KINERGY MARKETING LLC Sacramento, California 95814
[Execution]
KINERGY MARKETING LLC
000 Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
| as of April 8, 2011 |
Xxxxx Fargo Capital Finance, LLC,
as Agent for and on behalf of the
Lenders as referred to below
000 X. Xxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Re: Amendment No. 6 to Loan and Security Agreement
Ladies and Gentlemen:
Xxxxx Fargo Capital Finance, LLC, successor by merger to Wachovia Capital Finance Corporation (Western) ("Xxxxx Fargo"), in its capacity as agent ("Agent") for the Lenders from time to time party to the Loan Agreement referred to below, the Lenders and Kinergy Marketing LLC, an Oregon limited liability company ("Borrower"), have entered into certain financing arrangements pursuant to the Loan and Security Agreement, dated as of July 28, 2008, by and among Agent, Lenders and Borrower, as amended by the Letter re: Amendment and Forbearance Agreement, dated February 13, 2009, the Amendment No. 1 to Letter re: Amendment and Forbearance Agreement, dated as of February 26, 2009, the Amendment No. 2 to Letter re: Amendment and Forbearance Agreement, dated as of March 27, 2009, the Letter re: Amendment and Waiver Agreement, dated May 17, 2009, the Letter re: Amendment No. 2 to Loan and Security Agreement, Consent and Waiver, dated November 5, 2009, the Letter re: Amendment No. 3 to Loan and Security Agreement, dated September 22, 2010, the Letter re: Amendment No. 4 to Loan and Security Agreement, dated October 27, 2010, the Letter re: Amendment No. 5 to Loan and Security Agreement, dated December 15, 2010, and this Letter re: Amendment No. 6 to Loan and Security Agreement (this "Amendment No. 6") (as the same may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced the "Loan Agreement"), and the other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the "Financing Agreements"). Xxxxx Fargo is currently both the Agent and the sole Lender under the Loan Agreement and is hereinafter referred to in this Amendment No. 6 in both such capacities, as "Xxxxx Fargo".
Borrower and Pacific Ethanol, Inc., a Delaware corporation, as a Guarantor ("Parent"), have requested that Xxxxx Fargo make certain amendments to the Loan Agreement and other Financing Agreements as set forth herein, which Xxxxx Fargo is willing to do subject to the terms and conditions set forth in this Amendment No. 6.
In consideration of the foregoing, the mutual agreements and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Interpretation. All capitalized terms used in this Amendment No. 6 shall have the meanings assigned thereto in the Loan Agreement and the other Financing Agreements, unless otherwise defined herein.
2. Amendments to Loan Agreement.
(a) Additional Definition. As used herein, the following term shall have the meaning given to it below, and the Loan Agreement and the other Financing Agreements are hereby amended to include, in addition and not in limitation, the following definition:
"Amendment No. 6 to Loan Agreement" shall mean the Letter re: Amendment No. 6 to Loan and Security Agreement, dated April 8, 2011, by and among Borrower, Parent, Agent and the Lenders, as the same now exists or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced.
(b) Maximum Credit. The definition of "Maximum Credit" as set forth in Section 1.76 of the Loan Agreement is hereby amended and restated in its entirety as follows:
"1.76 "Maximum Credit" shall mean (a) from the date of Amendment No. 6 to Loan Agreement through and including May 15, 2011, the amount of $25,000,000, and (b) from and after May 16, 2011, the amount of $20,000,000."
3. Acknowledgment of Obligations, Security Interests and Financing Agreements.
(a) Acknowledgment of Obligations. Borrower and Parent hereby acknowledge, confirm and agree that Borrower is unconditionally indebted to Xxxxx Fargo as of the close of business on April 7, 2011, in respect of the Loans and all other Obligations in the aggregate principal amount of not less than $19,921,818.06 together with interest accrued and accruing thereon, and all fees, costs, expenses and other sums and charges now or hereafter payable by Borrower to Xxxxx Fargo pursuant to the Loan Agreement and the other Financing Agreements, all of which are unconditionally owing by Borrower to Xxxxx Fargo pursuant to the Financing Agreements, in each case without offset, defense or counterclaim of any kind, nature or description whatsoever.
(b) Acknowledgment of Security Interests. Borrower and Parent hereby acknowledge, confirm and agree that Xxxxx Fargo has, and shall continue to have, valid, enforceable and perfected security interests in and liens upon the Collateral heretofore granted by Borrower to Xxxxx Fargo pursuant to the Financing Agreements or otherwise granted to or held by Xxxxx Fargo.
2
(c) Binding Effect of Financing Agreements. Borrower and Parent hereby acknowledge, confirm and agree that: (i) each of the Financing Agreements to which Borrower and Parent (as applicable) are a party has been duly executed and delivered to Xxxxx Fargo by Borrower and Parent (as applicable), and each is in full force and effect as of the date hereof, (ii) the agreements and obligations of Borrower and Parent (as applicable) contained in such Financing Agreements to which they are a party and in this Agreement constitute the legal, valid and binding Obligations of Borrower and Parent (as applicable), enforceable against them in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors' rights generally or by equitable principles relating to enforceability, and Borrower and Parent (as applicable) have no valid defense to the enforcement of such Obligations, and (iii) Xxxxx Fargo is and shall be entitled to the rights, remedies and benefits provided for in the Financing Agreements and pursuant to applicable law, but subject to the terms and conditions of this Agreement.
