CREDIT AGREEMENT dated as of February 27, 2007

 

 

EXHIBIT 3.05

to Credit Agreement

 

[FORM OF]

INTEREST PERIOD NOTICE

 

WestLB AG, New York Branch,

as Administrative Agent for the Lenders

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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇

Facsimile: ▇▇▇-▇▇▇-▇▇▇▇

Email: ny_agency ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

 

Re:	PACIFIC ETHANOL HOLDING CO. LLC, PACIFIC ETHANOL MADERA LLC, PACIFIC ETHANOL COLUMBIA, LLC, PACIFIC ETHANOL STOCKTON, LLC, PACIFIC ETHANOL IMPERIAL, LLC, AND PACIFIC ETHANOL MAGIC VALLEY, LLC

 

Ladies and Gentlemen:

 

The undersigned, PACIFIC ETHANOL HOLDING CO. LLC, PACIFIC ETHANOL MADERA LLC, PACIFIC ETHANOL COLUMBIA, LLC, PACIFIC ETHANOL STOCKTON, LLC, PACIFIC ETHANOL IMPERIAL, LLC, and PACIFIC ETHANOL MAGIC VALLEY, LLC (collectively, the "Borrowers"), refer to the Credit Agreement, dated as of February __, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the "Credit Agreement") among the Borrowers, PACIFIC ETHANOL HOLDING CO. LLC, as Borrowers' Agent, each of the Lenders from time to time party thereto, WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the Lenders, WESTLB AG, NEW YORK BRANCH, as Collateral Agent for the Senior Secured Parties, UNION BANK OF CALIFORNIA, N.A., as Accounts Bank, WESTLB AG, NEW YORK BRANCH, as Lead Arranger and Sole Bookrunner, MIZUHO CORPORATE BANK, LTD., as Lead Arranger and Co-Syndication Agent, CIT CAPITAL SECURITIES LLC, as Lead Arranger and Co-Syndication Agent, COOPERATIEVE CENTRALE RAIFFEISEN­BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent, and BANCO SANTANDER CENTRAL HISPANO S.A, NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Credit Agreement.

 

 

 

 

3.05 - 1

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The Borrowers hereby deliver to the Administrative Agent this irrevocable notice pursuant to Section 3.05 of the Credit Agreement and irrevocably request the duration set forth below for the immediately succeeding Interest Period for the Loans identified herein.

 

[The Borrowers hereby elect to continue Eurodollar Loans as Eurodollar Loans for the next Interest Period applicable to such continued Eurodollar Loans] [[,] to convert Base Rate Loans to Eurodollar Loans at the end of the current Quarterly Period [and] [to convert Eurodollar Loans to Base Rate Loans at the end of the current Interest Period for such Eurodollar Loans], in each case as set forth on Schedule 1 hereto.

 

The Borrowers hereby certify that this Interest Period Notice is being delivered [prior to the Conversion Date and, after giving effect to the immediately succeeding Interest Periods set forth on Schedule 1, there will be no more than seven (7) separate Eurodollar Loans outstanding] [on and after the Conversion Date and, after giving effect to the immediately succeeding Interest Periods set forth on Schedule 1, there will be no more than four (4) separate Eurodollar Loans outstanding].

 

In connection herewith, the Borrowers hereby further certify that no Event of Default has occurred and is continuing. This Interest Period Notice is being delivered on or before 12:00 noon. New York City time at least four (4) Business Days prior to the end of each Interest Period set forth on Schedule 1 hereto.

 

[The remainder of this page is intentionally blank. The next page is the signature page.]

 

 

 

 

 

 

3.05 - 2

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IN WITNESS WHEREOF, the undersigned have caused this Interest Period Notice to be duly executed by an Authorized Officer as of the date first above written.

