Exhibit 10.1


 


EXECUTION VERSION 


 





AMENDMENT NO. 5



TO



CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS


 


THIS AMENDMENT NO.
5 TO CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS, dated as of July 15, 2019 (this “Agreement”), is entered into
by and between PACIFIC ETHANOL PEKIN, LLC, a limited liability company organized and existing under the laws of Delaware (“Company”),
COMPEER FINANCIAL, PCA, a federally-chartered instrumentality of the United States, successor by merger to 1st Farm
Credit Services, PCA (“Lender”), and COBANK, ACB, a federally-chartered instrumentality of the United States
(“Agent”). Capitalized terms not defined herein shall have the meanings set forth in the Credit Agreement.


 


BACKGROUND:


 


WHEREAS, the
Company, Lender and Agent have entered into that certain Credit Agreement dated as of December 15, 2016 (as amended, restated,
modified or otherwise supplemented from time to time, collectively the “Credit Agreement”) and the other Loan
Documents;


 


WHEREAS, the
Company has requested that, as of the Effective Date, the Credit Agreement and certain other Loan Documents be amended as herein
provided; and


 


WHEREAS, Agent
and Lender are willing, subject to the terms and conditions hereinafter set forth, to make such amendments;


 


NOW, THEREFORE,
in consideration of the agreements herein contained, the parties hereby agree as follows:


 


ARTICLE
1Definitions.


 


1.1 Certain
Definitions. The following terms when used in this Agreement shall have the following meanings:


 


“Accounts Receivable Amount”
means, at any given time, the aggregate dollar amount of all accounts receivable then owing to the Company by PEC.


 


“Agent” is defined in
the preamble to this Agreement.


 


“Agreement” is defined
in the preamble to this Agreement.


 


“Company” is defined
in the preamble to this Agreement.


 


“Compliance Conditions”
is defined in Section 2.5.


 


“Compliance Date” is
defined in Section 2.5.


 


“Credit Agreement” is
defined in the first recital to this Agreement.


 


“Deferral Period” means
that period of time commencing on the Effective Date and terminating on the Deferral Period Termination Date.


 


“Deferral Period Termination Date”
means that date which is the earlier of (a) 11:59 p.m. (Mountain time) on November 15, 2019 or (b) the occurrence of an Event of
Default under the Loan Documents (excluding therefrom, however, the Excluded Events, the occurrence of which, whether prior to
or during the Deferral Period, shall not constitute an Event of Default during the Deferral Period).


 






     


     


    

 


“Effective Date” is
defined in Article 5.


 


“Excluded Events” means
those matters identified in Section 2.1 below.


 


“Lender” is defined
in the preamble to this Agreement.


 


“PAL” means Pacific
Aurora, LLC, a Delaware limited liability company.


 


“PEC” means Pacific
Ethanol Central, LLC, a Delaware limited liability company.


 


“PEC Contribution Amount”
means the dollar amount representing the sum of the following amounts: (a) the Working Capital Adjustment Amount, plus (b)
the Accounts Receivable Amount, plus (c) $12,000,000.


 


“PEC Contribution Amount Certificate”
means a certificate of the Company, in form and content reasonably acceptable to Agent and certified by an Authorized Officer,
(A) setting forth the calculation of the PEC Contribution Amount as of the date of delivery of such certificate to Agent, (B) certifying
that no Event of Default has occurred and is continuing as of the date of delivery of such certificate to Agent (other than may
have been caused by the Excluded Events), and (C) attaching documentary proof of the Company’s receipt of the PEC Contribution
Amount in the amount calculated.


 


“Working Capital Adjustment Amount”
means the dollar amount representing the difference of the following amounts: (a) $30,000,000, minus (b) the dollar amount
for Working Capital calculated on the latest Compliance Certificate delivered by the Company to Agent.


 


1.2 Other
Definitions. Unless otherwise defined or the context otherwise requires, terms used herein (including in the preamble and recitals
hereto) have the meanings provided for in the Credit Agreement.


 


ARTICLE
2Waivers; Deferral Period.


