EXHIBIT 10.11**EXECUTION VERSION**  AMENDED AND RESTATED CREDIT AGREEMENTDated as of March 07,, 2008amongGREENHUNTER BIOFUELS, INCas the BorrowerWESTLB AG, NEW YORK BRANCH,as the Administrative AgentWESTLB AG, NEW YORK BRANCH,as the LC Issuing BankandLENDERS PARTY TO THIS AGREEMENTFROM TIME TO TIME  
 

 
TABLE OF CONTENTS          This Table of Contents is not part of the Agreement to which it is attached but is insertedfor convenience only.               Page         ARTICLE I Definitions and Interpretive Matters  1   1.01 Certain Defined Terms  1   1.02 Accounting Terms and Determinations  36   1.03 Types of Loans  37   1.04 Certain Principles of Interpretation  37          ARTICLE II Loan Commitments  37   2.01 Term Loans  37   2.02 Working Capital Loans  38   2.03 Letters of Credit  38   2.04 Borrowings  42   2.05 Changes of Loan Commitments  43   2.06 Fees  43   2.07 Lending Offices  45   2.08 Several Obligations; Remedies Independent  45   2.09 Notes  45          ARTICLE III Payments of Principal and Interest  46   3.01 Repayment of Loans  46   3.02 Interest  46   3.03 Optional Prepayments and Conversions or Continuations of Loans  47   3.04 Mandatory Prepayments  47          ARTICLE IV Payments; Pro RataTreatment; Computations; Etc.  49   4.01 Payments  49   4.02 Pro Rata Treatment  50   4.03 Computations  50   4.04 Minimum Amounts  50   4.05 Certain Notices  50   4.06 Non-Receipt of Funds by the Administrative Agent  52   4.07 Sharing of Payments; Etc.  53          ARTICLE V Yield Protection; Etc.  54   5.01 Alternate Rate of Interest  54   5.02 Increased Costs  54   5.03 Break Funding Payments  55   5.04 Taxes  56   5.05 Mitigation of Secured Obligations; Replacement of Lenders  58   5.06 Illegality  59          ARTICLE VI Conditions Precedent  59 AMENDED AND RESTATED GREENHUNTER CREDIT AGREEMENT
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               Page  6.01 Conditions to Closing Date  59   6.02 Conditions to the First Project Funding  65   6.03 Conditions to All Term Loan Fundings (except the Fee Funding)  68   6.04 Conditions to all Fundings of Loans  70   6.05 Conditions Precedent to the Conversion Date  72          ARTICLE VII Representations and Warranties  74   7.01 Existence  74   7.02 Financial Condition  75   7.03 Action  75   7.04 No Breach  75   7.05 Government Approvals; Government Rules  75   7.06 Proceedings  77   7.07 Environmental Matters  77   7.08 Taxes  79   7.09 Tax Status  79   7.10 ERISA; ERISA Event; Labor Relations  79   7.11 Nature of Business; Property  80   7.12 Security Documents  80   7.13 Subsidiaries  80   7.14 Status; Investment Company Regulation  80   7.15 Contracts; Material Project Documents; Licenses  80   7.16 Use of Proceeds  82   7.17 Disclosure  82   7.18 Fees  83   7.19 Insurance  83   7.20 Investments  83   7.21 No Material Adverse Effect  83   7.22 Absence of Default  83   7.23 Event of Loss  83   7.24 Title  83   7.25 Property Rights, Utilities,Supplies; Etc.  83   7.26 Separateness  84   7.27 Patriot Act  84          ARTICLE VIII Covenants  85   8.01 Reporting Requirements  85   8.02 Maintenance of Existence; Etc.  86   8.03 Compliance with Government Rules;Etc.  86   8.04 Environmental Compliance  87   8.05 Insurance; Events of Loss  88   8.06 Proceedings  92   8.07 Taxes  92   8.08 Books and Records; Inspection Rights  92   8.09 Use of Proceeds  92   8.10 Maintenance of Lien; Lenders’ Right to request stock pledge  93   8.11 Prohibition of Fundamental Changes  94 
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               Page  8.12 Restricted Payments  94   8.13 Liens  96   8.14 Investments  97   8.15 Hedging Arrangements  98   8.16 Indebtedness  98   8.17 Nature of Business  99   8.18 Project Construction; Maintenance of Properties  99   8.19 Construction Reports  100   8.20 Project Documents; Etc  101   8.21 Operating and Capital Budgets  102   8.22 Operating Statements and Reports  103   8.23 Transactions with Affiliates  104   8.24 Final Survey and Title Policy  104   8.25 Other Documents and Information  105   8.26 Cooperation  105   8.27 Performance Tests  105   8.28 Separateness  106   8.29 Suspension or Abandonment  106   8.30 Mechanics Liens  106          ARTICLE IX Events of Default  106   9.01 Events of Default; Remedies  106          ARTICLE X The Administrative Agent  110   10.01 Appointment, Powers and Immunities  110   10.02 Reliance by Administrative Agent  110   10.03 Defaults  110   10.04 Rights as a Lender  111   10.05 Indemnification  111   10.06 Non-Reliance on Administrative Agent and Other Lenders  112   10.07 Failure to Act  112   10.08 Resignation or Removal of Administrative Agent  112   10.09 Consents under Transaction Documents  113   10.10 Appointment of Collateral Agent  113   10.11 Reports; Etc  113   10.12 Lead Arranger, etc  113          ARTICLE XI Miscellaneous  113   11.01 Waiver  113   11.02 Notices  114   11.03 Expenses; Indemnification; Etc  114   11.04 Amendments; Etc  116   11.05 Successors and Assigns  117   11.06 Assignments and Participations; Replacement of Lender  117   11.07 **SUBMISSION TO JURISDICTION; WAIVERS**  120   11.08 Marshalling; Recapture  120   11.09 Interest Rate Limitation  122 
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               Page  11.10 Limitation of Liability  122   11.11 Survival  123   11.12 Captions  123   11.13 Counterparts; Integration; Effectiveness  123   11.14 Reinstatement  123   11.15 Severability  124   11.16 Remedies  124   11.17 **NO THIRD PARTY BENEFICIARIES**  124   11.18 **SPECIAL EXCULPATION**  124   11.19 **GOVERNING LAW**  124   11.20 **WAIVER OF JURY TRIAL**  125 
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APPENDICES, SCHEDULES AND EXHIBITS     APPENDIX A — Lender Loan CommitmentsAPPENDIX B — Wire Transfer Details of AgentAPPENDIX C — Target Balance AmountAPPENDIX D — Construction Contracts     SCHEDULE 6.01(a) — Financing Documents — ClosingSCHEDULE 6.01(e) — UCC Filing Jurisdictions — ClosingSCHEDULE 6.01(k) — IndebtednessSCHEDULE 6.02(a) — Financing Documents — First Project FundingSCHEDULE 6.02(d) — UCC Filing Jurisdictions — First Project FundingSCHEDULE 6.05(e) — Financing Documents — ConversionSCHEDULE 7.05(a) — Government Approvals — Closing DateSCHEDULE 7.05(b) — Government Approvals — First Project FundingSCHEDULE 7.05(d) — Government Approvals — Post-First Project FundingSCHEDULE 7.07 — Environmental MattersSCHEDULE 7.10 — ERISASCHEDULE 7.15 — Project DocumentsPart A — ClosingPart B — First Project FundingPart C — ConversionSCHEDULE 7.15(f) — Transaction Documents Existing LiensSCHEDULE 7.15(j) — Material Affiliated Project DocumentsSCHEDULE 7.18 — FeesSCHEDULE 7.26 — Separateness ProvisionsSCHEDULE 8.05 — Insurance RequirementsPart A — ConstructionPart B — OperationSCHEDULE 8.15 — Commodity Hedging PlanSCHEDULE 8.27 — Performance Tests and Performance Criteria EXHIBIT A — Form of NoteEXHIBIT B-1(a) — Form of Term Loan Borrowing CertificateEXHIBIT B-1(b) — Form of Working Capital Loan Borrowing CertificateEXHIBIT B-2 — Form of Notice of BorrowingEXHIBIT B-3 — Form of Letter of Credit Issuance RequestEXHIBIT C-1 — Form of Final Completion CertificateEXHIBIT C-2 — Form of Independent Engineer’s Final Completion CertificateEXHIBIT C-3 — Form of Independent Engineer’s CertificateEXHIBIT C-4 — Form of Independent Consultant’s Bringdown CertificateEXHIBIT D — Form of Security AgreementEXHIBIT E — Not UsedEXHIBIT F — Form of Collateral Agency AgreementEXHIBIT G — Form of Consent and AgreementEXHIBIT H — Not UsedEXHIBIT I — Terms of SubordinationEXHIBIT J — Form of Construction Report
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     EXHIBIT K — Form of Assignment and AcceptanceEXHIBIT L — Form of Pending Disbursements ClauseEXHIBIT M — Form of Confidentiality AgreementEXHIBIT N — Form of Deed of Trust
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          This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of March 07,2008, is made among GREENHUNTER BIOFUELS, INC (f/k/a CHANNEL REFINING CORPORATION, INC), a Texascorporation (the “Borrower”), each of the lenders that is a signatory to this Agreementidentified as a “Lender” on the signature pages to this Agreement or that, pursuant to Section11.06(b), shall become a “Lender” under this Agreement (individually, a “Lender” and,collectively, the “Lenders”), and WESTLB AG, NEW YORK BRANCH (“WestLB”) as administrativeagent for the Lenders (in such capacity, the “Administrative Agent”), and WestLB as LCIssuing Bank (“LC Issuing Bank”).          WHEREAS, the Borrower seeks to construct and operate a 105 million gallon per year(“MGY”) nameplate biofuel refinery, together with glycerin and methanol, and terminalassets of approximately 350,000 barrels, in Houston, Harris County, Texas (the “Project”);          WHEREAS, the Borrower seeks senior secured financing to complete construction of and operatethe Project;          WHEREAS, the Borrower has entered into that certain Credit Agreement, dated December 20, 2007(the “Credit Agreement”) among the Borrower, the Lenders, the Administrative Agent and theLC Issuing which provides for, among other things, loans from time to time to finance thdevelopment, construction and operation of the Project in an aggregrate principal amount not toexceed $43,500,000.          WHEREAS, pursuant to the terms and conditions of this Agreement, the parties to the CreditAgreement wish to amend and restate the Credit Agreement in its entirety, with effect from theEffective Date (as defined below).          WHEREAS, the Borrower hereby requests the Lenders to make loans from time to time to financethe development, construction and operation of the Project in an aggregate principal amount not toexceed $43,500,000, consisting of (i) $33,500,000 in aggregate principal amount of term loans (the“Term Loan Facility”), and (ii) $10,000,000 in aggregate principal amount of workingcapital commitments (the “Working Capital Facility”);          WHEREAS, the Lenders are prepared to make such loans upon the terms and conditions hereof;          NOW THEREFORE, the parties hereto agree as follows:**ARTICLE I****DEFINITIONS AND INTERPRETIVE MATTERS**          1.01 Certain Defined Terms. In addition to the terms defined in the preamble above,and unless otherwise specified in this Agreement, capitalized terms used in this Agreement shallhave the meanings assigned to such terms below. Capitalized terms and other terms used in thisAgreement shall be interpreted in accordance with Sections 1.02, 1.03 and1.04, as applicable.
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          “Acceptable Bank” shall mean any bank or trust company which is organized or licensedunder the laws of the United States or any state thereof which has capital, surplus and undividedprofits of at least $500,000,000 and has outstanding unguaranteed and unsecured long-termindebtedness which is rated “A-” or better by S&P and “A3” or better by Moody’s (or an equivalentrating by another nationally recognized statistical rating organization of similar standing ifneither such corporation is in the business of rating unsecured bank indebtedness).          “Acceptable Insurance Broker” shall mean any recognized independent insurance brokerreasonably satisfactory to the Agent, after consultation with the Independent Insurance Consultantand the Borrower.          “Accounts” shall have the meaning given such term in the Collateral Agency Agreement.          “Additional Project Document” shall mean any contract or agreement relating to theProject entered into by the Borrower, or by an agent on behalf of the Borrower, subsequent to theClosing Date (other than Non-Material Project Documents).          “Adjusted LIBO Rate” shall mean, for the Interest Period for any Eurodollar Loan, aninterest rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to (a) theLIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for suchInterest Period.          “Administrative Agent” shall have the meaning assigned to that term in the preamble.          “Administrative Agent Fee Letter” shall mean the fee letter dated as of December 20,2007 entered into amongthe Borrower and the Administrative Agent, with respect to, amongother matters, certain fees payable for the account of WestLB, in its capacity as AdministrativeAgent.          “Administrative Fee” shall have the meaning assigned to that term in Section2.05(c).          “Advance Date” shall have the meaning assigned to that term in Section 4.06.          “Affected Property” shall mean the Property of the Borrower lost, destroyed, damagedor otherwise taken as a result of any Event of Loss.          “Affiliate” shall mean any Person that directly or indirectly Controls, or is undercommon Control with, or is Controlled by, a specified Person and, if such Person is an individual,any member of the immediate family (including parents, spouse, children and siblings) of suchindividual and any trust whose principal beneficiary is such individual or one or more members ofsuch immediate family and any Person who is Controlled by any such member or trust.Notwithstanding the foregoing, the definition of “Affiliate” shall not encompass (a) any individualsolely by reason of his or her being a director, officer or employee of any Person and (b) theAdministrative Agent or any Lender.
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          “Agreement” shall have the meaning assigned to that term in the preamble.          “Ancillary Documents” shall mean, with respect to each Additional Project Documententered into by the Borrower, or by an agent on behalf of the Borrower, subsequent to the ClosingDate: (a) each security agreement or instrument necessary to grant to the Collateral Agent aperfected Lien in such Additional Project Document with the priority contemplated by the SecurityDocuments, (b) each recorded UCC financing statement and other filings required to perfect suchLien, (c) an opinion of counsel to the Borrower, (d) a Consent and Agreement from each Person partyto such Additional Project Document and any other Person guaranteeing or otherwise supporting suchMaterial Project Party’s obligations, (e) evidence of the authorization of the Borrower, toexecute, deliver and perform such Additional Project Document and (f) evidence that all GovernmentApprovals necessary for the execution, delivery and performance of such Additional Project Documenthave been duly obtained, were validly issued and are in full force and effect, all in form andsubstance reasonably satisfactory to the Administrative Agent and, in the case of items (a), (b)and (d), the Collateral Agent.          “Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the“Lending Office” of such Lender (or of an affiliate of such Lender) designated for such Type ofLoan on Appendix A or such other office of such Lender (or of an affiliate of such Lender)as such Lender may from time to time specify to the Administrative Agent and the Borrower as theoffice for its Loans of such Type; provided, that any Lender may from time to time changeits “Applicable Lending Office” for each Type of Loan by delivering notice of such change to theAdministrative Agent and the Borrower.          “Applicable Margin” shall have the meaning set forth in the table below based on theType of Loan:           Eurodollar Rate Base Rate         Term Loans  4.00%  3.00%         Working Capital Loans  4.00%  3.00%          “Appurtenant Rights” shall mean, with respect to any parcel of real property, (a) allagreements, leases, easements, rights of way or use, rights of ingress or egress, privileges,appurtenances, tenements, hereditaments and other rights and benefits at any time belonging orpertaining to such parcel, including the use of any streets, ways, alleys, vaults or strips of landadjoining, abutting, adjacent or contiguous to such parcel and (b) all permits, licenses andrights, whether or not of record, appurtenant to or used by or useful to such parcel.          “Assignment and Acceptance” shall mean an assignment and acceptance entered into by aLender and an assignee (with the consent of any party whose consent is required by Section11.06(b)), and accepted by the Administrative Agent, in the form of Exhibit K or anyother form approved by the Administrative Agent.          “Authorized Officer” shall mean: (a) with respect to any Person that is acorporation, the chairman, chief executive officer, president, vice president, treasurer, assistant
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treasurer, secretary or assistant secretary of such Person, (b) with respect to any Personthat is a partnership, each general partner of such person or the chairman, chief executiveofficer, president, vice president, treasurer, assistant treasurer, secretary or assistantsecretary of a general partner of such Person and (c) with respect to any Person that is a limitedliability company, the manager, the managing partner or a duly appointed officer of such Person orthe chairman, chief executive officer, president, vice president, treasurer, assistant treasurer,secretary or assistant secretary of a manager or managing member of such Person.          “Bankruptcy” shall mean, with respect to any Person, the occurrence of any of thefollowing events, conditions or circumstances: (a) such Person shall file a voluntary petition inbankruptcy or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer orconsent seeking any reorganization, arrangement, composition, readjustment, liquidation,dissolution or similar relief for itself under the Bankruptcy Code or any present or futureapplicable federal, state or other statute or law relating to bankruptcy, insolvency,reorganization or other relief for debtors, or shall seek or consent to or acquiesce in theappointment of any trustee, receiver, conservator or liquidator of such Person or of all or anysubstantial part of its properties (the term “acquiesce,” as used in this definition, includes thefailure to file in a timely manner a petition or motion to vacate or discharge any order, judgmentor decree after entry of such order, judgment or decree), (b) an involuntary case or otherproceeding shall be commenced against such Person seeking any reorganization, arrangement,composition, readjustment, liquidation, dissolution or similar relief with respect to such Personor its debts under the Bankruptcy Code or any present or future applicable federal, state or otherstatute or law relating to bankruptcy, insolvency, reorganization or other relief for debtors, orseeking the appointment of a trustee, receiver, liquidator, custodian or other similar official ofit or any substantial part of its property, and such involuntary case or other proceeding shallremain undismissed or unstayed for a period of sixty (60) consecutive days, (c) a court ofcompetent jurisdiction shall enter an order, judgment or decree approving a petition filed againstsuch Person seeking a reorganization, arrangement, composition, readjustment, liquidation,dissolution or similar relief under the Bankruptcy Code, or any other present or future applicablefederal, state or other statute or law relating to bankruptcy, insolvency, reorganization or otherrelief for debtors, and such Person shall acquiesce in the entry of such order, judgment or decreeor such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty(60) days (whether or not consecutive) from the date of entry thereof, or any trustee, receiver,conservator or liquidator of such Person or of all or any substantial part of its property shall beappointed without the consent or acquiescence of such Person and such appointment shall remainunvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive), (d) suchPerson shall admit in writing its inability to pay its debts as they mature or shall generally notbe paying its debts as they become due, (e) such Person shall make an assignment for the benefit ofcreditors or take any other similar action for the protection or benefit of creditors or (f) suchPerson shall take any corporate or partnership action for the purpose of effecting any of theforegoing.          “Bankruptcy Code” shall mean the United States Bankruptcy Reform Act of 1978, asheretofore and hereafter amended, and codified as 11 U.S.C. Section 101 etseq.          “Base Case Forecast” shall mean the financial projections relating to the Developmentand operation of the Project for the period commencing on the date of such Base
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Case Forecast and continuing through the tenth anniversary after the Final Maturity Dateprepared by the Borrower, as agreed to with the Independent Engineer, and in form and substancereasonably acceptable to the Lenders, which projections shall be certified by an Authorized Officerof the Borrower to the effect that (a) such projections were made in good faith and (b) theassumptions on the basis of which such projections were made were (when made) reasonable andconsistent with the Construction Budget and Schedule and the Transaction Documents for the Project.Amounts included in the Base Case Forecast for (i) land and other property contributed to theBorrower and/or (ii) the reasonable fair value of development and other services rendered to theBorrower by Affiliates of the Borrower, shall only be considered Equity to the extent that theIndependent Engineer has certified that such amounts are reasonable fair values for such propertyand/or services.          “Base Rate” shall mean, for any day, the higher of (a) the Federal Funds Rate for suchday plus one-half (1/2) of one percent (1%) per annum and (b) the Prime Rate for such day.Each change in any interest rate provided for in this Agreement based upon the Base Rate resultingfrom a change in the Base Rate shall take effect at the time of such change in the Base Rate.          “Base Rate Loans” shall mean Loans that bear interest at rates based upon the BaseRate plus the Applicable Margin.          “BBETC” shall mean the Biodiesel Blender Excise Tax Credit, codified in H.R. 4520, theAmerican Jobs Creation Act of 2004, as amended from time to time, and codified as 26 U.S.C. 6426.          “BBETC Event” shall mean, the occurrence of any of the following events at any timeafter June 30, 2008:          (a) the BBETC expires or has expired;          (b) the BBETC is scheduled to expire within 18 months;          (c) the most recent renewal or extension of the BBETC by the federal legislature is for aperiod of less than 12 months; or          (d) the most recent renewal, extension, or amendment of the BBETC by the federal legislatureis not acceptable to the Majority Lenders, acting reasonably.          “Biodiesel” shall mean the biodiesel produced by the Project through processing ofFeedstock provided by the Feedstock Suppliers.          “Biodiesel Purchaser” shall mean a purchaser of Biodiesel pursuant to a BiodieselSales Agreement, and each of its permitted successors and assigns.          “Biodiesel Sales Agreement” shall mean an agreement for the purchase and sale ofBiodiesel produced by the Project between the Borrower and a Biodiesel Purchaser, as each suchagreement may from time to time be amended, supplemented or replaced pursuant to this Agreement.
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          “Board” shall mean the Board of Governors of the Federal Reserve System.          “Bookrunner” shall mean WestLB.          “Borrower” shall have the meaning assigned to that term in the preamble.          “Borrower’s Knowledge” shall mean (a) to the extent related to the knowledge of theBorrower of any event, fact or circumstance related to any Material Project Party, receipt ofnotice by an Authorized Officer of the Borrower or the plant manager of the Project or theirequivalent of such event, fact or circumstance or of information supporting a reasonable conclusionthat such event, fact or circumstance has occurred and is continuing and (b) to the extent relatedto the knowledge of the Borrower of any other event, fact or circumstance related to the Borroweror the Project, actual knowledge by an Authorized Officer of the Borrower or the plant manager ofthe Project or their equivalent of the occurrence and continuance of such event, fact orcircumstance, without any duty of specific inquiry as to any such event, fact or circumstance.          “Borrowing” shall mean a Term Loan Borrowing or a Working Capital Loan Borrowing, asthe context may require.          “Business Day” shall mean any day on which commercial banks are not authorized orrequired to be closed in New York, New York, and, if such day relates to a Borrowing of, a paymentor prepayment of principal of or interest on, a Conversion of or into, a Continuation of, or anInterest Period for, a Eurodollar Loan or a notice by the Borrower with respect to any suchBorrowing, payment, prepayment, Conversion, Continuation or Interest Period, which is also a day onwhich dealings in Dollar deposits are carried out in the London interbank market.          “Capital Expenditures” shall mean, for any period after the Closing Date, expenditures(including the aggregate amount of Capital Lease Obligations incurred during such period) made by(or on behalf of) the Borrower to acquire, refurbish, convert, modify or construct fixed assets,plant and equipment (including renewals, improvements and replacements, but excluding repairs afterthe Conversion Date) during such period computed in accordance with GAAP (other than suchexpenditures paid out of casualty insurance proceeds), but excluding Project Costs.          “Capital Lease Obligations” shall mean, for any Person, the obligations of such Personto pay rent or other amounts under a lease of (or other agreement conveying the right to use)Property of such Person to the extent such obligations are required to be classified and accountedfor as a capital lease on a balance sheet of such Person under GAAP (including Statement ofFinancial Accounting Standards No. 13 of the Financial Accounting Standards Board) and, forpurposes of this Agreement, the amount of such obligations shall be the capitalized amount of suchobligations, determined in accordance with GAAP (including such Statement No. 13).          “Change in Control” shall mean any reduction of the direct or indirect interest ofProject Sponsor to less than fifty-one percent (51%) of the Borrower or loss of Control of theBorrower.
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          “Change in Law” shall mean, with respect to any Lender (or its Applicable LendingOffice), the occurrence after the date of the execution and delivery of this Agreement by suchLender of the following events: (a) the adoption of any applicable Government Rule, (b) any changein any applicable Government Rule (including Regulation D) or in the interpretation oradministration of any Government Rule (including Regulation D) by any Government Authority chargedwith its interpretation or administration or (c) the adoption or making of any interpretation,directive, guideline, policy or request applying to a class of Lenders including such Lender of orunder any Government Rule or in the interpretation or administration of any Government Rule(including Regulation D) (whether or not having the force of law and whether or not failure tocomply would be unlawful, but with respect to which similarly situated banks generally comply) byany Government Authority charged with its interpretation or administration.          “Charges” shall mean the meaning given to such term in Section 11.09.          “Closing Date” shall mean the date on which this Agreement is executed and deliveredby the Borrower, the Administrative Agent and the Lenders party hereto and the Administrative Agentshall have notified the Borrower that all of the conditions set forth in Section 6.01 shallhave been satisfied (or waived by each Lender).          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.          “Collateral” shall mean: (a) the “Pledged Collateral” as defined in the SecurityAgreement, (b) the Collateral Accounts, (c) the Trust Estate, (d) any Stock Pledge delivered by theCredit Parties pursuant to Section 8.10(b), and (e) all other Property of any Credit Party,whether real, personal or mixed, with respect to which a Lien is granted as security for theSecured Obligations.          “Collateral Accounts” shall have the meaning given to the term “Accounts” in theCollateral Agency Agreement.          “Collateral Agency Agreement” shall mean the Collateral Agency and Security DepositAgreement dated as of the date hereof, among the Collateral Agent, the Depositary, theAdministrative Agent and the Borrower substantially in the form of Exhibit F.          “Collateral Agency Fee Letter” shall mean that certain letter agreement dated as ofthe date hereof between the Borrower and the Collateral Agent with respect to certain fees payableby the Borrower for the account of WESTLB AG, NEW YORK BRANCH, in its capacity as Collateral Agent.          “Collateral Agent” shall mean WESTLB AG, NEW YORK BRANCH.          “Commitment Fees” shall mean the Term Loan Commitment Fees and the Working CapitalCommitment Fees.          “Commodity Hedging Agreement” shall mean any commodity swap, cap or collar agreementor similar arrangement between the Borrower and any Commodity Hedging Provider
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providing for the transfer or mitigation of commodity risks either generally or under specificcontingencies, in each case in accordance with Section 8.15.          “Commodity Hedging Plan” shall mean the commodity hedging risk management plan for theProject to enter into Commodity Hedging Agreements for Feedstock, Biodiesel, natural gas andgasoline, prepared by the Borrower (with the approval of the Administrative Agent) prior to theProject First Funding Date setting forth terms and conditions relating to any Commodity HedgingAgreements from time to time proposed to be entered into by the Borrower, including any updatesmade to such risk management plans with the approval of the Administrative Agent. Once prepared bythe Borrower and approved by the Administrative Agent, the Commodity Hedging Plan shall beincorporated as Schedule 8.15 of this Agreement.          “Commodity Hedging Provider” shall mean any Person that is an Acceptable Bank or aLender (or an Affiliate of a Lender or otherwise acceptable to the Agent) and that enters into aCommodity Hedging Agreement in accordance with Section 8.15.          “Confidential Information Memorandum” shall mean the information memorandum, dated asof a date prior to the Project First Funding Date, together with any updates related thereto,describing the Project.          “Confidentiality Agreement” shall mean a confidentiality agreement among a Lender anda prospective Assignee or Participant substantially in the form attached to this Agreement asExhibit M.          “Consent and Agreement” shall mean a Consent and Agreement for certain MaterialProject Documents as required by the Administrative Agent, acting reasonably, substantially in theform attached to this Agreement as Exhibit G, (or in such other form as is acceptable tothe Administrative Agent).          “Construction Account” shall have the meaning given such term in the Collateral AgencyAgreement.          “Construction Budget and Schedule” shall mean (a) a budget setting forth, on a monthlybasis, the timing and amount of all projected payments of Project Costs to construct the Projectfrom the Closing Date through the Projected Final Completion Date and (b) a schedule (which shallbe consistent with the budget in clause (a)) setting forth the proposed design,engineering, procurement, construction and testing milestone schedule for the Development throughthe Projected Final Completion Date, as certified by the Borrower, consistent with the requirementsof the Transaction Documents, reviewed and approved by the Independent Engineer and in form andsubstance acceptable to the Lenders.          “Construction Contracts” shall mean all material contracts or agreements related toconstruction of the Project Facility under which the Borrower could be expected to have aggregateobligations or liabilities in excess of $2,000,000 and (iii) any Additional Project Documents thatare related to construction matters, each of the above of which is identified in AppendixD.
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          “Construction Contractors” shall mean, collectively, each Person party to aConstruction Contract (other than the Borrower).          “Construction Report” shall mean a “Construction Report”, substantially in the form ofExhibit J to this Agreement, executed by an Authorized Officer of the Borrower anddelivered from time to time as contemplated by Section 8.19.          “Contest” shall mean, with respect to any Person, with respect to any Taxes or anyLien imposed on Property of such Person (or the related underlying claim for labor, material,supplies or services) by any Government Authority for Taxes or with respect to obligations underERISA or any Mechanics’ Lien (each, a “Subject Claim”), a contest of the amount, validityor application, in whole or in part, of such Subject Claim pursued in good faith and by appropriatelegal, administrative or other proceedings diligently conducted so long as: (a) adequate reserveshave been established with respect to such Subject Claim in accordance with GAAP, (b) during theperiod of such contest the enforcement of such Subject Claim is effectively stayed and any Lien(including any inchoate Lien) arising by virtue of such Subject Claim shall, if required byapplicable Government Rule, be effectively secured by posting of cash collateral or a surety bond(or similar instrument) by a reputable surety company, (c) neither the Administrative Agent nor anyLender could reasonably be expected to be exposed to any risk of criminal liability or civilliability as a result of such contest and (d) the failure to pay such Subject Claim under thecircumstances described above could not otherwise reasonably be expected to have a Material AdverseEffect. The term “Contest” used as a verb shall have a correlative meaning.          “Continue,” “Continuation” and “Continued” shall refer to thecontinuation pursuant to Section 3.03 of a Eurodollar Loan as a Eurodollar Loan from oneInterest Period to the next Interest Period.          “Control” (including, with its correlative meanings, “Controlled by” and“under common Control with”) shall mean (i) possession, directly or indirectly, of power todirect or cause the direction of management or policies (whether through ownership of securities orpartnership or other ownership interests, by contract or otherwise) or (ii) any Person owning atleast thirty percent (30%) of the voting securities of another Person, the equity of which ispublicly traded, shall be deemed to Control that Person.          “Conversion Date” shall mean the date on which the conditions set forth in Section6.05 shall have been satisfied (or, at the request of the Borrower, waived by the MajorityLenders).          “Conversion Restricted Payment” shall mean the Restricted Payment that may be made bythe Borrower in connection with Conversion pursuant to section 8.12(b).          “Convert”, “Conversion” and “Converted” shall refer to a conversionpursuant to Section 3.03 of one Type of Loan to another, which may be accompanied by thetransfer by a Lender, at its sole discretion, of a Loan from one Applicable Lending Office toanother.          “CPI” shall mean the non-seasonally adjusted Consumer Price Index for urban wageearners and clerical workers as published by the United States Bureau of Labor Statistics,
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or if no longer published, an index comparable to the Consumer Price Index that is publishedby the United States Bureau of Labor Statistics.          “Credit Party” shall mean each of the Borrower and the Project Sponsor.          “Date Certain” shall mean the date fifteen (15) months after the Closing Date, or ifsuch date is not a Business Day, the immediately preceding Business Day.          “Debentures” shall mean the 10% Series A Secured Redeemable Debentures issued by theProject Sponsor, more particularly described in that certain Confidential Private PlacementMemorandum distributed by the Project Sponsor and dated June 29, 2007.          “Debenture Holders” shall mean the Holders (as such term is defined in the Debentures)of the Debentures.          “Debenture Security Agreement” shall mean the security agreement in connection withthe Debentures, by and among the collateral agent for the benefit of the Debenture Holders and theProject Sponsor.          “Debt Service” shall mean, for any period, the sum, computed without duplication, ofthe following: (a) all amounts payable by the Borrower in respect of scheduled payments ofprincipal of Permitted Indebtedness for such period (and excluding prepayments of Loans payableduring such period pursuant to Section 3.04) plus (b) all amounts payable by theBorrower in respect of Interest Expense for such period plus (c) all commitment fees,participation fees and fronting fees payable in accordance with Section 2.05, all feespayable in accordance with the Fee Letters during such period and all other commitment fees, agencyfees, trustee fees or other fees and expenses payable in connection with the Indebtedness referredto in clause (a) above during such period.          “Debt Service Coverage Ratio” shall mean, as of any Determination Date, the ratio of(a) the excess (if any) of (i) Project Revenues (other than extraordinary revenues) for such periodover (ii) Operation and Maintenance Expenses and Permitted Capital Expenditure for suchperiod to (b) Debt Service (other than closing fees and expenses) for the twelve (12) monthperiod ending on or prior to such date of determination.          “Debt Service Reserve Account” shall have the meaning given such term in theCollateral Agency Agreement.          “Deed of Trust” shall mean the Deed of Trust, Assignments of Rents, Security Agreementand Fixture Filing by the Borrower, as trustor, in favor of the Collateral Agent, as trustee, andCollateral Agent, as beneficiary, encumbering the Project Facility Site, substantially in the formof Exhibit N.          “Default” shall mean an Event of Default or an event which with notice or lapse oftime or both would become an Event of Default.          “Depositary” shall have the meaning given such term in the Collateral AgencyAgreement.
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          “Determination Date” shall have the meaning assigned to that term in Section8.12.          “Development” shall mean the development and construction of the Project, the scopeand cost of which shall be set forth in the Construction Budget and Schedule.          “Disposition” shall mean any sale, assignment, transfer or other disposition of anyproperty (whether now owned or hereafter acquired) by the Borrower to any other Person excludingany sale, assignment, transfer or other disposition of any property sold or disposed of in theordinary course of business and on ordinary business terms.          “Distribution Account” shall have the meaning given to such term in the CollateralAgency Agreement.          “Dollars” and “$” shall mean lawful money of the United States.          “Easement Properties” shall mean, with respect to the Project, all of the licenses forthe use or occupancy of real property, easements and rights of way which are necessary for theProject.          “Effective Date” means the date hereof.          “Eligible Assignee” shall mean (i) a commercial bank or other financial institutionhaving a combined capital and surplus of at least $25,000,000, or (ii) a Person that is primarilyengaged in the business of commercial banking and that is an Affiliate of a Lender.          “Environmental Claim” shall mean any notice, inquiry, request for information,investigation, claim, administrative, regulatory or judicial action, suit, judgment, demand orother communication, in each case, requesting injunctive or equitable relief, or alleging orasserting a liability or obligation arising under any Environmental Law, including any liability orobligations for investigatory costs, corrective, rehabilitation, reclamation or restoration costs,cleanup costs, governmental response costs, contribution, cost recovery, damages to naturalresources or other Property, personal injuries, fines, penalties or restrictions pursuant to anEnvironmental Law arising out of or based on (a) the presence, Use, exposure to, or Release orthreatened Release of any Hazardous Material at any location or (b) any violation or allegedviolation of any Environmental Law.          “Environmental Laws” shall mean the Equator Principles and any and all GovernmentRules relating to pollution or the protection of the environment, human health or safety or naturalresources, each as amended and whenever in effect, including any and all Government Rulesregulating or imposing liability or standards of conduct with respect to (a) emissions, discharges,Releases or threatened Releases of pollutants, contaminants, chemicals or industrial, toxic orhazardous substances or wastes, (b) the Use of pollutants, contaminants, chemicals or industrial,toxic or hazardous substances or wastes, (c) human exposure to chemicals, contaminants, additivesor hazardous materials or conditions or (d) occupational safety and health requirements, includingany standards or requirements of the Occupational Safety and Health Administration.
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          “Environmental Party” shall mean: (a) the Borrower, (b) any Affiliate of the Borrower,(c) any Material Project Party or any Person indemnified by a Material Project Party (other thanthe Administrative Agent or any Lender) and (d) any officer, director, employee or agent of any ofthe foregoing.          “Environmental Site Assessment” shall mean a (i) Phase I environmental site assessmentreport prepared by an environmental consulting firm acceptable to the Administrative Agent and theLenders, which report shall comply with ASTM Standard E 1527-05 and the U.S. EPA All AppropriateInquiry Rule 2005-11-01 (40 CFR Part 312), (ii) a Phase II environmental site assessment acceptableto the Administrative Agent and the Lenders, addressing any recognized environmental conditions orother areas of concern identified in the relevant Phase I report if in the reasonable determinationof the Administrative Agent, acting in consultation with the Independent Engineer, a Phase IIassessment is warranted.          “Equator Principles” shall mean the set of guidelines developed by a group of banks inconjunction with the International Finance Corporation (IFC), the private sector lending arm of theWorld Bank Group, for assessing and managing environmental and social issues related toprivate-sector project financings, as amended or in effect prior to, on or after the Closing Date.          “Equity” shall mean, as of any date of determination, the sum of, without duplication,(i) the shareholders’ Equity Interests in the Borrower, determined in accordance with GAAP, (ii)Subordinated Indebtedness advanced to the Borrower by the Project Sponsor and not repaid, (iii) thereasonable fair value of land and other property contributed to the Borrower and (iv) thereasonable fair value of development and other services rendered to the Borrower by Affiliates ofthe Borrower; provided, however, that with regard to any amounts contributedpursuant to clause (iii) or (iv) above, such amounts shall be considered “Equity” only to theextent approved by the Administrative Agent and set forth in the Base Case Forecasts.          “Equity Contribution Amount” shall mean an amount of Equity that the Project Sponsorshall be require to contribute to the Borrower and shall be not less than $23,708,548.          “Equity Interests” shall mean shares of capital stock, partnership interests,membership interests in a limited liability company, beneficial interests in a trust or otherequity ownership interests in a Person, and any warrants, options or other rights entitling theholder thereof to purchase or acquire any such equity interest.          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amendedfrom time to time.          “ERISA Affiliate” shall mean any corporation or trade or business which is a member ofany group of organizations: (a) described in Section 414(b) or (c) of the Code of which theBorrower is a member and (b) solely for purposes of potential liability under Section 302(c)(11) ofERISA and Section 412(c)(11) of the Code and the lien created under Section 302(f) of ERISA andSection 412(n) of the Code, described in Section 414(m) or (o) of the Code of which the Borrower isa member.
