AMENDED AND RESTATED SENIOR CREDIT AGREEMENT dated as of June 16, 2010 among ABE SOUTH DAKOTA, LLC, as Borrower, THE LENDERS REFERRED TO HEREIN, WESTLB AG, NEW YORK BRANCH, as Administrative Agent for the Lenders, and WESTLB AG, NEW YORK BRANCH, as...

Exhibit 10.2

EXECUTION VERSION

AMENDED AND RESTATED SENIOR CREDIT AGREEMENT

dated as of June 16, 2010

among

ABE SOUTH DAKOTA, LLC,
as Borrower,

THE LENDERS REFERRED TO HEREIN,

WESTLB AG, NEW YORK BRANCH,
as Administrative Agent for the Lenders,

and

WESTLB AG, NEW YORK BRANCH,
as Collateral Agent for the Senior Secured Parties

TABLE OF CONTENTS


		Page
ARTICLE I DEFINITIONS AND INTERPRETATION			2

Section 1.01	Defined Terms		2
Section 1.02	Principles of Interpretation		2
Section 1.03	UCC Terms		3
Section 1.04	Accounting and Financial Determinations		3

ARTICLE II THE LOANS			4

Section 2.01	Loans		4
Section 2.02	Evidence of Indebtedness		4

ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES			5

Section 3.01	Repayment of Loans		5
Section 3.02	Interest Payment Dates		6
Section 3.03	Interest Rates		7
Section 3.04	Default Interest Rate		8
Section 3.05	Interest Rate Determination		8
Section 3.06	Computation of Interest and Fees		8
Section 3.07	Optional Prepayment		9
Section 3.08	Mandatory Prepayment		9
Section 3.09	Provisions Applicable to All Prepayments		10
Section 3.10	Time and Place of Payments		10
Section 3.11	Fundings and Payments Generally		10
Section 3.12	Fees		11
Section 3.13	Pro Rata Treatment		11
Section 3.14	Sharing of Payments		12

ARTICLE IV EURODOLLAR RATE AND TAX PROVISIONS			12

Section 4.01	Eurodollar Rate Lending Unlawful		12
Section 4.02	Inability to Determine Eurodollar Rates		13
Section 4.03	Increased Eurodollar Loan Costs		14
Section 4.04	Obligation to Mitigate		14
Section 4.05	Funding Losses		15
Section 4.06	Increased Capital Costs		15
Section 4.07	Taxes		15
Section 4.08	Replacement of Lender		17
Section 4.09	Defaulting Lenders		18


		Page
ARTICLE V REPRESENTATIONS AND WARRANTIES			18

Section 5.01	Organization; Power; Compliance with Law and Contractual Obligations		18
Section 5.02	Due Authorization; Non-Contravention		19
Section 5.03	Governmental Approvals		19
Section 5.04	Investment Company Act		20
Section 5.05	Validity		20
Section 5.06	Financial Information		21
Section 5.07	No Material Adverse Effect		21
Section 5.08	Project Compliance		21
Section 5.09	Litigation		21
Section 5.10	Sole Purpose Nature; Business		21
Section 5.11	Contracts		22
Section 5.12	Collateral		22
Section 5.13	Ownership of Properties		23
Section 5.14	Taxes		24
Section 5.15	Patents, Trademarks, Etc		24
Section 5.16	ERISA Plans		25
Section 5.17	Property Rights, Utilities, Supplies Etc		25
Section 5.18	No Defaults		25
Section 5.19	Environmental Warranties		25
Section 5.20	Regulations T, U and X		26
Section 5.21	Accuracy of Information		27
Section 5.22	Indebtedness		27
Section 5.23	Separateness		27
Section 5.24	Required LLC Provisions		27
Section 5.25	Subsidiaries		27
Section 5.26	Foreign Assets Control Regulations, Etc		27
Section 5.27	Solvency		28
Section 5.28	Legal Name and Place of Business		28
Section 5.29	No Brokers		28
Section 5.30	Insurance		28
Section 5.31	Accounts		29

ARTICLE VI CONDITIONS PRECEDENT			29

Section 6.01	Conditions to Effectiveness		29

ARTICLE VII COVENANTS			35

Section 7.01	Affirmative Covenants		35
Section 7.02	Negative Covenants		45
Section 7.03	Reporting Requirements		50

ARTICLE VIII DEFAULT AND ENFORCEMENT			56

Section 8.01	Events of Default		56
Section 8.02	Action Upon Bankruptcy		64

iii


		Page
Section 8.03	Action Upon Other Event of Default		64
Section 8.04	Application of Proceeds		64

ARTICLE IX THE AGENTS			65

Section 9.01	Appointment and Authority		65
Section 9.02	Rights as a Lender		67
Section 9.03	Exculpatory Provisions		67
Section 9.04	Reliance by Agents		69
Section 9.05	Delegation of Duties		70
Section 9.06	Resignation or Removal of Agent		70
Section 9.07	No Amendment to Duties of Agent Without Consent		71
Section 9.08	Non-Reliance on Agent and Other Lenders		71
Section 9.09	[Intentionally Omitted]		71
Section 9.10	Collateral Agent May File Proofs of Claim		71
Section 9.11	Collateral Matters		72
Section 9.12	Copies		73
Section 9.13	Amendment to Financing Documents		73
Section 9.14	Indemnification		74
Section 9.15	No Liability for Clean-up of Hazardous Materials		74

ARTICLE X MISCELLANEOUS PROVISIONS			75

Section 10.01	Amendments, Etc		75
Section 10.02	Applicable Law; Jurisdiction; Etc		77
Section 10.03	Assignments		79
Section 10.04	Benefits of Agreement		83
Section 10.05	Consultants		83
Section 10.06	Costs and Expenses		83
Section 10.07	Counterparts; Effectiveness		84
Section 10.08	Indemnification by the Borrower		84
Section 10.09	Interest Rate Limitation		86
Section 10.10	No Waiver; Cumulative Remedies		87
Section 10.11	Notices and Other Communications		87
Section 10.12	Patriot Act Notice		90
Section 10.13	Payments Set Aside		90
Section 10.14	Right of Setoff		90
Section 10.15	Severability		91
Section 10.16	Survival		91
Section 10.17	Treatment of Certain Information; Confidentiality		91
Section 10.18	Waiver of Consequential Damages, Etc		93
Section 10.19	Waiver of Litigation Payments		93
Section 10.20	CONDITIONS DEEMED SATISFIED BY DELIVERY OF SIGNATURE		93
Section 10.21	Consent to Modifications to Borrower Organic Documents		93


SCHEDULES

Schedule 2.01		Lenders, Loans and Offices
Schedule 5.03		Necessary Project Approvals
Part A		Existing Project Approvals
Part B		Deferred Approvals
Schedule 5.11		Existing Contracts
Schedule 5.12(c)		Security Filings
Schedule 5.16		Prior Plans or Multiemployer Plans of Borrower and its ERISA Affiliates
Schedule 5.24(a)		Required Borrower LLC Provisions
Schedule 5.24(b)		Required Pledgor LLC Provisions
Schedule 5.28		Prior Legal Names of Borrower
Schedule 7.01(h)		Insurance
Schedule 10.11(a)		Notice Information

EXHIBITS

Exhibit A		Defined Terms
Exhibit B		Form of Notes
Exhibit C		Lender Statement—Section 881(c)(3)(A) of the Code
Exhibit D		Form of Insurance Consultant's Certificate
Exhibit E		Form of Operating Statement
Exhibit F		Form of Interest Period Notice
Exhibit G		Form of Debt Service LC Waiver Letter
Exhibit H		Form of Lender Assignment Agreement
Exhibit I		Form of Cash Flow Forecast

This AMENDED AND RESTATED SENIOR CREDIT AGREEMENT (this “Agreement”), dated as of June 16, 2010, is by and among ABE SOUTH DAKOTA, LLC (f/k/a Heartland Grain Fuels, L.P.), a Delaware limited liability company (“Borrower”), each of the Lenders from time to time party hereto, WESTLB AG, NEW YORK BRANCH, as administrative agent for the Lenders and WESTLB AG, NEW YORK BRANCH, as collateral agent for the Senior Secured Parties.

RECITALS

WHEREAS, pursuant to a Senior Credit Agreement, dated as of October 1, 2007 (the “Original Credit Agreement”), among the Borrower, each of the lenders party thereto (the “Original Lenders”), the Administrative Agent, the Collateral Agent, WestLB AG, New York Branch, as issuing bank with respect to the letters of credit, and WestLB AG, New York Branch, as lead arranger, sole bookrunner and syndication agent, the Original Lenders made certain construction, term and working capital loans (the “Original Loans”) to the Borrower to, among other things, (a) refinance existing indebtedness of the Borrower with respect to the operating ethanol plant of the Borrower located in Huron, South Dakota, producing approximately thirty (30) million gallons-per-year of denatured ethanol, together with distillers grains, and the operating ethanol plant of the Borrower located in Aberdeen, South Dakota, producing approximately nine (9) million gallons-per-year of denatured ethanol, together with distillers grains, (b) to finance the ownership, development, engineering, construction, testing and operation of an expansion ethanol plant located at the same Site in Aberdeen, South Dakota, which plant has been constructed and is producing approximately forty (40) million gallons-per-year of denatured ethanol, together with distillers grains and (c) to provide for the Borrower’s working capital needs;

WHEREAS, certain Events of Default have occurred under the Original Credit Agreement as a result of the failure of the Borrower to make certain interest and principal payments on the Original Loans;

WHEREAS, pursuant to a Forbearance Agreement, dated on or about January 9, 2009 (the “Forbearance Agreement”), between the Borrower, Dakota Fuels, Inc. and ABE Heartland, LLC, as the loan parties, and the Original Lenders (as Lenders and, in certain instances, as Interest Rate Protection Providers (as each such term is defined in the Original Credit Agreement) party thereto, the Administrative Agent and the Collateral Agent, as the forbearing parties, such forbearing parties agreed to forbear from exercising certain rights and remedies under the Original Credit Agreement and the other Financing Documents (as defined in the Original Credit Agreement) for a period to end no later than March 31, 2009;

WHEREAS, the Forbearance Agreement has terminated pursuant to its terms, and the Borrower remains in default under the Original Credit Agreement;

WHEREAS, the Borrower has converted from a Delaware limited partnership into a Delaware limited liability company;

WHEREAS, pursuant to a Restructuring Agreement, dated as of the date hereof (the “Restructuring Agreement”), among the Borrower, Dakota Fuels, Inc., ABE Heartland, LLC, Advanced BioEnergy, LLC, ▇▇▇▇▇ Fargo Bank, National Association, in its capacity as trustee of the ▇▇▇▇▇ County, South Dakota Subordinate Solid Waste Facilities Revenue Bonds (Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (such trustee, the “Bond Trustee” and such bonds, the “Subordinated Bonds”), the holders of the Subordinated Bonds, ▇▇▇▇▇ County, South Dakota, as issuer of the Subordinated Bonds (the “Issuer”), the Administrative Agent, the Collateral Agent and the Original Lenders, as of the Effective Date the parties thereto have agreed to restructure the Original Loans and to fully cancel all outstanding obligations under the Subordinated Loan Agreement and the other financing documents related thereto in accordance with the terms of the Restructuring Agreement;

WHEREAS, in accordance with the terms of the Restructuring Agreement, and in order to facilitate the restructuring of the Original Loans contemplated thereby, the parties hereto have agreed to enter into this Agreement to amend and restate the Original Credit Agreement in its entirety.

NOW, THEREFORE, the parties hereto agree to amend and restate the Original Credit Agreement as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01 Defined Terms. Capitalized terms used in this Agreement, including its preamble and recitals, shall, except as otherwise defined herein or where the context otherwise requires, have the meanings provided in Exhibit A.

Section 1.02 Principles of Interpretation. (a) Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in this Agreement shall have the same meanings when used in each other Financing Document and each other notice or other communication delivered from time to time in connection with any Financing Document.

(b) Unless the context requires otherwise, any reference in this Agreement to any Transaction Document shall mean such Transaction Document and all schedules, exhibits and attachments thereto.

(c) All agreements, contracts or documents defined or referred to herein shall mean such agreements, contracts or documents as the same may from time to time be supplemented, amended or replaced or the terms thereof waived or modified to the extent permitted by, and in accordance with, the terms thereof and this Agreement, and shall disregard any supplement, amendment, replacement, waiver or modification made in violation of this Agreement.

(d) Any reference in any Financing Document relating to a Default or an Event of Default that has occurred and is continuing (or words of similar effect) shall be understood to mean that such Default or Event of Default, as the case may be, has not been cured or remedied to the satisfaction of, or has not been waived by, the Required Lenders.

(e) The term “knowledge” in relation to the Borrower, and any other similar expression, shall mean knowledge of the Borrower after due inquiry.

(f) Defined terms in this Agreement shall include in the singular number the plural and in the plural number the singular.

(g) The words “herein,” “hereof” and “hereunder” and words of similar import when used in this Agreement shall, unless otherwise expressly specified, refer to this Agreement as a whole and not to any particular provision of this Agreement and all references to Articles, Sections, Exhibits and Schedules shall be references to Articles, Sections, Exhibits and Schedules of this Agreement, unless otherwise specified.

(h) The words “include,” “includes” and “including” are not limiting.

(i) The word “or” is not exclusive.

(j) Any reference to any Person shall include its permitted successors and permitted assigns in the capacity indicated, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities.

Section 1.03 UCC Terms. Unless otherwise defined herein, terms used herein that are defined in the UCC shall have the respective meanings given to those terms in the UCC.

Section 1.04 Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used in any Financing Document shall be

interpreted, all accounting determinations and computations hereunder or thereunder shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with GAAP.

ARTICLE II

THE LOANS

On the terms, subject to the conditions and relying upon the representations and warranties herein set forth:

Section 2.01 Loans. (a) As of the Effective Date, the sum of (A) the outstanding principal amount of the Loans (as defined under the Original Credit Agreement) plus (B) the amount of all outstanding Swap Termination Value under the Interest Rate Protection Agreements (as each such term is defined in the Original Credit Agreement), will be deemed senior term loans disbursed hereunder by the Lenders in an aggregate principal amount equal to eighty-four million two hundred ninety-one thousand five hundred fifty Dollars ($84,291,550) (such loans, the “Loans”). Each Lender’s share of the aggregate outstanding principal amount of the Loans as of the Effective Date is set forth on Schedule 2.01.

(b) Loans repaid or prepaid may not be reborrowed.

Section 2.02 Evidence of Indebtedness. (a) The Loans made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business, including the Register for the recordation of the Loans maintained by the Administrative Agent in accordance with the provisions of Section 10.03(c) (Assignments). The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive evidence, absent manifest error, of the amount of the Loans made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative Agent shall control, absent manifest error.

(b) The Borrower agrees that in addition to the Register and any other accounts and records maintained pursuant to Section 2.02(a) (Evidence of Indebtedness), the Loans made by each Lender shall be evidenced by a Note or Notes duly executed on behalf of the Borrower. Notes shall be dated the Effective Date (or, if later, the date of any request therefor by a Lender). Each such Note shall be payable to such Lender or its

registered assigns in a principal amount equal to the principal amount of Loans allocated to such Lender as set forth on Schedule 2.01. Each Lender may attach schedules to its Note and endorse thereon the date, amount and maturity of its Loan and payments with respect thereto.

(c) The Borrower acknowledges and agrees that the Lenders have no commitment or obligation hereunder to provide Loans or other extensions of credit except as provided in Section 2.01(a).

ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

Section 3.01 Repayment of Loans. (a) The Borrower unconditionally and irrevocably promises to pay to the Administrative Agent for the ratable account of each Lender the aggregate outstanding principal amount of the Loans, on each date set forth below, in the respective amounts set forth below opposite each such date (which amounts shall be reduced in inverse order of maturity as a result of any prepayments of the Loans made in accordance with Section 3.07 (Optional Prepayment) or Section 3.08 (Mandatory Prepayment) in accordance with the terms set forth therein).

Loans


Date	Principal Amount
June 30, 2010	$	750,000
September 30, 2010	$	750,000
December 31, 2010	$	750,000
March 31, 2011	$	750,000
June 30, 2011	$	750,000
September 30, 2011	$	750,000
December 31, 2011	$	750,000
March 31, 2012	$	750,000
June 30, 2012	$	750,000
September 30, 2012	$	750,000
December 31, 2012	$	750,000
March 31, 2013	$	750,000


Date	Principal Amount
June 30, 2013	$	750,000
September 30, 2013	$	750,000
December 31, 2013	$	750,000
March 31, 2014	$	750,000
June 30, 2014	$	750,000
September 30, 2014	$	750,000
December 31, 2014	$	750,000
March 31, 2015	$	750,000
June 30, 2015	$	750,000
September 30, 2015	$	750,000
December 31, 2015	$	750,000
Final Maturity Date	$	67,041,550

(b) Notwithstanding anything to the contrary set forth in Section 3.01(a), the final principal repayment installment on the Final Maturity Date shall in any event be in an amount equal to the aggregate principal amount of all Loans outstanding on such date.

Section 3.02 Interest Payment Dates. (a) Interest accrued on each Loan shall be payable, without duplication:

	(i)		on the Final Maturity Date for such Loan;

	(ii)		on each Interest Payment Date for such Loan; and

	(iii)		with respect to any Loan, on any date when such Loan is prepaid hereunder on the portion so prepaid.

(b) Interest accrued on the Loans or other monetary Obligations after the date such amount is due and payable (whether on the Final Maturity Date for such Loan, any Quarterly Payment Date, any Interest Payment Date, upon acceleration or otherwise) shall be payable upon demand.

(c) Interest hereunder shall be due and payable in accordance with the terms hereof, before and after judgment, regardless of whether an Insolvency or Liquidation Proceeding exists in respect of the Borrower, and, to the fullest extent

permitted by law, the Lenders shall be entitled to receive post-petition interest during the pendency of an Insolvency or Liquidation Proceeding.

Section 3.03 Interest Rates. (a) Each Eurodollar Loan shall accrue interest at a rate per annum during each Interest Period applicable thereto equal to the sum of the Eurodollar Rate for such Interest Period (provided that, if such Interest Period is one (1) or two (2) months, such Eurodollar Rate shall at a minimum be the Eurodollar Rate for three (3) months) plus the Applicable Margin and (ii) each Base Rate Loan shall accrue interest at a rate per annum equal to the sum of the Base Rate plus the Applicable Margin.

(b) On or before 11:00 a.m., New York City time, at least three (3) Business Days prior to the Effective Date or the end of each Interest Period for each Eurodollar Loan, and from time to time upon not fewer than one (1) Business Day prior notice for any Base Rate Loans, the Borrower may deliver to the Administrative Agent an Interest Period Notice setting forth the Borrower’s election (i) to continue any such Eurodollar Loan as (or convert any such Base Rate Loan to) a Eurodollar Loan and setting forth the Borrower’s election with respect to the duration of the next Interest Period applicable to such continued or converted Eurodollar Loan, which Interest Period shall be one (1), two (2), three (3) or six (6) months in length, or (ii) to convert any such Eurodollar Loan to a Base Rate Loan at the end of the then-current Interest Period; provided, that if an Event of Default has occurred and is continuing, all Eurodollar Loans shall automatically convert into Base Rate Loans at the end of the then-current Interest Periods. Upon the waiver or cure of such Event of Default, the Borrower shall have the option to continue such Loans as Base Rate Loans and/or to convert such Loans to Eurodollar Loans (by delivery of an Interest Period Notice), subject to the notice periods set forth above. Notwithstanding anything to the contrary, any portion of the Loans maturing in less than one month may not be continued as, or converted to, Eurodollar Loans and will automatically convert to Base Rate Loans at the end of the then-current Interest Period.

(c) If the Borrower fails to deliver an Interest Period Notice in accordance with Section 3.03(b), (i) with respect to any Eurodollar Loan, such Eurodollar Loan shall automatically continue as a Eurodollar Loan with an Interest Period of one (1) month or (ii) with respect to any Base Rate Loan, such Base Rate Loan shall automatically continue as a Base Rate Loan.

(d) All Eurodollar Loans shall bear interest from and including the first day of the applicable Interest Period to (and excluding) the last day of such Interest Period at the interest rate determined as applicable to such Eurodollar Loan.

(e) Notwithstanding anything to the contrary, the Borrower shall have, in the aggregate, no more than five (5) separate Eurodollar Loans outstanding at any one time. For purposes of the foregoing, (i) Eurodollar Loans having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Eurodollar Loans and (ii) all Eurodollar Loans having the same Interest Period and commencing on the same date shall be considered to be a single Eurodollar Loan.

