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Exhibit 10.1 AMENDMENT TO WAIVER TO FINANCING
AGREEMENT AND
DEPOSITARY AND DISBURSEMENT AGREEMENT
This AMENDMENT TO WAIVER TO
DEPOSITARY AND DISBURSEMENT AGREEMENT (this " Amendment "),
dated as of December 19, 2008, is made by and among PANDA
HEREFORD ETHANOL, L.P., as Borrower, SOCIÉTÉ
GÉNÉRALE, as Administrative Agent (in such capacity,
the " Administrative Agent "), Disbursement Agent and a
Lender, and the LENDERS party hereto (collectively, the "
Parties "). Capitalized terms not defined in this Amendment
shall have the meanings given in the Financing Agreement, dated as
of July 28, 2006 (as amended, the " Financing Agreement
"), by and among Borrower, the Agents, the Lenders from time to
time party thereto, the LC Fronting Bank and the Lead Arranger.
RECITALS WHEREAS, Borrower, the
Administrative Agent and the Majority Lenders have previously
entered into the Waiver to Financing Agreement and Depositary and
Disbursement Agreement, dated as of October 6, 2008 (the "
Waiver "), pursuant to which the Lenders waived certain
Events of Defaults and conditions under the Financing Agreement and
Disbursement Agreement to permit Borrowings and disbursements from
the Construction Accounts; WHEREAS,
Borrower has requested that the Lenders extend the effectiveness of
the Waiver from January 30, 2009 until February 28, 2009,
in order that Borrower may implement prior to Interim Completion
certain recommended Project modifications; and
WHEREAS, the Financing Agreement
requires the approval of the Majority Lenders with respect to this
Amendment. NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained
herein, and other good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Parties agree as
follows: 1. Amendment .
The reference to "January 30, 2009" in Section 1(c)(i) of
the Waiver is hereby replaced with "February 28, 2009."
2. Effectiveness . This
Amendment shall be deemed effective upon the receipt by the
Administrative Agent of the following:
(a) this Amendment duly executed by
Borrower, the Administrative Agent and the Majority Lenders;
(b) a revised Budget and a revised
Timeline, each with the written approval thereof by the Engineer
and otherwise in form and substance satisfactory to the
Administrative Agent in its sole discretion, provided that
the requirements of this clause (b) shall not modify the
Borrower’s obligations to deliver additional revised Budgets
and Timelines under the Waiver in any way; and
(c) such other instruments,
documents and agreements as the Administrative Agent may reasonably
request, in form and substance reasonably satisfactory to the
Administrative Agent. 3.
Representations and Warranties . Borrower hereby represents
and warrants to the Administrative Agent and the Lenders as
follows: (a) Borrower has all the
requisite power and authority to execute this Amendment and to
perform all of its respective obligations hereunder, and this
Amendment has been duly executed and delivered by Borrower and
constitutes the legal, valid and binding obligations of Borrower,
enforceable in accordance with its terms;
(b) The execution, delivery and
performance by Borrower of this Amendment have been duly authorized
by all necessary action and do not (i) require any
authorization, consent or approval by any governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign; (ii) violate any provision of any law, rule or
regulation or of any order, writ, injunction or decree presently in
effect, having applicability to Borrower or the organizational
documents of Borrower; or (iii) result in a breach or
constitute a default under any loan or credit agreement or any
other agreement, lease or instrument to which Borrower is a party
or by which any of its respective properties may be bound or
effected; (c) No Default or Event of
Default exists under the Financing Documents on and as of the date
hereof except as previously disclosed to the Lenders in writing;
(d) All amounts requested listed on
the Budget delivered hereunder constitute Qualified Project
Construction Expenses; (e) All of the
Security Document Liens are valid, First Priority Liens as of the
date hereof, subject to any Liens described on Schedule A to
the Waiver; and (f) After giving
effect to this Amendment and the Waiver, Borrower hereby represents
that all representations and warranties made by it to the Senior
Secured Parties in the Financing Agreement and the other Financing
Documents are true and correct in all material respects with the
same force and effect as if made on and as of the date hereof
(except to the extent such statements, representations and
warranties made in any such Financing Document or writing executed
prior to the date hereof related to a specific prior date).
4. No Modification .
Except as expressly set forth herein, the Waiver, the Financing
Agreement, each other Financing Document and each document executed
in connection therewith shall continue to be, and shall remain, in
full force and effect in accordance with the provisions thereof.
This Amendment shall not be deemed to be an amendment or waiver of,
or consent to any departure from, any other term or condition of
the Waiver, the Financing Agreement, any other Financing Document
or any document executed in connection therewith or to prejudice
any other right or rights which the Administrative Agent, any
Lender or any other Secured Party may now have or may have in the
future under or in connection with the Waiver, the Financing
Agreement, any other Financing Document or any document executed in
connection therewith. This Amendment does not create a course of
conduct or an agreement to fund Borrowings, permit Construction
Draws or waive any Default or Event of Default.
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5. Miscellaneous .
(a) Each reference in the Waiver to
"this Waiver" and each reference in each of the Financing Documents
thereto shall be deemed to refer to the Waiver as modified by this
Amendment. (b) This Amendment will be
a Financing Document for all purposes of the Financing Agreement.
(c) This Amendment
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