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          “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 ofERISA or the regulations issued thereunder with respect to a Plan (other than an event for whichthe thirty (30) day notice period is waived), (b) the existence with respect to any Plan of an“accumulated funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA),whether or not waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303 ofERISA of an application for a waiver of the minimum funding standard with respect to any Plan, (d)the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV ofERISA with respect to the termination of any Plan, (e) the receipt by the Borrower or any ERISAAffiliate from the PBGC or a plan administrator of any notice relating to an intention to terminateany Plan or Plans or to appoint a trustee to administer any Plan, (f) the incurrence by theBorrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partialwithdrawal from any Plan or Multiemployer Plan, (g) the receipt by the Borrower or any ERISAAffiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISAAffiliate of any notice, concerning the imposition of Withdrawal Liability or a determination thata Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaningof Title IV of ERISA or (h) the occurrence of one event that could result in the Termination of aPlan by the PBGC.          “Eurodollar Loans” shall mean Loans which bear interest at the Adjusted LIBO Rateplus the Applicable Margin.          “Event of Abandonment” shall mean a formal, public announcement by any Credit Party ofa decision to abandon or indefinitely defer, or the abandonment of, the construction, completion oroperation of any material portion of the Project for any reason; provided, however,that delays in construction, completion or operation of the Project solely caused by the failure ofany Government Authority to provide in a timely manner a Government Approval that was properly andtimely applied for in a timely manner shall not constitute an “Event of Abandonment”.          “Event of Default” shall have the meaning assigned to that term in Section9.01.          “Event of Loss” shall mean any loss of, destruction of or damage to, or anycondemnation or other taking of (including an Event of Taking), any Property of the Borrower.          “Event of Taking” shall mean any taking, seizure, confiscation, requisition, exerciseof rights of eminent domain, public improvement, inverse condemnation, condemnation or similaraction or threat of any such action of or proceeding by any Government Authority or other Personrelating to all or any part of the Project.          “Event of Total Loss” shall mean the occurrence of an Event of Loss affecting all orsubstantially all of the Project or the Property of the Borrower.          “Excluded Taxes” shall mean, with respect to the Administrative Agent, or any Holder,(a) all Taxes (including net income Taxes or franchise Taxes) as are imposed on (or measured by)its net income (or franchise Taxes imposed in lieu of net income Taxes) as a result of a present orformer connection between it and the Government Authority imposing such Tax (other than anyconnection arising solely by reason of such Person engaging in the transactions
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contemplated by this Agreement), (b) any branch profits Taxes imposed by the United States orany similar Tax imposed by any other jurisdiction in which the Borrower is located, or (c) anyTaxes with respect to which the Borrower is not required to pay additional amounts or indemnify aHolder or the Administrative Agent pursuant to Section 5.04(h).          “Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, ifnecessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnightfederal funds transactions with members of the Federal Reserve System arranged by federal fundsbrokers on such day, as published by the Federal Reserve Bank of New York on the Business Day nextsucceeding such day; provided, that (a) if the day for which such rate is to be determinedis not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactionson the next preceding Business Day as so published on the next succeeding Business Day and (b) ifsuch rate is not so published for any day, the Federal Funds Rate for such day shall be the averageof the quotations for such day on such transactions received by the Administrative Agent from threefederal funds brokers of recognized standing selected by it.          “Feedstock” shall mean any commodity, product or substance that can be utilized asfeedstock in the production of Biodiesel or methanol or in a biofuel blending operation.          “Feedstock Supplier” shall mean each Person party to a Feedstock Supply Agreement withthe Borrower (other than the Borrower).          “Feedstock Supply Agreement” shall mean each agreement for the supply of raw materialsto the Project to produce Biodiesel, Methanol and Glycerin between the Borrower and a FeedstockSupplier, as each such agreement may from time to time be amended, supplemented or replacedpursuant to this Agreement.          “Fee Funding” shall mean the extension of credit under the Term Loan Commitments inconnection with the payment of all fees and expenses due and payable and all reasonable costs andexpenses, including pursuant to Sections 2.05 and 11.03 and the Fee Letters, ineach case required to be paid on or before the Closing Date.          “Fee Funding Date” shall mean the date on which the Fee Funding occurs.          “Fee Letters” shall mean, collectively, the Administrative Agent Fee Letter, theCollateral Agency Fee Letter and the WestLB Fee Letter.          “Final Completion” shall mean the following conditions have been satisfied, in eachcase in form and substance satisfactory to the Majority Lenders (unless, in each case, waived bythe Majority Lenders):          (a) The Project shall have achieved final completion, all construction activities contemplatedto have been completed in the Construction Budget and Schedule through final completion shall havebeen completed,          (b) all Performance Tests have been completed and have demonstrated that the Project meets thePerformance Criteria to the satisfaction of the Independent Engineer in accordance with Section8.27,
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          (c) (i) the Borrower shall have delivered to the Administrative Agent and the IndependentEngineer the Final Completion Certificate in respect of the Project and (ii) the IndependentEngineer shall have delivered to the Administrative Agent the Independent Engineer’s FinalCompletion Certificate,          (d) the Borrower shall have delivered to the Administrative Agent and the Independent Engineer(i) the final lien waivers from each Construction Contractor and (ii) evidence that eachConstruction Contractor and/or the Borrower has received final lien waivers from all of theirSubcontractors, which lien waivers shall be reasonably satisfactory to the Administrative Agent andshall cover all labor, materials (including equipment and fixtures of all kinds), supplies orservices done, performed or furnished at, for or to the Project,          (e) all expenses necessary for the completion of construction in accordance with theConstruction Budget and Schedule shall have been paid, except those amounts which are in dispute asof such date or are not yet due and payable,          (f) certificates of insurance with respect to the insurance policies required by Section8.05 in respect of the Project, together with evidence of the payment up to date of allpremiums therefor, shall have been delivered or confirmation that the Borrower is not in arrears onany premiums due,          (g) the Borrower shall have delivered to the Administrative Agent, and the AdministrativeAgent shall have approved the Commodity Hedging Plan pursuant to Section 8.15,          (h) all Government Approvals then required for the Development shall have been validly issued,duly obtained and are in full force and effect, and held in the name of the Borrower or such thirdparty as is specified with respect to such Government Approval on Schedule 7.05(a) orSchedule 7.05(b) (provided, that having such Government Approval held by or in thename of such third party could not reasonably be expected to have a Material Adverse Effect) andare free from conditions or requirements compliance with which could reasonably be expected to havea Material Adverse Effect or which the Borrower or third party, as the case may be, has notsatisfied, except to the extent that a failure to so satisfy such condition or requirement couldnot reasonably be expected to have a Material Adverse Effect, and          (i) the Borrower and the Project shall be and have been in compliance in all material respectswith all Government Approvals and all Government Rules, in each case applicable to the Borrower andthe Project, (ii) the Borrower has not received written notice from (or on behalf of) theGovernment Authority having jurisdiction that any of the foregoing is subject to appeal,modification or revocation except if such appeal, modification or revocation could not reasonablybe expected to cause a Material Adverse Effect and (iii) to the Borrower’s Knowledge, the MaterialProject Parties have been operating and continue to operate in material compliance with allGovernment Approvals and all Government Rules, in each case applicable or related to the Project.          “Final Completion Certificate” shall mean the Final Completion Certificate and relatedattachments and certifications, substantially in the form of Exhibit C-1 hereto, executed
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by an Authorized Officer of the Borrower and otherwise duly completed in respect of FinalCompletion.          “Final Completion Date” shall mean the date on which Final Completion occurs.          “Final Maturity Date” shall mean the earlier to occur of (a) the sixth(6th) anniversary of the Conversion Date and (b) the date falling seven years after theClosing Date; provided, that if such date is not a Business Day, the Final Maturity Dateshall be the next preceding Business Day.          “Final Term Loan Borrowing” shall mean the final Term Loan made prior to theexpiration of the Term Loan Commitment Period.          “Financing Documents” shall mean this Agreement, each of the Notes, the Fee Letters,each of the Security Documents, each of the Permitted Swap Agreements (to the extent the PermittedSwap Provider is a Lender), each of the Commodity Hedging Agreements (to the extent the CommodityHedging Provider is a Lender), and each Guarantee and credit support instrument, if any, providedin connection with any of the foregoing.          “First Project Funding” shall mean the first extension of credit under the Term LoanCommitments to pay for Project Costs for the Development after the Fee Funding.          “First Project Funding Date” shall mean the date of the First Project Funding, whichshall occur after the Administrative Agent has notified the Borrower that all of the conditions setforth in Section 6.02 are satisfied (or waived by each Lender).          “Foreign Lender” shall mean any Lender that is organized under the laws of ajurisdiction other than that in which the Borrower is located. For purposes of this definition,the United States, each State thereof and the District of Columbia shall be deemed to constitute asingle jurisdiction.          “GAAP” shall mean generally accepted accounting principles in the United Statesapplied on a basis consistent with those principles set forth in Section 1.02(a).          “Generator Lease” shall mean the Pad-Site Lease to be entered into by and between theBorrower (as Lessor) and GreenHunter Energy, Inc. (as Generator Lessee).          “Generator Lessee” shall mean GreenHunter Energy, Inc.          “Glycerin” shall mean the glycerin produced by the Project through processing ofFeedstock.          “Glycerin Purchaser” shall mean a purchaser of Glycerin pursuant to a Glycerin SalesAgreement, and each of its permitted successors and assigns.          “Glycerin Sales Agreement” shall mean an agreement for the purchase and sale ofGlycerin produced by the Project between the Borrower and a Glycerin Purchaser, as each such
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agreement may from time to time be amended, supplemented or replaced pursuant to thisAgreement.          “Government Approval” shall mean (a) any authorization, consent, approval, license,lease, ruling, permit, certification, waiver, exemption, filing, variance, claim, order, judgmentor decree of, by or with, (b) any required notice to, (c) any declaration of or with or (d) anyregistration by or with, any Government Authority, in each case relating to the Project to theextent (i) not routine, (ii) not ministerial in nature or (iii) not otherwise immaterial to theProject or the Borrower’s compliance with any Government Rule or obtaining or maintaining anyGovernment Approval.          “Government Authority” shall mean any United States federal, state, municipal, local,territorial, or other governmental department, commission, board, bureau, agency, regulatoryauthority, instrumentality, judicial or administrative body.          “Government Rule” shall mean any statute, law, regulation, ordinance, rule, treaty,judgment, order, decree, permit, concession, grant, franchise, license, agreement, directive,requirement of, or other governmental restriction or any similar binding form of decision of ordetermination by, or any binding interpretation or administration of any of the foregoing by, anyGovernment Authority, including all common law, whether now or hereafter in effect.          “Guarantee” shall mean a guarantee, an endorsement, a contingent agreement to purchaseor to furnish funds for the payment or maintenance of, or otherwise to be or become contingentlyliable under or with respect to, the Indebtedness, other obligations, net worth, working capital orearnings of any Person, or a guarantee of the payment of dividends or other distributions upon thestock or equity interests of any Person, or an agreement to purchase, sell or lease (as lessee orlessor) Property of any Person, products, materials, supplies or services primarily for the purposeof enabling a debtor to make payment of his, her or its obligations or an agreement to assure acreditor against loss, and including causing a bank or other financial institution to issue aletter of credit or other similar instrument for the benefit of another Person, but excluding (a)endorsements for collection or deposit in the ordinary course of business and (b) indemnity or holdharmless provisions included in contracts with non-Affiliates entered into in the ordinary courseof business. The terms “Guarantee” and “Guaranteed” used as verbs shall havecorrelative meanings.          “Hazardous Material” shall mean: (a) any petroleum or petroleum products, flammablematerials, explosives, radioactive materials, asbestos, urea formaldehyde foam insulation,polychlorinated biphenyls (PCBs) and, to the extent regulated by Environmental Laws, noise andodors, (b) any chemicals, other materials, substances or wastes which are now or hereafter becomedefined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardousmaterials”, “extremely hazardous wastes”, “restricted hazardous wastes”, “toxic substances”, “toxicpollutants”, “contaminants”, “pollutants” or words of similar import under any Environmental Lawand (c) any other chemical, material, substance or waste which is now or hereafter regulated underor with respect to which liability or standards of conduct are imposed under any Environmental Law.
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          “Holder” shall mean a Person in whose name a Loan is registered in the Register.          “Impairment” shall mean, with respect to any Material Project Document or GovernmentApproval, (a) the rescission, early termination, cancellation, repeal or invalidity thereof, (b)the suspension or injunction thereof, (c) the inability to satisfy in a timely manner statedconditions to effectiveness thereof or (d) the amendment, modification or supplement (other than,in the case of a Material Project Document, any such amendment, modification or supplement effectedin accordance with Section 8.20 and, in the case of a Government Approval, any suchamendment, modification or supplement effected in accordance with Section 8.03(b)) of suchMaterial Project Document or Government Approval in whole or in part. The verb “Impair” shall havea correlative meaning.          “Indebtedness” shall mean, for any Person, without duplication: (a) indebtednesscreated, issued or incurred by such Person for borrowed money (whether by loan or the issuance andsale of debt securities or the sale of Property of such Person to another Person subject to anunderstanding or agreement, contingent or otherwise, to repurchase such Property of such Personfrom such Person), (b) obligations of such Person to pay the deferred purchase or acquisition priceof Property of such Person or services, (c) obligations of such Person in respect of letters ofcredit or similar instruments issued or accepted by banks and other financial institutions foraccount of such Person, (d) obligations of such Person in respect of surety bonds or similarinstruments, (e) indebtedness of others described in clauses (a) through (d) abovesecured by a Lien on the Property of such Person, whether or not the respective indebtedness sosecured has been assumed by such Person, (f) Capital Lease Obligations of such Person and (g)indebtedness of others described in clauses (a) through (f) above Guaranteed bysuch Person.          “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.          “Indemnitee” shall have the meaning assigned to that term in Section 11.03.          “Independent Engineer” shall mean FBA Consulting or such other Person, so long as noDefault has occurred and is continuing, reasonably acceptable to the Borrower, as theAdministrative Agent may engage on behalf of the Lenders to act as Independent Engineer for thepurposes of this Agreement.          “Independent Engineer’s Certificate” shall mean the Independent Engineer’s Certificateand related attachments and certifications, substantially in the form of Exhibit C-3hereto, executed by an Authorized Officer of the Borrower and otherwise duly completed, ascontemplated by Section 6.03(e).          “Independent Engineer’s Final Completion Certificate” shall mean a certificate andrelated attachments and certifications, substantially in the form of Exhibit C-2 hereto,executed by an Authorized Officer of the Independent Engineer and otherwise duly completed inrespect of Final Completion.          “Independent Environmental Consultant” shall mean FBA Consulting or such otherPerson(s), so long as no Default has occurred and is continuing, reasonably acceptable to theBorrower, as the Administrative Agent may engage on behalf of the Lenders to act as IndependentEnvironmental Consultant for the purposes of this Agreement.
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          “Independent Insurance Consultant” shall mean Moore-McNeil, LLC or such other Person,so long as no Default has occurred and is continuing, reasonably acceptable to the Borrower, as theAdministrative Agent may engage on behalf of the Lenders to act as Independent Insurance Consultantfor the purposes of this Agreement.          “Independent Market Consultant(s)” shall mean Muse Stancil or such other Person(s), solong as no Default has occurred and is continuing, reasonably acceptable to the Borrower, as theAdministrative Agent may engage on behalf of the Lenders to act as Independent Market Consultantfor the purposes of this Agreement.          “Interest Expense” shall mean, for any period, the sum, computed without duplication,of the following: (a) all interest in respect of Permitted Indebtedness accrued or capitalizedduring such period (whether or not actually paid during such period) plus (b) the netamounts payable (or minus the net amounts receivable) under Permitted Swap Agreements(excluding the net amounts of any termination payments under Permitted Swap Agreements) accruedduring such period (whether or not actually paid or received during such period).          “Interest Payment Date” shall mean the date accrued interest on each Loan shall be dueand payable, as follows: (i) in the case of a Base Rate Loan, quarterly on the Quarterly Dates and(ii) in the case of a Eurodollar Loan, on the last day of each Interest Period therefor;provided, that, if such Interest Period is longer than three months, at the three-monthinterval following the first day of such Interest Period, in each case, as such date may bemodified or supplemented in accordance with this Agreement.          “Interest Period” shall mean, with respect to any Eurodollar Loan, each periodcommencing on the date such Eurodollar Loan is made or Converted from a Loan of another Type or thelast day of the next preceding Interest Period for such Loan and ending on the numericallycorresponding day in the first, second or third calendar month thereafter (or such other period asthe Borrower and the Administrative Agent may agree from time to time), as the Borrower may selectas provided in Section 4.05(a), except that each Interest Period that commences on the lastBusiness Day of a calendar month (or on any day for which there is no numerically corresponding dayin the appropriate subsequent calendar month) shall end on the last Business Day of the appropriatesubsequent calendar month.          Notwithstanding the foregoing paragraph: (a) no Interest Period may end after the FinalMaturity Date, (b) no Interest Period may commence before and end after any Principal Payment Dateunless, after giving effect to such Loan, the aggregate principal amount of the Loans havingInterest Periods that end after such Principal Payment Date shall be equal to or less than theaggregate principal amount of the Loans scheduled to be outstanding after giving effect to thepayments of principal required to be made on such Principal Payment Date, (c) each Interest Periodwhich would otherwise end on a day which is not a Business Day shall end on the next succeedingBusiness Day (or, if such next succeeding Business Day falls in the next succeeding calendar month,on the next preceding Business Day) and (d) notwithstanding clause (a) or (b)above, no Interest Period shall have a duration of less than one month and, if the Interest Periodwould otherwise be a shorter period, such Eurodollar Loan shall not be available under thisAgreement.
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          “Interest Rate Protection Agreement” shall mean, for any Person, any interest rateswap, cap or collar agreement or similar arrangement between such Person and one or more financialinstitutions providing for the transfer or mitigation of interest rate risks either generally orunder specific contingencies.          “Investment” shall mean, for any Person: (a) the acquisition (whether for cash,Property of such Person, services or securities or otherwise) of capital stock, bonds, notes,debentures, partnership or other ownership interests or other securities of any other Person or anyagreement to make any such acquisition (including any “short sale” or any other sale of anysecurities at a time when such securities are not owned by the Person entering into such sale), (b)the making of any deposit with, or advance, loan or other extension of credit to, any other Person(including the purchase of Property from another Person subject to an understanding or agreement,contingent or otherwise, to resell such Property to such Person, but excluding any such advance,loan or extension of credit having a term not exceeding ninety (90) days representing the purchaseprice of inventory or supplies sold in the ordinary course of business), (c) the entering into ofany Guarantee of, or other contingent obligation with respect to, Indebtedness or other liabilityof any other Person, (d) the entering into of any Interest Rate Protection Agreement and (e) theentering into of any Commodity Hedging Agreement.          “IRS” shall mean the United States Internal Revenue Service.          “LC Disbursement” shall mean a payment made by the LC Issuing Bank pursuant to aLetter of Credit.          “LC Exposure” shall mean, at any time, the sum of (a) the aggregate undrawn amount ofall outstanding Letters of Credit at such time plus (b) the aggregate amount of all LCDisbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. TheLC Exposure of any Working Capital Lender at any time shall be its Applicable Percentage of thetotal LC Exposure at such time.          “LC Issuing Bank” shall mean WestLB AG, New York Branch as described in the recitalsto this Agreement, in its capacity as the issuer of Letters of Credit hereunder, and its successorsin such capacity as provided in Section 2.03(i). The LC Issuing Bank may, in itsdiscretion, arrange for one or more Letters of Credit to be issued by Affiliates of the LC IssuingBank, in which case the term “LC Issuing Bank” shall include any such Affiliate with respect toLetters of Credit issued by such Affiliate.          “Lead Arranger” shall mean WestLB.          “Lender” shall mean any Lender with an outstanding Loan Commitment or Loan, or both.          “LIBO Rate” shall mean, with respect to any Eurodollar Loan for any Interest Period,the rate appearing on Reuters Page LIBO01 (or on any successor or substitute page or serviceproviding rate quotations comparable to those currently provided on such page, as determined by theAdministrative Agent from time to time for purposes of providing quotations
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of interest rates applicable to Dollar deposits in the London interbank market) atapproximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of suchInterest Period, as the rate for Dollar deposits with a maturity comparable to such InterestPeriod. In the event that such rate is not available at such time for any reason, then the “LIBORate” with respect to such Eurodollar Loan for such Interest Period shall be the rate at whichDollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered bythe principal London office of the Administrative Agent in the London interbank market atapproximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of suchInterest Period.          “Lien” shall mean, with respect to any Property of any Person, any mortgage, deed oftrust, lien, pledge, charge, lease, easement, servitude, security interest or encumbrance of anykind in respect of such Property of such Person. For purposes of this Agreement and the otherFinancing Documents, a Person shall be deemed to own subject to a Lien any Property which it hasacquired or holds subject to the interest of a vendor or lessor under any conditional saleagreement, capital lease or other title retention agreement (other than an operating lease)relating to such Property.          “Loan” shall mean any Term Loan or Working Capital Loan.          “Loan Borrowing Certificate” shall mean a “Term Loan Borrowing Certificate” andrelated attachments and certifications, substantially in the form of Exhibit B-1(a) to thisAgreement or a “Working Capital Loan Borrowing Certificate” and related attachments andcertifications, substantially in the form of Exhibit B-1(b) to this Agreement, asapplicable, in each case executed by an Authorized Officer of the Borrower requesting a Borrowingof Loans as set forth under this Agreement and otherwise duly completed.          “Loan Commitment Period” shall mean the Term Loan Commitment Period and/or the WorkingCapital Commitment Period, as the context requires.          “Loan Commitments” shall mean, as to any Lender at any time, the Term Loan Commitmentand/or the Working Capital Commitment of such Lender at such time. The aggregate amount of theLoan Commitments is $43,500,000, as set forth in the definitions of “Term Loan Commitment” and“Working Capital Commitment”.          “Loss Proceeds” shall mean insurance proceeds, condemnation awards or othercompensation, awards, damages and other payments or relief (exclusive, in each case, of theproceeds of liability insurance and business interruption insurance and other payments forinterruption of operations) with respect to any Event of Loss.          “Loss Proceeds Account” shall have the meaning given such term in the CollateralAgency Agreement.          “Losses” shall have the meaning given to such term in Section 11.03.          “Majority Lenders” shall mean, subject to the last paragraph of Section 11.04,Lenders holding over fifty percent (50%) of the aggregate outstanding Loans and Loan Commitments(if any). Where such term refers only to Term Loans or Term Loan Commitments
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or Working Capital Loans or Working Capital Commitments, “Majority Lenders” shallrefer to Lenders holding over fifty percent (50%) of the aggregate outstanding Term Loans or TermLoan Commitments or Working Capital Loans or Working Capital Commitments, as applicable, held bysuch subset of Lenders.          “Management Services Agreement” shall mean the Management Services Agreement, dated asof a date prior to the Closing Date, between the Borrower and the Operator, in form and substanceacceptable to the Administrative Agent.          “Margin Stock” shall mean margin stock within the meaning of Regulation U andRegulation X.          “Material Adverse Effect” shall mean a material adverse effect on one or more of thefollowing: (a) the business, assets, operations or financial condition of the Borrower or theProject, (b) the ability of any Credit Party to perform its material obligations under anyTransaction Document to which it is a party in accordance with the terms thereof, (c) the validityor enforceability of the material obligations of any Credit Party or the material rights of theAdministrative Agent or Lenders under this Agreement or under any other Transaction Document or (d)the value of the Collateral or the validity, enforceability or priority of the security interestsgranted to the Collateral Agent pursuant to the Security Documents.          “Material Affiliated Project Party” shall mean each Material Project Party that is anAffiliate of the Borrower.          “Material Biodiesel Sales Agreement” shall mean any Biodiesel Sales Agreement underwhich sales of Biodiesel to the Biodiesel Purchaser thereunder and its Affiliates exceed ten(10)MGY or which would exceed such amount in the aggregate when taken together with the other BiodieselSales Agreements then outstanding among the Borrower and such Biodiesel Purchaser and itsAffiliates.          “Material Feedstock Supply Agreement” shall mean any Feedstock Supply Agreement underwhich sales of Feedstock by the Feedstock Supplier thereunder and its Affiliates exceed ten (10)MGY or which would exceed such amount in the aggregate when taken together with the other FeedstockSupply Agreements then outstanding among the Borrower and such Feedstock Supplier and itsAffiliates.          “Material Glycerin Sales Agreement” shall mean any Glycerin Sales Agreement underwhich sales of Glycerin to the Glycerin Purchaser thereunder and its Affiliates exceed one (1) MGYor which would exceed such amount in the aggregate when taken together with the other GlycerinSales Agreements then outstanding among the Borrower and such Glycerin Purchaser and itsAffiliates.          “Material Methanol Sales Agreement” shall mean any Methanol Sales Agreement underwhich sales of Methanol to the Methanol Purchaser thereunder and its Affiliates exceed two (2) MGYor which would exceed such amount in the aggregate when taken together with the other MethanolSales Agreements then outstanding among the Borrower and such Methanol Purchaser and itsAffiliates.
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          “Material Project Documents” shall mean: (a) any Construction Contract, (b) eachMaterial Biodiesel Sales Agreement, (c) each Material Feedstock Supply Agreement, (d) each MaterialMethanol Sales Agreement, (e) each Material Glycerin Sales Agreement; (f) each technology licenseagreement, (g) each natural gas supply and/or transportation agreement (other than agreements forwhich such service is required to be provided at specified tariff rates determined by GovernmentRule), (h) each electricity supply agreement (other than agreements for which such service isrequired to be provided at specified tariff rates determined by Government Rule), (i) each watersupply agreement (other than agreements for which such service is required to be provided atspecified tariff rates determined by Government Rule), (j) the Management Services Agreement, (k)all Government Approvals, (l) each Commodity Hedging Agreement, (m) each Permitted Swap Agreement,(n) the Generator Lease and each lease agreement and other document representing a materialinterest in real property related to the Project,(o) each rail use or similar agreement, (p) eachrail car lease that provides for the lease of twenty (20) or more rail cars (or that would providefor the lease of twenty (20) or more rail cars in the aggregate when combined with each other railcar lease with the same lessor or its Affiliates) or similar agreement, (q) each Project Documentin full force and effect as of the Closing Date or as of the First Project Funding Date that is nota Non-Material Project Document, (r) each Additional Project Document, (s) each guarantee or creditsupport instrument provided in connection with any of the foregoing and (t) any replacement of anyof the foregoing agreements or instruments.          “Material Project Parties” shall mean the Operator, the Generator Lessee, the ProjectSponsor, each Construction Contractor, each Person party to a credit support instrument provided inconnection with any Material Project Document and each other Person (other than the Borrower) partyto a Material Project Document.          “Maximum Rate” shall have the meaning given to such term in Section 11.09.          “Mechanics’ Liens” shall mean carriers’, warehousemen’s, mechanics’, workmen’s,materialmen’s, construction or other like statutory Liens (other than Liens described inparagraphs (a) and (b) of Section 8.13).          “Methanol” shall mean the methyl alcohol produced by the Project.          “Methanol Purchaser” shall mean a purchaser of Methanol pursuant to a Methanol SalesAgreement, and each of its permitted successors and assigns.          “Methanol Sales Agreement” shall mean an agreement for the purchase and sale ofMethanol produced by the Project between the Borrower and a Methanol Purchaser, as each suchagreement may from time to time be amended, supplemented or replaced pursuant to this Agreement.          “MGY” shall have the meaning assigned to such term in the first recital to thisAgreement.          “Monthly Transfer Date” shall mean any day falling either (i) on the first(1st) day, seventh (7th), fourteenth (14th), or twenty-first(21st) day of each month, or, if such day is not a Business Day, the next succeedingBusiness Day or (ii) such other date as agreed by the
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Administrative Agent and the Borrower, provided that in each of (i) and (ii), the MonthlyTransfer Date shall not occur (A) more than four times per calendar month in respect of WorkingCapital Borrowings and (B) more than once per calendar month in respect of Term Loan Borrowings.          “Moody’s” shall mean Moody’s Investors Service, Inc.          “Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37)of ERISA to which contributions have been made by the Borrower or any ERISA Affiliate and which iscovered by Title IV of ERISA.          “Net Available Amount” shall mean (a) in the case of any Disposition, the amount ofNet Cash Payments received in connection with such Disposition and (b) in the case of any Event ofLoss, the aggregate amount of Loss Proceeds received by the Borrower in respect of an Event of Lossrelated to the Project net of reasonable expenses incurred by the Borrower in connection with thecollection of such Loss Proceeds.          “Net Cash Payments” shall mean, with respect to any Disposition, the aggregate amountof all cash payments, and the fair market value of any non-cash consideration, received by theBorrower directly or indirectly in connection with such Disposition; provided that (a) NetCash Payments shall be net of (i) the amount of any legal, accounting, title, transfer andrecording Tax expenses, commissions and other fees and expenses payable by the Borrower inconnection with such Disposition and (ii) any Federal, state and local income or other Taxesestimated to be payable to a Taxing Authority by the Borrower as a result of such Disposition (butonly to the extent that such estimated Taxes are in fact paid to the relevant Federal, state orlocal governmental authority within three months of the date of such Disposition) and (b) Net CashPayments shall be net of any repayments by the Borrower of Indebtedness permitted pursuant toSection 8.16(a)(iii) to the extent that (i) such Indebtedness is secured by a Lien on theproperty that is the subject of such Disposition and (ii) the transferee of (or holder of a Lienon) such property requires that such Indebtedness be repaid as a condition to the purchase of suchproperty.          “Non-Consenting Lender” shall have the meaning assigned to that term in Section11.06(h).          “Non-Material Project Documents” shall mean (a) contracts or agreements entered intoby the Borrower, or by an agent on behalf of the Borrower, in the ordinary course of its businessin connection with the Project under which the Borrower could not reasonably be expected to haveaggregate obligations or liabilities in excess of $250,000 under any such agreement (provided that,to the extent that a contract or agreement relates to the construction of the Project Facility, isexpected to have aggregate obligations or liabilities of less than $2,000,00, and does nototherwise fall within the definition of Material Project Document, such contract or agreement shallbe a Non-Material Project Document), (b) contracts or agreements that are used in connection withthe acquisition and/or disposition of Permitted Investments and (c) contracts or agreements enteredinto by the Borrower in the ordinary course of its business for legal, accounting, engineering,environmental consulting or other professional services in connection with the Project (other thanto the extent such are Material Project Documents or contracts or
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agreements in substitution of any Material Project Document) in accordance with theConstruction Budget and Schedule or the then current Operating and Capital Budget, as the case maybe.          “Nonrecourse Persons” shall have the meaning assigned to that term in Section11.10.          “Non-U.S. Holder” shall have the meaning given to such term in Section 5.04(e).          “Notes” shall have the meaning assigned to that term in Section 2.08(a).          “Notice of Borrowing” shall have the meaning given to such term in Section4.05(a).          “NPL” shall mean the National Priorities List established pursuant to theComprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.Section 9601 etseq.          “Operating and Capital Budget” shall mean a budget, prepared and certified by theBorrower, and approved in accordance with Section 8.21, of Operation and MaintenanceExpenses and Permitted Capital Expenditures expected to be incurred by the Borrower during therelevant fiscal year to which such budget applies.          “Operation and Maintenance Expenses” shall mean for any period the sum, payable duringsuch period, computed without duplication, of the following: (a) general and administrative expenses;  (b) payroll and other expenses for operating the Project andmaintaining the Project in good repair and operating condition (including anydeposits required to Project Parties and further including costs associatedwith the supply and transportation for all Feedstock and other supplies and rawmaterials to the Project and distribution and sale of Biodiesel, Glycerin,Methanol, and other products from the Project for which the Borrower isobligated to pay);  (c) insurance costs;  (d) applicable sales and excise Taxes (if any) payable orreimbursable by the Borrower;  (e) franchise Taxes payable by the Borrower;  (f) property Taxes payable by the Borrower;  (g) any other direct Taxes payable by the Borrower;
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 (h) costs and fees attendant to the obtaining and maintaining ineffect the Government Approvals;  (i) accounting and other professional fees attendant to any of theforegoing items payable;  (j) any fees and expenses of the Secured Parties not included inDebt Service;  (k) the reasonable costs of administration and enforcement of theTransaction Documents;  (l) all other costs and expenses included in the Operating andCapital Budget.Operation and Maintenance Expenses shall exclude, to the extent included during suchperiod: (i) payments into any of the Collateral Accounts, (ii) payments of any kindwith respect to Restricted Payment, (iii) depreciation, (iv) any Permitted CapitalExpenditures made that are properly chargeable to fixed capital accounts inaccordance with GAAP, (v) any payments of any kind with respect to any permittedRestoration and (vi) the payment of any margin calls or termination expenses withrespect to any Commodity Hedging Agreements. Notwithstanding the foregoing, for thepurpose of calculating the Debt Service Coverage Ratio, Operation and MaintenanceExpenses shall not include the actual cash expenditures for items (c), (e) and (f)above, but shall instead include the appropriate accrual for such items to theextent the same are reflected as accrual items in the Operating and Capital Budget.          “Operator” shall mean Greenhunter Energy, Inc.          “Other Taxes” shall mean any and all present or future stamp, execution, recording ordocumentary Taxes or any other excise or property Taxes, charges or similar levies arising from anypayment made by or on behalf of the Borrower under any Financing Document or from the execution,delivery, recording or enforcement of, payments by or on behalf of the Borrower under, or otherwisewith respect to, any Financing Document.          “Participant” shall have the meaning assigned to that term in Section11.06(c).          “Participant Register” shall have the meaning assigned to that term in Section11.06(c).          “Payor” shall have the meaning assigned to that term in Section 4.06.          “PBGC” shall mean the Pension Benefit Guaranty Corporation or any successor trustee.          “Performance Test Report” shall have the meaning assigned to that term in Section8.27.
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          “Performance Tests” shall mean the testing procedures, requirements, conditions andobligations described in Schedule 8.27.          “Performance Criteria” shall mean the performance criteria for the acceptableoperation of the Project, as described in Schedule 8.27.          “Permitted Capital Expenditures” shall mean (i) Capital Expenditures that arespecified for such purpose in the applicable Operating and Capital Budget and (ii) any otherCapital Expenditures made by the Borrower, provided, that in connection with the CapitalExpenditures described in this clause (ii), the Borrower shall not incur in any fiscal year morethan (A) $250,000 per occurrence and $500,000 in the aggregate (or such greater amount authorizedby the Administrative Agent upon consultation with the Independent Engineer) of CapitalExpenditures required to comply with applicable Government Rules, including Environmental Laws forthe Borrower’s property and (B) incur in any fiscal year more than $250,000 (or such greater amountauthorized by the Administrative Agent upon consultation with the Independent Engineer) in theaggregate of Capital Expenditures for any purpose not described in clause (A) above.Notwithstanding the provision in clause (A) above, the Borrower shall be allowed to incurCapital Expenditures that are required to comply with applicable Government Rules, includingEnvironmental Laws for the Borrower’s property, above the limits set forth in such clause(A) to the extent that such additional amounts are paid for by additional equity contributionsfrom the Project Sponsor.          “Permitted Exceptions” shall mean all Liens, burdens and title defects set forth onSchedule B of the Title Policy as item 9 or greater on such Schedule B to the Title Policy.          “Permitted Indebtedness” shall mean the Indebtedness permitted under Section8.16.          “Permitted Investments” shall mean the Investments permitted under Section8.14.          “Permitted Liens” shall mean the Liens permitted under Section 8.13.          “Permitted Swap Agreement” shall mean an Interest Rate Protection Agreement betweenthe Borrower and a Permitted Swap Provider.          “Permitted Swap Provider” shall mean any Person that is a Bookrunner, Lender, or anaffiliate of a Lender or otherwise acceptable to the Agent and that enters into a Permitted SwapAgreement in accordance with Section 8.15.          “Permitted Tax Distribution” shall mean, payments, dividends or distributions by theBorrower to GreenHunter Energy, Inc. in order to pay consolidated or combined U.S. federal, state,local, or foreign Taxes attributable to the income, receipts, or capital of the Borrower, but notpayable directly by the Borrower. The amount of Permitted Tax Distributions shall be, for anycalendar quarter, an amount equal to the U.S. federal, state and local net income Taxes actuallyimposed on GreenHunter Energy, Inc. (“Tax Parent”) by reason of it being required to include inits income on a current basis, without regard to any distributions, any operating incomeattributable to Borrower (the “Tax Parent’s Project Company Tax Liability”). Tax
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Parent’s Project Company Tax Liability for any period shall not exceed the lesser of (i) anamount equal to the U.S. federal, state and local net income Tax liability of Borrower for suchperiod computed as if Borrower was at no time a member of any consolidated, combined or unitary Taxgroup, other than any such group of which the Borrower is the sole member, and (ii) Borrower’sshare of any actual U.S. federal, state and local cash net income Tax liability payable by TaxParent (for the avoidance of doubt, such cash Tax liability determined after taking into accountany net operating losses, capital losses or credits available to Tax Parent or any consolidatedcombined or unitary Tax group of which Tax Parent is a part, whether or not claimed, withBorrower’s share of such cash net income Tax liability computed as if Borrower were treated anentity taxable as a C corporation and using the principles of Treasury Regulation Section1.1552-1(a)(1).          “Person” shall mean any individual, corporation, company, voluntary association,partnership, joint venture, trust, limited liability company, unincorporated organization orGovernment Authority.          “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan)subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) ofERISA.          “Post-Default Rate” shall mean, a rate per annum equal to two percent (2.00%) abovethe Base Rate as in effect from time to time plus the Applicable Margin, which shall applyfor so long as the relevant Event of Default has occurred and is continuing; provided, thatwith respect to any Eurodollar Loan, if the date of the occurrence of the relevant Event of Defaultis any day other than the last day of an Interest Period for such Loan, the “Post-Default Rate” forthe principal amount of such Loan shall be two percent (2.00%) above the interest rate for suchEurodollar Loan as provided in Section 3.02 for the period from and including the date ofoccurrence of the relevant Event of Default to but excluding the date that is the earlier of (a)the date that is the last day of the Interest Period and (b) if pursuant to Article IX suchLoan is accelerated, the date of such acceleration, and thereafter, the rate provided for above inthis definition.          “Prepayment Holding Account” shall have the meaning given to such term in theCollateral Agency Agreement.          “Prime Rate” shall mean the rate of interest from time to time publicly announced bythe Administrative Agent as its prime rate in effect at its principal office in New York City; eachchange in the Prime Rate shall be effective from and including the date such change is publiclyannounced.          “Principal Payment Dates” shall mean: (a) the earlier to occur of the first QuarterlyDate after (i) the Conversion Date and (ii) the first anniversary of the Closing Date, (b) eachQuarterly Date occurring after the date in clause (a), and (c) the Final Maturity Date.          “Project” shall have the meaning given such term in the recitals.
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          “Project Costs” shall mean all costs incurred by the Borrower to achieve theConversion Date with respect to the Development, as the case may be, in the manner contemplated by(and consistent with) the Transaction Documents and the budget described in clause (a) ofthe definition of “Construction Budget and Schedule”, or otherwise approved by the MajorityLenders, in consultation with the Independent Engineer, which costs include:          (i) costs incurred by the Project Sponsor for the acquisition of the stock of the Borrower(f/k/a Channel Refining Corporation) and the methanol tower located on the Project Facility Site;          (ii) costs incurred by the Borrower directly related to the site preparation, design,engineering, construction, installation, refurbishment, conversion, modification, start-up, andtesting of the Project Facility;          (iii) fees and expenses incurred by or on behalf of the Borrower in respect of theDevelopment, including financial, accounting, legal, surveying and consulting fees, and the costsof preliminary engineering and geotechnical studies required for site preparation;          (iv) Interest Expense, fees and expenses under the Financing Documents incurred until theConversion Date;          (v) insurance required for the Development as set forth in Section 8.05; and          (vi) costs of Feedstock, natural gas and other input products utilized for commissioning,conducting the Performance Tests for, and operation of the Project Facility prior to the ConversionDate.          “Project Documents” shall mean each Material Project Document, Non-Material ProjectDocument and Additional Project Document.          “Project Facility Site” shall mean each parcel of real property owned in fee by theBorrower described on Schedule I of the Deed of Trust and all Appurtenant Rights attached thereto,which shall include the Easement Properties.          “Project Party” shall mean each Person from time to time party to a Project Document.          “Project Revenues” shall mean, for any period, all cash revenues received by theBorrower during such period from: (a) the sales of Biodiesel, Glycerin and Methanol during suchperiod, (b) all interest earned with respect to such period on Permitted Investments held in theAccounts, (c) the proceeds of any business interruption insurance and other payments received forinterruption of operations during such period and (d) all other income or revenue, however earnedor received, by the Borrower during such period, including any Government Authority incentivesreceived pursuant to BBETC or otherwise, whether as Tax credits, Tax deductions or otherwise.Project Revenues shall exclude, to the extent included, (i) net amounts receivable under PermittedSwap Agreements and Commodity Hedging Agreements earned in respect of the Project and (ii) the NetAvailable Amount in respect of an Event of Loss at the Project Facility.
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          “Project Sponsor” shall mean, as of the Closing Date, GreenHunter Energy, Inc, aDelaware corporation, and at any time thereafter, any new shareholders of the Borrower, followingwritten approval from the Supermajority Lenders.          “Projected Cash Flow Available for Debt Service” shall mean for any applicable period,(a) the Projected Project Revenues for such period less (b) (i) all amounts required to bedeposited to the Debt Service Reserve Account during such period, in order to ensure that the cashbalance maintained in the Debt Service Reserve Account is not less than the Required Debt ServiceReserve Amount and (ii) projected Operation and Maintenance Expenses for such period (based onprojections reasonably acceptable to the Administrative Agent).          “Projected Debt Service Coverage Ratio” shall mean, as of any date of determination,the ratio of (a) Projected Cash Flow Available for Debt Service, to (b) scheduled Debt Service, ineach case for the twelve (12) month period beginning on or after such date of such determination.          “Projected Final Completion Date” shall mean October 31, 2008.          “Projected Project Revenues” shall mean, for any applicable period, estimated grossrevenues from the Project, calculated for such period. and based on projections acceptable to theAdministrative Agent, acting reasonably.          “Property” shall mean any right or interest in or to property of any kind whatsoever,whether real, personal or mixed and whether tangible or intangible.          “Quarterly Dates” shall mean the last Business Day of March, June, September andDecember in each year, the first of which shall be the first such day after the date of thisAgreement.          “Register” shall have the meaning assigned to that term in Section 2.08(d).          “Regulation A, Regulation D, Regulation U and Regulation X”shall mean, respectively, Regulation A, Regulation D, Regulation U and Regulation X of the Board.          “Release” shall mean any release, spill, emission, leaking, pumping, injection,deposit, disposal, discharge, dispersal, leaching or migration of any Hazardous Material into theenvironment, including the movement of such Hazardous Material through ambient air, soil, surfacewater, ground water, wetlands, land or subsurface strata.          “Required Debt Service Reserve Amount” shall mean, as of any date, an amountreasonably projected by the Administrative Agent (such amount and supporting calculations advisedby the Administrative Agent to the Borrower at least five (5) Business Days prior to such date)equal to the amount necessary to pay the forecasted Debt Service in respect of Term Loans through(and including) the next six (6) month period (assuming that no Default will occur during suchperiod and taking into account, with respect to interest, the maximum amount of interest that couldaccrue during any six month period from the date of calculation to the Final Maturity Date).