(f) All Base Rate Loans shall bear interest from and including the Effective Date (or the day on which Eurodollar Loans are converted to Base Rate Loans as required under Section 3.03(b) or under ARTICLE IV (Eurodollar Rate and Tax Provisions)) to (and excluding) the date when repaid (or the day on which Base Rate Loans are converted to Eurodollar Loans pursuant to the terms hereof) at the interest rate determined as applicable to such Base Rate Loan.

Section 3.04 Default Interest Rate. (a) If (i) all or a portion of the principal amount of any Loan is not paid when due (whether on the Final Maturity Date for such Loan, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto plus two percent (2%), or (ii) any Obligation (other than principal on the Loans) is not paid when due (whether on the due date thereof, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to Base Rate Loans plus two percent (2%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full (before as well as after judgment).

(b) Upon the occurrence and during the continuance of any Event of Default (other than an Event of Default under Section 8.01(a) (Events of Default — Nonpayment), for which provision is made in Section 3.04(a)), the Borrower shall pay, in addition to the interest then payable on any Loan, additional interest (before as well as after judgment) on the Loans at two percent (2%) per annum (the rate in effect plus such two percent (2%) per annum, the “Default Rate”) until such Event of Default is cured or waived.

Section 3.05 Interest Rate Determination. The Administrative Agent shall determine the interest rate applicable to the Loans in accordance with the terms of this Agreement, and shall give prompt notice to the Borrower and the Lenders of such determination, and its determination thereof shall be conclusive, absent manifest error.

Section 3.06 Computation of Interest and Fees. (a) All computations of interest for Base Rate Loans when the Base Rate is determined by the Administrative Agent’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All computations of interest for Eurodollar Loans and

for Base Rate Loans when the Base Rate is determined by the Federal Funds Effective Rate shall be made on the basis of a 360-day year and actual days elapsed.

(b) Interest shall accrue on each Loan for the day on which the Loan is made or deemed made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that any Loan that is repaid on the same day on which it is made or deemed made shall bear interest for one (1) day.

(c) Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 3.07 Optional Prepayment. (a) The Borrower shall have the right at any time, and from time to time, to prepay the Loans, in whole or in part, upon not fewer than five (5) Business Days’ prior written notice to the Administrative Agent.

(b) Any partial prepayment of the Loans shall be in a minimum amount of five hundred thousand Dollars ($500,000) and in integral multiples of one hundred thousand Dollars ($100,000) in excess thereof.

(c) Each notice of prepayment given by the Borrower under this Section 3.07 shall specify the prepayment date and the portion of the principal amount of Loans to be prepaid.

Section 3.08 Mandatory Prepayment. The Borrower shall be required to prepay the Loans:

(a) upon receipt by the Borrower of Insurance Proceeds as required pursuant to Section 9.01(d) of the Accounts Agreement;

(b) upon receipt by the Borrower of Condemnation Proceeds, as required pursuant to Section 9.01(d) of the Accounts Agreement;

(c) upon receipt of any Project Document Termination Payments, as required pursuant to Section 10.01(c)(ii) of the Accounts Agreement;

(d) upon receipt of proceeds of any asset disposal (other than proceeds received from the sale of Products) that are not used for replacement in accordance with Section 10.01(b)(ii) of the Accounts Agreement; and

(e) on each Quarterly Payment Date as required pursuant to Section 4.01(c)(ix) of the Accounts Agreement.

Section 3.09 Provisions Applicable to All Prepayments. (a) All prepayments under Section 3.07 (Optional Prepayment) or Section 3.08 (Mandatory Prepayment) shall be made by the Borrower to the Administrative Agent for the account of the Lenders, and shall be accompanied by accrued interest on the principal amount being prepaid to but excluding the date of payment and any additional amounts required to be paid under Section 4.05 (Funding Losses).

(b) Amounts of principal prepaid under Section 3.07 (Optional Prepayment) or Section 3.08 (Mandatory Prepayment) shall be applied by the Administrative Agent to the remaining outstanding installments of principal of the Loans under Section 3.01(a) in inverse order of maturity.

(c) Loans prepaid pursuant to Section 3.07 (Optional Prepayment) or Section 3.08 (Mandatory Prepayment) may not be reborrowed.

Section 3.10 Time and Place of Payments. (a) The Borrower shall make each payment (including any payment of principal or interest on any Loan or any Fees or other Obligations) hereunder and under any other Financing Document without setoff, deduction or counterclaim not later than 11:00 a.m., New York City time on the date when due in Dollars in immediately available funds to the Administrative Agent at the following account: JPMorgan Chase Bank (Swift ID: ▇▇▇▇▇▇▇▇▇▇▇), Account Number: ▇▇▇-▇-▇▇▇▇▇▇, for the Account of WESTLB AG, NY Branch, ABA #▇▇▇▇▇▇▇▇▇, Ref: ABE SOUTH DAKOTA, LLC or at such other office or account as may from time to time be specified by the Administrative Agent to the Borrower. Funds received after 11:00 a.m. New York City time shall be deemed to have been received by the Administrative Agent on the next succeeding Business Day.

(b) The Administrative Agent shall promptly remit in immediately available funds to each Senior Secured Party its share, if any, of any payments received by the Administrative Agent for the account of such Senior Secured Party.

(c) Whenever any payment (including any payment of principal of or interest on any Loan or any Fees or other Obligations) hereunder or under any other Financing Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment shall (except as otherwise required by the proviso to the definition of “Interest Period” with respect to Eurodollar Loans) be made on the immediately succeeding Business Day, and such increase of time shall in such case be included in the computation of interest or Fees, if applicable.

Section 3.11 Fundings and Payments Generally. (a) Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder

that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance with this Agreement and may, in reliance upon such assumption, distribute to the Lenders the amount due. If the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice by the Administrative Agent to any Lender with respect to any amount owing under this Section 3.11(a) shall be conclusive, absent manifest error.

(b) Nothing herein shall be deemed to obligate any Lender to obtain funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain funds for any Loan in any particular place or manner.

(c) The Borrower hereby authorizes each Lender, if and to the extent payment owed to such Lender is not made when due under this Agreement or under the Notes held by such Lender, to charge from time to time against any or all of the Borrower’s accounts with such Lender (other than, in the event that the Accounts Bank is also a Lender, any Project Account) any amount so due.

Section 3.12 Fees. (a) On the earlier of the Final Maturity Date and the date the outstanding Loans are repaid or prepaid in full, the Borrower agrees to pay to the Administrative Agent for the account of the Lenders a restructuring fee equal to three million Dollars ($3,000,000).

(b) The Borrower agrees to pay to the Administrative Agent for the account of the Lenders and the Agents additional fees in the amounts and at the times from time to time agreed in writing by the Borrower and the Agents, including pursuant to the Fee Letters.

(c) All Fees shall be paid on the dates due, in immediately available funds. Once paid, none of the Fees shall be refundable under any circumstances.

Section 3.13 Pro Rata Treatment. Except as required under ARTICLE IV (Eurodollar Rate and Tax Provisions), (a) each payment or prepayment of principal of the Loans shall be allocated by the Administrative Agent pro rata among the Lenders in accordance with their Loan Percentages, (b) each payment of interest on the Loans shall be allocated by the Administrative Agent pro rata among the Lenders in accordance with

the respective interest amounts outstanding on their outstanding Loans and (c) each payment of Fees pursuant to Section 3.12(a) (Fees) shall be allocated by the Administrative Agent pro rata among the Lenders in accordance with their Loan Percentages.

Section 3.14 Sharing of Payments. (a) If any Lender obtains any payment or other recovery (whether voluntary, involuntary, by application of setoff or otherwise) on account of any Loan (other than pursuant to the terms of ARTICLE IV (Eurodollar Rate and Tax Provisions)) in excess of its pro rata share of payments then or therewith obtained by all Lenders, such Lender shall purchase from the other Lenders such participations in Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment or other recovery ratably with each of them; provided, however, that if all or any portion of the excess payment or other recovery is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and each Lender that has sold a participation to the purchasing Lender shall repay to the purchasing Lender the purchase price to the ratable extent of such recovery together with an amount equal to such selling Lender’s ratable share (according to the proportion of (x) the amount of such selling Lender’s required repayment to the purchasing Lender to (y) the total amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by the purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 3.14 may, to the fullest extent permitted by law, exercise all of its rights of payment (including pursuant to Section 10.14 (Right of Setoff)) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation.

(b) If under any applicable bankruptcy, insolvency or other similar Law, any Lender receives a secured claim in lieu of a setoff to which this Section 3.14 applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 3.14 to share in the benefits of any recovery on such secured claim.

ARTICLE IV

EURODOLLAR RATE AND TAX PROVISIONS

Section 4.01 Eurodollar Rate Lending Unlawful. (a) If any Lender reasonably determines (which determination shall, upon notice thereof to the Borrower and the Administrative Agent, be conclusive and binding on the Borrower absent manifest error) that the introduction of or any change in or in the interpretation of any Law makes it unlawful, or any central bank or other Governmental Authority asserts that it is unlawful, for such Lender to make, maintain or fund any Loan as a Eurodollar Loan,

the obligations of such Lender to make, maintain or fund any Loan as a Eurodollar Loan shall, upon such determination, forthwith be suspended until such Lender notifies the Administrative Agent that the circumstances causing such suspension no longer exist, and all Eurodollar Loans of such Lender shall automatically convert into Base Rate Loans at the end of the then-current Interest Periods with respect thereto or sooner, if required by such Law or assertion. Upon any such conversion the Borrower shall pay any accrued interest on the amount so converted and, if such conversion occurs on a day other than the last day of the then-current Interest Period for such affected Eurodollar Loans, such Lender shall be entitled to make a request for, and the Borrower shall pay, compensation for breakage costs under Section 4.05 (Funding Losses).

(b) If such Lender notifies the Borrower that the circumstances giving rise to the suspension described in Section 4.01(a) no longer apply, the Borrower may elect (by delivering an Interest Period Notice) to convert the principal amount of any such Base Rate Loan to a Eurodollar Loan in accordance with this Agreement.

(c) Each Lender shall be entitled to fund and maintain all or any part of a Loan in any manner it deems fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder shall be made as if such Lender had actually funded and maintained amounts bearing interest at a Eurodollar Rate through the purchase of deposits having a maturity corresponding to the applicable Interest Periods and bearing an interest rate equal to the appropriate Eurodollar Rate for such Interest Periods.

Section 4.02 Inability to Determine Eurodollar Rates. (a) In the event, and on each occasion, the Administrative Agent shall have determined in good faith that for any Eurodollar Loan (i) Dollar deposits in the amount of such Loan and with an Interest Period similar to such Interest Period are not generally available in the London interbank market, or (ii) the rate at which such Dollar deposits are being offered will not adequately and fairly reflect the cost to any Lender of making, maintaining or funding the principal amount of such Loan during such Interest Period, or (iii) adequate and reasonable means do not exist for ascertaining LIBOR, the Administrative Agent shall forthwith notify the Borrower and the Lenders of such determination, whereupon each such Eurodollar Loan will automatically, on the last day of the then-existing Interest Period for such Eurodollar Loan, convert into a Base Rate Loan. Each determination by the Administrative Agent hereunder shall be conclusive, absent manifest error.

(b) Upon the Administrative Agent’s determination that the condition that was the subject of a notice under Section 4.02(a) has ceased, the Administrative Agent shall forthwith notify the Borrower and the Lenders of such determination, whereupon the Borrower may elect (by delivering an Interest Period Notice) to convert any such Base Rate Loan to a Eurodollar Loan in accordance with this Agreement.

Section 4.03 Increased Eurodollar Loan Costs. If, after the date hereof, the adoption of any applicable Law or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender (or its Eurodollar Office) with any request or directive (whether or not having the force of law) of any Governmental Authority would increase the cost (other than with respect to Taxes, which are addressed in Section 4.07 (Taxes)) to such Lender of, or result in any reduction in the amount of any sum receivable by such Lender (whether of principal, interest or any other amount) in respect of, making, maintaining or funding (or of its obligation to make, maintain or fund) the Loans as Eurodollar Loans, then the Borrower agrees to pay to the Administrative Agent for the account of such Lender the amount of any such increase or reduction. Such Lender shall promptly notify the Administrative Agent and the Borrower in writing of the occurrence of any such event, such notice to state the additional amount required to compensate fully such Lender for such increased cost or reduced amount. Such additional amounts shall be payable by the Borrower directly to such Lender within five (5) Business Days of delivery of such notice, and such notice and determination shall be binding on the Borrower, absent manifest error.

Section 4.04 Obligation to Mitigate. (a) Each Lender agrees that, after it becomes aware of the occurrence of an event that would entitle it to give notice pursuant to Section 4.01 (Eurodollar Rate Lending Unlawful), Section 4.03 (Increased Eurodollar Loan Costs) or Section 4.06 (Increased Capital Costs) or to receive additional amounts pursuant to Section 4.07 (Taxes), such Lender shall use reasonable efforts to make, fund or maintain its affected Loan through another lending office (i) if as a result thereof the increased costs would be avoided or materially reduced or the illegality would thereby cease to exist and (ii) if, in the opinion of such Lender, the making, funding or maintaining of such Loan through such other lending office would not be disadvantageous to such Lender, contrary to such Lender’s normal banking practices or violate any applicable Law.

(b) No change by a Lender in its Domestic Office or Eurodollar Office made for such Lender’s convenience shall result in any increased cost to the Borrower.

(c) If any Lender demands compensation pursuant to Section 4.03 (Increased Eurodollar Loan Costs) or Section 4.06 (Increased Capital Costs) with respect to any Eurodollar Loan, the Borrower may, at any time upon at least three (3) Business Days’ prior notice to such Lender through the Administrative Agent, elect to convert such Loan to a Base Rate Loan. Thereafter, unless and until such Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, all such Eurodollar Loans by such Lender shall bear interest as Base Rate Loans. If such Lender notifies the Borrower that the circumstances giving rise to such notice no longer apply, the Borrower may elect (by delivering an Interest Period Notice) to convert the principal

amount of each such Base Rate Loan to a Eurodollar Loan in accordance with this Agreement.

(d) Notwithstanding anything to the contrary in this ARTICLE IV, no Lender shall be entitled to compensation under Section 4.03 (Increased Eurodollar Loan Costs), Section 4.06 (Increased Capital Costs) or Section 4.07(a)(Taxes — Payments Free of Taxes) for any amounts incurred or accruing more than 180 days prior to the giving of notice by such Lender to the Borrower of additional costs of the type described in such Sections, provided, if the event giving rise to such compensation has retroactive effect, such 180-day period shall be extended to include the period of retroactive effect.

Section 4.05 Funding Losses. In the event that any Lender incurs any loss or expense (including any loss or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to make, continue or maintain any portion of the principal amount of any Loan as a Eurodollar Loan, and any customary administrative fees charged by such Lender in connection with the foregoing) as a result of any conversion or repayment or prepayment of the principal amount of any Loans on a date other than the scheduled last day of the Interest Period applicable thereto, whether pursuant to Section 3.07 (Optional Prepayment), Section 3.08 (Mandatory Prepayment), Section 4.01(a) (Eurodollar Rate Lending Unlawful) or otherwise, then, upon the written notice of such Lender to the Borrower (with a copy to the Administrative Agent), the Borrower shall, within five (5) Business Days of receipt thereof, pay to the Administrative Agent for the account of such Lender such amount as will (in the reasonable determination of such Lender) reimburse such Lender for such loss or expense. Such written notice and determination shall be binding on the Borrower, absent manifest error.

Section 4.06 Increased Capital Costs. If after the date hereof any change in, or the introduction, adoption, effectiveness, interpretation, reinterpretation or phase-in of, any applicable Law, guideline or request (whether or not having the force of law) of any Governmental Authority, affects the amount of capital required to be maintained by any Lender, and such Lender reasonably determines that the rate of return on its capital as a consequence of its Loan is reduced to a level below that which such Lender could have achieved but for the occurrence of any such circumstance, then, in any such case upon notice from time to time by such Lender to the Borrower, the Borrower shall pay, within five (5) Business Days after such demand, directly to such Lender additional amounts sufficient to compensate such Lender for such reduction in rate of return. A statement of such Lender as to any such additional amount or amounts shall be binding on the Borrower, absent manifest error.

Section 4.07 Taxes. (a) Payments Free of Taxes. Any and all payments by or on account of any Obligations shall be made free and clear of, and without

deduction for, any Taxes, unless required by Law; provided that if the Borrower shall be required to deduct any Indemnified Taxes from any such payment, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.07) the Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law.

(b) Payment of Other Taxes by the Borrower. In addition, the Borrower shall timely pay any Indemnified Taxes arising from any payment made under any Financing Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Financing Document and not collected by withholding at the source as contemplated by Section 4.07(a) to the relevant Governmental Authority in accordance with applicable Law.

(c) Indemnification by the Borrower. The Borrower shall indemnify each Agent and each Lender, within five (5) Business Days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 4.07) paid by such Agent or Lender, as the case may be, and any penalties, interest, additions to tax and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or Agent, as the case may be, shall be conclusive, absent manifest error.

(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) Foreign Lenders. Each Lender (including any Participant and any other Person to which any Lender transfers its interests in this Agreement as provided under Section 10.03 (Assignments)) that is not a United States Person (a “Non-U.S. Lender”) shall deliver to the Borrower and the Administrative Agent two (2) copies of U.S. Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-8IMY (with supporting documentation), or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments of

interest by the Borrower under the Financing Documents if such Lender is legally entitled to so claim, together with, in the case of a Non-U.S. Lender that is relying on an exemption pursuant to Section 871(h) or 881(c) of the Code, a statement substantially in the form of Exhibit C certifying that such Lender is not a bank described in Section 881(c)(3)(A) of the Code. Such forms shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement. In addition, to the extent that it is in a position to legally do so, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower and the Administrative Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by U.S. taxing authorities for such purpose). The Borrower shall not be obligated to pay any additional amounts in respect of U.S. federal income taxes pursuant to this Section 4.07 (or make an indemnification payment pursuant to this Section 4.07) to any Lender (or any Participant or other Person to which any Lender transfers its interests in this Agreement as provided under Section 10.03 (Assignments)) if the obligation to pay such additional amounts (or such indemnification) would not have arisen but for a failure by such Lender to comply with this Section 4.07(e).

Section 4.08 Replacement of Lender. (a) The Borrower shall be permitted to replace (with one or more replacement Lenders) any Lender that requests reimbursement for amounts owing pursuant to Section 4.03 (Increased Eurodollar Loan Costs), Section 4.06 (Increased Capital Costs) or Section 4.07(a) (Taxes — Payments Free of Taxes) or any Defaulting Lender; provided, that (i) such replacement does not conflict with any Law or any determination of an arbitrator or a court or other Governmental Authority, in each case applicable to the Borrower or such Lender or to which the Borrower or such Lender or any of their respective property is subject, (ii) no Default or Event of Default shall have occurred and be continuing at the time of such replacement, (iii) prior to any such replacement, the Lender to be replaced shall not have withdrawn such request for reimbursement, or shall not have taken any action under Section 4.04 (Obligation To Mitigate) so as to eliminate the need for payment of amounts owing pursuant to Section 4.03 (Increased Eurodollar Loan Costs), Section 4.06 (Increased Capital Costs) or Section 4.07(a) (Taxes — Payments Free of Taxes), (iv) the replacement Lender shall purchase, at par, the Loans and all other amounts owing to such replaced Lender prior to the date of replacement, (v) the Borrower shall be liable to such replaced Lender under Section 4.05 (Funding Losses) if any Eurodollar Loan owing to such replaced Lender is be prepaid (or purchased) other than on the last day of the Interest Period relating thereto, (vi) the replacement Lender is an Eligible Assignee, (vii) such replacement is made in accordance with the provisions of Section 10.03(b) (Assignments) (provided, that the Borrower shall be obligated to pay the registration and processing fee), (viii) until such time as such replacement is consummated, the Borrower shall pay

all additional amounts (if any) required pursuant to Section 4.03 (Increased Eurodollar Loan Costs), Section 4.06 (Increased Capital Costs) or Section 4.07(a) (Taxes - Payments Free of Taxes), as the case may be, and (ix) any such replacement shall not be deemed to be a waiver of any rights that the Borrower, any Agent or any other Lender may have against the replaced Lender.

Section 4.09 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if at any time during the term of this Agreement any Lender becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has provided its consent to or approval of any such proceeding or appointment (such Lender, a “Defaulting Lender”), then the outstanding principal amount of Loans held by such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder; provided, however, that if the Loans held by such Defaulting Lender are assigned to a replacement Lender pursuant to Section 4.08 (Replacement of Lender), then, subject to Section 4.08 (Replacement of Lender), the Loans assigned to such replacement Lender shall be included in determining whether the Required Lenders shall have taken or may take any action hereunder with respect to actions to be taken by the Lenders from and after the effective date of the assignment of such Loans to such replacement Lender; provided, that if a consent, waiver or vote of all Lenders is required for any action under the Financing Documents, then an affirmative consent, waiver or vote of the Defaulting Lender shall be deemed given if such Defaulting Lender does not provide a written response within fifteen (15) days after the date of a written notice to the Defaulting Lender requesting such vote or consent.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

In order to induce each Agent, each Lender and each other party hereto (other than the Borrower) to enter into this Agreement, the Borrower represents and warrants to each Agent and each Lender as set forth in this ARTICLE V on the date hereof and on the Effective Date (except with respect to representations and warranties that expressly refer to an earlier date).

