EXHIBIT
10.01
AMENDMENT NO. 2
TO
LETTER RE: AMENDMENT AND
FORBEARANCE AGREEMENT
THIS AMENDMENT NO. 2 TO LETTER RE: AMENDMENT AND
FORBEARANCE AGREEMENT (this “Amendment”), dated as of
March 27, 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, as
amended by that certain Amendment No. 1 to Letter re: Amendment and
Forbearance Agreement, dated as of February 26, 2009 (the
“Forbearance Agreement”);
WHEREAS, it has come to the attention of
Wachovia that, in addition to the Specified Defaults (as defined in
the Forbearance Agreement), (a) Borrower has failed to comply with
Section 9.17 of the Loan Agreement as a result of the failure of
Borrower to maintain EBITDA in the amount required by such Section
for the two (2) consecutive month period ending February 28, 2009,
which constitutes an Event of Default under Section 10.1(a)(i) of
the Loan Agreement, (b) Borrower will not be in compliance with
Section 9.17 of the Loan Agreement as a result of the anticipated
failure of Borrower to maintain EBITDA in the amount required by
such Section for the three (3) consecutive month period ending
March 31, 2009, which constitutes a Default under the
Loan Agreement (together with the Specified Defaults, collectively,
the “Currently Existing Defaults”).
WHEREAS, Borrower and Parent have requested that
Wachovia extend the Forbearance Period, which Wachovia is willing
to do subject 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.
Amendment to Definition of Applicable Margin.
The definition of “Applicable Margin” in
Section 1.6 of the Loan Agreement is hereby amended and restated in
its entirety as follows:
“Applicable Margin” shall mean, as
to the Interest Rate for Revolving
Loans which are
Prime Rate Loans, three and one-half (3.50%)
percent.”
3.
Prime Rate Loans. Notwithstanding anything to
the contrary contained in the Loan Agreement or the
other