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          “Required Payment” shall have the meaning assigned to that term in Section4.06.          “Restore” shall mean, with respect to any Affected Property, to rebuild, repair,restore or replace such Affected Property. The term “Restoration” shall have a correlativemeaning.          “Restricted Payment” shall mean (a) all distributions by the Borrower (in cash,Property of the Borrower or obligations) on, or other payments or distributions on account of, orthe setting apart of money for a sinking or other analogous fund for, or the purchase, redemption,retirement or other acquisition by the Borrower of, any portion of any interest in the Borrower and(b) all payments (in cash, Property of the Borrower or obligations) of principal of, interest onand other amounts with respect to, or other payments on account of, or the setting apart of moneyfor a sinking or other analogous fund for, or the purchase, redemption, retirement or otheracquisition by the Borrower of, any Subordinated Indebtedness.          “Restricted Payment Date” shall have the meaning assigned to that term in Section8.12.          “Revenue Account” shall have the meaning given such term in the Collateral AgencyAgreement.          “S&P” shall mean Standard & Poor’s Ratings Group, a division of McGraw-Hill, Inc.          “Secured Obligations” shall mean, as at any date, the sum, computed withoutduplication, of the following: (a) the aggregate outstanding principal amount of the Loansplus all accrued but unpaid interest on such amount plus (b) all other amounts fromtime to time payable under the Financing Documents (including the Permitted Swap Agreements, withrespect to each Permitted Swap Provider that is a Lender, and Commodity Hedging Agreements, withrespect to each Commodity Hedging Provider that is a Lender) plus accrued interest on such amountsplus (c) any and all obligations of the Borrower to the Administrative Agent, theCollateral Agent or any other Secured Party for the performance of its agreements, covenants orundertakings under or in respect of any Financing Document.          “Secured Parties” shall mean the Administrative Agent, the Collateral Agent, eachLender, and, to the extent such party is a Lender, each Permitted Swap Provider and CommodityHedging Provider.          “Security Agreement” shall mean the (a) pledge and security agreement between theBorrower and the Collateral Agent, substantially in the form of Exhibit D and (b) eachother security agreement substantially in the form of Exhibit D.          “Security Documents” shall mean each Consent and Agreement, the Security Agreement,the Collateral Agency Agreement, the Deed of Trust, any such other security agreement, controlagreement, patent and trademark assignment, lease assignment and other similar agreement securingthe Secured Obligations between any Person and the Collateral Agent on behalf of the SecuredParties (including any agreement related to any Stock Pledge required
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pursuant to Section 8.10(b)), and all financing statements, agreements or otherinstruments to be filed in respect of the Liens created under each such agreement.          “Statutory Reserve Rate” shall mean, for the Interest Period for any Eurodollar Loan,a fraction (expressed as a decimal), the numerator of which is the number one and the denominatorof which is the number one minus the arithmetic mean, taken over each day in such Interest Period,of the aggregate of the maximum reserve percentages (including any marginal, special, emergency orsupplemental reserves) expressed as a decimal established by the Board to which the AdministrativeAgent is subject for eurocurrency funding (currently referred to as “Eurocurrency liabilities” inRegulation D of the Board). Such reserve percentages shall include those imposed pursuant to suchRegulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to besubject to such reserve requirements without benefit of or credit for proration, exemptions oroffsets that may be available from time to time to any Lender under such Regulation D or anycomparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of theeffective date of any change in any reserve percentage.          “Stock Pledge” shall have the meaning given to it in Section 8.10(b).          “Subcontractors” shall mean each Person providing labor, materials (includingequipment and fixtures of all kinds), supplies or services done, performed or furnished at, for orto, the Project on behalf of, or as counterparty to one or more contracts with, the ConstructionContractors or the Borrower with an aggregate value in excess of $50,000.          “Subordinated Indebtedness” shall mean any unsecured Indebtedness of the Borrower toany Person which is subordinated to the Secured Obligations pursuant to an instrument in writingsatisfactory in form and substance to the Administrative Agent and containing subordinationprovisions substantially in form of Exhibit I.          “Subsidiary” shall mean, for any Person, any corporation, partnership or other entityof which at least a majority of the securities or other ownership interests having by their termsordinary voting power to elect a majority of the board of directors or other persons performingsimilar functions of such corporation, partnership or other entity (irrespective of whether or notat the time securities or other ownership interests of any other class or classes of suchcorporation, partnership or other entity shall have or might have voting power by reason of thehappening of any contingency) is at the time directly or indirectly owned or Controlled by suchPerson or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries ofsuch Person. “Wholly Owned Subsidiary” shall mean any such corporation, partnership orother entity of which all of the equity securities or other ownership interests (other than, in thecase of a corporation, directors’ qualifying shares) are so owned or Controlled.          “Supermajority Lenders” shall mean, subject to the last paragraph of Section11.04, Lenders holding over sixty-six and two-thirds percent (66 2/3%) of the aggregateoutstanding Loans and Loan Commitments (if any). Where such term refers only to Term Loans or TermLoan Commitments or Working Capital Loans or Working Capital Commitments, “SupermajorityLenders” shall refer to Lenders holding over sixty-six and two-thirds percent (66 2/3%) of theaggregate outstanding Term Loans or Term Loan Commitments or Working Capital Loans or WorkingCapital Commitments, as applicable, held by such subset of Lenders.
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          “Survey” shall mean an as-built survey of the Project Facility and the ProjectFacility Site which survey shall:          (a) be a current “as-built” metes and bounds survey of the Project Facility Site, includingEasement Properties that benefit such Project Facility Site;          (b) be made (i) in accordance with the “Minimum Standard Detail Requirements for ALTA/ACSMLand Title Surveys” jointly established and adopted by ALTA and NSPS in 2005 (ii) pursuant to theAccuracy Standards as adopted by ALTA and NSPS in effect on the date of the survey and (iii) havinga Relative Positional Accuracy not less than that specified in the Accuracy Standards;          (c) be prepared by a surveyor licensed in the State of Texas and be in form, scope andsubstance required by the ALTA/ACSM and reasonably acceptable to the Administrative Agent;          (d) contain “Optional Survey Responsibilities and Specifications” 1, 2, 3, 4, 6, 7(a), 7(b),7(c), 8, 9, 10, 11(b), 13, 16, 17 and 18 as specified on Table A to the “Minimum Standard DetailRequirements for ALTA/ACSM Land Title Surveys”; and          (e) contain a certification from said surveyor in form and substance reasonably satisfactoryto the Administrative Agent and the Title Company.          “Syndication Agent” shall mean WestLB.          “Target Balance Account” shall have the meaning given in the Collateral AgencyAgreement.          “Target Balance Amount” shall mean the target aggregate outstanding principal amountof the Terms Loans as of each Principal Payment Date which shall reduce over the 19 PrincipalPayment Dates as set forth in Appendix C (and if the first Principal Payment Date occursless than three (3) months after the Conversion Date, with a pro-rata adjustment to Appendix E forthe first Principal Payment Date).          “Taxes” shall mean, with respect to any Person, all taxes, assessments, imposts,deductions, fees, duties, withholdings, or other governmental charges or levies imposed directly orindirectly on such Person or its income, profits or sales or Property by any Taxing Authority,including any interest, additions to tax or penalties applicable thereto. The term “Tax”shall have a correlative meaning.          “Taxing Authority” shall mean any Government Authority having jurisdiction over theassessment, determination, collection, or other imposition of any Tax.          “Term Lender” shall mean each Lender with an outstanding (i) Term Loan Commitment or(ii) Term Loan, or both.          “Term Loan” shall mean any extension of credit made by a Term Lender pursuant to itsTerm Loan Commitment.
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          “Term Loan Aggregate Commitment” shall mean the aggregate amount of the Term LoanCommitments of all Term Lenders, which amount shall equal $33,500,000, as the same may be reducedpursuant to Section 2.04 or adjusted pursuant to Section 11.06.          “Term Loan Borrowing” shall mean a borrowing of Term Loans.          “Term Loan Commitments” shall mean with respect to each Term Lender at any time, suchamount set forth next to such Term Lender’s name on Appendix A hereto under the headings “A TermLoan Commitment”, or in the Assignment and Acceptance pursuant to which such Term Lender shall haveassumed its Term Loan Commitment, as such amount may be reduced from time to time pursuant toSection 2.04 or adjusted pursuant to Section 11.06.          “Term Loan Commitment Fee” shall have the meaning assigned to that term in Section2.05(a).          “Term Loan Commitment Period” shall mean the period commencing on the Closing Date andending on the earliest to occur of (i) fifteen (15) months following the Closing Date, (ii) theConversion Date and (iii) the termination of all Term Loan Commitments pursuant to Section2.04 or Section 9.01.          “Term Loan Construction Period Aggregate Commitment” shall mean two-thirds of the TermLoan Aggregate Commitment, as the same may be reduced pursuant to Section 2.04 or adjustedpursuant to Section 11.06.          “Termination Date” shall mean the date on which (a) the Administrative Agent, theCollateral Agent and the other Secured Parties shall have received final indefeasible payment infull in cash of all of the Secured Obligations and all other amounts owing to the AdministrativeAgent, the Collateral Agent and the other Secured Parties under the Financing Documents, (b) allLoan Commitments shall have terminated, expired or been reduced to zero, and (c) each PermittedSwap Agreement in which such Permitted Swap Provider is a Lender, and each Commodity HedgingAgreement in which such Commodity Hedging Provider is a Lender, and which agreements wouldconstitute Secured Obligations, shall have terminated or expired.          “Title Company” shall mean Republic Title of Texas, Inc.          “Title Policy” shall mean the mortgagee policy of title insurance issued by the TitleCompany in the form promulgated by the State Insurance Commission of Texas insuring the validityand priority of the Lien of the Deed of Trust on the Project Facility Site.          “Transaction Documents” shall mean each Financing Document and each Project Document.          “Treasury Regulations” means the final, temporary and proposed U.S. Treasuryregulations promulgated under the Code, as such regulations may be amended from time to time(including corresponding provisions of succeeding regulations).          “Trust Estate” shall mean the Trust Estate (as defined in the Deed of Trust).
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          “Type” shall have the meaning assigned to that term in Section 1.03.          “Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code asthe same may, from time to time, be in effect in the State of New York; provided,however, in the event that, by reason of mandatory provisions of law, any or all of theperfection or priority of the security interest in any Collateral is governed by the UniformCommercial Code as in effect in a jurisdiction other than the State of New York, the terms“Uniform Commercial Code” and “UCC” shall mean the Uniform Commercial Code as ineffect in such other jurisdiction for purposes of the provisions hereof relating to such perfectionor priority and for purposes of definitions related to such provisions.          “United States” and “U.S.” shall mean the United States of America.          “Use” shall mean the generation, manufacture, processing, distribution, handling, use,treatment, recycling, storage, disposal, arrangement for or permitting the disposal, transportationor Release of any Hazardous Material.          “WestLB” shall have the meaning assigned to that term in the preamble.          “WestLB Fee Letter” shall mean the fee letter dated as December 20, 2007 entered intoamongthe Borrower and WestLB, with respect to, among other matters, certain fees payablefor the account of WestLB, in its capacity as Lead Arranger.          “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of acomplete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I ofSubtitle E of Title IV of ERISA.          “Working Capital Aggregate Commitment” shall mean the aggregate amount of the WorkingCapital Commitments of the Working Capital Lenders, which amount shall equal $10,000,000, as thesame may be reduced pursuant to Section 2.04 or adjusted pursuant to Section 11.06.          “Working Capital Loan Borrowing” shall mean a borrowing of Working CapitalLoans.          “Working Capital Commitment” shall mean, with respect to each Working Capital Lenderat any time, the amount set forth next to such Working Capital Lender’s name on Appendix Ahereto under the heading “Working Capital Commitment”, or in the Assignment and Acceptance pursuantto which such Working Capital Lender shall have assumed its Working Capital Commitment, asapplicable, as such amount may be reduced pursuant to Section 2.04  or adjusted pursuant toSection 11.06.          “Working Capital Commitment Fee” shall have the meaning assigned to that term inSection 2.05(b).          “Working Capital Commitment Period” shall mean the period commencing on the ClosingDate and ending on the earlier to occur of (y) the first anniversary of the Conversion Date as suchperiod may be extended by the Working Capital Lenders annually thereafter up to
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the Final Maturity Date and (z) the termination of all Working Capital Commitments pursuant toSection 2.04 or Section 9.01.          “Working Capital Exposure” shall mean, with respect to any Working Capital Lender atany time, the sum of the outstanding principal amount of such Lender’s Working Capital Loans.          “Working Capital Lender” shall mean each Lender with an outstanding (i) WorkingCapital Loan, and/or (ii) Working Capital Commitment.          “Working Capital Loan” shall mean any extension of credit made by a Working CapitalLender pursuant to its Working Capital Commitment.          1.02 Accounting Terms and Determinations.          (a) Except as otherwise expressly provided in this Agreement, all accounting terms used inthis Agreement shall be interpreted, and all financial statements and certificates and reports asto financial matters required to be delivered to the Lenders under this Agreement shall (unlessotherwise disclosed to the Lenders in writing at the time of delivery in the manner described insubsection (b) below) be prepared, in accordance with generally accepted accountingprinciples as in effect from time to time, including applicable statements, bulletins andinterpretations issued by the Financial Accounting Standards Board, and all calculations made forthe purposes of determining compliance with this Agreement shall (except as otherwise expresslyprovided in this Agreement) be made by application of generally accepted accounting principlesreferred to above; provided, however, that if any financial statements shall beprepared in accordance with generally accepted accounting principles that are not the same as theprinciples used for the preparation of the financial statements for the preceding applicableperiod (to the extent such change has a material effect) or if any calculations shall be made forthe purposes of determining compliance with this Agreement on a basis that is not the same as wasused for purposes of determining compliance for the preceding applicable period, then thefinancial statements for the comparable prior period shall be restated and the calculationsre-made as specified above to enable a comparison to be made with such prior period;provided, further, that the restatement and remaking of such calculations shall bemade solely for comparison purposes and shall not result in any finding of non-compliancehereunder.          (b) The Borrower shall deliver to the Administrative Agent (in sufficient numbers for theAdministrative Agent and each of the Lenders) at the same time as the delivery of any annual orquarterly financial statement under Section 8.01 (i) a description in reasonable detail ofany material variation between the application of accounting principles employed in thepreparation of such statement and the application of accounting principles employed in thepreparation of the next preceding annual or quarterly financial statements and (ii) reasonableestimates of the difference between such statements arising as a consequence of any suchdifference.          (c) To enable the consistent determination of compliance with the terms of this Agreement,the Borrower will not change the last day of its fiscal year from December 31
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of each year, or thelast days of the first three fiscal quarters in each of its fiscal years from March 31, June 30and September 30 of each year, respectively, without the prior written consent of theAdministrative Agent.          1.03 Types of Loans. Loans under this Agreement are distinguished by, and may beidentified by, “Type.” The “Type” of a Loan refers to whether such Loan is a BaseRate Loan or a Eurodollar Loan, each of which constitutes a Type.          1.04 Certain Principles of Interpretation. In this Agreement, unless otherwiseindicated, the singular includes the plural and plural the singular; words importing any genderinclude the other gender; references to statutes or regulations are to be construed as includingall statutory or regulatory provisions consolidating, amending or replacing the statute orregulation referred to; references to “writing” include printing, typing, lithography and othermeans of reproducing words in a tangible visible form; the words “including,” “includes” and“include” shall be deemed to be followed in each instance by the words “without limitation”;references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules areto this Agreement (unless otherwise specified); references to agreements and other contractualinstruments shall be deemed to include all subsequent amendments, extensions and othermodifications and substitutions thereof (including by change orders where applicable) (without,however, limiting any prohibition on any such amendments, extensions and other modifications andsubstitutions by the terms of this Agreement); and references to Persons include their respectivepermitted successors and assigns and, in the case of Government Authorities, Persons succeeding totheir respective functions and capacities.**ARTICLE II****LOAN COMMITMENTS**          2.01 Term Loans.          (a) Subject to the terms and conditions of this Agreement, each Term Lender agrees, severallyand not jointly, to make Term Loans to the Borrower from time to time during the Term LoanCommitment Period in an aggregate principal amount not in excess of the aggregate Term LoanCommitment of such Term Lender.          (b) In no event shall the aggregate principal amount of all Term Loans at any one timeoutstanding exceed the Term Loan Aggregate Commitment as in effect from time to time.          (c) Proceeds of each Term Loan Borrowing shall be deposited into the Construction Account,the Distribution Account, the Debt Service Reserve Account and other accounts in accordance withthe Collateral Agency Agreement, shall be applied solely in accordance with this Agreement andshall be used solely for the purposes described in Section 8.09(a).          (d) Subject to the terms and conditions of this Agreement, the Borrower may borrow the TermLoans by means of Base Rate Loans and Eurodollar Loans (except for the Fee Funding, in which casethe Borrower may borrow by means of Base Rate Loans only)
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and may Convert Term Loans of one Typeinto Term Loans of another Type (as provided in Section 3.03) or Continue Term Loans ofone Type as Term Loans of the same Type (as provided in Section 3.03). Term Loans repaidor prepaid may not be reborrowed.          (e) The Lenders may, in their sole discretion, increase the Term Loan Facility and theWorking Capital Facility up to an aggregate commitment of $150,000,000 (including the existingLoan Commitments), to include other Biodiesel, Methanol, and Glycerin production projects of theProject Sponsor (and its Subsidiaries); provided that, (i) the Project Sponsor (and its applicableSubsidiaries) provide all due diligence materials necessary to satisfy the Lenders andAdministrative Agent in their sole discretion as to the suitability of such additional projectsfor financing, (ii) the Lenders, the Administrative Agent and the applicable Project Sponsor (andits applicable Subsidiaries, including the Borrower) agree to all necessary amendments to thisAgreement to reflect the extension of the Term Loan Facility and the Working Capital Facility toinclude such additional projects; and (iii) the Credit Parties are not in default of any materialprovision of this Agreement and no Event of Default has occurred or is continuing.          2.02 Working Capital Loans          (a) Subject to the terms and conditions of this Agreement, each Working Capital Lenderagrees, severally and not jointly, to make Working Capital Loans to the Borrower from theConversion Date until the termination of the Working Capital Commitment Period in an aggregateprincipal amount not in excess of the aggregate Working Capital Aggregate Commitment of suchWorking Capital Lender.          (b) In no event shall the aggregate principal amount of all Working Capital Loans at any onetime outstanding exceed the Working Capital Aggregate Commitment as in effect from time to time.The aggregate principal amount of the Working Capital Loans made by each Working Capital Lendershall not exceed the Working Capital Commitment of such Working Capital Lender.          (c) Proceeds of each Working Capital Loan Borrowing shall be deposited into the RevenueAccount and the Construction Account in accordance with the Collateral Agency Agreement, shall beapplied solely in accordance with this Agreement and shall be used solely for the purposesdescribed in Section 8.09(b).          (d) Subject to the terms and conditions of this Agreement, the Borrower may borrow, repay andreborrow the Working Capital Loans by means of Base Rate Loans andEurodollar Loans and may Convert Working Capital Loans of one Type into Working Capital Loansof another Type (as provided in Section 3.03) or Continue Working Capital Loans of oneType as Working Capital Loans of the same Type (as provided in Section 3.03).          2.03 Letters of Credit.          (a) General.
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     (i) Subject to the terms and conditions set forth herein, the LC Issuing Bankagrees to issue Letters of Credit for the Borrower’s account from time to timeduring the Working Capital Commitment Period.     (ii) Each Letter of Credit shall be issued in a form reasonably acceptable tothe Borrower, the Agent and the LC Issuing Bank. In the event of any inconsistencybetween the terms and conditions of this Agreement and the terms and conditions ofany form of letter of credit application or other agreement submitted by theBorrower to, or entered into by the Borrower with, the LC Issuing Bank relating toany Letter of Credit, the terms and conditions of this Agreement shall control.     (iii) Letters of Credit issued hereunder shall constitute utilization of theWorking Capital Commitments; provided, however, that a Letter of Credit shall beissued, amended, renewed or extended only if (and upon issuance, amendment, renewalor extension of each Letter of Credit the Borrower shall be deemed to represent andwarrant that), after giving effect to such issuance, amendment, renewal or extension(i) the aggregate LC Exposure shall not exceed $10,000,000 and (ii) the aggregate LCExposure at any time outstanding shall not exceed the Working Capital AggregateCommitment.          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. Torequest the issuance of a Letter of Credit (or the amendment, renewal or extension of anoutstanding Letter of Credit) pursuant to this Agreement, the Borrower shall give the LC IssuingBank and the Agent a notice of such issuance request as provided in Section 4.05(b).          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close ofbusiness on the earlier of (i) the date one year after the date of the issuance of such Letter ofCredit (or, in the case of any renewal or extension thereof, one year after such renewal orextension) and (ii) the date that is five Business Days prior to the Final Maturity Date.          (d) Participations. By the issuance of a Letter of Credit (or an amendment to aLetter of Credit increasing the amount thereof) and without any further action on the part of theLC Issuing Bank or the Working Capital Lenders, the LC Issuing Bank hereby grants to each WorkingCapital Lender, and each Working Capital Lender hereby acquires from the LC Issuing Bank, aparticipation in such Letter of Credit equal to such Working Capital Lender’sApplicable Percentage. Each Working Capital Lender acknowledges and agrees that it shallthereby absolutely, unconditionally and irrevocably assume, as primary obligor and not as surety,and shall be unconditionally obligated to the LC Issuing Bank to pay and discharge when due, itsApplicable Percentage of the LC Issuing Bank’s liability under such Letter of Credit.          (e) Disbursement Procedures. The LC Issuing Bank shall, promptly following itsreceipt thereof, examine all documents purporting to represent a demand for payment under a Letterof Credit. The LC Issuing Bank shall promptly notify the Agent by
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telephone (confirmed byfacsimile) and the Agent shall promptly notify each other Working Capital Lender and the Borrowerof such demand for payment, whether the LC Issuing Bank has made or will make an LC Disbursementthereunder, the amount of such demand, the date on which payment is to be made by the LC IssuingBank as a result of such demand and specifying each Working Capital Lender’s Applicable Percentageof the amount of such demand.          Each LC Disbursement shall reduce the Stated Amount of such Letter of Credit by the amount ofsuch drawing.          (f) Reimbursement. If the LC Issuing Bank shall make any LC Disbursement in respectof a Letter of Credit, each Working Capital Lender (other than the LC Issuing Bank) shall pay tothe Agent for the account of the LC Issuing Bank in immediately available funds the amount of suchWorking Capital Lender’s Applicable Percentage of such LC Disbursement. Each Working CapitalLender’s obligation to make such payments to the Agent for the account of the LC Issuing Bank, andthe LC Issuing Bank’s right to receive the same, shall be absolute and unconditional and shall notbe affected by any circumstance whatsoever, including any amendment, renewal or extension of anyLetter of Credit or the occurrence and continuance of a Default or reduction or termination of theLoan Commitments. Each such payment shall be made in the manner provided in Section2.04(b), and the Agent shall promptly pay to the LC Issuing Bank the amounts so received by itfrom the Working Capital Lenders in the manner provided in Section 2.04(d). Each suchpayment to the LC Issuing Bank shall be made without any offset, abatement, withholding orreduction whatsoever.          (g) Loans. Notwithstanding anything herein to the contrary, including Section 6.04,any LC Disbursement by the LC Issuing Bank shall automatically be considered to be a WorkingCapital Loan Borrowing to the Borrower from the LC Issuing Bank and the other Working CapitalLenders making payments to the LC Issuing Bank in accordance with paragraph (f) of thisSection in an amount equal to such Working Capital Lender’s Applicable Percentage of the LCDisbursement. Such Working Capital Loans shall initially be made as Base Rate Loans. All suchWorking Capital Loans, shall be repaid or prepaid in accordance with Article III.          (h) Obligations Absolute. The Borrower’s obligation to repay the Loans provided inparagraph (g) of this Section shall be absolute, unconditional and irrevocable, and shallbe performed strictly in accordance with the terms of this Agreement under any and allcircumstances whatsoever and irrespective of (i) any lack of validity or enforceability of anyLetter of Credit or this Agreement, or any term or provision therein, (ii) any draft or otherdocument presented under a Letter of Credit proving to be forged, fraudulent or invalid in anyrespect or any statement therein being untrue or inaccurate in any respect, (iii) payment by theLC Issuing Bank under a Letter of Credit against presentation of a draft or other document thatdoes not comply with the terms of such Letter of Credit, or (iv) any other event or circumstancewhatsoever, whether or not similar to any of the foregoing, that might, but for the provisions ofthis Section, constitute a legal or equitable discharge of, or provide a right of setoff against,the Borrower’s obligations hereunder.
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          None of the Agent, the Working Capital Lenders, and the LC Issuing Bank, nor any of theirAffiliates, shall have any liability or responsibility by reason of or in connection with theissuance or transfer of any Letter of Credit or any payment or failure to make any paymentthereunder (irrespective of any of the circumstances referred to in the preceding sentence), orany error, omission, interruption, loss or delay in transmission or delivery of any draft, noticeor other communication under or relating to any Letter of Credit (including any document requiredto make a drawing thereunder), any error in interpretation of technical terms or any consequencearising from causes beyond the control of the LC Issuing Bank; provided that the foregoingshall not be construed to excuse the LC Issuing Bank from liability to the Borrower to the extentof any direct damages (as opposed to consequential damages, claims in respect of which are herebywaived by the Borrower to the extent permitted by applicable law) suffered by the Borrower thatare caused by the LC Issuing Bank’s failure to exercise care when determining whether drafts andother documents presented under a Letter of Credit comply with the terms thereof. The partieshereto expressly agree that, in the absence of gross negligence or willful misconduct on the partof the LC Issuing Bank (as finally determined by a court of competent jurisdiction), the LCIssuing Bank shall be deemed to have exercised care in each such determination. In furtherance ofthe foregoing and without limiting the generality thereof, the parties agree that, with respect todocuments presented which appear on their face to be in substantial compliance with the terms of aLetter of Credit, the Applicable Issuing Bank may, in its sole discretion, either accept and makepayment upon such documents without responsibility for further investigation, regardless of anynotice or information to the contrary, or refuse to accept and make payment upon such documents ifsuch documents are not in strict compliance with the terms of such Letter of Credit.          (i) Replacement of the LC Issuing Bank. The LC Issuing Bank may be replaced at anytime by written agreement among the Borrower, the Agent, the replaced LC Issuing Bank and thesuccessor LC Issuing Bank. The Agent shall notify the Working Capital Lenders of any suchreplacement of the LC Issuing Bank. At the time any such replacement shall become effective, theBorrower shall pay all unpaid fees accrued for the account of the replaced LC Issuing Bankpursuant to Section 2.06(d). From and after the effective date of any such replacement,(i) the successor LC Issuing Bank shall have all the rights and obligations of the LC Issuing Bankunder this Agreement with respect to Letters of Credit to be issued thereafter and (ii) referencesherein to the term “LC Issuing Bank” shall be deemed to refer to such successor or to any previousLC Issuing Bank, or to such successor and all previous LC Issuing Banks, as the context requires.After the replacement of a LC Issuing Bank hereunder, the replaced LC Issuing Bank shall remain aparty hereto and shall continue to have all the rights and obligations of an LC Issuing Bank underthis Agreement with respect to Letters ofCredit issued by it prior to such replacement, but shall not be required to issue additionalLetters of Credit.          (j) Cash Collateralization. If (i) any Event of Default shall occur and becontinuing, (ii) the Loan Commitments are reduced to zero pursuant to Section 9.01 or(iii) all outstanding Working Capital Loans are to be paid in full pursuant to Section3.01(b), on the Business Day that the Borrower receives notice from the Agent or the Lenders(or, if the maturity of Working Capital Loans has been accelerated, Working Capital Lenders withLC Exposure representing at least 66 2/3% of the total LC Exposure) demanding the deposit of cashcollateral pursuant to this paragraph, the Borrower shall immediately deposit in an
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account withthe Agent, in the name of the Agent and for the benefit of the Working Capital Lenders, an amountin cash equal to the LC Exposure as of such date plus any accrued and unpaid interestthereon; provided that the obligation to deposit such cash collateral shall becomeeffective immediately, and such deposit shall become immediately due and payable, without demandor other notice of any kind, upon the occurrence of any Event of Default with respect to theBorrower described in clause (f) or (g) of Article IX. Such deposit shallbe held by the Agent as collateral for the payment and performance of the obligations of theBorrower under this Agreement. For these purposes, the Borrower hereby grants a security interestto the Agent for the benefit of the Lenders in such account and in any money or financial assets(as defined in the UCC) or other property held therein. The Agent shall have exclusive dominionand control, including the exclusive right of withdrawal, over such account. Other than anyinterest earned on the investment of such deposits, which investments shall be made at the optionand sole discretion of the Agent and at the Borrower’s risk and expense, such deposits shall notbear interest. Interest or profits, if any, on such investments shall accumulate in such account.Moneys in such account shall be applied by the Agent to reimburse the Applicable Issuing Bank forLC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall beheld for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure atsuch time or, if the maturity of the Working Capital Loans has been accelerated (but subject tothe consent of Working Capital Lenders with LC Exposure representing at least 66 2/3% of the totalLC Exposure), as applicable, be applied to satisfy other obligations of the Borrower under thisAgreement. If the Borrower is required to provide an amount of cash collateral hereunder as aresult of the occurrence of an Event of Default, such amount (to the extent not applied asaforesaid) shall be returned to the Borrower within three Business Days after all Events ofDefault have been cured or waived.          2.04 Borrowings.          (a) To request a Borrowing (or a Conversion, Continuation, or optional prepayment of Loans)pursuant to this Agreement, the Borrower shall give the Administrative Agent (which shall promptlynotify the Lenders) notice of such Borrowing as provided in Section 4.05(a).          (b) Not later than 11:00 a.m. New York City time on the Monthly Transfer Date (or, for theFee Funding, the Fee Funding Date) specified for each Borrowing of a Loan, each Lender shall makeavailable the amount of the Loan to be made by it on such date to theAdministrative Agent, in immediately available funds, by wire transfer to the accountspecified on the attached Appendix B.          (c) The amount with respect to Loans so received by the Administrative Agent for the accountof the Borrower shall, subject to the terms and conditions of this Agreement, be made available tothe Borrower by remitting the same by 3:00 p.m. New York City time to the Collateral Agent, inimmediately available funds, and the Collateral Agent shall (i) in the case of any Working CapitalLoans, deposit the amounts so received in the Revenue Account and (ii) in the case of any TermLoans, deposit the amounts so received into the Construction Account, in each case as set forth inthe applicable Notice of Borrowing and pursuant to the Collateral Agency Agreement.
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          (d) No more than three (3) separate Interest Periods in respect of Eurodollar Loans from eachLender may be outstanding at one time.          2.05 Changes of Loan Commitments.          (a) Optional Changes of Commitment. Subject to Section 2.04(b), the Borrowershall have the right at any time or from time to time to reduce the aggregate unused amount of theLoan Commitments; provided, that (i) the Borrower shall give notice of each suchtermination or reduction as provided in Section 4.05(a), (ii) each reduction of LoanCommitments shall be in an aggregate amount at least equal to $1,000,000 (or, if less, the fullamount of such Loan Commitments outstanding), and if greater, in integral multiples of $500,000 inexcess thereof, (iii) the Term Loan Commitments may not be reduced below an amount which, togetherwith the unfunded portion of the Equity Contribution Amount (and other funds committed in a formreasonably satisfactory to the Supermajority Lenders) is available and sufficient, in thereasonable judgment of the Supermajority Lenders and the Independent Engineer, to achieve FinalCompletion in accordance with the Construction Budget and Schedule and (iv) the Working CapitalCommitments may not be reduced unless a working capital reserve account is established and fundedin an amount equal to the aggregate amount of the reduced Working Capital Commitments.          (b) Mandatory Changes of Loan Commitments. Unless previously terminated:               (i) the Term Loan Commitments shall be automatically reduced to zero at the close of businesson the earliest to occur of (A) the Date Certain, (B) the Conversion Date and (C) the expiration ofthe Term Loan Commitment Period; and               (ii) the Working Capital Commitments shall be automatically reduced to zero on the earliest tooccur of (x) the Final Maturity Date and (y) the expiration of the Working Capital CommitmentPeriod.          (c) No Reinstatement. The Loan Commitments once terminated or reduced may not bereinstated.          2.06 Fees.          (a) Term Loan Commitment Fee. The Borrower shall pay to the Administrative Agent forthe account of each Term Lender a commitment fee (the “Term Loan Commitment Fee”), on thedaily average unused amount of such Term Lender’s Term Loan Commitment, at a rate per annum equalto 0.50%, for the period from and including the Closing Date to, but not including, the date theTerm Loan Commitments are reduced to zero. The accrued Term Loan Commitment Fee shall be payablein arrears on each Quarterly Date.          (b) Working Capital Commitment Fee. The Borrower shall pay to the AdministrativeAgent for the account of each Working Capital Lender a fee on the daily average unused amount ofsuch Working Capital Commitment (the “Working CapitalCommitment Fee”) at a rateper annum equal to 0.50%, for the period from and including the Closing Date to, but notincluding, the date the Working Capital Commitments are reduced to
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zero. The accrued WorkingCapital Commitment Fee shall be payable in arrears on each Quarterly Date.          (c) Administrative Fee. The Borrower shall pay to the Administrative Agent, for itsown account, a non-refundable agency fee (the “Administrative Fee”) for each twelve (12)month period commencing on the Closing Date or an anniversary thereof in the amounts set forth inthe Syndication Letter. The Administrative Fee shall be payable in advance in accordance with theterms and in the amounts as set forth in the Syndication Letter.          (d) Letter of Credit Fees. The Borrower agrees to pay:     (i) to the Agent for the account of each Working Capital Lender a participationfee with respect to its participations in Letters of Credit (the “Letter ofCredit Participation Fee”), which shall accrue same Applicable Margin used todetermine the interest rate applicable to Eurodollar Working Capital Loans on theaverage daily amount of such Working Capital Lender’s LC Exposure during the periodfrom and including the Closing Date to but excluding the later of the date on whichsuch Working Capital Lender’s Working Capital Commitment terminates and the date onwhich such Working Capital Lender ceases to have any LC Exposure; and     (ii) to the Applicable Issuing Bank, a fronting fee (the “Letter of CreditFronting Fee”) equal to the greater of (A) fifteen hundred Dollars ($1,500) or(B) (x) an amount calculated at a rate per annum equal to 0.15% of the average dailyamount of the LC Exposure during the period from and including the Closing Date tobut excluding the later of the date of termination of the Working Capital CreditCommitments and the date on which there ceases to be any LC Exposure, as well as theLC Issuing Bank’s standard fees with respect to the issuance, amendment, renewal orextension of any Letter of Credit or processing of drawings thereunder.          Letter of Credit Participation Fees and Letter of Credit Fronting Fees accrued through andincluding the last day of March, June, September and December of each year shallbe payable on the third Business Day following such last day, commencing on the first suchdate to occur after the Closing Date; provided that all such fees shall be payable on thedate on which the Working Capital Commitments terminate and any such fees accruing after the dateon which the Working Capital Commitments terminate shall be payable on demand. Any other feespayable to the LC Issuing Bank pursuant to this paragraph shall be payable within 10 days afterdemand. All Letter of Credit Participation Fees and Letter of Credit Fronting Fees shall becomputed on the basis of a year of 360 days and shall be payable for the actual number of dayselapsed (including the first day but excluding the last day).          (e) Other Fees. The Borrower shall pay: (i) to the Administrative Agent (for theaccount of the Person to whom such payment is owed) all fees payable in the amounts and at timesseparately agreed upon between the Borrower and the Administrative Agent in the AdministrativeAgent Fee Letter; (ii) to WestLB (for the account of the Person to whom such payment is owed) allfees payable in the amounts and at times separately agreed upon between
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the Borrower and WestLB inthe WestLB Fee Letter; (iii) all fees payable in the amounts and at times separately agreed uponbetween the Borrower and the Collateral Agent in the Collateral Agency Fee Letter, and (iv) allreasonable, properly documented costs and expenses of the Administrative Agent, Collateral Agent,the Lead Arranger, the Bookrunner and the Syndication Agent.          2.07 Lending Offices. The Loans of each Type made by each Lender shall be made andmaintained at such Lender’s Applicable Lending Office for Loans of such Type.          2.08 Several Obligations; Remedies Independent. The failure of any Lender to make anyLoan to be made by it on the date specified therefor shall not relieve any other Lender of itsobligation to make its Loan on such date, but neither any Lender nor the Administrative Agent shallbe responsible for the failure of any other Lender to make a Loan to be made by such other Lender.The amounts payable by the Borrower at any time under this Agreement, the Notes or any otherFinancing Document to each Lender shall be a separate and independent debt and, subject to theCollateral Agency Agreement, each Lender shall be entitled to protect and enforce its rightsarising out of this Agreement and the Notes, and it shall not be necessary for any other Lender orthe Administrative Agent to consent to, or be joined as an additional party in, any proceedings forsuch purposes.          2.09 Notes.          (a) Notes. The Loans of each Lender shall, at the request of such Lender, beevidenced by one or more promissory notes of the Borrower (each, a “Note”) substantiallyin the form of Exhibit A to this Agreement for such Lender’s (i) Term Loans and (ii)Working Capital Loans and participations in LC Exposure, dated the Closing Date in the case ofeach Note issued on such date, or the effective date of assignment pursuant to Section11.06(b) in the case of any Note issued in connection with such assignment, payable to suchLender in aprincipal amount equal to the amount of the applicable Loan Commitment made by such Lenderand otherwise duly completed.          (b) Loan Records. The date, amount, Type, interest rate and duration of InterestPeriod (if applicable) of each Loan made by each Lender to the Borrower, and each payment made inrespect of principal of such Loan, shall be recorded by such Lender on its books and, prior to anytransfer of the Note evidencing the Loans held by it, endorsed by such Lender on the scheduleattached to such Note or any continuation of such schedule; provided, that the failure ofsuch Lender to make any such recordation or endorsement shall not affect the obligations of theBorrower to make a payment when due of any amount owing under such Note.          (c) Subdivision. No Lender shall be entitled to have any of its Notes subdivided, byexchange for promissory notes of lesser denominations or otherwise, except in connection with apermitted assignment of all or any portion of such Lender’s related Loan Commitment, related Loansand related Note pursuant to Section 11.06(b).          (d) Maintenance of Records by the Administrative Agent. The Administrative Agentshall maintain a copy of each Assignment and Acceptance delivered
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pursuant to Section 11.06(b) anda register (the “Register”) in which it shall record (i) the names and addresses of eachLender and Assignee, (ii) the Loan Commitments of each Lender and Assignee and the amount of eachLoan made hereunder and each Interest Period therefor, (iii) the amount of any principal orinterest due and payable or to become due and payable from the Borrower to each Lender andAssignee hereunder, (iv) the amount of any sum received by the Administrative Agent hereunder forthe account of the Lenders and Assignees and each Lender’s or Assignee’s share thereof. Uponreasonable notice to the Administrative Agent, the Borrower and each Lender and Assignee shallhave the right to inspect such records from time to time during normal business hours.(e) Effect of Entries. Absent manifest error, the entries made in the recordsmaintained pursuant to paragraph (b) or (d) of this Section shall be primafacie evidence of the existence and amounts of the obligations recorded therein;provided, that the failure of any Lender or the Administrative Agent to maintain suchrecords or any error therein shall not in any manner affect the obligation of the Borrower torepay the Loans in accordance with the terms of this Agreement.**ARTICLE III****PAYMENTS OF PRINCIPAL AND INTEREST**          3.01 Repayment of Loans.          (a) Term Loans. The Borrower hereby agrees to pay to the Administrative Agent forthe account of each Term Lender the principal of such Term Lender’s Term Loans outstanding (1) oneach Principal Payment Date in 24 equal installments of one and one-half percent (1.5%) of theaggregate principal amount of the Borrowings under the Term Loans and (2) when declared due andpayable pursuant to this Agreement, including pursuant to Section 9.01; provided, however, with respect to (1), if the first Principal PaymentDate is less than ninety (90) days after the earlier of (i) the Conversion Date and (ii) the firstanniversary of the Closing Date, the payment due on the first Principal Payment Date shall bedetermined pro-rata based on the number of days elapsed since the Conversion Date or the firstanniversary of the Closing Date, as applicable. All unpaid principal of each outstanding Term Loannot previously paid in accordance with such amortization schedule or prepaid shall be due andpayable in full in a single installment on the Final Maturity Date.          (b) Working Capital Loans. The Borrower shall repay all outstanding Working CapitalLoans in full upon the earliest to occur of (1) the expiration of the Working Capital CommitmentPeriod, (2) when declared due and payable pursuant to this Agreement, including pursuant toSection 9.01 and (3) on the Final Maturity Date.          3.02 Interest. The Borrower hereby agrees to pay to the Administrative Agent for theaccount of each Lender interest on the unpaid principal amount of each Loan made by such Lender forthe period from and including the date of such Loan to but excluding the date such Loan shall bepaid in full, at the following rates per annum:
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          (a) during such periods as such Loan is a Base Rate Loan, the Base Rate (as in effect fromtime to time) plus the Applicable Margin;          (b) during such periods as such Loan is a Eurodollar Loan, for each Interest Period relatingto such Loan, the Adjusted LIBO Rate for such Loan for such Interest Period plus theApplicable Margin; and          (c) during such periods that an Event of Default has occurred and is continuing, alloutstanding Loans shall bear interest at a rate per annum equal to the Post-Default Rate to butexcluding the dates such Event of Default is remedied or waived.Accrued interest on each Loan shall be payable in arrears (i) on each Interest Payment Date and(ii) upon the payment or prepayment of any Loan or the Conversion of any Loan to a Loan of anotherType (but only on the principal amount so paid, prepaid or Converted); provided, thatinterest payable at the Post-Default Rate shall be payable from time to time on demand (or, if nodemand is made during any month, on the last Business Day of such month); provided,further, that prior to the Final Completion Date, at the Borrower’s election, accruedinterest may be paid as a Project Cost through Borrowings of Term Loans for the Project to fundsuch interest payments. Promptly after the determination of any interest rate provided for in thisAgreement or any change in any such rate, the Administrative Agent shall give notice of suchinterest rate to the Lenders to which such interest is payable and to the Borrower.          3.03 Optional Prepayments and Conversions or Continuations of Loans. Subject toSection 4.04, the Borrower shall have the right to prepay Loans, or to Convert Loans of oneType into Loans of another Type or Continue Loans of one Type as Loans of the same Type, at anytime or from time to time; provided, that the Borrower shall give the Administrative Agentnotice of each such prepayment, Conversion or Continuation as providedin Section 4.05(a) and, upon the date specified in any such notice of prepayment, theamount to be prepaid shall become due and payable. Any prepayment by the Borrower pursuant to thisSection 3.03 shall be made simultaneously with, and is conditioned upon, (A) the prepaymentunder any Permitted Swap Agreement (if then in effect) to the extent the aggregate notional amountunder all such Permitted Swap Agreements exceeds the aggregate amount of Loans outstanding aftergiving effect to the prepayment contemplated by this Section 3.03 and (B) the payment bythe Borrower of any costs, expenses or other amounts incurred by any Lender and Permitted SwapProvider in connection with such prepayment. Any prepayment of Loans by the Borrower pursuant tothis Section 3.03 shall be applied against the outstanding principal of, as the case maybe, the Term Loans and the Working Capital Loans pro rata to the remaining scheduled principalinstallments with (a) the portion applied to the Term Loans being applied pro rata to the remainingprincipal installments of the Term Loans and (b) the portion applied to the Working Capital Loansbeing applied to the outstanding balance, but not reducing the Working Capital AggregateCommitment.          3.04 Mandatory Prepayments. In addition to mandatory repayments of principal of Loansas set forth in Section 3.01 above, the Borrower shall make the following mandatoryprepayments (to be effected in each case in the manner specified in paragraph (g) below):
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          (a) Event of Loss. The Borrower shall prepay the Term Loans in an amount equal toone hundred percent (100%) of the Net Available Amount not allocated to and used for Restorationin accordance with Section 8.05(m).          (b) Asset Sales. Except as otherwise permitted pursuant to Section 8.11(a), theBorrower shall prepay the Loans in an aggregate amount equal to one hundred percent (100%) of theNet Available Amount in excess of $1,000,000 resulting from the Disposition of any of its physicalassets (other than sales of inventory in the ordinary course of business and on ordinary terms).          (c) Project Payments. The Borrower shall prepay the Term Loans in an amount equal toone hundred percent (100%) of the net proceeds received from Material Project Parties pursuant toMaterial Project Documents in connection with amounts received by the Borrower in respect oftermination payments, indemnity payments and damages payments due under the terms of such MaterialProject Documents, to the extent that such payments exceed the Losses of the Borrower inconnection with the events and/or circumstances resulting in such payments becoming due.          (d) Excess Cash Flow/Target Balance Amount. On each Principal Payment Date, theBorrower shall prepay the Term Loans in an amount that is equal to the greater of (x) 50% ofamounts remaining in the Revenue Account after clause *seventh*of Section 4.01(d) of the CollateralAgency Agreement, and (ii) such amounts (up to 100%) of amounts remaining in the Revenue Accountafter clause *seventh*of Section 4.01(d) of the Collateral Agency Agreement that is required tosatisfy the Target Balance Amount at such time.          (e) Debt Service Coverage. If on any Principal Payment Date, the Debt ServiceCoverage Ratio is less than or equal to 1.50, then (x) amounts on deposit in the PrepaymentHolding Account and (y) amounts remaining in the Revenue Account after clause *eighth*of Section4.01(d) of the Collateral Agency Agreement shall be prepaid in accordance with the CollateralAgency Agreement.          (f) BBETC Event. On each Monthly Transfer Date, if a BBETC Event has occurred and iscontinuing, the Borrower shall prepay the Term Loan in an amount that is required to satisfy therequirements of clause *ninth*of Section 4.01(d) of the Collateral Agency Agreement.          (g) Application in Inverse Order. Mandatory prepayments made pursuant toclauses (a), (b), and (c) of this Section 3.04 shall be applied pro rata betweenthe Term Loans and Working Capital Loans with (a) the portion applied to the Term Loans applied ininverse order of maturity and (b) the portion applied to the Working Capital Loans applied toreduce the outstanding balance and reducing the Working Capital Aggregate Commitment. Mandatoryprepayments made pursuant to clauses (d), (e), and (f) of this Section3.04 shall be applied to Term Loans in inverse order of maturity.          (h) Payments. The Borrower shall transfer all amounts required for the prepaymentsin this Section 3.04 in accordance with Section 4.03(d) of the Collateral Agency Agreementat the time of each such prepayment.
