Exhibit 10.21


 


AMENDMENT
NO. 4


TO


AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT


 


This AMENDMENT NO.
4 TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into as of December 11,
2015, by and among WELLS FARGO CAPITAL FINANCE, LLC, in its capacity as agent (in such capacity, “Agent”) for
the Lenders (as defined in the Loan Agreement referred to below), KINERGY MARKETING LLC (“Kinergy”), and PACIFIC
AG. PRODUCTS, LLC (“Pacific Ag” and together with Kinergy, each individually, a “Borrower”
and collectively, the “Borrowers”).


 


WHEREAS, Borrowers,
Agent and Lenders have entered into certain financing arrangements as set forth in (a) the Amended and Restated Loan and Security
Agreement, dated as of May 4, 2012, by and among Agent, Lenders and Borrowers (as amended, restated, renewed, extended, supplemented,
substituted and otherwise modified from time to time, the “Loan Agreement”) and (b) the Financing Agreements
(as defined in the Loan Agreement); and


 


WHEREAS, Borrowers
have advised Agent that Pacific AG desires to enter into Marketing Agreements (as defined in the Loan Agreement) with certain of
the Aventine Affiliates, each substantially in the form of Exhibit A attached hereto (the “Pacific AG Marketing
Agreements”);


 


WHEREAS, Borrowers
have advised Agent that Borrowers and Parent desire to replace the Intercompany Operating Agreement (as defined in the Loan Agreement)
with a certain Affiliated Company Agreement, effective as of July 1, 2015, among Borrowers and Parent, substantially in the form
of Exhibit B attached hereto (the “Affiliated Company Agreement”);


 


WHEREAS, Borrowers,
Agent and Lenders have agreed to amend and modify certain provisions of Loan Agreement, subject to the terms and conditions of
this Amendment.


 


NOW, THEREFORE, upon
the mutual agreements and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:


 


1.Definitions.


 


(a)Additional
Definitions. The Loan Agreement is hereby amended to add the following new definition thereto:


 


““Amendment No. 4”
shall mean Amendment No. 4 to Amended and Restated Loan and Security Agreement, dated as of December 11, 2015.”


 


““Affiliated Company
Agreement” shall mean that certain Affiliated Company Agreement, effective as of July 1, 2015, by and among the Borrowers
party thereto, certain of the Aventine Affiliates, and Parent pursuant to which Parent will provide certain services to Borrowers
as more particularly set forth therein, as amended, restated, modified or supplemented from time to time.”


 


(b)Interpretation.
Capitalized terms used and not defined in this Amendment shall have the respective meanings given them in the Loan
Agreement.






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2.Consent. To
the extent their consent may be necessary or required under the Loan Agreement or the other Financing Agreement, Agent
and Lenders hereby consent to the consummation of the transactions contemplated by the Pacific AG Marketing Agreements and the
Affiliated Company Agreement.


 


3.Amendments.


 


(a)Intercompany
Operating Agreement. Section 1.66 of the Loan Agreement is hereby deleted in its entirety and the following substituted therefor:


 


“1.66 [Reserved].”


 


(b)Affiliated
Company Agreement. Each Section of the Loan Agreement and the other Financing Documents in which the term “Intercompany Operating Agreement” appears, including, without limitation,
Sections 1.106 (Receivables), 9.12(b) (Transactions With Affiliates), and 10.1(n) (Events of Default) of the Loan Agreement, is
hereby amended to delete the reference to “Intercompany Operating Agreement” appearing therein and substitute “Affiliate
Company Agreement” in lieu thereof.


 


(c)Marketing Agreements.
The definition of “Marketing Agreements” set forth in the Loan Agreement is hereby deleted in its entirety and the following substituted therefor:


 


““Marketing
Agreements” shall mean each of (i) the Ethanol Marketing Agreements, dated on or about the date of Amendment No. 3 and (ii)
the Co-Product Marketing Agreements, dated on or about the date of Amendment No. 4, by and among one or more Borrowers and one
or more Aventine Affiliates, as amended, and such other marketing agreements that may be approved by Agent from time to time in
its reasonable discretion.”


 


4.Additional Representation. In addition
to the continuing representations, warranties and covenants at any time made by Borrowers to Agent and Lenders pursuant to the
Loan Agreement and the other Financing Agreements, Borrowers hereby jointly and severally represent, warrant and covenant with
and to Agent and Lenders that as of the date of this Amendment and after giving effect hereto, no Default or Event of Default
exists or has occurred and is continuing.


