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