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          (i) Swap Prepayments. Any prepayment by the Borrower pursuant to this Section3.04 shall be made simultaneously with (A) the prepayment under any Permitted Swap Agreement(if then in effect) to the extent the aggregate notional amount under all such Permitted SwapAgreements exceeds the aggregate amount of Eurodollar Loans outstanding after giving effect to theprepayments contemplated by this Section 3.04 and (B) the payment by the Borrower of anycosts, expenses or other amounts incurred by any Lender and Permitted Swap Provider in connectionwith such prepayment.**ARTICLE IV****PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.**          4.01 Payments.          (a) Except to the extent otherwise provided in this Agreement, all payments of principal,interest, fees and other amounts to be made by the Borrower under this Agreement and the Notesand, except to the extent otherwise provided in any of the other Financing Documents, all paymentsto be made by the Borrower under any such other Financing Documents, shall be made in Dollars, inimmediately available funds, without deduction, set-off or counterclaim, to the AdministrativeAgent by wire transfer to the account specified on the attached Appendix B. No paymentshall be made later than 12:00 p.m. New York time on the date on which such payment shall becomedue (each such payment made after such time on such due date to be deemed to have been made on thenext succeeding Business Day).          (b) The Borrower shall, at the time of making each payment under this Agreement or any Notefor the account of any Lender, specify to the Administrative Agent (which shall so notify theintended recipient or recipients) the Loans or other amounts payable by the Borrower under thisAgreement to which such payment is to be applied (and in the event that it fails to so specify, orif an Event of Default has occurred and is continuing, the Administrative Agent may distributesuch payment to the Lenders for application in such manner as it or the Majority Lenders, subjectto Section 4.02 and the other provisions of this Agreement, may determine to beappropriate, in each case pursuant to the Collateral Agency Agreement).          (c) Each payment received by the Administrative Agent under this Agreement or any Note foraccount of any Lender shall be paid by the Administrative Agent promptly to such Lender, inimmediately available funds, for account of such Lender’s Applicable Lending Office for the Loanor other obligation in respect of which such payment is made.          (d) If the due date of any payment under this Agreement or any Note would otherwise fall on aday which is not a Business Day such date shall be extended to the next succeeding Business Day(except in the case where such payment due date is a Quarterly Date, in which case the terms setforth in Section 1.01 for “Quarterly Date” are applicable) and interest shall bepayable for any principal so extended for the period of such extension.
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          (e) Term Loans repaid or prepaid may not be reborrowed. Working Capital Loans repaid orprepaid may be reborrowed as set forth in Section 2.02(d).          4.02 Pro Rata Treatment. Except to the extent otherwise provided in this Agreement:(a) the Borrowing of Loans under Section 2.01 and Section 2.02 shall be made fromthe Lenders and each payment of Commitment Fees under Sections 2.05(a) and (b)shall be made for account of the applicable Lenders on a pro rata basis (based on their respectiveLoan Commitments) and the payment of Letter of Credit Participation Fees under Section 2.05(d), (b)the Conversion and Continuation of Loans of a particular Type (other than Conversions provided forby Section 5.03) shall be made pro rata among the Lenders according to the amounts of theirrespective Loan Commitments and the then current Interest Period for each Loan of such Type shallbe coterminous, (c) except as otherwise specified herein, each payment or prepayment of principalof Loans by the Borrower shall be made for account of the Lenders pro rata in accordance with therespective unpaid principal amounts of the Loans held by them; provided, that ifimmediately prior to giving effect to any such payment in respect of any Loan, the outstandingprincipal amount of the Loans shall not be held by the Lenders pro rata in accordance with theirrespective Loan Commitments in effect at the time such Loans were made (by reason of a failure of aLender to make a Loan in the circumstances described in the last paragraph of Section11.04), then such payment shall be applied to the Loans in such manner as shall result, asnearly as is practicable, in the outstanding principal amount of the Loans being held by theLenders pro rata in accordance with their respective Loan Commitments and (d) each payment ofinterest on the Loans by the Borrower shall be made for account of the Lenders pro rata inaccordance with the amounts of interest on such Loans then due and payable to the respectiveLenders.          4.03 Computations. Interest and fees on Eurodollar Loans and on Base Rate Loans atsuch times that the Base Rate is computed on the basis of the Federal Funds Rate and on otherobligations of the Borrower or the Lenders that are computed on the basis of the Federal Funds Rateshall be computed on the basis of a year of 360 days and actual days elapsed (including the firstday but excluding the last day) occurring in the period for which payable. Interest on Base RateLoans at such times that the Base Rate is computed on the basis of the Prime Rate and on otherobligations of the Borrower or the Lenders that are computed on the basis of the Prime Rate and thecommitment fees shall be computed on the basis of a year of 365 or 366 days, as the case may be,and actual days elapsed (including the first day but excluding the last day) occurring in theperiod for which payable.          4.04 Minimum Amounts. Except for (a) mandatory prepayments made pursuant toSection 3.04 and (b) Conversions or prepayments made pursuant to Section 5.03, eachBorrowing, Conversion, Continuation, voluntary and partial prepayment of principal of Loans shallbe in a minimum amount equal to $500,000 (or, if less, the full amount of such Loans outstanding)with integral multiples of $100,000 in excess of such minimum amount.          4.05 Certain Notices.          (a) Notices by the Borrower to the Administrative Agent of Borrowings, Conversions,Continuations and optional prepayments of Loans, Types of Loans and of the duration of InterestPeriods shall be irrevocable and shall be effective only if received by the
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Administrative Agentnot later than 11:00 a.m. New York City time on the number of Business Days prior to the date ofthe relevant Borrowing, Conversion, Continuation or prepayment or the first day of such InterestPeriod specified below:       Number ofNotice Business Days Prior     Termination or reduction of Loan Commitments  3      Borrowing (except the Term Loan Borrowing for the FeeFunding), Conversions into or from, Continuations ofInterest Periods for, and Prepayments of EurodollarLoans  5      Borrowing (except the Term Loan Borrowing for the FeeFunding) or Prepayment of Base Rate Loans  1      Term Loan Borrowing for the Fee Funding  1           Each such notice of a Borrowing (each such notice, a “Notice of Borrowing”) shall bein substantially the form of Exhibit B-2, shall be subject to the satisfaction of theconditions set forth in Article VI and shall specify, among other things: (i) the amountsof suchBorrowing; (ii) the requested date of such Borrowing, which must be a Monthly Transfer Date(except for Term Loan Borrowing for the Fee Funding, which must be on or within two (2) BusinessDays after the Closing Date); (iii) a reasonable description of the specific use of the proceeds ofthe requested Borrowing, which use shall satisfy the conditions set forth in Section 8.09;(iv) the requested Type of Loan comprising such Borrowing and (v) with respect to a Borrowing ofEurodollar Loans, the requested Interest Period for each such Loan. Each such notice ofConversion, Continuation or optional prepayment shall specify the Type of each Loan to beConverted, Continued or prepaid (and, in the case of a Conversion, the Type of Loan to result fromsuch Conversion) and the date of Conversion, Continuation or optional prepayment (which shall be aBusiness Day). Each such notice of the duration of an Interest Period shall specify the Loans towhich such Interest Period is to relate. The Administrative Agent shall promptly notify theLenders of the contents of each such notice. In the event that the Borrower fails to select theType of Loan, such Loan (x) if outstanding as a Eurodollar Loan, will remain as a Eurodollar Loan,(y) if outstanding as a Base Rate Loan, will remain as a Base Rate Loan or (z) if not thenoutstanding, will be made as a Base Rate Loan. In the event that the Borrower fails to select theduration of any Interest Period, the Borrower shall be deemed to have selected an Interest Periodof one month for such Eurodollar Loan.          (b) Notices by the Borrower to the LC Issuing Bank and the Agent of requests for the issuanceof a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit)shall be irrevocable and shall be effective only if received by the LC Issuing Bank and the Agentby hand delivery or fax (or transmitted by electronic communication, if arrangements for doing sohave been approved by the LC Issuing Bank) not later than 11:00 am New York City time 5 BusinessDays prior to the date of the proposed issuance.          Each such notice requesting the issuance of a Letter of Credit, or identifying the Letter ofCredit to be amended, renewed or extended (each such notice, an “Issuance Request”)
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shallbe substantially in the form of Exhibit B-3 and shall specify: (i) the date of issuance,amendment, renewal or extension (which shall be a Business Day), (ii) the date on which suchLetter of Credit is to expire (which shall comply with Section 2.03(c)), (iii) the StatedAmount of such Letter of Credit, (iv) the name and address of the beneficiary thereof and (v) suchother information as shall be necessary to prepare, amend, renew or extend such Letter of Credit.If requested by the LC Issuing Bank, the Borrower also shall submit a letter of credit applicationon the LC Issuing Bank’s standard form in connection with any request for a Letter of Credit.          4.06 Non-Receipt of Funds by the Administrative Agent. Unless the AdministrativeAgent shall have been notified by a Lender or the Borrower (the “Payor”) prior to the dateon which the Payor is to make payment to the Administrative Agent of (in the case of a Lender) theproceeds of a Loan to be made by such Lender or (in the case of the Borrower) a payment to theAdministrative Agent for account of one or more of the Lenders (any such payment, a “RequiredPayment”), which notice shall be effective upon receipt, that the Payor does not intend to makethe Required Payment to the Administrative Agent, the Administrative Agent may assume that theRequired Payment has been made and may, in reliance upon such assumption, (but shall not berequired to) make theamount of such payment available to the intended recipient (or recipients) on such date and,if the Payor has not in fact made the Required Payment to the Administrative Agent, the recipient(or recipients) of such payment shall, on demand, repay to the Administrative Agent the amount somade available together with interest on such amount in respect of each day during the periodcommencing on the date (the “Advance Date”) such amount was so made available by theAdministrative Agent until the date the Administrative Agent recovers such amount at a rate perannum equal to the Federal Funds Rate for such day and, if such recipient (or recipients) shallfail promptly to make such payment, the Administrative Agent shall be entitled to recover suchamount, on demand, from the Payor, together with interest as provided above; provided, thatif neither the recipient (or recipients) nor the Payor shall return the Required Payment to theAdministrative Agent within three Business Days of the Advance Date, then, retroactively to theAdvance Date, the Payor and the recipient (or recipients) shall each be obligated to pay intereston the Required Payment as follows:          (a) if the Required Payment shall represent a payment to be made by the Borrower to theLenders, the Borrower and the recipient (or recipients) shall each be obligated retroactively tothe Advance Date to pay interest in respect of the Required Payment at the Post-Default Rate (and,in case the recipient (or recipients) shall return the Required Payment to the AdministrativeAgent, without limiting the obligation of the Borrower under Section 3.02 to pay interestto such recipient (or recipients) at the Post-Default Rate in respect of the Required Payment) and          (b) if the Required Payment shall represent proceeds of a Loan to be made by the Lenders tothe Borrower, the Payor and the Borrower shall each be obligated retroactively to the Advance Dateto pay interest in respect of the Required Payment at the rate of interest provided for suchRequired Payment pursuant to Section 3.02 (and, in case the Borrower shall return theRequired Payment to the Administrative Agent, without limiting any claim the Borrower may haveagainst the Payor in respect of the Required Payment, subject to Section 11.15).
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          4.07 Sharing of Payments; Etc.          (a) The Borrower agrees that, in addition to (and without limitation of) any right ofset-off, banker’s lien or counterclaim a Lender may otherwise have, each Lender shall be entitled,at its option, to offset balances held by it for the account of the Borrower at any of itsoffices, in Dollars or in any other currency, against any principal of or interest on any of suchLender’s Loans or any other amount payable to such Lender under this Agreement, that is not paidwhen due (regardless of whether such balances are then due to the Borrower), in which case itshall promptly notify the Borrower and the Administrative Agent of such action; provided,that such Lender’s failure to give such notice shall not affect the validity of such action.          (b) If any Lender shall obtain from the Borrower payment of any principal of or interest onany Loan owing to it or payment of any other amount under this Agreement or any Note held by it orany other Financing Document or through the exercise of any right ofset-off, banker’s lien or counterclaim or similar right or otherwise (other than from theAdministrative Agent as provided in this Agreement), and, as a result of such payment, such Lendershall have received a greater percentage of the principal of or interest on the Loans or suchother amounts then due hereunder by the Borrower to such Lender than the percentage received byany other Lender, it shall promptly purchase from such other Lenders participations in (or, if andto the extent specified by such Lender, direct interests in) the Loans or such other amounts,respectively, owing to such other Lenders (or in interest due on such Loans or other amounts, asthe case may be) in such amounts, and make such other adjustments from time to time as shall beequitable, with the effect that all the Lenders shall share the benefit of such excess payment(net of any expenses which may be incurred by such Lender in obtaining or preserving such excesspayment) prorata in accordance with the unpaid principal of or interest on theLoans or such other amounts, respectively, owing to each of the Lenders; provided, that ifat the time of such payment the outstanding principal amount of the Loans shall not be held by theLenders prorata in accordance with their respective Loan Commitments in effect atthe time such Loans were made (by reason of a failure of a Lender to make a Loan hereunder in thecircumstances described in the last paragraph of Section 11.04), then such purchases ofparticipations or direct interests shall be made in such manner as will result, as nearly as ispracticable, in the outstanding principal amount of the Loans being held by the Lendersprorata according to the amounts of such Loan Commitments. To such end all theLenders shall make appropriate adjustments among themselves (by the resale of participations soldor otherwise) if such payment is rescinded or must otherwise be restored.          (c) The Borrower agrees that any Lender so purchasing such a participation (or directinterest) may exercise all rights of set-off, banker’s liens, counterclaims or similar rights withrespect to such participation as fully as if such Lender were a direct holder of Loans or otheramounts (as the case may be) owing to such Lender in the amount of such participation.          (d) Nothing contained in this Agreement shall require any Lender to exercise any such rightor shall affect the right of any Lender to exercise, and retain the benefits of exercising, anysuch right with respect to any other indebtedness or obligation of the Borrower. If, under anyapplicable bankruptcy, insolvency or other similar law, any
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Lender receives a secured claim inlieu of a set-off to which this Section 4.07 applies, such Lender shall, to the extentpracticable, exercise its rights in respect of such secured claim in a manner consistent with therights of the Lenders entitled under this Section 4.07 to share in the benefits of anyrecovery on such secured claim.**ARTICLE V****YIELD PROTECTION; ETC.**          5.01 Alternate Rate of Interest. If prior to the commencement of any Interest Periodwith respect to a making, Conversion or Continuation (for the purposes of this Section5.01, a “borrowing”) of Eurodollar Loans:          (a) the Administrative Agent reasonably determines that adequate and reasonable means do notexist for ascertaining the Adjusted LIBO Rate for such Interest Period; or          (b) the Administrative Agent is advised by the Majority Lenders that such Lenders havereasonably determined that the Adjusted LIBO Rate for that Interest Period will not adequately andfairly reflect the cost to those Lenders of making or maintaining their Loans included in suchborrowing for such Interest Period;then the Administrative Agent will give notice of those circumstances to the Borrower and theLenders by telephone or telecopy as promptly as practicable and, until the Administrative Agentnotifies the Borrower and the Lenders that the circumstances giving rise to that notice no longerexist (which notice of subsequent change in circumstances shall be given as promptly aspracticable), (A) any request by the Borrower that requests the Conversion of any Base Rate Loanto, or Continuation of any Eurodollar Loan as, a Eurodollar Loan shall be ineffective, (B) if anyrequest for a borrowing notices Eurodollar Loans, such borrowing will be made with Base Rate Loans,and (C) each Loan will automatically, on the last day of the then existing Interest Periodtherefor, Convert into a Base Rate Loan (or, if such Loan is then a Base Rate Loan, will Continueas a Base Rate Loan).          5.02 Increased Costs.          (a) If any Change in Law:               (i) imposes, modifies or deems applicable any reserve, special deposit or similar requirementagainst assets of, deposits with or for the account of, or credit extended by, any Lender (exceptany such reserve requirement reflected in the Adjusted LIBO Rate); and/or               (ii) imposes on any Lender or the London interbank market any other condition affecting thisAgreement or Eurodollar Loans made by such Lender;and the result of any of the foregoing is to increase the cost to such Lender of making ormaintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or toreduce the amount of any sum received or receivable by such Lender under any Financing
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Document, ineach case by an amount that such Lender reasonably deems to be material, then the Borrower shallpay to such Lender such additional amount or amounts as will compensate such Lender for theadditional costs incurred or reduction suffered (except to the extent the Borrower is excused frompayment pursuant to Section 5.05).          (b) If any Lender reasonably determines that any Change in Law regarding capital requirementshas or would have the effect of reducing the rate of return on such Lender’s capital or (withoutduplication) on the capital of its holding company, if any, as a consequence of this Agreement orthe Loans made by such Lender to a level below that which such Lender or its holding company couldhave achieved but for that Change in Law (taking into consideration such Lender’s and its holdingcompany’s policies with respect to capitaladequacy), in each case by an amount that such Lender reasonably deems to be material, thenfrom time to time the Borrower shall pay to such Lender such additional amount or amounts as willcompensate such Lender or (without duplication) its holding company for any such reductionsuffered (except to the extent the Borrower is excused from payment pursuant to Section5.05).          (c) To claim any amount under this Section 5.02, a Lender must deliver to theBorrower a certificate setting forth in reasonable detail the amount or amounts necessary tocompensate such Lender or its holding company, as the case may be, under Section 5.02(a)or Section 5.02(b). The Borrower shall pay such Lender the amount due and payable and setforth on any such certificate within thirty (30) days after its receipt.          (d) Failure or delay on the part of any Lender to demand compensation pursuant to thisSection 5.02 shall not constitute a waiver of such Lender’s right to demand thatcompensation; provided, that the Borrower shall not be required to compensate a Lenderpursuant to this Section 5.02 for any increased costs or reductions incurred more than onehundred eighty (180) days prior to the date on which such Lender notifies the Borrower of theChange in Law giving rise to those increased costs or reductions and of such Lender’s intention toclaim compensation for those circumstances; provided, further, that, if the Changein Law giving rise to those increased costs or reductions is retroactive, then the one hundredeighty (180) day period referred to above shall be extended to include that period of retroactiveeffect.          5.03 Break Funding Payments. In the event of (a) the payment of any principal of anyEurodollar Loan other than on the last day of the Interest Period for that Loan (including underSection 3.03 or Section 3.04 or as a result of an Event of Default), (b) theConversion of any Eurodollar Loan other than on the last day of its Interest Period, (c) thefailure to borrow, Convert, Continue or prepay any Loan on the date specified in any Notice ofBorrowing or Conversion or Continuation request or (d) the assignment of any Eurodollar Loan otherthan on the last day of its Interest Period as a result of a request by the Borrower pursuant toSection 5.05, then, in any such event, the Borrower shall compensate each Lender for theloss, cost and expense attributable to any such event. Such loss, cost or expense to any Lendershall be deemed to include an amount reasonably determined by such Lender to be the excess, if any,of (i) the amount of interest that would have accrued on the principal amount of such Loan had suchevent not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for theperiod from the date of such event to the last day of the then current Interest Period for suchLoan (or, in the case of a failure to borrow, Convert or Continue, for the period that
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would havebeen the Interest Period for such Loan) over (ii) the amount of interest that would accrue on suchprincipal amount for that period at the interest rate that such Lender would bid were it to bid, atthe commencement of that period, for Dollar deposits of a comparable amount and period from otherbanks in the eurodollar market. To claim any amount under this Section 5.03, the Lendermust deliver to the Borrower a certificate setting forth in reasonable detail any amount or amountsthat such Lender is entitled to receive pursuant to this Section 5.03 (includingcalculations, in reasonable detail, showing how such Lender computed such amount or amounts). TheBorrower shall pay such Lender the amount due and payable and set forth on any such certificatewithin thirty (30) days after its receipt.          5.04 Taxes.          (a) Any and all payments by or on account of any obligation of the Borrower to a Lender orthe Administrative Agent under this Agreement or any other Financing Document shall be made freeand clear of and without deduction for any Taxes, except to the minimum extent required by anyGovernment Rule; provided, that if the Borrower is required to deduct any IndemnifiedTaxes or Other Taxes from those payments, then (i) the sum payable shall be increased as necessaryso that after making all required deductions (including deductions applicable to additional sumspayable under this Section 5.04), the applicable Holder receives an amount equal to thesum it would have received had no such deductions been made, (ii) the Borrower shall make all suchdeductions and (iii) the Borrower shall pay the full amount deducted to the relevant TaxingAuthority in accordance with any applicable Government Rule.          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Taxing Authority inaccordance with any applicable Government Rule.          (c) The Borrower shall indemnify the Administrative Agent and each Lender, within thirty (30)days after the date the Administrative Agent or applicable Lender makes a written demand therefor,for the full amount of any Indemnified Taxes or Other Taxes paid by such Person on or with respectto any payment by or on account of any obligation of the Borrower (including Indemnified Taxes orOther Taxes imposed or asserted on or attributable to amounts payable under this Section5.04) and any penalties, interest and reasonable expenses arising from, or with respect to,those Indemnified Taxes or Other Taxes, whether or not those Indemnified Taxes or Other Taxes werecorrectly or legally imposed or asserted by the relevant Taxing Authority. To claim any amountunder this Section 5.04, the Administrative Agent or a Lender must deliver to the Borrowera certificate setting forth in reasonable detail the amount payable by the Borrower hereunder. Ifthe Administrative Agent or a Lender determines, in its sole discretion, that it has actuallyreceived a refund in respect of Indemnified Taxes, and such refund is attributable to anyIndemnified Taxes in respect of this Agreement that the Borrower has either paid on behalf of suchPerson or for which such Person was actually indemnified by the Borrower, (i) if the Borrower isnot currently in default under any provision of this Agreement or the other Financing Documents,the Administrative Agent shall promptly remit to the Borrower the amount of such refund and anyinterest paid by the relevant Government Authority, or (ii) if the Borrower is in default underany provision of this Agreement or the other Financing Documents, the Administrative Agent shall,in its sole
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discretion, apply such refund and any interest paid by the relevant GovernmentAuthority to the obligations owed by the Borrower under this Agreement.          (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by theBorrower to a Taxing Authority, the Borrower shall deliver to the Administrative Agent theoriginal or a certified copy of a receipt issued by such Taxing Authority evidencing such payment,a copy of the return reporting that payment or other evidence of such payment reasonablysatisfactory to the Administrative Agent.          (e) Each Holder that is not a U.S. Person as defined Section 7701(a)(30) of the Code (a“Non-U.S. Holder”) shall deliver to the Borrower two (2) copies of either IRS Form W-8BEN or FormW-8ECI, or in the case of a Non-U.S. Holder claiming exemption from the withholding of U.S.federal income Tax under Section 871(h) or 881(c) of the Code with respect to payments of“portfolio interest,” both a Form W-8BEN and a certificate representing that such Non-U.S. Holderis not (i) a “bank” for purposes of Section 881(c) of the Code, (ii) a ten-percent shareholder ofthe Borrower or any Person making a Guarantee (within the meaning of Section 871(h)(3)(B) of theCode) or (iii) a controlled foreign corporation related to either the Borrower or any Personmaking a Guarantee (within the meaning of Section 864(d)(4) of the Code), in all cases properlycompleted and duly executed by such Non-U.S. Holder claiming complete exemption or reduction ofwithholding of U.S. federal income Tax on interest paid by the Borrower under any FinancingDocument. Such documents shall be delivered by each Non-U.S. Holder at least five (5) BusinessDays before the date of the initial payment to be made under any Financing Document by theBorrower to such Non-U.S. Holder. In addition, each Non-U.S. Holder shall deliver such documentspromptly upon the Borrower’s written request, but only if such Non-U.S. Holder shall deliver islegally able to provide such documents. Each Non-U.S. Holder shall promptly notify the Borrowerat any time it determines that it is no longer in a position to provide any previously deliveredform or certificate to the borrower (or any other form of certification adopted by the U.S. TaxingAuthority for such purpose).          (f) Upon the Borrower’s reasonable request, any Holder that is a “United States person “ asdefined under Section 7701(a)(30) of the Code shall deliver to the Borrower two (2) copies of IRSForm W-9 (or applicable successor form) to establish that such Holder is entitled to receive allpayments from the Borrower under this Agreement free and clear from withholding of U.S. federalincome Tax.          (g) The Borrower shall not be required to pay any additional amounts pursuant to Section5.04(a) or to indemnify any Holder or the Administrative Agent pursuant to Section 5.04(c) to theextent that (i) the obligation to pay such additional amounts or indemnification would not havearisen but for a failure by the applicable Holder to comply with its obligations under Section5.04(e) or Section 5.04(f) (other than as a result of a Change in Law after the date such Holderbecomes a party to this Agreement); (ii) the obligation to withhold amounts with respect to U.S.federal income Taxes existed on the date such Holder became a party to this Agreement, except tothe extent that such Holder’s transferor or assignor was entitled, at the time of the transfer orassignment, to receive additional amounts from the Borrower with respect to such Taxes pursuant toSection 5.04(a) or 5.04(c); (iii) the designation of a successor lending office bysuch Holder has the effect of causing such Holder
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or the Borrower to be obligated for Tax paymentsin excess of those in effect immediately prior to such designation (other than any designationmade at the request of the Borrower); (iv) such Holder is claiming an exemption from withholdingof U.S. federal income Tax under Section 871(h) or 881(c) of the Code but is unable at any time tomake the representations and warranties set forth in clauses (i)-(iii) of Section 5.04(e) above.          (h) Any Holder entitled to receive any payment pursuant to the Section 5.04 shall usereasonable efforts (consistent with legal and regulator restrictions) to file any certificate ordocument reasonably requested by the Borrower, if the making of such filingwould avoid the need for, or reduce the amount of, any amounts payable by the Borrowerpursuant to this Section 5.04 and such Holder determines that it would not be materially adverselyaffected by filing such certificate or document.          5.05 Mitigation of Secured Obligations; Replacement of Lenders.          (a) If any Lender requests compensation under Section 5.02 or if the Borrower isrequired to pay any additional amount to any Lender or any Government Authority for the account ofany Lender pursuant to Section 5.04, then such Lender, if requested by the Borrower, willuse reasonable efforts to designate a different lending office for funding or booking its Loans orto assign its rights and obligations under the Financing Documents to another of its offices,branches or affiliates, if, in the reasonable judgment of such Lender, such designation orassignment (i) would eliminate or reduce amounts payable pursuant to Section 5.02 or5.04, as the case may be, in the future and (ii) would not subject such Lender to anyunreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. TheBorrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender inconnection with any such designation or assignment.          (b) If any Lender requests compensation under Section 5.02, if the Borrower isrequired to pay any additional amount to any Lender or any Government Authority for the account ofany Lender pursuant to Section 5.04, if Section 5.06 becomes applicable to anyLender or if any Lender defaults in its obligation to fund Loans, then the Borrower may, at itssole expense and effort, upon notice to such Lender and the Administrative Agent, require suchLender to assign and delegate, without recourse (in accordance with and subject to therestrictions, including required consents, contained in Section 11.06), all its interests,rights and obligations under this Agreement to an Assignee that assumes those obligations (whichAssignee may be another Lender); provided, that (i) such Lender receives payment of anamount equal to the Secured Obligations owing to it from the Assignee (to the extent of theoutstanding principal, accrued interest and fees included in those Secured Obligations) or theBorrower (in the case of all other amounts so included) and (ii) in the case of any suchassignment resulting from a claim for compensation under Section 5.02 or payments requiredto be made pursuant to Section 5.04, such assignment will result in a reduction in suchcompensation or payments. A Lender shall not be required to make any such assignment anddelegation if, as a result of a waiver by such Lender of its right under Section 5.02,5.04 or 5.06, as applicable, the circumstances entitling the Borrower to requiresuch assignment and delegation have ceased to apply. If a Lender refuses to be replaced pursuantto this Section 5.05 and Section 11.06(b), the Borrower shall not be obligated topay such Lender any of the compensation referred to in this Section 5.05 or any additionalamounts incurred or
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accrued under Article V from and after the date that would have beenreasonable for such replacement.          5.06 Illegality. In the event that it becomes unlawful or, by reason of a Change inLaw, any Lender is unable to honor its obligation to make or maintain Eurodollar Loans, then suchLender will promptly notify the Borrower of such event (with a copy to the Administrative Agent)andsuch Lender’s obligation to make or to Continue, or to Convert Loans of any other Type into,Eurodollar Loans shall be suspended until such time as such Lender may again make and maintainEurodollar Loans. During such period of suspension, the Loans that would otherwise be made by suchLender as Eurodollar Loans shall be made instead by such Lender as Base Rate Loans and each Loanmade by such Lender and outstanding will automatically, on the last day of the then existingInterest Period therefor if such Loan may lawfully remain outstanding until the end of suchInterest Period, and otherwise immediately, Convert into a Base Rate Loan (or, if such Loan is thena Base Rate Loan, will continue as a Base Rate Loan). Each Lender agrees to use reasonableefforts, including using reasonable efforts to designate a different lending office for funding orbooking its Loans or to assign its rights and obligations under the Financing Documents to anotherof its offices, branches or affiliates, if, in the reasonable judgment of such Lender, suchdesignation or assignment (a) would eliminate or avoid such illegality and (b) would not subjectsuch Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to suchLender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lenderin connection with any such designation or assignment; provided, that prior to incurringany such costs or expenses such Lender provides written notice to the Borrower setting forth inreasonable detail a good faith estimate of such costs and expenses.**ARTICLE VI****CONDITIONS PRECEDENT**          6.01 Conditions to Closing Date. The occurrence of the Closing Date is subject toreceipt by the Administrative Agent of each of the agreements and other documents, and thesatisfaction of the conditions precedent, set forth below, each of which shall be (i) in form andsubstance satisfactory to the Lenders in their sole discretion and (ii) if applicable, in fullforce and effect (unless, in each case, waived by each Lender):          (a) Financing Documents. Each Financing Document set forth on Schedule6.01(a) duly executed and delivered by the intended parties thereto with no Defaultthereunder.          (b) Material Project Documents. An original or certified copy of each MaterialProject Document set forth on Schedule 7.15, each duly executed and delivered by theintended parties thereto, as well as a certificate of an Authorized Officer of the Borrower datedthe Closing Date and certifying that:     (i) all conditions precedent to the obligations of each Material Project Partyunder the Material Project Documents have been satisfied or permanently waived inwriting, except for such conditions precedent that need not or cannot be satisfieduntil a later stage of Development;
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     (ii) such Material Project Documents and any subsequent amendments remain infull force and effect and no default or event of force majeure exists thereunder;     (iii) each Material Project Document shall have been executed by or assigned tothe Borrower; and     (iii) no material adverse change has occurred between the execution of suchMaterial Project Documents and the Closing Date.          (c) Corporate Documents. The following documents, each certified as indicated below:     (i) in the case of each Credit Party, a copy of such Person’s certificate ofincorporation or formation (as the case may be), together with by-laws, articles orother constitutive documents, together with any amendments thereto, certified by theSecretary of State of the Person’s state of organization as of a recent date;     (ii) a copy of a certificate dated as of a recent date as to the good standingof and payment of franchise Taxes by each Credit Party from the Secretary of Stateof such Person’s state of organization;     (iii) a certificate of an Authorized Officer of each Credit Party certifying:     (A) that (i) attached to such Person’s certificate is a true andcomplete copy of such Person’s certificate of incorporation or formation (asthe case may be) together with the by-laws, operating agreement or otherorganizational documents of such Person, as in effect on the date of suchcertificate, and (ii) such agreements and other organizational documentshave not been modified, rescinded or amended and are in full force andeffect;     (B) that attached to such certificate is a true and complete copy ofresolutions duly adopted by the authorized governing body of such Person,authorizing the execution, delivery and performance of such of theTransaction Documents to which such Person is or is intended to be a party,and that such resolutions have not been modified, rescinded or amended andare in full force and effect;     (C) that the constitutive documents of such Person have not beenamended since the date of the certification furnished pursuant toparagraph (c)(i) of this Section 6.01;     (D) as to the incumbency and specimen signature of each officer,member, shareholder or partner (as applicable) of such Person executing theTransaction Documents to which such Person is or is intended to be a partyand each other document to be delivered by such
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Person from time to timepursuant to the terms thereof (and the Administrative Agent and each Lendermay conclusively rely on such incumbency certification until it receivesnotice in writing from such Person); and     (E) as to the solvency of such Person;     (iv) a certificate of an Authorized Officer of the Project Sponsor certifyingthat through the date of such certification, the Project Sponsor has not referred toany other Credit Party as a division or an operating division thereof; and     (v) a certificate of an Authorized Officer of the Project Sponsor certifyingthat as of the Closing Date no Person, other than the Project Sponsor or anAffiliate which is a Wholly Owned Subsidiary or parent entity of such ProjectSponsor, shall have a direct or indirect equity interest in the Borrower.          (d) Project Development.     (i) Construction Budget and Schedules. The Construction Budget andSchedule, certified as such by an Authorized Officer of the Borrower and in form andsubstance satisfactory to the Independent Engineer.     (ii) Base Case Forecast. The Base Case Forecast, dated as of theClosing Date certified as such by an Authorized Officer of the Borrower, as agreedto with the Independent Engineer, and all related statements and reports.     (iii) Report and Bring-Down Certificate of the Independent Engineer.Recent reports of the Independent Engineer on the Project favorably reviewing (amongother matters reviewed at the request of the Administrative Agent or the Lenders):(A) the technical and economic feasibility of the Project and the environmentalcompliance (including a favorable review of the environmental compliance andenvironmental risks based on the Independent Environmental Consultant’s reports),permitting and other environmental risks relating to (1) the Project and (2) thereal Property owned or leased by the Borrower in connection with operation of theProject, (B) the reasonableness and consistency of the Construction Budget andSchedule for the Project, the Construction Contracts and the assumptions related tothe costs and operating performance of the Project, (C) the reasonableness,capability and capacity of the Borrower completing construction of the Project inaccordance with the Construction Budget and Schedule without the assistance of athird party design, build and construct contractor, (D) the reasonableness of theassumptions underlying the Base Case Forecast for the Project, (E) thereasonableness and consistency of the offtake agreements for the Project (if any atsuch time), (F) the appropriateness and completeness of the Government Approvalsobtained and (G) such other matters as the Administrative Agent may request. Inaddition, the Independent Engineer shall provide a bring-down certificate, dated theClosing Date, to the effect that no
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act, event or condition has occurred since thedate of each such report that adversely affects the information and conclusions setforth therein and entitling the Administrative Agent to rely upon the findings ofthe Independent Engineer as set forth in the report. The foregoing certificateshall be substantially in the formattached as Exhibit C-4 or otherwise in form and substance acceptableto the Administrative Agent.     (iv) Report and Bring-Down Certificate of the Independent EnvironmentalConsultant. An Environmental Site Assessment by the Independent EnvironmentalConsultant on the Project, dated no earlier than forty-five (45) days prior to theClosing Date, in form and substance satisfactory to the Administrative Agent and theLenders. In addition, the Independent Environmental Consultant shall provide abring-down certificate, dated the Closing Date, to the effect that no act, event orcondition has occurred since the date of such final Environmental Site Assessmentthat adversely affects the information and conclusions set forth in such reports andentitling the Administrative Agent to rely upon the findings of the IndependentEnvironmental Consultant as set forth in such report. The foregoing certificateshall be substantially in the form attached as Exhibit C-4 or otherwise inform and substance acceptable to the Administrative Agent.     (v) Report and Bring-Down Certificate of the Independent MarketConsultant. A recent report of the Independent Market Consultant, in form andsubstance satisfactory to the Administrative Agent and the Lenders providing aforecast of commodity prices, including Feedstock, Biodiesel and methanol prices,for the Project. In addition, the Independent Market Consultant shall provide abring-down certificate in respect of such report, dated the Closing Date, to theeffect that no act, event or condition has occurred since the date of the reportthat adversely affects the information and conclusions set forth therein andentitling the Administrative Agent to rely upon the findings of the IndependentMarket Consultant as set forth in the report. The foregoing certificate shall besubstantially in the form attached as Exhibit C-4 or otherwise in form andsubstance acceptable to the Administrative Agent.     (vi) Construction Report. A Construction Report in the formcontemplated in Section 8.19 and dated as of the Closing Date.     (vii) Permits. All material permits and Government Approvals necessaryfor the then-current stage of Development have been obtained and complied with andcontinue to be complied with in all material respects, are listed on Schedule7.05(a), and copies of such permits and Government Approvals have been deliveredto the Independent Engineer and the Independent Engineer shall have confirmedreceipt of such permits and Government Approvals.
