AMENDMENT NO. 1 TO LETTER RE: AMENDMENT AND FORBEARANCE AGREEMENT
Exhibit
10.1
AMENDMENT
NO. 1
TO
LETTER
RE: AMENDMENT AND FORBEARANCE AGREEMENT
THIS
AMENDMENT NO. 1 TO LETTER RE: AMENDMENT AND FORBEARANCE AGREEMENT (this
“Amendment”), dated as of February 26, 2009, is by and among WACHOVIA CAPITAL
FINANCE CORPORATION (WESTERN), in its capacity as agent and sole lender
(“Wachovia”), KINERGY MARKETING LLC (“Borrower”) and PACIFIC ETHANOL, INC.
(“Parent”).
W
I T N E S S E T H:
WHEREAS,
Wachovia, Borrower and Parent have previously entered into and executed that
certain Letter re: Amendment and Forbearance Agreement, dated February 13, 2009
(the “Forbearance Agreement”);
WHEREAS,
Borrower and Parent have requested that Wachovia extend the Forbearance Period,
which Wachovia is willing to do subject t to the terms and provisions hereof;
and
WHEREAS,
by this Amendment, Wachovia, Borrower and Parent wish to evidence the extension
of the Forbearance Period.
NOW
THEREFORE, in consideration of the mutual benefits accruing to Wachovia,
Borrower and Parent hereunder and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto do
hereby agree as follows:
1. Existing
Definitions. As used above and in this Amendment, all
capitalized terms used herein and not otherwise defined herein shall have their
respective meanings as set forth in the Forbearance Agreement.
2. Extension of Forbearance
Period. At Borrower’s and Parent’s request and in reliance
upon Borrower’s and Parent’s representations, warranties and covenants contained
herein and in the Forbearance Agreement, as a one-time accommodation to Borrower
and Parent, Wachovia hereby agrees to extend the Forbearance Period set forth in
Section 4(a)(i) of the Forbearance Agreement from February 28, 2009 to March 31,
2009.
3. Conditions
Precedent. This
Amendment shall not become effective unless all of the following conditions
precedent have been satisfied in full, as determined by Wachovia:
(a) The
receipt by Wachovia of an original (or faxed or electronic copy) of this
Amendment, duly authorized, executed and delivered by Borrower and
Parent;
(b) The
receipt by Wachovia of an updated thirteen (13) week budget with respect to the
Projected Information, in form and substance satisfactory to
Wachovia;
(c) The
receipt by Wachovia of (i) an amendment, in form and substance satisfactory to
Wachovia, to the existing limited forbearance agreement among, West LB, as
agent, the other lenders party thereto, Parent and certain of its subsidiaries
party thereto, pursuant to which the limited forbearance period contained in
such agreement is extended to March 31, 2009, and (ii) a forbearance agreement,
in form and substance satisfactory to Wachovia, pursuant to which Xxxxx United,
LLC has agreed to forbear from exercising its rights as against Parent and
certain of its subsidiaries pursuant to the terms of the financing arrangements
with Parent and certain of its subsidiaries for such forbearance period and on
such terms and conditions as shall be acceptable to Wachovia; and
(d) As
of the date of this Amendment, other than the Specified Defaults, no Default or
Event of Default shall have occurred and be continuing.
4. Effect of this
Amendment. Except
as modified pursuant hereto, no other changes or modifications to the
Forbearance Agreement are intended or implied, and in all other respects the
Forbearance Agreement is expressly ratified, restated and confirmed by all
parties hereto as of the date hereof, except that, in the event of any conflict
between any term or provision of this Amendment and any term or provision of the
Forbearance Agreement, such term or provision of this Amendment shall
control.
5. Further
Assurances. The
parties hereto shall execute and deliver such additional documents and take such
additional actions as Wachovia requests to effectuate the provisions and
purposes of this Amendment and to protect and/or maintain perfection of
Wachovia’s security interests in and liens upon the Collateral.
6. Counterparts. This
Amendment may be executed in any number of counterparts, but all such
counterparts shall together constitute but one and the same
Amendment.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as
of the day and year first above written.
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BORROWER:
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KINERGY MARKETING
LLC,
as
Borrower
By: /s/ XXXX X.
XXXXXXX
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| Name: Xxxx X. Xxxxxxx | |
| Title: President & CEO | |
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PARENT:
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PACIFIC ETHANOL,
INC,
as
Parent
By: /s/ XXXX X. XXXXXXX
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| Name: Xxxx
X. Xxxxxxx
Title: President
& CEO
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WACHOVIA:
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WACHOVIA CAPITAL FINANCE
CORPORATION (WESTERN),
as
Agent and sole Lender
By: /s/ XXXXXX XXXXXX
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| Name: Xxxxxx Xxxxxx
Title: Director
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