 


5.Release. In consideration of the agreements of Agent and Lenders contained herein and the making of loans by or on behalf of Agent
and Lenders to Borrowers pursuant to the Loan Agreement, and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, each Borrower and Parent on behalf of itself and its successors, assigns, and other legal representatives,
hereby, jointly and severally, absolutely, unconditionally and irrevocably releases, remises and forever discharges Agent and
each Lender, and their present and former shareholders, affiliates, subsidiaries, divisions, predecessors, directors, officers,
attorneys, employees, agents and other representatives and their respective successors and assigns (Agent, each Lender and all
such other parties being hereinafter referred to collectively as the “Releasees” and individually as a “Releasee”),
of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of
money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, rights of set-off, demands
and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every
name and nature, known or unknown, suspected or unsuspected, both at law and in equity, whether liquidated or unliquidated, matured
or unmatured, asserted or unasserted, fixed or contingent, foreseen or unforeseen and anticipated or unanticipated, which any
Borrower or Parent, or any of its successors, assigns, or other legal representatives and its successors and assigns may now or
hereafter own, hold, have or claim to have against the Releasees or any of them for, upon, or by reason of any nature, cause or
thing whatsoever which arises at any time on or prior to the day and date of this Agreement, in relation to, or in any way in
connection with the Loan Agreement, as amended and supplemented through the date hereof, this Agreement and the other Financing
Agreements. Each Borrower and Parent understands, acknowledges and agrees that the release set forth above may be pleaded as a
full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may
be instituted, prosecuted or attempted in breach of the provisions of such release.






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6.Conditions to Effectiveness.
The effectiveness of this Amendment shall be subject to the receipt by Agent of:


 


(a)an
original (or electronic copy) of this Amendment duly authorized, executed and delivered by Borrowers and Lenders;


 


(b)an
original (or electronic copy) of a letter agreement re: Consent to Co-Product Marketing Agreements and Release of Lien on Purchased Assets, duly authorized, executed and delivered by Citibank, N.A., in its
capacity as Agent under the Aventine Term Loan Agreement, and Pacific Ethanol Central, LLC (f/k/a Aventine Renewal Energy Holdings,
Inc.); and


 


(c)an
original (or electronic copy) of the Affiliated Company Agreement, duly authorized, executed and delivered by Parent and Borrowers.


 


7.Effect of this Amendment. Except
as modified pursuant hereto, no other changes or modifications to the Loan Agreement or the other Financing Agreements are intended
or implied and in all other respects the Loan Agreement and other Financing Agreements are hereby specifically ratified, restated
and confirmed by all parties hereto as of the date hereof. To the extent of conflict between the terms of this Amendment, on the
one hand, and Loan Agreement or the other Financing Agreements, on the other hand, the terms of this Amendment shall control.


 


8.Further Assurances. Borrowers shall
execute and deliver such additional documents and take such additional action as may be reasonably requested by Agent to effectuate
the provisions and purposes of this Amendment.


 


9.Binding Effect. This Amendment shall
be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns.


 


10.Governing Law. The rights and obligations
hereunder of each of the parties hereto shall be governed by and interpreted and determined in accordance with the internal laws
of the State of California (without giving effect to principles of conflict of laws).


 






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11.Counterparts.
This Amendment may be signed in counterparts, each of which shall be an original and all of which taken together constitute
one agreement. In making proof of this Amendment, it shall not be necessary to produce or account for more than one counterpart
signed by the party to be charged. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall
be effective as delivery of an original executed counterpart of this Amendment.


 


 


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IN WITNESS WHEREOF, the parties
hereto have caused teas Amendment to be duly executed and delivered by their authorized officers as of the day and year first
above written,


 


BORROWERS:


 


KINERGY MARKETING LLC,


as a Borrower


 


By: /s/ Bryon T.
McGregor          


Name: Bryon T. McGregor


Title: Chief Financial Officer


 


 


PACIFIC AG PRODUCTS, LLC,


as a Borrower


 


By: /s/ Bryon T.
McGregor          


Name: Bryon T. McGregor


Title: Chief Financial Officer


 


 


ACKNOWLEDGED AND AGREED:


 


PACIFIC ETHANOL, INC.,


as Parent


 


By: /s/ Bryon T.
McGregor          


Name: Bryon T. McGregor


Title: Chief Financial Officer


 


 


 


 


AGENT AND LENDER



 


WELLS FARGO CAPITAL FINANCE, LLC,


as Agent and sole Lender


 


By: /s/ Carlos Valles                

Name: Carlos Valles


Title: Vice President




 


 


 


 


 


Signature Page to Amendment No. 4