EXHIBIT 10.44
AMENDMENT NO. 1 TO ETHANOL PURCHASE AND MARKETING AGREEMENT
THIS AMENDMENT NO. 1 TO ETHANOL PURCHASE AND MARKETING AGREEMENT (this
"AMENDMENT") is made and entered into effective as of March 4, 2005 by and among
Kinergy Marketing, LLC, an Oregon limited liability company ("KINERGY"), Phoenix
Bio-Industries, LLC, a California limited liability company ("PBI"), Pacific
Ethanol, Inc., a Delaware corporation ("PEI"), and Western Milling, LLC, a
California limited liability company ("WESTERN").
WHEREAS, Kinergy, PBI, PEI and Western have previously entered into
that certain Ethanol Purchase and Marketing Agreement dated March 4, 2005 (the
"AGREEMENT"); and
WHEREAS, Kinergy, PBI, PEI and Western desire to amend the Agreement to
clarify the manner in which Kinergy will purchase and market ethanol produced by
PBI.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective promises and agreements of the parties set forth herein, the parties
hereto agree as follows:
1. Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Agreement.
2. The first sentence of the "Volume" section of the Agreement is
hereby amended by deleting said sentence in its entirety and inserting in its
place the following new sentence which shall read in its entirety as follows:
"KINERGY will purchase and market the entire production of
ethanol from PBI's Goshen plant, estimated to be approximately
2,000,000 to 2,500,000 gallons per month at start up with
expansion at a later date."
3. The first sentence of the "Price" section of the Agreement is hereby
amended by deleting said sentence in its entirety and inserting in its place the
following new sentence which shall read in its entirety as follows:
"KINERGY shall purchase ethanol from PBI in one of the
following two ways, with the selection of either alternative
to be made by PBI in its sole discretion: (i) at negotiated
prices mutually agreed upon by KINERGY and PBI without regard
to the price at which KINERGY will re-sell ethanol to its
customers, and (ii) at prices equal to the gross sales price
to KINERGY's customer less transportation expenses and a 1.0%
marketing fee, after transportation expenses."
4. Except as modified and amended pursuant to this Amendment, the
Agreement shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date set forth above.
PHOENIX BIO-INDUSTRIES INC. KINERGY MARKETING, LLC
By: /s/ XXXXX XXXXXXX By: /s/ XXXX XXXXXXX
------------------------------------ -----------------------------
Xxxxx Xxxxxxx, EVP Xxxx Xxxxxxx, President
Date: April 1, 2006 Dated: April 1, 2006
WESTERN MILLING LLC PACIFIC ETHANOL, INC.
By: /s/ XXXXX XXXXXXX By: /s/ XXXX XXXXXX
------------------------------------ -----------------------------
Xxxxx Xxxxxxx, EVP Xxxx Xxxxxx, COO
Date: April 1, 2006 Dated: April 1, 2006
-2-