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          (e) Filings, Registrations and Recordings; Fees and Taxes.     (i) Search Reports. Certified copies of Uniform Commercial CodeRequests for Information or Copies (Form UCC-11), or a similar search report, dateda date reasonably near to the Closing Date and searching the applicable centralfiling offices in the state of each Credit Party’s organization, listing alleffective financing statements which name any Credit Party (under theirrespective present names or any previous name) as a debtor, together withcopies of such financing statements that evidence (A) Liens to be terminated on orprior to the Closing Date or (B) Liens permitted to exist hereunder after theClosing Date.     (ii) Termination Statements. Appropriately completed copies, whichhave been duly authorized for filing by the appropriate Person, or which will, uponpayment of a specified amount, which amount shall be paid prior to or concurrentlywith the Closing Date, be authorized for filing by the appropriate Person, of eachUCC Financing Statement Amendment (Form UCC-3) termination statement, if any,necessary to release all Liens of any Person in any Collateral previously granted byany Credit Party to the extent not permitted under this Agreement after the ClosingDate (including (A) Liens granted in connection with all Indebtedness to berefinanced on the Closing Date and (B) other existing Liens which are not permittedhereunder after the Closing Date).     (iii) Lien Releases. Such releases, reconveyances, satisfactions orother instruments as the Administrative Agent may reasonably request to effect therelease, satisfaction and discharge in full of all mortgages or deeds of trust,Mechanic’s Liens or other Liens then encumbering all or a portion of the TrustEstate relating to the Project, duly executed, delivered and acknowledged inrecordable form by the grantee named therein or its of record successors or assigns.     (iv) Filings, Registrations and Recordings. UCC-1 financing statementsfiled under the Uniform Commercial Code with respect to each Credit Party, in therelevant jurisdictions listed on the attached Schedule 6.01(e) and any otherjurisdiction in which financing statements are necessary or, in the opinion of theAdministrative Agent, desirable to perfect the Liens created under the SecurityDocuments and copies of Uniform Commercial Code search reports and Tax lien,judgment and litigation search reports, if requested, with respect to each CreditParty, and all other instruments to be recorded or filed or delivered in connectionwith the Security Documents (including with respect to all credit supportinstruments issued in support of Project Documents, acknowledgments required toperfect such Liens and possession of such instruments and with respect toinstruments evidencing Indebtedness, possession of such instruments).     (v) Fees and Taxes. Evidence that all filing, recordation,subscription and inscription fees and all recording and other similar fees, and allrecording,
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stamp and other Taxes and other expenses related to such filings,registrations and recordings necessary for the consummation of the transactionscontemplated by this Agreement and the other Transaction Documents have been paid infull by or on behalf of the Credit Parties.          (f) Title Insurance. A binding marked commitment to issue a Title Policy for theProject Facility Site in an amount not less than $43,500,000 and in form, scope and substancereasonably satisfactory to the Administrative Agent, insuring the Lien in favor of theCollateral Agent for the benefit of the Secured Parties created by the Deed of Trust, subjectonly to those exceptions approved by the Collateral Agent and containing such endorsements andaffirmative insurance as the Collateral Agent shall reasonably require under applicable state law,and insuring that the Deed of Trust constitutes a valid first mortgage lien on the Trust Estate,free and clear of all Liens and title defects except Permitted Exceptions.          (g) Insurance.     (i) Insurance Policies. Certificates of insurance evidencing theexistence of all insurance required to be maintained by the Borrower pursuant toSection 8.05 and the designation of the Collateral Agent as the sole losspayee and additional insured, as the case may be, thereunder to the extent requiredby Section 8.05, such certificates to be in such form and contain suchinformation as is specified in Section 8.05, including one or morecertificates from Acceptable Insurance Brokers. In addition, the Borrower shallhave delivered a certificate of an Authorized Officer of the Borrower setting forththe insurance obtained by such Person in accordance with the requirements ofSection 8.05 and stating that such insurance (A) has been obtained and ineach case is in full force and effect, (B) that such insurance materially complieswith Section 8.05 and Schedule 8.05 and (C) that all premiums thendue and payable on all insurance required to be obtained by the Borrower have beenpaid.     (ii) Independent Insurance Consultant’s Report and Bring-DownCertificate. A recent report of the Independent Insurance Consultant for theProject, in form and substance satisfactory to the Administrative Agent.Additionally, the Independent Insurance Consultant shall provide a bring-downcertificate, dated the Closing Date, to the effect that no act, event or conditionhas occurred since the date of the report that adversely affects the information andconclusions set forth therein. The foregoing certificate shall be substantially inthe form attached as Exhibit C-4 or otherwise in form and substanceacceptable to the Administrative Agent.          (h) Opinions of Counsel. Opinions of counsel, each in form and substance reasonablysatisfactory to the Lenders.     (i) Opinion of New York Counsel to the Credit Parties. An opinion ofFulbright & Jaworski L.L.P., special New York counsel to the Credit Parties.
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     (ii) Opinions of Local Counsel to the Credit Parties. An opinion ofFulbright & Jaworski L.L.P., local counsel to the Credit Parties.          (i) Balance Sheet. Certified copy of a proforma consolidatedbalance sheet of the Borrower (on a consolidating and a consolidated basis) adjusted to giveeffect to the Fee Funding, prepared in accordance with applicable accounting principles.          (j) Repayment of Indebtedness. Simultaneous with the closing of the transactionscontemplated hereby, all of the Indebtedness of the Borrower, except PermittedIndebtedness and that listed on Schedule 6.01(k), shall have been indefeasibly repaidor discharged in full.          (k) Bank Regulatory Requirements. Documentation and other information required bybank regulatory authorities under applicable “know your customer” and anti-money laundering rulesand regulations, including, without limitation, the USA PATRIOT Act (Title III of Pub. L. 107-56(signed into law October 26, 2001)), including, without limitation, evidence consisting of thefollowing information (i) the Borrower’s full legal name, (ii) the Borrower’s address and mailingaddress, (iii) the Borrower’s W-9 forms including its tax identification number (if applicable),(iv) the Borrower’s certificate of formation, (v) a list of directors of the Borrower or list ofsuch persons controlling the Borrower, (vi) a list of the shareholders of the Borrower and (vii)an executed resolution or other such documentation stating who is authorized to open an accountfor the Borrower, in each case in form and substance reasonably satisfactory to the AdministrativeAgents, and such other information as may reasonably be requested by the Administrative Agent.          (l) Closing Fees; Expenses. Satisfactory arrangements for payment of all fees andexpenses due and payable and all reasonable costs and expenses, including pursuant to Sections2.05 and 11.03 and the Fee Letters, in each case required to be paid on or before theClosing Date.          (m) Absence of Defaults. No Default or Event of Default has occurred and iscontinuing, as certified to by the Borrower.          (n) Abandonment, Taking, Total Loss. (i) No Event of Abandonment or Event of TotalLoss shall have occurred and be continuing and (ii) no Event of Taking shall have occurred, ineach case as certified to by the Borrower.          6.02 Conditions to the First Project Funding. In addition to the conditions set forthin Sections 6.01, 6.03 and 6.04, the obligation of each Term Lender to makethe First Project Funding is subject to (1) there having been completed a due diligence review withrespect to the Project, and those documents not previously delivered pursuant to Section6.01, in each case in scope and with results satisfactory to the Lenders and (2) thesatisfaction of each of the conditions precedent set forth below, each of which shall besatisfactory to each Lender in its sole discretion, unless in each case waived by each Lender:          (a) Financing Documents. Each Financing Document set forth on Schedule6.02(a) or otherwise required by the Lenders, duly executed and delivered by the intendedparties thereto with no Default thereunder.
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          (b) Equity Contribution Amount. The Project Sponsor shall have irrevocablycontributed (or caused to be contributed) Equity to the Borrower in an amount equal to the EquityContribution Amount, and the cash component thereof shall have been deposited into the RevenueAccount.          (c) Material Project Documents. An original or certified copy of each MaterialProject Document listed on Part B of Schedule 7.15 or otherwise required by theLenders for the Project, in effect as of the First Project Funding Date, each duly executed anddelivered by the intended parties thereto, as well as a certificate (or a bring-down certificatewith respect to those Material Project Documents that have been previously delivered pursuant toSection 6.01(b)) of an Authorized Officer of the Borrower dated the date of such initialextension of credit and certifying that:     (i) all conditions precedent to the obligations of each applicable MaterialProject Party under the Material Project Documents have been satisfied orpermanently waived in writing, except for such conditions precedent that need notand cannot be satisfied until a later stage of Development;     (ii) such Material Project Documents and any subsequent amendments remain infull force and effect and no default or event of force majeure exists thereunder;and     (iii) no event or condition having a Material Adverse Effect has occurred andis continuing between the execution of such Material Project Documents and the dateof such initial extension of credit.          (d) Corporate Bring-Down Documents and filings. The following documents, eachcertified as indicated below:     (i) in the case of each Credit Party and Material Affiliated Project Party, acertificate or bring-down certificate, dated as of a recent date, as to the goodstanding of and payment of franchise taxes by such Credit Party or MaterialAffiliated Project Party from the Secretary of State of the Person’s state oforganization, and     (ii) a bring-down certificate by an Authorized Officer of each Credit Partywith respect to each of the certifications provided by such Credit Party inSection 6.01.     (iv) Filings, Registrations and Recordings. UCC-1 financing statementsfiled under the Uniform Commercial Code with respect to each Credit Party, in therelevant jurisdictions listed on the attached Schedule 6.02(d) and any otherjurisdiction in which financing statements are necessary or, in the opinion of theAdministrative Agent, desirable to perfect the Liens created under the SecurityDocuments and copies of Uniform Commercial Code search reports and Tax lien,judgment and litigation search reports, if requested, with respect to each CreditParty, and all other instruments to be recorded or filed or delivered in connectionwith the Security Documents (including with respect to all credit support
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instruments issued in support of Project Documents, acknowledgments required toperfect such Liens and possession of such instruments and with respect toinstruments evidencing Indebtedness, possession of such instruments).          (e) Independent Consultants’ Bring-Down Certificates. Each of the IndependentEngineer, Independent Environmental Consultant, Independent Market Consultant and IndependentInsurance Consultant shall provide a bring-down certificate, dated as of the date of the FirstProject Funding Date, to the effect that no act, event or condition has occurred since the date ofeach consultant’s report delivered pursuant to Section 6.01 that adversely affects theinformation and conclusions set forth therein. The foregoing certificate shall be substantiallyin the form attached as Exhibit C-4 or otherwise in form and substance acceptable to theAdministrative Agent.          (f) Permits. All material permits and Government Approvals necessary for thethen-current stage of Development have been obtained and complied with and continue to be compliedwith in all material respects, are listed on Schedule 7.05(b), and copies of such permitsand Government Approvals have been delivered to the Independent Engineer and the IndependentEngineer shall have confirmed receipt of such permits and Government Approvals.          (g) Survey. The Administrative Agent shall have received the Survey.          (h) Title Insurance. A Title Policy for the Project Facility Site in an amount notless than $43,500,000 and in form, scope and substance reasonably satisfactory to theAdministrative Agent, insuring the Lien in favor of the Collateral Agent for the benefit of theSecured Parties created by the Deed of Trust, subject only to those exceptions approved by theCollateral Agent and containing such endorsements and affirmative insurance as the CollateralAgent shall reasonably require under applicable state law, and insuring that the Deed of Trustconstitutes a valid first mortgage lien on the Trust Estate, free and clear of all Liens and titledefects except Permitted Exceptions.          (i) Title Insurance Fees. Evidence that the Borrower shall have paid (or shall payout of the proceeds of the Loans) the Title Company all of its then due and payable expenses andpremiums in connection with the issuance of the Title Policy and endorsements for the ProjectFacility Site, and in addition shall have paid to the Title Company any fees or Taxes, including,without limitation, any recording, mortgage, deed of trust, intangibles, transfer and stamp Taxespayable in connection with recording the Deed of Trust in the appropriate county or state landoffice(s).          (j) Insurance Policies. Certificates of insurance evidencing the existence of allinsurance required to be maintained by the Borrower pursuant to Section 8.05 and thedesignation of the Collateral Agent as the sole loss payee and additional insured, as the case maybe, thereunder to the extent required by Section 8.05, such certificates to be in suchform and contain such information as is specified in Section 8.05, including one or morecertificates from Acceptable Insurance Brokers. In addition, the Borrower shall have delivered acertificate of an Authorized Officer of the Borrower setting forth the insurance obtained by suchPerson in accordance with the requirements of Section 8.05 and stating that such
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insurance(A) has been obtained and in each case is in full force and effect, (B) that such insurancematerially complies with Section 8.05 and Schedule 8.05 and (C) that all premiumsthen due and payable on all insurance required to be obtained by the Borrower have been paid.          (k) Opinions of Counsel. Opinions of counsel, each in form and substance reasonablysatisfactory to the Lenders.     (i) Opinion of New York Counsel to the Credit Parties. An opinion ofFulbright & Jaworski L.L.P., special New York counsel to the Credit Parties.     (ii) Opinions of Local Counsel to the Credit Parties. An opinion ofFulbright & Jaworski L.L.P., local counsel to the Credit Parties.     (iii) Opinion of Counsel to Certain Material Project Parties. Asrequired by the Lenders, opinions of counsel to certain Material Project Parties inrespect of each Material Project Document to which it is a party.          (l) Accounts Established. Evidence of the establishment of the Accounts (as suchterm is defined in the Collateral Agency Agreement) and creation of cash management systemsconsistent with the Collateral Accounts and acceptable to the Administrative Agent.          (m) Confidential Information Memorandum. A certificate of an Authorized Officer ofthe Borrower certifying that the Confidential Information Memorandum is true, complete, andaccurate in all material respects, as of the date thereof, including the reasonableness of theunderlying assumptions upon which the financial projections contained therein are based.          (n) Commodity Hedging Plans. The Commodity Hedging Plan, attached to a certificate ofan Authorized Officer of the Borrower certifying that the Commodity Hedging Plan is true,complete, and accurate in all material respects as of the date thereof.          (o) Lien Subordinations. Administrative Agent shall have received subordinationagreements, in form and substance satisfactory to Administrative Agent, from all Contractors andSubcontractors performing or to perform work or services at the Project Facility Site, in whichsuch Persons, among other things, subordinate all rights to Mechanics’ Liens or other Liens to theLiens of the Secured Parties.          (p) Notice Provisions, Appendices, Schedules and Exhibits. The notice provisions,Appendices, Schedules and Exhibits to all Financing Documents shall have been updated to thereasonable satisfaction of the Administrative Agent to reflect all applicable changes since theClosing Date, including, without limitation, changes in relation to additional or amendedTransaction Documents, establishment of the Accounts, wiring instructions, and the appointment ofthe Depositary.          6.03 Conditions to All Term Loan Fundings (except the Fee Funding). In addition tothe conditions set forth in Section 6.04, the obligation of each Term Lender to makeextensions of credit under the Term Loan Commitments (except for the Fee Funding) is subject to thesatisfaction of each of the conditions precedent set forth below, each of which shall be in
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formand substance satisfactory to the Administrative Agent, unless in each case waived by theAdministrative Agent with the consent of the Majority Lenders:          (a) Payment of Project Costs. The amount of each Term Loan Borrowing requested bythe Borrower on the date of the Loan Borrowing Certificate shall not exceed the Project Costsattributable to the Development, due and to be paid on or prior to the date of such certificate orreasonably expected to be due or incurred (i) in respect of all Term Loan Borrowings except aFinal Term Loan Borrowing, within the next forty-five (45) days succeeding the date of suchcertificate or (ii) in respect of a Final Term Loan Borrowing, within the period until FinalCompletion, and also including the Conversion Restricted Payment (each of (i) and (ii) withoutduplication of any other Term Loan Borrowing previously made in respect of such Development);provided, that (x) no cost overruns shall have occurred and be continuing which couldreasonably be expected to result in Project Costs in excess of funds available to pay such ProjectCosts, (y) the loan proceeds to be disbursed shall be reduced in accordance with the proviso toparagraph (c) below and (z) in respect of the cash retainage under the ConstructionContracts, the Borrower shall have the right to request a Term Loan Borrowing for such Developmentto release such cash retainage in the manner contemplated in such Construction Contracts if theconditions therefor under the Construction Contracts have been approved in writing by theIndependent Engineer.          (b) Evidence of Project Costs. If requested by the Administrative Agent, theAdministrative Agent and the Independent Engineer shall have received (i) a copy of all monthlyinvoices issued under any Construction Contract and invoices and related documentation inconnection with any other Project Costs which the Borrower intends to pay with such Term Loan and(ii) projections of invoices expected to be received (A) in respect of all Term Loan Borrowingsexcept the Final Term Loan Borrowing, within forty-five (45) days after the date of the applicableLoan Borrowing Certificate or (B) in respect of the Final Term Loan Borrowing, within the periodfrom the date of the applicable Loan Borrowing Certificate until Final Completion under anyConstruction Contract and projections, invoices and related documentation in connection with anyother Project Costs which the Borrower intends to pay with such Term Loan, in each case not lessthan five (5) Business Days prior to the date of the Notice of Borrowing, as applicable, asevidence of the Project Costs related to the applicable Loan Borrowing Certificate;provided, that the Borrower shall (x) submit evidence, satisfactory to the AdministrativeAgent and certified by the Independent Engineer, demonstrating that all amounts borrowed pursuantto the preceding Loan Borrowing Certificate were used to pay Project Costs, (y) certify that TermLoan Borrowings made pursuant to the preceding Loan Borrowing Certificate, as applicable, and allequity not yet expended as previously projected shall be expended during the next forty-five (45)days, as certified by the Independent Engineer or (z) reduce the amount of the Term Loansrequested pursuant to the current Notice of Borrowing, as applicable, in an amount equal to theTerm Loan proceeds and equity not previously expended and not contemplated to be spent pursuant toclause (y) above; provided, that in no event shall the Borrowing be reduced below$1,000,000.          (c) Substantial Completion and Final Completion Schedules. The Administrative Agentshall have received certification by the Borrower that in the case of Term Loans requested inconnection with the Project, the Project is reasonably expected to achieve
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Final Completion by theProjected Final Completion Date (which date shall fall on or before the Date Certain) and thatsufficient funds exist in order to achieve Final Completion.          (d) Independent Engineer’s Certificate. The Administrative Agent shall have receiveda report of the Independent Engineer dated as of the date of the Notice of Borrowing satisfactoryto the Administrative Agent, as to (i) the progress of construction of the Project in accordancewith the Construction Budget and Schedule, (ii) the current utilization of previous Borrowingswith respect to the Project, (iii) the existence of sufficient funds needed to achieve FinalCompletion, and (iv) the funds to be drawn are to be used for approved project costs consistentwith the terms of the applicable Financing Documents. The Independent Engineer’s report shallcontain, at a minimum, a certificate of the Independent Engineer substantially in the form ofExhibit C-3, or in such other form as is acceptable to the Administrative Agent.          (e) Construction Report. The Administrative Agent shall have received (i) the mostrecent monthly Construction Report contemplated by Section 8.19, and (ii) the certificateof an Authorized Officer of the Borrower, both in the form contemplated in Section 8.19and dated within fifteen (15) days prior to the proposed borrowing date.          (f) Lien Waivers. The Administrative Agent shall have received (A) lien waiversexecuted by Construction Contractors and (B) evidence that the Construction Contractors and/or theBorrower have received lien waivers from all of their Subcontractors, which lien waivers obtainedpursuant to clauses (A) and (B) shall be reasonably satisfactory to theAdministrative Agent and shall cover all labor, materials (including equipment and fixtures of allkinds), supplies or services done, performed or furnished at, for or to the Project by theapplicable Construction Contractors as of a date falling no more than fifteen (15) days prior tothe date of the requested Borrowing.          (g) Permits. All material permits and Government Approvals necessary for thethen-current stage of the Development have been obtained and complied with and continue to becomplied with in all material respects, and copies of such permits and Government Approvals havebeen delivered to the Independent Engineer and the Independent Engineer shall have confirmedreceipt of such permits and Government Approvals.          (h) Endorsement to Title Policy. A down date endorsement to the Title Policy for theProject with respect to which funds are being requested to the date of such extension of credit inthe form reasonably approved by the Administrative Agent conforming to the pending disbursementrequirements set forth in Exhibit L and setting forth no additional exceptions (includingwithout limitation Survey exceptions) except Permitted Liens and those approved by theAdministrative Agent, including evidence of payment to the Title Company of such endorsement andany fees and/or Taxes payable in connection therewith.          6.04 Conditions to all Fundings of Loans. The obligation of each Lender to make Loans issubject to the satisfaction on the date of such extension of credit of the conditions precedent setforth below in form and substance satisfactory to the Administrative Agent, unless in each casewaived by the Administrative Agent with the consent of the Majority Lenders:
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          (a) Loan Borrowing Certificate. With respect to a Borrowing, the AdministrativeAgent and the Independent Engineer shall have received at least five Business Days prior to thedate of a Notice of Borrowing, a Loan Borrowing Certificate, dated as of the date of the proposedBorrowing, which shall be substantially in the form of the attached Exhibit B-1(a) or(b), as applicable. The Loan Borrowing Certificate shall certify that each of therepresentations and warranties of the Borrower contained in Article VII is (i) if suchrepresentation and warranty is qualified as to materiality or by reference to the existence of aMaterial Adverse Effect, true and complete to the extent of such qualification on and as of thedate of such extension of credit (both immediately prior to such extension of credit and alsoafter giving effect to such extension of credit and to the intended use of such extension ofcredit) as if made on and as of such date (or, if stated to have been made solely as of an earlierdate, as of such earlier date) or (ii) if such representation and warranty is not so qualified,true and complete in all material respects on and as of the date of such extension of credit (bothimmediately prior to such extension of credit and also after giving effect to such extension ofcredit and to the intended use of such extension of credit) as if made on and as of such date (or,if stated to have been made solely as of an earlier date, as of such earlier date).          (b) Notice of Borrowing. The Administrative Agent shall have received from theBorrower a Notice of Borrowing conforming to the requirements of Section 2.03.          (c) Payment of Fees. Payment of all or any portion of such fees and expenses thendue and payable by the Borrower under this Agreement, including pursuant to Sections 2.05and 11.03, and the Fee Letters.          (d) Material Adverse Effect. Since the Closing Date, no Material Adverse Effect hasoccurred and is continuing, as certified by the Borrower.          (e) Absence of Defaults. No Default or Event of Default has occurred and iscontinuing or will have occurred after giving effect to the Borrowing or Letter of Credit issuanceamendment, renewal or extension contemplated on such date, as certified to by the Borrower.          (f) Abandonment, Taking, Total Loss. (i) No Event of Abandonment or Event of TotalLoss shall have occurred and be continuing with respect to the Project for which a funding isbeing requested and (ii) no Event of Taking with respect to a material part of the Project withrespect to which any funding is being requested shall have occurred, in each case as certified toby the Borrower.          (g) Aggregate Value. With respect to the funding of Working Capital Loans, theaggregate amount of Working Capital Exposure, after giving effect to the requested Borrowing,shall not exceed 85% of the aggregate value of receivables, 85% of the aggregate value ofinventory and supplies and 100% of the cash of the Borrower on hand as of the date of suchBorrowing, as determined by the Borrower in accordance with GAAP.
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          6.05 Conditions Precedent to the Conversion Date. In addition to the conditions setforth in Section 6.04, the occurrence of the Conversion Date and the obligation of the TermLenders to make the final Term Loans on the Conversion Date are subject to the satisfaction on suchdate of the conditions precedent set forth below in form and substance reasonably satisfactory tothe Administrative Agent, unless in each case waived by the Administrative Agent with the consentof the Majority Lenders:          (a) Material Project Documents. An original or certified copy of each MaterialProject Document listed on Part C of Schedule 7.15 or otherwise required by theLenders for the Project, in effect as of the Conversion Date, each duly executed and delivered bythe intended parties thereto, as well as a certificate (or a bring-down certificate with respectto those Material Project Documents that have been previously delivered pursuant to Section6.01(b) and 6.02(c)) of an Authorized Officer of the Borrower dated the date of such initialextension of credit and certifying that:     (i) all conditions precedent to the obligations of each applicable MaterialProject Party under the Material Project Documents have been satisfied orpermanently waived in writing, except for such conditions precedent that need notand cannot be satisfied until a later stage of Development;     (ii) such Material Project Documents and any subsequent amendments remain infull force and effect and no default or event of force majeure exists thereunder;and     (iii) no event or condition having a Material Adverse Effect has occurred andis continuing between the execution of such Material Project Documents and the dateof such initial extension of credit.          (b) Final Completion. Final Completion, as certified by the Independent Engineer andthe Borrower, has been achieved.          (c) Payment and Evidence of Project Costs. With respect to the Development, theamount of the final Term Loan requested by the Borrower on the date of the final Loan BorrowingCertificate for such Development shall not exceed the sum of:               (i) Project Costs which are due and to be paid on or prior to the date of such certificate andwhich are reasonably expected to be due or incurred within the next forty-five (45) days succeedingthe date of such certification (without duplication of any other Loan Borrowing Certificate);               (ii) Project Costs which are reasonably projected to be incurred for punch list items (asapproved by the Independent Engineer) and payment retainage and disputed payments pursuant to theConstruction Contracts contemplated in the Construction Budget and Schedule;               (iii) the Required Debt Service Reserve Amount (to the extent not funded in cash); and
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               (iv) an amount, if any, which may be borrowed so that after giving effect to the aggregatefinal Term Loan Borrowing, the condition specified in paragraph (e) of this Section6.05 shall have been satisfied.In respect of Project Costs due and to be paid within the next forty-five (45) days succeeding thedate of such final Loan Borrowing Certificate, the Administrative Agent and the IndependentEngineer shall have received a copy of all monthly invoices issued under any Construction Contractand invoices and related documentation in connection with any other Project Costs which theBorrower intends to pay with such final Term Loan; provided, that the Borrower shall (x)submit evidence, satisfactory to the Administrative Agent and certified by the IndependentEngineer, demonstrating that all amounts borrowed pursuant to the preceding Loan BorrowingCertificate were used to pay Project Costs, and (y) certify that Loan proceeds borrowed pursuant tothe preceding Loan Borrowing Certificate and not yet expended as previously projected shall beexpended during the next forty-five (45) days, as certified by the Independent Engineer. Inrespect of punch list items, the Administrative Agent and the Independent Engineer shall havereceived certification from the Borrower that the projections of punch list items expected to bepaid with such final Loan shall be in accordance with the Construction Budget and Schedule. Inrespect of payment retainage specified in the Construction Contracts and any payment dispute inconnection with such Contracts, the Administrative Agent and the Independent Engineer shall havereceived copies of documentation and such documentation shall have been confirmed by theIndependent Engineer prior to payment of such retainage.          (d) Lien Waivers. The Administrative Agent shall have received (i) final lienwaivers executed by the Construction Contractors and (ii) evidence that the ConstructionContractors and the Borrower have received final lien waivers from all of their Subcontractors,which lien waivers shall be satisfactory to the Administrative Agent and shall cover all labor,materials (including equipment and fixtures of all kinds), supplies or services done, performed orfurnished at, for or to the Project by the applicable Construction Contractors as of fifteen (15)days prior to the date of the requested Borrowing.          (e) Debt Service Reserve Account. The Required Debt Service Reserve Amount shallhave been, or shall concurrently be, deposited in the Debt Service Reserve Account.          (f) Insurance. All required insurance for the Project shall be in full force andeffect, as certified by the Independent Insurance Consultant, and certificates of insurance withrespect to the insurance policies required by Section 8.05, together with evidence of thepayment or non-arrears of all premiums therefor, shall have been delivered.          (g) Final Survey. Final executed versions of the Survey for the Project FacilitySite reflecting the “as-built” condition of the Project, in form and substance reasonablysatisfactory to each Lender and satisfactory to the Title Insurance Company, dated no earlier thanthirty (30) days prior to the Conversion Date and showing no encroachment or encumbrance otherthan those consented to in writing by the Lenders and showing compliance with all setbackrequirements.
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          (h) Title Insurance. The Administrative Agent shall have received a T-19 endorsementproviding for specific coverage with respect to any improvements to the Trust Estate and a datedown endorsement to the Title Policy for the Project indicating that there has been no change inthe state of title to any of the Trust Estate, which endorsement shall have the effect of updatingthe date of the Title Policy for the Project as of the Conversion Date and deleting: (i) anyexception in connection with pending disbursements, (ii) any exception with respect to mechanics’and materialmen’s liens and (iii) any exception with respect to survey matters with respect to theProject covered by such Title Policy.          (i) Permits and Government Approvals. All material permits and Government Approvals(other than non-material Authorizations consistent with the current stage of the development ofthe Project that are of a routine nature and are reasonably expected to be obtained in theordinary course of business without material expense or delay and without any additionalconditions or requirements) necessary for the operation of the Project have been obtained andcomplied with and continue to be complied with in all material respects, and copies of suchpermits and Government Approvals shall have been delivered to the Independent Engineer and theIndependent Engineer shall have confirmed receipt of such permits and Government Approvals.          (j) Material Adverse Effect. Since the Closing Date, no Material Adverse Effect hasoccurred and is continuing, as certified by the Borrower.          (k) Absence of Defaults. No Default or Event of Default has occurred and iscontinuing or will have occurred after giving effect to the Borrowing contemplated on such date,as certified by the Borrower.          (l) Abandonment, Taking, Total Loss. (i) No Event of Abandonment or Event of TotalLoss shall have occurred and be continuing with respect to the Project for which a funding isbeing requested and (ii) no Event of Taking with respect to a material part of the Project withrespect to which any funding is being requested shall have occurred, in each case as certified toby the Borrower.**ARTICLE VII****REPRESENTATIONS AND WARRANTIES.**          The Borrower represents and warrants to the Lenders that:          7.01 Existence. It is a limited liability company, limited partnership or acorporation (as applicable) duly formed, validly existing and in good standing under the laws ofthe State of its formation and is duly qualified to do business as a foreign corporation in allother places where necessary in light of the business it conducts or intends to conduct and theProperty it owns or intends to own in light of the transactions contemplated by the TransactionDocuments, except for where the failure to be so qualified could not reasonably be expected to havea Material Adverse Effect. The Borrower shall duly register as a foreign corporation in any stateit intends to do business other than its state of qualification. The Borrower shall maintain acurrent address for notices in all states in which it does business or is qualified to do business.
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No filing, recording, publishing or other act by the Borrower that has not been made or done is necessary inconnection with its existence or good standing of the Borrower.          7.02 Financial Condition. The financial statements of the Borrower furnished to theAdministrative Agent pursuant to Section 8.01 (as applicable), are in each case true,complete and correct and fairly present in all material respects the financial condition of theBorrower (on a consolidating and a consolidated basis) as of the date thereof, all in accordancewith GAAP (subject to normal year-end adjustments). As of such date of such financial statements,the Borrower has no material contingent liabilities, liabilities for Taxes, unusual forward orlong-term commitments or unrealized or anticipated losses from any unfavorable commitments whichare required by GAAP to be disclosed in the foregoing financial statements, except as referred toor reflected or provided for in such financial statements or as arising solely from the executionand delivery of the Transaction Documents (as set forth on Schedules 6.01(a) and7.15 and Section 7.15 below). There has been no material adverse change in thefinancial condition, operations or business of the Borrower from that set forth in such financialstatements as of the date thereof.          7.03 Action. It has full power, authority and legal right to execute and deliver, andto perform its obligations under, the Transaction Documents to which it is or is intended to be aparty. The execution, delivery and performance by the Borrower of each of the TransactionDocuments to which it is or is intended to be a party have been duly authorized by all necessaryaction on the part of the Borrower, as applicable. Except for any Project Documents that are notrequired to be entered into pursuant to this Agreement as of the date of the making of thisrepresentation, each of the Transaction Documents to which the Borrower is a party has been dulyexecuted and delivered by the Borrower and is in full force and effect and constitutes the legal,valid and binding obligation of the Borrower, enforceable against the Borrower in accordance withits terms, except as limited by general principles of equity and bankruptcy, insolvency and similarlaws.          7.04 No Breach. The execution, delivery and performance by the Borrower of each ofthe Transaction Documents to which it is or is intended to be a party do not and will not: (a)require any consent or approval of any Person that has not been obtained and remains in full forceand effect (other than Government Approvals that are not required to be obtained for the thenrelevant stage of the Development), (b) violate any provision of any Government Rule or GovernmentApproval applicable to the Borrower or the Project, (c) violate, result in a breach of orconstitute a default under any Transaction Document (other than this Agreement) to which theBorrower is a party or by which it or its Property may be bound or affected or (d) result in, orcreate any Lien (other than a Permitted Lien) upon or with respect to any of the Properties nowowned or hereafter acquired by the Borrower, except, in the case of clauses (b) and(c) above, where any such violation, breach or default could not reasonably be expected tohave a Material Adverse Effect, with respect to the Project.          7.05 Government Approvals; Government Rules.          (a) All material Government Approvals for the Project that have been obtained by the Borroweror for the benefit of the Project by third parties as of the Closing Date are set forth onSchedule 7.05(a). Except as otherwise noted on Schedule 7.05(a), all
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Government Approvals set forth on Schedule 7.05(a) have been duly obtained, were validly issued, arein full force and effect, and are not the subject of any pending appeal and all applicable appealperiods have expired (except Government Approvals which do not have limits on appeal periods underGovernment Rules or appeals which could not reasonably be expected to have a Material AdverseEffect, with respect to the Project), are held in the name of the Borrower or such third party asindicated on such Schedule 7.05(a) and are free from conditions or requirements which (i)could reasonably be expected to have a Material Adverse Effect, with respect to the Project or(ii) the Borrower does not reasonably expect such third party (as applicable) to be able tosatisfy on or prior to the commencement of the relevant stage of Development, except to the extentthat a failure to so satisfy such condition or requirement could not reasonably be expected tohave a Material Adverse Effect, with respect to the Project. No Material Adverse Effect, withrespect to the Project could reasonably be expected to result from any such Government Approvalsbeing held by or in the name of Persons other than the Borrower.          (b) All material Government Approvals not obtained as of the Closing Date but necessary forthe Development to be obtained by the Borrower for the benefit of the Project by third partiesafter the Closing Date and prior to the First Project Funding Date are set forth on Schedule7.05(b). No Material Adverse Effect, with respect to the Project could reasonably be expectedto result from any such Government Approvals being obtained in the name of Persons other than theBorrower.          (c) As of any date after the Closing Date on which this representation and warranty is madeor deemed made, all material Government Approvals required to be held by the Borrower or the thirdparty indicated on Schedule 7.05(b) for the then current stage of Development (asidentified by the dates on Schedule 7.05(b) for which such Government Approvals arereasonably projected to be required), have been duly obtained and validly issued, are in fullforce and effect, are not the subject of any pending or threatened appeal (except appeals whichcould not reasonably be expected to have a Material Adverse Effect, with respect to the Project),are held in the name of the Borrower or such third party and are free from conditions orrequirements which (i) could reasonably be expected to have a Material Adverse Effect, withrespect to the Project or (ii) the Borrower does not reasonably expect it or such third party (asapplicable) to be able to satisfy on or prior to the commencement of the relevant stage ofDevelopment, except to the extent that a failure to so satisfy such condition or requirement couldnot reasonably be expected to have a Material Adverse Effect, with respect to the Project.          (d) All material Government Approvals not obtained as of the First Project Funding Date butnecessary for the Development to be obtained by the Borrower for the benefit of the Project bythird parties after the Closing Date are set forth on Schedule 7.05(d). No Material Adverse Effect, with respect to the Project could reasonably be expected toresult from any such Government Approvals being obtained in the name of Persons other than theBorrower.          (e) As of any date after First Project Funding Date on which this representation and warrantyis made or deemed made, all material Government Approvals required to be held by the Borrower orthe third party indicated on Schedule 7.05(d) for the
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then current stage of Development (as identified by the dates on Schedule 7.05(d) for which such Government Approvals arereasonably projected to be required), have been duly obtained and validly issued, are in fullforce and effect, are not the subject of any pending or threatened appeal (except appeals whichcould not reasonably be expected to have a Material Adverse Effect, with respect to the Project),are held in the name of the Borrower or such third party and are free from conditions orrequirements which (i) could reasonably be expected to have a Material Adverse Effect, withrespect to the Project or (ii) the Borrower does not reasonably expect it or such third party (asapplicable) to be able to satisfy on or prior to the commencement of the relevant stage ofDevelopment, except to the extent that a failure to so satisfy such condition or requirement couldnot reasonably be expected to have a Material Adverse Effect, with respect to the Project.          (f) The Borrower has no reason to believe that any material Government Approvals which havenot been obtained by it or the relevant third party as of the Closing Date, but which shall berequired to be obtained in the future by the Borrower or such third party for the Development,shall not be obtained in due course on or prior to the commencement of the appropriate stage ofDevelopment for which such Government Approval would be required or shall contain any condition orrequirements, the compliance with which could reasonably be expected to result in a MaterialAdverse Effect with respect to the Project or which the Borrower does not expect the Borrower orthe relevant third party (as the case may be) to satisfy on or prior to the commencement of theappropriate stage of Development, except to the extent that a failure to so satisfy such conditionor requirement could not reasonably be expected to have a Material Adverse Effect, with respect tothe Project. The Project, if constructed in accordance with the Construction Budget and Schedule,and otherwise Developed as contemplated by the Material Project Documents, will conform to andcomply with all covenants, conditions, restrictions and reservations in the applicable GovernmentApprovals and all applicable Government Rules, except to the extent that a failure to so conformor comply could not reasonably be expected to have a Material Adverse Effect, with respect to theProject.          (g) The Borrower is not in violation of, or in non-compliance with, any Government Rule orGovernment Approval the violation of or the non-compliance with which could reasonably be expectedto result in a Material Adverse Effect, with respect to the Project.          7.06 Proceedings. There is (a) no action, suit or proceeding at law or in equity orby or before any Government Authority or arbitral tribunal now pending or, to the Borrower’sKnowledge, threatened against it or the Project or with respect to any Material Project Document orGovernment Approval related to the Project and (b) no existing default by the Borrower underany applicable order, writ, injunction or decree of any Government Authority or arbitraltribunal, which in the case of clause (a) or (b) could reasonably be expected tohave a Material Adverse Effect, with respect to the Project.          7.07 Environmental Matters. Except as otherwise specified on Schedule 7.07 tothis Agreement:          (a) The operations of the Project and the Borrower comply with all applicable EnvironmentalLaws and Government Approvals required for the Project or the Borrower and to
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Borrower’s Knowledge, the prior operations of the Project and the Borrower have been conducted in compliance withapplicable Environmental Laws or Government Approvals required for the Project under any applicableEnvironmental Laws, except for any such non compliance or violation that, individually or in theaggregate, could not reasonably be expected to have a Material Adverse Effect with respect to theProject.          (b) The Project has obtained and maintains in full force and effect all Government Approvalsrequired under Environmental Laws for the operations of the Project and occupancy of the ProjectFacility Site, including all environmental credits, benefits, offsets and allowances under anyapplicable emission budget programs or any other state, regional or federal emission tradingprogram, and there are no pending or to the Borrower’s Knowledge, threatened, actions to challenge,revoke, cancel, terminate, limit or modify any such Government Approvals, except for any failure toobtain or maintain in full force and effect or actions to challenge, revoke, cancel, terminate,limit or modify that, individually or in the aggregate, could not reasonably be expected to have aMaterial Adverse Effect with respect to the Project.          (c) There are no facts, circumstances, conditions or occurrences regarding the present, or toBorrower’s Knowledge, past operations or conditions of the Project or any Environmental Party orany Project Facility Site that reasonably could (i) cause the Project, the Borrower or any otherEnvironmental Party to be subject to any material liability or material investigatory, correctiveor remedial obligation under any Environmental Law, or (ii) give rise to any restrictions arisingunder any Environmental Law that would could materially hinder or restrict the Borrower or anyother Person from occupying or operating the Project as intended under the Material ProjectDocuments (excluding restrictions on the transferability of Government Approvals upon the transferof ownership of assets subject to such Government Approval).          (d) There are (i) no past Environmental Claims, (ii) no pending Environmental Claims, and(iii) to the Borrower’s Knowledge, no threatened Environmental Claims, in each case against theProject, the Borrower or any other Environmental Party and arising with respect to the Project,that, individually or in the aggregate, could reasonably be expected to have a Material AdverseEffect with respect to the Project.          (e) To the Borrower’s Knowledge, no Hazardous Materials have at any time been Released at, on,under or from the Project or the Project Facility Site except in compliance with applicableEnvironmental Laws or Governmental Approvals, other than such non-compliances that, individually or in the aggregate, could reasonably be expected to have aMaterial Adverse Effect with respect to the Project.          (f) Neither the Borrower nor, to the Borrower’s Knowledge, any other Environmental Party, hastransported or arranged for the transportation or disposal of Hazardous Materials (i) in a mannerthat could give rise to a material Environmental Claim, or (ii) from the Project to any locationwhich is listed, or formally proposed for listing, on the NPL or on any similar state or local listof sites requiring investigation or remediation.          (g) There have been no material environmental investigations, studies, audits, reviews orother analyses relating to environmental site conditions that have been conducted by,
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or which are in the possession of, the Borrower in relation to the Project or the Project Facility Site, whichhave not been provided to the Administrative Agent and the Lenders.          7.08 Taxes. The Borrower has timely filed or caused to be filed all Tax returns andreports required to have been filed (or has obtained a lawful extension of the deadline therefor),and, as of the Closing Date and as of the date of each initial extension of credit under each TermLoan, the Borrower has paid and discharged all Taxes imposed on or payable by it (other than Taxesbeing Contested), including, but not limited to, Taxes on income or profits or on any of theBorrower’s Property and Taxes required to be withheld and paid with respect to payments orallocations to employees, independent contractors, equity holders or otherwise, other than anyfailure to file or pay Taxes which, individually or in the aggregate would not have a MaterialAdverse Effect. There are no Liens for Taxes on any asset of the Borrower other than any PermittedLiens. The Borrower is not liable for Taxes of any other Person, whether by contract, by operationof law (including as a successor) or otherwise.          7.09 Tax Status. For federal income Tax purposes, the Borrower is classified as acorporation. Neither the execution and delivery of this Agreement or the other TransactionDocuments nor the consummation of any of the transactions contemplated hereby or thereby shallaffect such status.          7.10 ERISA; ERISA Event; Labor Relations.          (a) Except as set forth on Schedule 7.10, neither the Borrower nor any ERISAAffiliate sponsors, maintains, administers, contributes to, participates in, or has any obligationto contribute to, or any liability under, any Plan or Multiemployer Plan nor has the Borrower orany ERISA Affiliate established, sponsored, maintained, administered, contributed to, participatedin, or had any obligation to contribute to or liability under any Plan or Multiemployer Plan.          (b) No ERISA Event has occurred or is reasonably expected to occur that, when taken togetherwith all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect, withrespect to the Project.          (c) The present value of all accumulated benefit obligations under each Plan (based on theassumptions used for purposes of Statement of Financial Accounting Standards No. 158) did not, asof the date of the most recent financial statements reflecting such amounts, exceed by more than$100,000 the fair market value of the assets of such Plan, and the present value of allaccumulated benefit obligations of all underfunded Plans (based on the assumptions used forpurposes of Statement of Financial Accounting Standards No. 158) did not, as of the date of themost recent financial statements reflecting such amounts, exceed by more than $100,000 the fairmarket value of the assets of all such underfunded Plans.          (d) Except as set forth on Schedule 7.10, neither the Borrower nor the ProjectSponsor is party to or has any obligations under any labor, collective bargaining agreement orother employment agreement that provides for W-2 compensation in excess of $100,000 per year.