Section 5.01 Organization; Power; Compliance with Law and Contractual Obligations. The Borrower (a) is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, (b) is duly qualified to do business as is now being conducted and as is proposed to be conducted and is in good standing as a foreign limited liability company in each jurisdiction where the nature of its business requires such qualification (other than any such failure to be so qualified or in good standing that could not reasonably be expected to have a Material

Adverse Effect), (c) has all requisite limited liability company power and authority required as of the date this representation is made or deemed repeated to enter into and perform its obligations under each of the SNDAs and each Transaction Document to which it is a party and to conduct its business as currently conducted by it and (d) is in compliance with all Laws and Contractual Obligations applicable to it except for any noncompliance that could not reasonably be expected to have a Material Adverse Effect.

Section 5.02 Due Authorization; Non-Contravention. The execution, delivery and performance by the Borrower of each of the SNDAs, Interest Rate Cap Agreements and Transaction Document to which it is a party are within the Borrower’s limited liability company powers, have been duly authorized by all necessary limited liability company action, and do not:

(a) contravene the Borrower’s Organic Documents (including the Borrower LLC Agreement);

(b) contravene in any material respect any Law binding on or affecting the Borrower;

(d) require any consent or approval under the Borrower’s Organic Documents that has not been obtained;

(e) require any consent or approval under any Contractual Obligation binding on or affecting the Borrower other than any approvals or consents which have been obtained; or

(f) result in, or require the creation or imposition of, any Lien on any of the Borrower’s properties or Equity Interests other than Permitted Liens.

Section 5.03 Governmental Approvals. (a) All Governmental Approvals that are required to be obtained by the Borrower in connection with (i) the due execution, delivery and performance by it of the Transaction Documents to which it is a party (including, without limitation, the consummation of the transactions contemplated in the Restructuring Agreement), (ii) the ownership, use and operation of the Project as contemplated by the Transaction Documents, and (iii) the grant by the Borrower and the Pledgor of the Liens granted under the Security Documents and the validity, perfection and enforceability thereof (the “Necessary Project Approvals”) are listed in Schedule 5.03.

(b) The Necessary Project Approvals listed in Part A of Schedule 5.03 have been obtained, are in full force and effect, have been validly issued and are final and Non-Appealable.

(c) the Necessary Project Approvals listed in Part B of Schedule 5.03 (collectively, the “Deferred Approvals”) shall be obtained as set forth in Part B of Schedule 5.03.

(d) The Borrower may update and correct, with approval of the Administrative Agent, any reference to a Necessary Project Approval on Schedule 5.03 that has been replaced in accordance with applicable Law.

(e) The information set forth in each application (including any updates or supplements thereto) submitted by or on behalf of the Borrower in connection with each Necessary Project Approval that has been submitted as of the date this representation is made or deemed repeated, was accurate and complete at the time of submission and continues to be accurate and complete, in each case to the extent required for the issuance or continued effectiveness of such Necessary Project Approval (except, with respect to continued effectiveness, for Necessary Project Approvals that are subject to a supplemental filing shown on Part B of Schedule 5.03 that has not yet been filed), and the Borrower does not have any knowledge of any event, act, condition or state of facts inconsistent with such information.

(f) The Borrower reasonably believes that each Necessary Project Approval that remains to be obtained will be obtained in a final and Non-Appealable form in the ordinary course without undue delay or material expense and without unanticipated expensive or burdensome conditions prior to the time it is required to be obtained under applicable Law. There is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing that would reasonably be expected to result in the material modification, rescission, termination, or suspension of any Governmental Approval referred to in Schedule 5.03 obtained prior to the date this representation is made or deemed made.

Section 5.04 Investment Company Act. The Borrower is not, and after giving effect to the Loans and the application of the proceeds of the Loans as described herein will not be, an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

Section 5.05 Validity. Each of the SNDAs, Interest Rate Cap Agreements and Transaction Documents to which the Borrower is a party has been duly authorized, validly executed and delivered, and constitutes the legal, valid and binding

obligations of the Borrower enforceable against the Borrower and, to the Borrower’s actual knowledge, enforceable against each other party thereto (other than the Senior Secured Parties), in each case in accordance with its respective terms, except as the enforceability hereof or thereof may be limited by (i) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).

Section 5.06 Financial Information. Each of the financial statements of the Borrower delivered pursuant hereto has been prepared in accordance with GAAP, and fairly presents in all material respects the financial condition of the Borrower as at the dates thereof and the results of their operations for the period then ended (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnotes).

Section 5.07 No Material Adverse Effect. Since September 30, 2009, no Material Adverse Effect has occurred and is continuing.

Section 5.08 Project Compliance. (a) The Project is and will continue to be owned, operated and maintained in compliance in all material respects with all applicable Laws and the requirements of all Necessary Project Approvals (including all Deferred Approvals).

(b) The Project is and will continue to be owned, operated and maintained in compliance in all material respects with all of the Borrower’s Contractual Obligations (including the Project Documents).

Section 5.09 Litigation. (a) No material action, suit, proceeding or investigation has been instituted or threatened in writing against any of the Borrower, the Pledgor or the Project (including in connection with any Necessary Project Approval); and

(b) to the knowledge of the Borrower, no action, suit, proceeding or investigation has been instituted or threatened against any Project Party that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

Section 5.10 Sole Purpose Nature; Business. The Borrower has not conducted and is not conducting any business or activities other than businesses and activities relating to the ownership, development, testing, financing, construction, operation and maintenance of the Project as contemplated by the Transaction Documents.

Section 5.11 Contracts. (a) All contracts, agreements, instruments, letter agreements, or other documents to which the Borrower is a party or by which it or any of its properties is bound as of the date hereof (other than the Financing Documents), including the Project Documents, and all documents amending, supplementing, interpreting or otherwise modifying or clarifying such contracts, agreements, instruments, letter agreements, understandings and other documents are listed in Schedule 5.11.

(b) To the knowledge of the Borrower, all representations, warranties and other factual statements made by each Project Party in each of the Transaction Documents to which such Project Party is a party are true and correct as of the date(s) made or deemed repeated (except with respect to representations and warranties that expressly refer to an earlier date) other than any such inaccuracies that could not reasonably be expected to have a Material Adverse Effect.

(c) All conditions precedent to the obligations of the respective parties under the Project Documents and the Restructuring Agreement that have been executed as of the date this representation is made or deemed repeated have been satisfied or waived by the parties thereto.

Section 5.12 Collateral. (a) The Collateral includes all of the Equity Interests in, and all of the tangible and intangible assets of, the Borrower.

(b) The Liens and security interests granted to the Collateral Agent (for the benefit of the Senior Secured Parties) pursuant to the Security Documents (i) constitute, as to personal property included in the Collateral, a valid first-priority security interest in such personal property and (ii) constitute, as to the Mortgaged Property included in the Collateral, a valid first-priority Lien of record in the Mortgaged Property, in each case subject only to Permitted Liens.

(c) The security interest granted to the Collateral Agent (for the benefit of the Senior Secured Parties) pursuant to the Security Documents in the Collateral consisting of personal property will be perfected (i) with respect to any property that can be perfected by filing, upon the filing of UCC financing statements in the filing offices identified in Schedule 5.12(c), (ii) with respect to any Account Collateral that can be perfected solely by control, upon execution of the Accounts Agreement and (iii) with respect to any property (if any) that can be perfected solely by possession, upon the Collateral Agent receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or otherwise as aforesaid, superior and prior to the rights of all third Persons, and in each case subject only to Permitted Liens. After giving effect to the filings, registrations and giving of notice referred to in this sentence, all such action as is necessary has been taken to establish and perfect the Collateral Agent’s rights in and to the Collateral covered by the

Security Documents to the extent the Collateral Agent’s security interest can be perfected by filing, including any recordation, filing, registration, giving of notice or other similar action. No filing, recordation, re-filing or re-recording other than those listed on Schedule 5.12(c) (as the same may be updated at the written request of the Borrower, with the written agreement of the Administrative Agent, following any change in applicable Law) is necessary to perfect (or maintain the perfection of) the interest, title or Liens of the Security Documents (to the extent the Collateral Agent’s security interest can be perfected by filing or recording), and on and as of each relevant date on which this representation and warranty is made or deemed repeated, all such filings or recordings have been made. The Borrower and the Pledgor have properly delivered or caused to be delivered to the Collateral Agent, or provided the Collateral Agent control of, all Collateral relating to assets of or equity in the Borrower that requires perfection of the Liens and security interests described above by possession or control. All or substantially all of the Collateral relating to assets of or equity in the Borrower (other than the Account Collateral, certificates, securities, investments, chattel paper, books and records and general intangibles), including the Mortgaged Property, is or will (when acquired) be located on the Sites.

Section 5.13 Ownership of Properties. (a) The Borrower (i) has a good and valid fee ownership interest in the Sites (except for the Leased Premises), (ii) has a good and valid leasehold interest in the Leased Premises and (iii) has good and valid easements necessary for the natural gas transmission pipeline that was constructed pursuant to the Pipeline Construction Agreement.

(b) The Borrower has a good and valid ownership interest, leasehold interest, license interest or other right of use in all other property and assets (tangible and intangible) included in the Collateral relating to assets of or equity in the Borrower under each Security Document. Such ownership interests, leasehold interest, license interest or other rights of use are and will be sufficient to permit operation of the Plants, substantially in accordance with the Project Documents. To the knowledge of Borrower, none of said properties or assets of or equity in the Borrower are subject to any other claims of any Person, including any easements, rights of way or similar agreements affecting the use or occupancy of the Project or the Sites, except for Permitted Liens.

(c) All Equity Interests in the Borrower are owned by the Pledgor (except for the Equity Interests in the Borrower held by its Independent Member).

(d) The properties and assets of the Borrower are separately identifiable and are not commingled with the properties and assets of any other Person and are readily distinguishable from the property and assets of other Persons.

(e) The Borrower does not have any leasehold interest in, and is not lessee of, any real property other than the Leased Premises or other leasehold interests acquired by the Borrower with the prior written approval of the Administrative Agent.

(f) There are no easements, rights of way or similar agreements affecting the use or occupancy of the Project, the Plants or any Site other than Permitted Liens.

(g) The Borrower has not provided any consent pursuant to Section 3 of the Huron Ground Lease to the creation of any Lien on the Leased Premises covered by such lease. To the Borrower’s knowledge, the lessor under the Huron Ground Lease has not created any Liens on the Leased Premises covered by such lease.

Section 5.14 Taxes. (a) Except as disclosed on Schedule 5.14, the Borrower has (i) filed all Tax Returns required by law to have been filed by it and (ii) has paid all Taxes thereby shown to be owing, as and when the same are due and payable, other than, in the case of this Section 5.14(a)(ii), (A) Taxes that are subject to a Contest or (B) the nonpayment of immaterial Taxes in an aggregate amount not in excess of twenty-five thousand Dollars ($25,000) at any one time outstanding (taking into account any interest and penalties that could accrue or be applicable to such past-due Taxes), and provided that such Taxes are no more than forty-five (45) days past due.

(b) The Borrower is not and will not be taxable as a corporation for federal, state or local tax purposes.

(c) The Borrower is not a party to any tax sharing agreement with any Person (including any Pledgor or any other Affiliate of the Borrower).

(d) The Borrower has not agreed to extend the statute of limitations period applicable to the assessment or collection of any Tax.

(e) The Borrower is not currently under any governmental audit with respect to any Tax for any period, there are no claims for additional Tax being pursued by any Governmental Authority with respect to the business, income or activities of the Borrower, and the Borrower is not aware of any such claims that have not yet been asserted but are likely to be asserted by a Governmental Authority.

Section 5.15 Patents, Trademarks, Etc. The Borrower has obtained and holds in full force and effect all patents, trademarks, copyrights and other such rights or adequate licenses therein, free from unduly burdensome restrictions, that are necessary for the ownership, construction, operation and maintenance of the Project.

Section 5.16 ERISA Plans. (a) Neither the Borrower nor any of its ERISA Affiliates has (or, except as set forth on Schedule 5.16, within the five year period immediately preceding the date hereof had) sponsored, maintained, participated in or incurred any liability in respect of any Plan or Multiemployer Plan. The Borrower does not have any contingent liability with respect to any post-retirement benefit under any “welfare plan” (as defined in Section 3(1) of ERISA), other than liability for continuation coverage under Part 6 of Title I of ERISA or similar state laws.

(b) Neither the Borrower nor any ERISA Affiliate has any liability with respect to the terminated Co-op Retirement Plan (as further described on Schedule 5.16) and all liability of the Borrower and any ERISA Affiliate with respect to the Co-op Retirement Plan has been fully satisfied. After due inquiry, neither the Co-op Retirement Plan, the PBGC, any Plan participant or beneficiary nor any other Person has initiated any claim or other action against the Borrower or any ERISA Affiliate with respect to the Plan and, to the knowledge of the Borrower, no such claim or action is threatened or anticipated. Neither the Borrower nor any ERISA Affiliate has any intention to establish a Plan or Multiemployer Plan to replace the Co-op Retirement Plan.

Section 5.17 Property Rights, Utilities, Supplies Etc. (a) All material property interests, utility services, means of transportation, facilities and other materials necessary for the development, engineering, construction, testing, start-up, use and operation of the Project (including, as necessary, gas, roads, rail transport, electrical, water and sewage services and facilities) are available to the Project, and arrangements in respect thereof have been made on commercially reasonable terms.

(b) There are no material supplies, materials or equipment necessary for operation or maintenance of the Project that are not at the Sites on commercially reasonable terms consistent with the Operating Budget.

Section 5.18 No Defaults. (a) On the Effective Date, no Default or Event of Default has occurred and is continuing.

Section 5.19 Environmental Warranties. (a) (i) The Borrower and its Environmental Affiliates are in compliance in all material respects with all applicable Environmental Laws, (ii) the Borrower and its Environmental Affiliates have all Environmental Approvals required to operate their businesses as presently conducted or as reasonably anticipated to be conducted and are in compliance in all material respects with the terms and conditions thereof, (iii) neither the Borrower nor any of its Environmental Affiliates has received any written communication (other than any such communication that the Administrative Agent has agreed in writing is not materially adverse) from a Governmental Authority that alleges that the Borrower or any Environmental Affiliate is not in compliance in all material respects with all

Environmental Laws and Environmental Approvals, and (iv) there are no circumstances that to the knowledge of the Borrower may prevent or interfere in the future with the Borrower’s compliance in all material respects with all applicable Environmental Laws and Environmental Approvals.

(b) There is no Environmental Claim pending or, to the knowledge of the Borrower, threatened against the Borrower or the Project. To the knowledge of the Borrower, there is no Environmental Claim pending or threatened against any Environmental Affiliate.

(c) There are no present or past actions, activities, circumstances, conditions, events or incidents, including the release, emission, discharge, presence or disposal of any Material of Environmental Concern, that could reasonably be expected to form the basis of any Environmental Claim against the Borrower or any Environmental Affiliate or could otherwise reasonably be expected to interfere with the operation of the Plants.

(d) Without in any way limiting the generality of the foregoing, (i) there are no on-site or off-site locations in which the Borrower or, to the knowledge of Borrower, any Environmental Affiliate has stored, disposed or arranged for the disposal of Materials of Environmental Concern that could reasonably be expected to form the basis of an Environmental Claim, (ii) there are no underground storage tanks located or to be located on property owned or leased by the Borrower, (iii) there is no asbestos or lead paint contained in or forming part of any building, building component, structure or office space owned or leased by the Borrower, and (iv) no polychlorinated biphenyls (PCBs) are or will be used or stored at any property owned or leased by the Borrower, except in such form, condition and quantity as could not reasonably be expected to result in an Environmental Claim.

(e) The Borrower has not received any letter or request for information under Section 104 of the CERCLA, or comparable state laws, and to the knowledge of the Borrower, none of the operations of the Borrower is the subject of any investigation by a Governmental Authority evaluating whether any remedial action is needed to respond to a release or threatened release of any Material of Environmental Concern at the Project or at any other location, including any location to which the Borrower has transported, or arranged for the transportation of, any Material of Environmental Concern with respect to the Project.

Section 5.20 Regulations T, U and X. The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Loan will be used for any purpose that violates, or would be inconsistent with, F.R.S. Board Regulation T, U or X. Terms for which meanings are

provided in F.R.S. Board Regulation T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section 5.20 with such meanings.

Section 5.21 Accuracy of Information. All factual information heretofore or contemporaneously furnished by or on behalf of any of the Borrower or the Pledgor in this Agreement, in any other Transaction Document or otherwise in writing to any Senior Secured Party, any Consultant, or counsel for purposes of or in connection with this Agreement and the other Financing Documents or any transaction contemplated hereby or thereby (other than projections, budgets and other “forward-looking” information that have been prepared on a reasonable basis and in good faith by the Borrower) is, when taken as a whole, true and accurate in every material respect and such information is not, when taken as a whole, incomplete by omitting to state any material fact necessary to make such information not misleading in any material respect.

Section 5.22 Indebtedness. The Obligations are, after giving effect to the Financing Documents and the transactions contemplated thereby, the only outstanding Indebtedness of the Borrower other than Permitted Indebtedness. The Obligations rank at least pari passu with all other Indebtedness of the Borrower.

Section 5.23 Separateness. (a) The Borrower maintains separate bank accounts and separate books of account from the Pledgor. The separate liabilities of the Borrower are readily distinguishable from the liabilities of each Affiliate of the Borrower, including each of the Pledgor.

(b) The Borrower conducts its business solely in its own name in a manner not misleading to other Persons as to its identity.

Section 5.24 Required LLC Provisions. (a) The Borrower LLC Agreement includes each of the terms (collectively, the “Required Borrower LLC Provisions”) set forth in Schedule 5.24(a) and (b) the Pledgor LLC Agreement includes each of the terms (collectively, the “Required Pledgor LLC Provisions”) set forth in Schedule 5.24(b).

Section 5.25 Subsidiaries. The Borrower has no Subsidiaries.

Section 5.26 Foreign Assets Control Regulations, Etc. (a) The use of the proceeds of the Loans by the Borrower will not violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States

Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.

(b) The Borrower:

	(i)		is not and will not become a Person or entity described by Section 1 of Executive Order 13224 of September 24, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (12 C.F.R. 595), and the Borrower does not engage in dealings or transactions with any such Persons or entities; and

	(ii)		is not in violation of the Patriot Act.

Section 5.27 Solvency. On the Effective Date, after giving effect to the transactions contemplated hereby, the Borrower will be Solvent.

Section 5.28 Legal Name and Place of Business. (a) The exact legal name and jurisdiction of formation of the Borrower is: ABE South Dakota, LLC, a limited liability company organized and existing under the laws of the State of Delaware, and, except as set forth on Schedule 5.28, the Borrower has not had any other legal names in the previous five (5) years.

(b) The sole places of business of the Borrower are Aberdeen, South Dakota, Huron, South Dakota and Minneapolis, Minnesota, and the chief executive office of the Borrower is Minneapolis, Minnesota.

Section 5.29 No Brokers. (a) The Borrower has no obligation to pay any finder’s, advisory, broker’s or investment banking fee, except for the fees payable pursuant to Section 3.12 (Fees).

Section 5.30 Insurance. (a) All insurance required to be obtained and maintained pursuant to the Transaction Documents by the Borrower is in full force and effect and complies with the insurance requirements set forth on Schedule 7.01(h). All premiums then due and payable on all such insurance have been paid. To the knowledge of the Borrower, all insurance required to be obtained and maintained by any Project Party with respect to the Project to protect, directly or indirectly, against loss or liability to the Borrower, the Project or any Senior Secured Party pursuant to any Project Document has been obtained, is in full force and effect and complies with the insurance requirements set forth on Schedule 7.01(h) and is otherwise in all material respects in accordance with such Project Document.

Section 5.31 Accounts. The Borrower does not have, and is not the beneficiary of, any bank account other than the Project Accounts.

ARTICLE VI

CONDITIONS PRECEDENT

Section 6.01 Conditions to Effectiveness. The occurrence of the Effective Date is subject to the satisfaction of each of the following conditions precedent:

(a) Delivery of Financing Documents. The Administrative Agent shall have received each of the following fully executed documents, each of which shall be originals, portable document format (“pdf”) or facsimiles (followed promptly by originals), duly executed and delivered by each party thereto and in form and substance reasonably satisfactory to each Lender:

	(i)		this Agreement;

	(ii)		the original Notes, duly executed and delivered by an Authorized Officer of the Borrower in favor of each Lender that has requested a Note;

	(iii)		the Accounts Agreement;

	(iv)		the Security Agreement;

	(v)		the Pledge Agreement;

	(vi)		the Mortgages;

	(vii)		the Fee Letters; and

	(viii)		the Restructuring Agreement.