 

 

PACIFIC ETHANOL HOLDING CO, LLC

 

 

By: ________________________

Name:

Title:

 

 

PACIFIC ETHANOL MADERA, LLC

 

By: ________________________

Name:

Title:

 

 

PACIFIC ETHANOL COLUMBIA, LLC

 

By: ________________________

Name:

Title:

 

 

PACIFIC ETHANOL STOCKTON, LLC

By: ________________________

Name:

Title:

 

 

 

 

 

 

3.05 - 3

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PACIFIC ETHANOL IMPERIAL, LLC

 

By: ________________________

Name:

Title:

 

 

PACIFIC ETHANOL MAGIC VALLEY, LLC

 

By: ________________________

Name:

Title:

 

 

 

 

 

 

 

 

 

3.05 - 4

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Schedule 1

to Interest Period Notice

 

LOAN (specify loan type, including whether loan is Base Rate Loan or Eurodollar Loan, and tranche)	PRINCIPAL AMOUNT	CURRENT INTEREST PERIOD DURATION (for Eurodollar Loans only)	CURRENT INTEREST PERIOD OR QUARETERLY PERIOD ENDS ON	DURATION OF IMMEDIATELY SUCCEEDING INTEREST PERIOD' (for Eurodollar Loans only)
	$
	$

 

 

 

 

 

 

 

 

________

1 At the Borrowers' election, the duration of such Interest Period shall be either one (1), two (2), three (3) or six (6) months.

 

 

 

3.05 - 5

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EXHIBIT 4.07

to Credit Agreement

 

FORM OF NON-U.S. LENDER STATEMENT

 

Reference is made to the Credit Agreement (as amended, modified or otherwise supplemented from time to time in accordance with its terms, the "Credit  Agreement"), dated as of February [__], 2007, by and among PACIFIC ETHANOL HOLDING CO. LLC, a Delaware limited liability company, PACIFIC ETHANOL MADERA LLC, a Delaware limited liability company, PACIFIC ETHANOL COLUMBIA, LLC, a Delaware limited liability company, PACIFIC ETHANOL STOCKTON, LLC, a Delaware limited liability company, PACIFIC ETHANOL IMPERIAL, LLC, a Delaware limited liability company and PACIFIC ETHANOL MAGIC VALLEY, LLC, a Delaware limited liability company, as Borrowers, PACIFIC ETHANOL HOLDING CO. LLC, as Borrowers' Agent, each of the Lenders from time to time party thereto, WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the Lenders, WESTLB AG, NEW YORK BRANCH, as Collateral Agent for the Senior Secured Parties, UNION BANK OF CALIFORNIA, N.A., as Accounts Bank, WESTLB AG, NEW YORK BRANCH, as Lead Arranger and Sole Bookrunner, MIZUHO CORPORATE BANK, LTD., as Lead Arranger and Co-Syndication Agent, CIT CAPITAL SECURITIES LLC, as Lead Arranger and Co-Syndication Agent, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent, and BANCO SANTANDER CENTRAL HISPANO S.A, NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings set forth in the Credit Agreement.

 

The undersigned Non-U.S. Lender hereby certifies as follows:

 

1. The Non-U.S. Lender is the beneficial owner of any and all interests in the Obligations that it holds.

 

2. The Non-U.S. Lender is not a "United States person" as defined in Code Section 7701(a)(30). Code Section 7701(a)(30) defines a United States person as a citizen or resident of the United States; a domestic partnership; a domestic corporation; an estate (other than a foreign estate); and a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust.

 

 

 

 

 

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3. The Non-U.S. Lender is not a "bank" described in Section 881(c)(3)(A) of the Code.

 

4. The Non-U.S. Lender undertakes to notify the Borrowers and Administrative Agent promptly upon the obsolescence or invalidity of this Non-U.S. Lender Statement if, following the execution date hereof, any statement herein ceases to be true at any time while the Non-U.S. Lender is entitled to payments of interest by the Borrowers under the Financing Documents.

 

The undersigned Non-U.S. Lender acknowledges that this Non-U.S. Lender Statement is executed and delivered in order to substantiate its entitlement to an exemption from U.S. withholding tax under the Code. Further, the undersigned individual certifies that it has the requisite authority to execute and deliver this document for the Non-U.S. Lender.

