exv10w1






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 shall be governed by and construed in accordance with the laws of
the State of New York, without regard to the conflict of law provisions thereof (other than
Section 5.1401 of the General Obligations Law and any successor statute thereto).




     (d) Except as expressly modified or amended herein, the Financing Agreement and the
Disbursement Agreement shall each continue in effect and shall continue to bind the parties
thereto.




     (e) This Amendment shall not constitute a waiver or modification of any of the Lenders’
or Agents’ rights and remedies or of any of the terms, conditions, warranties,
representations, or covenants contained in the Financing Documents, except as specifically
set forth above, and the Lenders and the Administrative Agent hereby reserve all of their
rights and remedies pursuant to the Financing Documents and applicable law.




     (f) This Amendment may be executed in any number of counterparts and by the different
Parties hereto in separate counterparts, each of which when so executed and delivered will
be deemed an original and all of which counterparts, taken together, will constitute one and
the same instrument.




     (g) As a material part of the consideration for the Administrative Agent and the
Lenders entering into this Waiver, the Borrower, on behalf of itself and its officers,
directors, equity holders, Affiliates, successors and assigns, hereby releases and forever
discharges each of the Secured Parties (other than any Lender or other Secured Party that
failed to make their Pro Rata Share of the Borrowings of Tranche B Term Loans requested by
the Notices of Borrowing dated September 4, 2008 and November 21, 2008 available to the
Administrative Agent) and their respective predecessors, officers, managers, directors,
shareholders, employees, agents, attorneys, representatives, subsidiaries, and Affiliates
(each a “Lender Party”) from any and all Claims or other losses or liabilities of
any nature whatsoever existing on the date hereof, including, without limitation, all
Claims, losses or liabilities for or in respect of contribution and indemnity, whether
arising at law or in equity, whether liability be direct or indirect, liquidated or
unliquidated, whether absolute or contingent, foreseen or unforeseen, and whether or not
heretofore asserted, which the Borrower may have or claim to have against any Lender Party
under, arising out of, in connection with, or in any way related
to, this Waiver or any other Financing Documents. For the avoidance of doubt, the
provisions of this clause (g) shall survive any termination of this Amendment.



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     (h) As of the date hereof: (i) the aggregate outstanding principal amount of
(A) Tranche A Term Loans is $63,100,000, (B) Tranche B Term Loans is $1,874,725.98, and
(C) Working Capital Loans is $0; and (ii) the aggregate undrawn face amount of the Letter of
Credit is $51,452,055. Interest and fees have accrued on the Loans and Letter of Credit as
provided in the Financing Agreement.



[Signatures follow]




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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.



	 	 	 	 	 	 	 
	 	 	PANDA HEREFORD ETHANOL, L.P., as Borrower	 	 
	 
	 	 	 	 	 	 
	 	 	By: PHE I, LLC, its sole general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Natasha Ray	 	 
	 

	 	Name:
	 	 

Natasha Ray
	 	 
	 

	 	Title:
	 	 
CFO/Treasurer	 	 
	 

	 	 
	 	 
 	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	SOCIÉTÉ GÉNÉRALE, as Administrative Agent, Disbursement Agent and a Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. Wayne Hutton	 	 
	 

	 	Name:
	 	 

R. Waynes Hutton
	 	 
	 

	 	Title:
	 	 
Managing Director	 	 
	 

	 	 
	 	 
 	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	AMMC CLO III, LIMITED
	 
	 	 	 	 	 	 
	 

	 	By:
	 	American Money Management Corp.,	 	 
	 

	 	 	 	As Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth J. Bushman	 	 
	 

	 	Name:
	 	 

Kenneth J. Bushman
	 	 
	 

	 	Title:
	 	 

Vice President
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	AMMC CLO IV, LIMITED
	 
	 	 	 	 	 	 
	 

	 	By:
	 	American Money Management Corp.,	 	 
	 

	 	 	 	As Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth J. Bushman	 	 
	 

	 	Name:
	 	 

Kenneth J. Bushman
	 	 
	 

	 	Title:
	 	 

Vice President
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	AMMC CLO V, LIMITED
	 
	 	 	 	 	 	 
	 