(b) Project Documents; Contracts; Consents. (i) The Administrative Agent shall have received true, correct and complete copies of (A) unless previously delivered to the Administrative Agent pursuant to the Original Credit Agreement, each of the SNDAs, Interest Rate Cap Agreements and Project Documents, which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Independent Engineer and, in the case of the Ethanol Marketing Agreements and the Distiller’s Grains Marketing Agreement, the Required Lenders, and (B) each other agreement reasonably requested by the Administrative Agent which, if requested, shall be in form and substance reasonably satisfactory to the Administrative Agent.

(ii)

Unless previously delivered to the Administrative Agent pursuant to the Original Credit Agreement or the Administrative Agent agrees otherwise in writing, the Administrative Agent shall have received a Consent, in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of the Ethanol Marketing Agreements and the Distiller’s Grains Marketing Agreement, the Required Lenders), with respect to each Project Document other than the Industry Track Agreement, the Track Area Lease Agreement and the Trinity Railcar Lease, excluding any such Consent that was previously delivered to the Administrative Agent pursuant to the Original Credit Agreement.

(c) Resolutions, Incumbency, Organic Documents. The Administrative Agent shall have received from each of the Borrower and the Pledgor a certificate of an Authorized Officer dated as of the Effective Date, upon which the Administrative Agent and each Lender may conclusively rely, as to:

	(i)		satisfactory resolutions of its board of managers, member(s) or manager(s) (or authorization provided in the Organic Documents of such Loan Party), as the case may be, then in full force and effect authorizing the execution, delivery and performance of (A) each Transaction Document to which it is party (other than any Transaction Document in respect of which such resolutions were previously delivered to the Administrative Agent pursuant to the Original Credit Agreement) and (B) in the case of the Pledgor, the Borrower LLC Agreement, and, in each case, the consummation of the transactions contemplated therein;

	(ii)		the incumbency and signatures of those of its officers and representatives duly authorized to execute and otherwise act with respect to each Financing Document to which it is party; and

	(iii)		such Person’s Organic Documents, which shall be in form and substance reasonably satisfactory to the Administrative Agent and shall include (x) in the case of the Borrower, the Required Borrower LLC Provisions, (y) in the case of the Pledgor, the Required Pledgor LLC Provisions, and in each case certifying that (A) such documents are in full force and

effect and no term or condition thereof has been amended from the form attached to such certificate, (B) no material breach, material default or material violation thereunder has occurred and is continuing, and (C) the conversion of the Borrower from a Delaware limited partnership to a Delaware limited liability company has been completed.

(d) Authority to Conduct Business. The Administrative Agent shall have received satisfactory evidence, including certificates of good standing from the Secretaries of State of each of the following jurisdictions, attesting (where available) that each of the Borrower and the Pledgor is (i) duly authorized as a limited liability company to carry on its business in the State of South Dakota and (ii) duly organized, validly existing and in good standing in the State of Delaware.

(e) Opinions of Counsel. The Administrative Agent shall have received the following legal opinions, addressed to the Senior Secured Parties, and each in form and substance reasonably satisfactory to the Lenders:

	(i)		the opinion of counsel to Advanced BioEnergy, LLC, Dakota Fuels., Inc., ABE Heartland, LLC and the Borrower regarding the effectiveness of the conversion of the Borrower from a Delaware limited partnership to a Delaware limited liability company;

	(ii)		the opinion of Delaware and New York counsel to the Loan Parties; and

	(iii)		the opinion of South Dakota counsel satisfactory to the Administrative Agent.

(f) Lien Search; Perfection of Security. The Collateral Agent shall have been granted a first priority perfected security interest in all Collateral relating to the Borrower and the Project, and the Administrative Agent shall have received satisfactory copies or evidence, as the case may be, of the following actions in connection with the perfection of the Security:

(i)

completed requests for information or lien search reports, dated no more than five (5) days (or such other time period reasonably acceptable to the Administrative Agent) before the Effective Date, listing all effective UCC financing statements, fixture filings or other filings evidencing a security interest filed in Delaware, South Dakota and any

			other jurisdictions reasonably requested by the Administrative Agent that name the Borrower or the Pledgor as a debtor, together with copies of each such UCC financing statement, fixture filing or other filings, which shall show no Liens other than Permitted Liens;
	(ii)		acknowledgment copies or stamped receipt copies (or satisfactory confirmation of submission for filing) of proper UCC financing statements, fixture filings and other filings and recordations, duly filed in all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Security Documents covering the Collateral described therein;

	(iii)		mortgage release and UCC termination statements, in proper form for filing in all jurisdictions that the Administrative Agent may deem necessary or desirable, terminating the existing mortgages and all existing UCC financing statements and fixture filings covering the Collateral relating to the Subordinated Debt (as defined in the Original Credit Agreement), and such mortgage release and each such UCC termination statement shall be duly filed on or prior to the Effective Date;

	(iv)		the original certificates representing all Equity Interests in the Borrower shall have been delivered to the Collateral Agent, in each case together with a duly executed irrevocable proxy and a duly executed transfer power in the forms attached to the Pledge Agreement relating to such Equity Interests; and

	(v)		evidence of the completion of all other actions, recordings and filings of or with respect to the Security Documents delivered pursuant to Section 6.01(a)(Conditions to Effectiveness — Delivery of Financing Documents) that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first-priority Liens created thereunder.

(g) Governmental Approvals. Except as provided in Schedule 5.03, the Borrower shall have obtained all Necessary Project Approvals listed on Part A of

Schedule 5.03, and the Administrative Agent shall have received a duly executed certificate of an Authorized Officer of the Borrower certifying that (i) attached to such certificate are true, correct and complete copies of each such Necessary Project Approval (other than the Necessary Project Approvals previously delivered to the Administrative Agent pursuant to the Original Credit Agreement), each of which was duly obtained, is validly issued, is in full force and effect and is final and Non-Appealable, (ii) all Necessary Project Approvals required for the Project at a later date will be obtained in due course prior to the time when needed and without conditions that would impose material expense on the Project, (iii) Schedule 5.03 accurately identifies all Necessary Project Approvals necessary for the Project, and (iv) the actions identified in Schedule 5.03 comprise all actions necessary or desirable for the continued effectiveness or replacement of such Necessary Project Approvals, each such action to be completed prior to the Effective Date has been completed, and each other such action will be timely completed.

(h) Third Party Approvals. The Administrative Agent shall have received reasonably satisfactory documentation of any approval by any Person required in connection with any transaction contemplated by this Agreement or any other Financing Document that the Administrative Agent has reasonably requested in connection herewith.

(i) Expenses. The Administrative Agent shall have received for its own account, or for the account of each Senior Secured Party entitled thereto, all costs and expenses (including costs, fees and expenses of legal counsel to each Lender and Consultants) for which invoices have been presented.

(j) Insurance. The Administrative Agent shall have received satisfactory evidence that the insurance requirements set forth on Schedule 7.01(h) with respect to the Borrower and the Project have been satisfied, including binders or certificates evidencing the commitment of insurers to provide each insurance policy required by Schedule 7.01(h), evidence of the payment of all premiums then due and owing in respect of such insurance policies and a duly executed certificate of (x) the Insurance Consultant substantially in the form of Exhibit D and (y) the Borrower’s insurance broker (or insurance carrier) substantially in the form of Attachment 1 to Exhibit D, in each case appropriately completed to the satisfaction of the Administrative Agent and certifying, inter alia, that all such insurance policies are in full force and effect.

(k) Title Insurance. The Administrative Agent shall have received a date-down endorsement to each Title Insurance Policy, which endorsement shall have the effect of (i) updating the date of the Title Insurance Policy to the Effective Date, (ii) providing full mechanics’ lien coverage, and (iii) in the case of the Huron Plant, adding the land transferred to the Borrower pursuant to the Huron Additional Parcel

Quitclaim Deed to the Mortgaged Property insured under the Title Insurance Policy, and which endorsement shall otherwise constitute a Title Continuation for each Title Insurance Policy, except with respect to survey exceptions, which such survey exceptions shall be subject to the post-closing covenant hereinafter set forth in Section 7.01(l)(iv).

(l) Bank Regulatory Requirements. The Administrative Agent shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act.

(m) Administrative Services Agreement. The Borrower shall have entered into the Administrative Services Agreement with Advanced BioEnergy, LLC, in form and substance satisfactory to the Lenders.

(n) Process Agent. The Administrative Agent shall have received, in form and substance reasonably satisfactory to the Administrative Agent, acceptances from the Process Agent for each of the Borrower and the Pledgor appointed under Section 10.02(d) (Applicable Law; Jurisdiction; Etc.- Appointment of Process Agent and Service of Process) and as required under each other Financing Document in effect on the Effective Date.

(o) Restructuring Agreement Conditions. All of the conditions to the consummation of restructuring contemplated by the Restructuring Agreement shall have been satisfied.

(p) Funding of Project Accounts. The Debt Service Reserve Account has been, or on the Closing Date, will be funded in an amount equal to the Debt Service Reserve Required Amount, and the Working Capital Reserve Account has been, or on the Closing Date, will be funded in an amount equal to the Working Capital Reserve Required Amount.

(q) CoBank Mortgage Subordinations. In connection with the delivery of the Title Continuation to each Title Insurance Policy, as described in Section 6.01(k), the Administrative Agent shall have received the CoBank Mortgage Subordinations, in form and substance satisfactory to the Administrative Agent and the Title Insurance Company.

ARTICLE VII

COVENANTS

Section 7.01 Affirmative Covenants. The Borrower agrees with each Senior Secured Party that, until the Security Discharge Date, the Borrower will perform the obligations set forth in this Section 7.01.

(a) Compliance with Laws. The Borrower shall comply in all material respects with all Laws (other than Environmental Laws which are addressed in Section 7.01(b) (Affirmative Covenants — Environmental Matters)) applicable to it or to its business or property.

(b) Environmental Matters.

	(i)		The Borrower shall (A) comply in all material respects with all Environmental Laws, (B) keep the Project free of any Lien imposed pursuant to any Environmental Law, (C) pay or cause to be paid when due and payable by the Borrower any and all costs required in connection with any Environmental Laws, including the cost of identifying the nature and extent of the presence of any Materials of Environmental Concern in, on or about the Project or on any real property owned or leased by the Borrower or on the Mortgaged Property, and the cost of delineation, management, remediation, removal, treatment and disposal of any such Materials of Environmental Concern, and (D) use its best efforts to ensure that no Environmental Affiliate takes any action or violates any Environmental Law that could reasonably be expected to result in an Environmental Claim.

	(ii)		The Borrower shall not use or allow the Project to generate, manufacture, refine, produce, treat, store, handle, dispose of, transfer, process or transport Materials of Environmental Concern other than in compliance in all material respects with Environmental Laws.

(c) Operations and Maintenance. The Borrower shall own, operate and maintain (or cause to be operated and maintained) the Plants in all material respects in accordance with (i) the terms and provisions of the Transaction Documents, (ii) all

applicable Governmental Approvals and Laws and (iii) Prudent Ethanol Operating Practice.

(d) Maintenance of Properties.

	(i)		The Borrower shall keep, or cause to be kept, in good working order and condition, ordinary wear and tear excepted, all of its properties and equipment related to the Project that are necessary or useful in the proper conduct of its business.

	(ii)		The Borrower shall not permit the Project or any material portion thereof to be removed, demolished or materially altered, unless such material portion that has been removed, demolished or materially altered has been replaced or repaired as permitted under this Agreement.

	(iii)		The Borrower shall continue to engage in business of the same type as now conducted by it and do or cause to be done all things necessary to preserve and keep in full force and effect (A) its limited liability company existence and good standing in the State of Delaware and (B) its material patents, trademarks, trade names, copyrights, franchises and similar rights.

(e) Payment of Obligations. The Borrower shall pay and discharge as the same shall become due and payable all of its obligations and liabilities, including (i) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same (A) are subject to a Contest or (B) are immaterial Taxes in an aggregate amount not in excess of twenty-five thousand Dollars ($25,000) at any one time outstanding (taking into account any interest and penalties that could accrue or be applicable to such past-due Taxes), and provided that such Taxes are no more than forty-five (45) days past due, (ii) all of its obligations and liabilities under its Contractual Obligations, except as are subject to a Contest and (iii) all lawful claims that, if unpaid, would by law become a Lien upon its properties (other than Permitted Liens), unless the same are subject to a Contest.

(f) Governmental Approvals. The Borrower shall maintain in full force and effect, in the name of the Borrower, each Necessary Project Approval and obtain each Deferred Approval (each of which shall be reasonably satisfactory to the Administrative Agent) prior to the time it is required to be obtained hereunder, including as set forth on Part B of Schedule 5.03, but in any event no later than the date it is

required to be obtained under applicable Law (other than any such failure to maintain or obtain that could not reasonably be expected to have a Material Adverse Effect on the Borrower).

(g) Use of Proceeds and Cash Flow. The Borrower shall cause all Cash Flow, Insurance Proceeds and Condemnation Proceeds to be applied in accordance with the Accounts Agreement.

(h) Insurance. Without cost to any Senior Secured Party, the Borrower shall at all times obtain and maintain, or cause to be obtained and maintained, the types and amounts of insurance listed and described on Schedule 7.01(h), in accordance with the terms and provisions set forth therein for the Project and the Borrower, and shall obtain and maintain such other insurance as may be required pursuant to the terms of any Transaction Document. The Borrower shall cause each such insurance to be in place no less than ten (10) days prior to the date required, and each required insurance policy shall be renewed or replaced prior to the expiration thereof. In the event the Borrower fails to take out or maintain the full insurance coverage required by this Section 7.01(h), the Administrative Agent may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced by the Administrative Agent shall become an Obligation, and the Borrower shall forthwith pay such amounts to the Administrative Agent, together with interest from the date of payment by the Administrative Agent at the Default Rate.

(i) Books and Records; Inspections. The Borrower shall keep proper books of record and account in which complete, true and accurate entries in conformity with GAAP and all requirements of Law shall be made of all financial transactions and matters involving the assets and business of the Borrower, and shall maintain such books of record and account in material conformity with applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower. The Borrower shall keep books and records separate from the books and records of any other Person (including any Affiliates of the Borrower) that accurately reflect all of its business affairs, transactions and the documents and other instruments that underlie or authorize all of its limited liability company actions. The Borrower shall permit officers and designated representatives of the Agents, Lenders and Consultants to visit and inspect any of the properties of the Borrower (including the Project), to examine its limited liability company, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its partners, directors, officers and independent public accountants, and with the Pledgor and its directors, officers and independent public accountants, in each case at the expense of the Borrower (provided that so long as no Default or Event of Default has occurred and is continuing, such visits or inspections shall be at the expense of the Borrower only once per fiscal quarter) and at such reasonable times during normal business hours and as often as may

be reasonably desired, upon reasonable advance notice to the Borrower; provided that if a Default or Event of Default has occurred and is continuing, any Agent, Lender or Consultant (or any of their respective officers or designated representatives) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice.

(j) Operating Budget.

	(i)		No less than forty-five (45) days in advance of the beginning of each Fiscal Year, the Borrower shall adopt an operating plan and a budget for the Project setting forth in reasonable detail the projected requirements for Operation and Maintenance Expenses and Maintenance Capital Expenses for the ensuing Fiscal Year and provide a copy of such operating plan and budget at such time to the Administrative Agent. (Each such operating plan and budget is herein called an “Operating Budget”.) Each Operating Budget shall be prepared in accordance with a form approved by the Financial Advisor and shall become effective upon approval, which shall not be unreasonably withheld, conditioned or delayed, of the Administrative Agent (acting in consultation with the Consultants). If the Borrower shall not have adopted an annual Operating Budget before the beginning of any Fiscal Year or any Operating Budget adopted by the Borrower shall not have been accepted by the Administrative Agent before the beginning of any upcoming Fiscal Year, the Operating Budget for the preceding Fiscal Year shall, until the adoption of an annual Operating Budget, by the Borrower and acceptance of such Operating Budget, by the Administrative Agent, be deemed to be in force and effective as the annual Operating Budget for such upcoming Fiscal Year.

	(ii)		Each Operating Budget delivered to the Administrative Agent pursuant to this Section 7.01(j) shall be accompanied by a memorandum detailing all material assumptions used in the preparation of such Operating Budget, shall contain a line item for each Operating Budget Category, shall specify for each month and for each such Operating Budget Category the amount budgeted for such category for such

month, and shall clearly distinguish Operation and Maintenance Expenses and Maintenance Capital Expenses.

(k) Project Documents.

	(i)		The Borrower shall maintain in full force and effect, preserve, protect and defend its material rights under, and take all actions necessary to prevent termination or cancellation (except by expiration in accordance with its terms) of, each of the SNDAs, Interest Rate Cap Agreements and Project Documents. The Borrower shall exercise all material rights, discretion and remedies under each of the SNDAs, Interest Rate Cap Agreements and Project Documents, if any, in accordance with its terms and in a manner consistent with (and subject to) the Borrower’s obligations under the Financing Documents.

	(ii)		Promptly upon execution of any Project Document by the Borrower, the Borrower shall deliver to the Administrative Agent certified copies of such Project Document and, if reasonably requested by the Administrative Agent, any Ancillary Documents related thereto.

	(iii)		Within sixty (60) days after the Effective Date, the Borrower shall deliver to the Administrative Agent Consents with respect to the Industry Track Agreement, the Track Area Lease Agreement and the Trinity Railcar Lease.

	(iv)		If any of the SNDAs and the Project Documents provides that such document will expire prior to the Final Maturity Date, then, on or prior to the date that is forty-five (45) days (or such shorter period as shall be satisfactory to the Administrative Agent) prior to the expiration date of such document, the Borrower shall enter into an agreement replacing such document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders.

(l) Preservation of Title; Acquisition of Additional Property.

(i)

The Borrower shall preserve and maintain (A) good, marketable and insurable fee interest in the Sites (except for

			the Leased Premises) and valid easement interest to its easement interest in the Sites, (B) good and valid leasehold interest in the Leased Premises and (C) good, legal and valid title to all of its other respective material properties and assets, in each case free and clear of all Liens other than Permitted Liens. If the Borrower at any time acquires any real property or leasehold or other interest in real property (including, to the extent reasonably requested by the Administrative Agent, with respect to any material easement or right-of-way not covered by the Mortgages), the Borrower shall, promptly upon such acquisition, execute, deliver and record a supplement to the Mortgage relating to the Plant(s) with respect to which such real property or leasehold or other interest in real property relates, reasonably satisfactory in form and substance to the Administrative Agent, subjecting such real property or leasehold or other interest to the Lien and security interest created by such Mortgage. If reasonably requested by the Administrative Agent, the Borrower shall obtain an appropriate endorsement or supplement to any Title Insurance Policy insuring the Lien of the Security Documents in such additional property, subject only to Permitted Liens.

	(ii)		Prior to the acquisition or lease of any such additional real property interests (other than easements that do not involve soil disturbance), the Borrower shall deliver to the Administrative Agent an Environmental Site Assessment Report(s) with respect to such real property (if, in the reasonable determination of the Administrative Agent, acting in consultation with the Independent Engineer, such Environmental Site Assessment Report(s) with respect to such real property interests is warranted), in each case along with a corresponding reliance letter from the consultant issuing such report(s) (to the extent such report(s) does not permit reliance thereon by the Senior Secured Parties). Each such Environmental Site Assessment Report(s) shall be in form and substance reasonably satisfactory to the Administrative Agent and shall not identify any material liability associated with the condition of such real property.

	(iii)		If the Borrower owns or acquires any land (leasehold, fee or easement) not shown on any then-current Survey, the Borrower shall provide the Administrative Agent a Survey, in form and substance satisfactory to the Administrative Agent, covering such land.

	(iv)		Within forty-five (45) days after the Effective Date, the Administrative Agent shall have received a Title Continuation to each Title Insurance Policy, which endorsement shall have the effect of removing all survey exceptions that have arisen since the previous Title Continuations were issued to the Administrative Agent on March 31, 2008, other than any such specific survey exceptions which do not materially and adversely affect the operation of the Project, as may be reasonably determined by the Administrative Agent.

(m) Maintenance of Liens; Creation of Liens on Newly Acquired Property.

	(i)		The Borrower shall take or cause to be taken all action necessary or desirable to maintain and preserve the Lien of the Security Documents and the first-ranking priority thereof.