 


2.1 Agent
and Lender hereby agree:


 


		(a)	pending receipt of the PEC Contribution Amount, to temporarily waive the Company’s obligation
to comply with (i) the covenants contained in Section 8.1 of the Credit Agreement for the periods ending December 31, 2018 and
January 31, 2019, and (ii) the covenant contained in Section 8.2 of the Credit Agreement for the period ending December 31, 2018;



 


		(b)	pending receipt of the PEC Contribution Amount, to temporarily waive any Event of Default which
could otherwise be declared prior to the occurrence of the Deferral Period Termination Date as the result of any failure of the
Company to collect any account receivable from any Affiliate of the Company within ten (10) Business Days after such account receivable
arises; and



 


		(c)	to defer until the occurrence of the Deferral Period Termination Date certain principal payments
as provided in Section 2.1(c) of the Credit Agreement (described below).



 


2.2 If
the Company (a) receives payment in full of the PEC Contribution Amount from PEC prior to the occurrence of the Deferral Period
Termination Date, and (b) delivers the PEC Contribution Amount Certificate to Agent within two (2) Business Days after receipt
of the PEC Contribution Amount (but in no event later than the Deferral Period Termination Date), then (x) the temporary waivers
set forth in Sections 2.1(a) and (b) above shall become permanent waivers, and (y) Agent and Lender shall waive compliance with
the covenant contained in Section 8.2 of the Credit Agreement for the period ending December 31, 2019. Otherwise, the temporary
waivers set forth in Sections 2.1(a) and (b) above shall immediately and automatically expire upon the occurrence of the Deferral
Period Termination Date without the need for any notice to the Company or any further action by Agent or Lender.


 






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2.3 At
all times prior to the occurrence of the Deferral Period Termination Date, Agent agrees not to exercise any rights or remedies
granted under the Loan Documents or at law solely on account of any of the matters temporarily waived or otherwise deferred pursuant
to Section 2.1 above.


 


2.4 Subject
only to satisfaction of the Compliance Conditions, immediately upon (and at all times after) the occurrence of the Deferral Period
Termination Date, Agent and the Lending Parties shall have the full right and power to exercise all rights and remedies granted
under the Loan Documents and at law on account of the occurrence and continuance of an Event of Default, including with respect
to those matters which were temporarily waived or otherwise deferred pursuant to Section 2.1 above.


 


2.5 In
the event that, prior to the Deferral Period Termination Date, the conditions set forth in clauses (a) and (b) of Section 2.2 above
are satisfied and the deferred payments have been made as provided in Section 2.1(c) of the Credit Agreement (the “Compliance
Conditions”), then, so long as no other Event of Default has occurred and is then continuing (excluding those arising
out of an Excluded Event), the Company shall be deemed in compliance with the Loan Documents (the date prior to the Deferral Period
Termination Date upon which all of the foregoing occur being the “Compliance Date”).


 


ARTICLE
3Amendments.


 


Effective on (and subject to the occurrence
of) the Effective Date, the Credit Agreement and certain other Loan Documents are amended as follows:


 


3.1 Amendment
to Section 2.1(c) of the Credit Agreement. Section 2.1(c) of the Credit Agreement is hereby amended in its entirety to read
as follows:


 


(c) Deferred
Principal Payments. Payment of the principal installments payable under the Term Note on February 20, 2019 and May 20, 2019
shall be deferred to (and shall be immediately due and payable upon) the Deferral Period Termination Date. All other principal
installments payable under the Term Note prior to the occurrence of the Deferral Period Termination Date (including, without limitation,
the principal installment payable on August 20, 2019) shall remain due and payable upon their respective payment dates.


