beginning on [June 22nd OR December 22nd] of the fiscal year following the year in which the Project is completed and continuing thereafter on each [June 22nd OR December 22nd] until said principal and interest shall be paid in full. The Final Amortization Schedule, and any amended Final Amortization Schedule(s) are not attached but are expressly incorporated by reference herein.



  7. Payment of any scheduled installment received within thirty (30) days after its due date shall be considered to have been received on its due date and shall be first applied to accrued interest from the date of disbursement to the Borrower and the balance, if any, to principal. Payment of any scheduled installment received more than thirty (30) days after its due date but before the next billing shall be considered late, and interest on the unpaid principal shall accrue from date of disbursement to the Borrower through the actual payment date. However, payment of any scheduled installment received after a subsequent billing shall be considered overdue, and interest shall accrue on the unpaid principal from date of disbursement to the Borrower through the subsequent billing due date or actual payment date, whichever is later.



  8. The Borrower may prepay this Promissory Note in full or in part, without penalty. Any partial prepayment will not excuse any later scheduled payments until the Loan is paid in full. Prepayments shall be applied first to the payment of any outstanding late fees, then to interest and then to principal installments.



  9. If any installment is not paid within thirty (30) days after its due date, the Energy Commission, at its option, may require the Borrower to pay a late charge equal to five percent (5%) of the amount of the installment or five dollars ($5.00), whichever is greater.



  10. On the occurrence of any event of default, as defined in paragraph 6 of this Promissory Note, the Energy Commission, at its sole election, may take any or all of the following actions:



  11. Declare all or any portion of the principal balance, along with accrued interest and late fees, under this Promissory Note to be immediately due and payable and may proceed to enforce this Promissory Note, upon the expiration of not less than thirty (30) days after the date written notice of the Energy Commission's decision to accelerate is sent to Borrower. All amounts due after acceleration shall bear interest at the rate of ten percent (10%) per annum. The Energy Commission may exercise this option to accelerate during any default by Borrower regardless of any prior forbearance.

  12. Request that any Letter of Credit given as a condition of the Loan be honored by the issuing financial institution, upon presentment of a draft by the Energy Commission for payment to the issuing financial institution pursuant to the terms of the Letter of Credit.

  13. Exercise its rights to obtain proceeds of any Certificate of Deposit pledged by Borrower to the Energy Commission as collateral for the Loan under a Security Agreement and Assignment of Certificate of Deposit.

  14. Exercise all rights and remedies accorded to a secured party by the California Commercial Code or other applicable state or federal law.

  15. Require Borrower to take any and all action necessary to make the Letter of Credit or Certificate of Deposit available to the Energy Commission as the Secured Party.

  16. Exercise all of its rights and remedies enumerated herein, which rights are in addition to and not in limitation of any other rights the Energy Commission may have under the Loan Documents and applicable law.



  17. Each of the following events and conditions shall constitute an event of default under this Promissory Note and the Loan Documents:



  18. Failure of the Borrower to repay any principal, accrued interest, and late fees, if applicable, when due under the terms of this Promissory Note.



  19. Failure of the Borrower to comply with, and satisfy, all the terms, conditions, and obligations, required by the Loan Agreement and the Loan Documents as a condition for this Loan.



  20. Termination of the Loan Agreement pursuant to the terms thereof or breach by the Borrower of any terms or conditions of said Loan Agreement or the Loan Documents.



  21. Failure of the Borrower to undertake in a timely manner the express and implied activities for which the Loan Agreement and Loan Documents have been executed, including failure of Borrower to make progress toward completion within two years after the Effective Date of the Loan Agreement.



  22. If Borrower has provided a Letter of Credit, failure of the Borrower to provide a new/renewed Letter of Credit acceptable to the Energy Commission at least 60 days before expiration of an existing Letter of Credit.



  23. If Borrower has provided a Certificate of Deposit, the amount of any Certificate of Deposit pledged as Collateral, including earned interest and any prepayment penalty, becomes insufficient to cover the outstanding unpaid principal balance of the Loan, along with accrued interest and any late fees.