	(ii)		The Borrower shall take all actions required to cause each Additional Project Document to be or become subject to the Lien of the Security Documents (whether by amendment to any Security Agreement or otherwise) and shall deliver or cause to be delivered to the Administrative Agent all Ancillary Documents related thereto.

	(iii)		Simultaneously with the making of any investment in Cash Equivalents, the Borrower shall take or cause to be taken all actions to require such Cash Equivalent in the Project Accounts to be or become subject to a first priority perfected Lien in favor of the Senior Secured Parties.

(n) Certificate of Formation. The Borrower shall observe all of the separateness and other provisions and procedures of its certificate of formation and the Borrower LLC Agreement.

(o) Separateness. The Borrower shall comply at all times with the separateness provisions set forth on Schedule 5.24(a).

(p) Further Assurances. Upon written request of the Administrative Agent or the Required Lenders, the Borrower shall promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents (including UCC financing statements and UCC continuation statements):

	(i)		that are necessary or advisable for compliance with Section 7.01(m)(i) (Affirmative Covenants — Maintenance of Liens; Creation of Liens on Newly Acquired Property);

	(ii)		for the purposes of ensuring the validity and legality of this Agreement or any other Financing Document and the rights of the Senior Secured Parties hereunder or thereunder; and

	(iii)		for the purposes of facilitating the proper exercise of rights and powers granted to the Senior Secured Parties under this Agreement or any other Financing Document.

(q) First Priority Ranking. The Borrower shall cause its payment obligations with respect to the Loans to constitute direct senior secured obligations of the Borrower and to rank no less than pari passu in priority of payment, in right of security and in all other respects to all other Indebtedness of the Borrower.

(r) Quarterly Calculations.

	(i)		Not more than three (3) Business Days prior to each Quarterly Payment Date, the Borrower shall provide to the Administrative Agent a calculation of the Debt Service Reserve Required Amount, certified by a Financial Officer of the Borrower.

	(ii)		Not more than three (3) Business Days prior to each Quarterly Payment Date, the Borrower shall calculate the Historical Debt Service Coverage Ratio and the Prospective Debt Service Coverage Ratio, and shall provide written evidence to the Accounts Bank of such calculations certified by a Financial Officer of the Borrower. Each such calculation shall be subject to review by the Administrative Agent.

(s) Financial Model.

	(i)		Within sixty (60) days after the Effective Date (which period may be extended by an additional thirty (30) days with the prior written approval of the Administrative Agent), and thereafter no less than forty-five (45) days prior to the end of each Fiscal Year, the Borrower shall deliver to the Lenders, the Administrative Agent and the Consultants a proposed updated Financial Model, together with the underlying assumptions, containing projections of Cash Flow, Operation and Maintenance Expenses (including each Operating Budget Category), Maintenance Capital Expenses and Cash Flow Available for Debt Service, in each case on a quarterly basis, with respect to the Project for the immediately succeeding Fiscal Year. If the Administrative Agent does not approve the updated Financial Model proposed by the Borrower within thirty (30) days following receipt thereof (and, so long as no Default or Event of Default has occurred and is continuing, after consultation and no less than ten (10) days of good faith negotiations with the Borrower), the Administrative Agent may instruct the Consultants to prepare an updated Financial Model based on the reasonable professional judgment of the Consultants (and such updated Financial Model prepared by the Consultants shall be binding on the Lenders and the Borrower).

	(ii)		If in any Fiscal Year (A) the actual Cash Flow for the completed Fiscal Quarters in such Fiscal Year (or, in the case of the Fiscal Year in which the Effective Date occurs, the period from the Effective Date to the end of the most recent completed Fiscal Quarter) (such period, the “Specified Period”) is ninety percent (90%) or less of the projections for such period set forth in the then-current Financial Model, or (B) Operation and Maintenance Expenses and Maintenance Capital Expenses for the Specified Period are, in the aggregate, ten percent (10%) or more above the projections for such period set forth in the then-current Financial Model, the Borrower shall, no less than thirty (30) days prior to the end of the immediately following Fiscal Quarter, deliver to the Administrative Agent, the Lenders and the Consultants a proposed updated

Financial Model, together with the underlying assumptions, containing projections of Cash Flow, Operation and Maintenance Expenses (including each Operating Budget Category), Maintenance Capital Expenses and Cash Flow Available for Debt Service, in each case on a quarterly basis, with respect to the Project through the end of the immediately following Fiscal Year; provided that if (x) the Historical Debt Service Coverage Ratio calculated as of the most recent Quarterly Payment Date exceeds 4.0x and (y) the Borrower delivers to the Administrative Agent a certificate certifying that the Prospective Debt Service Coverage Ratio calculated as of such most recent Quarterly Payment Date exceeds 4.0x notwithstanding the deviation from the Financial Model described in item (A) or (B) above, as applicable, the Borrower shall not be required to deliver an updated Financial Model pursuant to this Section 7.01(s).

	(iii)		If the Administrative Agent does not approve the updated Financial Model proposed by the Borrower pursuant to Section 7.01(s)(ii) above within fifteen (15) days following receipt thereof (and, so long as no Default or Event of Default has occurred and is continuing, after consultation with the Borrower), the Administrative Agent may instruct the Consultants to prepare an updated Financial Model based on the reasonable professional judgment of the Consultants (and such updated Financial Model prepared by the Consultants shall be binding on the Lenders and the Borrower).

	(iv)		All costs incurred in connection with the preparation and review of updated Financial Models under this Section 7.01(s) shall be for the account of the Borrower.

(t) Interest Rate Cap Agreements. The Borrower may enter into Interest Rate Cap Agreements on or prior to the Effective Date for notional amounts, in the aggregate at the time of the execution thereof, not in excess of seventy-five percent (75%) of the aggregate principal amount of Loans outstanding on the Effective Date.

(u) Commodity Hedging Programs. The Borrower may, from time to time, amend the Commodity Risk Management Plan; provided that any material changes thereto shall require the prior written approval of the Administrative Agent, which

approval shall not be unreasonably withheld, conditioned or delayed. The Borrower at all times shall comply with, and shall ensure that all Commodity Hedging Arrangements comply with, the Commodity Risk Management Plan.

(v) Debt Service Reserve. The Borrower shall ensure that the Debt Service Reserve Account is at all times fully funded to the Debt Service Reserve Required Amount, provided, that if, on any date, any amounts are withdrawn from the Debt Service Reserve Account, then the Borrower will have until the second Quarterly Payment Date following such date to ensure that the Debt Service Reserve Account is fully funded to the Debt Service Reserve Required Amount.

Section 7.02 Negative Covenants. The Borrower agrees with each Senior Secured Party that, until the Security Discharge Date, the Borrower will perform the obligations set forth in this Section 7.02.

(a) Restrictions on Indebtedness of the Borrower. The Borrower will not create, incur, assume or suffer to exist any Indebtedness except:

	(i)		the Obligations;

	(ii)		Indebtedness under the Permitted Commodity Hedging Arrangements;

	(iii)		accounts payable to trade creditors incurred in the ordinary course of business and not more than forty-five (45) days past due; and

	(iv)		obligations as lessee under operating leases or leases for the rental of any real or personal property which are required by GAAP to be capitalized where all such leases (other than railcar leases) under this Section 7.02(a)(iv) do not, in the aggregate, require the Borrower to make scheduled payments to the lessors in any Fiscal Year in excess of two hundred thousand Dollars ($200,000) in the aggregate.

(b) Liens. The Borrower shall not create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets (including its Equity Interests), whether now owned or hereafter acquired, except:

(i)

Liens in favor, or for the benefit, of the Collateral Agent pursuant to the Security Documents;

	(ii)		Liens for taxes, assessments and other governmental charges that are not yet due or the payment of which is the subject of a Contest;

	(iii)		Liens of carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due or the payment of which is the subject of a Contest;

	(iv)		any Liens reflected on the Title Insurance Policy or any Title Continuation; and

	(v)		Liens arising by reason of judgments that are subject to a Contest.

(c) Permitted Investments. The Borrower shall not make any investments, loans or advances (whether by purchase of stocks, bonds, notes or other securities, loans, extensions of credit, advances or otherwise) except for investments in Cash Equivalents.

(d) Change in Business. The Borrower shall not (i) enter into or engage in any business other than the ownership, operation, maintenance, use and financing of the Plants and all activities reasonably related thereto or (ii) change in any material respect the scope of the Project from that which is contemplated as of the date hereof.

(e) Equity Issuances. The Borrower shall not issue any Equity Interests unless such Equity Interests are immediately pledged to the Collateral Agent (for the benefit of the Senior Secured Parties) on a first-priority perfected basis pursuant to the Pledge Agreement or, if necessary, a supplement thereto or a pledge and security agreement in substantially the form of the Pledge Agreement.

(f) Asset Dispositions. The Borrower shall not sell, lease, assign, transfer or otherwise dispose of assets of the Project or the Borrower (other than Products), whether now owned or hereafter acquired, except:

	(i)		disposal of assets that are promptly replaced in accordance with the then current Operating Budget;

	(ii)		to the extent that such assets are obsolete or no longer useful or no longer usable in connection with the operation or maintenance of the Project; and

(iii)

disposal of assets with a fair market value, or at a disposal price, of less than one million Dollars ($1,000,000) in the aggregate during any Fiscal Year; provided, that such disposal does not, and would not reasonably be expected to, adversely affect the operation or maintenance of the Project.

(g) Consolidation, Merger. The Borrower will not (i) directly or indirectly liquidate, wind up, terminate, reorganize or dissolve itself (or suffer any liquidation, winding up, termination, reorganization or dissolution) or otherwise wind up; or (ii) acquire (in one transaction or a series of related transactions) all or any substantial part of the assets, property or business of, or any assets that constitute a division or operating unit of, the business of any Person or otherwise merge or consolidate with or into any other Person.

(h) Transactions with Affiliates. The Borrower shall not enter into or cause, suffer or permit to exist any arrangement or contract with any of its Affiliates or any other Person that owns, directly or indirectly, any Equity Interest in the Borrower unless such arrangement or contract (i) is fair and reasonable to the Borrower and (ii) is an arrangement or contract that is on an arm’s-length basis and contains terms no less favorable than those that would be entered into by a prudent Person in the position of the Borrower with a Person that is not one of its Affiliates.

(i) Accounts.

	(i)		The Borrower shall not maintain, establish or use any deposit account, securities account (as each such term is defined in the UCC) or other banking account other than the Project Accounts.

	(ii)		The Borrower shall not change the name or account number of any of the Project Accounts without the prior written consent of the Administrative Agent.

(j) Subsidiaries. The Borrower shall not create or acquire any Subsidiary or enter into any partnership or joint venture.

(k) ERISA. The Borrower will not engage in any prohibited transactions under Section 406 of ERISA or under Section 4975 of the Code with respect to any Plan or any other employee benefit plan subject to ERISA that could reasonably result in a material liability to the Borrower. The Borrower will not incur any obligation or liability in respect of any Plan, Multiemployer Plan or employee welfare benefit plan

providing post-retirement welfare benefits (other than a plan providing continue coverage under Part 6 of Title I of ERISA or similar state law).

(l) Taxes. The Borrower shall not make any election to be treated as an association taxable as a corporation for federal, state or local tax purposes.

(m) Project Documents.

	(i)		The Borrower shall not direct or consent or agree to any amendment, modification, supplement, waiver or consent in respect of any provision of any of the SNDAs, Interest Rate Cap Agreements, Organic Documents of the Borrower, and Project Documents (other than any immaterial amendment or modification, in which case a true, correct and complete copy shall be delivered to the Administrative Agent) without the prior written consent of the Administrative Agent, and in the case of any amendment to a Project Document due to the removal or replacement of a Project Party, the prior written consent of the Required Lenders.

	(ii)		Except for collateral assignments under the Security Documents, the Borrower shall not assign any of its rights under any of the SNDAs, Interest Rate Cap Agreements and Project Documents to which it is a party to any Person, or consent to the assignment of any obligations under any such document by any other party thereto, without the prior written approval of the Administrative Agent, and in the case of any assignment of any obligations under any Project Document by a Project Party, without the prior written approval of the Required Lenders.

(n) Additional Project Documents. The Borrower shall not enter into any Additional Project Document except with the prior written approval of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed).

(o) Suspension or Abandonment. The Borrower shall not (i) permit or suffer to exist an Event of Abandonment or (ii) order or consent to any suspension of work under any Project Document, in each case without the prior written approval of the Required Lenders.

(p) Use of Proceeds; Margin Regulations. The Borrower shall not use any part of the proceeds of any Loan to purchase or carry any Margin Stock (as defined

in Regulation U) or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. The Borrower shall not use the proceeds of any Loan in a manner that could violate or be inconsistent with the provisions of Regulations T, U or X.

(q) Environmental Matters. The Borrower shall not permit (i) any underground storage tanks to be located on any property owned or leased by the Borrower, (ii) any asbestos to be contained in or form part of any building, building component, structure or office space owned or leased by the Borrower, (iii) any polychlorinated biphenyls (PCBs) to be used or stored at any property owned or leased by the Borrower or (iv) any other Materials of Environmental Concern to be used, stored or otherwise be present at any property owned or leased by the Borrower, other than Materials of Environmental Concern necessary for the operation of the Project and used in accordance with all Laws and Prudent Ethanol Operating Practice.

(r) Restricted Payments. The Borrower shall not make any Restricted Payments unless each of the conditions set forth below has been satisfied:

	(i)		the aggregate amount of principal outstanding on the Loans as of the date of such Restricted Payment shall not exceed twenty-five million Dollars ($25,000,000);

	(ii)		such Restricted Payment is made on, or within thirty (30) days following, a Quarterly Payment Date (provided that such Restricted Payment is made only from funds on deposit in or standing to the credit of the Revenue Account on such Quarterly Payment Date);

	(iii)		no Default or Event of Default has occurred and is continuing or would occur as a result of such Restricted Payment;

	(iv)		each of the Debt Service Reserve Account and the Working Capital Reserve Account is fully funded to any applicable required level;

	(v)		each of the Historical Debt Service Coverage Ratio and the Prospective Debt Service Coverage Ratio, calculated as of such Quarterly Payment Date, is greater than or equal to 1.5:1.0; and

	(vi)		the Administrative Agent has received a Restricted Payment Certificate, duly executed by an Authorized

Officer of the Borrower, confirming that each of the conditions set forth in clauses (i) through (vi) of this Section 7.02(r) have been satisfied on and as of the date such Restricted Payment is requested to be made, and setting forth a detailed calculation of each of the Historical Debt Service Coverage Ratio and Prospective Debt Service Coverage Ratio.

(s) Commodity Hedging Arrangements; Interest Rate Protection Arrangements. The Borrower shall not enter into any Commodity Hedging Arrangements that (i) are not in accordance with the Commodity Risk Management Plan, or (ii) are for speculative purposes. The Borrower shall not enter into any interest rate swap, collar, put, or cap, or other interest rate protection arrangement, except for Interest Rate Cap Agreements that are permitted pursuant to Section 7.01(t) (Interest Rate Cap Agreements).

(t) Accounting Changes. The Borrower shall not make any change in (i) its accounting policies or reporting practices or (ii) its Fiscal Year without the prior written consent of the Administrative Agent.

Section 7.03 Reporting Requirements. The Borrower will furnish to the Administrative Agent, who shall distribute copies of the following to each Lender:

(a) Quarterly Financial Statements. As soon as available and in any event within forty-five (45) days after the end of the first three Fiscal Quarters of each Fiscal Year, balance sheets and statements of income and cash flows of the Borrower for such Fiscal Quarter and for the period commencing at the end of the previous Fiscal Year and ending with the end of such Fiscal Quarter, prepared in accordance with GAAP.

(b) Annual Financial Statements. As soon as available and in any event within ninety (90) days after the end of each Fiscal Year, a copy of the annual audit report for such Fiscal Year for the Borrower including therein balance sheets as of the end of such Fiscal Year and statements of income and cash flows of the Borrower for such Fiscal Year, and accompanied by an unqualified opinion of the Auditors stating that such financial statements present fairly in all material respects the financial position of the Borrower for the periods indicated in conformity with GAAP applied on a basis consistent with prior periods, which report and opinion shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit.

(c) Certificate of Financial Officer. Concurrently with the delivery of the financial statements referred to in Section 7.03(a) and (b), a certificate executed by a Financial Officer of the Borrower stating that:

	(i)		such financial statements fairly present in all material respects the financial condition and results of operations of the Borrower on the dates and for the periods indicated in accordance with GAAP subject, in the case of interim financial statements, to the absence of notes and normally recurring year-end adjustments;

	(ii)		such Financial Officer has reviewed the terms of the Financing Documents and has made, or caused to be made under his or her supervision, a review in reasonable detail of the business and financial condition of the Borrower during the accounting period covered by such financial statements; and

	(iii)		as a result of such review such Financial Officer has concluded that no Default or Event of Default has occurred during the period covered by such financial statements through and including the date of such certificate or, if any Default or Event of Default has occurred, specifying the nature and extent thereof and, if continuing, the action that the Borrower has taken and proposes to take in respect thereof.

(d) Auditor’s Letters. Promptly upon receipt, copies of any detailed audit reports, management letters or recommendations submitted to the Borrower (or the audit or finance committee of the Borrower) by the Auditors in connection with the accounts or books of the Borrower, or any audit of the Borrower.

(e) Notice of Default or Event of Default. As soon as possible and in any event within five (5) days after the Borrower obtains or should have obtained knowledge of any Default or Event of Default, a statement of an Authorized Officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower has taken and proposes to take with respect thereto.

(f) Notice of Other Events. Within five (5) days after the Borrower obtains knowledge thereof, a statement of an Authorized Officer of the Borrower setting forth details of:

	(i)		any litigation or governmental proceeding pending or threatened in writing against any of the Borrower, the Project or the Pledgor;

	(ii)		any litigation or governmental proceeding pending or threatened in writing against any Project Party that has or could reasonably be expected to have a Material Adverse Effect;

	(iii)		any other event, act or condition that has or could reasonably be expected to have a Material Adverse Effect; or

	(iv)		notification of any event of force majeure or similar event under a Project Document.

(g) Project Document or Additional Project Document Notice. Promptly after delivery or receipt thereof, copies of all material notices or documents given or received by the Borrower, pursuant to any of the SNDAs, the Borrower LLC Agreement, the Project Documents or any Additional Project Document including:

	(i)		any written notice alleging any breach or default thereunder; and

	(ii)		any written notice regarding, or request for consent to, any assignment, termination, modification, waiver or variation thereof.

(h) ERISA Event. As soon as possible and in any event within five (5) days after the Borrower knows, or has reason to know, that any of the events described below has occurred, a duly executed certificate of an Authorized Officer of the Borrower setting forth the details of each such event and the action that the Borrower proposes to take with respect thereto, together with a copy of any notice or filing from the PBGC, Internal Revenue Service or Department of Labor or that may be required by the PBGC or other U.S. Governmental Authority with respect to each such event:

(i)

any Termination Event with respect to any Plan or a Multiemployer Plan has occurred or will occur that could reasonably be expected to result in any liability to the Borrower;

	(ii)		any condition exists with respect to a Plan that presents a material risk of termination of a Plan (other than a standard termination under Section 4041(b) of ERISA) or imposition of an excise tax or other material liability on the Borrower;

	(iii)		an application has been filed for a waiver of the minimum funding standard under Section 412 of the Code or Section 302 of ERISA under any Plan;

	(iv)		with respect to any Plan or any other employee benefit plan subject to ERISA, the Borrower or any Plan fiduciary has engaged in a “prohibited transaction,” as defined in Section 4975 of the Code or as described in Section 406 of ERISA, that is not exempt under Section 4975 of the Code and Section 408 of ERISA that could reasonably be expected to result in a material liability to the Borrower;

	(v)		there exists any Unfunded Benefit Liabilities under any Plan;

	(vi)		any condition exists with respect to a Multiemployer Plan that presents a risk of a partial or complete withdrawal (as described in Section 4203 or 4205 of ERISA) from a Multiemployer Plan that could reasonably be expected to result in any liability to the Borrower;

	(vii)		a “default” (as defined in Section 4219(c)(5) of ERISA) occurs with respect to payments to a Multiemployer Plan and such default could reasonably be expected to result in any liability to the Borrower;

	(viii)		a Multiemployer Plan is in “reorganization” (as defined in Section 418 of the Code or Section 4241 of ERISA) or is “insolvent” (as defined in Section 4245 of ERISA);

	(ix)		the Borrower and/or any ERISA Affiliate has incurred any potential withdrawal liability (as defined in accordance with Title IV of ERISA); or

	(x)		there is an action brought against the Borrower or any ERISA Affiliate under Section 502 of ERISA with respect to its failure to comply with Section 515 of ERISA with

respect to any Plan or any other employee benefit plan subject to ERISA.