 


3.2 Amendment
to Section 7.7 of the Credit Agreement. Section 7.7 of the Credit Agreement is hereby amended in its entirety to read as follows:


 


7.7 Dividends
and Related Distributions. The Company shall not, and shall not permit any of its Subsidiaries to, make or pay, or agree to
become or remain liable to make or pay, any dividend or other distribution of any nature (whether in cash, property, securities
or otherwise) on account of or in respect of its shares of capital stock, partnership interests or limited liability company interests
or on account of the purchase, redemption, retirement or acquisition of its shares of capital stock (or warrants, options or rights
therefor), partnership interests or limited liability company interests, except that the following shall be permitted only after
the occurrence (if ever) of the Compliance Date: (a) an annual dividend or other distribution payable by the Company to its members
with respect to any fiscal year of the Company ending on or after December 31, 2017; provided that (i) the amount of such dividend
or other distribution does not exceed 40% of the net income of the Company for such fiscal year, (ii) the Company has delivered
its audited financial statements for such fiscal year to CoBank in accordance with Section 6.1(b), (iii) such annual dividend or
other distribution is made prior to the April 30th first occurring after the end of such fiscal year, (iv) the Working
Capital of the Consolidated Group was $20,000,000 or more as of the last day of such fiscal year before any such annual dividend
or other distribution was proposed to be made pursuant to this Section 7.7, would have been $20,000,000 or more as of the last
day of such fiscal year after giving pro forma effect to the making of any such annual dividend or other distribution pursuant
to this Section 7.7 as of the last day of such fiscal year and will be $20,000,000 or more immediately after any such annual dividend
or other distribution is actually made pursuant to this Section 7.7 and (v) no Event of Default or Default has occurred or would
result therefrom; and (b) periodic dividends or other distributions payable by the Company to its members after December 31, 2017;
provided that (i) the Working Capital of the Consolidated Group was $26,000,000 or more as of the last day of the most recently-reported
calendar month before any such periodic dividend or other distribution was proposed to be made pursuant to this Section 7.7, would
have been $26,000,000 or more as of the last day of such calendar month after giving pro forma effect to the making of any such
periodic dividend or other distribution pursuant to this Section 7.7 as of the last day of such calendar month and will be $26,000,000
or more immediately after any such periodic dividend or other distribution is actually made pursuant to this Section 7.7 and (ii)
no Event of Default or Default has occurred or would result therefrom .


 






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3.3 Amendments
to Annex A to the Credit Agreement.


 


(a) Annex
A to the Credit Agreement is hereby amended by adding each of the following definitions as a new definition:


 


“Fifth
Amendment” means Amendment No. 5 to Credit Agreement and Other Loan Documents, executed by the Company, Agent, and Lender.


 


“Fifth
Amendment Date” means the “Effective Date” of the Fifth Amendment.


 


“PEC”
has the meaning set forth in the Fifth Amendment.


 


(b) Annex
A to the Credit Agreement is hereby amended by deleting the definition of “Compliance Date” and substituting the following
definition in its place:


 


“Compliance
Date” has the meaning set forth in Section 2.5 of the Fifth Amendment.


 


(c) Annex
A to the Credit Agreement is hereby amended by deleting the definition of “Deferral Period Termination Date” and substituting
the following definition in its place:


 


“Deferral
Period Termination Date” has the meaning set forth in the Fifth Amendment.


 


(d) Annex
A to the Credit Agreement is hereby amended by deleting the definition of “Loan Documents” and substituting the following
definition in its place:


 


“Loan
Documents” means this Agreement, each Note, the Environmental Indemnity and Reimbursement Agreement, each Interest Rate
Hedge, the PEC Guaranty, the PEC Pledge Agreement, the PEC Security Agreement, the Fourth Amendment, the Fifth Amendment, and each
other agreement, guaranty, security agreement, pledge, mortgage, deed of trust, instrument, agreement, certificate, application,
invoice and document executed or delivered in connection herewith or therewith, each as amended or as amended and restated from
time to time.


 


ARTICLE
4Representations and Warranties; Acknowledgments.