4. Representations, Warranties and Covenants. Borrower and Parent hereby represent, warrant and covenant to Xxxxx Fargo the following (which shall survive the execution and delivery of this Amendment No. 6), the truth and accuracy of which are continuing conditions of the making of Loans to Borrower:
(a) this Amendment No. 6 and each other agreement or instrument to be executed and/or delivered in connection herewith (collectively, together with this Amendment No. 6, the "Amendment Documents") have been duly authorized, executed and delivered by all necessary action on the part of Borrower and Parent and, if necessary, their respective stockholders and/or members, as the case may be, and the agreements and obligations of Borrower and Parent contained herein and therein constitute the legal, valid and binding obligations of Borrower and Parent, enforceable against them in accordance with their terms, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors' rights and except to the extent that availability of the remedy of specific performance or injunctive relief is subject to the discretion of the court before which any proceeding therefor may be brought;
(b) the execution, delivery and performance of the Amendment Documents (a) are all within Borrower's and Parent's corporate or limited liability company powers (as applicable), (b) are not in contravention of law or the terms of Borrower's or Parent's certificate or articles of organization or formation, operating agreement, by-laws or other organizational documentation, or any indenture, agreement or undertaking to which Borrower or Parent is a party or by which Borrower, Parent or its or their property is bound and (c) shall not result in the creation or imposition of any lien, claim, charge or encumbrance upon any of the Collateral, except in favor of Xxxxx Fargo pursuant to the Loan Agreement and the Financing Agreements as amended hereby;
(c) all of the representations and warranties set forth in the Loan Agreement and the other Financing Agreements, each as amended hereby, are true and correct in all material respects on and as of the date hereof, as if made on the date hereof, except to the extent any such representation or warranty is made as of a specified date, in which case such representation or warranty shall have been true and correct as of such date;
(d) after giving effect to this Amendment No. 6, no Default or Event of Default exists as of the date of this Amendment No. 6; and
(e) no action of, or filing with, or consent of any governmental or public body or authority, including, without limitation, any filing with the U.S. Patent and Trademark Office, and no approval or consent of any other party, is required to authorize, or is otherwise required in connection with, the execution, delivery and performance of this Amendment No. 6.
3
5. Conditions Precedent. This Amendment No. 6 shall not become effective unless all of the following conditions precedent have been satisfied in full, as determined by Xxxxx Fargo:
(a) the receipt by Xxxxx Fargo of an original (or faxed or electronic copy) of this Amendment No. 6, duly authorized, executed and delivered by Borrower and Parent;
(b) the receipt by Xxxxx Fargo of the amendment fee set forth in Section 6 below; and
(c) immediately prior, and immediately after giving affect to the amendments and agreements set forth herein, there shall exist no Default or Event of Default.
6. Amendment Fee. In addition to all other fees, charges, interest and expenses payable by Borrower to Xxxxx Fargo under the Loan Agreement and the other Financing Agreements, Borrower shall pay to Xxxxx Fargo an amendment fee in the amount of $10,000, which fee shall be fully earned as of and payable in advance on the date hereof. The foregoing fee may be charged to any loan account of Borrower maintained by Xxxxx Fargo.
7. Effect of this Amendment No. 6. Except as modified pursuant hereto, no other changes or modifications to the Loan Agreement and the other Financing Agreements are intended or implied and in all other respects the Loan Agreement and the other Financing Agreements are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date hereof. To the extent of any conflict between the terms of this Amendment No. 6 and the Loan Agreement or any of the other Financing Agreements, the terms of this Amendment No. 6 shall control. The Loan Agreement and this Amendment No. 6 shall be read and construed as one agreement.
8. Further Assurances. At Xxxxx Fargo's request, Borrower and Parent shall execute and deliver such additional documents and take such additional actions as Xxxxx Fargo requests to effectuate the provisions and purposes of this Amendment No. 6 and to protect and/or maintain perfection of Xxxxx Fargo's security interests in and liens upon the Collateral.
9. Governing Law. The validity, interpretation and enforcement of this Amendment No. 6 in any dispute arising out of the relationship between the parties hereto, whether in contract, tort, equity or otherwise shall be governed by the internal laws of the State of California (without giving effect to principles of conflicts of law).
10. Binding Effect This Amendment No. 6 shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns
11. Counterparts. This Amendment No. 6 may be executed in any number of counterparts, but all of such counterparts shall together constitute but one and the same agreement. In making proof of this Amendment No. 6, it shall not be necessary to produce or account for more than one counterpart thereof signed by each of the parties hereto. Delivery of an executed counterpart of this Amendment No. 6 by telecopier or other method of electronic communication shall have the same force and effect as delivery of an original executed counterpart of this Amendment No. 6. Any party delivering an executed counterpart of this Amendment No. 6 by telecopier or other method of electronic communication also shall deliver an original executed counterpart of this Amendment No. 6, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment No. 6 as to such party or any other party.
[SIGNATURE PAGE FOLLOWS]
4
IN WITNESS hereof, the parties have executed and delivered this Amendment No. 6 as of the day and year first above written.
|
Very truly yours,
|
|
|
KINERGY MARKETING LLC,
as Borrower
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: CFO
|
|
|
PACIFIC ETHANOL, INC,
as Parent
By: /s/ Xxxxx XxXxxxxx
Name: Xxxxx XxXxxxxx
Title: CFO
|
|
|
AGREED TO:
|
|
|
XXXXX FARGO CAPITAL FINANCE, LLC,
successor by merger to Wachovia Capital Finance
Corporation (Western),
as Agent and sole Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
|
|
[Signature Page to Amendment No. 6 to Loan and Security Agreement]
5