(i) Notice of PBGC Demand Letter. As soon as possible and in any event within five (5) days after the receipt by the Borrower of a demand letter from the PBGC notifying the Borrower of its final decision finding liability and the date by which such liability must be paid, a copy of such letter, together with a duly executed certificate of the president or chief financial officer of the Borrower setting forth the action the Borrower proposes to take with respect thereto.

(j) Notice of Environmental Event. Promptly and in any event within five (5) days after the existence of any of the following conditions, a duly executed certificate of an Authorized Officer of the Borrower specifying in detail the nature of such condition and, if applicable, the Borrower’s proposed response thereto:

	(i)		receipt by the Borrower of any written communication from a Governmental Authority or any written communication from any other Person (other than a privileged communication from legal counsel to the Borrower) or other source of written information, including reports prepared by the Borrower, that alleges or indicates that the Borrower or an Environmental Affiliate is not in compliance in all material respects with applicable Environmental Laws or Environmental Approvals and such alleged noncompliance could reasonably be expected to form the basis of an Environmental Claim against the Borrower;

	(ii)		the Borrower obtains knowledge that there exists any Environmental Claim pending or threatened in writing against the Borrower or an Environmental Affiliate;

	(iii)		the Borrower obtains knowledge of any release, threatened release, emission, discharge or disposal of any Material of Environmental Concern or obtains knowledge of any material non-compliance with any Environmental Law that, in either case, could reasonably be expected to form the basis of an Environmental Claim against the Borrower or any Environmental Affiliate; or

	(iv)		any Removal, Remedial or Response action taken, or required to be taken, by the Borrower or any other person in

response to any Material of Environmental Concern in, at, on or under, a part of or about the Borrower’s properties or any other property or any notice, claim or other information that the Borrower might be subject to an Environmental Claim.

(k) Materials of Environmental Concern. The Borrower will maintain and make available for inspection by the Administrative Agent, the Consultants and, if an Event of Default has occurred and is continuing, the Lenders, and each of their respective agents and employees, on reasonable notice during regular business hours, accurate and complete records of all non-privileged correspondence, investigations, studies, sampling and testing conducted, and any and all remedial actions taken, by the Borrower or, to the best of the Borrower’s knowledge and to the extent obtained by the Borrower, by any Governmental Authority or other Person in respect of Materials of Environmental Concern that could reasonably be expected to form the basis of an Environmental Claim on or affecting the Project.

(l) Deferred Approvals. Promptly after receipt thereof, copies of each Deferred Approval obtained by the Borrower, together with such documents relating thereto as any Lender may request through the Administrative Agent, certified as true, complete and correct by an Authorized Officer of the Borrower.

(m) Operating Statements. Within thirty (30) days after the end of each month and concurrently with the delivery of the annual financial statements referred to in Section 7.03(b) (Reporting Requirements – Annual Financial Statements), the Borrower shall furnish to the Administrative Agent an Operating Statement regarding the operation and performance of the Project for each monthly, quarterly and year-to-date period substantially in the form of Exhibit E. Such Operating Statements shall contain (i) line items corresponding to each Operating Budget Category of the then current Operating Budget showing in reasonable detail by Operating Budget Category all actual expenses related to the operation and maintenance of the Project compared to the budgeted expenses for each such Operating Budget Category for such period and (ii) for each period, information showing (A) the amount of ethanol sold by the Borrower from the Project pursuant to the Ethanol Marketing Agreements and otherwise during such period, (B) the amount of Distillers Grains (broken down by WDG, DDG and other distillers grain products) sold by the Borrower from the Project pursuant to the Co-Product Marketing Agreement, the Distiller’s Grains Marketing Agreement and otherwise during such period, (C) the amount of corn purchased by the Borrower for the Project during such period, (D) the operating efficiency (% of capacity) of each Plant and for the Project as a whole during such period and (E) the yield (gallons/bushel) for the Project during such period. The Operating Statements shall be certified as complete and correct by an Authorized Officer of the Borrower, who also shall certify that, the expenses reflected

therein for the year-to-date and for each month or quarter therein did not exceed the provision for such period contained in the Operating Budget then in effect by more than ten percent (10%) or, if any of such certifications cannot be given, stating in reasonable detail the necessary qualifications to such certifications.

(n) Monthly Commodity Hedging Reports. Within seven (7) days after the end of each calendar month, the Borrower shall furnish to the Administrative Agent a report, in form satisfactory to the Administrative Agent, providing details of the Borrower’s positions with respect to the Commodity Hedging Arrangements as of the last day of such month.

(o) Cash Flow Forecasts. Within seven (7) days after the end of each calendar month, the Borrower shall furnish to the Administrative Agent a cash flow forecast with respect to the Project in substantially the form of Exhibit I or in another form satisfactory to the Administrative Agent (each such cash flow forecast, a “Cash Flow Forecast”). Each Cash Flow Forecast shall include a cash flow forecast for the period from the first day of the then-current calendar month to the date falling thirteen weeks thereafter, including line items corresponding to each Operating Budget Category of the then current Operating Budget, showing in reasonable detail by Operating Budget Category all projected expenses related to the operation and maintenance of the Project compared to the budgeted expenses for each such Operating Budget Category for such period.

(p) Other Information. Other information reasonably requested by the Administrative Agent or any Lender (through the Administrative Agent).

ARTICLE VIII

DEFAULT AND ENFORCEMENT

Section 8.01 Events of Default. Each of the following events or occurrences described in this Section 8.01 shall constitute an Event of Default.

(a) Nonpayment. (i) The Borrower fails to pay any amount of principal of any Loan when the same becomes due and payable or (ii) the Borrower fails to pay any interest on any Loan or any fee or other Obligation or amount payable hereunder or under any other Financing Document within three (3) Business Days after the same becomes due and payable.

(b) Breach of Warranty. Any representation or warranty of any Loan Party, any Project Party or any party (other than a Senior Secured Party) to the Restructuring Agreement or Accounts Agreement made or deemed to be repeated in any

Financing Document is incorrect or misleading in any material respect when made or deemed made.

(c) Non-Performance of Certain Covenants and Obligations. (i) The Borrower defaults in the due performance and observance of any of its obligations under Section 7.01(d)(iii)(A) (Affirmative Covenants — Maintenance of Properties),Section 7.01(g) (Affirmative Covenants - Use of Proceeds and Cash Flow), Section 7.01(h) (Affirmative Covenants — Insurance), Section 7.01(q) (Affirmative Covenants — First Priority Ranking), Section 7.01(v) (Affirmative Covenants – Debt Service Reserve), Section 7.02 (Negative Covenants), Section 7.03(e) (Reporting Requirements — Notice of Default or Event of Default) and Section 7.03(f) (Reporting Requirements — Notice of Other Events) of this Agreement, or Section 5.02 (Limitation of Liens) or Section 5.07 (Name; Jurisdiction of Organization) of the Security Agreement; (ii) the Borrower or any Pledgor defaults in the due performance and observance of any of its obligations under Section 5.02 (Limitation of Liens), Section 5.04 (No Sale of Collateral), Section 5.05 (No Impairment of Security), Section 5.06 (Filing of Bankruptcy Proceedings) or Section 5.10 (Name; Jurisdiction of Organization) of the Pledge Agreement; or (iii) any party (other than a Senior Secured Party) to the Accounts Agreement defaults in the due performance and observance of any of its obligations under the Accounts Agreement.

(d) Non-Performance of Other Covenants and Obligations. Any Loan Party, any Project Party or any party (other than a Senior Secured Party) to the Accounts Agreement defaults in the due performance and observance of any covenant or agreement (other than covenants and agreements referred to in Section 8.01(a) (Events of Default – Nonpayment) or Section 8.01(c) (Events of Default — Non-Performance of Certain Covenants and Obligations)) contained in any Financing Document, and such default continues unremedied for a period of thirty (30) days after the Borrower obtains, or should have obtained, knowledge thereof.

(e) Cross Defaults. Any one of the following occurs with respect to the Borrower, any Pledgor, or any Project Party with respect to Indebtedness (other than the Obligations and any Indebtedness of any Pledgor arising solely as a result of a Lien on its assets to secure the debt of any of its Subsidiaries other than the Borrower):

	(i)		a default occurs in the payment when due (subject to any applicable grace period and notice requirements), whether by acceleration or otherwise, of such Indebtedness; or

	(ii)		such Person fails to observe or perform (subject to any applicable grace periods and notice requirements) any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing,

securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of any Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; and

	(A)		in the case of Section 8.01(e)(i) or Section 8.01(e)(ii) with respect the Borrower or any Pledgor, with respect to Indebtedness in an amount greater than or equal to one million Dollars ($1,000,000) in the aggregate; or

	(B)		in the case of Section 8.01(e)(i) or Section 8.01(e)(ii) with respect to any other Project Party, has resulted in or could reasonably be expected to result in a Material Adverse Effect; provided, that such occurrence shall not constitute an Event of Default with respect to any such other Project Party (other than a Project Party to any License Agreement, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease or the Aberdeen Grain Elevator Lease) if an agreement replacing each Project Document to which such Project Party is a party, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders, is entered into (together with all applicable Ancillary Documents) within sixty (60) days thereof.

(f) Judgments. (i) Any judgment or order that has or could reasonably be expected to have a Material Adverse Effect is rendered against any Loan Party or any Project Party; provided, that such occurrence shall not constitute an Event of Default with respect to any Project Party (other than a Project Party to any License Agreement, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease or the Aberdeen Grain Elevator Lease) if an agreement replacing each Project Document to which such Project Party is a party, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders, is entered into (together with all

applicable Ancillary Documents) within sixty (60) days thereof; or (ii) any judgment or order is rendered against the Borrower or any Pledgor in an amount in excess of one million Dollars ($1,000,000) in the aggregate.

(g) ERISA Events. (i) Any Termination Event occurs, (ii) any Plan incurs an “accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), (iii) the Borrower engages in a transaction with respect to any Plan or any other employee benefit plan subject to ERISA that is prohibited under Section 4975 of the Code or Section 406 of ERISA, (iv) the Borrower or any of its ERISA Affiliates fails to pay when due any amount it has become liable to pay to the PBGC, any Plan or a trust established under Title IV of ERISA, (v) a condition exists by reason of which the PBGC would be entitled to obtain a decree adjudicating that a Plan must be terminated or have a trustee appointed to administer it, (vi) the Borrower or any of its ERISA Affiliates suffers a partial or complete withdrawal from a Multiemployer Plan or is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan, (vii) a proceeding is instituted against the Borrower to enforce Section 515 of ERISA, (viii) the aggregate amount of the then “current liability” (as defined in Section 412(l)(7) of the Code, as amended) of all accrued benefits under such Plan or Plans exceeds the then current value of the assets allocable to such benefits by more than five hundred thousand Dollars ($500,000) at such time, or (ix) any other event or condition occurs or exists with respect to any Plan that would subject the Borrower to any material tax, material penalty or other material liability.

(h) Bankruptcy, Insolvency. The Borrower, any Pledgor or any Project Party:

	(i)		generally fails to pay, or admits in writing its inability or unwillingness to pay, debts as they become due;

	(ii)		applies for, consents to, or acquiesces in, the appointment of a trustee, receiver, sequestrator or other custodian for such Person or a substantial portion of its property, or makes a general assignment for the benefit of creditors;

	(iii)		in the absence of such application, consent or acquiescence, permits or suffers to exist the appointment of a trustee, receiver, sequestrator or other custodian for such Person or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian is not discharged within sixty (60) days; provided that nothing in the Financing Documents shall prohibit or restrict any right any Senior Secured Party may have under applicable Law to

appear in any court conducting any relevant proceeding during such sixty (60) day period to preserve, protect and defend its rights under the Financing Documents (and such Person shall not object to any such appearance);

	(iv)		permit or suffer to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of such Person and, if any such case or proceeding is not commenced by such Person, such case or proceeding is consented to or acquiesced in by such Person or results in the entry of an order for relief or remains for sixty (60) days undismissed; provided that nothing in the Financing Documents shall prohibit or restrict any right any Senior Secured Party may have under applicable Law to appear in any court conducting any such case or proceeding during such sixty (60) day period to preserve, protect and defend its rights under the Financing Documents (and such Person shall not object to any such appearance);

	(v)		takes any action authorizing, or in furtherance of, any of the foregoing; or

	(vi)		ceases to be Solvent;

and with respect to any Project Party, such occurrence has resulted in or could reasonably be expected to result in a Material Adverse Effect; provided, that such occurrence shall not constitute an Event of Default with respect to any Project Party (other than a Project Party to any License Agreement, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease or the Aberdeen Grain Elevator Lease) if an agreement replacing each Project Document to which such Project Party is a party, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders, is entered into (together with all applicable Ancillary Documents) within sixty (60) days thereof.

(i)

Project Document Defaults; Termination.

(i)

The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document, or the Borrower or any counterparty thereof to any SNDA shall be in material breach of or otherwise in

			material default under such SNDA, and such breach or default has continued (x) in the case of the Huron Ground Lease, for more than thirty (30) days, or (y) in the case of any other Project Document or any SNDA, beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, thirty (30) days); provided, that any such breach or default by any Project Party under any Project Document (other than the License Agreements, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease and the Aberdeen Grain Elevator Lease) shall not constitute an Event of Default if an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders, is entered into (together with all applicable Ancillary Documents) within sixty (60) days thereof.

	(ii)		Any Project Document ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of the Borrower or any Project Party thereto, or any SNDA ceases to be in full force and effect prior to its scheduled expiration, is repudiated, or its enforceability is challenged or disaffirmed by or on behalf of the Borrower or any counterparty thereof to such SNDA provided, that such occurrence shall not constitute an Event of Default with respect to any Project Document (other than the License Agreements, the Interconnect Agreement, the Huron Ground Lease, the Huron Grain Elevator Lease and the Aberdeen Grain Elevator Lease) if an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Required Lenders, is entered into (together with all applicable Ancillary Documents) within sixty (60) days thereof.

(j) Governmental Approvals. The Borrower fails to obtain, renew, maintain or comply in all material respects with any Necessary Project Approval or any Necessary Project Approval is revoked, canceled, terminated, withdrawn or otherwise ceases to be in full force and effect, or any Necessary Project Approval is adversely modified without the consent of the Required Lenders, or a proceeding is commenced which could reasonably produce any such result.

(k) Unenforceability of Documentation. At any time after the execution and delivery thereof:

	(i)		any material provision of any Financing Document shall cease to be in full force and effect;

	(ii)		any Financing Document is revoked or terminated, becomes unlawful or is declared null and void by a Governmental Authority of competent jurisdiction;

	(iii)		any Financing Document becomes unenforceable, is repudiated or the enforceability thereof is contested or disaffirmed by or on behalf of any party thereto other than the Senior Secured Parties; and

	(iv)		any Liens against any of the Collateral cease to be a first-priority, perfected security interest in favor of the Collateral Agent, or the enforceability thereof is contested by any Loan Party, or any of the Security Documents ceases to provide the security intended to be created thereby with the priority purported to be created thereby.

(l) Environmental Matters. (i) (A) Any Environmental Claim has occurred with respect to the Borrower, the Project or any Environmental Affiliate, (B) any release, Threat of Release, emission, discharge or disposal of any Material of Environmental Concern occurs, and such event could reasonably be expected to form the basis of an Environmental Claim against the Borrower, the Project or any Environmental Affiliate, or (C) any violation or alleged violation of any Environmental Law or Environmental Approval occurs that would reasonably result in an Environmental Claim against the Borrower or the Project or, to the extent the Borrower may have liability, any Environmental Affiliate that, in the case of any of Section 8.01(l)(i)(A), (B) or (C), could reasonably be expected to result in liability for the Borrower in an amount greater than two hundred fifty thousand Dollars ($250,000) for any single claim or five hundred fifty thousand Dollars ($500,000) for all such claims during any twelve (12) month period or could otherwise reasonably be expected to result in a Material Adverse Effect; provided that such an occurrence shall not constitute an Event of Default if (x) the estimated liability associated therewith is reasonably expected to be less than one million Dollars ($1,000,000) net of any Insurance Proceeds that have actually been paid to, and received by, the Borrower or the Collateral Agent as loss payee in connection therewith, or as reduced by taking into account any amounts that the Borrower demonstrates, to the reasonable satisfaction of the Administrative Agent, within ten (10) Business Days following such occurrence, will be available as and when needed, without conditions,

from sources (including Insurance Proceeds and documented voluntary equity contributions made to the Borrower for the purpose of covering such costs) other than Cash Flow or Loan proceeds, to cover such costs (and such occurrence could not otherwise reasonably be expected to result in a Material Adverse Effect) and, within ninety (90) days of such occurrence, such liability is reduced below the threshold set forth above in this proviso from sources other than Cash Flow or Loan proceeds, (y) there have been no more than two (2) occurrences of the nature described in this Section 8.01(l)(i) during the immediately preceding twelve (12) month period and (z) during such cure period, the Borrower undertakes any remedial or responsive actions then required to be undertaken under applicable Law;

(ii)

the Borrower fails to obtain any Environmental Approvals necessary for the management, use, control, ownership, or operation of its business, property or assets, and (A) the absence of such Environmental Approval could reasonably be expected to have a Material Adverse Effect or (B) any such Environmental Approval is the subject of an Environmental Claim, revoked, terminated, or otherwise ceases to be in full force and effect.

(m) Loss of Collateral. Any portion of the Collateral (other than a portion that is immaterial) is damaged, seized or appropriated; provided that such an occurrence shall not constitute an Event of Default if the Borrower repairs, replaces, rebuilds or refurbishes such damaged, seized or appropriated Collateral (i) in accordance with Section 9.01(d) of the Accounts Agreement, or (ii) otherwise with the approval of the Required Lenders, in consultation with the Independent Engineer (provided that such approval is obtained within sixty (60) days thereof).

(n) Event of Abandonment. An Event of Abandonment occurs.

(o) Taking or Total Loss. An Event of Taking with respect to all or a material portion of the Project or any Equity Interests in the Borrower occurs, or an Event of Total Loss occurs.

(p) Change of Control. A Change of Control occurs.

Section 8.02 Action Upon Bankruptcy. If any Event of Default described in Section 8.01(h) (Events of Default – Bankruptcy, Insolvency) occurs with respect to the Borrower, the outstanding principal amount of the outstanding Loans and all other Obligations shall automatically be and become immediately due and payable, without notice, demand or further act of the Administrative Agent, the Collateral Agent or any other Senior Secured Party.

Section 8.03 Action Upon Other Event of Default. (a) If any Event of Default (other than any Event of Default described in Section 8.01(h) (Events of Default — Bankruptcy, Insolvency)) occurs and is continuing for any reason, whether voluntary or involuntary, and is continuing, the Administrative Agent may, or upon the direction of the Required Lenders shall, by written notice to the Borrower, declare all or any portion of the outstanding principal amount of the Loans and other Obligations to be due and payable, whereupon the full unpaid amount of the Loans and other Obligations that has been declared due and payable shall be and become immediately due and payable, without further notice, demand or presentment. During the continuance of an Event of Default, the Administrative Agent may, or upon the direction of the Required Lenders shall, instruct the Collateral Agent to exercise any or all remedies provided for under this Agreement or the other Financing Documents.

(b) Any declaration made pursuant to Section 8.03(a) may, should the Required Lenders in their sole and absolute discretion so elect, be rescinded by written notice to the Borrower at any time after the principal of the Loans has become due and payable, but before any judgment or decree for the payment of the monies so due, or any part thereof, has been entered; provided that no such rescission or annulment shall extend to or affect any subsequent Event of Default or impair any right consequent thereon.

Section 8.04 Application of Proceeds. Any moneys received by the Collateral Agent after the occurrence and during the continuance of an Event of Default may be held by the Collateral Agent as Collateral and/or, at the direction of the Administrative Agent, may be applied in full or in part by the Collateral Agent against the Obligations in the following order or priority (but without prejudice to the right of the Collateral Agent to recover any shortfall from the Borrower):

(a) first, to payment of that portion of the Obligations constituting fees, costs, expenses (and interest owing thereon (if any) and any other amounts (including fees, costs and expenses of counsel and amounts payable under ARTICLE IV (Eurodollar Rate and Tax Provisions)) payable to the Agents in their capacities as such ratably among them in proportion to the amounts described in this clause first;

(b) second, to payment of that portion of the Obligations constituting fees, costs, expenses (and interest owing thereon (if any)) and any other amounts

(including fees, costs and expenses of counsel and amounts payable under ARTICLE IV (Eurodollar Rate and Tax Provisions) but excluding principal of and accrued interest on the Loans payable to the Lenders, ratably among the Lenders in proportion to the amounts described in this clause second payable to them, as certified by the Administrative Agent;

(c) third, to payment of that portion of the Obligations constituting accrued and unpaid interest (including default interest) with respect to the Loans, ratably among the Lenders in proportion to the respective amounts described in this clause third payable to them, as certified by the Administrative Agent;

(d) fourth, to the principal amount of the Loans payable by the Borrower to the Lenders, ratably among the Lenders in proportion to the respective amounts described in this clause fourth held by them, as certified by Administrative Agent; and

(e) last, the balance, if any, after all of the Obligations have been indefeasibly paid in full in cash, to the Borrower or as otherwise required by Applicable Law.