	 	By:
	 	American Money Management Corp.,	 	 
	 

	 	 	 	As Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth J. Bushman	 	 
	 

	 	Name:
	 	 

Kenneth J. Bushman
	 	 
	 

	 	Title:
	 	 

Vice President
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	AMMC CLO VI, LIMITED
	 
	 	 	 	 	 	 
	 

	 	By:
	 	American Money Management Corp.,	 	 
	 

	 	 	 	As Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth J. Bushman	 	 
	 

	 	Name:
	 	 

Kenneth J. Bushman
	 	 
	 

	 	Title:
	 	 

Vice President
 

	 	  






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	GREAT AMERICAN INSURANCE COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:
	 	American Money Management Corp.,	 	 
	 

	 	 	 	as Portfolio Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth J. Bushman	 	 
	 

	 	Name:
	 	 

Kenneth J. Bushman
	 	 
	 

	 	Title:
	 	 

Vice President
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	GREAT AMERICAN LIFE INSURANCE COMPANY
	 
	 	 	 	 	 	 
	 

	 	By:
	 	American Money Management Corp.,	 	 
	 

	 	 	 	as Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Kenneth J. Bushman	 	 
	 

	 	Name:
	 	 

Kenneth J. Bushman
	 	 
	 

	 	Title:
	 	 

Senior Vice President
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Heather L. Harper	 	 
	 

	 	Name:
	 	 

Heather L. Harper
	 	 
	 

	 	Title:
	 	 

Vice President
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	BRENTWOOD CLO LTD., as Lender
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Highland Capital Management, L.P.,	 	 
	 

	 	 	 	as Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Strand Advisors, Inc.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Pusateri	 	 
	 

	 	Name:
	 	 

Michael Pusateri
	 	 
	 

	 	Title:
	 	 

Chief Operating Officer
	 	 
	 

	 	 	 	 

	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	ROCKWALL CDO II, LTD.
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Highland Capital Management, L.P.,	 	 
	 

	 	 	 	as Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Strand Advisors, Inc.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael Pusateri	 	 
	 

	 	Name:
	 	 

Michael Pusateri
	 	 
	 

	 	Title:
	 	 

Chief Operating Officer
	 	 
	 

	 	 	 	 

	 	 







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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	KFW IPEX-BANK GMBH, as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Josef Bellman
 

Josef Bellman 

	 	 
	 

	 	Title:
	 	First Vice President 
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Matthias Krisch	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Matthias Krisch 
	 	 
	 

	 	Title:
	 	Vice President 
	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	LOAN FUNDING VII LLC, as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Highland Capital Management, L.P.,	 	 
	 

	 	 	 	as Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Strand Advisors, Inc.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Michael Pusateri
 

Michael Pusateri 

	 	 
	 

	 	Title:
	 	Chief Operating Officer 
	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	GRAND CENTRAL ASSET TRUST, HLD SERIES, 
as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Ron Hykal
 

Ron Hykal 

	 	 
	 

	 	Title:
	 	Attorney-in-Fact 
	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	GRAYSON CLO, LTD., as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Highland Capital Management, L.P.,	 	 
	 

	 	 	 	as Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Strand Advisors, Inc.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Michael Pusateri
 

Michael Pusateri 

	 	 
	 

	 	Title:
	 	Chief Operating Officer 
	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	NEDBANK LIMITED, as Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ D. McDonnell
 

	 	 
	 

	 	Name:
	 	D. McDonnell 
	 	 
	 

	 	Title:
	 	Authorized Officer	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ S. Orton	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	S. Orton 
	 	 
	 

	 	Title:
	 	Authorized Officer 
	 	 






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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to Waiver to Depositary and
Disbursement Agreement to be duly executed and delivered by their respective officers on the date
first written above.




	 	 	 	 	 	 	 
	 	 	WESTCHESTER CLO, LTD.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Highland Capital Management, L.P.,	 	 
	 

	 	 	 	as Collateral Manager	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	Strand Advisors, Inc.,	 	 
	 

	 	 	 	its General Partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Michael Pusateri
 

Michael Pusateri 

	 	 
	 

	 	Title:
	 	Chief Operating Officer 
	 	 







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