  24. If Borrower has provided a Certificate of Deposit and the issuing bank is holding the Certificate of Deposit, Borrower or anyone cashes, redeems, or attempts to cash or redeem, the Certificate of Deposit without the Energy Commission's written approval and release before the Loan has been paid in full.



  25. If Borrower has provided a Certificate of Deposit with a term less than that required for repayment in full of the Loan, Borrower fails to obtain a new or a renewed Certificate of Deposit acceptable to the Energy Commission at least 60 days before expiration or maturity of an existing Certificate of Deposit.



  26. Borrower transfers or attempts to transfer all or a substantial interest in the Letter of Credit or Certificate of Deposit, as applicable.



  27. Failure of the Borrower to obtain prior written Energy Commission approval before undertaking a change in the scope of the activities for which said Loan Agreement has been executed, and/or using funds disbursed under the Loan Agreement and the Loan Documents for purposes and in amounts not authorized for the Project.



  28. Failure of the Borrower to obtain and maintain insurance, as required by the Loan Agreement.



  29. Occurrence of: (1) the Borrower becoming insolvent or bankrupt or being unable or admitting in writing its inability to pay its debts as they mature or making a general assignment for the benefit of or entering into any composition or arrangement with creditors; (2) proceedings for the appointment of a receiver, trustee, or liquidator of the assets of the Borrower or a substantial part thereof, being authorized or instituted by or against the Borrower; (3) proceedings under any bankruptcy, reorganization, readjustment of debt, insolvency, dissolution, liquidation or other similar law, or any jurisdiction being authorized or instituted against the Borrower; or (4) the Borrower ceases operations, is dissolved, or terminates its existence.

  30. Discovery of any false or misleading statement, warranty, representation, or fact, whether or not contained in the loan application and/or other Loan Documents, that when made or furnished to the Energy Commission by or on behalf of the Borrower was relied upon by the Energy Commission and induced it to extend credit to Borrower.



  31. No delay or failure of the Energy Commission in the exercise of any right or remedy hereunder or under any other agreement which secures or is related hereto shall affect any such right or remedy, and no single or partial exercise of any such right or remedy shall preclude any further exercise thereof, and no action taken or omitted by the Energy Commission shall be deemed a waiver of any such right or remedy.



  32. Any notice required to be given to the Borrower hereunder shall be sent to the address shown on the Loan Agreement, or at such other address as the Borrower shall designate in writing to the Energy Commission. Notice to either party may be given using the following delivery methods: U.S. Mail, overnight mail, or personal delivery, providing evidence of receipt, to the respective parties identified in this Agreement. Delivery by fax or e-mail is not considered notice for the purposes of this Promissory Note.



  33. Borrower agrees to pay all costs and expenses, including reasonable attorney fees, which may be incurred by the Energy Commission in the enforcement and defense of the Loan Documents, including such costs and expenses incurred in any appeal.



  34. This Promissory Note shall be binding upon the Borrower and its permitted successors and assigns and upon the Energy Commission and its permitted successors and assigns. Without the written consent of the Energy Commission, this Promissory Note is not assignable or transferable by Borrower either in whole or in part. The Energy Commission may assign its rights under this Promissory Note for security purposes, and in such event the assignee of this Promissory Note shall be entitled to enforce the provisions hereof and shall be a third party beneficiary of this Promissory Note.



  35. This Promissory Note shall be construed and enforced in accordance with the laws of the State of California.





  36. BORROWER





  37. PRINTED NAME OF AUTHORIZED REPRESENTATIVE





  38. AUTHORIZED SIGNATURE





  39. TITLE





  40. DATE



Section 4


  1. EXHIBIT B



  2. ESTIMATED AMORTIZATION SCHEDULE



Section 5


  1. EXHIBIT C



  2. WORK STATEMENT



Section 6


  1. EXHIBIT D



  2. BUDGET























  3. Ag Loan Agreement and Promissory Note PAGE 1 3/29/07







  4. PAGE 10















  5. Promissory Note A- PAGE 5







  6. Promissory Note A- PAGE 1

















  7. Estimated Amortization Schedule B- PAGE 1



  8. Work Statement C- PAGE 1



  9. Budget D- PAGE 1