 


4.1 In
order to induce Agent and Lender to grant the deferrals provided for in Article 2 and make the amendments provided for in Article
3, the Company hereby represents and warrants to Agent and the Lending Parties as of the Effective Date that:


 


(a) The
recitals set forth above are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in
which case they shall be true and correct in all respects) and are part of this Agreement, and such recitals are incorporated herein
by this reference;


 


(b) Except
with respect to any representations and warranties related to the Excluded Events, all representations and warranties made and
given by the Company in the Loan Documents are true, complete, accurate, and correct in all material respects (unless qualified
by materiality, in which case they shall be true and correct in all respects), as if given on the Effective Date (or, as to representations
and warranties that specifically refer to an earlier date, as of such earlier date) after giving effect to this Agreement;


 






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(c) The
Company has no claims, offsets, rights of recoupment, counterclaims, or defenses (other than payment) with respect to: (a) the
payment of any amount due under the Loans and the Loan Documents; (b) the performance of the Company’s obligations under
the Loan Documents; or (c) the liability of the Company under the Loan Documents;


 


(d) Agent
and the Lending Parties: (i) have not breached any duty to the Company in connection with the Loans or the Loan Documents; and
(ii) have fully performed all obligations they may have had or now have to the Company;


 


(e) The
Company has had the assistance of independent counsel of its own choice, or has had the opportunity to retain such independent
counsel, in reviewing, discussing, and considering all the terms of this Agreement. Before execution of this Agreement, the Company
has had adequate opportunity to make whatever investigation or inquiry it may deem necessary or desirable in connection with the
subject matter of this Agreement;


 


(f) The
Company is not acting in reliance on any representation, understanding, or agreement from or with Agent or the Lending Parties
not expressly set forth herein. The Company acknowledges that none of Agent or the Lending Parties has made any representation
with respect to the subject of this Agreement except as expressly set forth herein. The Company has executed this Agreement as
its free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any Person;


 


(g) All
interest or other fees or charges which have been imposed, accrued or collected by Agent under the Loan Documents or in connection
with the Loans through the date of this Agreement, and the method of computing the same, were and are proper and agreed to by the
Company, and were properly computed and collected;


 


(h) This
Agreement is not intended by the parties to be a novation of the Loan Documents and, except as expressly waived, deferred or otherwise
modified herein, all terms, conditions, rights, and obligations as set out in the Loan Documents are hereby reaffirmed and shall
otherwise remain in full force and effect as originally written and agreed;


 


(i) Notwithstanding
anything to the contrary in this Agreement, except as waived, deferred or modified herein, the Loan Documents are in full force
and effect in accordance with their respective terms, remain legal, valid and binding obligations of the Company that are enforceable
in accordance with their respective terms, have not been modified or amended (except in written amendments executed by the parties),
and are hereby reaffirmed and ratified by the Company;


 


(j) All
information provided by the Company (or any of its agents or representatives) to Agent or the Lending Parties prior to the Effective
Date is true, correct and complete in all material respects as of the date provided and does not contain any untrue statements
of fact or omit to state a fact necessary to make the statements made not misleading in any material respect;


 


(k) All
financial statements delivered by the Company (or any of its agents or representatives) to Agent or the Lending Parties prior to
the Effective Date are true and correct in all material respects and fairly present the financial condition of the Company;


 


(l) As
of the Effective Date, the Company has delivered to Agent all statements, notices, certificates, projections, updates, and other
information required under Article 6 of the Credit Agreement;


 


(m) The
execution and delivery of this Agreement and the performance by the Company of its obligations hereunder are within the corporate
or company powers and authority of the Company, have been duly authorized by all necessary corporate action, and do not and will
not contravene or conflict with the charter or by-laws of the Company;


 






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(n) This
Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, covenants, and conditions; and


 


(o) After
giving effect to this Agreement, no Default or Event of Default (other than related to any Excluded Event) has occurred and is
continuing.


 


4.2 In
order to induce Agent and Lender to grant the deferrals provided for in Article 2 and make the amendments provided for in Article
3, the Company hereby represents and warrants to Agent and the Lending Parties that (a) as of the Effective Date, the Accounts
Receivable Amount is not greater than $18,000,000, and (b) at no time during the Deferral Period will the Accounts Receivable Amount
exceed $18,000,000.


