pei_8k-051508.htm
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported)
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May
13,
2008
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PACIFIC ETHANOL,
INC.
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(Exact
name of registrant as specified in its charter)
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Delaware
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000-21467
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41-2170618
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(State
or other jurisdiction
of
incorporation)
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(Commission
File Number)
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(IRS
Employer
Identification
No.)
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400
Capitol Mall, Suite 2060
Sacramento,
California
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95814
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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(916)
403-2123
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(Former
name or former address, if changed since last
report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General
Instruction A.2. below):
o Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
o Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01. Entry
into a Material Definitive Agreement.
Forbearance
Agreement and Release dated as of May 12, 2008 by and among Kinergy Marketing,
LLC, Pacific Ethanol, Inc. and Comerica Bank
On May
13, 2008, Kinergy Marketing, LLC (“Kinergy”), a
wholly-owned subsidiary of Pacific Ethanol, Inc. (the “Company”), and the
Company, entered into a Forbearance Agreement and Release (the “Forbearance
Agreement”) dated as of May 12, 2008 with Comerica Bank (“Comerica”). The
Forbearance Agreement relates to a $25.0 million credit facility for Kinergy
under a Loan and Security Agreement dated August 17, 2007 between Kinergy and
Comerica (the “Loan
Agreement,” and together with all other related loan documents, the
“Loan
Documents”). Kinergy’s credit facility is described in more
detail under the heading “Loan Transaction” below.
The
Forbearance Agreement identifies certain existing defaults under the Loan
Agreement. The Forbearance Agreement provides that Comerica will
forbear for a period of time (the “Forbearance Period”)
commencing on May 12, 2008 and ending on the earlier to occur of (i) August 15,
2008, and (ii) the date that any new default occurs under the Loan Agreement or
a default occurs under the Forbearance Agreement, from exercising its rights and
remedies under the Loan Documents and applicable law on the terms and conditions
set forth in the Forbearance Agreement.
The
interest rate applicable to the credit facility during the Forbearance Period
increased to the Prime Rate as reported in The Wall Street Journal plus
2.50%. Kinergy is no longer entitled to advances under the Loan
Agreement based on the London Interbank Offered Rate (“LIBOR”). The
total credit limit under the Loan Agreement was reduced from a total of $25.0
million to $17.5 million. Kinergy’s borrowing base under the credit
facility, which, subject to the new credit limit of $17.5 million, determines
the amounts available for borrowing thereunder, is calculated by reference to
eligible accounts receivable and eligible inventory. Under the
Forbearance Agreement, amounts available for borrowing by reference to eligible
inventory were reduced from an aggregate of $14.0 million to an aggregate of
$7.6 million. During the Forbearance Period, Kinergy is required to
maintain tangible effective net worth of $2.9 million instead of $12.0 million,
as previously provided under the Loan Agreement, and Kinergy is required to
maintain debt to tangible effective net worth of 9.00:1.00 instead of 3.50:1.00,
as previously provided under the Loan Agreement. Kinergy is required
to provide to Comerica by June 30, 2008, a refinancing term sheet reasonably
satisfactory to Comerica from a third party lender for the refinancing of the
amounts owed under the Loan Agreement. Kinergy is required to remit
daily all cash proceeds from its operations to its operating accounts with
Comerica and all such proceeds are to be applied in accordance with the Loan
Agreement. The terms of the Forbearance Agreement have the practical
effect of limiting the Company’s ability to use credit facility funds as working
capital for general corporate purposes. Kinergy is also required to
cause its cumulative net loss for the period from April 1, 2008 through August
15, 2008 not to exceed $1.0 million (excluding noncash gains or losses on hedges
and other derivatives). The Forbearance Agreement also includes a
general release in favor of Comerica of any claims, whether known or unknown,
that Kinergy or the Company may have had against Comerica. Kinergy
was required to pay Comerica a forbearance fee of $100,000. The
Forbearance Agreement also includes customary representations and warranties and
other customary terms and conditions.
The
description of the Forbearance Agreement does not purport to be complete and is
qualified in its entirety by reference to the Forbearance Agreement, which is
filed as Exhibit 10.1 to this report and incorporated by reference
herein.
Reaffirmation
of Guaranty dated May 12, 2008 by Pacific Ethanol, Inc. in favor of Comerica
Bank
On May
13, 2008, the Company entered into a Reaffirmation of Guaranty (the “Reaffirmation”) dated
May 12, 2008 in favor of Comerica. The Reaffirmation confirmed the
Company’s Guaranty (the “Guaranty”) dated
August 17, 2007 in favor of Comerica under which the Company guaranteed
Kinergy’s obligations under the Loan Documents. The Reaffirmation
also removed the Company’s $10.0 million liability cap set forth in the Guaranty
such that the Company is now liable as a guarantor for all of Kinergy’s
obligations to Comerica.
The
description of the Reaffirmation does not purport to be complete and is
qualified in its entirety by reference to the Reaffirmation, which is filed as
Exhibit 10.2 to this report and incorporated by reference herein.
Loan
Transaction
Loan
and Security Agreement dated August 17, 2007 by and between Kinergy Marketing,
LLC and Comerica Bank
First
Amendment to Loan and Security Agreement dated as of August 29, 2007 by and
between Kinergy Marketing, LLC and Comerica Bank
On or
around August 17, 2007, Kinergy entered into the Loan Agreement dated as of
August 17, 2007 with Comerica. In addition, on or around August 29,
2007, Kinergy entered into a First Amendment to Loan and Security Agreement (the
“Amendment”)
dated as of August 29, 2007 with Comerica. The Loan Agreement has
been further amended by the Forbearance Agreement, as discussed
above.