ARTICLE IX

THE AGENTS

Section 9.01 Appointment and Authority. (a) Each Lender hereby irrevocably appoints, designates and authorizes each Agent to take such action on its behalf under the provisions of this Agreement and each other Financing Document and to exercise such powers and perform such duties as are expressly delegated to such Agent by the terms of this Agreement or any other Financing Document, together with such actions as are reasonably incidental thereto. The provisions of this ARTICLE IX are solely for the benefit of the Agents and the Lenders, and neither the Borrower nor any other Person shall have rights as a third party beneficiary of any of such provisions.

(b) Each Lender hereby appoints WestLB as its Administrative Agent under and for purposes of each Financing Document to which it is a party. WestLB hereby accepts this appointment and agrees to act as the Administrative Agent for the Lenders in accordance with the terms of this Agreement. Each Lender appoints and authorizes the Administrative Agent to act on behalf of such Lender under each Financing Document to which it is a party and, in the absence of other written instructions from the Required Lenders received from time to time by the Administrative Agent (with respect to which the Administrative Agent agrees that it will comply, except as otherwise provided in this Section 9.01 or as otherwise advised by counsel), to

exercise such powers hereunder and thereunder as are specifically delegated to or required of the Administrative Agent by the terms hereof and thereof, together with such powers as may be reasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere in any Financing Document, the Administrative Agent shall not have any duties or responsibilities except those expressly set forth herein, nor shall the Administrative Agent have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into any Financing Document or otherwise exist against the Administrative Agent. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

(c) Each Lender and the Administrative Agent hereby appoint WestLB as their Collateral Agent under and for purposes of each Financing Document to which it is a party. WestLB hereby accepts this appointment and agrees to act as the Collateral Agent for the Senior Secured Parties in accordance with the terms of this Agreement. Each of the Lenders hereby irrevocably appoints and authorizes the Collateral Agent to act as the agent of such Lender for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Borrower or the Pledgor to the Collateral Agent in order to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section 9.05 (Delegation of Duties) for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Agent, as the case may be, shall be entitled to the benefits of all provisions of this ARTICLE IX and ARTICLE X (Miscellaneous Provisions) (including Section 10.08 (Indemnification by the Borrower), as though such co-agents, sub-agents and attorneys-in-fact were the Collateral Agent under the Financing Documents. Notwithstanding any provision to the contrary contained elsewhere in any Financing Document, the Collateral Agent shall not have any duties or responsibilities except those expressly set forth herein or in the other Financing Documents to which the Collateral Agent is party, nor shall the Collateral Agent have or be deemed to have any fiduciary relationship with the Borrower or any Senior Secured Party, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into any Financing Document or otherwise exist against the Collateral Agent. Each of the Collateral Agent and the Administrative Agent shall have the right at any time to seek instructions from the Required Lenders or, in the case of the Collateral Agent, the Administrative Agent as to any discretionary actions contemplated hereby or in any other

Financing Document or if this Agreement or any other Financing Document is silent as to any matter requiring action by the Collateral Agent and shall be fully protected in accordance with Section 9.03 (Exculpatory Provisions) and Section 9.04 (Reliance by Agents) when acting upon such instructions. Any action taken by the Collateral Agent or the Administrative Agent under or in relation to this Agreement and any other Financing Document to which it is party with requisite authority or on the basis of appropriate instructions received from the Lenders (or otherwise as duly authorized) shall be binding on each Lender. Without limiting the generality of the foregoing sentence, the use of the term “agent” in this Agreement with reference to the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

Section 9.02 Rights as a Lender. Each Person serving as Agent hereunder or under any other Financing Document shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent. Each such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor for or in any other advisory capacity for and generally engage in any kind of business with the Borrower or Affiliates of the Borrower as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders or any other Agent.

Section 9.03 Exculpatory Provisions. (a) No Agent nor any of its respective directors, officers, employees or agents shall have any duties or obligations except those expressly set forth herein and in the other Financing Documents to which it is a party. Without limiting the generality of the foregoing, no Agent shall:

	(i)		be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

	(ii)		have any duty to take any discretionary action or exercise any discretionary powers except discretionary rights and powers expressly contemplated hereby or by the other Financing Documents to which it is party that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in such other Financing Documents); provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or

			that is contrary to any Financing Document or applicable Law; and provided further that no such direction given to such Agent that in the sole judgment of such Agent imposes, or purports to impose, or might reasonably be expected to impose upon such Agent any obligation or liability not set forth in this Agreement or arising under this Agreement or other Financing Documents to which it is party shall be binding upon such Agent unless such Agent, in its sole discretion, accepts such direction;

	(iii)		except as expressly set forth herein and in the other Financing Documents to which it is party, have any duty to disclose, or be liable for any failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as an Agent or any of its Affiliates in any capacity; or

	(iv)		be required to institute any legal proceedings arising out of or in connection with, or otherwise take steps to enforce, this Agreement or any other Financing Document other than on the instructions of the Required Lenders.

(b) No Agent nor any of its respective directors, officers, employees or agents shall be liable for any action taken or not taken by it (i) with the prior written consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as may be necessary, or as such Agent may reasonably believe in good faith to be necessary, under the circumstances as provided in Section 9.01 (Appointment and Authority)), (ii) in connection with any amendment, consent, approval or waiver which it is permitted under the Financing Documents to enter into, agree to or grant or (iii) in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to such Agent in writing by the Borrower or a Lender.

(c) No Agent nor any of its respective directors, officers, employees or agents shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Financing Document, (ii) the contents of any certificate, report, opinion or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein (including the use of proceeds) or the occurrence or continuance of any Default or Event of Default, (iv) the execution, validity,

enforceability, effectiveness, genuineness or admissibility into evidence of this Agreement, any other Financing Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien or security interest created or purported to be created by any Security Document (or title to or rights in any Collateral under any Security Document), or (v) the satisfaction of any condition set forth in ARTICLE VI (Conditions Precedent) or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to any such Agent.

(d) Each Agent may (but shall not be obligated to do so), unless and until it shall have received directions from the Required Lenders, take such action or refrain from taking such action in respect of a Default or Event of Default of which such Agent has been advised in writing by the Required Lenders as it shall reasonably deem advisable in the best interests of the Lenders.

(e) Each Agent may refrain from acting in accordance with any instructions of the Lenders, or (in the case of the Collateral Agent) the Administrative Agent, until it has been indemnified and/or secured to its satisfaction against any and all costs, expenses or liabilities (including legal fees and expenses) which it would or might reasonably be expected to incur as a result.

(f) No Agent shall be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder or under any Financing Document to which it is party unless it has been provided with security or indemnity reasonably satisfactory to it against any and all liability or expense which may be incurred by it by reason of taking or continuing to take such action.

Section 9.04 Reliance by Agents. Each Agent shall be entitled to rely upon, and shall not (nor shall any of its directors, officers, employees or agents) incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the Effective Date that by its terms must be fulfilled to the satisfaction of a Lender, each Agent may presume that such condition is satisfactory to such Lender unless such Agent shall have received written notice to the contrary from such Lender prior to the Effective Date. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts reasonably selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel,

accountants or experts. Each Agent may at any time and from time to time solicit written instructions in the form of directions from the Required Lenders or an order of a court of competent jurisdiction as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement or any other Financing Document to which it is party.

Section 9.05 Delegation of Duties. Each Agent may perform any and all of its duties and exercise any and all its rights and powers hereunder or under any other Financing Document by or through any one or more sub-agents appointed by such Agent. Absent gross negligence or willful misconduct in selecting a sub-agent, no Agent shall be responsible for any action of, or failure to act by, any sub-agent that has been approved by the Required Lenders. Each Agent and any such sub—agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this ARTICLE IX shall apply to any such sub-agent and to the Related Parties of such Agent and any such sub-agent, and shall apply to their respective activities in connection with their acting as Agent.

Section 9.06 Resignation or Removal of Agent. (a) Any Agent may resign from the performance of all its functions and duties hereunder and/or under the other Financing Documents at any time by giving thirty (30) days’ prior notice to the Borrower and the Lenders. Any Agent may be removed at any time by the Required Lenders. Such resignation or removal shall take effect upon the appointment of a successor Agent, in accordance with this Section 9.06.

(b) Upon any notice of resignation by any Agent or upon the removal of any Agent by the Required Lenders, the Required Lenders shall appoint a successor Agent hereunder and under each other Financing Document who shall be a commercial bank having a combined capital and surplus of at least two hundred fifty million Dollars ($250,000,000). So long as no Event of Default has occurred and is continuing, such appointment shall be subject to the Borrower’s approval (such approval not to be unreasonably withheld, conditioned or delayed).

(c) If no successor Agent has been appointed by the Required Lenders within thirty (30) days) after the date such notice of resignation was given by such Agent or the Required Lenders elected to remove such Agent, any Senior Secured Party may petition any court of competent jurisdiction for the appointment of a successor Agent. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor Agent, as applicable, who shall serve as Agent hereunder and under each other Financing Document until such time, if any, as the Required Lenders appoint a successor Agent, as provided above.

(d) Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Agent, and the retiring (or removed) Agent shall be discharged from all of its duties and obligations hereunder and under the other Financing Documents. After the retirement or removal of any Agent hereunder and under the other Financing Documents, the provisions of this ARTICLE IX shall continue in effect for the benefit of such retiring (or removed) Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while such Agent was acting as Agent.

(e) If a retiring (or removed) Agent is the Collateral Agent, such Collateral Agent will promptly transfer any Collateral in the possession or control of such Collateral Agent to the successor Collateral Agent and will, subject to payment of its reasonable costs and expenses (including counsel fees and expenses), execute and deliver such notices, instructions and assignments as may be reasonably necessary or desirable to transfer the rights of the Collateral Agent with respect to such Collateral property to the successor Collateral Agent.

Section 9.07 No Amendment to Duties of Agent Without Consent. No Agent shall be bound by any waiver, amendment, supplement or modification of this Agreement or any other Financing Document that affects its rights or duties hereunder or thereunder unless such Agent shall have given its prior written consent, in its capacity as Agent, thereto.

Section 9.08 Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement and make its Loans. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Financing Document or any related agreement or any document furnished hereunder or thereunder.

Section 9.09 [Intentionally Omitted].

Section 9.10 Collateral Agent May File Proofs of Claim. (a) In case of the pendency of any Insolvency or Liquidation Proceeding relative to the Borrower or the Pledgor (including any event described in Section 8.01(h) (Events of Default — Bankruptcy, Insolvency), the Collateral Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or

otherwise and irrespective of whether the Collateral Agent or any other Senior Secured Party shall have made any demand on the Borrower) shall be entitled and empowered, but shall not be obligated, by intervention in such proceeding or otherwise:

	(i)		to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Senior Secured Parties (including any claim for the reasonable compensation, expenses, disbursements and advances of the Senior Secured Parties and their respective agents and counsel and all other amounts due the Senior Secured Parties under Section 3.12 (Fees), Section 10.06 (Costs and Expenses) and Section 10.08 (Indemnification by the Borrower)) allowed in such judicial proceeding; and

	(ii)		to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same.

(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Collateral Agent and, in the event that the Collateral Agent consents to the making of such payments directly to the Lenders, to pay to the Collateral Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Agents and their respective agents and counsel, and any other amounts due the Agents under Section 3.12 (Fees), Section 10.06 (Costs and Expenses) and Section 10.08 (Indemnification by the Borrower).

(c) Nothing contained herein shall be deemed to authorize the Collateral Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Collateral Agent to vote in respect of the claim of any Lender in any such proceeding.

Section 9.11 Collateral Matters. (a) The Senior Secured Parties irrevocably authorize the Collateral Agent to release any Lien on any property granted to or held by the Collateral Agent under any Financing Document for the benefit of the Senior Secured Parties (i) upon the occurrence of the Security Discharge Date, (ii) if approved, authorized or ratified in writing in accordance with Section 10.01 (Amendments, Etc.) or (iii) as permitted pursuant to the terms of the Financing

Documents (including as contemplated by Section 7.02(f) (Negative Covenants — Asset Dispositions)).

(b) Upon request by the Collateral Agent at any time and from time to time, the Lenders will confirm in writing the Collateral Agent’s authority to release its interest in particular types or items of property pursuant to this Section 9.11. In each case as specified in this Section 9.11, the Collateral Agent will, at the Borrower’s expense, execute and deliver to the Borrower or the Pledgor, as the case may be, such documents as such Person may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Security Documents in accordance with the terms of the Financing Documents and this Section 9.11.

(c) Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder or under any of the other Financing Documents to which it is party, the Collateral Agent shall have no duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Collateral Agent is deemed to have knowledge of such matters, or as to taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral (including the filing of UCC continuation statements). The Collateral Agent shall be deemed to have exercised appropriate and due care in the custody and preservation of any Collateral in its possession if such Collateral is accorded treatment substantially equal to that which other collateral agents accord similar property.

Section 9.12 Copies. Each Agent shall (a) give prompt notice to each Lender of each material notice or request required or permitted to be given to such Agent by the Borrower pursuant to the terms of this Agreement or any other Financing Document (other than instructions for the transfer of funds from Project Accounts pursuant to the Accounts Agreement or if otherwise concurrently delivered to the Lenders by the Borrower) and (b) promptly distribute to each Lender each document or instrument (including each document or instrument delivered by the Borrower to such Agent pursuant to ARTICLE V (Representations and Warranties), ARTICLE VI (Conditions Precedent) and ARTICLE VII (Covenants)) received for its account and copies of all other communications received by such Agent from the Borrower for distribution to the Lenders by such Agent in accordance with the terms of this Agreement or any other Financing Document.

Section 9.13 Amendment to Financing Documents. Each Lender hereby consents to the execution, delivery and performance by the Agents of each of the Financing Documents (described in clauses (i) though (vii) of the definition thereof) dated on or about the date hereof and to which an Agent is a party.

Section 9.14 Indemnification. Without limiting the Obligations of the Borrower, each Lender agrees to indemnify each Agent (or any sub-agent thereof) and any Related Party of any of the foregoing (the “Indemnified Party”), ratably in accordance with such Lender’s Loan Percentage (or if indemnification is sought after the date upon which the Obligations have been paid in full, ratably in accordance with such Lender’s Loan Percentage immediately prior to such date) for any and all losses, claims, damages, liabilities and expenses (including all fees, costs and expenses of counsel for any Indemnified Party) which may at any time (including after the Obligations have been paid in full) be imposed on, incurred by or asserted against such Indemnified Party in any way relating to or arising out of this Agreement, the Restructuring Agreement, the Original Credit Agreement, any other Transaction Document (as defined herein or in the Original Credit Agreement) or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof or of any such other documents or any action taken or omitted to be taken by such Indemnified Party (to the extent the Borrower has not paid any such amounts pursuant to Section 10.08 (Indemnification by the Borrower) and without limiting its obligation to do so); provided that no Lender shall be liable for any of the foregoing found in a final and Non-Appealable judgment by a court of competent jurisdiction to have resulted from such Indemnified Party’s gross negligence or willful misconduct. The Administrative Agent or any such Indemnified Party shall be fully justified in refusing to take or to continue to take any action under any Financing Document unless it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limitation of the foregoing, each Lender agrees to reimburse the Indemnified Parties promptly upon demand for such Lender’s Loan Percentage of any out-of-pocket expenses (including counsel fees and disbursements and allocated staff costs) incurred by the Indemnified Party in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, this Agreement, the Restructuring Agreement, the Original Credit Agreement, any other Transaction Document (as defined herein or in the Original Credit Agreement), to the extent that the Indemnified Party is not reimbursed for such expenses by the Borrower. The agreements in this Section 9.14 (Indemnification) shall survive the satisfaction or discharge of the Obligations. The Lenders agree and acknowledge that the Accounts Bank is an intended third party beneficiary of this Section 9.14 (Indemnification). The obligations of the Lenders to make payments pursuant to this Section 9.14 are several and not joint.

Section 9.15 No Liability for Clean-up of Hazardous Materials. If the Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any duty or obligation for the benefit of another, which in the Collateral Agent’s sole discretion may

cause the Collateral Agent to be considered an “owner or operator” under any Environmental Laws or otherwise cause the Collateral Agent to incur, or be exposed to, any environmental liabilities or any liability under any other federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, either to resign as Collateral Agent or to arrange for the transfer of the title or control of the asset to a court-appointed receiver. The Collateral Agent will not be liable to any Person for any environmental liabilities or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s action and conduct as authorized, empowered or directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any Materials of Environmental Concern into the environment.

ARTICLE X

MISCELLANEOUS PROVISIONS

Section 10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Financing Document, and no consent to any departure by the Borrower, any Pledgor or any party (other than a Senior Secured Party) to the Accounts Agreement therefrom, shall be effective unless in writing signed by the Required Lenders (or, if expressly contemplated hereby, the Administrative Agent) and, in the case of an amendment, the Borrower or such Pledgor, as the case may be, and in each such case acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided that no such amendment, waiver or consent shall:

(a) reinstate or provide for a commitment by any Lender to provide Loans or other credit without the prior written consent of such Lender (other than any Non-Voting Lender);

(b) postpone any date scheduled for any payment of principal under Section 3.01 (Repayment of Loans) or interest under Section 3.02 (Interest Payment Dates), or postpone any date for the payment of fees or other amounts due to the Lenders (or any of them) hereunder or under any other Financing Document, in each case without the prior written consent of each Lender affected thereby (other than any Non-Voting Lender);

(c) reduce the principal of, or the rate of interest specified herein on, any Loan, or any Fees or other amounts (including any mandatory prepayments under Section 3.08 (Mandatory Prepayment)) payable hereunder or under any other Financing Document to any Lender without the prior written consent of each Lender affected thereby (other than any Non-Voting Lender); provided that only the prior written consent

of the Required Lenders shall be necessary to amend the definition of Default Rate or to waive any obligation of the Borrower to pay interest at the Default Rate;

(d) change the order of application of any prepayment of Loans from the application thereof set forth in provisions of Section 3.10 (Provisions Applicable to All Prepayments) in any manner without the prior written consent of each Lender affected thereby (other than any Non-Voting Lender);

(e) change any provision of this Section 10.01, the definition of Required Lenders or any other provision of any Financing Document specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights under any Financing Document (including any such provision specifying the number or percentage of Lenders required to waive any Event of Default or forbear from taking any action or pursuing any remedy with respect to any Event of Default), or make any determination or grant any consent under any Financing Document, without the prior written consent of each Lender (other than any Non-Voting Lender);

(f) release (i) the Borrower from all or substantially all of its obligations (except for obligations that are expressly covered in clauses (a) — (e) above or (g) — (i) below) under any Financing Document, (ii) Collateral with a fair market value, or a disposal price, of more than fifteen million Dollars ($15,000,000) in any transaction or series of related transactions, or (iii) the Collateral (as defined in the Pledge Agreement), without the prior written consent of each Lender (other than any Non-Voting Lender);

(g) change any provision that requires ratable treatment of Lenders in accordance with Section 3.13 (Pro Rata Treatment) without the prior written consent of each Lender (other than any Non-Voting Lender) that would be denied ratable treatment by such change;

(h) amend the order of payments set forth in Section 4.01(c) of the Accounts Agreement without the prior written consent of each Lender (other than any Non-Voting Lender);

(i) amend the order of payments set forth in Section 8.04 (Application of Proceeds) without the prior written consent of each Lender;

and provided further that (i) no amendment, waiver or consent shall, unless in writing and signed by an Agent in addition to the Lenders required above, affect the rights or duties of, or any fees or other amounts payable to, such Agent under this Agreement or any other Financing Document; and (ii) Section 10.03(h) (Assignments) may not be amended, waived or otherwise modified without the prior written consent of each Granting Lender

all or any part of whose Loan is being funded by an SPV at the time of such amendment, waiver or other modification.

Notwithstanding the other provisions of this Section 10.01, the Borrower, the Collateral Agent and the Administrative Agent may (but shall have no obligation to) amend or supplement the Financing Documents without the consent of any Lender solely: (i) to cure any ambiguity, defect or inconsistency; (ii) to make any change that would provide any additional rights or benefits to the Lenders or (iii) to make, complete or confirm any grant of Collateral permitted or required by this Agreement or any of the Security Documents or any release of any Collateral that is otherwise permitted under the terms of this Agreement and the Security Documents.