 

 

 

[NAME OF NON-U.S. LENDER]

 

By: ________________________

 

Print Name:

Title:

Date:

 

 

 

 

 

 

 

 

 

 

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EXHIBIT 6.01(k)

to Credit Agreement

 

INSURANCE CONSULTANT'S CERTIFICATE

 

 

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[DATE]

 

WestLB AG, New York Branch,

as Administrative Agent for the Lenders

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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇

Facsimile: ▇▇▇-▇▇▇-▇▇▇▇

Email: ny_agency ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

 

Re:	PACIFIC ETHANOL HOLDING CO. LLC, PACIFIC ETHANOL MADERA LLC, PACIFIC ETHANOL COLUMBIA, LLC, PACIFIC ETHANOL STOCKTON, LLC, PACIFIC ETHANOL IMPERIAL, LLC, AND PACIFIC ETHANOL MAGIC VALLEY, LLC

 

 

Ladies and Gentlemen:

 

The undersigned has acted as Insurance Consultant for the Lenders with respect to PACIFIC ETHANOL HOLDING CO. LLC ("Pacific Holding"), a Delaware limited liability company, PACIFIC ETHANOL MADERA LLC ("Madera"), a Delaware limited liability company, PACIFIC ETHANOL COLUMBIA, LLC ("▇▇▇▇▇▇▇▇"), a Delaware limited liability company, PACIFIC ETHANOL STOCKTON, LLC ("Stockton"), a Delaware limited liability company, PACIFIC ETHANOL IMPERIAL, LLC ("▇▇▇▇▇▇▇"), a Delaware limited liability company and PACIFIC ETHANOL MAGIC VALLEY, LLC ("Burley"), a Delaware limited liability company (together, the "Borrowers") in connection with that certain Credit Agreement (as amended, supplemented or otherwise modified from time to time, the  "Credit Agreement") ,dated as of February __, 2007, by and among the Borrowers, PACIFIC ETHANOL HOLDING CO. LLC, as Borrowers' Agent, each of the Lenders from time to time party thereto, WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the Lenders, WESTLB AG, NEW YORK BRANCH, as Collateral Agent for the Senior Secured Parties, UNION BANK OF CALIFORNIA, N.A., as Accounts Bank, WESTLB AG, NEW YORK BRANCH, as Lead

 

 

 

6.01(k) - 1

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Arranger and Sole Bookrunner, MIZUHO CORPORATE BANK, LTD., as Lead Arranger and Co-Syndication Agent, CIT CAPITAL SECURITIES LLC, as Lead Arranger and Co-Syndication Agent, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent, and BANCO SANTANDER CENTRAL HISPANO S.A, NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent. Capitalized terms used herein but not defined herein shall have the respective meanings assigned to such terms in the Credit Agreement.

 

The Insurance Consultant acknowledges that pursuant to the Credit Agreement, the Lenders will be providing financing to the Borrowers for the construction of the Project and in so doing will be relying on this certificate and the Insurance Consultant's report dated [___________]. The Insurance Consultant certifies that attached hereto as Exhibit A is a true, correct and complete copy of such report, and that such report represents the Insurance Consultant's professional opinion as of the date thereof. Further, since the date of the aforementioned Insurance Consultant's report, nothing has come to our attention that would cause us to change that report.

 

The Insurance Consultant hereby further certifies to the Administrative Agent that:

 

(i)

[except as set forth in Exhibit B attached hereto,1 [the Borrowers have]] [[Madera] [▇▇▇▇▇▇▇▇/ [Stockton] [▇▇▇▇▇▇▇] [▇▇▇▇▇▇] [has]]2 evidenced all insurance binders required pursuant to and in accordance with Section 7.01(h) of the Credit Agreement, and its [insurance broker] [insurance carrier] has executed a letter confirming that all such insurance policies are in full force and effect;

 

(ii)

[the deficiencies with respect to the insurance for the [Madera] [▇▇▇▇▇▇▇▇] [Stockton] [▇▇▇▇▇▇▇] [▇▇▇▇▇▇] Plant identified in the Insurance Consultant's report delivered on the Closing Date have been satisfactorily addressed;] 3 and

 

(iii)

each such insurance policy is placed with insurance carriers with an AM Best, A "X" or equivalent credit rating or are otherwise acceptable to the Insurance Consultant;

 

 

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1 To be included (if applicable) only at closing.

