EXHIBIT 10.53
April 13, 2006
Xxxxx Diversified, Inc.
X.X. Xxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Re: Madera Project - Amended and Restated Term Loan Agreement
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Ladies and Gentlemen:
Reference is made to (a) that certain Amended and Restated
Term Loan Agreement, dated as of April 13, 2006 (as amended, supplemented,
amended and restated or otherwise modified from time to time, the "LDI LOAN
AGREEMENT"), between Pacific Ethanol Madera LLC, a Delaware limited liability
company ("MADERA"), and Xxxxx Diversified, Inc., a California corporation
("LENDER") and (b) that certain Intercreditor and Collateral Sharing Agreement,
dated as of April 13, 2006 (the "INTERCREDITOR AGREEMENT"), by and among
Lender and Xxxxxx United Capital, a Division of TD Banknorth, N.A., a national
banking association, as the agent pursuant to the Construction and Term Loan
Agreement, dated as of April 10, 2006 (the "HUC LOAN AGREEMENT"), by and
among Madera, HUC and the lenders from time to time party thereto. Unless
otherwise defined herein, capitalized terms used in this letter agreement have
the meanings provided to such terms in the LDI Loan Agreement.
As contemplated by and more particularly provided for in the
Intercreditor Agreement, Lender has agreed to completely subordinate its lien in
the Collateral and its rights under the LDI Loan Agreement to the rights of the
Senior Lenders (as defined in the Intercreditor Agreement) under the HUC Loan
Agreement.
In consideration for Lender's subordination of its lien and
the waiver of its rights under the LDI Loan Agreement pursuant to the terms of
the Intercreditor Agreement, the undersigned agrees that, in the event that
Madera is prevented from making any principal payment due to Lender by the
operation of the terms of the Intercreditor Agreement, the undersigned shall
repay to Lender all principal then due under the Term Loan (the "REPAYMENT
OBLIGATION"). In the event the undersigned fails to pay the Repayment Obligation
to Lender within 3 Business Days of the date such Repayment Obligation arises,
then, from and after such date, the outstanding amount of such Repayment
Obligation shall accrue interest at a per annum rate equal to the Default Rate
PLUS 5% per annum until such time as the Repayment Obligation is paid in full.
Lender further acknowledges and agrees that Madera shall not be responsible for
the payment of the Repayment Obligation or any interest thereon.
This letter agreement shall be governed by, and shall be
construed and enforced in accordance with, the internal laws of the State of
California, without regard to conflicts of laws principles. Any disputes or
controversies arising under this letter agreement shall be resolved in
accordance with and subject to the dispute resolution provisions set forth in
the LDI Loan Agreement.
1
This letter agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof. In case
any one or more of the provisions contained in this letter agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the parties hereto shall enter into good faith
negotiations to replace the invalid, illegal or unenforceable provision with a
view to obtaining the same commercial effect as this letter agreement would have
had if such provision had been legal, valid and enforceable. No amendment or
waiver of any provision of this letter agreement shall be effective unless such
amendment or waiver is in writing and signed by each of the parties hereto. This
letter agreement shall be binding upon and shall inure to the benefit of each of
the parties hereto, Madera and their respective successors or assigns.
This letter agreement may be executed in counterparts, each of
which shall constitute an original but all of which when taken together shall
constitute one contract. Delivery by facsimile by any of the parties hereto of
an executed counterpart of this letter agreement shall be as effective as an
original executed counterpart hereof.
(SIGNATURE PAGE FOLLOWS)
2
We appreciate your assistance in this very important
transaction.
Very truly yours,
PACIFIC ETHANOL CALIFORNIA, INC.
By: /S/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: Chief Operating Officer and Secretary
Accepted and agreed to as of
April 13, 2006 by:
XXXXX DIVERSIFIED, INC.
By: /S/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President/CFO
Acknowledged as of
April 13, 2006 by:
PACIFIC ETHANOL MADERA LLC
By: /S/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: President