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          7.11 Nature of Business; Property. Since April 13, 2007, the Borrower has not engagedin any business other than the Project as contemplated by the Material Project Documents. TheBorrower has legal, valid title to all its Property and such Property is not subject to any Liensother than Permitted Liens described in Section 8.13.          7.12 Security Documents. On and after the Closing Date the provisions of the SecurityDocuments are effective to create, in favor of the Collateral Agent for the benefit of the SecuredParties, a legal, valid and enforceable Lien on and security interest in all of the Collateralpurported to be covered thereby, and all necessary recordings and filings have been made, or willbe made on the Closing Date or the date of each initial extension of credit under each Term Loan,as applicable, in all necessary public offices, and all other necessary and appropriate action hasbeen taken, including sending notices to each applicable Project Party pursuant to Section8.20(e), so that each such Security Document creates a perfected Lien on and security interestin all right, title and interest of the Borrower in the Collateral covered thereby, prior andsuperior to all other Liens other than Permitted Liens described in Section 8.13 other thanclause (f) and all necessary and appropriate consents to the creation, perfection andenforcement of such Liens have been obtained from each of the parties to the Material ProjectDocuments.          7.13 Subsidiaries. The Borrower has no Subsidiaries.          7.14 Status; Investment Company Regulation. The Borrower is not an “investmentcompany” or a company “Controlled” by an “investment company” within the meaning of the InvestmentCompany Act of 1940 or an “investment advisor” within the meaning of the Investment Company Act of1940.          7.15 Contracts; Material Project Documents; Licenses.          (a) Set forth on Schedule 7.15 is a list of all contracts, agreements, instruments,letters, understandings, or other documentation under which the Borrower could reasonably beexpected to have obligations or liabilities in excess of $250,000, to which the Borrower is aparty, or by which it or its properties is bound, including the Project Documents (including allamendments, supplements, waivers, letter agreements, interpretations and other documents amending,supplementing or otherwise modifying or clarifying such agreements and instruments).          (b) As of the Closing Date:     (i) all Material Project Documents that are or will be required to be obtainedby the Borrower in connection with the construction and operation of the Project ascontemplated by the Transaction Documents are listed on Schedule 7.15;     (ii) all Material Project Documents have been obtained and are in full forceand effect;          (c) The Material Project Documents in effect on the Closing Date and on the date of eachinitial extension of credit under each Term Loan and the Additional Project
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Documents entered into in accordance with this Agreement, constitute and include all contracts and agreements relating tothe Project other than Non-Material Project Documents and, other than the Financing Documents, theBorrower is not and will not be a party to any contract or agreement that is not a ProjectDocument. There are no material contracts, services, materials or rights (other than GovernmentApprovals) required for the current stage of the Development other than those granted by, or to beprovided to the Borrower pursuant to, the Material Project Documents. The Administrative Agenthas received a certified copy of each Material Project Document (other than those that are notrequired to be delivered as of the date of the making of this representation) as in effect on thedate of its delivery to the Administrative Agent and each amendment, modification or supplement toeach such Material Project Document. Except as permitted pursuant to Section 8.20, noneof the Material Project Documents has been amended, modified or supplemented or has beenmaterially Impaired, and all of the Material Project Documents (other than those that are notrequired to be entered into pursuant to this Agreement as of the date of the making of thisrepresentation or that have been cancelled or terminated as permitted under this Agreement) are infull force and effect. All conditions precedent to the obligations of the Borrower under theMaterial Project Documents have been satisfied or waived except for such conditions precedentwhich need not or cannot be satisfied until a later stage of Development. No Material ProjectParty is in default in any material respect of any material covenant or material obligation setforth in any Material Project Document and no condition has occurred that would become such adefault with the giving of notice or lapse of time.          (d) All representations, warranties and other factual statements made by each MaterialAffiliated Project Party in the Material Project Documents to which such Material AffiliatedProject Party is a party are true and correct in all material respects.          (e) No undischarged Liens have been filed in connection with any work performed or agreementlisted on Schedule 7.15, except as set forth on Schedule 7.15(f) and as permittedin accordance with Section 8.13. As of the First Project Funding Date, Borrower hasprovided the subordination agreements required by Section 6.02(o).          (f) As of any date on which this representation is made or deemed repeated, there have beenno change orders under any Construction Contract for the Project with respect to which a fundinghas been made or is being requested, other than in accordance with Section 8.20(c).           (g) The Borrower has not received any notices of Liens (other than Permitted Liens) inconnection with any agreement listed on Schedule 7.15.          (h) All material permits, licenses, trademarks, patents or agreements with respect to theusage of technology that are necessary for the current stage of the Development have beenobtained, are final and are in full force and effect. The Borrower reasonably believes that allsuch permits, licenses, trademarks, patents or agreements necessary for all future stages of theDevelopment will be timely obtained in the ordinary course and will not be subject to terms orconditions which could reasonably be expected to result in a Material Adverse Effect with respectto the Project.
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          (i) The Borrower has not entered into and does not intend to enter into, directly orindirectly, any transaction that is otherwise permitted hereunder with or for the benefit of anAffiliate of the Borrower (including guarantees and assumptions of obligations of an Affiliate ofthe Borrower) except upon fair and reasonable terms no less favorable to the Borrower than wouldbe obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of theBorrower, and except as permitted under the Financing Documents. Each Project Document enteredinto with an Affiliate as of the Closing Date is listed on Schedule 7.15(j).          7.16 Use of Proceeds. The proceeds of each Loan will be used solely in accordancewith, and solely for the purposes contemplated by, Section 8.09. No part of the proceedsof any Loan or Letter of Credit will be used for the purpose, whether immediate, incidental orultimate, of buying or carrying any Margin Stock or to extend credit to others for such purpose.Furthermore, no Letters of Credit may be issued to provide credit support for any Person other thanthe Borrower.          7.17 Disclosure.          (a) The Borrower has disclosed to the Administrative Agent and the Lenders all agreements,instruments and corporate or other restrictions to which it is subject, and all other matters known to it, that, individually or in the aggregate, could reasonablybe expected to result in a Material Adverse Effect with respect to the Project to which suchagreements and other matters relate. Neither this Agreement nor any Financing Document nor anyreports, financial statements, certificates or other written information furnished to the Lendersby or on behalf of the Borrower in connection with the negotiation of, and the extension of creditunder, this Agreement and the other Financing Documents and the transactions contemplated by theMaterial Project Documents or delivered to the Administrative Agent or the Lenders hereunder orthereunder (as modified or supplemented by other information so furnished) contains any untruestatement of a material fact or omits to state a material fact in each case, necessary to make thestatements contained herein or therein, in light of the circumstances under which they were made,not misleading; provided, that with respect to any projected financial information,forecasts, estimates, or forward-looking information, including that contained in the ConstructionBudget and Schedule, and the Base Case Forecast, the Borrower represents only that suchinformation was prepared in good faith based upon assumptions believed to be reasonable at thetime and is subject to the uncertainties that are inherent in any projections, and the Borrowermakes no representation as to the actual attainability of any projections set forth in the BaseCase Forecast, the Construction Budget and Schedule or any such other items listed in thissentence. Without limiting the generality of the foregoing, no representation or warranty is madeby the Borrower as to any information or material provided to the Borrower, the AdministrativeAgent or the Lenders by the Independent Engineer, the Independent Insurance Consultant, theIndependent Environmental Consultant or the Independent Market Consultant (except to the extentsuch information or material originated with the Borrower).          (b) As of the Closing Date, the Borrower has provided all material information to theIndependent Engineer, Independent Insurance Consultant, Independent Environmental Consultant orthe Independent Market Consultant, as applicable, in order to
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allow such Persons to issue their bring-down certificates on the Closing Date as contemplated in Section 6.01(d)(iii),(iv) and (v) and Section 6.01(g), and on the First Project Funding Dateas contemplated in Section 6.02(e).          7.18 Fees. Other than those fees set forth on Schedule 7.18, on the ClosingDate, the Borrower has no obligation to any Person in respect of any finder’s, advisory, broker’sor investment banking fee other than fees payable under this Agreement and the Fee Letters, or asset forth in the Construction Budget and Schedule, or fees and expenses payable to the Borrower’slegal counsel.          7.19 Insurance. All insurance required to be obtained by the Borrower has beenobtained and is in full force and effect and materially complies with Section 8.05 andSchedule 8.05, and all premiums then due and payable on all such insurance have been paid,and to the Borrower’s Knowledge, all insurance required to be obtained by a Material Project Partypursuant to a Material Project Document has been obtained and is in full force and effect andmaterially complies with Section 8.05 and Schedule 8.05.          7.20 Investments. Since April 13, 2007, the Borrower has neither made, nor instructedany relevant Person to make, any Investments except Permitted Investments. To the Borrower’sKnowledge, the Borrower has neither made, nor instructed any relevant Person to make, anyInvestments except Permitted Investments.          7.21 No Material Adverse Effect. To the Borrower’s Knowledge, there are no facts orcircumstances which, individually or in the aggregate, have resulted or could reasonably beexpected to result in a Material Adverse Effect.          7.22 Absence of Default. No Default or Event of Default has occurred and iscontinuing.          7.23 Event of Loss. No Event of Loss has occurred and is continuing that couldreasonably be expected to have a Material Adverse Effect.          7.24 Title. (i) The Borrower has good and indefeasible title to and is the holder ofall assets, including a valid and existing fee simple interest in the parcel of real property thatare fee owned comprising a portion of the Project Facility Site and good and valid easement estatesto any Easement Properties, in each such case, required for the Development and for operation ofthe Project, subject only to Permitted Exceptions, and in each case free and clear of all Liensother than any Permitted Liens and Permitted Exceptions. With respect to the Easement Properties,on and after the date of the initial Borrowing under each Term Loan, the Borrower will haveobtained all necessary licenses, easements and access rights required for the Project and theBorrower will enjoy peaceful and undisturbed possession of, all of the Collateral that is necessaryfor the construction and operation of the Project, in each of the foregoing cases for no less thana term of fifteen years.          7.25 Property Rights, Utilities, Supplies; Etc.          (a) On and after the Closing Date, all material property interests, utility services, meansof transportation, facilities and other materials necessary for the development,
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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, or will be whenneeded, available to the Project and arrangements in respect thereof have been made.          (b) There are no material materials, supplies or equipment necessary for construction, and,from and after the Final Completion Date, operation or maintenance of the Project, that are notexpected to be available at the Project on commercially reasonable terms consistent with theConstruction Budget and Schedule, or the Operating and Capital Budget.          7.26 Separateness.          (a) The Borrower maintains separate bank accounts and separate books of account from theProject Sponsor. The separate liabilities of the Borrower are readily distinguishable from theliabilities of each Affiliate of the Borrower, including the Project Sponsor (except to the extentotherwise contemplated by the Transaction Documents).          (b) The Borrower conducts its business solely in its own name in a manner not misleading toother Persons as to its identity.          (c) The Borrower is in compliance with the provisions set forth on Schedule 7.26.          7.27 Patriot Act          (a) Neither the Borrower’s Borrowing of the Loans nor its use of the proceeds thereof willviolate in any material respect (i) the United States Trading with the Enemy Act of October 6,1917, as amended, (ii) any of the foreign assets control regulations of the United States TreasuryDepartment (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executiveorder relating thereto, (iii) Executive Order No. 13224, 66 Fed. Reg. 49,079 (2001), issued by thePresident of the United States (Executive Order Blocking Property and Prohibiting Transactionswith Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Terrorism Order”)or (iv) the anti-money laundering provisions of the Uniting and Strengthening America by ProvidingAppropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001,Public Law 107-56 (October 26, 2001) amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq.No part of the proceeds from the Loans hereunder will be used, directly or, to the Borrower’sKnowledge, indirectly, for any payments to any governmental official or employee, political party,official of a political party, candidate for political office, or anyone else acting in anofficial capacity, in order to obtain, retain or direct business or obtain any improper advantage,in material violation of the United States Foreign Corrupt Practices Act of 1977, as amended.          (b) Neither the Borrower nor any other Credit Party (i) is or will become a “blocked person”or entity described in Schedule 1 of the Terrorism Order or described in such Department of theTreasury Rule or (ii) engages or will engage in any dealings or transactions, nor is any suchPerson otherwise associated, with any such blocked person or entity.
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**ARTICLE VIII****COVENANTS**          The Borrower (to the extent applicable) covenants and agrees with the Lenders and theAdministrative Agent that until the Termination Date:          8.01 Reporting Requirements. The Borrower shall deliver to the Administrative Agent(in sufficient numbers for the Administrative Agent and each of the Lenders), commencing after theend of the first fiscal quarter after the Closing Date (except in the case of paragraphs(c) through (g) below, which notices shall be delivered as stated therein):          (a) as soon as available and in any event within sixty (60) days after the end of each of thefirst three quarterly fiscal periods of each fiscal year of the Borrower, (i) unaudited statementsof income and cash flows of the Borrower (on a consolidating and a consolidated basis) for suchperiod and for the period from the beginning of the respective fiscal year to the end of suchperiod, and (ii) the related balance sheet as at the end of such period, setting forth in eachcase in comparative form the corresponding figures for the preceding fiscal year, and (iii) acalculation of the Borrower’s projected tax liabilities for such period, each accompanied by acertificate of an Authorized Officer of the Borrower, which certificate shall state (x) in thecase of clauses (i) and (ii) above, that such financial statements fairly present in all materialrespects the financial condition and results of operations of the Borrower (on a consolidating anda consolidated basis), in accordance with GAAP, consistently applied, as at the end of, and for,such period (subject to normal year-end audit adjustments) and (y) in case of clause (iii) above,based on reasonable estimates and projection, such Borrower’s projected tax liabilities areaccurate;          (b) as soon as available and in any event within one hundred twenty (120) days after the endof each fiscal year of the Borrower, (i) audited statements of income, shareholders’ equity andcash flows of the Borrower (on a consolidating and a consolidated basis) for such year and therelated balance sheets as at the end of such year, setting forth in each case, in comparative formthe corresponding figures for the preceding fiscal year, and (ii) a calculation of the FinancialRatios for the fourth quarterly fiscal period and the preceding fiscal year, each accompanied byan unqualified opinion of Hein & Associates LLP or other independent certified public accountantsof recognized national standing as is reasonably acceptable to the Administrative Agent, whichopinion shall state that such financial statements fairly present in all material respects thefinancial condition and results of operations of the Borrower (on a consolidating and aconsolidated basis) as at the end of, and for, such fiscal year in accordance with GAAP;          (c) promptly after an Authorized Officer of the Borrower knows or has reason to believe thata Default or Event of Default has occurred, a notice of such event describing the same inreasonable detail and, together with such notice or as soon thereafter as possible, a descriptionof the action that the Borrower has taken or proposes to take with respect to such event givingrise to such Default or Event of Default;
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          (d) promptly after an Authorized Officer of the Borrower knows or has reason to believe thatsuch event has occurred, a notice of the occurrence of any ERISA Event that, alone or togetherwith any other ERISA Events that have occurred, could reasonably be expected to result in aMaterial Adverse Effect;          (e) promptly after an Authorized Officer of the Borrower knows or has reason to believe thatsuch an event has occurred, a notice of the occurrence of any margin call, Permitted Swap Providerdefault under a Permitted Swap Agreement, Commodity Hedging Provider default under a CommodityHedging Agreement or any other event under or in relation to a Permitted Swap Agreement orCommodity Hedging Agreement that, along with any other event that has occurred under or inrelation to such agreements, could be expected to result in a Material Adverse Effect;          (f) promptly upon (i) delivery to another Material Project Party pursuant to a MaterialProject Document, copies of all material notices or other material documents delivered to suchMaterial Project Party by the Borrower and (ii) such documents becoming available, copies of allmaterial notices or other material documents received by the Borrower pursuant to any MaterialProject Document (such as any notice or other document relating to a failure by the Borrower toperform any of its covenants or obligations under such Material Project Document, termination of aMaterial Project Document or a force majeure event under a Material Project Document, butexcluding any notice provided in the ordinary course of business); and          (g) promptly after an Authorized Officer of the Borrower knows or has reason to believe thatsuch event has occurred, a notice of the occurrence of any BBETC Event;          (h) at the time it furnishes each set of financial statements pursuant to paragraph(a) or (b) above, a certificate of an Authorized Officer of the Borrower to the effectthat no Default has occurred and is continuing (or, if any Default has occurred and is continuing,describing the same in reasonable detail and describing the action that the Borrower has taken andproposes to take with respect to such Default).          8.02 Maintenance of Existence; Etc. The Borrower shall preserve and maintain (a) itslegal existence in the corporate form of the Borrower as of the Closing Date, as certified by anAuthorized Officer of the Borrower as of such date, and (b) all of its licenses, rights, privilegesand franchises necessary for the Project, unless the failure to maintain such licenses, rights,privileges and franchises could not reasonably be expected to result in a Material Adverse Effecton the Project.          8.03 Compliance with Government Rules; Etc.          (a) The Borrower shall comply in all material respects with all applicable Government Rulesand shall from time to time obtain and renew, and shall comply in all material respects with,Government Approvals as is or in the future shall be necessary for the Project under applicableGovernment Rules (except any such Government Rules and Government Approvals the non-compliancewith which could not reasonably be expected to
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result in a Material Adverse Effect, with respect to the Project); provided that withprior written notice to the Administrative Agent the Borrower shall be permitted to contest theapplicability to it of any such Government Rule or the need for any such Government Approval.          (b) Except as provided in paragraph (c) below, the Borrower shall not petition,request or take any legal or administrative action that seeks to amend, supplement or modify anyGovernment Approval in any material respect unless (i) it has furnished to the AdministrativeAgent a copy (certified by an Authorized Officer of the Borrower) of the proposed amendment,supplement or modification and a description of the actions that it proposes to take and (ii) suchamendment, supplement or modification could not reasonably be expected to result in a MaterialAdverse Effect with respect to the Project to which such Government Approval applies. TheBorrower shall promptly upon receipt or publication furnish a copy (certified by its AuthorizedOfficer) of each such amendment, supplement or modification to any such Government Approval to theAdministrative Agent.          (c) If any Impairment of any Government Approval of the Borrower or related to the Projectwhich could reasonably be expected to have a Material Adverse Effect with respect to the Projectshall occur, then the Borrower shall either (i) within sixty (60) days obtain a replacementGovernment Approval on terms and conditions that are in all material respects no less beneficialto it than those of such Impaired Government Approval or (ii) within sixty (60), take such lawfulaction as shall be necessary so that (A) such Impairment does not become final and non-appealableor otherwise irrevocable, (B) the effectiveness of such Impairment is postponed or (C) suchImpairment is revoked, amended or modified so as to eliminate the reasonable possibility of suchMaterial Adverse Effect with respect to the Project.          (d) The Borrower shall issue such notices of transfer and shall take such other actions asthe Administrative Agent, acting for the benefit of itself and the Lenders, reasonably requests,without undue expense or delay, to secure for the Administrative Agent and the Lenders the benefitof each Government Approval related to the Project set forth on Schedule 7.05(a) and, whenobtained, Schedule 7.05(b) upon the exercise of remedies under the Security Documents.          8.04 Environmental Compliance.          (a) The Borrower and the Project shall (i) at all times comply in all material respects withall applicable Environmental Laws and obtain and at all times comply in all material respects withany Government Approvals required under any Environmental Laws for the construction, operation andmaintenance of the Project and occupancy of the Project Site, (ii) conduct and complete anyinvestigation, study, sampling and testing, and undertake any corrective, cleanup, removal,response, remedial or other action necessary to identify, report, remove and clean up any Releasesor threatened Releases of Hazardous Materials at, on, in, under or from the Project, to the extentrequired by and in material compliance with the requirements of all applicable Environmental Lawsand (iii) maintain adequate financial assurance or guarantees as required under Environmental Lawswith respect to the Project; and
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          (b) The Borrower shall deliver to the Administrative Agent (with sufficient copies for eachLender) (i) notice of (A) any pending or threatened material Environmental Claim with respect toit or the Project, including any actions to challenge, revoke, cancel, terminate, limit or modifyany Government Approval and (B) information that could reasonably be expected to lead to amaterial Environmental Claim, in either case promptly upon obtaining knowledge thereof, describingthe same in reasonable detail, together with such notice, or as soon thereafter as possible, adescription of the action that the Borrower has taken or proposes to take with respect theretoand, thereafter, from time to time, such detailed reports with respect thereto as theAdministrative Agent or any Lender may reasonably request and (ii) promptly upon their becomingavailable, copies of written communications with any Government Authority relating to any suchmaterial Environmental Claim and any such other matter as is reported to the Administrative Agentor the Lenders pursuant to this Section 8.04(b).          8.05 Insurance; Events of Loss          (a) Compliance with Insurance Requirements. The Borrower shall (i) at all timescomply with all insurance requirements set forth in any Material Project Document, except to theextent that failure to so comply could not reasonably be expected to result in a Material AdverseEffect, with respect to the Project, and (ii) enforce the obligations of all Material ProjectParties with respect to insurance requirements applicable to such Material Project Parties underthe respective Material Project Documents.          (b) Insurance Maintained During Construction. The Borrower shall, to the extentcommercially available at reasonable terms (as confirmed by the Independent Insurance Consultantand Independent Engineer), maintain or cause to be maintained (for, among others, its benefit andfor the benefit of the Collateral Agent on behalf of the Secured Parties) the insurance policiesspecified on Part A of Schedule 8.05, such insurance policies being required to bemaintained from the date insurance must be procured under any Construction Contract until (1) thedate the insurance policies specified on Part A of Schedule 8.05 are replaced withthe insurance policies to be issued in accordance with paragraph (c) of this Section8.05 or (2) such later date or dates when the Construction Contracts terminate as approved bythe Administrative Agent (following consultation with the Independent Insurance Consultant).          (c) Insurance Maintained During Operations. The Borrower shall, to the extentcommercially available at reasonable terms (as confirmed by the Independent Insurance Consultant),maintain or cause to be maintained (for, among others, its benefit and for the benefit of theCollateral Agent on behalf of the Secured Parties) the insurance policies specified on PartB of Schedule 8.05, such insurance policies to be maintained from the date FinalCompletion is achieved.          (d) Insurance Maintained by the Borrower and the Construction Contractors. TheBorrower shall procure at its own expense and maintain in full force and effect, and shall causethe Construction Contractors and the Subcontractors to procure at such Person’s own expense andmaintain in full force and effect the insurance of types and amounts as agreed with the MajorityLenders, including but not limited to casualty, business interruption and builders
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risk coverage, (after consultation with the Lenders’ Independent Insurance Consultant andIndependent Engineer), as set forth on Part A of Schedule 8.05 to this Agreement.          (e) Additional Insureds and Loss Payee. The Administrative Agent and the Lendersshall be named as additional insured under policies of general liability insurance, Builders Riskand Property All Risk, and the Collateral Agent for the benefit of the Secured Parties shall benamed as sole loss payee, under all casualty, business interruption, delay in start up, andbuilders risk insurance procured and maintained for the Project.          (f) Copies of Insurance Certificates. On the Closing Date and within five (5)Business Days following the issuance, renewal or expiration of any insurance policy required to bein effect under this Agreement, the Borrower shall furnish the Administrative Agent with approvedcertificates of all such required insurance. Such certificates shall be executed by each insureror by an authorized representative of each insurer. Such certificates shall identifyunderwriters, the type of insurance, the insurance limits and the policy term and shallspecifically list the special provisions enumerated for such insurance required by thisSection 8.05. Concurrently with the furnishing of any such certificate, the Borrowershall furnish the Administrative Agent with a certificate of an Acceptable Insurance Broker of theBorrower to the effect that the insurance then carried or to be renewed is in accordance with theterms of this Section 8.05, such insurance is in full force and effect and all premiumsthen due and payable have been paid or are not in arrears.          (g) Copies of Insurance Policies. On or promptly after the Closing Date, promptlyupon receipt of each such policy, the Borrower shall upon request deliver to the AdministrativeAgent a duplicate, certified by an Authorized Officer of the Borrower of each policy of insurancerequired to be in effect under this Agreement or any other Material Project Document then ineffect. Not less than thirty (30) days prior to the expiration date of any policy of insurancerequired to be in effect under this Agreement or any other Material Project Document then ineffect, the Borrower shall notify the Administrative Agent of its intention to renew each expiringpolicy. The Borrower shall promptly inform the Administrative Agent, prior to this period, if anypolicy shall not be renewed.          (h) Right to Procure Insurance. In the event the Borrower fails to (i) procure ormaintain, or (ii) cause the Construction Contractors to procure and maintain, the insurancecoverage required by this Section 8.05, the Administrative Agent, upon thirty (30) days’prior notice (unless such insurance coverage would lapse within such period, in which event noticeshall be given as soon as reasonably possible) to the Borrower of any such failure, may (but shallnot be obligated to) take out the required policies of insurance and pay the premiums on the same.All amounts so advanced for such purpose by the Administrative Agent and the Lenders shall becomean additional obligation of the Borrower to the Administrative Agent and the Lenders, and theBorrower shall forthwith pay such amounts to the Administrative Agent, together with interest onsuch amounts at the Post-Default Rate from the date so advanced.          (i) Compromise, Adjustment or Settlement. The Administrative Agent shall be entitledat its option to participate in any compromise, adjustment or settlement in connection with anyEvent of Loss under any policy or policies of insurance or any proceeding
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with respect to any Event of Taking of Property of the Borrower or otherwise in excess of$2,000,000 and the Borrower shall within five Business Days after the Administrative Agent’srequest reimburse the Administrative Agent for all reasonable out-of-pocket expenses (includingreasonable attorneys’ and experts’ fees) incurred by the Administrative Agent in connection withsuch participation. The Borrower shall not make any compromise, adjustment or settlement inconnection with any such claim without (i) the approval of the Administrative Agent (A) in thecase of amounts in excess of $1,000,000 or (B) upon and during the continuance of an Event ofDefault and (ii) the approval of the Majority Lenders, in the case of amounts in excess of$2,500,000.          (j) Notice of Event of Loss or Change in Insurance Coverage. The Borrower shallpromptly notify the Administrative Agent of any Event of Loss which it believes will exceed$1,000,000, individually or in the aggregate. The Borrower shall promptly notify theAdministrative Agent of (i) each written notice received by it with respect to the cancellationof, adverse change in, or default under, any insurance policy required to be maintained inaccordance with this Section 8.05 and (ii) any event specified in Schedule 8.05.          (k) No Duty of Secured Parties to Verify. No provision of this Section 8.05nor any other provision of the Credit Agreement or any Material Project Document shall impose onthe Secured Parties any duty or obligation to verify the existence or adequacy of the insurancecoverage maintained by the Borrower, nor shall the Secured Parties be responsible for anyrepresentations or warranties made by or on behalf of the Borrower to any insurance company orunderwriter.          (l) Loss Proceeds.     (i) Deposits to Revenue Account. In the event that the Borrower or theAdministrative Agent receives any amount of proceeds of business interruptioninsurance, delay in startup insurance and other payments received for interruptionof operations in respect of any Event of Loss, such amounts shall be deposited inaccordance with the Collateral Agency Agreement in the Revenue Account.     (ii) Deposits to Loss Proceeds Account. In the event that the Borroweror the Administrative Agent receives an amount of Loss Proceeds in respect of anyEvent of Loss, the Net Available Amount shall be deposited in accordance with theCollateral Agency Agreement in the Loss Proceeds Account.     (iii) Corrections. In the event the Borrower receives any amountspecified in paragraph (i) or (ii) above and fails to deposit suchamount in the correct account pursuant to paragraph (i) or (ii)above, the Borrower shall correct any such error within two Business Days of receiptof such amounts.          (m) Restoration.     (i) Amounts made available to the Borrower from the Loss Proceeds Account forRestoration following any Event of Loss shall be remitted to the
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Borrower by the Administrative Agent, in the event that the Net AvailableAmount is less than or equal to $1,000,000.     (ii) Amounts made available to the Borrower from the Loss Proceeds Account forRestoration following any Event of Loss shall be remitted to the Borrower by theAdministrative Agent in the event that the Net Available Amount is greater than$1,000,000 but less than or equal to $2,000,000 if the Independent Engineer shallhave delivered to the Administrative Agent and the Collateral Agent a certificate tothe effect that the Net Available Amount deposited in the Loss Proceeds Account issufficient (together with all other monies reasonably expected to be available tothe Borrower as determined by the Administrative Agent in consultation with theIndependent Engineer), in the reasonable opinion of the Independent Engineer, forsuch Restoration. Amounts made available to the Borrower for Restoration shall onlybe utilized for Restoration and, if not so utilized within ninety (90) days (orwithin such longer period as may be necessary to achieve such Restoration asdetermined by the Independent Engineer), shall be used to prepay the Loans.     (iii) Amounts made available to the Borrower from the Loss Proceeds Account forRestoration following any Event of Loss shall be remitted to the Borrower by theAdministrative Agent in the event that the Net Available Amount is greater than$2,000,000 if (A) the Borrower shall submit a plan for Restoration as soon ascommercially practicable, but in no event more than sixty (60) days after theoccurrence of such Event of Loss and the Independent Engineer shall have delivered acertificate to the Administrative Agent and the Collateral Agent to the effect thatthe Borrower’s plan of Restoration is prudent and sound and the Net Available Amountdeposited in the Loss Proceeds Account is sufficient (together with all other moniesreasonably expected to be available to the Borrower as determined by theAdministrative Agent in consultation with the Independent Engineer), in thereasonable opinion of the Independent Engineer, for such Restoration and (B) theMajority Lenders have consented to such use of the Net Available Amount. Amountsmade available to the Borrower for Restoration shall only be utilized forRestoration and, if not so utilized in ninety (90) days after approval of the planof Restoration (or within such longer period as may be necessary to achieve suchRestoration as determined by the Independent Engineer), shall be used to prepay theLoans.          (n) Modifications to Insurance Coverage. The Majority Lenders and the AdministrativeAgent may at any time amend the requirements of paragraphs (b), (c) and(d) of this Section 8.05 and the related Schedule 8.05 (unlessspecifically provided otherwise in Schedule 8.05) upon a change in circumstances withrespect to the Project arising after the Closing Date that in the reasonable judgment of theMajority Lenders, the Administrative Agent and the Independent Insurance Consultant renders thecoverage specified therein materially inadequate; provided, that such change in oradditional coverage shall be commercially available at reasonable terms.