The Loan
Agreement provided for a revolving line of credit in an amount of up to $25.0
million. Borrowings under the Loan Agreement accrued interest at the
Prime Rate of interest as published in The Wall Street Journal,
minus 0.50%; or at LIBOR, plus 1.35%. The credit facility’s maturity
date was July 1, 2009. Kinergy’s borrowing base under the credit
facility, which, subject to the credit limit of $25.0 million, determined the
amounts available for borrowing thereunder, was calculated by reference to
eligible accounts receivable and eligible inventory. Under the Loan
Agreement, amounts available for borrowing by reference to eligible inventory
were limited to an aggregate of $14.0 million. Kinergy was permitted
to repay and reborrow amounts borrowed under the credit facility at any time
during the term of the facility. Interest only was due and payable
monthly during the term of the credit facility. Kinergy was permitted
to use funds borrowed under the credit facility for working capital purposes
and/or to make distributions to the Company. Kinergy’s obligations
under the Loan Agreement are secured by substantially all of its assets, subject
to certain customary exclusions and permitted liens. Kinergy’s
financial covenants under the Loan Agreement were to maintain (i) a ratio of
current assets to current liabilities of at least 1.25:1.00, (ii) working
capital of at least $12.0 million, (iii) tangible effective net worth of at
least $12.0 million, and (iv) debt to tangible effective net worth of no greater
than 3.50:1.00. The Loan Agreement also includes customary
representations and warranties and other customary terms and
conditions.
The
Amendment extended the scope of the inventory borrowing base under the Loan
Agreement to cover bio-diesel inventory with a value up to $1.0 million. The
Amendment also increased the letter of credit sublimit under the Loan Agreement
from $2.0 million to $6.0 million.
The
descriptions of the Loan Agreement and the Amendment do not purport to be
complete and are qualified in their entireties by reference to the Loan
Agreement and the Amendment, which are filed as Exhibits 10.3 and 10.4,
respectively, to this report and incorporated by reference herein.
Guaranty
dated August 17, 2007 by Pacific Ethanol, Inc. in favor of Comerica
Bank
On or
about August 17, 2007, the Company executed the Guaranty dated August 17, 2007
in favor of Comerica under which the Company guaranteed all of Kinergy’s
obligations to Comerica, including under all Loan Documents, subject to a total
liability cap in the amount of $10.0 million. The Guaranty also
includes customary representations and warranties and other customary terms and
conditions.
The
description of the Guaranty does not purport to be complete and is qualified in
its entirety by reference to the Guaranty, which is filed as Exhibit 10.5 to
this report and incorporated by reference herein.
Item
2.02
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Results
of Operations and Financial
Condition.
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On May
19, 2008, the Company issued a press release announcing certain results of
operations for the three months ended March 31, 2008. A copy of the
press release is furnished (not filed) as Exhibit 99.1 to this Current Report on
Form 8-K and is incorporated herein by reference.
Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
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The
disclosures contained in Item 1.01 of this Current Report on Form 8-K are
incorporated herein by this reference.
Item
9.01.
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Financial
Statements and Exhibits.
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(a) Financial statements of
businesses acquired. Not applicable.
(b) Pro forma financial
information. Not applicable.
(c) Shell company
transactions. Not applicable.
(c) Exhibits.
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10.1
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Forbearance
Agreement and Release dated as of May 12, 2008 by and among Kinergy
Marketing, LLC, Pacific Ethanol, Inc. and Comerica Bank
(*)
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10.2
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Reaffirmation
of Guaranty dated May 12, 2008 by Pacific Ethanol, Inc. in favor of
Comerica Bank (*)
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10.3
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Loan
and Security Agreement dated as of August 17, 2007 by and between Kinergy
Marketing, LLC and Comerica Bank
(*)
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10.4
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First
Amendment to Loan and Security Agreement dated as of August 29, 2007 by
and between Kinergy Marketing, LLC and Comerica Bank
(*)
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10.5
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Guaranty
dated August 17, 2007 by Pacific Ethanol, Inc. in favor of Comerica Bank
(*)
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99.1
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Press
Release dated May 19, 2008 (*)
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: May
19, 2008
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PACIFIC
ETHANOL, INC.
By:
/S/ JOSEPH W.
HANSEN
Joseph
W. Hansen
Chief
Financial Officer
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EXHIBITS
FILED WITH THIS REPORT
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10.1
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Forbearance
Agreement and Release dated as of May 12, 2008 by and among Kinergy
Marketing, LLC, Pacific Ethanol, Inc. and Comerica
Bank
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10.2
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Reaffirmation
of Guaranty dated May 12, 2008 by Pacific Ethanol, Inc. in favor of
Comerica Bank
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10.3
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Loan
and Security Agreement dated as of August 17, 2007 by and between Kinergy
Marketing, LLC and Comerica Bank
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10.4
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First
Amendment to Loan and Security Agreement dated as of August 29, 2007 by
and between Kinergy Marketing, LLC and Comerica
Bank
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10.5
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Guaranty
dated August 17, 2007 by Pacific Ethanol, Inc. in favor of Comerica
Bank
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99.1
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Press
Release dated May 19, 2008
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-7-