 

2 For the first Funding for each Plant, only the applicable Plant will be covered.

 

3 Only applicable for the first Funding for that Plant.

 

 

 

6.01(k) - 2

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The Borrowers' [insurance broker] [insurance carrier] has evidenced binders and has confirmed that:

 

·	each such insurance policy has been endorsed with the Administrative Agent and the Senior Secured Parties as Additional Insured and First Loss Payee (where applicable);

 

·	each such insurance policy permits a waiver of subrogation for the benefit of the Senior Secured Parties;

 

·	each such insurance policy is primary (without contribution from any other policies the Senior Secured Parties may hold);

 

·	each such insurance policy (where legally allowed) contains non-vitiation language to ensure such insurance policy will remain in full force and effect for the benefit of the Senior Secured Parties;

 

·	each such insurance policy contains a non-invalidation endorsement that provides the ability (but not the obligation) for the Senior Secured Parties to pay premium and continue coverage in the event that any Borrower fails to make premium payments; and

 

·	each such insurance policy provides a minimum of 30-days' written notice of cancellation to Administrative Agent, except for cancellation based on non­payment of premium which provides for 10 days' prior written notice.

 

It is our opinion that on the basis of the binders and information evidenced to us by the Borrowers and its [insurance broker] [insurance carrier], the insurance evidenced is in compliance with the material insurance requirements of the Project Documents and with the requirements of the Credit Agreement [other than as noted on Exhibit B hereto].

 

A copy of the Borrowers' [insurance broker's] [insurance carrier's] certificate confirming the matters set forth above is attached hereto as Exhibit C.

 

[The remainder of this page is intentionally blank. The next page is the signature page.]

 

 

 

 

6.01(k) - 3

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IN WITNESS WHEREOF, the undersigned has caused this Insurance Consultant's Certificate to be duly executed by an authorized officer as of the date first above written.

 

 

 

▇▇▇▇▇-▇▇▇▇▇▇, LLC

 

 

 

By: ____________________________

Name:

Title:

 

 

 

 

 

 

 

 

 

 

 

6.01(k) - 4

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EXHIBIT A

to Insurance Consultant's Certificate

 

INSURANCE CONSULTANT'S REPORT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.01(k) - 5

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EXHIBIT B

to Insurance Consultant's Certificate

 

 

 

 

INSURANCE DEFICIENCIES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.01(k) - 6

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EXHIBIT C

to Insurance Consultant's Certificate

 

CERTIFICATE OF BORROWERS' [INSURANCE BROKER] [INSURANCE CARRIER]

 

 

To: [Insurance Consultant]

 

WestLB AG, New York Branch,

as Administrative Agent for the Lenders

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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇▇ ▇▇▇▇▇▇

Facsimile: ▇▇▇-▇▇▇-▇▇▇▇

Email: ny_agency ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇

 

The undersigned has acted as [insurance broker] [insurance carrier] for PACIFIC ETHANOL HOLDING CO. LLC ("Pacific Holding"), a Delaware limited liability company, PACIFIC ETHANOL MADERA LLC ("Madera"), a Delaware limited liability company, PACIFIC ETHANOL COLUMBIA, LLC ("▇▇▇▇▇▇▇▇"), a Delaware limited liability company, PACIFIC ETHANOL STOCKTON, LLC ("Stockton"), a Delaware limited liability company, PACIFIC ETHANOL IMPERIAL, LLC ("▇▇▇▇▇▇▇"), a Delaware limited liability company and PACIFIC ETHANOL MAGIC VALLEY, LLC ("Burley"), a Delaware limited liability company (together, the "Borrowers") in connection with that certain Credit Agreement (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), dated as of February __, 2007, by and among the Borrowers, PACIFIC ETHANOL HOLDING CO. LLC, as Borrowers' Agent, each of the Lenders from time to time party hereto, WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the Lenders, WESTLB AG, NEW YORK BRANCH, as Collateral Agent for the Senior Secured Parties, UNION BANK OF CALIFORNIA, N.A.,, as Accounts Bank, WESTLB AG, NEW YORK BRANCH, as Lead Arranger and Sole Bookrunner, MIZUHO CORPORATE BANK, LTD., as Lead Arranger and Co-Syndication Agent, CIT CAPITAL SECURITIES LLC, as Lead Arranger and Co-Syndication Agent, COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent, and BANCO SANTANDER CENTRAL HISPANO S.A, NEW YORK BRANCH, as Lead Arranger and Co-Documentation Agent. Capitalized terms used herein but not defined herein shall have the respective meanings assigned to such terms in the Credit Agreement.