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          8.06 Proceedings. The Borrower shall (a) promptly upon obtaining knowledge of each action, suit or proceedingat law or in equity by or before any Government Authority, arbitral tribunal or other body pendingor threatened against it involving (i) claims against it or the Project in excess of $200,000individually or (ii) injunctive or declaratory relief and (b) promptly upon becoming aware of orother circumstance, act or condition (including the adoption, amendment or repeal of any GovernmentRule or the Impairment of any Government Approval or written notice of the failure to comply withthe terms and conditions of any Government Approval) which could reasonably be expected to resultin a Material Adverse Effect, with respect to the Borrower or the Project, in each event describedin clauses (a) and (b) above, furnish to the Administrative Agent a notice of suchevent describing it in reasonable detail and, together with such notice or as soon thereafter aspossible, a description of the action that the Borrower has taken and proposes to take with respectto such event.          8.07 Taxes. The Borrower shall timely file or cause to be filed all required materialTax returns and pay and discharge or cause to be paid and discharged all Taxes imposed on it or onits income or profits or on any of its Property prior to the date on which any penalties mayattach; provided, that the Borrower shall have the right to Contest the validity or amount of anysuch Tax. The Borrower shall promptly pay or cause to be paid any valid, final judgment renderedupon the conclusion of the relevant Contest, if any, enforcing any such Tax and cause it to besatisfied of record.          8.08 Books and Records; Inspection Rights. The Borrower shall keep proper books ofrecord in accordance with GAAP and permit representatives and advisors of the Administrative Agentor any Lender, upon reasonable notice to the Borrower and upon reasonable intervals (but not morethan one time per year unless an Event of Default has occurred and is continuing), to visit andinspect its properties, to examine, copy or make excerpts from its books, records and documents (atthe expense of the Borrower) and to discuss its affairs, finances and accounts with its principalofficers, engineers and independent accountants, all at such times during normal business hours assuch representatives may reasonably request.          8.09 Use of Proceeds.          (a) The Borrower shall use all proceeds of the Term Loan Borrowings and contributions ofEquity forming part of the Equity Contribution Amount:               (i) to pay for the Project Costs in respect of the Development in accordance with theConstruction Budget and Schedule;               (ii) to pay for Interest Expenses during Development               (iii) to fund transaction costs, including fees and expenses of the Lenders and advisors onthe Closing Date and the First Project Funding Date;               (iv) in respect of the proceeds of the Final Term Loan Borrowing, to fund the Debt ServiceReserve Account in an amount equal to the Required Debt Service Reserve Amount; and
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               (v) to pay other agreed costs with respect to the Project, including the pre-funding ofreserves and inventories; and               (vi) in respect of the proceeds of the Final Term Loan Borrowing only, after payment of allProject Costs, transaction costs (including fees and expenses of the Lenders and advisors), and allother agreed costs with respect the Project (including the pre-funding of reserves, deposits,insurance premiums and inventories that are required to be funded or paid on or prior to theConversion Date under this Agreement), to the extent that that the irrevocable Equity contributionsto the Borrower exceed the Equity Contribution Amount, up to 100% of the remaining unused portionof the Term Loan Aggregate Commitment, to make the Conversion Restricted Payment (provided that allof the conditions in Section 8.12(b) are satisfied).          (b) The Borrower shall use the proceeds of Working Capital Loan Borrowings (i) to provideworking capital for the Project following Final Completion and (ii) to fund Feedstock purchasesprior to Final Completion.          (c) The Borrower shall use the Letters of Credit to provide credit support for the activitiesof the Project.          8.10 Maintenance of Lien; Lenders’ Right to request stock pledge.          (a) The Borrower shall take all action reasonably required to maintain and preserve the Lienscreated by the Security Documents to which it is a party and the priority of such Liens. TheBorrower shall from time to time execute or cause to be executed any and all further instruments(including financing statements, continuation statements and similar statements with respect toany Security Document) reasonably requested by the Administrative Agent for such purposes. TheBorrower shall promptly discharge at its cost and expense, any Lien (other than Permitted Liens)on the Collateral; provided, that the Borrower may Contest any such Lien.          (b) In the event that the Syndication Agent elects at the direction of the AdministrativeAgent or the Majority Lenders to syndicate the Loan and, despite having used commerciallyreasonable efforts to syndicate the Loan, after a period of at least 30 days from the commencementof syndication efforts is unable to do so for reasons at least attributable to the absence of ashare pledge in the Collateral structure, the Credit Parties agree that, at any time thereafter,the Administrative Agent (acting at the direction of the Majority Lenders) may, upon 60 days priorwritten notice, require the Credit Parties to deliver to (or procure the delivery to) theCollateral Agent, for the benefit of the Secured Parties, a first priority pledge of one hundredpercent (100%) of the Equity Interests in the Project Owner (as defined below) (the “StockPledge”) in form and substance reasonably satisfactory to the Administrative Agent. The CreditParties shall take (or procure the taking of) all actions reasonably required to implement andpreserve the Stock Pledge and the first priority of the Stock Pledge; including executing or causing to be executed any and all further instruments (including any amendmentsto the Transaction Documents, financing statements, continuation statements and similar statementswith respect to the Stock Pledge) reasonably requested by the Administrative Agent for suchpurposes. “Project Owner” as used herein shall refer to the Borrower or, with the consent of theAdministrative Agent, not to be unreasonably withheld, a Wholly Owned
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Subsidiary of the Borrower (i) to which the Project assets shall be transferred and (ii) which shall assume all rights,obligations and liabilities of the Borrower under the Transaction Documents, in the case of eachof clauses (i) and (ii), contemporaneously with the execution of the Share Pledge and allTransaction Document amendments and other documentation related thereto.          8.11 Prohibition of Fundamental Changes.          (a) The Borrower shall not change its legal form, amend its articles of incorporation, bylawsor any other organizational document, merge into or consolidate with, or acquire all or anysubstantial part of the assets or any class of stock of (or other equity interest in), any otherPerson and shall not liquidate or dissolve. The Borrower shall not convey, sell, lease, transferor otherwise dispose of, in one transaction or a series of transactions, any assets except: (i)sales of assets no longer used or useful in the Borrower’s business or in the ordinary course ofthe Borrower’s business in an amount not exceeding $500,000 in the aggregate in any calendar year,(ii) sales or dispositions of assets in connection with the replacement of such assets in theordinary course of business, but not including sales or dispositions in connection with PermittedCapital Expenditures, in an amount not exceeding $500,000 in the aggregate in any calendar year,(iii) sales, transfers or other dispositions of Permitted Investments, (iv) Restricted Paymentsmade in accordance with the Financing Documents and (v) sales of Biodiesel, Glycerin and Methanoland other inventory in the ordinary course of business.          (b) The Borrower shall not purchase or acquire any assets other than: (i) the purchase ofassets reasonably required for the completion of the Project in accordance with the ConstructionContracts, applicable Government Approvals and applicable Government Rules and as contemplated bythe Construction Budget and Schedule, (ii) the purchase of assets reasonably required inconnection with Restorations in accordance with Section 8.05(m), (iii) the purchase ofassets in the ordinary course of business reasonably required in connection with the operation ofthe Project contemplated by the then-effective Operating and Capital Budget, (iv) the purchase ofassets reasonably required in connection with Permitted Capital Expenditures and (v) PermittedInvestments.          8.12 Restricted Payments. The Borrower shall not make, or agree to pay or make,directly or indirectly, any Restricted Payment, except:          (a) the Borrower may make a Restricted Payment (but not the Conversion Restricted Payment) incash from and to the extent of cash then on deposit in the Distribution Account on or up to ten (10) days after any Principal Payment Date, subject to thesatisfaction of each of the following conditions on the date of such Restricted Payment (a“Restricted Payment Date”) and after giving effect to such Restricted Payment:     (i) no Default shall have occurred and be continuing or would occur as aconsequence of such Restricted Payment;     (ii) no BBETC Event shall have occurred and be continuing;
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     (iii) the Debt Service Reserve Account is fully funded in an amount at leastequal to the Required Debt Service Reserve Amount;     (iv) the Debt Service Coverage Ratio for the four fiscal quarters most recentlyended prior to such Restricted Payment Date, or for such shorter period ending onthe Quarterly Date immediately subsequent to the Closing Date, taken as aconsecutive period (such last Quarterly Date, the “Determination Date”) isnot less than 1.5 to 1.0;     (v) the Projected Debt Service Coverage Ratio is not less than 1.5 to 1.0;     (vi) all mandatory prepayments that are required at such time pursuant toSection 3.03 have been fully paid; and     (iv) the Borrower shall have delivered to the Administrative Agent, at leastfive (5) Business Days prior to the proposed Restricted Payment Date, a certificateof an Authorized Officer of the Borrower dated the Restricted Payment Date:     (A) to the effect that each of the foregoing conditions shall have beensatisfied as of such Restricted Payment Date;     (B) to the effect that the making of such Restricted Payment is notexpected to have a Material Adverse Effect on the Borrower; and     (C) setting out in reasonable detail the calculations for computing theDebt Service Coverage Ratio and the Projected Debt Service Coverage Ratiofor the relevant period and stating that such calculations were preparedpursuant to clause (iii) and above and were made, in each case, ingood faith and were based on assumptions believed to be reasonable.          (b) The Borrower may make the Conversion Restricted Payment in cash from and to the extent ofcash then on deposit in the Distribution Account on or up to ten (10) days after the ConversionDate, subject to the satisfaction of each of the following conditions on the date of theConversion Restricted Payment and after giving effect to the Conversion Restricted Payment:     (i) the Conversion Date shall have occurred;     (ii) no Default shall have occurred and be continuing or would occur as aconsequence of the Conversion Restricted Payment;     (iii) the Debt Service Reserve Account is fully funded in an amount at leastequal to the Required Debt Service Reserve Amount;
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     (iv) all Project Costs, transaction costs (including fees and expenses of theLenders and advisors), and all other agreed costs with respect the Project(including the pre-funding of reserves, deposits, insurance premiums and inventoriesthat are required to be funded or paid on or prior to the Conversion Date) shallhave been paid;     (v) the amount of the Conversion Restricted Payment shall not exceed the excessof the amount of irrevocable Equity contributions to the Borrower over the EquityContribution Amount (such amount not to exceed the remaining unused portion of theTerm Loan Aggregate Commitment after sub-clause (iv) above);     (iv) the Borrower shall have delivered to the Administrative Agent, at leastfive (5) Business Days prior to the proposed date of the Conversion RestrictedPayment, a certificate of an Authorized Officer of the Borrower dated the dated ofthe Conversion Restricted Payment.          (c) Notwithstanding the provisions of Section 8.12(a), the Borrower may makePermitted Tax Distributions; provided, that the funds shall be applied solely for thepurpose they are designated, and no Default or Event of Default shall have occurred and becontinuing, and no Default or Event of Default would be likely to be caused by such Permitted TaxDistribution.          (d) The Administrative Agent, in its reasonable discretion may, from time to time, givenotice to the Borrower of its intention to review the Borrower’s calculations and certifications.In the event that the Administrative Agent disputes the Borrower’s calculations and certificationsor requests additional information in order to facilitate its evaluation of the Borrower’scalculation, the Administrative Agent (at the request of the Majority Lenders) may give to theBorrower notice in writing instructing that such Restricted Payment be delayed for such reasonableperiod of time as shall be necessary to resolve such dispute or complete such evaluation.          8.13 Liens. The Borrower shall preserve and maintain good and valid title to, orrights in, the Collateral and its Property and shall not create, incur, assume or suffer to existany Lien on any of the Collateral or any of its other Property, whether now owned or hereafteracquired, except:          (a) Liens, pledges or deposits under worker’s compensation, unemployment insurance or othersocial security legislation (other than ERISA),          (b) Liens imposed by any Government Authority for Taxes that are not yet due or that arebeing Contested,          (c) Mechanics’ Liens arising in the ordinary course of business or incident to theDevelopment or any Restoration, in each case, in respect of obligations that are not yet due orthat are being Contested and that do not have a Material Adverse Effect,          (d) defects, easements, rights-of-way, restrictions and other similar encumbrances incurredin the ordinary course of business and encumbrances, licenses,
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restrictions on the use of property or imperfections in title that, in each case, do not materially impair the property affectedthereby for the purpose for which title was acquired or interfere with the operation of theProject and that individually or in the aggregate could not reasonably be expected to result in aMaterial Adverse Effect,          (e) Liens created pursuant to this Agreement and the Security Documents,          (f) Liens incurred in connection with Indebtedness permitted under clause (iii) ofSection 8.16(a),          (g) judgment Liens that do not involve any reasonable risk of forfeiture of the Project orany Material Project Document and which, within thirty (30) days of their existence or after theentry thereof, are being Contested,          (h) cash deposits to secure the performance of bids, trade contracts (other than forIndebtedness), leases, statutory obligations, surety and appeal bonds, performance bonds and otherobligations of a like nature, in each case in the ordinary course of business,          (i) Liens arising by virtue of any statutory or common law provisions relating to banker’sliens, rights of set-off or similar rights arising in connection with repurchase agreements anddeposit accounts that are Permitted Investments, and          8.14 Investments. The Borrower shall not make, and shall not instruct any relevantPerson to make, any Investments except:          (a) direct obligations of the United States, or of any agency of the United States, orobligations guaranteed as to principal and interest by the United States or any agency of theUnited States, maturing in not more than ninety (90) days from the date of acquisition by theBorrower,          (b) certificates of deposit issued by any Acceptable Bank maturing in not more than ninety(90) days from the date of acquisition by the Borrower,          (c) commercial paper rated (on the date of acquisition by the Borrower) A-1 or P-1 by S&P orMoody’s, respectively, maturing in not more than ninety (90) days from the date of acquisition bythe Borrower,          (d) repurchase agreements fully secured by obligations described in paragraph (a) above withany Acceptable Bank with maturities not in excess of ninety (90) days,          (e) shares in money-market mutual funds having assets of $1,000,000,000 or more that investsolely in securities described in paragraphs (a) through (d) above that have a maximum maturity ofone (1) year or less and an average maturity of six (6) months or less at the time of purchase,          (f) the Permitted Swap Agreements and Commodity Hedging Agreements,
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          (g) trust accounts with the Collateral Agent,          (h) investments in connection with Indebtedness permitted under Section 8.16(a).          8.15 Hedging Arrangements.          (a) On or prior to the First Project Funding Date, the Borrower will propose the CommodityHedging Plan and shall present such plan to the Administrative Agent for written approval (suchapproval not to be unreasonably withheld). Following approval, the Commodity Hedging Plan shall beattached hereto as Schedule 8.15. The Commodity Hedging Plan shall be structured tomitigate the Borrower’s exposure to commodity spot prices and associated margin volatility withrespect to the Project.          (b) The Borrower shall implement and adhere to the approved Commodity Hedging Plan set out inSchedule 8.15. The Borrower may, from time to time, amend such Commodity Hedging Plan; providedthat any material changes thereto shall require the prior written approval of the AdministrativeAgent, not to be unreasonably withheld.          (c) The Borrower shall not enter into any Commodity Hedging Agreements that (i) are not inaccordance with the Commodity Hedging Plan or (ii) are for speculative purposes.          (d) Promptly after the Closing Date and within forty-five (45) days of the first funding ofthe Term Loans, the Borrower will propose a plan to enter into Interest Rate Protection Agreementsand shall present such plan to the Administrative Agent and Lenders for approval (such approvalnot to be unreasonably withheld). The Borrower shall have no Interest Rate Protection Agreementsexcept Permitted Swap Agreements with Permitted Swap Providers. At any time, the Borrower shallmaintain in full force and effect Permitted Swap Agreements (in form and substance satisfactory tothe Administrative Agent) for no less than fifty percent (50%) of the aggregate principal amountof all Term Loans then outstanding.          8.16 Indebtedness.          (a) The Borrower shall not directly or indirectly create, incur, assume, suffer to exist orotherwise be or become liable with respect to any Indebtedness except:     (i) Indebtedness under this Agreement,     (ii) accounts payable (other than for borrowed money) arising, and accruedexpenses incurred, in the ordinary course of business so long as such accountspayable are payable within ninety (90) days of the date the respective goods aredelivered or the respective services are rendered and (unless such accounts payableare being contested in good faith and by appropriate legal, administrative or otherproceedings diligently conducted and so long as adequate reserves have beenestablished with respect thereto in accordance with GAAP, and only if the failure topay such accounts payable could not reasonably be
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expected to have a Material Adverse Effect) are not more than ninety (90) days past due,     (iii) purchase money or lease obligations to the extent incurred in theordinary course of business to finance the acquisition or licensing of intellectualproperty, items of equipment, or motor vehicles (and Indebtedness incurred tofinance any such obligations); provided, that (A) if such obligations aresecured, they are secured only by Liens upon the equipment or intellectual propertybeing financed, (B) equipment purchased shall not become fixtures to or beconsidered “spare parts” for the Project and (C) the aggregate principal amount andthe capitalized lease portion of such obligations do not at any time exceed$2,000,000 in the aggregate,     (iv) Indebtedness in respect of the Permitted Swap Agreements entered into withPermitted Swap Providers and Commodity Hedging Agreements,     (v) Subordinated Indebtedness, and     (vi) Other unsecured Indebtedness incurred in the ordinary course of businessso long as the aggregate unpaid principal balance thereof does not exceed $100,000at any time.          (b) The Borrower shall duly and punctually pay and discharge its obligations in respect ofits Indebtedness permitted by this Section 8.16, subject to the terms and conditions ofthis Agreement and the other Financing Documents.          8.17 Nature of Business.          (a) The Borrower shall not engage in any business other than the Development and operation ofthe Project as contemplated by the Transaction Documents.          (b) Except for the arrangements set forth on Schedule 7.10, the Borrower shall nothave any employees nor enter into any contractual or other arrangements with any Person that wouldrequire the Borrower to be subject to or to comply with ERISA or any other Government Ruleconcerning labor, employment, wages or worker benefits.          8.18 Project Construction; Maintenance of Properties.          (a) The Borrower shall cause the Project to be constructed and completed in accordance with,and otherwise take such actions in respect of the Project as are required by, prudent U.S.biodiesel production industry practices, the Construction Contracts, the Construction Budget andSchedule, and the other relevant Material Project Documents.          (b) The Borrower shall maintain and preserve the Project and all of their respective othermaterial Properties necessary or useful in the proper conduct of its business in good workingorder and condition (ordinary wear and tear excepted), in accordance with generally acceptedprudent U.S. biodiesel production industry practices, the Material Project Documents and theoperating manuals. The Borrower shall operate (or cause to be operated)
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the Project in accordance with generally accepted prudent U.S. biodiesel production industry practices, the Material ProjectDocuments, the Operating and Capital Budget and the operating manuals. In the event of anyconflict, the more stringent shall govern.          (c) The Borrower shall not make any Capital Expenditures on or after the Closing Date except(i) construction of the Project and (ii) Permitted Capital Expenditures.          (d) The Borrower shall maintain and preserve its rights and interests in Easement Propertieswith the applicable Government Authority, if necessary.          (e) The Borrower shall pay for Project Costs in respect of the Development with a combinationof (i) Term Loans, (ii) the Equity Contribution Amount, and (iii) additional contributed equity.          8.19 Construction Reports. Prior to Final Completion, the Borrower shall deliver tothe Administrative Agent Construction Reports on a monthly basis in connection with Borrowings ofTerm Loans in connection with the Project, substantially in the form of Exhibit J,accompanied by a certificate of an Authorized Officer of the Borrower setting forth in reasonabledetail:          (a) the estimated date of achievement of: (1) major construction milestones for the Projectand (2) the Projected Final Completion Date;          (b) the Borrower’s then-current estimate of anticipated Project Costs through FinalCompletion, as compared to the Construction Budget and Schedule and reasons for materialvariances, and such other information reasonably requested by Administrative Agent;          (c) the Borrower’s then-current estimate of anticipated Project Costs through FinalCompletion, as compared to the Construction Budget and Schedule and reasons for materialvariances, and in the event of a material variance, the reasons therefor, and such otherinformation reasonably requested by Administrative Agent;          (d) any occurrence of which the Borrower is aware that could reasonably be expected to (i)increase the total Project Costs above those set forth in the Construction Budget and Schedule,(ii) delay Final Completion beyond the Final Completion Date, or (iii) have a Material AdverseEffect;          (e) the status of the Government Approvals necessary for the applicable Development,including the dates of applications submitted or to be submitted and the anticipated dates ofactions by Government Authorities with respect to such Government Approvals; and          (f) with respect to the Development, a listing of reportable environmental, health and safetyincidents as well as any unplanned related impacts, events, accidents or issues that occurredduring the report period that relate to compliance with Environmental Laws.
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          8.20 Project Documents; Etc.          (a) Other than (a) the Project Documents, (b) the Financing Documents, (c) other documentsevidencing Permitted Indebtedness, and (d) the contracts, agreements, instruments, letters,undertakings or other documentation listed on Schedule 7.15, the Borrower shall not enterinto any other contracts, agreements, instruments, letters, undertakings or other documentation(other than Non-Material Project Documents) under which the Borrower could reasonably be expectedto have obligations or liabilities in excess of $250,000 in the aggregate at any one time for allsuch contracts, agreements, instruments, letters, undertakings or other documentationprovided that the Borrower shall not enter into any Material Project Document without theprior written approval of the Majority Lenders (such approval not to be unreasonably withheld,conditioned or delayed).          (b) The Borrower shall (i) perform and observe all of its material covenants and materialobligations contained in each of the Project Documents, (ii) take all reasonable and necessaryaction to prevent the termination, suspension or cancellation of any Material Project Document inaccordance with the terms of such Material Project Documents or otherwise (except for theexpiration of any Material Project Document in accordance with its terms and not as a result of abreach or default thereunder) and (iii) enforce against the relevant Project Party each materialcovenant or material obligation of each Project Document to which such Person is a party inaccordance with such Agreement’s terms.          (c) The Borrower may, with prior written approval of the Administrative Agent in consultationwith the Independent Engineer, enter into change orders under the Construction Contracts to whichit is a party, so long as the Administrative Agent has received a certificate of an AuthorizedOfficer of the Borrower confirming that after giving effect to such change orders (i) the abilityof the Borrower to achieve Final Completion in accordance with the Construction Budget andSchedule has not been adversely and materially affected, (ii) no cost overruns shall have occurred and be continuing which could reasonably be expected toresult in Project Costs exceeding the funds then available to pay such Project Costs and (iii) thechange order could not reasonably be expected to have a Material Adverse Effect. Any materialexpansion of the capacity of the Project shall be achieved through Additional Project Documentsrather than through change orders to Construction Contracts in effect as of the Closing Date;provided that the prior written consent of the Administrative Agent in consultation withthe Independent Engineer shall be required to enter into change orders under such ConstructionContracts.          (d) The Borrower shall not, without the prior written consent of the Majority Lenders inconsultation with the Independent Engineer, (i) suspend, cancel or terminate any Material ProjectDocument or consent to, allow to subsist, or accept any suspension, cancellation or terminationthereof, (ii) sell, transfer, assign (other than pursuant to the Security Documents) or otherwisedispose of (by operation of law, capacity release or otherwise) or consent to any such sale,transfer, assignment or disposition of any part of its interest in any Material Project Document,unless (A) such sale, transfer, assignment or disposition is to an Affiliate of the Borrower, (B)the Borrower shall have delivered notice of its intention to make such sale, transfer, assignmentor disposition to an Affiliate at least thirty-five (35) days in advance of the intended effectivedate thereof, and (C) the Majority Lenders shall have failed
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to deliver to the Administrative Agent objection to the sale, transfer, assignment or disposition described in such notice, (iii)waive any material default under, or material breach of, any Material Project Document or waive,fail to enforce, forgive, compromise, settle, adjust or release (or consent to any of theforegoing in respect of) any material right, interest or entitlement, howsoever arising, under, orin respect of, any Material Project Document, (iv) initiate or settle a material arbitration claimor proceeding under any Material Project Document, (v) agree to or petition, request or take anyother material legal or administrative action that seeks, or may reasonably be expected, to Impairany Material Project Document, (vi) amend, supplement or modify or in any way vary, or agree tothe variation of, any material provision of a Material Project Document or of the performance ofany material covenant or obligation by any other Person under any Material Project Document (otherthan change orders with respect to the Construction Contracts, which change order protocol isaddressed in Section 8.20(c)) or (vii) enter into any Additional Project Document.          (e) The Borrower shall cause all Project Revenues received from any Project Party or anyother Person to be deposited in the Revenue Account. Without limiting the Borrower’s obligationto procure all Consent and Agreements, the Borrower shall send a letter (on the Borrower’sletterhead and signed by an Authorized Officer of the Borrower) notifying each other Project Partynot party to a Consent and Agreement (i) that its Project Document and all associated documentsand obligations have been pledged as collateral security to the Secured Parties and are subject tothe Secured Parties’ Lien on such Property and (ii) if such Project Party’s Project Documentrequires any payment of Project Revenues specified in clause (a) of the definition ofProject Revenues that, in addition to the assignment specified in clause (i) above, itshall pay all such “Project Revenues” directly into the Revenue Account.          (f) The Borrower shall furnish the Administrative Agent (with copies sufficient for theAdministrative Agent, the Independent Engineer and the Lenders) with (i) certified copies of (A) all amendments, supplements or modifications of any Material ProjectDocuments, (B) all Additional Project Documents and (C) if reasonably requested by theAdministrative Agent, Non-Material Project Documents and amendments, supplements or modificationsthereto and (ii) all Ancillary Documents relating to any Additional Project Document, in eachcase, promptly after execution and delivery of such documents to the Borrower.          8.21 Operating and Capital Budgets.          (a) The Borrower (on a consolidating basis) shall, on or before the Closing Date, adopt anOperating and Capital Budget for the Project for the period from such date to the conclusion ofthe then current fiscal year (and for each month during such period), and, no less than fifteen(15) days in advance of the beginning of each fiscal year of the Borrower thereafter, the Borrowershall adopt an Operating and Capital Budget for the Project for the succeeding fiscal year (andfor each month during such period). Copies of such proposed Operating and Capital Budget,together with a comparison of the costs in the proposed Operating and Capital Budget with thecosts set forth in the Operating and Capital Budget for the Project for the current fiscal yearand an explanation of the reasons for any significant increase or decrease in any category shallbe furnished to the Administrative Agent at least
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sixty (60) days before the beginning of the fiscal year to which such proposed Operating and Capital Budget applies. Prior to adoptionthereof, each proposed Operating and Capital Budget for the Project shall be subject to the priorapproval of the Administrative Agent, following consultation with the Independent Engineer, whichapproval shall not be unreasonably withheld or delayed. Copies of the final Operating and CapitalBudget so adopted for the Project shall be furnished to the Administrative Agent promptly upontheir adoption. In the event that any proposed Operating and Capital Budget for the Project isnot approved by the Administrative Agent, the Operating and Capital Budget for the Project fromthe previous fiscal year increased by the CPI for the then-current fiscal year shall apply for thethen-current fiscal year until an Operating and Capital Budget for the Project is approved. TheAdministrative Agent shall have the right to approve all or a portion of any proposed Operatingand Capital Budget for the Project. To the extent the Administrative Agent does not approve aportion of a proposed Operating and Capital Budget for the Project, such portion of the Budgetfrom the previous fiscal year increased by the CPI for the then-current fiscal year shall applyfor the then-current fiscal year until such portion of the proposed Operating and Capital Budgetfor the Project is approved.          (b) The Borrower shall comply, within the ten percent (10%) variance described below, withthe Operating and Capital Budget. If during any fiscal year the Borrower reasonably projects thatany category of Operation and Maintenance Expenses for the Project for such fiscal year willexceed by more than twenty percent (20%) the amount budgeted for such category of Operation andMaintenance Expenses in the then- applicable Operating and Capital Budget(s), or if any categoryof Operation and Maintenance Expenses for the Project incurred to date during such fiscal yearplus any Operation and Maintenance Expenses budgeted for such category for the remainder of suchfiscal year in the then-applicable Operating and Capital Budget(s) exceeds by more than tenpercent (10%) the aggregate amount budgeted for such category of Operation and MaintenanceExpenses in the then-applicable Operating and Capital Budget(s), then the Borrower shall prepareand submit for the approval of the Administrative Agent and the Independent Engineer pursuant toSection 8.21(a), an amended Operating and Capital Budget for the remainder of such fiscalyear; provided that the approval of the Administrative Agent and the Independent Engineershall not be required for revisions to an Operating and Capital Budget that are based on pricefluctuations for any budgeted line items for Feedstock, natural gas, Biodiesel, Glycerin,Methanol, electricity, chemicals and other commodities and utilities used in or sold under theBorrower’s operations, or freight.          8.22 Operating Statements and Reports. The Borrower shall furnish to theAdministrative Agent and the Independent Engineer (i) monthly, commencing with the close of thefirst full month after the Closing Date until the first Principal Payment Date, concurrent withdelivery of the Construction Reports pursuant to Section 8.19, (ii) quarterly thereafter,an operating statement of the Project for such period (with monthly detail) and for the portion ofthe Borrower’s fiscal year then ended (with monthly detail), not more than forty-five (45) daysafter the end of such quarter, and (iii) not more than ninety (90) days after the end of eachfiscal year of the Borrower, an operating statement of the Project for such fiscal year (withmonthly detail). Such operating statements shall correspond to the classifications and monthlyperiods of the current annual Operating and Capital Budget and shall show all Project Revenues andall expenditures for Operation and Maintenance Expenses. The monthly and quarterly operating
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statement shall include (i) updated estimates of Operation and Maintenance Expenses for the balanceof such fiscal year to which the operating statement relates, (ii) any material developments duringsuch period which could reasonably be expected to have a Material Adverse Effect, (iii) summary ofstatistical data relating to the operation of the Project during such period and (iv) the cause,duration and projected loss of Project Revenues attributable to each scheduled and unscheduledinterruption in production and transportation of Biodiesel, Glycerin and/or Methanol by the Projectduring such period and, with respect to any interruptions caused by a material defect or failure,the cause of and cost to repair such defect or failure. The monthly, quarterly and annualoperating statements shall each be certified as materially complete and correct by an AuthorizedOfficer of the Borrower. Each operating statement will be accompanied by a statement of sourcesand uses of funds for the periods covered by it and a discussion of the reason for any materialvariance from the amount budgeted therefor in the relevant Operating and Capital Budget. The formof such operating statements shall be in form and substance satisfactory to the AdministrativeAgent, in consultation with the Independent Engineer, and shall be agreed upon with the Borrowerpromptly after the Closing Date.          8.23 Transactions with Affiliates. The Borrower shall not directly or indirectlyenter into any transaction that is otherwise permitted hereunder with or for the benefit of anAffiliate of the Borrower (including guarantees and assumptions of obligations of an Affiliate ofthe Borrower) except upon fair and reasonable terms no less favorable to the Borrower than would beobtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of theBorrower, and in no case without prior approval of the Administrative Agent. Prior to enteringinto any agreement with its Affiliate, the Borrower shall deliver to the Administrative Agent (x) acertificate of an Authorized Officer of the Borrower describing such transaction in reasonabledetail and certifying as to the satisfaction of conditions set forth in this Section 8.23 and (y)Ancillary Documents in connection therewith. Each Project Document entered into with an Affiliateas of the Closing Date is listed on Schedule 7.15(j).          8.24 Final Survey and Title Policy. The Borrower shall promptly, and in any event asa condition precedent to the Conversion Date:          (a) cause the Title Company to deliver a date down endorsement to the Title Policy indicatingthat there has been no change in the state of title to any of the Trust Estate, which endorsementshall have the effect of updating the date of the Title Policy as of such date and deleting: (i)any exception in connection with pending disbursements, (ii) any exception with respect tomechanics’ and materialmen’s liens and (iii) any exception with respect to survey matters (exceptto refer to and insure in accordance with the Survey), with respect to the Project covered by suchTitle Policy; and          (b) deliver to the Administrative Agent final executed version of the Survey for the ProjectFacility Site reflecting the “as-built” condition of the Project, in form and substance reasonablysatisfactory to each Lender and satisfactory to the Title Insurance Company, dated no earlier thanthirty (30) days prior to the date such final Survey is delivered, and showing no encroachment orencumbrance other than those consented to in writing by the Administrative Agent and showingcompliance with all setback requirements.
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          8.25 Other Documents and Information. The Borrower shall furnish the AdministrativeAgent (with sufficient copies for each Lender):          (a) promptly after the filing thereof, a copy of each filing, certification, waiver,exemption, claim, declaration, or registration made with respect to Government Approvals to beobtained or filed by the Borrower with any Government Authority, other than such filings,certifications, waivers, exemptions, claims, declarations, or registrations that are routine orministerial in nature and in respect of which a failure (individually or on an aggregate basis) tofile could not reasonably be expected to have a Material Adverse Effect;          (b) promptly after receipt or publication thereof, a copy of each Government Approvalobtained by the Borrower (other than such Government Approvals obtained by the Borrower in theordinary course of its business);          (c) promptly upon obtaining knowledge thereof, a description of each material change in thestatus of any Government Approval identified on Schedule 7.05(a) and Schedule7.05(b);          (d) promptly after the delivery thereof to the addressee, a copy of each material notice,demand or other communication delivered by the Borrower pursuant to any Financing Document; and          (e) on every twelve (12) month interval after the Closing Date during the Term, a certificatefrom the Insurance Consultant certifying the sufficiency of insurance in accordance with the termsof this Agreement, in a form and substance acceptable to the Administrative Agent.          8.26 Cooperation. The Borrower shall perform such acts as are reasonably requested bythe Administrative Agent to carry out the intent of, and transactions contemplated by, thisAgreement and the other Transaction Documents. The Borrower will cooperate with the IndependentEngineer so that the Independent Engineer may provide, no later than thirty (30) days after receiptof all data, a report to the Lenders reviewing the operation and maintenance of the Project for theprior fiscal year.          8.27 Performance Tests. The Administrative Agent and the Independent Engineer havethe right to witness and verify the Performance Tests. The Borrower shall give the AdministrativeAgent and the Independent Engineer notice regarding each proposed Performance Test no less thanfive (5) Business Days prior to any Performance Test. If, upon completion of any PerformanceTests, the Borrower has decided to use such Performance Tests as the basis for declaring the FinalCompletion Date, the Borrower shall so notify the Administrative Agent and the Independent Engineerand shall deliver a copy of all test results supporting the results of such Performance Test,accompanied by supporting data and calculations including a report that indicates the Borrower’spreliminary opinions as to results the Performance Tests (each a “Performance Test Report”)and the Independent Engineer will, upon a thorough review of such Performance Test Report, certifyin writing to the Administrative Agent, within five (5) Business Days of the receipt of suchPerformance Test Report, the results of the Performance Tests and confirming that such PerformanceTests were
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performed in accordance with applicable biodiesel industry standards and havedemonstrated that the Project meets the Performance Criteria, or deliver a report to theAdministrative Agent and the Borrower setting forth in reasonable detail any objections of theIndependent Engineer to such Performance Test Report. If any such objections are made, then theBorrower shall be permitted to address such objections to the reasonable satisfaction of theIndependent Engineer or conduct additional Performance Tests in accordance with this Section8.27.          8.28 Separateness. The Borrower shall comply at all times with the separatenessprovisions set forth on Schedule 7.26.          8.29 Suspension or Abandonment. The Borrower shall not (i) permit or suffer to existan Event of Abandonment or (ii) order, allow to subsist or consent to any suspension of work inexcess of sixty (60) days under any Project Document, other than a suspension of work due to aforce majeure event under such Project Document, in each such case without the prior writtenapproval of the Majority Lenders.          8.30 Mechanics Liens. Borrower at no time shall permit one or more Mechanics’ Liens,or any other affidavit of Liens, to be recorded against all or any portion of the Project FacilitySite claiming an amount, individually or in the aggregate, in excess of $50,000 (unless such Liensare being Contested and could not reasonably be expected to have a Material Adverse Effect).**ARTICLE IX****EVENTS OF DEFAULT**          9.01 Events of Default; Remedies. If one or more of the following events (the“Events of Default”) shall occur and be continuing:          (a) The Borrower shall (i) default in the payment when due of any principal of any Loan,whether at the due date thereof or at a date fixed for prepayment thereof or otherwise or (ii)default in the payment when due of any interest on any Loan or any fee or any other amount payableby it under this Agreement or under any other Financing Document and the default described in thisclause (ii) shall continue unremedied for a period of three (3) Business Days after theoccurrence of such default; or          (b) (A) The Borrower shall default for a period beyond any applicable grace period (i) in thepayment of any principal, interest or other amount due under any agreement involving Indebtednessand the outstanding amount or amounts payable under any such agreement equals or exceeds $250,000in the aggregate or (ii) in the performance of any obligation due under any agreement involvingIndebtedness if in the case of this clause (ii), pursuant to such default, the holder of theobligation concerned has accelerated the maturity of any Indebtedness evidenced thereby whichequals or exceeds $250,000 in the aggregate; or (B) The Project Sponsor shall default for a periodbeyond any applicable grace period (i) in the payment of any principal, interest or other amountdue the Debentures or the Debenture Security Agreement and the outstanding amount or amountspayable under any such agreement equals or exceeds $250,000 in the aggregate or (ii) in theperformance of any obligation due
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under the Debentures or the Debenture Security Agreement if in case of this clause (ii), pursuant to such default, the holder of the obligation concerned hasaccelerated the maturity of any Indebtedness evidenced thereby which equals or exceeds $250,000 inthe aggregate;          (c) (i) Any representation or warranty made or deemed made by the Borrower in this Agreementor any other Financing Document, the Debentures or the Debenture Security Agreement or (ii) anyrepresentation, warranty or statement in any certificate, financial statement or other documentfurnished to the Administrative Agent or any Lender by or on behalf of the Borrower or (iii) anyrepresentation or warranty made or deemed made by any Material Project Party in connection withany Transaction Document or (iv) any representation, warranty or statement in any certificate,financial statement or other document furnished to the Administrative Agent or any Lender by or onbehalf of any Material Project Party shall prove to have been false or misleading in any materialrespect as of the time made or deemed made, confirmed or furnished; provided, that suchmisrepresentation or such false statement shall not constitute an Event of Default if such condition or circumstance is (A)subject to cure, as determined by the Majority Lenders in their reasonable judgment and (B)remedied within thirty (30) days after written notice of such default from the AdministrativeAgent; or          (d) (i) The Borrower shall fail to observe or perform any covenant or agreement contained inSection 8.01(c), 8.01(e), 8.01(f), 8.02, 8.03, 8.04(b),8.05(a), 8.05(b), 8.05(c), 8.05(d), 8.05(l),8.05(m), 8.07, 8.08, 8.09, 8.10, 8.11,8.12, 8.13, 8.14, 8.15, 8.16(a), 8.17,8.18(c), 8.28,8.29 or 8.30 or shall default in the performance ofany of its obligations contained in any Security Document and shall fail to cure such defaultwithin the grace period specified therein, if any; or          (e) The Borrower shall default in the performance of any of its covenants or obligations tobe performed or observed by it under this Agreement or any other Transaction Document (nototherwise addressed in this Section 9.01, including, for the avoidance of doubt,Sections 9.01(s) and (t)) and such default shall continue unremedied for a periodof thirty (30) days after written notice of such default (specifying such default and requiringremedy thereof) from the Administrative Agent; or          (f) A Bankruptcy shall occur with respect to the Borrower; or          (g) A Bankruptcy shall occur with respect to (i) the Project Sponsor, or (ii) any otherMaterial Affiliate Project Party (A) that could reasonably be expected to have a Material AdverseEffect on the Project or (B) and the Borrower fails to replace such Material Project Party with aPerson reasonably satisfactory to the Majority Lenders within ninety (90) days; or          (h) (i) The Liens in favor of the Secured Parties under the Security Documents shall at anytime cease to constitute valid and perfected Liens granting a first priority security interest inthe Collateral (subject to Permitted Liens and Permitted Exceptions) to the Secured Parties, (ii)except for expiration in accordance with its terms, any of the Security Documents shall at anytime for any reason cease to be valid and binding or in full force and effect or (iii) theenforceability of any Security Document shall be contested by any
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Person other than a Secured Party, and in the case of clause (i) or (ii) (unless the event set forth inclause (ii) is the result of a declaration as set forth in clause (i) below), suchcircumstance continues unremedied for more than five (5) Business Days after notice of suchcircumstance from the Administrative Agent; or          (i) Except as otherwise addressed in this Section 9.01, the Borrower under a SecurityDocument (including each counterparty to a Consent and Agreement) shall default in the performanceof any of its obligations (other than a payment obligation, which is governed by other provisionsof Section 9.01) under such Security Document and such default shall continue unremediedfor more than thirty (30) days after the occurrence thereof; provided, that if suchdefault constitutes a contest or repudiation of the enforceability of such Security Documentagainst the Borrower, such event shall be governed by either paragraph (h) or (n)of this Section 9.01; or          (j) A final judgment or judgments for the payment of money in excess of, $250,000 in theaggregate, in excess of the maximum amount covered by insurance required to be maintained pursuantto Section 8.05, shall be rendered by one or more Government Authorities, arbitraltribunals or other bodies having jurisdiction against the Borrower and the same shall not bedischarged (or provision shall not be made for such discharge), or a stay of execution shall notbe procured, within thirty (30) days from the date of entry of such judgment or judgmentsprovided, that any judgments that shall have been cash collateralized through additionalcontributions of equity to the Borrower shall not be a Default or Event of Default under thisclause (j);or          (k) An ERISA Event shall have occurred that, in the opinion of the Majority Lenders, whentaken together with all other ERISA Events that have occurred, could reasonably be expected toresult in a Material Adverse Effect; or          (l) The Borrower shall default in the performance of its obligation to maintain in full forceand effect the insurance required under paragraph (a), (b), (c) or(d) of Section 8.05 and, as long as there is not a Material Adverse Effect, suchinsurance is not replaced with insurance complying with the requirements of such sections withinfifteen (15) Business Days after such default; or          (m) Any Government Approval shall be Impaired and (i) such Impairment continues to exist formore than sixty (60) days or such Government Approval is not replaced within sixty (60) days and(ii) such Impairment could reasonably be expected to have a Material Adverse Effect; or          (n) (i) This Agreement or any other Financing Document shall have been declared in a finalnon-appealable judgment to be unenforceable, (ii) any Financing Document, except for any SecurityDocument, shall otherwise cease to be valid and binding or in full force and effect or shall bematerially Impaired (in each case, except in connection with its expiration in accordance with itsterms in the ordinary course (and not related to any default hereunder)) or (iii) any party to aFinancing Document shall have expressly repudiated its obligations thereunder; or
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          (o) (i) Any Material Project Document shall at any time for any reason cease to be valid andbinding or in full force and effect or shall be materially Impaired (in each case, except inconnection with its expiration in accordance with its terms in the ordinary course (and notrelated to any default thereunder)) or (ii) any Material Project Party shall be in materialdefault (after any applicable notice, grace period or both) under any Material Project Documentand the Borrower fails to replace such Material Project Document with an agreement, in form andsubstance reasonably satisfactory to the Majority Lenders, entered into (together with allAncillary Documents) within thirty (30) days of the Borrower’s Knowledge of such material default;provided, further, that during such period of time between which a MaterialProject Party is in material default under a Material Project Document and before a replacementMaterial Project Document is provided, the Administrative Agent (in consultation with theIndependent Engineer) shall appoint an interim replacement Material Project Party; or          (p) An Event of Abandonment shall have occurred; or          (q) An Environmental Claim shall have been brought against the Borrower, which, individuallyor in the aggregate, could reasonably be expected to have a Material Adverse Effect; or          (r) An Event of Taking shall have occurred with respect to all or substantially all of theProject, or otherwise could reasonably be expected to have a Material Adverse Effect, or an Eventof Total Loss occurs; or          (s) The Conversion Date shall not have occurred by the Date Certain; or          (t) A Change in Control shall have occurred.THEREUPON: (1) in the case of an Event of Default other than the one referred to in paragraph(f) of this Article IX with respect to the Borrower, the Administrative Agent may, and,upon request of the Supermajority Lenders, shall, by written notice to the Borrower, take either orboth of the following actions, at the same or different times, (x) terminate the Loan Commitments,and thereupon the Loan Commitments shall terminate immediately and (y) declare the principal amountthen outstanding of, and the accrued interest on, the Loans and all other amounts payable by theBorrower hereunder and under the Notes (including any amounts payable under Section 5.03 or5.04) to be forthwith due and payable (or both), whereupon such amounts shall beimmediately due and payable without presentment, demand, protest or other formalities of any kind,all of which are hereby expressly waived by the Borrower and (2) in the case of the occurrence ofan Event of Default referred to in paragraph (f) of this Article IX, with respectto the Borrower, the Loan Commitments shall automatically terminate and the principal amount thenoutstanding of, and the accrued interest on, the Loans and all other amounts payable by theBorrower under this Agreement and under the Notes and the other Financing Documents (including anyamounts payable under Section 5.03 or 5.04) shall automatically become immediatelydue and payable without presentment, demand, protest or other formalities of any kind, all of whichare hereby expressly waived by the Borrower. In the case of any Event of Default, in addition tothe exercise of remedies set forth in clauses (1) and (2) above, the CollateralAgent shall have the right, upon the consent or at the request of the Supermajority Lenders, toexercise any and all rights of a secured creditor with respect to the Collateral.