Section 10.02 Applicable Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. THE BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER FINANCING DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY SENIOR SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) WAIVER OF VENUE. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT IN ANY COURT REFERRED TO IN SECTION 10.02(b). THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) Appointment of Process Agent and Service of Process. The Borrower hereby irrevocably appoints C T Corporation System, with an office on the date hereof at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its agent to receive on behalf of itself services of copies of the summons and complaint and any other process that may be served in any such action or proceeding in the State of New York. If for any reason the Process Agent shall cease to act as such for any Person, such Person hereby agrees to designate a new agent in New York City on the terms and for the purposes of this Section 10.02 reasonably satisfactory to the Administrative Agent. Such service may be made by mailing or delivering a copy of such process to such Person in care of the Process Agent at the Process Agent’s above address, and the Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, the Borrower also irrevocably consents to the service of any and all process in any such action or proceeding by the air mailing of copies of such process to such Person at its then effective notice addresses pursuant to Section 10.11 (Notices and Other Communications). Nothing in this Agreement shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Agreement or any other Financing Document in the courts of any jurisdiction.

(e) Immunity. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Borrower hereby irrevocably and unconditionally waives such immunity in respect of its obligations under the Financing Documents and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 10.02(e) shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.

(f) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY

LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.02.

Section 10.03 Assignments. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Agent and Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an Eligible Assignee in accordance with Section 10.03(b) (ii) by way of participation in accordance with Section 10.03(d), (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section 10.03(f), or (iv) to an SPV in accordance with the provisions of Section 10.03(h) (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, express or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in this Section 10.03 and, to the extent expressly contemplated hereby, the Related Parties of each Agent and Lender) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) Any Lender may at any time after the date hereof assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of the Loans at the time owing to it); provided that (i) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Loans at the time owing to the assigning Lender or in the case of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund with respect to a Lender, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Lender Assignment Agreement with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Lender Assignment Agreement, as of the Trade Date, shall not be less than one million Dollars ($1,000,000), unless the Administrative Agent otherwise consents in writing; (ii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect

to the Loans assigned; (iii) the parties to each assignment shall execute and deliver to the Administrative Agent a Lender Assignment Agreement, together with a processing and recordation fee of two thousand five hundred Dollars ($2,500); provided that (A) no such fee shall be payable in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender and (B) in the case of contemporaneous assignments by a Lender to one or more Approved Funds managed by the same investment advisor (which Approved Funds are not then Lenders hereunder), only a single such two thousand five hundred Dollar ($2,500) fee shall be payable for all such contemporaneous assignments and (iv) the Eligible Assignee, if it is not a Lender prior to such assignment, shall deliver to the Administrative Agent an administrative questionnaire. Subject to acceptance and recording thereof by the Administrative Agent pursuant to Section 10.03(c), on and after the effective date specified in each Lender Assignment Agreement, the Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Lender Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Lender Assignment Agreement, be released from its obligations under this Agreement (and, in the case of a Lender Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Section 4.01 (Eurodollar Rate Lending Unlawful), Section 4.03 (Increased Eurodollar Loan Costs), Section 4.05 (Funding Losses), Section 10.06 (Costs and Expenses) and Section 10.08 (Indemnification by the Borrower) with respect to facts and circumstances occurring prior to the effective date of such assignment). Upon request, the Borrower (at its expense) shall execute and deliver a Note or Notes to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.03(b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 10.03(d).

(c) The Administrative Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at the Administrative Agent’s office a copy of each Lender Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrower, the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower at any reasonable time and from time to time upon reasonable prior notice. In addition, at any time that a request for a consent for a material or other substantive change to the

Financing Documents is pending, any Lender may request and receive from the Administrative Agent a copy of the Register.

(d) Any Lender may at any time, without the consent of, or notice to, the Borrower or any Agent, sell participations to any Person (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Agents and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 (Amendments, Etc.) that directly affects such Participant. Subject to Section 10.03(e), the Borrower agrees that each Participant shall be entitled to the benefits of Section 4.01 (Eurodollar Rate Lending Unlawful), Section 4.03 (Increased Eurodollar Loan Costs) and Section 4.05 (Funding Losses), to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 10.03(b). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.14 (Right of Setoff) as though it were a Lender; provided such Participant agrees to be subject to Section 3.14 (Sharing of Payments) as though it were a Lender.

(e) A Participant shall not be entitled to receive any greater payment under Section 4.01 (Eurodollar Rate Lending Unlawful) or Section 4.03 (Increased Eurodollar Loan Costs) than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such participant is made with the prior written consent of the Borrower.

(f) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Notes, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(g) The words “execution,” “signed,” “signature,” and words of like import in any Lender Assignment Agreement shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the

same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

(h) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “SPV”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPV to fund any Loan, and (ii) if an SPV elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required under Section 3.15 (Sharing of Payments). Each party hereto hereby agrees that (A) neither the grant to any SPV nor the exercise by any SPV of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including their obligations under Section 4.03 (Increased Eurodollar Loan Costs), (B) no SPV shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (C) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Financing Document, remain the lender of record hereunder. The making of a Loan by an SPV hereunder shall utilize the commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one (1) year and one (1) day after the payment in full of all outstanding commercial paper or other senior debt of any SPV, it will not institute against, or join any other Person in instituting against, such SPV in any Insolvency or Liquidation Proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPV may (1) with notice to, but without prior consent of the Administrative Agent and without paying any processing fee therefor, assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (2) disclose on a confidential basis any non-public information relating to its funding of any Loan to any rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or liquidity enhancement to such SPV.

(i) ▇▇▇▇▇▇▇▇ Financial Group, LLC, hereby represents and warrants that it has assigned all of its rights or obligations under the Original Loan Agreement to

OSM Heartland, LLC. The parties hereto acknowledge that OSM Heartland, LLC shall be a Lender hereunder as an assignee of ▇▇▇▇▇▇▇▇ Financial Group, LLC.

Section 10.04 Benefits of Agreement. Except as expressly provided in the last sentence of Section 10.08(b) (Indemnification by Borrower) nothing in this Agreement or any other Financing Document, express or implied, shall give to any Person, other than the parties hereto and thereto, and each of their successors and permitted assigns under this Agreement or any other Financing Document, any benefit or any legal or equitable right or remedy under this Agreement.

Section 10.05 Consultants. (a) The Required Lenders acting jointly or the Administrative Agent may, in their sole discretion, appoint any Consultant for the purposes specified herein. If any of the Consultants is removed or resigns and thereby ceases to act for purposes of this Agreement and the other Financing Documents, the Required Lenders acting jointly or the Administrative Agent, as the case may be, shall designate a Consultant in replacement.

(b) The Borrower shall reimburse each Consultant appointed hereunder for the reasonable fees and documented expenses of such Consultant retained on behalf of the Lenders pursuant to this Section 10.05.

(c) In all cases in which this Agreement provides for any Consultant to “agree,” “approve,” “certify” or “confirm” any report or other document or any fact or circumstance, such Consultant may make the determinations and evaluations required in connection therewith based upon information provided by the Borrower or other sources reasonably believed by such Consultant to be knowledgeable and responsible, without independently verifying such information; provided that, notwithstanding the foregoing, such Consultant shall engage in such independent investigations or findings as it may from time to time deem necessary in its reasonable discretion to support the determinations and evaluations required of it.

Section 10.06 Costs and Expenses. The Borrower shall pay (a) all reasonable and documented out-of-pocket expenses incurred by the Lenders and the Agents (including all reasonable fees, costs and expenses of counsel and financial advisors), in connection with the preparation, negotiation, syndication, execution and delivery of this Agreement and the other Financing Documents (whether or not the transactions contemplated hereby or thereby are consummated); (b) all reasonable out-of-pocket expenses incurred by the Lenders and the Agents (including all reasonable fees, costs and expenses of counsel and financial advisors), in connection with any amendments, modifications or waivers of the provisions of this Agreement and the other Financing Documents (whether or not the transactions contemplated hereby or thereby are consummated); (c) all out-of-pocket expenses incurred by the Agents (including all

reasonable fees, costs and expenses of counsel for any Agent and financial advisors for the Administrative Agent), in connection with the administration of this Agreement and the other Financing Documents (whether or not the transactions contemplated hereby or thereby are consummated); and (d) all out-of-pocket expenses incurred by the Agents or any Lender (including all fees, costs and expenses of counsel for any Senior Secured Party and financial advisors for the Administrative Agent), in connection with the enforcement or protection of its rights in connection with this Agreement and the other Financing Documents, including its rights under this Section 10.06, including in connection with any workout, restructuring or negotiations in respect of the Obligations.

Section 10.07 Counterparts; Effectiveness. (a) 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 has been executed by the Administrative Agent and when the Administrative Agent has 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 portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Agreement.

(b) With effect on and from the Effective Date, the Original Credit Agreement shall be amended and restated in its entirety by this Agreement and the rights and obligations of the parties under the Original Credit Agreement shall be governed by and construed in accordance with this Agreement. Except for purposes of Section 6.01 (Conditions to Effectiveness), the performance of the parties’ obligations under this Agreement prior to the Effective Date shall be deemed to be governed by and construed in accordance with the Original Credit Agreement.

Section 10.08 Indemnification by the Borrower. (a) In addition to the indemnity by the Borrower set forth in Section 10.11(f) (Notices and Other Communications), the Borrower hereby agrees to indemnify each Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and expenses (including all reasonable fees, costs and expenses of counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of:

(i)

the execution or delivery of this Agreement, the Restructuring Agreement, the Original Credit Agreement, any other Transaction Document (as defined herein or in the Original Credit Agreement) or any agreement or

			instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby;

	(ii)		any Loan or the use or proposed use of the proceeds therefrom;

	(iii)		any actual or alleged presence, release or threatened release of Materials of Environmental Concern on or from the Project or any property owned, leased or operated by the Borrower, or any liability or costs pursuant to an Environmental Law related in any way to the Project, the Sites or the Borrower;

	(iv)		any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party, the Pledgor or any of its shareholders, directors, members, managers or creditors, the Borrower or any of its partners or creditors, and in each case regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Financing Documents is consummated, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; and/or

	(v)		any claim, demand or liability for broker’s or finder’s or placement fees or similar commissions, whether or not payable by the Borrower, alleged to have been incurred in connection with such transactions, other than any broker’s or finder’s fees payable to Persons engaged by the Lenders or the Agents without the knowledge of the Borrower;

provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and Non-Appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, and in no event shall the Borrower be responsible for or indemnify any Indemnitee for any losses comprised of (a) the fifty percent (50%) of the Disputed Subordinated Interest

Payment retained by the Bond Trustee (as each such term is defined in the Restructuring Agreement) and (b) the reduction to zero, pursuant to the Restructuring Agreement, of interest accrued on outstanding Loans and outstanding Net Swap Payments owing to any Interest Rate Protection Provider (as each such term is defined in the Original Credit Agreement) through the Effective Date.

(b) The Borrower hereby agrees to indemnify each Agent (and any sub-agent thereof) and each Related Party of any of the foregoing Persons (each such Person being called a “Restructuring Indemnitee”) against, and hold each Restructuring Indemnitee harmless from, any and all losses, damages, liabilities and expenses (including all reasonable fees, costs and expenses of counsel for any Restructuring Indemnitee), incurred by any Restructuring Indemnitee in connection with or in relation to any claim (whether before or after such claim is actually brought) asserted against any Restructuring Indemnitee by any other Indemnitee arising out of, in connection with, or as a result of the execution or delivery of the Restructuring Agreement, the performance by the parties thereto of their respective obligations thereunder or the consummation of the transactions contemplated thereby; provided that such indemnity shall not, as to any Restructuring Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and Non-Appealable judgment to have resulted from the gross negligence or willful misconduct of such Restructuring Indemnitee. The Administrative Agent and the Collateral Agent each acknowledges to the Borrower that, as of the date of this Agreement, it has no knowledge of any claims asserted against it by any other Indemnitee that would result in any Restructuring Indemnitee seeking indemnification rights under this Section 10.08(b).

(c) Except as otherwise provided in ARTICLE VI (Conditions Precedent), all amounts due under this Section 10.08 shall be payable not later than ten (10) Business Days after demand therefor.

Section 10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Financing Document, the interest paid or agreed to be paid under the Financing Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by any Agent or any Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts

the total amount of interest throughout the contemplated term of the Obligations hereunder.

Section 10.10 No Waiver; Cumulative Remedies. No failure by any Senior Secured Party to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Financing Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Financing Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Section 10.11 Notices and Other Communications. (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 10.11(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

	(i)		if to the Borrower or any Agent, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.11(a); and

	(ii)		if to any Lender, to the address, telecopier number, electronic mail address or telephone number specified in its administrative questionnaire.

(b) Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 10.11(d) shall be effective as provided in Section 10.11(d).

(c) Notices and other communications to the Lenders or any Agent hereunder may be delivered or furnished by electronic communication (including e-mail and internet or intranet websites) pursuant to procedures approved by the Administrative Agent, and in the case of notices to the Collateral Agent, by the Collateral Agent as well; provided that the foregoing shall not apply to notices to any Lender pursuant to

ARTICLE II (The Loans) if such Lender has so notified the Administrative Agent. Each of the Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(d) Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not received during the normal business hours of the recipient, such notice or communication shall be deemed to have been received at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in Section 10.11(d)(i) of notification that such notice or communication is available and identifying the website address therefor.

(e) Each of the Borrower and the Agents may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Borrower and each Agent.

(f) The Agents and the Lenders shall be entitled to rely and act upon any written notices purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with any Agent may be recorded by such Agent, and each of the parties hereto hereby consents to such recording.

(g) So long as WestLB is the Administrative Agent, the Borrower hereby agrees that it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Financing Documents, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (ii) provides notice of any Default or

Event of Default or (iii) is required to be delivered to satisfy any condition precedent to the Effective Date (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Administrative Agent to ▇▇▇_▇▇▇▇▇▇_▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇. In addition, the Borrower agrees to continue to provide the Communications to the Administrative Agent in the manner specified in the Financing Documents but only to the extent requested by the Administrative Agent.

(h) So long as WestLB is the Administrative Agent, the Borrower further agrees that the Administrative Agent may make the Communications available to the Lenders by posting the Communications on ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ (or any replacement or successor thereto) or a substantially similar electronic transmission systems (the “Platform”).

(i) THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE”. THE AGENTS DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE AGENTS IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES (COLLECTIVELY, “AGENT PARTIES”) HAVE ANY LIABILITY TO THE BORROWER, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE BORROWER’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS FOUND IN A FINAL NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

(j) The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its e-mail address set forth in Schedule 10.11(a) shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Financing Documents. Each Lender agrees that

notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Financing Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s e-mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address.

(k) Notwithstanding clauses (g) to (j) above, nothing herein shall prejudice the right of any Agent or Lender to give any notice or other communication pursuant to any Financing Document in any other manner specified in such Financing Document.

Section 10.12 Patriot Act Notice. Each Lender and Agent (for itself and not on behalf of any Lender or other Agent) hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow such Lender or Agent, as applicable, to identify the Borrower in accordance with the Patriot Act.

Section 10.13 Payments Set Aside. To the extent that any payment by or on behalf of the Borrower is made to any Agent or Lender, or any Agent or Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent or Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any Insolvency or Liquidation Proceeding or otherwise, then (a) to the extent of such recovery, the Obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to each Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by such Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective Rate from time to time in effect. The obligations of the Lenders under Section 10.13(b) shall survive the payment in full of the Obligations and the termination of this Agreement.

Section 10.14 Right of Setoff. Each Lender and each of its respective Affiliates is hereby authorized at any time and from time to time during the continuance of an Event of Default, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing

under this Agreement or any other Financing Document to such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement or any other Financing Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender and their respective Affiliates under this Section 10.14 are in addition to other rights and remedies (including other rights of setoff) that such Lender or their respective Affiliates may have. Each Lender agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.

Section 10.15 Severability. If any provision of this Agreement or any other Financing Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Financing Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 10.16 Survival. Notwithstanding anything in this Agreement to the contrary, Section 10.06 (Costs and Expenses) and Section 10.08 (Indemnification by the Borrower) shall survive any termination of this Agreement. In addition, each representation and warranty made hereunder and in any other Financing Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by any Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have had notice or knowledge of any Default or Event of Default at the time such representation and warranty was made or deemed repeated, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder or under any other Financing Document shall remain unpaid or unsatisfied.

Section 10.17 Treatment of Certain Information; Confidentiality. Each of the Agents and the Lenders agrees to maintain the confidentiality of the Information, except that Information may be disclosed (a) to its Affiliates and to its Affiliates’ respective partners, directors, officers, employees, agents, advisors (including legal counsel and financial advisors) and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent

requested or required by any regulatory authority purporting to have jurisdiction over it; (c) to the extent required by applicable Law or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder (including any actual or prospective purchaser of Collateral); (f) subject to an agreement containing provisions substantially the same as those of this Section 10.17, to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement, (ii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative transaction relating to obligations of the Borrower or (iii) any Person (and any of its officers, directors, employees, agents or advisors) that may enter into or support, directly or indirectly, or that may be considering entering into or supporting, directly or indirectly, either (A) contractual arrangements with such Agent or Lender, or any Affiliates thereof, pursuant to which all or any portion of the risks, rights, benefits or obligations under or with respect to any Loan or Financing Document is transferred to such Person or (B) an actual or proposed securitization or collateralization of, or similar transaction relating to, all or a part of any amounts payable to or for the benefit of any Lender under any Financing Document (including any rating agency); (g) with the consent of the Borrower; (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section 10.17 or (ii) becomes available to any Agent, any Lender or any of their respective Affiliates on a non-confidential basis from a source other than the Borrower; (i) to any state, federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating any Lender; or (j) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Borrower received by it from such Lender). In addition, each of the Agents and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Agents and the Lenders in connection with the administration and management of this Agreement and the other Financing Documents. For the purposes of this Section 10.17, “Information” means written information that the Borrower furnishes to any Agent or Lender after the date hereof (and designated at the time of delivery thereof in writing as confidential) pursuant to or in connection with any Financing Document, relating to the assets and business of the Borrower, but does not include any such information that (i) is or becomes generally available to the public other than as a result of a breach by such Agent or Lender of its obligations hereunder, (ii) is or becomes available to such Agent or Lender from a source other than the Borrower that is not, to the knowledge of such Agent or Lender, acting in violation of a confidentiality obligation with the Borrower or (iii) is independently compiled by any Agent or Lender,

as evidenced by their records, without the use of the Information. Any Person required to maintain the confidentiality of Information as provided in this Section 10.17 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Section 10.18 Waiver of Consequential Damages, Etc. Except as otherwise provided in Section 10.08 (Indemnification by the Borrower) for the benefit of any Indemnitee, to the fullest extent permitted by applicable Law, the Borrower shall not assert, and the Borrower hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Financing Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Financing Documents or the transactions contemplated hereby or thereby.

Section 10.19 Waiver of Litigation Payments. To the extent that the Borrower may, in any action, suit or proceeding brought in any of the courts referred to in Section 10.02(b) (Applicable Law; Jurisdiction; Etc. — Submission to Jurisdiction) or elsewhere arising out of or in connection with this Agreement or any other Financing Document to which it is a party, be entitled to the benefit of any provision of law requiring any Lender or any Agent in such action, suit or proceeding to post security for the costs of such Person or to post a bond or to take similar action, the Borrower hereby irrevocably waives such benefit, in each case to the fullest extent now or in the future permitted under the laws of New York or, as the case may be, the jurisdiction in which such court is located.

Section 10.20 CONDITIONS DEEMED SATISFIED BY DELIVERY OF SIGNATURE. BY ITS EXECUTION AND DELIVERY (AND, IN THE CASE OF DELIVERY IN ESCROW, RELEASE FROM ESCROW) OF AN EXECUTED COUNTERPART OF A SIGNATURE PAGE OF THIS AGREEMENT (INCLUDING BY TELECOPY OR PDF) TO THE OTHER PARTIES, EACH PARTY SHALL BE DEEMED TO HAVE CONFIRMED ITS SATISFACTION THAT ALL OF THE CONDITIONS SET FORTH IN SECTION 6.01 (CONDITIONS TO EFFECTIVENESS) HAVE BEEN SATISFIED OR WAIVED.

Section 10.21 Consent to Modifications to Borrower Organic Documents. The Lenders and the Administrative Agent hereby consent to the modifications to the

Organic Documents of the Borrower being made on the Effective Date pursuant to the Borrower LLC Agreement and the certificates of formation and conversion of the Borrower in connection with the conversion of the Borrower from Heartland Grain Fuels, L.P. to ABE South Dakota, LLC.

[Remainder of page intentionally blank. Next page is signature page.]

IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Senior Credit Agreement to be executed by their respective officers as of the day and year first above written.


ABE SOUTH DAKOTA, LLC, as Borrower
By:	/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
	Title:	President and Chief Executive Officer