 

 

 

 

 

 

 

 

6.01(k) - 7

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[OPTION A:]4 [The undersigned confirms that:

 

(i)	[except as set forth in Exhibit B attached hereto, the Borrowers have]5 [[Madera] [▇▇▇▇▇▇▇▇] [Stockton] [▇▇▇▇▇▇▇] [▇▇▇▇▇▇] [has]16 evidenced all insurance binders required pursuant to and in accordance with Section 7.01(h) of the Credit Agreement;

 

(ii)	all premiums due and payable with respect to each such insurance policy have been paid or that Borrowers are not in arrears on any such premium due;

 

(iii)

each such insurance policy is placed with insurance carriers with an AM Best, A "X" or equivalent credit rating or as otherwise set forth on Annex A hereto;

 

(iv)	each such insurance policy has been endorsed with the Administrative Agent and the Senior Secured Parties as Additional Insured and First Loss Payee (where applicable);

 

(v)	each such insurance policy permits a waiver of subrogation for the benefit of the Senior Secured Parties;

 

(vi)	each such insurance policy is primary (without contribution from any other policies the Senior Secured Parties may hold);

 

(vii)

each such insurance policy (where legally allowed) contains non-vitiation language to ensure such insurance policy will remain in full force and effect for the benefit of the Senior Secured Parties;

 

(viii)

each such insurance policy contains a non-invalidation endorsement that provides the ability (but not the obligation) for the Senior Secured Parties to pay premium and continue coverage in the event that any Borrower fails to make premium payments; and

 

(ix)	each such insurance policy provides a minimum of 30-days' written notice of cancellation to Administrative Agent, except for cancellation based on non-payment of premium which provides for 10 days' prior written notice.]

 

 

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4 Insurance Broker/Insurance Carrier to select either Option A or Option B. If multiple Insurance Carriers submit certificates, then each may limit their certifications to the types of coverages they provide so long as the sum of such certifications satisfies the requirements of Schedule 7.01(h), in the determination of the Insurance Consultant.

 

5 To be included (if applicable) only at closing.

 

6 For the first Funding for each Plant, only the applicable Plant will be covered.

 

 

 

 

 

 

6.01(k) - 8

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[OPTION B:] [The undersigned hereby confirms that the attached [description of policy] insurance policy maintained by [the applicable Borrowers] as of the date hereof satisfies the requirements set forth on Schedule 7.01(h) of the Credit Agreement (with respect to [description of coverage]) and is in full force and effect.]

 

[The remainder of this page is intentionally blank. The next page is the signature page.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.01(k) - 9

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IN WITNESS WHEREOF, the undersigned has caused this Certificate of Borrowers' [Insurance Broker] [Insurance Carrier] to be duly executed by an authorized officer as of the date first above written.

 

 

 

[Insurance Broker] [Insurance Carrier]

 

 

By: ____________________________

Name:

Title:

 

 

 

 

 

 

 

 

 

6.01(k) - 10

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ANNEX A

to Exhibit C to Insurance Consultant's Certificate

 

[INSURANCE CARRIERS' SPECIFICATIONS]7

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

_________________

7 Only if applicable.

 

 

 

 

6.01(k) - 11

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EXHIBIT 6.01(q)

to Credit Agreement

 

 

 

 

 

 

DRAWDOWN SCHEDULES

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.01(q) - 1

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