FIRST AMENDMENT TO SETTLEMENT AGREEMENT
EXHIBIT
10.1
FIRST
AMENDMENT TO SETTLEMENT AGREEMENT
This
FIRST AMENDMENT TO SETTLEMENT
AGREEMENT ("Agreement")
dated as of November 16, 2009 ("Effective
Date") is entered into by and between XXXXXXXX-XXXXX, INC.,
a
Minnesota corporation, ("Xxxxxxxx-Xxxxx"), on the one hand, and PACIFIC ETHANOL, INC., a
Delaware
corporation, ("PEI") on the other hand (collectively referred to herein as
"Parties").
I. RECITALS
WHEREAS, the Parties entered
into that certain Settlement Agreement dated as of August 6, 2009
(the "Settlement Agreement").
WHEREAS, the Parties desire to
amend the Settlement Agreement on the terms set forth below.
II. TERMS
FOR AND IN CONSIDERATION of
the foregoing premises and the mutual agreements
hereinafter set forth, the Parties agree as follows:
1. The
second sentence of paragraph 1 of the Settlement Agreement is hereby
amended
to read in its entirety as follows:
"Under
the terns of the consent judgment, judgment shall enter against PEI in the amount of
$1,909,555.76 (the
"Judgment") and Xxxxxxxx-Xxxxx shall not undertake any
efforts to enforce or collect on
the Judgment until April 1, 2010."
2. PET shall remit to
Xxxxxxxx-Xxxxx by wire transfer: (i) $213,821.48 on or before November
20, 2009; and (ii) $150,000.00 on or before December 18, 2009. Each such payment
(which is
related to past interest and attorney's fees per previous agreement of the
parties) shall apply to
and reduce the Judgment; provided that if PEI
fails to make the second payment on or before
December 18, 2009, then
$150,000 of the November 20th
remittance shall not apply to the Judgment.
For the avoidance of doubt, if PEI makes both payments timely, then the Judgment
shall be
reduced to $1,545,734.28. But if PEI makes the first payment timely and
does not make the
second payment, then the amount of the Judgment shall be
$1,845,734.28.
3. The
Settlement Agreement, as amended hereby, shall remain in full force and
effect
and shall bind the heirs, personal representatives, successors, assigns,
executors and administrators
of each party, and inure to the benefit of each party, its heirs, successors and
assigns.
4. This
First Amendment to Settlement Agreement may be executed in one or more
counterparts,
any of which need not contain the signatures of more than one party but all
signed counterparts
taken together will constitute one and the same agreement. A facsimile signature
will be
deemed as valid as an original signature.
IN
WITNESS WHEREOF, the parties have duly authorized and caused this Agreement to
be executed as follows:
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Xxxxxxxx-Xxxxx,
Inc.
By:
/s/ Xxxxx
Xxxx
Its:
President
Date:
November 17,
2009
|
By:
/s/ Xxxx X.
Xxxxxxx
Its:
CEO
Date:
November 16,
2009
|
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