Exhibit 10.1





 


EXECUTION COPY


 


CONFIDENTIAL


 


FIRST AMENDMENT TO MEMBERSHIP INTEREST
PURCHASE AGREEMENT


 


This FIRST AMENDMENT
TO MEMBERSHIP INTEREST PURCHASE AGREEMENT (this “Amendment”), dated as of March 17, 2020, is made and entered
into by and among PACIFIC ETHANOL CENTRAL, LLC, a Delaware limited liability company (the “Seller”), PACIFIC
AURORA, LLC, a Delaware limited liability company (the “Company”), and AURORA COOPERATIVE ELEVATOR COMPANY,
a Nebraska cooperative company (“Buyer”). Seller, the Company and Buyer are sometimes referred to herein, individually,
as a “Party” and, collectively, as the “Parties”.


 


RECITALS


 


WHEREAS, the Parties
entered into that certain Membership Interest Purchase Agreement dated as of February 28, 2020 (the “Agreement”),
pursuant to which Buyer will purchase from Seller, and Seller will sell to Buyer, all of the Company Interests, subject to and
in accordance with the terms of the Agreement; and


 


WHEREAS, the Parties
now desire to amend certain provision of the Agreement relating to the Transition Services Agreement, the Seller Financing, and
the Closing.


 


NOW THEREFORE, in consideration
of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein
contained, the Parties hereby agree as follows:


 


1. Definitions.
Except as otherwise expressly provided herein, all capitalized terms used in this Amendment and not defined herein shall have the
respective meanings ascribed thereto in the Agreement.


 


2. Amendments
to Agreement. The Agreement is hereby amended as follows:


 


(a) Certain
Definitions. The definitions of (i) “Seller Deed of Trust (Negotiable Note)”, (ii) “Seller Deed of Trust
(Non-Negotiable Note)”, (iii) “Seller Negotiable Note” and (iv) “Seller Non-Negotiable Note” in Article
1 of the Agreement are each amended by deleting “Buyer” and replacing “Company” in substitution therefor.


 


(b) Transition
Services. Section 6.12 of the Agreement is amended by deleting “March 17, 2020” and replacing “March 31,
2020” in substitution therefor.


 


3. Extension
of Target Closing Date. The Parties acknowledge, agree and confirm that pursuant to Section 12.1(b) of the Agreement, the Target
Closing Date is hereby extended to March 31, 2020.


 


4. References to
Agreement. All references in the Agreement to “this Agreement” shall be deemed to refer to the Agreement as amended
hereby, and any and all references in any of the Ancillary Agreements to the Agreement shall be deemed to refer to the Agreement
as amended hereby; provided, however, references to “the date of this Agreement”, “the date hereof”
and similar references shall continue to refer to the original date of the Agreement and not to the date of this Amendment. 


 



     


     


    




 


5. Ratification;
Continuing Effect of the Agreement. This Amendment shall only amend and modify the Agreement to the extent specifically provided
herein. In all other respects, the Agreement is hereby ratified and confirmed and remains in full force and effect and shall not
be altered by any provisions herein contained. In the event of any conflict or inconsistency between the provisions of the Agreement
and the provisions of this Amendment, the provisions of this Amendment shall control.


 


6. Representations
and Warranties. Each Party hereto represents and warrants that (a) it is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization; (b) it has full power and authority to enter into this Amendment and to
perform its obligations hereunder; (c) the execution and delivery of this Amendment by it and the performance by it of its obligations
hereunder have been duly and validly authorized by all necessary action; and (d) it has not relied on any representation, warranty,
covenant, understanding, agreement, written or oral, discussions, or negotiation not expressly contained herein or in the Agreement
in entering into this Amendment.


 


7. No
Third-Party Beneficiaries. Except as expressly provided herein, this Amendment shall not confer any rights or remedies upon
any Person other than the Parties and their respective successors and permitted assigns.


 


8. Entire
Agreement. This Amendment and the Agreement (including the documents and the instruments referred to therein) shall together
constitutes the entire agreement among the Parties and shall supersede any prior understandings, agreements, or representations
by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.


 


9. Successors
and Assigns. Subject to Section 13.3 of the Agreement, this Amendment shall be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective successors and permitted assigns.


 


10. Counterparts.
This Amendment may be executed in any number of counterparts, and by the different Parties in separate counterparts, each of which
when executed shall be deemed an original, but all of which shall be considered one and the same agreement, and shall become effective
when each Party has received counterparts signed by each of the other Parties, it being understood and agreed that delivery of
a signed counterpart signature page to this Amendment by facsimile transmission, by electronic mail in portable document format
(“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance
of a document shall constitute valid and sufficient delivery thereof.


 


11. Headings.
The title of and the section and paragraph headings contained in this Amendment are inserted for convenience only and shall not
affect in any way the meaning or interpretation of any of the terms or provisions of this Amendment.


 






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12. Further
Amendments; Waiver. Subject to applicable Law, this Amendment may not be amended, modified or supplemented except by an instrument
in writing signed by the Parties. Any agreement on the part of a Party to any waiver of any of the provisions of this Amendment
shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any Party to this Amendment
to assert any of its rights under this Amendment or otherwise shall not constitute a waiver of such rights, nor shall any single
or partial exercise of any such rights preclude any other or further exercise thereof.


 


13. Severability.
If any term, provision, covenant or restriction of this Amendment is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the remainder of the terms, provisions, covenants and restrictions
of this Amendment shall nevertheless remain in full force and effect and shall in no way be affected, impaired or invalidated.
Upon such determination that any term, provision, covenant or restriction is invalid, illegal, void, unenforceable or against regulatory
policy, the Parties shall negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as
closely as possible in an acceptable manner in order that the transactions contemplated by this Amendment are consummated as originally
contemplated to the greatest extent possible.


 


14. Construction.
The Parties have participated jointly in the negotiation and drafting of this Amendment. In the event an ambiguity or question
of intent or interpretation arises, this Amendment shall be construed as if drafted jointly by the Parties and no presumption or
burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Amendment.


 


[Signature Page Follows]


 






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IN WITNESS WHEREOF,
the Parties have executed this First Amendment to Membership Interest Purchase Agreement on the date first above written.


 





	 	SELLER:
	 	 
	 	PACIFIC ETHANOL CENTRAL, LLC,
	 	a Delaware limited liability company



 


	 	By:	/s/ Neil M. Koehler
	 	Name: 	Neil M. Koehler
	 	Title	Chief Executive Officer



 


	 	COMPANY:
	 	 
	 	PACIFIC AURORA, LLC,
	 	a Delaware limited liability company



 


	 	By:	/s/ Neil M. Koehler
	 	Name: 	Neil M. Koehler
	 	Title	Chief Executive Officer



 


	 	BUYER:
	 	 
	 	AURORA COOPERATIVE ELEVATOR COMPANY, a Nebraska cooperative corporation



 


	 	By:	/s/ Christopher J. Vincent
	 	Name: 	Christopher J. Vincent
	 	Title:	Chief Executive Officer




  





Signature
Page To First Amendment To Membership Interest Purchase Agreement