 


4.3 In
order to induce Agent and Lender to grant the temporary waivers and deferrals provided for in Article 2 and make the amendments
provided for in Article 3, the Company hereby ratifies and confirms all of the terms, covenants and conditions set forth in the
Loan Documents as modified herein and hereby agrees, acknowledges and reaffirms that (a) the Loan Documents as modified herein
constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective
terms, covenants, and conditions, (b) the Company remains unconditionally liable to Agent and the Lending Parties in accordance
with the respective terms, covenants, and conditions set forth in the Loan Documents as modified herein, (c) Agent and Lender have
valid, duly perfected, fully enforceable Liens on the Collateral, (d) all Liens heretofore granted to Agent and Lender in the Collateral
continue in full force and effect and secure the Obligations, (e) the Company shall execute and deliver to Agent and the Lending
Parties any and all agreements and other documentation and to take any and all actions reasonably requested by Agent and the Lending
Parties at any time to assure the perfection, protection, priority, and enforcement of Agent’s and Lender’s rights
under the Loan Documents (including this Agreement) with respect to all such Liens (but without any increase to the obligations
or liabilities of the Company under the Loan Documents), and (f) as of July 15, 2019, the amount of the Obligations owing under
the Loan Documents (exclusive of attorneys’ fees and other fees, expenses, advances, and costs) totaled $75,678,895.83, consisting
of (i) unpaid principal of $43,000,000.00 and accrued, unpaid interest of $389,233.61 on the Term Loan, and (ii) unpaid principal
of $32,000,000.00 and accrued, unpaid interest of $289,662.22 on the Revolving Term Loan.


 


ARTICLE
5Conditions to Effectiveness.


 


This Agreement shall become effective on
such date (the “Effective Date”) when each of the following conditions has been satisfied:


 


5.1 Representations
and Warranties. All covenants, representations and warranties made by the Company pursuant to Article 4 shall be true and correct.


 


5.2 Updated
Schedules. Agent shall have received updated schedules to the Credit Agreement in accordance with Section 6.11 of the Credit
Agreement.


 


5.3 Insurance
Certificates. Agent shall have received current insurance certificates for all insurance policies maintained by the Company.


 


5.4 Other
Requests. Agent shall have received such other certificates, instruments, documents, agreements, information and reports as
may be requested by Agent, in form and substance acceptable to Agent.


 


5.5 Reimbursement
of Fees/Expenses. The Company shall have paid all out-of-pocket fees and expenses of Agent and the Lending Parties (including
legal and audit fees) that accrued in relation to the Loan Documents, including, without limitation, all out-of-pocket fees and
expenses incurred in connection with the preparation, drafting, negotiation, implementation of this Agreement.


 


5.6 Amendment
Fee. Agent shall have received a non-refundable amendment fee of $50,000.


 






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5.7 Required
Consents, etc. The Company shall have delivered to Agent all consents, authorizations and amendments determined by Agent to
be necessary to ensure the enforceability of the Loan Documents.


 


Upon the delivery by Agent of a fully executed
copy of this Agreement to the Company, the conditions set forth above shall be deemed satisfied and the Effective Date shall be
deemed to have occurred as of the date so delivered.


 


ARTICLE
6Release.


 


As a material part of
the consideration for Agent and Lender entering into this Agreement, the Company agrees as follows (the “Release Provision”)


 


6.1 The
Company hereby releases and forever discharges Agent and the Lender Parties and each such parties’ respective predecessors,
successors, assigns, participants, officers, managers, directors, shareholders, employees, agents, attorneys, representatives,
parent corporations, subsidiaries, and affiliates (hereinafter all of the above collectively referred to as “Released
Group”), jointly and severally, from any and all claims, counterclaims, demands, damages, debts, agreements, covenants,
suits, contracts, obligations, liabilities, accounts, offsets, rights, actions, and causes of action of any nature whatsoever,
including, without limitation, all claims, demands, and causes of action for contribution and indemnity, whether arising at law
or in equity, whether presently possessed or possessed in the future, whether known or unknown, whether liability be direct or
indirect, liquidated or unliquidated, whether presently accrued or to accrue hereafter, whether absolute or contingent, foreseen
or unforeseen, and whether or not heretofore asserted, and including whether arising from the negligence (but not the gross negligence
or willful misconduct) of any of the Released Group, which the Company may have or claim to have against any of the Released Group,
in each case only to the extent arising or accruing prior to and including the Effective Date.


 


6.2 The
Company agrees not to sue any of the Released Group or in any way assist any other person or entity in suing any of the Released
Group with respect to any claim released herein. This Release Provision may be pleaded as a full and complete defense to, and may
be used as the basis for an injunction against, any action, suit, or other proceeding which may be instituted, prosecuted, or attempted
in breach of the release contained herein.


 


6.3 The
Company is the sole owner of the claims released by the Release Provision, and the Company has not heretofore conveyed or assigned
any interest in any such claims to any other person or entity. The Company understands that the Release Provision was a material
consideration in the agreement of Agent and Lender to enter into this Agreement.


 


6.4 It
is the express intent of the Company that the release and discharge set forth in the Release Provision be construed as broadly
as possible in favor of the Released Group so as to foreclose forever the assertion by the Company of any claims released hereby
against any of the Released Group. If any term, provision, covenant, or condition of the Release Provision is held by a court of
competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of the provisions shall remain in full force and
effect.


 


ARTICLE
7Miscellaneous.


 


7.1 Loan
Document Pursuant to Credit Agreement. This Agreement is a Loan Document executed pursuant to the Credit Agreement. Except
as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions contained in the Credit Agreement
and each other Loan Document shall remain unamended and otherwise unmodified and in full force and effect.


 


7.2 Limitation
of Amendments. The temporary waivers and deferrals granted in Article 2 and the amendments provided in Article 3 shall be limited
precisely as provided for therein and shall not be deemed to be a waiver of, amendment of, consent to or modification of any other
term or provision of the Credit Agreement or any term or provision of any other Loan Document or of any transaction or further
or future action on the part of the Company which would require the consent of Agent or the Lending Parties under the Credit Agreement
or any other Loan Document.


 


7.3 Collateral.
To the extent any Collateral is personal property, the Company hereby renounces and waives all rights that are waivable under Article
9 of the Uniform Commercial Code (the “UCC”) of any jurisdiction in which any Collateral may now or hereafter
be located. The Company also hereby acknowledges and agrees that a public sale shall constitute a commercially reasonable manner
for the disposition of the Collateral.


 


7.4 Counterparts;
Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement
shall become effective when it shall have been executed by Agent and when Agent shall have received counterparts hereof that, when
taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy or email shall be as effective as delivery of a manually executed counterpart of this Agreement.


 


7.5 Incorporation
of Credit Agreement Provisions. The provisions of Article 11 of the Credit Agreement shall apply to this Agreement, mutatis
mutandis.


 


[Signature
Pages Follow]


 




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[SIGNATURE PAGE TO CREDIT AGREEMENT
AMENDMENT]


 


IN WITNESS WHEREOF,
the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.


 


	 	COMPANY:
	 	 
	 	
        PACIFIC ETHANOL PEKIN, LLC

	 	 
	 	By:	/s/ Bryon T. McGregor
	 	Name: 	Bryon T. McGregor
	 	Title:	Chief Financial Officer


 




     


     


    

 


[SIGNATURE PAGE TO CREDIT AGREEMENT
AMENDMENT]


 


IN WITNESS WHEREOF,
the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.


 


	 	LENDER:
	 	 
	 	COMPEER FINANCIAL, PCA
	 	 
	 	By:	/s/
    Corey J. Wadlinger
	 	Name: 	Corey J. Wadlinger
	 	Title:	Managing
    Director 


 




     


     


    

 


[SIGNATURE PAGE TO CREDIT AGREEMENT
AMENDMENT]


 


IN WITNESS WHEREOF,
the parties hereto, by their Authorized Officers, have executed this Agreement as of the date first set forth above.


 


	 	COBANK, ACB
	 	 
	 	By:	/s/ Justin A. Barr
	 	Name: 	Justin A. Barr
	 	Title:	Vice President