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**ARTICLE X****THE ADMINISTRATIVE AGENT**          10.01 Appointment, Powers and Immunities. Each Lender hereby irrevocably appoints andauthorizes the Administrative Agent to act as its agent under this Agreement and the otherFinancing Documents with such powers as are specifically delegated to the Administrative Agent bythe terms of the Financing Documents, together with such other powers as are reasonably incidentalto such powers. The Administrative Agent (which term as used in this sentence and in Section10.05 and the first sentence of Section 10.06 shall include reference to its affiliatesand its own and its affiliates’ officers, directors, employees, representatives and agents): (a)shall have no duties or responsibilities except those expressly set forth in the FinancingDocuments, and shall not by reason of any Financing Document be a trustee for any Lender; (b) shall not be responsible tothe Lenders for any recitals, statements, representations or warranties contained in any FinancingDocument, or in any certificate or other document referred to or provided for in, or received byany of them under, any Financing Document, or for the value, validity, effectiveness, genuineness,enforceability or sufficiency of any Financing Document or any other document referred to orprovided for in any Financing Document or for any failure by the Borrower or any other Person toperform any of its obligations under any Financing Document; (c) shall not be required to initiateor conduct any litigation or collection proceedings under any Financing Document and (d) shall notbe responsible for any action taken or omitted to be taken by it under any Financing Document orunder any other document or instrument referred to or provided for in any Financing Document or inconnection with any Financing Document, except for its own gross negligence or willful misconduct.The Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible forthe negligence or misconduct of any such agents or attorneys-in-fact reasonably selected by it ingood faith. The Administrative Agent may deem and treat the payee of any Note as the holder ofsuch Note for all purposes of the Financing Documents unless and until a notice of the assignmentor transfer of such Note shall have been filed with the Administrative Agent, together with theconsent of the Borrower to such assignment or transfer (to the extent provided in Section11.06(b)).          10.02 Reliance by Administrative Agent. The Administrative Agent shall be entitled torely upon any certification, notice or other communication (including any made by telephone,telecopy, telex, telegram or cable) reasonably believed by it to be genuine and correct and to havebeen signed or sent by or on behalf of the proper Person or Persons, and upon advice and statementsof legal counsel, independent accountants and other experts selected by the Administrative Agent.As to any matters not expressly provided for by any Financing Document, the Administrative Agentshall in all cases be fully protected in acting, or in refraining from acting, under any FinancingDocument in accordance with instructions given by the Supermajority Lenders or Majority Lenders or,if provided in this Agreement, in accordance with the instructions given by the all of the Lendersas is required in such circumstance, and such instructions of such Lenders and any action taken orfailure to act pursuant to such instructions shall be binding on all of the Lenders.          10.03 Defaults. The Administrative Agent shall not be deemed to have knowledge ornotice of the occurrence of a Default (other than the nonpayment of principal of or
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interest on Loans or of fees payable hereunder) unless the Administrative Agent has received notice from aLender or the Borrower specifying such Default and stating that such notice is a “Notice ofDefault”. In the event that the Administrative Agent receives such a notice of the occurrence of aDefault, the Administrative Agent shall give prompt notice of such receipt to the Lenders (andshall give each Lender prompt notice of each such nonpayment). The Administrative Agent shall(subject to Section 10.07) take such action with respect to such Default as shall bedirected by the Supermajority Lenders or all of the Lenders; provided, that unless anduntil the Administrative Agent shall have received such directions, the Administrative Agent may(but shall not be obligated to) take such action, or refrain from taking such action, with respectto such Default as it shall deem advisable in the best interest of the Lenders except to the extentthat this Agreement expressly requires that such action be taken, or not be taken, only with the consent or uponthe authorization of the Supermajority Lenders or all of the Lenders.          10.04 Rights as a Lender. With respect to its Loan Commitments and the Loans made byit, WestLB (and any successor acting as Administrative Agent) in its capacity as a Lender under theFinancing Documents shall have the same rights, privileges and powers under the Financing Documentsas any other Lender and may exercise the same as though it were not acting as the AdministrativeAgent, and the term “Lender” or “Lenders” shall, unless the context otherwise indicates, includethe Administrative Agent in its individual capacity. WestLB (and any successor acting asAdministrative Agent) and its affiliates may (without having to account for the same to any Lender)accept deposits from, lend money to, make investments in and generally engage in any kind ofbanking, trust or other business with the Borrower (and any Subsidiaries or Affiliates of theBorrower) as if it were not acting as the Administrative Agent, and WestLB and its affiliates mayaccept fees and other consideration from the Borrower for services in connection with thisAgreement or otherwise without having to account for the same to the Lenders.          10.05 Indemnification. The Lenders agree to indemnify (x) the Administrative Agent(to the extent not reimbursed under Section 11.03, but without limiting the obligations ofthe Borrower under such Section 11.03) and (y) the Indemnified Persons (as such term isdefined in the Collateral Agency Agreement, to the extent not reimbursed under Section 8.02 of theCollateral Agency Agreement, but without limiting the obligations of the Borrower under suchSection 8.02), in each case ratably in accordance with the aggregate principal amount of the Loansheld by the Lenders (or, if no Loans are at the time outstanding, ratably in accordance with theirrespective Loan Commitments), for any and all liabilities, obligations, losses, damages, penalties,actions, judgments, suits, costs, expenses or disbursements of any kind and nature whatsoever whichmay be imposed on, incurred by or asserted against such Person (including by any Lender) arisingout of or by reason of any investigation or any way relating to or arising out of this Agreement orany other Transaction Document or any other documents contemplated by or referred to in thisAgreement or in the other Transaction Documents or the transactions contemplated by this Agreementunder Section 11.03, but excluding, unless a Default has occurred and is continuing, normaladministrative costs and expenses incident to the performance of its agency duties) or theenforcement of any of the terms of this Agreement or of the other Transaction Documents or of anysuch other documents; provided, that no Lender shall be liable for any of the foregoing tothe extent they arise from the gross negligence or willful misconduct of the Person to beindemnified.
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          10.06 Non-Reliance on Administrative Agent and Other Lenders. Each Lender agrees thatit has, independently and without reliance on the Administrative Agent or any other Lender, andbased on such documents and information as it has deemed appropriate, made its own credit analysisof the Borrower and decision to enter into this Agreement and that it will, independently andwithout reliance upon the Administrative Agent or any other Lender, and based on such documents andinformation as it shall deem appropriate at the time, continue to make its own analysis anddecisions in taking or not taking action under this Agreement or any other Transaction Document.The Administrative Agent shall not be required to keep itself informed as to the performance orobservance by the Borrower or any other Person of this Agreement or any other Transaction Documentor any other document referred to or provided for in this Agreement or in any other TransactionDocument or to inspect the Properties or books of the Borrower or such other Person. Except fornotices, reports and other documents and information expressly required to be furnished to theLenders by the Administrative Agent or the Collateral Agent under this Agreement, neither theAdministrative Agent nor the Collateral Agent shall have any duty or responsibility to provide anyLender with any credit or other information concerning the affairs, financial condition or businessof the Borrower (or any of its Affiliates) which may come into the possession of the AdministrativeAgent, the Collateral Agent or any of their affiliates.          10.07 Failure to Act. Except for action expressly required of the AdministrativeAgent under this Agreement and under the other Transaction Documents to which the AdministrativeAgent is intended to be a party, the Administrative Agent shall in all cases be fully justified infailing or refusing to act under this Agreement and under the other Transaction Documents unless itshall receive further assurances to its reasonable satisfaction from the Lenders of theirindemnification obligations under Section 10.05 against any and all liability and expensewhich may be incurred by it by reason of taking or continuing to take any such action.          10.08 Resignation or Removal of Administrative Agent. Subject to the appointment andacceptance of a successor Administrative Agent as provided below, the Administrative Agent mayresign at any time by notice to the Lenders and the Borrower, and the Administrative Agent may beremoved at any time with or without cause by the Supermajority Lenders. Upon any such resignationor removal, the Supermajority Lenders shall have the right to appoint a successor AdministrativeAgent, which successor Administrative Agent shall (so long as no Event of Default has occurred andis continuing) be reasonably acceptable to the Borrower. If no successor Administrative Agentshall have been so appointed by the Supermajority Lenders and shall have accepted such appointmentwithin thirty (30) days after the retiring Administrative Agent’s giving of notice of resignationor the Supermajority Lenders’ removal of the retiring Administrative Agent, then the retiringAdministrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, whichshall be an Acceptable Bank which has an office in New York, New York, which successorAdministrative Agent shall (so long as no Event of Default has occurred and is continuing) bereasonably acceptable to the Borrower. Upon the acceptance of any appointment as AdministrativeAgent by a successor Administrative Agent, such successor Administrative Agent shall succeed to and become vested with all the rights, powers, privileges and duties ofthe retiring Administrative Agent, and the retiring Administrative Agent shall be discharged fromits duties and obligations under this Agreement and the other Transaction Documents to which it isintended to be a party. After any retiring Administrative Agent’s resignation or removal asAdministrative Agent, the provisions
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of this Article X shall continue in effect for itsbenefit in respect of any actions taken or omitted to be taken by it while it was acting as theAdministrative Agent.          10.09 Consents under Transaction Documents. Except as otherwise provided inSection 11.04 with respect to any modification, supplement or waiver under this Agreement,the Administrative Agent shall, upon the prior consent of the Majority Lenders (except to theextent otherwise provided in this Agreement), consent to (and shall direct the Collateral Agent, ifapplicable, to enter into) any modification, supplement or waiver under any other such TransactionDocument to which the Administrative Agent or the Collateral Agent is intended to be a party;provided, that without the prior consent of each Lender, the Administrative Agent shall not(and, if applicable, shall not direct the Collateral Agent to) (except as contemplated in thisAgreement or in the Security Documents) release any Collateral or otherwise terminate any Lienunder any Security Document, or agree to additional obligations being secured by the Collateral(unless the Lien for such additional obligations shall be junior to the Lien in favor of the otherobligations secured by such Security Document and is otherwise permitted under this Agreement orthe Security Documents), except that no such consent shall be required, and the AdministrativeAgent is hereby authorized, to release (and to direct the Collateral Agent to release) any Liencovering Property of the Borrower or any other Person which is the subject of a disposition ofProperty of the Borrower or such other Person which is permitted or contemplated under thisAgreement or under the relevant Security Document or to which the Lenders have otherwise consented.          10.10 Appointment of Collateral Agent. Each Lender hereby irrevocably authorizes theAdministrative Agent to act as its agent under the Collateral Agency Agreement to appoint theCollateral Agent and the Depositary thereunder on behalf of such Lender and the other SecuredParties, such appointment subject to the terms and conditions of such agreement.          10.11 Reports; Etc. The Administrative Agent shall deliver to each Lender a copy ofeach budget, financial statement and other report delivered by the Borrower to it pursuant to theterms of this Agreement promptly following receipt of such information.          10.12 Lead Arranger, etc. The Lead Arranger, Bookrunner and Syndication Agent, ineach of their capacities as such, shall not have any obligations or liabilities hereunder.**ARTICLE XI****MISCELLANEOUS**          11.01 Waiver. No failure on the part of the Administrative Agent or any Lender toexercise and no delay in exercising, and no course of dealing with respect to, any right, remedy,power or privilege under this Agreement, any Note or any other Financing Document shall operate asa waiver of such right, remedy, power or privilege, and no single or partial exercise of any right,remedy, power or privilege under this Agreement, any Note or any other Financing Document shallpreclude any other or further exercise of such right, remedy, power or privilege, or the exerciseof any other right, power or privilege. The remedies provided in this Agreement are cumulative andnot exclusive of any remedies provided by law. All covenants of the Borrower and the ProjectSponsor set forth in this Agreement and the other Financing
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Documents and all Events of Default setforth in Section 9.01 shall be given independent effect so that, in the event that aparticular action or condition is not permitted by the terms of any such covenant or would resultin a Default, the fact that such event or condition could be permitted by an exception to, or beotherwise within the limitations of, another covenant or another Event of Default shall not avoidthe occurrence of a Default or an Event of Default in the event that such action is taken orcondition exists.          11.02 Notices. All notices, requests and other communications provided for in thisAgreement and under the other Financing Documents (including any modifications of, or waivers orconsents under, this Agreement) shall be given or made in writing (including by facsimile)delivered to the intended recipient at the “Address for Notices” specified below its name on thesignature pages of this Agreement or in the relevant section as specified in other FinancingDocuments, or as to any party, at such other address as shall be designated by such party in anotice to each other party. Except as otherwise provided in this Agreement, all suchcommunications shall be deemed to have been duly given when delivered in person or by courierservice and signed for against receipt thereof, upon receipt of facsimile or three Business Daysafter depositing it in the United States mail with postage prepaid and properly addressed;provided, that no notice to the Administrative Agent shall be effective until received bythe Administrative Agent.          11.03 Expenses; Indemnification; Etc. The Borrower agrees to pay or reimburse each ofthe Lenders and the Administrative Agent for:          (a) all reasonable out-of-pocket costs and expenses of the Administrative Agent (includingthe reasonable fees and expenses of Milbank, Tweed, Hadley & McCloy LLP, counsel to theAdministrative Agent (or such other counsel that the Administrative Agent may select from time totime which, so long as no Default has occurred and is continuing, shall be reasonably satisfactoryto the Borrower)) and experts (including the Independent Engineer, the Independent InsuranceConsultant, the Independent Market Consultant and the Independent Environmental Consultant) engaged by the Administrative Agent or the Lenders from time totime, in connection with (i) the negotiation, preparation, execution and delivery of thisAgreement and the other Transaction Documents and the extension of credit under this Agreement,(ii) any amendment, modification or waiver of any of the terms of this Agreement or any otherTransaction Document and (iii) the syndication of Loan Commitments or Loans,          (b) all reasonable costs and expenses of the Lenders and the Administrative Agent (includingreasonable counsels’ fees and expenses and reasonable experts’ fees and expenses incurred by or onbehalf of the Administrative Agent) in connection with (i) any Default and any enforcement orcollection proceedings resulting from such Default or in connection with the negotiation of anyrestructuring or “work-out” (whether or not consummated) of the obligations of the Borrower underthis Agreement or the obligations of any Project Party under any Project Document and (ii) theenforcement of this Section 11.03(b),          (c) all reasonable out-of-pocket expenses incurred by the LC Issuing Bank in connection withthe issuance, amendment, renewal, or extension of any Letter of Credit or any demand for paymentthereunder, and
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          (d) all transfer, stamp, documentary or other similar Taxes, assessments or charges levied byany Government Authority in respect of this Agreement or any other Transaction Document or anyother document referred to in this Agreement or in any such other Transaction Document and allcosts, expenses, Taxes, assessments and other charges incurred in connection with any filing,registration, recording or perfection of any Lien contemplated by this Agreement or any otherTransaction Document to which the Administrative Agent or the Collateral Agent is intended to be aparty or any other document referred to in this Agreement or in any such other TransactionDocument.          The Borrower hereby agrees to indemnify the Administrative Agent and each Lender and theirrespective officers, directors, employees, representatives, attorneys and agents (each, an“Indemnitee”) from, and shall hold each of them harmless against, any and all losses,liabilities, claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs ordisbursements of any kind or nature whatsoever (including the reasonable fees and expenses ofcounsel for each Indemnitee in connection with any investigative, administrative or judicialproceeding commenced or threatened, whether or not such Indemnitee shall be designated a party toany such proceeding) that may at any time (including at any time following the Termination Date) beimposed on, asserted against or incurred by an Indemnitee as a result of, or arising out of, or inany way related to or by reason of any claim with respect to (i) any of the transactionscontemplated by this Agreement or by any other Transaction Document or the execution, delivery orperformance of this Agreement or any other Transaction Document, (ii) the extensions of creditunder this Agreement or the actual or proposed use by the Borrower of any of the extensions ofcredit under this Agreement (including any refusal by the LC Issuing Bank to honor a demand forpayment under a Letter of Credit if the documents presented in connection with such demand do notstrictly comply with the terms of such Letter of Credit) or the grant to the Administrative Agentor the Collateral Agent for the benefit of, or to any of, the Secured Parties of any Lien on theCollateral or in any other Property of the Borrower or any other Person or any shareholding,partnership or equity interest in the Borrower or any other Person and (iii) the exercise by the Administrative Agent or the Collateral Agent (or theother Secured Parties) of their rights and remedies (including foreclosure) under any SecurityDocument (but excluding, as to any Indemnitee, any Excluded Taxes, any such losses, liabilities,claims, damages, expenses, obligations, penalties, actions, judgments, suits, costs ordisbursements incurred by reason of the gross negligence or willful misconduct of such Indemniteeas finally determined by a court of competent jurisdiction or attributable to actions or eventsoccurring after the Borrower is divested of the applicable Collateral). Without limiting thegenerality of the foregoing, the Borrower hereby agrees to indemnify each Indemnitee from, andshall hold each Indemnitee harmless against, any losses, liabilities, claims, damages, reasonableexpenses, obligations, penalties, actions, judgments, suits, costs or disbursements described inthe preceding sentence (including any Lien filed against the Project by any Government Authoritybut excluding, as provided in the preceding sentence, any such losses, liabilities, claims,damages, expenses, obligations, penalties, actions, judgments, suits, costs or disbursementsincurred by reason of the gross negligence or willful misconduct of such Indemnitee) (collectively,“Losses”) arising under any Environmental Law or relating to any Environmental Claim as aresult of the past, present or future facilities or operations of the Borrower or any predecessorsto Borrower, or the past, present or future condition or operation of the Project or ProjectFacility Site, or any Release, threatened Release or Use of any Hazardous Materials with respect tothe Project or Project Facility Site (including any such
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Release, threatened Release or Use whichoccurs during any period when such Indemnitee shall be in possession of any such site or facilityfollowing the exercise by the Administrative Agent or any other Secured Party of any of its rightsand remedies under this Agreement or under any Financing Document or any other Transaction Documentwhere such Release, threatened Release or Use commenced or occurred prior to such period);provided, however, that the Borrower shall have no such obligation to indemnify anyIndemnitee to the extent that any such Losses are directly and primarily caused by suchIndemnitee’s gross negligence or willful misconduct as determined by a final non-appealablejudgment of a court of competent jurisdiction.          11.04 Amendments; Etc. Except as otherwise expressly provided in this Agreement, anyprovision of this Agreement may be amended or modified only by an instrument in writing signed bythe Borrower, the Administrative Agent and the Majority Lenders, or by the Borrower and theAdministrative Agent with the consent of the Majority Lenders, and any provision of this Agreementmay be waived by the Majority Lenders or by the Administrative Agent acting with the consent of theMajority Lenders; provided, that (a) no amendment, modification or waiver shall, unless byan instrument signed by all of the Lenders or by the Administrative Agent acting with the consentof all of the Lenders (i) increase or extend the term, or extend the time or waive any requirementfor the termination of the Loan Commitments, (ii) extend the scheduled date for the payment ofprincipal of or interest on any Loan or any fee under this Agreement, (iii) reduce the amount ofany such payment of principal, (iv) reduce the rate at which interest is payable on any such amountor any fee is payable under this Agreement, (v) alter the rights or obligations of the Borrower toprepay Loans, (vi) alter the terms of this Section 11.04 or (vii) amend the definition ofthe terms “Supermajority Lenders” or “Majority Lenders” or modify in any other manner the number orpercentage of the Lenders required to give any consent or make any determinations or waive anyrights under this Agreement or to modify any provision of this Agreement, (b) any amendment, modification, waiver or supplement of Article X shallrequire the consent of the Administrative Agent and, only to the extent Section 10.05 orSection 10.06 would be amended, modified or supplemented as a result thereof, theCollateral Agent and (c) any amendment of the definition of the term “Permitted Swap Provider” or“Secured Party” shall require the consent of each Permitted Swap Provider that is a Lenderhereunder.          Anything in this Agreement to the contrary notwithstanding, if at any time when the conditionsprecedent set forth in Article VI to any extension of credit under this Agreement are, inthe opinion of the Supermajority Lenders, satisfied, any Lender that fails to fulfill itsobligations to make such extension of credit, shall, for so long as such failure shall continue,such Lender shall (unless the Supermajority Lenders, determined as if such Lender were not a“Lender” under this Agreement, shall otherwise consent in writing) be deemed for all purposesrelating to amendments, modifications, waivers or consents under this Agreement (including underthis Section 11.04 and under Section 10.09) and any other Financing Document tohave no Loans or Loan Commitments, shall not be treated as a “Lender” under this Agreement whenperforming the computation of Supermajority Lenders, Majority Lenders or each Lender, and shallhave no rights under the preceding paragraph of this Section 11.04; provided, thatany action taken by the other Lenders with respect to the matters referred to in clause (a)of the preceding paragraph shall not be effective as against such Lender.
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          11.05 Successors and Assigns. This Agreement shall be binding upon and inure to thebenefit of the parties to this Agreement and their respective successors and permitted assigns.          11.06 Assignments and Participations; Replacement of Lender.          (a) The Borrower may not assign its rights or obligations under this Agreement or under theNotes without the prior consent of all of the Lenders and the Administrative Agent.          (b) Each Lender may, (i) with notice to the Administrative Agent and the Borrower (providedthat no notice to the Borrower shall be required for an assignment if an Event of Default referredto in Section 9.01(f) shall have occurred and be continuing), assign to one or more EligibleAssignees all or a portion of its rights and obligations under this Agreement with respect to allor a portion of its Term Loan Commitments or Term Loans and, (ii) with the notice to theAdministrative Agent, the LC Issuing Bank and the Borrower (provided that no notice to theBorrower shall be required for an assignment if an Event of Default referred to in Section 9.01(f)shall have occurred and be continuing), assign to one or more Eligible Assignees all or a portionof its rights and obligations under this Agreement with respect to all or a portion of its WorkingCapital Loan Commitments or Working Capital Loans at the time owing to it; provided, thatin each case: (A) any such partial assignment shall be in an amount at least equal to $1,000,000(taking into account such Lender’s pro rata assignment of all of its Loans and Loan Commitments),or such other amount determined by the Administrative Agent; (B) each assignment by a Lender ofits Loans, Note or Loan Commitment shall be made in such a manner so that the same portion of its Loans, Note or LoanCommitment is assigned to the respective assignee; (C) any assignment of a Letter of CreditCommitment shall be to an Acceptable Bank; and (D) the Borrower and Administrative Agent maycontinue to deal solely and directly with the assigning Lender in connection with the interest soassigned until (1) written notice of such assignment, together with payment instructions,addresses and related information with respect to the assignee, shall have been given to theBorrower and the Administrative Agent by such assigning Lender and the assignee, and (2) theassigning Lender or assignee shall have delivered to the Borrower and the Administrative Agent anassignment and acceptance substantially in the form of the attached Exhibit K (the“Assignment and Acceptance”). Upon execution and delivery by the assignee toAdministrative Agent of the Assignment and Acceptance, and upon consent to such assignment andacceptance by the Administrative Agent and the Borrower, to the extent required above, theassignee shall have, to the extent of such assignment (unless otherwise provided in suchassignment with the consent of the Administrative Agent), the obligations, rights and benefits ofa Lender under this Agreement holding the Loan Commitment and Loans (or portions thereof) assignedto it (in addition to the Loan Commitment and Loans, if any, previously held by such assignee) andthe assigning Lender shall, to the extent of such assignment, be released from its Loan Commitment(or portion thereof) so assigned and relinquish its rights related thereto. Upon each suchassignment (other than such an assignment by WestLB) the assigning Lender shall pay theAdministrative Agent an assignment fee of $5,000. In furtherance of the foregoing, on the date ofany such assignment pursuant to this Section 11.06(b), the Borrower shall deliver to theassignee Lender and, if the assigning Lender has retained a portion of its Loans, such assigningLender, in exchange for the Notes previously delivered by the Borrower
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to the assigning Lender,appropriately completed Notes, dated the effective date of such assignment, payable to suchassigning Lender and to such assignee Lender, in an aggregate amount equal to their respectiveLoans and Loan Commitments, after giving effect to such assignment, and otherwise duly completed.          (c) A Lender, without the consent of the Borrower, the Lenders or the Administrative Agent,may sell or agree to sell to one or more other Persons a participation in all or any part of anyLoan held by it, or in its Loan Commitments (provided, that partial participations shallbe in an amount at least equal to $1,000,000 (taking into account such Lender’s pro rataparticipation of all of its Loans and Loan Commitments), or such other amount determined by theAdministrative Agent), in which event each purchaser of a participation (a “Participant”)shall have the rights, benefits and obligations of the provisions of Sections 5.02 and5.04 (except that any such Participant shall be entitled only to the extent that theLender from which such Participant acquired its participation is entitled, and such Lender makessuch claim on its own behalf because it would have otherwise incurred the same costs) with respectto its participation in such Loans and Loan Commitments (and the Borrower shall be directlyobligated to such Participant under such provisions) as if such Participant were a “Lender” forpurposes of such Section, but, except as otherwise provided in Section 4.07(c), shall nothave any other rights or benefits under this Agreement or any Note or any other FinancingDocument, including any voting rights under this Agreement (the Participant’s rights against suchLender in respect of such participation to be those set forth in the agreements executed by suchLender in favor of the Participant). All amounts payable by the Borrower to any Lender underArticle V in respect of Loans held by it, and its Loan Commitments, shall be determined asif such Lender had not sold or agreed to sell any participations in such Loans and Loan Commitments, and as if such Lender were funding each ofsuch Loan and Loan Commitments in the same way that it is funding the portion of such Loan andLoan Commitments in which no participations have been sold. In no event shall a Lender that sellsa participation agree with the Participant to take or refrain from taking any action under thisAgreement or under any other Financing Document except that such Lender may agree with theParticipant that it will not, without the consent of the Participant, agree to (i) increase orextend the term, or extend the time or waive any requirement for the reduction or termination, ofsuch Lender’s Loan Commitment, (ii) extend the date fixed for the payment of principal of orinterest on the related Loan or Loans, or any portion of any fee payable to the Participant, (iii)reduce the amount of any such payment of principal, (iv) reduce the rate at which interest ispayable on any amount under this Agreement, or reduce any fee or other amount payable to theParticipant to a level below the rate at which the Participant is entitled to receive suchinterest or fee, (v) alter the rights or obligations of the Borrower to prepay the related Loansor (vi) consent to any modification or waiver of this Agreement or of any Security Document to theextent that such waiver or modification requires the consent of each Lender under Section10.09.          (d) In the event that a Lender sells participations, such Lender, acting solely for thispurpose as a non-fiduciary agent of the Borrower, shall maintain a register on which it enters thename and address of all Participants in the Loans held by it (the “Participant Register”). A Loan(and the Note, if any, evidencing the same) may be participated in whole or in part, and theparticipation transferred in whole or in part, only by registration of such participation ortransfer on the Participant Register (and each Note shall expressly so provide).
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Any participationof such Loan (and the Note, if any, evidencing the same), and transfer of the participation, maybe effected only by the registration of such participation or transfer on the ParticipantRegister.          (e) Anything in this Section 11.06 to the contrary notwithstanding, any Lender mayassign or pledge all or any portion of its rights under this Agreement to secure any obligationsof such Lender, including any such pledge or assignment to any federal reserve lender or anyassignment to a special purpose trust or other entity for purposes of securitization of suchLender’s loans. No such assignment shall release the assigning Lender from its obligationshereunder.          (f) A Lender may furnish any information concerning the Borrower in the possession of suchLender from time to time to permitted Assignees and Participants (including prospective permittedAssignees and Participants), subject, however, to the provisions of Section 11.08(b).          (g) Anything in this Section 11.06 to the contrary notwithstanding, no Lender mayassign or participate any interest in any Loan held by it to the Borrower or any of its Affiliateswithout the prior consent of each Lender.          (h) If any Lender (such Lender a “Non-Consenting Lender”) has failed to consent to aproposed amendment, waiver, discharge or termination requiring the consent of the Required FundingLenders or all of the Lenders requested by the Borrower under or with respect to the FinancingDocuments, and with respect to which the Majority Lenders shall have granted their consent, then provided no Default or Event of Default then exists, the Borrowershall have the right (unless such Non-Consenting Lender grants such consent) to replace, at itssole expense and effort, such Non-Consenting Lender by requiring such Non-Consenting Lender toassign its Loans and Commitments hereunder, without recourse upon, warranty by, or expense to suchNon-Consenting Lender, to one or more Assignees reasonably acceptable to the Administrative Agent;provided that: (i) such Non-Consenting Lender shall have received, concurrently with suchassignment, a purchase price equal to the outstanding principal amount of its Loans, together withaccrued interest thereon, accrued fees and all other amounts payable to it hereunder, (ii) thereplacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a priceequal to the principal amount thereof plus accrued and unpaid interest thereon, (iii) theBorrower shall be liable to such Non-Consenting Lender for amounts payable under Section5.03 (as though Section 5.03 were applicable) if any Eurocurrency Loan owing to suchNon-Consenting Lender shall be purchased other than on the last day of the Interest Period relatedthereto and (iv) the replacement Lender shall consent to the proposed amendment, waiver, dischargeor termination. In connection with any such assignment the Borrower, the Administrative Agent,such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section11.06(b) (provided that the Borrower or replacement Lender shall pay the applicablefees). Any such replacement shall not be deemed to be a waiver of any rights that (A) theBorrower, the Administrative Agent or any other Lender shall have against the Non-ConsentingLender or (B) the Non-Consenting Lender shall have against the Borrower, the Administrative Agentor any other Lender.
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          (i) Notwithstanding any other provision contained in this agreement or any other FinancingDocument to the contrary, any lender may assign all or any portion of the loans or Notes held byit to any Federal Reserve Bank or the United States Treasury as collateral security pursuant toRegulation A of the Federal Reserve Board and any Operating Circular issued by such FederalReserve Bank, provided, however, that any payment in respect of such assigned Loans or Notes madeby the Borrower to or for the account of the assigning and/or pledging Lender in accordance withthe terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to suchassigned Loans or Notes to the extent of such payment. No such assignment shall release theassigning Lender from its obligation hereunder and in no event shall such Federal Reserve Bank beconsidered to be a “Lender” or be entitled to require the assigning Lender to take or omit to takeany action hereunder.          11.07 **SUBMISSION TO JURISDICTION; WAIVERS****. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TOTHIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT INTHE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OFNEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBYACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVEJURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY THEREOF. EACH OF THE PARTIESHERETO IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS INANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PARTIES HERETO AT ITS ADDRESSREFERRED TO IN THIS AGREEMENT OR THE COLLATERAL AGENCY AGREEMENT. EACH OF THE PARTIES HERETOHEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY DO SO UNDER APPLICABLE LAW, ANY OBJECTIONWHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS ORPROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TOABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THATANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNERPERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.**          11.08 Marshalling; Recapture. None of the Administrative Agent or any Lender shall beunder any obligation to marshal any assets in favor of the Borrower or any other party or againstor in payment of any or all of the Secured Obligations. To the extent any Lender receives anypayment by or on behalf of the Borrower, all or a portion of which payment is subsequentlyinvalidated, declared to be fraudulent or preferential, set aside or required to be repaid to theBorrower or its estate, trustee, receiver, custodian or any other party under any bankruptcy orinsolvency law, state or federal law, common law or equitable cause, then to the
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extent of suchpayment or repayment, the obligation or part thereof which has been paid, reduced or satisfied bythe amount so repaid shall be reinstated by the amount so repaid and shall be included within theliabilities of the Borrower to such Lender as of the date such initial payment, reduction orsatisfaction occurred.          (a) Treatment of Certain Information; Confidentiality The Borrower acknowledges that(i) from time to time financial advisory, investment banking and other services may be offered orprovided to it (in connection with this Agreement or otherwise) by each Lender or by one or moresubsidiaries or affiliates of such Lender and (ii) information delivered to each Lender by theBorrower may be provided to each such subsidiary and affiliate, it being understood that any suchsubsidiary or affiliate receiving such information shall be bound by the provisions of Section11.08(b) as if it were a Lender under this Agreement.          (b) Each of the Lenders hereby agrees (on behalf of itself and each of its affiliates,directors, officers, employees and representatives) to keep confidential, in accordance with itscustomary procedures for handling confidential information of this nature and in accordance withsafe and sound banking practices, any non-public information supplied to it by or on behalf of theBorrower or Project Sponsor pursuant to this Agreement that is identified by the Borrower as beingconfidential at the time the same is delivered to such Lender or the Administrative Agent, otherthan information provided by the Borrower before the Closing Date which shall be treated asconfidential; provided, that nothing in this Agreement shall limit the disclosure of anysuch information (i) to the extent required by any Government Rule or judicial process, (ii) to counsel for any of the Lenders or theAdministrative Agent, so long as counsel to such parties agrees to maintain the confidentiality ofthe information as provided in this Section 11.08(b), (iii) to bank examiners, auditors oraccountants, (iv) to the Administrative Agent or any other Lender (or any subsidiary or affiliateof any Lender referred to in Section 11.08(a)), (v) after notice to the Borrower (to theextent such prior notice is legally permitted), in connection with any litigation to which any oneor more of the Lenders or the Administrative Agent is a party and pursuant to which such Lender orthe Administrative Agent has been compelled or required to disclose such information in thereasonable opinion of counsel to such Lender or Administrative Agent, (vi) to the IndependentEngineer, the Independent Insurance Consultant, the Independent Market Consultant, or theIndependent Environmental Consultant, or to other experts engaged by the Administrative Agent orany Lender in connection with the Agreement and the transactions contemplated by this Agreementand the other Financing Documents, so long as such parties agree to maintain the confidentialityof the information as provided in this Section 11.08(b), (vii) to the extent that suchinformation is required to be disclosed to a Government Authority in connection with a Tax auditor dispute, (viii) in connection with any Default and any enforcement or collection proceedingsresulting from such Default or in connection with the negotiation of any restructuring or“work-out” (whether or not consummated) of the obligations of the Borrower under this Agreement orthe obligations of any Project Party under any other Project Document or (ix) to any Participant(or prospective Assignee or Participant) so long as such Participant (or prospective Assignee orParticipant) first executes and delivers to the respective Lender a Confidentiality Agreementsubstantially in the form of Exhibit M. In no event shall any Lender or theAdministrative Agent be obligated or required to return any materials furnished by the Borrower;provided, however, that any confidential information retained by such Lender
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orthe Administrative Agent shall continue to be subject to the provisions of this Section11.08(b). The obligations of each Lender under this Section 11.08 shall supersede andreplace the obligations of such Lender under any confidentiality letter, or other confidentialityobligation, in respect of this financing effective prior to the date of the execution and deliveryof this Agreement.          11.09 Interest Rate Limitation. Notwithstanding anything herein to the contrary, ifat any time the interest rate applicable to any Loan, together with all fees, charges and otheramounts which are treated as interest on such Loan under applicable law (collectively the“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may becontracted for, charged, taken, received or reserved by the Lender holding such Loan in accordancewith applicable law, the rate of interest payable in respect of such Loan hereunder, together withall Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extentlawful, the interest and Charges that would have been payable in respect of such Loan but were notpayable as a result of the operation of this Section shall be cumulated and the interest andCharges payable to such Lender in respect of other Loans or periods shall be increased (but notabove the Maximum Rate therefor) until such cumulated amount, together with interest thereon at theFederal Funds Rate to the date of repayment, shall have been received by such Lender.          11.10 Limitation of Liability. Notwithstanding any other provision of this Agreement or of any of the other FinancingDocuments there shall be no recourse against any Affiliates of the Credit Parties or any of theirrespective stockholders, partners, officers, directors, employees or agents (collectively, the“Nonrecourse Persons”), for any liability to the Lenders arising in connection with anybreach or default under this Agreement, and the Lenders shall look solely to the Credit Parties andthe Collateral in exercising the Lenders’ rights and remedies and enforcing the obligations of theother parties under and in connection with the Financing Documents; provided, that (a) theforegoing provisions of this Section 11.10 shall not constitute a waiver, release ordischarge of any of the Indebtedness or Secured Obligations under, or any terms, covenants,conditions or provisions of, this Agreement, the Notes or any other Financing Document, and thesame shall continue until fully paid, discharged, observed or performed, (b) the foregoingprovisions of this Section 11.10 shall not limit or restrict the right of any Secured Partyto name the Borrower or any other Person as defendant in any action or suit for a judicialforeclosure or for the exercise of any other remedy under or with respect to this Agreement, any ofthe Security Documents or any other Financing Document, or for injunction or specific performance,so long as (subject, however, to the last sentence of this Section 11.10), no judgment inthe nature of a deficiency judgment shall be enforced against any Nonrecourse Person out of anyProperty other than the Property of the Borrower or the Collateral, (c) the foregoing provisions ofthis Section 11.10 shall not in any way limit, reduce, restrict or otherwise affect anyright, power, privilege or remedy of the Secured Parties (or any assignee or beneficiary thereof orsuccessor thereto) with respect to, and each and every Person (including each and every NonrecoursePerson) shall remain fully liable to the extent that such Person would otherwise be liable for itsown actions with respect to, any fraud, gross negligence or willful misrepresentation, ormisappropriation of Project Revenues or any other earnings, revenues, rents, issues, profits orproceeds from or of any Credit Party, the Project or the Collateral that should or would have beenpaid as provided in the Financing Documents or paid or delivered to the Administrative Agent (orany assignee or beneficiary thereof or successor
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thereto) for any payment required under thisAgreement or any other Financing Document and (d) nothing contained herein shall limit theliability of: (i) any Person who is a party to any Transaction Document or (ii) any Personrendering a legal opinion pursuant to Sections 6.01 or 6.02 or otherwise, in eachcase under this clause (d) relating solely to such liability of such Person as may ariseunder such referenced agreement, instrument or opinion. The limitations on recourse set forth inthis Section 11.10 shall survive the termination of this Agreement and the full payment andperformance of the Secured Obligations.          11.11 Survival. The obligations of the Borrower under Sections 5.02,5.03, 5.04, 11.03, 11.18, 11.19, and 11.20 and theobligations of the Lenders under Section 10.05 shall survive after the Termination Date.In addition, each representation and warranty made, or deemed to be made by a notice of anyextension of credit, in this Agreement or pursuant to this Agreement shall survive the making ofsuch representation and warranty, and no Lender shall be deemed to have waived, by reason of makingany extension of credit under this Agreement, any Default which may arise by reason of suchrepresentation or warranty proving to have been false or misleading, notwithstanding that suchLender or the Administrative Agent may have had notice or knowledge or reason to believe that suchrepresentation or warranty was false or misleading at the time such extension of credit was made.          11.12 Captions. The table of contents and captions and section headings appearing inthis Agreement are included solely for convenience of reference and are not intended to affect theinterpretation of any provision of this Agreement.          11.13 Counterparts; Integration; Effectiveness. This Agreement may be executed in anynumber of counterparts, all of which taken together shall constitute one and the same instrumentand any party to this Agreement may execute this Agreement by signing any such counterpart;signature pages may be detached from multiple separate counterparts and attached to a singlecounterpart so that all signatures are physically attached to the same counterpart. This Agreementand the other Financing Documents constitute the entire agreement and understanding among theparties to this Agreement with respect to the matters covered by this Agreement and the otherFinancing Documents and supersede any and all prior agreements and understandings, written or oral,with respect to such matters. This Agreement shall become effective at such time as theAdministrative Agent shall have received counterparts of this Agreement signed by all of theintended parties to this Agreement.          11.14 Reinstatement. The obligations of the Borrower under this Agreement shall beautomatically reinstated if and to the extent that for any reason any payment by or on behalf ofthe Borrower in respect of the Secured Obligations is rescinded or must be otherwise restored byany holder of any of the Secured Obligations, whether as a result of any proceedings in bankruptcyor reorganization or otherwise, and the Borrower agrees that it will indemnify each Secured Partyon demand for all reasonable costs and expenses (including fees of counsel) incurred by suchSecured Party in connection with such rescission or restoration, including any such costs andexpenses incurred in defending against any claim alleging that such payment constituted apreference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
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          11.15 Severability. Any provision of this Agreement held to be invalid, illegal orunenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch invalidity, illegality or unenforceability without affecting the validity, legality andenforceability of the remaining provisions of this Agreement; and the invalidity of a particularprovision in a particular jurisdiction shall not invalidate such provision in any otherjurisdiction.          11.16 Remedies. The Borrower agrees that, as between the Borrower and the Lenders,the obligations of the Borrower under this Agreement may be declared to be forthwith due andpayable as provided in Article IX (and shall be deemed to have become automatically due andpayable in the circumstances provided in Article IX), and that, in the event of suchdeclaration (or such obligations being deemed to have become automatically due and payable), suchobligations shall forthwith become due and payable by the Borrower.          11.17 **NO THIRD PARTY BENEFICIARIES****. THE AGREEMENT OF THE LENDERS TO MAKE THE LOANS TOTHE BORROWER, ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, IS SOLELY FOR THE BENEFIT OFTHE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS, AND NO OTHER PERSON (INCLUDING ANY OTHERPROJECT PARTY, CONTRACTOR, SUBCONTRACTOR, SUPPLIER, WORKMAN, CARRIER, WAREHOUSEMAN OR MATERIALMANFURNISHING LABOR, SUPPLIES, GOODS OR SERVICES TO OR FOR THE BENEFIT OF THE PROJECT) SHALL HAVE ANYRIGHTS UNDER THIS AGREEMENT OR UNDER ANY OTHER TRANSACTION DOCUMENT AS AGAINST THE ADMINISTRATIVEAGENT OR ANY LENDER OR WITH RESPECT TO ANY EXTENSION OF CREDIT CONTEMPLATED BY THIS AGREEMENT.**          11.18 **SPECIAL EXCULPATION****. TO THE EXTENT PERMITTED BY APPLICABLE GOVERNMENT RULE, NOCLAIM MAY BE MADE BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO OR ANY OF THEIR RESPECTIVEAFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT,CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT OR ANY OTHERTHEORY OF LIABILITY ARISING OUT OF OR RELATING TO, OR ANY ACT, OMISSION OR EVENT OCCURRING INCONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATEDBY THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS (OTHER THAN THE RIGHTS OF THE LENDERSEXPRESSLY SET FORTH IN THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS), AND EACH PARTY HEREBYWAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUEDAND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.**          11.19 **GOVERNING LAW****. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUEDIN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE OF LAW PRINCIPLES OF SUCHLAWS WHICH WOULD REQUIRE THE APPLICATION OF THE LAWS**
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**OF A JURISDICTION OTHER THAN THE STATE OF NEWYORK (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).**          11.20 **WAIVER OF JURY TRIAL**. **THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERSHEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY ORINDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THISAGREEMENT AND THE OTHER FINANCING DOCUMENTS.**[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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          IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to be dulyexecuted as of the day and year first above written.      BORROWER: