EXHIBIT 10.2


 




 





ACCOUNTS AGREEMENT



dated as of October 1, 2007



among



HEARTLAND GRAIN FUELS, L.P.,

as the Borrower,



AMARILLO NATIONAL BANK,

as the Accounts Bank and the Securities Intermediary,



WESTLB AG, NEW YORK BRANCH,

as the Collateral Agent for the Senior Secured Parties,



WESTLB AG, NEW YORK BRANCH,

as the Administrative Agent for the Lenders,



and



WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE
OF THE

BROWN COUNTY, SOUTH DAKOTA SUBORDINATE SOLID WASTE


FACILITIES REVENUE BONDS (HEARTLAND GRAIN FUELS,
L.P.

ETHANOL PLANT PROJECT) SERIES 2007A,

as the Second Lien Agent for the Second Lien Claimholders




 





 

















TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I
  DEFINITIONS AND INTERPRETATION

  	
  2

  
	
  Section 1.01

  	
  Defined Terms

  	
  2

  
	
  Section 1.02

  	
  Principles of
  Interpretation

  	
  12

  
	
  Section 1.03

  	
  Credit Agreement
  and UCC Definitions

  	
  12

  
	
  Section 1.04

  	
  Accounting and
  Financial Determinations

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE II
  APPOINTMENT; GRANT OF SECURITY INTEREST

  	
  13

  
	
  Section 2.01

  	
  Appointment by
  Collateral Agent

  	
  13

  
	
  Section 2.02

  	
  Appointment by
  Second Lien Agent

  	
  13

  
	
  Section 2.03

  	
  Limitation of
  Liability

  	
  14

  
	
  Section 2.04

  	
  Project Accounts

  	
  14

  
	
  Section 2.05

  	
  Representations,
  Warranties and Covenants of Accounts Bank

  	
  15

  
	
  Section 2.06

  	
  Project Accounts
  as Deposit Account

  	
  18

  
	
  Section 2.07

  	
  Grant of
  First-Priority Security Interest

  	
  18

  
	
  Section 2.08

  	
  Grant of
  Second-Priority Security Interest

  	
  19

  
	
  Section 2.09

  	
  Control and
  Perfection of Account Collateral

  	
  20

  
	
  Section 2.10

  	
  Subordination

  	
  21

  
	
  Section 2.11

  	
  Agreement to
  Hold In Trust

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
  PROJECT ACCOUNTS

  	
  22

  
	
  Section 3.01

  	
  Establishment of
  Project Accounts

  	
  22

  
	
  Section 3.02

  	
  Deposits into
  and Withdrawals from Project Accounts

  	
  24

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV
  CONSTRUCTION ACCOUNT

  	
  26

  
	
  Section 4.01

  	
  Construction
  Account

  	
  26

  
	
  Section 4.02

  	
  Bond Proceeds
  Sub-Account

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
  LIQUIDATED DAMAGES ACCOUNT

  	
  32

  
	
  Section 5.01

  	
  Liquidated
  Damages Account

  	
  32

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
  REVENUE ACCOUNT

  	
  33

  
	
  Section 6.01

  	
  Revenue Account

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
  OPERATING ACCOUNT

  	
  44

  
	
  Section 7.01

  	
  Operating
  Account

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
  MAINTENANCE CAPITAL EXPENSE ACCOUNT

  	
  45

  
	
  Section 8.01

  	
  Maintenance
  Capital Expense Account

  	
  45

  



 


i

















 


	
  ARTICLE IX
  WORKING CAPITAL RESERVE ACCOUNT

  	
  45

  
	
  Section 9.01

  	
  Working Capital
  Reserve Account

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE X DEBT
  SERVICE RESERVE ACCOUNT

  	
  47

  
	
  Section 10.01

  	
  Debt Service
  Reserve Account

  	
  47

  
	
  Section 10.02

  	
  Debt Service
  Letter of Credit

  	
  48

  
	
  Section 10.03

  	
  Excess in Debt
  Service Reserve Account

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI
  PREPAYMENT HOLDING ACCOUNT

  	
  49

  
	
  Section 11.01

  	
  Prepayment
  Holding Account

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII
  INSURANCE AND CONDEMNATION PROCEEDS ACCOUNTS

  	
  50

  
	
  Section 12.01

  	
  Insurance and
  Condemnation Proceeds Accounts

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII
  EXTRAORDINARY PROCEEDS ACCOUNT

  	
  54

  
	
  Section 13.01

  	
  Extraordinary
  Proceeds Account

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIV
  CONTINGENCY RESERVE ACCOUNT

  	
  55

  
	
  Section 14.01

  	
  Contingency
  Reserve Account. (a) Payments into the Contingency Reserve Account

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE XV
  GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS

  	
  57

  
	
  Section 15.01

  	
  No Security
  Interests

  	
  57

  
	
  Section 15.02

  	
  Borrower Acknowledgments

  	
  57

  
	
  Section 15.03

  	
  Further
  Assurances

  	
  58

  
	
  Section 15.04

  	
  UCC Termination
  Statements

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVI
  INTEREST AND INVESTMENTS

  	
  59

  
	
  Section 16.01

  	
  Investments

  	
  59

  
	
  Section 16.02

  	
  Sale and
  Liquidation

  	
  60

  
	
  Section 16.03

  	
  Interest and
  Investment Income

  	
  60

  
	
  Section 16.04

  	
  Accounts
  Information

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE XVII
  DEFAULT AND ENFORCEMENT

  	
  62

  
	
  Section 17.01

  	
  Notices of
  Suspension of Project Accounts

  	
  62

  
	
  Section 17.02

  	
  Collateral Agent
  Appointed Attorney-in-Fact

  	
  62

  
	
  Section 17.03

  	
  Enforcement

  	
  64

  
	
  Section 17.04

  	
  Application of
  Proceeds

  	
  66

  
	
  Section 17.05

  	
  Collateral
  Agent’s Discretionary Powers

  	
  66

  
	
  Section 17.06

  	
  Regarding the
  Collateral Agent

  	
  66

  



 


ii

















 


	
  ARTICLE XVIII
  THE ACCOUNTS BANK

  	
  67

  
	
  Section 18.01

  	
  Duties of the
  Accounts Bank and Securities Intermediary

  	
  67

  
	
  Section 18.02

  	
  Exculpatory
  Provisions

  	
  68

  
	
  Section 18.03

  	
  Reliance by
  Accounts Bank

  	
  70

  
	
  Section 18.04

  	
  Written
  Instructions; Notices

  	
  70

  
	
  Section 18.05

  	
  Resignation or
  Removal of Accounts Bank

  	
  71

  
	
  Section 18.06

  	
  No Amendment to
  Duties of Accounts Bank Without Consent

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIX
  REPRESENTATIONS AND WARRANTIES

  	
  72

  
	
  Section 19.01

  	
  Representations
  and Warranties

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE XX
  MISCELLANEOUS

  	
  74

  
	
  Section 20.01

  	
  Rights of Second
  Lien Agent and Second Lien Claimholders

  	
  74

  
	
  Section 20.02

  	
  Amendments, Etc.

  	
  75

  
	
  Section 20.03

  	
  Applicable Law;
  Jurisdiction; Etc.

  	
  75

  
	
  Section 20.04

  	
  Assignments

  	
  77

  
	
  Section 20.05

  	
  Benefits of
  Accounts Agreement

  	
  77

  
	
  Section 20.06

  	
  Costs and
  Expenses

  	
  78

  
	
  Section 20.07

  	
  Counterparts;
  Effectiveness

  	
  79

  
	
  Section 20.08

  	
  Indemnification
  by the Borrower

  	
  79

  
	
  Section 20.09

  	
  No Waiver;
  Cumulative Remedies

  	
  81

  
	
  Section 20.10

  	
  Notices and
  Other Communications

  	
  81

  
	
  Section 20.11

  	
  Patriot Act
  Notice

  	
  84

  
	
  Section 20.12

  	
  Severability

  	
  84

  
	
  Section 20.13

  	
  Survival

  	
  84

  
	
  Section 20.14

  	
  Waiver of
  Consequential Damages, Etc.

  	
  84

  
	
  Section 20.15

  	
  Waiver of
  Litigation Payments

  	
  85

  



 


iii

















 


	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of
  Construction Withdrawal Certificate

  	
   

  
	
  Exhibit B

  	
  Form of
  Liquidated Damages Transfer Certificate

  	
   

  
	
  Exhibit C-1

  	
  Form of
  Pre-Conversion Date Revenue Account Withdrawal Certificate

  	
   

  
	
  Exhibit C-2

  	
  Form of
  Post-Conversion Date Revenue Account Withdrawal Certificate

  	
   

  
	
  Exhibit D

  	
  Form of
  Restricted Payment Certificate

  	
   

  
	
  Exhibit E

  	
  Form of Operating
  Account Withdrawal Certificate

  	
   

  
	
  Exhibit F

  	
  Form of Working
  Capital Reserve Transfer Certificate

  	
   

  
	
  Exhibit G

  	
  Form of Debt
  Service Reserve Release Certificate

  	
   

  
	
  Exhibit H

  	
  Form of
  Insurance and Condemnation Proceeds Request Certificate

  	
   

  
	
  Exhibit I

  	
  Form of Extraordinary
  Proceeds Release Certificate

  	
   

  
	
  Exhibit J

  	
  Form of
  Contingency Reserve Transfer Certificate

  	
   

  
	
  Exhibit K

  	
  Form of Bond
  Proceeds Withdrawal Certificate

  	
   

  
	
  Exhibit L

  	
  Form of
  Independent Engineer’s Certificate

  	
   

  



 


 


iv






 












 


THIS ACCOUNTS
AGREEMENT, dated as of October 1, 2007, (this “Accounts Agreement”), is
entered into by and among HEARTLAND GRAIN FUELS, L.P., a Delaware limited
partnership (the “Borrower”), AMARILLO NATIONAL BANK, in its capacity as
accounts bank (together with its successors and assigns in such capacity, the “Accounts
Bank”) and in its capacity as securities intermediary (together with its
successors and assigns in such capacity, the “Securities Intermediary”),
WESTLB AG, NEW YORK BRANCH, in its capacity as collateral agent for the Senior
Secured Parties (as defined below) (together with its successors and assigns in
such capacity, the “Collateral Agent”), WESTLB AG, NEW YORK BRANCH, in
its capacity as administrative agent for the Lenders (together with its
successors and assigns in such capacity, the “Administrative Agent”),
Wells Fargo Bank, National Association, in its capacity as trustee of the Brown
County, South Dakota Subordinate Solid Waste Facilities Revenue Bonds
(Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (in such
capacity and, together with its successors and permitted assigns, the “Second
Lien Agent”) for the Second Lien Claimholders (as defined below).


 


RECITALS


 


WHEREAS, the
Borrower has entered into that certain Senior Credit Agreement, dated as of the
date hereof (the “Credit Agreement”), among the Borrower, each of the
Lenders from time to time party thereto, the Administrative Agent, the
Collateral Agent, WestLB AG, New York Branch, as Issuing Bank, and WestLB AG,
New York Branch, as Lead Arranger, Sole Bookrunner and Syndication Agent,
pursuant to which, among other things, the Lenders have committed to make loans
to, and for the benefit of, the Borrower;


 


WHEREAS, certain
Lenders or their affiliates may, from time to time, enter into interest rate
hedging agreements with the Borrower as permitted under the Credit Agreement;


 


WHEREAS, pursuant
to that certain Bond Trust Indenture dated as of October 1, 2007 (the “Bond
Indenture”) between Brown County, South Dakota (the “Issuer”) as
bond issuer and the Second Lien Agent as bond trustee, the Issuer will issue
and deliver its $19,000,000 Subordinate Solid Waste Facilities Revenue Bonds
(Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (the “Bonds”)
for the purpose of purchasing, constructing and installing certain improvements
to be located on the Site for the Aberdeen Plants;


 


WHEREAS, the
Issuer has agreed to lend the proceeds of the Bonds (the “Subordinated Debt”)
to the Borrower pursuant to that certain Loan Agreement effective as of the
date hereof (the “Subordinated Loan Agreement”) between the Borrower and


 

















 


the Issuer. Pursuant
to the Bond Indenture, the Issuer has assigned to the Second Lien Agent its
rights and obligations under the Subordinated Loan Agreement, except for the
Unassigned Rights (as defined in the Bond Indenture); and


 


WHEREAS, it is a
requirement under the Credit Agreement and the Subordinated Loan Agreement that
the Borrower execute and deliver this Accounts Agreement.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the promises contained herein, and to induce the lenders under
the Credit Agreement to enter into the Credit Agreement and to make the
advances of credit to the Borrower contemplated thereby, and to induce the
Interest Rate Protection Providers (as defined in the Credit Agreement) to
enter into the Interest Rate Protection Agreements (as defined below) and to
provide the interest rate hedges contemplated thereby, and to induce the Issuer
to issue and deliver the Bonds, to enter into the Subordinated Loan Agreement
and to make the advances of credit to the Borrower contemplated thereby, and
for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, and intending to be legally bound, the parties hereto
hereby agree as follows:


 


ARTICLE I



DEFINITIONS AND INTERPRETATION


 


Section 1.01           Defined Terms. The
following terms when used in this Accounts Agreement, including its preamble
and recitals, shall, except where the context otherwise requires, have the
following meanings:


 


“Aberdeen
Insurance and Condemnation Proceeds Account” has the meaning provided in Section 3.01(a)(ix)
(Establishment of Project Accounts).


 


“Account
Collateral” has the meaning provided in Section 2.07 (Grant of First-Priority Security Interest).


 


“Accounts Bank”
has the meaning provided in the preamble.


 


“Accounts Bank
Action” has the meaning provided in Section 18.04(b) (Written Instructions; Notices).


 


2

















 


“Accounts Bank
Fee Letter” means that certain Fee Letter between the Accounts Bank and the
Borrower, dated as of the date hereof, setting forth certain fees due and
payable to the Accounts Bank.


 


“Administrative
Agent” has the meaning provided in the preamble.


 


“Agents”
means, collectively, the Administrative Agent, the Collateral Agent and the
Accounts Bank.


 


“Bond
Collateral Documents” means (i) the Bond Indenture, (ii) the “Subordinate
Mortgage” (as defined in the Bond Indenture), (iii) the “Subordinate Security
Agreement” (as defined in the Bond Indenture), (iv) the “Subordinate Equity
Pledge Agreement” (as defined in the Bond Indenture), and any documents
granting, or relating to the grant, of security for the payment of amounts due
under the Subordinated Loan Agreement and the Bonds.


 


“Bond Debt
Service Reserve Fund” means the trust fund entitled “Debt Service Reserve
Fund” created under the Bond Indenture.


 


“Bond Expense
Fund” means the trust fund entitled “Expense Fund” created under the Bond
Indenture.


 


“Bond Funds”
means the “Bond Sinking Fund”, the “Debt Service Reserve Fund”, the “Expense
Fund”, the “Interest Fund”, the “Project Fund”, the “Rebate Fund”, the “Redemption
Fund” and the “Revenue Fund” (each as defined in the Bond Indenture), together
with such other funds, accounts or sub-accounts established by the Bond Trustee
pursuant to the Bond Indenture in administering the Trust Estate (as defined in
the Bond Indenture).


 


“Bond Indenture”
has the meaning provided in the third recital.


 


“Bond Liens”
means the second-priority security interest created in favor of the Second Lien
Agent, for the benefit of the Second Lien Claimholders, pursuant to the Bond
Collateral Documents, which security interest (other than the lien on the Bond
Funds) is subject to Section 7.02(b) (Negative Covenants—Liens)
of the Credit Agreement and to the Intercreditor Agreement.


 


“Bond Proceeds
Sub-Account” has the meaning provided in Section 3.01(a)(xiii) (Establishment of Project Accounts).


 


“Bond Proceeds
Withdrawal Certificate” means a certificate in substantially the form of Exhibit K,
duly executed by an Authorized Officer of the Borrower, directing the transfer
or withdrawal of funds from the Bond Proceeds Sub-Account.


 


3

















 


“Bond Project
Fund” means the trust fund entitled “Project Fund” created under the Bond
Indenture.


 


“Bond Revenue
Fund” means the trust account of that name created under the Bond
Indenture.


 


“Bonds” has
the meaning provided in the third recital.


 


“Borrower”
has the meaning provided in the preamble.


 


“Cash
Equivalents” means:


 


(a)                                  readily
marketable direct obligations of the government of the United States or any
agency or instrumentality thereof, or obligations unconditionally guaranteed by
the full faith and credit of the government of the United States, in each case
maturing within one (1) year from the date of acquisition thereof;


 


(b)                                 securities
issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof having
maturities of not more than one (1) year from the date of acquisition
thereof and, at the time of acquisition, having a rating of AA- or higher from
S&P or Aa3 or higher from Moody’s (or, if at any time neither S&P nor
Moody’s shall be rating such obligations, an equivalent rating from another
nationally recognized rating service);


 


(c)                                  investments
in commercial paper maturing within one hundred eighty (180) days from the
date of acquisition thereof and having, at such date of acquisition, a rating
of at least A-1 or P-1 from either S&P or Moody’s (or, if at any time
neither S&P nor Moody’s shall be rating such obligations, an equivalent
rating from another nationally recognized rating service);


 


(d)                                 investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within two hundred and seventy (270) days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, the Administrative Agent or any domestic office
of any commercial bank organized under the laws of the United States of
America, any State thereof, any country that is a member of the Organisation
for Economic Co-Operation and Development or any political subdivision


 


4

















 


thereof, that has a combined capital and surplus and
undivided profits of not less than five hundred million Dollars ($500,000,000);


 


(e)                                  fully
collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria of
clause (d) of this definition; and


 


(f)                                    investments
in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are
invested in investments of the type described in clauses (a) through
(e) of this definition.


 


“Collateral
Agent” has the meaning provided in the preamble.


 


“Construction
Account” has the meaning provided in Section 3.01(a)(i) (Establishment of Project Accounts).


 


“Construction
Withdrawal Certificate” means a certificate in substantially the form of Exhibit A,
duly executed by an Authorized Officer of the Borrower, directing the transfer
or withdrawal of funds from the Construction Account.


 


“Contingency
Reserve Account” has the meaning provided in Section 3.01(a)(xii) (Establishment of Project Accounts).


 


“Contingency
Reserve Transfer Certificate” means a certificate in substantially the form
of Exhibit J, duly executed by an Authorized Officer of the Borrower,
directing the transfer or withdrawal of funds from the Contingency Reserve
Account.


 


“Costs of the
Project” has the meaning provided in the Bond Indenture.


 


“Credit
Agreement” has the meaning provided in the first recital.


 


“Current
Priority Subordinated Interest” means, with respect to any Quarterly
Period, interest at the per annum rate of eight and one-half percent
(8.50%) accrued, and due and payable, under the Subordinated Loan
Agreement (provided that the aggregate outstanding principal amount of
Subordinated Debt does not exceed nineteen million Dollars ($19,000,000))
during such Quarterly Period, but expressly excluding any such interest that
accrued on the Subordinated Debt in any previous Quarterly Period.


 


“Debt Service
Reserve Account” has the meaning provided in Section 3.01(a)(vii) (Establishment of Project Accounts).


 


5

















 


“Debt Service
Reserve Release Certificate” means a certificate in substantially the form
of Exhibit G, duly executed by an Authorized Officer of the
Borrower directing the transfer or withdrawal of funds from the Debt Service
Reserve Release Certificate.


 


“Delay
Liquidated Damages” means any delay liquidated damages payable to the
Borrower pursuant to the Design-Build Agreement or any other construction
contracts to which the Borrower is a party.


 


“Extraordinary
Proceeds Account” has the meaning provided in Section 3.01(a)(xi) (Establishment of Project Accounts).


 


“Extraordinary
Proceeds Release Certificate” means a certificate in substantially the form
of Exhibit I, duly executed by an Authorized Officer of the
Borrower directing the transfer or withdrawal of funds from the Extraordinary
Proceeds Account.


 


“Gross Proceeds”
has the meaning provided in the Code.


 


“Huron
Insurance and Condemnation Proceeds Account” has the meaning provided in Section 3.01(a)(x)
(Establishment of Project Accounts).


 


“Indemnitee”
has the meaning provided in Section 20.08(a) (Indemnification
by the Borrower).


 


“Independent
Engineer’s Certificate” means a certificate of the Independent Engineer in
substantially the form of Exhibit L.


 


“Insurance and
Condemnation Proceeds Accounts” means, collectively, the Aberdeen Insurance
and Condemnation Proceeds Account and the Huron Insurance and Condemnation
Proceeds Account.


 


“Insurance and
Condemnation Proceeds Request Certificate” means a certificate, in
substantially the form of Exhibit H, duly executed by an Authorized
Officer of the Borrower, setting forth proposed instructions for the transfer
or withdrawal of Insurance Proceeds and/or Condemnation Proceeds from an
Insurance and Condemnation Proceeds Account.


 


“Investment
Proceeds” has the meaning provided in the Code.


 


“Interest Rate
Protection Agreement” means each interest rate swap, collar, put, or cap,
or other interest rate protection arrangement, with a Qualified Counterparty,
in each such case that is reasonably satisfactory to the Administrative Agent
and is


 


6

















 


entered into in
accordance with Section 7.01(u) (Affirmative Covenants –
Interest Rate Protection Agreement) of the Credit Agreement.


 


“Issue Price”
has the meaning provided in the Code.


 


“Issuer”
has the meaning provided in the third recital.


 


“LC Cash
Collateral Sub-Account” has the meaning provided in Section 3.01(a)(xiv)
(Establishment of Project Accounts).


 


“Liquidated
Damages Account” has the meaning provided in Section 3.01(a)(ii) (Establishment of Project Accounts).


 


“Liquidated
Damages Transfer Certificate” means a certificate in substantially the form
of Exhibit B, duly executed by an Authorized Officer of the
Borrower, directing the transfer or withdrawal of funds from the Liquidated
Damages Account.


 


“Maintenance
Capital Expense Account” has the meaning provided in Section 3.01(a)(v)  (Establishment of Project Accounts).


 


“Material
Default” means


 


(i)                                     any
Default under Section 8.01(a)(ii) (Nonpayment),
Section 8.01(f)(ii)(B) (Cross Defaults),
Section 8.01(i) (Bankruptcy, Insolvency) or
Section 8.01(j) (Project Document Defaults;
Termination) of the Credit Agreement;


 


(ii)                                  any
Default under Section 8.01(d) (Non-Performance of Other
Covenants and Obligations) of the Credit Agreement arising as a
result of any default


 


(A)                              by
the Borrower in the due performance and observance of any covenant or agreement
under Section 7.01(a) (Compliance with Laws),
Section 7.01(b) (Environmental Matters), Section
7.01(c) (Operations and Maintenance), Section
7.01(e) (Payment of Obligations), Section 7.01(f)
(Governmental Approvals), Section 7.01(l)
(Project Documents), Section 7.01(m) (Preservation of Title; Acquisition of Additional Property),
Section 7.01(n)(ii) and (iii) (Maintenance of Liens;
Creation of Liens on Newly Acquired Property), Section 7.01(o) (Certificate of Formation), Section 7.01(p) (Separateness) and Section


 


7

















 


7.01(u) (Interest Rate Protection
Agreement) of the Credit Agreement;


 


(B)                                by
the Borrower in the due performance and observance of any covenant or agreement
under Section 5.03 (No Other Filings)
and Section 5.04 (No Sale of Collateral) of the
Security Agreement; and


 


(C)                                by
any Pledgor under Section 5.03 (No Other Filings)
of the Pledge Agreement.


 


“Monthly Date”
means the last Business Day of each calendar month.


 


“Net Swap
Payment” means, with respect to any Interest Rate Protection Agreement and
for any period, all scheduled Obligations due and payable by the Borrower under
such Interest Rate Protection Agreement during such period, as a result of any
netting applicable thereto.


 


“Notice of
Security Discharge Date” has the meaning provided in Section 20.01 (Rights of Second Lien Agent and Second Lien Claimholders).


 


“Notice of
Suspension” has the meaning provided in Section 17.01(a) (Notices of Suspension of Project Accounts).


 


“Operating
Account” has the meaning provided in Section 3.01(a)(iv) (Establishment of Project Accounts).


 


“Operating
Account Withdrawal Certificate” means a certificate in substantially the
form of Exhibit E, duly executed by an Authorized Officer of the
Borrower, directing the transfer or withdrawal of funds from the Operating
Account.


 


“Original
Proceeds” has the meaning provided in the Code.


 


“Patriot Act”
means United States Public Law 107-56, Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT ACT) of 2001, and the rules and regulations promulgated
thereunder from time to time in effect.


 


“Permitted
Budgeted Operating Expenses Level” means, for any month in any Fiscal Year,
with respect to Operation and Maintenance Expenses (other than Operation and
Maintenance Expenses for the cost of corn and natural gas), one hundred and ten
percent (110%) of the amount projected for such expenses (other than Operation
and Maintenance Expenses for the cost of corn and natural gas) for the period
from the start


 


8

















 


of such Fiscal
Year (or, if the Closing Date occurred during such Fiscal Year, from the Closing
Date) through (and including) such month in the then-current Operating Budget.


 


“Post-Conversion
Date Revenue Account Withdrawal Certificate” means a certificate in
substantially the form of Exhibit C-2, duly executed by an
Authorized Officer of the Borrower, directing the transfer or withdrawal of
funds from the Revenue Account.


 


“Pre-Conversion
Date Revenue Account Withdrawal Certificate” means a certificate in
substantially the form of Exhibit C-1, duly executed by an
Authorized Officer of the Borrower, directing the transfer or withdrawal of
funds from the Revenue Account.


 


“Pre-Conversion
Prepayment Target” has the meaning provided in the Credit Agreement.


 


“Prepayment
Holding Account” has the meaning provided in Section 3.01(a)(x) (Establishment of Project Accounts).


 


“Project
Accounts” means the Construction Account, the Liquidated Damages Account,
the Revenue Account, the Operating Account, the Maintenance Capital Expense
Account, the Working Capital Reserve Account, the Debt Service Reserve Account,
the Prepayment Holding Account, the Aberdeen Insurance and Condemnation
Proceeds Account, the Huron Insurance and Condemnation Proceeds Account, the
Extraordinary Proceeds Account, the Contingency Reserve Account, the Additional
Capital Expenditure Sub-Account, the Bond Proceeds Sub-Account and the LC Cash
Collateral Sub-Account.


 


“Qualified
Counterparty” has the meaning provided in the Credit Agreement.


 


“Related Parties”
means, with respect to any Person, such Person’s Affiliates and the partners, directors,
officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.


 


“Restoration or
Replacement Plan” means a plan and time schedule, reasonably satisfactory
to the Required Lenders
and the Independent Engineer, for the application of Insurance Proceeds and
Condemnation Proceeds arising from any Casualty Event or Event of Taking,
respectively, and any other funds available to the Borrower with which to
restore or replace the Project, or any portion thereof, affected by such Casualty
Event or Event of Taking.


 


9

















 


“Restricted
Payment Certificate” means a certificate in substantially the form of Exhibit D,
duly executed by an Authorized Officer of the Borrower, directing the transfer
or withdrawal of funds for Restricted Payments.


 


“Revenue Account”
has the meaning provided in Section 3.01(a)(iii) (Establishment
of Project Accounts).


 


“Revenue
Account Withdrawal Certificate” means, before the Conversion Date, a
Pre-Conversion Date Revenue Account Withdrawal Certificate, and after the
Conversion Date, a Post-Conversion Date Revenue Account Withdrawal Certificate.


 


“Second Lien
Account Collateral” has the meaning provided in Section 2.08 (Grant of Second-Priority Security Interest).


 


“Second Lien
Agent” has the meaning provided in the preamble.


 


“Second Lien
Agent Indemnitee” has the meaning provided in Section 20.08(b) (Indemnification by the Borrower).


 


“Second Lien
Claimholders” means, at any relevant time, the holders of Second Lien Obligations
(as defined in the Intercreditor Agreement) at such time, including the holders
of Bonds, the Second Lien Agent and the Issuer.


 


“Second Lien
Project Accounts” means the Revenue Account, the Operating Account, the
Maintenance Capital Expense Account, the Working Capital Reserve Account, the
Aberdeen Insurance and Condemnation Proceeds Account, the Huron Insurance and
Condemnation Proceeds Account, the Extraordinary Proceeds Account, and the
Additional Capital Expenditure Sub-Account.


 


“Securities
Intermediary” has the meaning provided in the preamble.


 


“Security
Discharge Date” means the date on which (i) all outstanding
Commitments (as defined in the Credit Agreement) and Interest Rate Protection
Agreements have been terminated and (ii) all amounts payable in respect of
the Obligations have been irrevocably and indefeasibly paid in full in cash
(other than obligations under the Financing Documents that by their terms
survive and with respect to which no claim has been made by the Senior Secured
Parties).


 


“Senior Secured
Parties” means the Lenders, the Agents and any Interest Rate Protection
Provider.


 


“Subordinated
Debt” has the meaning provided in the fourth recital.


 


10

















 


“Subordinated
Loan Agreement” has the meaning provided in the fourth recital.


 


“Swap
Termination Value” means, in respect of any one or more Swap Contracts
(including any Permitted Commodity Hedging Arrangements or any Interest Rate
Protection Agreements), after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for any
date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s),
and (b) for any date prior to the date referenced in clause (a), the
amount(s) determined as the mark-to-market value(s) for such Swap Contracts, in
accordance with the terms of the applicable Swap Contract, or, if no provision
is made therein, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Swap
Contracts (which may include a Lender or any Affiliate of a Lender).


 


“Target Balance
Amount” means the aggregate principal amount under the Term Loans on the
Conversion Date as reduced by 1/24th of such amount on each
Quarterly Payment Date thereafter.


 


“Tax Exemption
Agreement” means that certain Tax Exemption Agreement and Certificate,
dated as of October 1, 2007, among the Borrower, the Issuer, the Accounts Bank
and the Second Lien Agent.


 


“UCC” means
the Uniform Commercial Code as the 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 the perfection or
priority of the security in any Account Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than the
State of New York, the term “UCC” shall mean the Uniform Commercial
Code as in effect, from time to time, in such other jurisdiction for purposes
of the provisions hereof relating to such perfection or priority and for
purposes of definitions related to such provisions.


 


“Warranty Work”
means any work relating to the repair, replacement or correction of
any failure, defect or deficiency related to the Aberdeen II Plant.


 


“Working
Capital Reserve Account” has the meaning provided in Section 3.01(a)(vi)
(Establishment of Project Accounts).


 


“Working
Capital Reserve Transfer Certificate” means a certificate in substantially
the form of Exhibit F, duly executed by an Authorized Officer of
the Borrower, directing the transfer or withdrawal of funds from the Working
Capital Reserve Account.


 


11

















 


Section 1.02           Principles of
Interpretation. (a)  Unless
otherwise defined or the context otherwise requires, terms for which meanings
are provided in this Accounts Agreement shall have the same meanings when used
in the Credit Agreement.


 


(b)        Unless the context requires otherwise,
any reference in this Accounts Agreement to any Financing Document shall mean
such Financing Document and all schedules, exhibits and attachments thereto, as
amended from time to time.


 


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


 


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


 


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


 


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


 


(g)        The word “or” is not exclusive.


 


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


 


Section 1.03           Credit Agreement and UCC
Definitions. Unless otherwise defined herein or unless the context
otherwise requires, terms used in this Accounts Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreement or,
if not defined therein, the UCC.


 


Section 1.04           Accounting and Financial
Determinations. Unless otherwise specified, all accounting terms used in
any Financing Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder shall


 


12

















 


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


 


ARTICLE II



APPOINTMENT; GRANT OF SECURITY INTEREST


 


Section 2.01           Appointment by Collateral
Agent. (a) The Collateral Agent, on behalf and at the direction of the
Senior Secured Parties, hereby appoints and authorizes the Accounts Bank to act
as its depository for the benefit of the Senior Secured Parties, and as the
securities intermediary or bank with respect to the Project Accounts for the
benefit of the Collateral Agent, on behalf of the Senior Secured Parties, with
such powers as are expressly delegated to the Accounts Bank by the terms of
this Accounts Agreement, together with such other powers as are reasonably
incidental thereto. The Accounts Bank hereby accepts each such appointment and
agrees to act as the depository for the Collateral Agent, on behalf of the
Senior Secured Parties, and as the securities intermediary or bank with respect
to the Project Accounts, for the benefit of the Collateral Agent, on behalf of
the Senior Secured Parties, in accordance with the terms of this Accounts
Agreement. The Accounts Bank further agrees to accept and hold, as securities
intermediary or as a bank, in its custody and in accordance with the terms of
this Accounts Agreement, for the Collateral Agent, on behalf of the Senior
Secured Parties, the Project Accounts and the Account Collateral.


 


(b)        The Collateral Agent also hereby appoints and
authorizes the Accounts Bank to act on its behalf for the purpose of the
creation and perfection of a first priority security interest in favor of the
Collateral Agent, for the benefit of the Senior Secured Parties, in the Project
Accounts to the extent that they are deemed under applicable Law not to
constitute securities accounts or deposit accounts and in any Account
Collateral that is deemed under applicable Law not to constitute a “financial
asset” (within the meaning of Section 8-102(9) of the UCC). The Accounts Bank
hereby accepts this appointment and agrees to act as the Accounts Bank for the
Collateral Agent, on behalf of the Senior Secured Parties, for such purpose and to hold and maintain exclusive
dominion and control over the Project Accounts and any such Account Collateral
on behalf of the Collateral Agent, acting for the benefit of the Senior Secured
Parties.


 


Section 2.02           Appointment by Second Lien
Agent. (a) The Second Lien Agent, on behalf and at the direction of
the Second Lien Claimholders, hereby appoints and authorizes the Accounts Bank
to act as its depository for the benefit of the Second Lien Claimholders, and
as the securities intermediary or bank with respect to the Second Lien Project
Accounts for the benefit of the Second Lien Agent, on behalf of the Second Lien
Claimholders, with such powers as are expressly delegated to the Accounts Bank
by


 


13

















 


the terms of
this Accounts Agreement, together with such other powers as are reasonably
incidental thereto. The Accounts Bank hereby accepts each such appointment and
agrees to act as the depository for the Second Lien Agent, on behalf of the
Second Lien Claimholders, and as the securities intermediary or bank with
respect to the Second Lien Project Accounts, for the benefit of the Second Lien
Agent, on behalf of the Second Lien Claimholders, in accordance with the terms
of this Accounts Agreement. The Accounts Bank further agrees to accept and
hold, as securities intermediary or as a bank, in its custody and in accordance
with the terms of this Accounts Agreement, for the Second Lien Agent, on behalf
of the Second Lien Claimholders, the Second Lien Project Accounts and the
Second Lien Account Collateral.


 


(b)        The Second Lien Agent also hereby
appoints and authorizes the Accounts Bank to act on its behalf for the purpose
of the creation and perfection of a second priority security interest in favor
of the Second Lien Agent, for the benefit of the Second Lien Claimholders, in
the Second Lien Project Accounts to the extent that they are deemed under
applicable Law not to constitute securities accounts or deposit accounts and in
any Second Lien Account Collateral that is deemed under applicable Law not to
constitute a “financial asset” (within the meaning of Section 8-102(9) of the
UCC). The Accounts Bank hereby accepts this appointment and agrees to act as
the Accounts Bank for the Second Lien Agent, on behalf of the Second Lien
Claimholders, for
such purpose.


 


Section 2.03           Limitation of Liability.
Notwithstanding any provision to the contrary contained elsewhere in any
Financing Document or any Subordinated Debt Document, the Accounts Bank shall
not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Accounts Bank have or be deemed to have any fiduciary
relationship with any Senior Secured Party, the Second Lien Agent or any Second
Lien Claimholder, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into any Financing Document or any
Subordinated Debt Document or otherwise exist against the Accounts Bank. Without
limiting the generality of the foregoing sentence, the use of the term “agent”
in any Financing Document or Subordinated Debt Document with reference to the
Accounts Bank is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable Law. Instead,
such term is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between independent
contracting parties.


 


Section 2.04           Project Accounts. (a) The
Borrower agrees that it will have no legal or equitable right to withdraw funds
from the Project Accounts, except for those rights expressly granted to the
Borrower in this Accounts Agreement. The Account Collateral will not constitute
repayment of the Obligations or the Subordinated Debt until


 


14

















 


so applied as
payments in accordance with the terms of this Accounts Agreement and the other
Financing Documents.


 


(b)        The Accounts Bank shall not have title
to the funds on deposit in or credited to the Project Accounts, and shall
credit the Project Accounts with all receipts of interest, dividends and other
income received on the property held in the Project Accounts. The Accounts Bank
shall administer and manage the Project Accounts in strict compliance with its
duties with respect to the Project Accounts pursuant to this Accounts
Agreement, and shall be subject to and comply with all of the obligations that
the Accounts Bank owes to the Borrower and the Collateral Agent, for the
benefit of the Senior Secured Parties, with respect to the Project Accounts,
including all subordination obligations set forth in Section 2.10 (Subordination) with respect to the Accounts Bank’s right
of set-off or recoupment or right to obtain a Lien, pursuant to the terms of
this Accounts Agreement. The Accounts Bank hereby agrees to comply with any and
all written instructions originated by the Collateral Agent directing the
disbursement, deposit and/or transfer of any funds and all other property held
in the Project Accounts without any further consent of the Borrower or any
other Person, and to comply with any and all written instructions originated by
the Borrower directing the disbursement, deposit and/or transfer of any funds
and all other property held in the Project Accounts subject to, and in
accordance with, the terms of this Accounts Agreement.


 


Section 2.05           Representations, Warranties
and Covenants of Accounts Bank. The Accounts Bank hereby represents,
warrants, covenants and agrees as follows:


 


(a)         it is a securities intermediary on the
date hereof and shall act as such in maintaining the Project Accounts and all
of the Account Collateral (including all securities and other financial assets
or security entitlements deposited in or credited to the Project Accounts) from
time to time transferred, deposited in or credited to or maintained in the
Project Accounts;


 


(b)        it is the bank with which each Project
Account is maintained and the securities intermediary with respect to the
financial assets held in the Project Accounts. In this regard, (i) if the
Accounts Bank has knowledge that an issuer of any financial asset is required
to make a payment or distribution in respect of such financial asset, the
Accounts Bank shall have fulfilled its duty under applicable Law to take action
to obtain such payment or distribution if (A) it credits such payment or
distribution to the Project Accounts in accordance with this Accounts Agreement
if such payment or distribution is made or (B) it notifies the Borrower
and the Collateral Agent that such payment or distribution has not been made,
and (ii) if the Accounts Bank is required by applicable Law or this
Accounts Agreement to credit to any Project Account any financial asset
purported to be transferred or credited to the Accounts Bank pursuant


 


15

















 


to applicable
Law, the Accounts Bank shall have fulfilled its duty to so credit any Project
Account if it credits as a security entitlement to the applicable party
whatever rights the Accounts Bank purportedly has in the financial asset
transferred or credited to the Accounts Bank and the Accounts Bank shall have
no duty to ensure that applicable Law has been complied with in respect of the
transfer of the financial asset or to create a security interest in or Lien on
any financial asset purported to be transferred or credited to the Accounts
Bank and subsequently credited to any Project Account;


 


(c)         it shall promptly perform all duties
imposed upon a securities intermediary and a bank under the UCC, other
applicable Law and this Accounts Agreement;


 


(d)        the Collateral Agent, for the benefit of
the Senior Secured Parties, and no other Person, is the Accounts Bank’s
customer with respect to the Project Accounts, and the Borrower has consented
to the Collateral Agent, on behalf and for the benefit of the Senior Secured
Parties, being deemed the customer hereunder;


 


(e)         the Securities Intermediary’s
jurisdiction, for purposes of this Accounts Agreement and Article 8 of the
UCC, is and shall continue to be the State of New York, and the bank’s
jurisdiction of the Accounts Bank, for purposes of this Accounts Agreement and
Section 9-304(b)(1) of the UCC, is and shall continue to be the State of
New York;


 


(f)         it has established and maintains the
Project Accounts as set forth in Section 3.01 (Establishment
of Project Accounts);


 


(g)        each Project Account is and will be
maintained as a securities account or, as set forth in Section 2.06 (Project Accounts as Deposit Account), a deposit account;


 


(h)        all financial assets acquired by or
delivered to the Accounts Bank shall be held by the Accounts Bank and credited
by book entry to the relevant Project Account or otherwise accepted by the
Accounts Bank for credit to the relevant Project Account. Any financial asset
so credited or accepted for credit to the relevant Project Account shall be
registered in the name of, payable to, or to the order of, or indorsed to the
Accounts Bank or in blank and in no case will any financial asset credited to
any Project Account or held by the Accounts Bank for credit to any Project
Account be registered in the name of, payable to, to the order of, or indorsed
to, the Borrower, except to the extent that such financial asset has been
subsequently indorsed by the Borrower to the Accounts Bank or in blank;


 


16

















 


(i)          each item of property (including any
cash, security, general intangible, document, instrument or obligation, share,
participation, interest or other property whatsoever) deposited in or credited
to any Project Account shall be treated as a financial asset under and for the
purposes of Article 8 of the UCC, including Section 8-102(a)(9)(iii)
thereof. Notwithstanding any provision herein to the contrary, any property
contained in the Project Accounts that is not deemed to be a financial asset
under applicable Law, to the extent permitted by applicable Law, will be deemed
to be deposited in a deposit account and subject to Section 2.06 (Project Accounts as Deposit Account);


 


(j)          the Collateral Agent, for the benefit
of the Senior Secured Parties, is the entitlement holder in any security
entitlements with respect to any financial assets deposited in or credited to
the Project Accounts, and the Collateral Agent may issue entitlement orders
with respect thereto;


 


(k)         if at any time it receives an
entitlement order or any other order from the Collateral Agent directing the
transfer, redemption or liquidation of any financial asset carried in the
Project Accounts or any instruction originated by the Collateral Agent
directing the disbursement, deposit and/or transfer of any funds or other
property held in the Project Accounts, the Accounts Bank shall comply with such
entitlement order, instruction or other order without further consent by the
Borrower or any other Person. The Borrower hereby agrees that the Collateral
Agent, on behalf of and for the benefit of the Senior Secured Parties, shall
have control of the security entitlements carried in the Project Accounts and
of the financial assets carried in the Project Accounts, and the Borrower
hereby disclaims any entitlement to claim control of such security entitlements
or financial assets;


 


(l)          all property delivered to the Accounts
Bank pursuant to this Accounts Agreement or the other Financing Documents will
be promptly deposited in or credited to a Project Account by an appropriate
entry in its records in accordance with this Accounts Agreement;


 


(m)        the Accounts Bank shall not change the
name or account number of any Project Account unless it obtains the prior
written consent of the Collateral Agent and provides prior written notice to
the Borrower;


 


(n)        except for the claims and interest of
(i) the Collateral Agent, for the benefit of the Senior Secured Parties,
in the Project Accounts, (ii) the Second Lien Agent, for the benefit of the
Second Lien Claimholders, in the Second Lien Project Accounts and (iii) the
Borrower, in the Project Accounts, it does not know of and has not received
written notice of any right or claim (including any adverse claim) to or
interest in the Project Accounts or any Account Collateral (including, without
limitation,


 


17

















 


funds and
financial assets) deposited in or credited to the Project Accounts by any
Person. If any Person (other than the Collateral Agent, on behalf of the Senior
Secured Parties, or the Second Lien Agent, on behalf of the Second Lien
Claimholders) asserts any Lien, encumbrance or adverse claim (including any
writ, garnishment, judgment, warrant of attachment, execution or similar process)
against any Project Account or in any financial asset or other property
deposited therein or credited thereto, the Accounts Bank will promptly notify
the Collateral Agent, the Borrower and, if such Project Account is a Second
Lien Project Account, the Second Lien Agent, in writing thereof; and


 


(o)        the Accounts Bank has not entered into
and will not enter into any agreement with respect to the Project Accounts or
any financial assets or other property deposited in or credited to any Project
Account other than this Accounts Agreement, as may be amended from time to time.
The Accounts Bank has not entered into and will not enter into any agreement
with the Borrower or any other Person purporting to limit or condition the
obligation of the Accounts Bank to comply with entitlement orders or any other
order originated by the Collateral Agent in accordance with this Accounts
Agreement.


 


Section 2.06           Project Accounts as Deposit
Account. (a) The parties hereto agree that, to the extent that the Project
Accounts are not considered “securities accounts” (within the meaning of
Section 8-501(a) of the UCC), the Project Accounts shall be deemed to be
deposit accounts (as defined in Section 9-102(a)(29) of the UCC) to the extent
a security interest can be granted and perfected under the UCC in the Project
Accounts as deposit accounts, which the Borrower shall maintain with the
Accounts Bank acting not as Securities Intermediary but as a “bank” (within the
meaning of Section 9-102(a)(8) of the UCC).


 


(b)        The Collateral Agent, on behalf of the
Senior Secured Parties, shall be deemed the sole customer of the Accounts Bank
for purposes of the Project Accounts and, as such, shall be entitled to all of
the rights that customers of banks have under applicable Law with respect to
deposit accounts, including the right to withdraw funds from, or close, the
Project Accounts, and the Borrower hereby consents to the Collateral Agent
being deemed the customer hereunder.


 


Section 2.07           Grant of First-Priority
Security Interest. (a)  As security
for the prompt and complete payment when due (whether at stated maturity, by
acceleration or otherwise) of any and all of the Obligations and the due
performance and compliance by the Borrower with all of the terms, conditions,
and agreements to be performed and complied with by it under and pursuant to
the terms of the Credit Agreement and the other Financing Documents, the
Borrower hereby acknowledges and confirms the pledge, collateral assignment,
hypothecation, and granting of a first-priority security interest to


 


18

















 


the Collateral
Agent, for the benefit of the Senior Secured Parties, pursuant to the Security
Agreement in, all of its right, title and interest in and to the following, in
each case, as to each type of property described below, whether now owned or
hereafter acquired by the Borrower, wherever located, and whether now or
hereafter existing or arising (collectively, the “Account Collateral”):


 


(i)                                     each
of the Project Accounts (other than the Bond Proceeds Sub-Account), including
all funds, Cash Equivalents, securities, financial assets or other property
held in, required to be held in or credited to any of such Project Accounts or
otherwise in possession or control of the Accounts Bank pursuant to this
Accounts Agreement, and all interest, dividends and other income derived
therefrom;


 


(ii)                                  all
statements, certificates, instruments and investment property representing or
evidencing any property described in clause (i) above held in, required
to be held in or credited to any of such Project Accounts or otherwise in
possession or control of the Accounts Bank pursuant to this Accounts Agreement;
and


 


(iii)                               to
the extent not included in the foregoing, all proceeds, products and accessions
of and to any and all of the foregoing, including whatever is received upon any
collection, exchange, sale or other disposition of any of the foregoing and any
property into which any of the foregoing is converted, whether cash or non-cash
proceeds, and any and all other amounts paid or payable under or in connection
with any of the foregoing and all security entitlements of the Borrower in any
and all of the foregoing.


 


Section 2.08           Grant of Second-Priority
Security Interest. (a)  As security
for the prompt and complete payment when due (whether at stated maturity, by
acceleration or otherwise) of any and all of the obligations of the Borrower
and the due performance and compliance by the Borrower with all of the terms,
conditions, and agreements to be performed and complied with by it under and
pursuant to the terms of the Subordinated Loan Agreement and the other
Subordinated Debt Documents, the Borrower hereby acknowledges and confirms the
pledge, collateral assignment, hypothecation, and granting of a second-priority
security interest (subject to the terms of the Intercreditor Agreement) to the
Second Lien Agent, for the benefit of the Second Lien Claimholders, pursuant to
the “Subordinate Security Agreement” (as defined in the Bond


 


19

















 


Indenture),
over all of its right, title and interest in and to the following, in each
case, as to each type of property described below, whether now owned or
hereafter acquired by the Borrower, wherever located, and whether now or
hereafter existing or arising (collectively, the “Second Lien Account
Collateral”):


 


(i)                                     each
of the Second Lien Project Accounts, including all funds, Cash Equivalents,
securities, financial assets or other property held in, required to be held in
or credited to any of the Second Lien Project Accounts or otherwise in
possession or control of the Accounts Bank pursuant to this Accounts Agreement,
and all interest, dividends and other income derived therefrom;


 


(ii)                                  all
statements, certificates, instruments and investment property representing or
evidencing any property described in clause (i) above held in, required
to be held in or credited to any of the Second Lien Project Accounts or
otherwise in possession or control of the Accounts Bank pursuant to this
Accounts Agreement; and


 


(iii)                               to
the extent not included in the foregoing, all proceeds, products and accessions
of and to any and all of the foregoing, including whatever is received upon any
collection, exchange, sale or other disposition of any of the foregoing and any
property into which any of the foregoing is converted, whether cash or non-cash
proceeds, and any and all other amounts paid or payable under or in connection
with any of the foregoing and all security entitlements of the Borrower in any
and all of the foregoing;


 


For the avoidance
of doubt, (x) the Second Lien Account Collateral shall not include any right,
title or interest in any property held in, required to be held in or credited
to the Construction Accounts, the Liquidated Damages Account, the Debt Service
Reserve Account, the Contingency Reserve Account, the Prepayment Holding
Account or the Bond Proceeds Sub-Account, and (ii) notwithstanding any
provision of this Agreement to the contrary, the Collateral Agent shall have no
lien on the funds in the Bond Proceeds Sub-Account.


 


Section 2.09           Control and Perfection of
Account Collateral. (a) The Borrower specifically acknowledges and
agrees that (i) (A) each Project Account pledged hereunder shall be
maintained so that the Collateral Agent, on behalf and for the benefit


 


20

















 


of the Senior
Secured Parties, has control of such Project Account in the manner specified in
Section 9-104 of the UCC, (B) all Cash Equivalents pledged hereunder shall
be maintained so that the Collateral Agent, on behalf and for the benefit of
the Senior Secured Parties, has control of such Cash Equivalents in the manner
specified in Section 9-106 of the UCC, and (C) all financial assets
held in the Project Accounts and pledged hereunder shall be maintained so that
the Collateral Agent, on behalf and for the benefit of the Senior Secured
Parties, has control of such financial assets in the manner specified in
Section 8-106 of the UCC.


 


(b)        The Borrower shall give, execute,
deliver, file, record, authenticate, authorize or obtain all such UCC financing
statements as may be necessary to perfect and maintain the security interests
granted under this Accounts Agreement.


 


(c)         Until the Security Discharge Date and
payment in full of all obligations under the Subordinated Debt Documents, the
Borrower shall not have any rights against or to monies held in the Project
Accounts, except the right to receive or make requisitions of funds deposited
in or credited to the Project Accounts as permitted by this Accounts Agreement.


 


Section 2.10           Subordination. (a) The
Accounts Bank hereby acknowledges the first-priority security interest granted
hereby to the Collateral Agent, for the benefit of the Senior Secured Parties,
and the second-priority security interest granted hereby to the Second Lien
Agent, for the benefit of the Second Lien Claimholders. In the event that the
Accounts Bank has or subsequently obtains by agreement, operation of Law or
otherwise a right of recoupment or set-off or any Lien in any of the Project
Accounts, Account Collateral or any financial asset or other property deposited
therein or credited thereto or any security entitlement related thereto, the
Accounts Bank hereby agrees that such right of recoupment or set-off and/or any
such Lien shall (except to the extent provided in clause (c) of this Section
2.10) be subordinate to the security interest of each of the Collateral
Agent, on behalf and for the benefit of the Senior Secured Parties, and the
Second Lien Agent, on behalf of and for the benefit of the Second Lien
Claimholders. The Accounts Bank agrees that it shall not (except to the extent
provided in clause (c) of this Section 2.10) assert or enforce
any such right of recoupment or set-off and/or any Lien until the Notice of
Security Discharge Date and payment in full of all obligations under the
Subordinated Debt Documents.


 


(b)        (i) Until the Notice of Security
Discharge Date, the financial assets and other items deposited in or credited
to the Project Accounts and all other Account Collateral will not (except to
the extent provided in clause (c) of this Section 2.10) be
subject to deduction, set-off, banker’s lien or any other right in favor of any
Person other than the Collateral Agent, on behalf and for the benefit of the
Senior Secured Parties, and (ii)  from
and after the Notice of Security Discharge Date until the payment


 


21

















 


in full of all
obligations under the Subordinated Debt Documents, the financial assets and
other items deposited in or credited to the Project Accounts and all other
Account Collateral will not (except to the extent provided in clause (c)
of this Section 2.10) be subject to deduction, set-off, banker’s lien or
any other right in favor of any Person other than the Second Lien Agent, on
behalf and for the benefit of the Second Lien Claimholders.


 


(c)         The Project Accounts, Account
Collateral or any financial asset or other property deposited therein or
credited thereto shall be subject to deduction, set-off, banker’s lien and
recoupment to the extent of returned items and chargebacks either for
uncollected checks or other items of payment and transfers previously credited
to one or more Project Accounts, and each of the Collateral Agent, on behalf of
and for the benefit of the Senior Secured Parties, the Second Lien Agent, on
behalf of and for the benefit of the Second Lien Claimholders, and the Borrower
hereby expressly authorize the Accounts Bank to debit the relevant Project
Account(s) for such amounts.


 


Section 2.11           Agreement to Hold In Trust.
All payments received directly by the Borrower that are required to be
deposited into the Project Accounts in accordance with the terms of this
Accounts Agreement, the Credit Agreement, or any other Financing Document
(including any amount received by the Borrower pursuant to, or in connection
with, any Project Document or any sale of Products) shall be held by the
Borrower in trust for the Collateral Agent, on behalf and for the benefit of
the Senior Secured Parties, shall be segregated from other funds of the
Borrower and shall, forthwith upon receipt by the Borrower, be turned over to
the Collateral Agent or its designee in the same form as received by the
Borrower (duly endorsed by the Borrower to the Collateral Agent or the Accounts
Bank, if requested) for deposit and disbursement in accordance with this
Accounts Agreement.


 


ARTICLE III



PROJECT ACCOUNTS


 


Section 3.01                                Establishment
of Project Accounts. (a) On or prior to the Closing Date, the Accounts Bank
shall establish and maintain, in the name of the Collateral Agent and on the
books and records of the Accounts Bank’s offices located in Amarillo, Texas,
the accounts set forth below:


 


(i)                                     a
special, segregated, Dollar-denominated account entitled “Construction
Account”, Account No. 129542 (the “Construction Account”);


 


22

















 


(ii)                                  a
special, segregated Dollar-denominated account entitled “Liquidated Damages
Account”, Account No. 129607 (the “Liquidated Damages Account”);


 


(iii)                               a
special, segregated, Dollar-denominated account entitled “Revenue Account”,
Account No. 129615 (the “Revenue Account”);


 


(iv)                              a
special, segregated, Dollar-denominated account entitled “Operating Account”,
Account No. 129461 (the “Operating Account”);


 


(v)                                 a
special, segregated, Dollar-denominated account entitled “Maintenance Capital
Expense Account”, Account No. 

129488 (the “Maintenance Capital Expense Account”);


 


(vi)                              a
special, segregated, Dollar-denominated account entitled “Working Capital
Reserve Account”, Account No. 128619 (the “Working Capital Reserve
Account”);


 


(vii)                           a
special, segregated, Dollar-denominated account entitled “Debt Service Reserve
Account”, Account No. 129496 (the “Debt Service Reserve Account”);


 


(viii)                        a special,
segregated, Dollar-denominated account entitled “Prepayment Holding Account”,
Account No. 129518 (the “Prepayment Holding Account”);


 


(ix)                                a
special, segregated, Dollar-denominated account entitled “Aberdeen Insurance
and Condemnation Proceeds Account”, Account No. 129526 (the “Aberdeen
Insurance and Condemnation Proceeds Account”);


 


(x)                                   a
special, segregated, Dollar-denominated account entitled “Huron Insurance and
Condemnation Proceeds Account”, Account No. 129534 (the “Huron
Insurance and Condemnation Proceeds Account”);


 


(xi)                                a
special, segregated, Dollar-denominated account entitled “Extraordinary
Proceeds Account”, Account No. 128449 (the “Extraordinary Proceeds
Account”);


 


23

















 


(xii)                             a special,
segregated, Dollar-denominated account entitled “Contingency Reserve Account”,
Account No. 128457 (the “Contingency Reserve Account”);


 


(xiii)                          a
special, segregated, Dollar-denominated sub-account of the Construction Account
entitled the “Bond Proceeds Sub-Account”, Account No. 128511 (the “Bond
Proceeds Sub-Account”); and


 


(xiv)                         a
special, segregated, Dollar-denominated sub-account of the Working Capital
Reserve Account entitled the “LC Cash Collateral Sub-Account”, Account
No. 129364 (the “LC Cash Collateral Sub-Account”).


 


Section 3.02           Deposits into and
Withdrawals from Project Accounts. (a) Amounts shall be deposited into
and withdrawn from the Project Accounts in strict accordance with this Article III.


 


(b)        The Accounts Bank will only be required
to transfer funds hereunder on a “same day” basis if it has received written
notice of such proposed transfer, together with all certificates, notices,
directions and other documents required under this Accounts Agreement to be
delivered to the Accounts Bank relating thereto, not later than 11:00 a.m.
Eastern time on the Business Day of such proposed transfer and, if such notice
or any such related document is received by the Accounts Bank after such time,
such transfer will be undertaken on the next Business Day succeeding the date
of receipt by the Accounts Bank of all such documentation.


 


(c)         If any transfer, withdrawal, deposit,
investment or payment of any funds by the Accounts Bank or any other action to
be taken by the Accounts Bank under this Accounts Agreement is to be made or
taken on a day other than a Business Day, such transfer, withdrawal, deposit,
investment, payment or other action will be made or taken on the next
succeeding Business Day.


 


(d)        (i) 
Any instruction, direction, notice, certificate, request or requisition
given to the Accounts Bank by the Borrower with respect to the transfer,
withdrawal, deposit, investment or payment of any funds under this Accounts
Agreement or with respect to any other obligations to be performed by the Accounts
Bank under this Accounts Agreement (A) must be in writing and signed by an
Authorized Officer of the Borrower, (B) in referencing any of the Project
Accounts, must refer to the specific Project Account name and number,
(C) shall constitute a representation by the Borrower that all conditions
set forth in this Accounts Agreement for such withdrawal have been satisfied,
whether or not those conditions are explicitly


 


24

















 


stated to be
so satisfied and (D) shall be copied to the Administrative Agent and the
Collateral Agent.


 


(ii)  Any instruction, direction, notice,
certificate, request or requisition given to the Accounts Bank by the
Collateral Agent or the Administrative Agent with respect to the transfer,
withdrawal, deposit investment or payment of any funds under this Accounts
Agreement or with respect to any other obligations to be performed by the
Accounts Bank under this Accounts Agreement (A) must be in writing,
(B) in referencing any of the Project Accounts, must refer to the specific
Project Account name and number, and (C) shall be copied to the Borrower.


 


(iii)  Notwithstanding anything contained in this
Accounts Agreement or any other Financing Document to the contrary, the
Accounts Bank may rely on, and shall be protected in acting or refraining from
acting upon, any instruction, direction, notice, certificate, request or
requisition of the Borrower, the Administrative Agent or the Collateral Agent.


 


(e)         None of the Project Accounts shall go
into overdraft, and the Accounts Bank shall not comply with any request or
direction to the extent that it would cause any of the Project Accounts to do
so.


 


(f)         The Borrower hereby acknowledges that
it has irrevocably instructed each Project Party, and agrees that it shall so
instruct each future Project Party and each payor in connection with any sale
of Product, to make all payments due and payable to the Borrower under any
Project Document and in connection with any such sale of Product directly to
the Accounts Bank for deposit in, or to be credited in the manner set forth in
this Article III. The Borrower further agrees that it shall
irrevocably instruct each other Person from whom the Borrower is entitled to
receive Cash Flow or Insurance Proceeds and Condemnation Proceeds to make all
payments due and payable to the Borrower from such Person directly to the
Accounts Bank for deposit, and to be credited, in the manner set forth in this Article III.


 


(g)        The Accounts Bank shall not be charged
with knowledge of any Notice of Suspension, Default or Event of Default unless
the Accounts Bank has received such Notice of Suspension or other written
notice of such Default or Event of Default from the Administrative Agent, the
Collateral Agent or an Authorized Officer of the Borrower. The Accounts Bank
shall not be charged with the knowledge that the Conversion Date has occurred
unless it has received written notice thereof from the Administrative Agent or
from the Borrower if countersigned by the Administrative Agent.


 


25

















 


(h)        The Accounts Bank shall not be charged
with the knowledge that any transfer or withdrawal from any Project Account
would result in the occurrence of a Default or Event of Default, unless it has
received written notice thereof from the Administrative Agent, the Collateral
Agent or an Authorized Officer of the Borrower.


 


(i)          Notwithstanding anything contained in
this Accounts Agreement or any other Financing Document to the contrary, the
Accounts Bank shall have no obligation to (i) make any payment, transfer
or withdrawal from any Project Account until it has received written direction
to make such payment, transfer or withdrawal from the Collateral Agent, the
Administrative Agent, or the Borrower if this Accounts Agreement explicitly
provides that any such direction may be made by the Borrower, or
(ii) determine whether any payment, transfer or withdrawal from any
Project Account made in accordance with any written direction from the
Collateral Agent, the Administrative Agent or the Borrower (if this Accounts
Agreement explicitly provides that any such direction may be made by the
Borrower) complies with the terms of this Accounts Agreement. The Accounts Bank
shall have no liability for, nor any responsibility or obligation to confirm,
the use or application by the Borrower, Administrative Agent, the Collateral
Agent or any other recipient of amounts withdrawn or transferred from any
Project Account.


 


(j)          Notwithstanding any other provision of
this Accounts Agreement or any other Financing Document (but without limiting Section
3.02(g), (h) and (i) (Deposits into and
Withdrawals from Project Accounts)), without the express prior
written consent of the Required Lenders, no amount may be withdrawn from any
Project Account if a Default or Event of Default would occur as a result of
such withdrawal.


 


(k)         On the date of each withdrawal by the
Accounts Bank from a Project Account, the Borrower shall be deemed to represent
and warrant that no Notice of Suspension is in effect and that no Default or
Event of Default would occur as a result of such withdrawal, unless the
Required Lenders have previously consented in writing to such withdrawal,
notwithstanding that a Notice of Suspension is in effect or that a Default or
Event of Default would occur as a result of such withdrawal.


 


ARTICLE IV



CONSTRUCTION ACCOUNT


 


Section 4.01           Construction Account. (a) Payments
into the Construction Account. Until (and including) the Conversion Date,
the Borrower (or, with respect to Loan proceeds, the Administrative Agent)
shall cause the following amounts to be paid into the Construction Account:


 


26

















 


(i)                                     until
the Conversion Date, all equity contributions received by the Borrower in
respect of the Aberdeen II Plant;


 


(ii)                                  all
proceeds disbursed from the Bond Project Fund for the Aberdeen II Plant
pursuant to the Bond Indenture with directions to deposit such proceeds into
the Bond Proceeds Sub-Account;


 


(iii)                               all
proceeds of the Construction Loans (except (A) for any Fundings applied
directly to the payment of Debt Service or other Obligations or (B) as
otherwise applied on the Conversion Date in accordance with
Section 2.06(e) (Funding of Loans)
of the Credit Agreement);


 


(iv)                              all
damages payable (other than Delay Liquidated Damages) under the Design-Build
Agreement;


 


(v)                                 all
amounts required to be deposited into the Construction Account pursuant to Section 14.01(b)
(Contingency Reserve Account); and


 


(vi)                              all
amounts deposited into the Construction Account pursuant to Section
4.02(b)(i)(y) (Withdrawals from the Bond Proceeds
Sub-Account).


 


(b)        Withdrawals from the Construction
Account. (i)  Unless a Notice of
Suspension is in effect or a Default or Event of Default would occur as a result
of any application of funds contemplated by this Section 4.01, the
Borrower may direct the transfer or withdrawal of funds standing to the credit
of the Construction Account (A) to pay Project Costs then due and owing
strictly in accordance with the Construction Budget, (B) to pay Project
Costs relating to repayment in full on the Closing Date of Existing Plant Debt
and (C) to the extent of any additional equity provided by the Pledgors
pursuant to Section 6.01(gg) (Existing Plant Debt Payoff)
of the Credit Agreement, to pay the amount by which the repayment in full of
the Existing Plant Debt (including accrued interest) exceeds forty-seven
million Dollars ($47,000,000), in each case by delivering a Construction
Withdrawal Certificate to the Accounts Bank (with a copy to the Administrative
Agent and the Independent Engineer) which, in the case of any Loan proceeds,
shall be for application strictly in accordance with the relevant Funding
Notice (as defined in the Credit Agreement). All payments from the Construction
Account shall be made by the Accounts Bank pursuant to instructions set forth
in the relevant Construction Withdrawal Certificate directly to the payee. In
the event that the Borrower fails to deliver such a Construction Withdrawal
Certificate, the


 


27

















 


Administrative
Agent is hereby authorized to direct, in writing, the Accounts Bank to transfer
or withdraw the amounts necessary to pay Project Costs that are, from time to
time, due and payable.


 


(ii)           Conversion Date. On the
Conversion Date, all amounts on deposit in or standing to the credit of the
Construction Account (other than amounts on deposit in or standing to the
credit of the Additional Capital Expenditure Sub-Account and the Bond Proceeds
Sub-Account) shall be withdrawn and such account (but not the Additional
Capital Expenditure Sub-Account) shall be terminated and closed at the written
instruction of the Borrower or the Administrative Agent, and such amounts shall
be applied in accordance with Section 2.06(e) (Funding of
Loans) of the Credit Agreement and the Construction Withdrawal
Certificate (a copy of which shall be delivered to, and shall constitute
instructions to, the Accounts Bank).


 


Section 4.02           Bond Proceeds Sub-Account.
(a)  All proceeds disbursed from the Bond Project Fund for the Aberdeen II
Plant pursuant to the Bond Indenture shall be deposited into the Bond Proceeds
Sub-Account. On the Closing Date the Second Lien Agent is required to deposit
fifteen million five hundred eighty-three thousand five hundred sixty-two
Dollars and fifty cents ($15,583,562.50) of the Original Proceeds of the Bonds
solely into the Bond Proceeds Sub-Account.


 


(b)        Withdrawals from the Bond Proceeds
Sub-Account. (i)  Unless a Notice of
Suspension is in effect or a Default or Event of Default would occur as a
result of any application of funds contemplated by this Section 4.02,
funds standing to the credit of the Bond Proceeds Sub-Account shall be
disbursed only upon delivery to the Accounts Bank of (A) a Bond Proceeds
Withdrawal Certificate (with a copy to the Administrative Agent, the
Independent Engineer and the Second Lien Agent), countersigned by each of the
Borrower and the Second Lien Agent, and, (B) an Independent Engineer’s
Certificate. All payments from the Bond Proceeds Sub-Account shall be made by
the Accounts Bank pursuant to instructions set forth in the relevant Bond
Proceeds Withdrawal Certificate either (x) directly to the payee, or (y) in the
case of a requested disbursement for Costs of the Project previously paid by or
on behalf of the Borrower, but in respect of which no Bond Proceeds Withdrawal
Certificate has been delivered previously, for transfer to the Construction
Account in an amount equal to the amount of such previous payments.


 


(ii)         Termination. On the earlier of
the Conversion Date and the Conversion Date Certain, at the written instruction
of the Second Lien Agent, all amounts on deposit in or standing to the credit
of the Bond Proceeds Sub-Account shall be paid to the Second Lien Agent for
deposit into the Bond Project Fund and application as set forth in the Bond
Indenture, and such account shall be terminated and closed. All parties to this
Accounts Agreement agree and covenant not to contest or seek to prohibit


 


28

















 


the payment of
such amounts to the Second Lien Agent or assert any claim to such monies under
any theory.


 


(c)         Notices Regarding Nature of Bond
Proceeds. The Borrower and the Second Lien Agent hereby notify the parties
hereto that:


 


(i)            the initial deposit of
Original Proceeds of the Bonds referenced in Section 4.02(a) constitutes
all of the Original Proceeds of the Bonds (being $19,000,000) less $1,900,000
of such Original Proceeds which are being deposited into the Bond Debt Service
Reserve Fund, $366,000 of such Original Proceeds being deposited to the Bond
Expense Fund, and $1,136,437.50 of such Original Proceeds for the purpose of
paying interest on the Bonds during the construction period;


 


(ii)           the Bonds are being
issued with a date of issuance so there is no accrued interest and are being
sold by Dougherty & Company LLC, as underwriter, to the ultimate
purchaser(s) thereof at a price equal to the par amount thereof resulting in an
Issue Price of $19,000,000;


 


(iii)          all earnings on
investments of Original Proceeds deposited into the Bond Proceeds Sub-Account
constitute Investment Proceeds;


 


(iv)          the Original Proceeds
and Investment Proceeds (which includes investment earnings on investment
earnings) constitute Gross Proceeds of the Bonds;


 


(v)           the Gross Proceeds of
the Bonds deposited into the Bond Proceeds Sub-Account are subject to yield
restrictions as to investment as set forth in the Code, except to the extent to
which a temporary period (as defined in the Code) exists to allow for the
investment of such accounts at a yield (as defined in the Code) in excess of
the yield (as defined in the Code) on the Bonds;


 


(vi)          Excess Earnings (as
defined in the Code) on Gross Proceeds are subject to rebate to the United
States of America as set forth in the Code and tax returns are


 


29

















 


required to be filed periodically as set
forth in the Code as to the calculation of such rebate;


 


(vii)       The
exclusion of interest paid on the Series 2007A Bonds from gross income of the
recipient for federal income tax purposes is dependant on continued compliance
with the requirements of the Code after issuance of the Bonds and such
compliance requirements apply to the proceeds deposited into the Bond Proceeds
Sub-Account, are not limited to matters within the control of the Issuer or the
Borrower, may be based on actual occurrences rather than reasonable
expectations of the Issuer or the Borrower at the time of issuance of the Bonds
and may result in all interest paid on the Bonds to be included in taxable
income of the recipient thereof from the date of issuance of the Bonds;


 


(viii)      Compliance
obligations with respect to the Bonds, including without limitation,
recordkeeping, may survive the termination of the Accounts Agreement and the
payment in full of the Bonds; and


 


(ix)       
References to the Code shall include the regulations, technical advice
memorandum, published rulings and private letter rulings of the Internal Revenue
Service relating to the applicable provisions of the Code.


 


(d)                         Covenants
Relating to Bond Proceeds Sub-Account.


 


(i)           Except for amounts transferred to
the Construction Account in accordance with Section 4.02(b)(i)(y), all
amounts on deposit in the Bond Proceeds Sub-Account shall be used solely for
the payment of Costs of the Project.


 


(ii)         Notwithstanding any provision herein
to the contrary, all amounts on deposit in the Bond Proceeds Sub-Account (A)
shall be invested solely at the direction of the Second Lien Agent in Cash
Equivalents, (B) shall be segregated and separated from all other amounts on
deposit pursuant to the Accounts Agreement, (C) shall not be commingled with
any amounts on deposit in any other Project Accounts, and (D) shall be
accounted for separately from all other amounts on deposit with the Accounts
Bank.


 


30
















 


(iii)          Each investment of
amounts on deposit in the Bond Proceeds Sub-Account shall be purchased solely
from such amounts. No such investment shall be apportioned to or represent an
investment of monies in any other Project Account.


 


(iv)          The Accounts Bank shall
maintain complete and accurate records of all disbursements from the Bond
Proceeds Sub-Account, and shall provide monthly reports of such disbursements
together with copies of all supporting documentation to the Second Lien Agent
within 10 days from the end of each month for such month. Such obligation to
maintain records shall survive the termination of the Accounts Agreement for
the period set forth in Section 9.01 (Recordkeeping Obligation)
of the Tax Exemption Agreement.


 


(v)           The Accounts Bank shall
maintain complete and accurate records as to all investments and earnings with
such information as required by Section 9.01 (Recordkeeping
Obligation) of the Tax Exemption Agreement and provide reports to
the Second Lien Agent within 10 days from the end of each month for activity
during such month, together with copies of all back-up documentation. The
obligation to maintain such records shall survive the termination of the
Accounts Agreement for the period set forth in Section 9.01 (Recordkeeping Obligation) of the Tax Exemption Agreement.


 


(vi)          The Accounts Bank shall
not honor any claim by any other party to funds in the Bond Proceeds
Sub-Account to be disbursed and shall not so disburse such funds to any such
claimant and shall promptly notify the Second Lien Agent, the Borrower, the
Issuer and the Administrative Agent of any such claim.


 


(vii)         No disbursement shall be
made to the Borrower, or any other party, for Costs of the Project actually
paid by the Borrower or any other party more than 60 days prior to July 3,
2007, except preliminary expenditures identified in Treas. Reg. Section
1.150-2(f)(2) not exceeding $3,800,000.


 


31

















 


(viii)        No party to the Accounts
Agreement other than the Second Lien Agent shall have the right to give
instructions to withdraw or use the amounts on deposit in the Bond Proceeds
Sub-Account, other than the Accounts Bank acting as agent for the Second Lien
Agent to maintain possession of such funds, or shall make any claim or commence
any action under any provision of any document, law or asserted legal right
with respect to such amounts and specifically agree that such amounts may be
used solely for the payment of Costs of the Project pursuant to the terms and
conditions of this Accounts Agreement.


 


(ix)           The delivery of the
proceeds of the Bonds, and the investment earnings thereon, to the Accounts
Bank does not constitute delivery to or possession by the Borrower and the
Borrower shall have no right of control over such funds other than to request
disbursement thereof upon a valid Written Request (as defined in the Bond
Indenture). No party to this Agreement shall assert, claim or seek a
determination that such amounts constitute part of the bankrupt estate of the
Borrower for bankruptcy or insolvency purposes. All amounts in the Bond
Proceeds Sub-Account shall be held in trust for the benefit of the Second Lien
Claimholders, subject to application to pay Costs of the Project as set forth
in Section 4.02(b)(i).


 


(x)            Once all of the
conditions in this Agreement and the relevant Bond Proceeds Withdrawal
Certificate (other than execution of such certificate by the Second Lien Agent)
to disbursement of funds from the Bond Proceeds Sub-Account have been
satisfied, then the Second Lien Agent shall execute, and deliver to the
Borrower and the Accounts Bank, such Bond Proceeds Withdrawal Certificate.


 


ARTICLE V



LIQUIDATED DAMAGES ACCOUNT


 


Section 5.01           Liquidated
Damages Account. (a)  Payments
into the Liquidated Damages Account. The Borrower shall cause all Delay
Liquidated Damages received on or prior to the Conversion Date to be paid into
the Liquidated Damages Account.


 


32

















 


(b)        Withdrawals from the
Liquidated Damages Account. (i)  Payment
of Debt Service or Fixed Costs. Until (but not including) the Conversion
Date, unless a Notice of Suspension is in effect or a Default or an Event of
Default would occur as a result of any application of funds contemplated by
this Section 5.01, the Borrower may, from time to time, submit a
Liquidated Damages Transfer Certificate to the Accounts Bank to direct the
transfer or withdrawal of funds standing to the credit of the Liquidated
Damages Account to pay directly any amounts due and payable for (A) Debt
Service or (B) fixed costs or other amounts, in each case that are due and
owing and approved by the Administrative Agent and the Independent Engineer. In
the event that the Borrower fails to deliver such a Liquidated Damages Transfer
Certificate, the Collateral Agent, as directed in writing by the Administrative
Agent, is hereby authorized to direct, in writing, the Accounts Bank (with a
copy to the Borrower) to transfer or withdraw the amounts necessary to pay Debt
Service, fixed costs or other amounts that are due and owing.


 


(ii)  Conversion Date. On the Conversion
Date, the Accounts Bank shall, upon written direction from the Borrower or the
Collateral Agent, transfer any funds on deposit in or standing to the credit of
the Liquidated Damages Account to the Revenue Account.


 


ARTICLE VI



REVENUE ACCOUNT


 


Section 6.01           Revenue
Account. (a) Payments into the Revenue Account. The Borrower shall
cause the following amounts to be paid into the Revenue Account:


 


(i)            all Cash Flow;


 


(ii)           except as set forth in Section 13.01
(Extraordinary Proceeds Account), all
proceeds from the sale or disposition of any assets of the Borrower;


 


(iii)          any other income
received by or on behalf of the Borrower that is not required to be deposited
in or credited to another Project Account, or applied directly to the
Obligations, in accordance with this Accounts Agreement;


 


(iv)          any Delay Liquidated
Damages received after the Conversion Date; and


 


33

















 


(v)           amounts transferred to
the Revenue Account pursuant to Section 2.06(e) (Funding of
Loans) of the Credit Agreement, Section 5.01(b)(ii) (Withdrawals from the Liquidated Damages Account), Section 9.01(b)
(Withdrawals from the Working Capital Reserve
Account) or (c) (Excess Amount in Working
Capital Reserve Account), Section 10.03 (Excess in Debt Service Reserve Account), Section
11.01(b) (Withdrawals from the Prepayment Holding Account),
Section 13.01(b)(i)(A) (Withdrawals from the
Extraordinary Proceeds Account – Asset Disposal) or (ii)(A) (Withdrawals from the Extraordinary Proceeds Account – Project Document
Termination Payments) or Section 14.01(b)(iii) (Withdrawals from the Contingency Reserve Account).


 


(b)        Withdrawals from the
Revenue Account Prior to Conversion Date. Until (but not including) the
Conversion Date, unless a Notice of Suspension is in effect or a Default or
Event of Default would occur as a result of any application of funds
contemplated by this Section 6.01(b), upon receipt of a
Pre-Conversion Date Revenue Account Withdrawal Certificate duly executed by an
Authorized Officer of the Borrower, the Accounts Bank shall, in accordance with
the directions set forth therein, cause funds held in the Revenue Account to be
withdrawn or transferred to pay the following amounts on the dates and at the
priorities indicated below:


 


(i)            first, on each Monthly Date (or, in the
case of amounts to pay Operation and Maintenance Expenses for the cost of corn,
on any date), to the Operating Account, in the amount certified by the Borrower
in such Revenue Account Withdrawal Certificate as required to pay Operation and
Maintenance Expenses that, in each such case (other than Operation and
Maintenance Expenses for the cost of corn), are or will become due and payable
during the immediately succeeding calendar month; provided, that the
aggregate amount of withdrawals (other than for amounts to pay Operation and
Maintenance Expenses for the cost of corn and natural gas) pursuant to this priority
first for all calendar months in
such Fiscal Year (or, if the Closing Date occurred during such Fiscal Year, for
all calendar months since the Closing Date), including amounts proposed to be
drawn on such Monthly Date for the immediately succeeding calendar month, does
not exceed the Permitted Budgeted Operating Expenses Level for such


 


34

















 


immediately succeeding calendar month, as
certified by the Borrower in such Revenue Account Withdrawal Certificate;


 


(ii)           second,
on each Monthly Date, to the Maintenance Capital Expense Account, in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate as
necessary to pay Maintenance Capital Expenses that, in each such case, are or
will become due and payable during the immediately succeeding calendar month; provided
that such transfer shall require the approval of the Independent Engineer if
(A) such Maintenance Capital Expenses are incurred or to be incurred for
compliance with any Environmental Law or other applicable Law and
(I) would exceed five hundred thousand Dollars ($500,000) or
(II) together with all previous transfers to the Maintenance Capital
Expense Account pursuant to this clause (A) during the then current Fiscal Year
(or, if the Closing Date occurred during the current Fiscal Year, since the
Closing Date), would exceed, in the aggregate, one million Dollars
($1,000,000), or (B) such Maintenance Capital Expenses are for any other
purpose and, taken together with all previous transfers to the Maintenance
Capital Expense Account pursuant to this clause (B) during the then current
Fiscal Year (or, if the Closing Date occurred during the current Fiscal Year,
since the Closing Date), would exceed, in the aggregate, five hundred thousand
Dollars ($500,000), as certified by the Borrower in such Revenue Account
Withdrawal Certificate;


 


(iii)          third,
on any date when due and payable, to the Administrative Agent, for the account
of the Senior Secured Parties, in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent as necessary to pay Fees, costs
and expenses then due and payable under the Financing Documents;


 


(iv)          fourth,
on any date when due and payable, to the Administrative Agent, for the account
of the Senior Secured Parties, in the amount certified by the Borrower in


 


35

















 


such Revenue Account Withdrawal Certificate
or otherwise instructed in writing to the Accounts Bank by the Administrative
Agent as necessary to pay any interest then due and payable under the Financing
Documents and any fees, expenses or Net Swap Payments owing to any Interest
Rate Protection Provider;


 


(v)           fifth,
on each Monthly Date when due and payable, to the Administrative Agent, for the
account of the Interest Rate Protection Providers, on a pro rata basis,
the amount certified by the Borrower in such Revenue Account Withdrawal
Certificate or otherwise instructed in writing to the Accounts Bank by the
Administrative Agent as payments of Swap Termination Value then due and payable
by the Borrower with respect to any Interest Rate Protection Agreements;


 


(vi)          sixth,
on each Monthly Date, when required pursuant to Section 3.10(e)(ii) of the
Credit Agreement, to the Administrative Agent in the amount certified by the
Borrower in such Revenue Account Withdrawal Certificate, as a payment of the
Working Capital Loans to ensure that there are no outstanding Working Capital
Loans for a period of ten (10) consecutive Business Days in each calendar year;


 


(vii)         seventh,
on any date when required pursuant to Section 3.10(a)(v) or
Section 3.10(e)(i) (Mandatory Prepayment)
of the Credit Agreement, or otherwise at the option of the Borrower pursuant to
Section 3.09(d)(ii) (Optional Prepayment)
of the Credit Agreement, to the Administrative Agent in the amount certified by
the Borrower in such Revenue Account Withdrawal Certificate or otherwise
instructed in writing to the Accounts Bank by the Administrative Agent, for
application as a prepayment of the Working Capital Loans;


 


(viii)        eighth,
on each Monthly Date, to the Working Capital Reserve Account, in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate or
otherwise instructed in writing to the Accounts Bank by the Administrative
Agent as equal to the difference between


 


36

















 


(A) the Working Capital Reserve Required
Amount and (B) the funds on deposit in or standing to the credit of the
Working Capital Reserve Account on such Monthly Date;


 


(ix)           ninth,
on each Monthly Date, to the Contingency Reserve Account, the amount specified
in such Revenue Account Withdrawal Certificate or otherwise instructed in
writing to the Accounts Bank by the Administrative Agent as shall cause the
amount on deposit in the Contingency Reserve Account to equal the Contingency
Reserve Required Amount at such time;


 


(x)            tenth,
provided that no Default or Event of Default has occurred and is continuing, on
each Quarterly Payment Date, in an amount certified by the Borrower in such
Revenue Account Withdrawal Certificate, which amount shall not exceed fifty
percent (50%) of the funds remaining after priority ninth above, to the Persons or accounts specified in
such Revenue Account Withdrawal Certificate (including, if required to be paid
directly to any taxing authority, to such taxing authority), for payment of any
Permitted Tax Distribution;


 


(xi)           eleventh,
on each Quarterly Payment Date, to the Administrative Agent, all remaining
amounts after priority tenth, as
certified by the Borrower in such Revenue Account Withdrawal Certificate or
otherwise instructed in writing to the Accounts Bank by the Administrative
Agent, for application as a prepayment of the Construction Loans in accordance
with Section 3.10(b)(i) (Mandatory Prepayment)
of the Credit Agreement, provided that the aggregate prepayments
pursuant to this priority eleventh  shall not exceed twenty-nine million Dollars ($29,000,000);
and


 


(xii)          twelfth, on
each Quarterly Payment Date, in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent, as a prepayment of the
Construction Loans in accordance with Section 3.10(b)(i) (Mandatory
Prepayment) of the Credit Agreement and, provided that no Default or
Event of


 


37

















 


Default has occurred and is continuing, for
distribution to the Pledgors, in amounts such that the ratio of Aggregate
Pre-Conversion Cash Sweeps to Aggregate Pre-Conversion Distributions is equal
to 60:40, provided, that if sufficient amounts are not available at this
priority for prepayment of the Construction Loans in order for such ratio to be
achieved, then all such amounts shall be applied as a prepayment of the
Construction Loans in accordance with Section 3.10(b)(i) (Mandatory
Prepayment) of the Credit Agreement.


 


(c)         Withdrawals from the
Revenue Account On and After the Conversion Date. Commencing on (and
including) the Conversion Date, unless a Notice of Suspension is in effect or a
Default or Event of Default would occur as a result of any application of funds
contemplated by this Section 6.01(c), upon receipt of a
Post-Conversion Date Revenue Account Withdrawal Certificate duly executed by an
Authorized Officer of the Borrower, the Accounts Bank shall, in accordance with
the directions set forth therein, cause funds held in the Revenue Account to be
withdrawn or transferred to pay the following amounts on the dates and at the
priorities indicated below:


 


(i)            first, on each Monthly Date (or, in the
case of amounts to pay Operation and Maintenance Expenses for the cost of corn,
on any date), to the Operating Account, the amount certified by the Borrower in
such Revenue Account Withdrawal Certificate as required to pay Operation and
Maintenance Expenses that, in each such case (other than Operation and
Maintenance Expenses for the cost of corn), are or will become due and payable
during the immediately succeeding calendar month; provided, that the
aggregate amount of withdrawals (other than for amounts to pay Operation and
Maintenance Expenses for the cost of corn and natural gas) pursuant to this priority
first and to priority first of Section 6.01(b) for all calendar months
in such Fiscal Year (or, if the Closing Date occurred during such Fiscal Year,
for all calendar months since the Closing Date), including amounts proposed to
be drawn on such Monthly Date for the immediately succeeding calendar month, does
not exceed the Permitted Budgeted Operating Expenses Level for such immediately
succeeding calendar month, as certified by the Borrower in such Revenue Account
Withdrawal Certificate;


 


38

















 


(ii)           second,
on each Monthly Date, to the Maintenance Capital Expense Account, in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate as
necessary to pay Maintenance Capital Expenses that, in each such case, are or
will become due and payable during the immediately succeeding calendar month; provided
that such transfer shall require the approval of the Independent Engineer if
(A) such Maintenance Capital Expenses are incurred or to be incurred for
compliance with any Environmental Law or other applicable Law and
(I) would exceed five hundred thousand Dollars ($500,000) or
(II) together with all previous transfers to the Maintenance Capital
Expense Account pursuant to this clause (A) during the then current Fiscal
Year, would exceed, in the aggregate, one million Dollars ($1,000,000), or
(B) such Maintenance Capital Expenses are for any other purpose and, taken
together with all previous transfers to the Maintenance Capital Expense Account
pursuant to this clause (B) during the then current Fiscal Year, would exceed,
in the aggregate, five hundred thousand Dollars ($500,000), as certified by the
Borrower in such Revenue Account Withdrawal Certificate;


 


(iii)          third,
on any date when due and payable, to the Administrative Agent, for the account of
the Senior Secured Parties, in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent as necessary to pay Fees, costs
and expenses then due and payable under the Financing Documents;


 


(iv)          fourth,
on any date when due and payable, to the Administrative Agent, for the account
of the Senior Secured Parties, in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent as necessary to pay any interest
then due and payable under the Financing Documents and any fees, expenses or
Net Swap Payments owing to any Interest Rate Protection Provider;


 


39

















 


(v)           fifth,
on each Monthly Date, when required pursuant to Section 3.10(e)(ii) of the
Credit Agreement, to the Administrative Agent in the amount certified by the
Borrower in such Revenue Account Withdrawal Certificate, as a payment of the
Working Capital Loans to ensure that there are no outstanding Working Capital
Loans for a period of ten (10) consecutive Business Days in each calendar year;


 


(vi)          sixth,  on any date when required pursuant to Section 3.10(a)(v) or
Section 3.10(e)(i) (Mandatory Prepayment)
of the Credit Agreement, or otherwise at the option of the Borrower pursuant to
Section 3.09(d)(ii) (Optional Prepayment)
of the Credit Agreement, to the Administrative Agent in the amount certified by
the Borrower in such Revenue Account Withdrawal Certificate or otherwise
instructed in writing to the Accounts Bank by the Administrative Agent, for
application as a prepayment of the Working Capital Loans;


 


(vii)         seventh,
on each Quarterly Payment Date, to pay to the Administrative Agent, for the
account of the Senior Secured Parties, on a pro  rata basis, the
amount certified by the Borrower in such Revenue Account Withdrawal Certificate
or otherwise instructed in writing to the Accounts Bank by the Administrative
Agent as (A) principal amounts due and payable with respect to the Term
Loans and, on the Working Capital Loan Maturity Date, with respect to the
Working Capital Loans, (B) payments of Swap Termination Value then due and
payable by the Borrower with respect to any Interest Rate Protection
Agreements;


 


(viii)        eighth,
on each Monthly Date, to the Working Capital Reserve Account, in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate or
otherwise instructed in writing to the Accounts Bank by the Administrative
Agent as equal to the difference between (A) the Working Capital Reserve
Required Amount and (B) the funds on deposit in or standing to the credit
of the Working Capital Reserve Account on such Monthly Date;


 


40

















 


(ix)           ninth,
on each Monthly Date, to the Debt Service Reserve Account, in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate or
otherwise instructed in writing to the Accounts Bank by the Administrative
Agent as equal to the difference between (A) the Debt Service Reserve
Required Amount and (B) the funds on deposit in or standing to the credit
of the Debt Service Reserve Account (including the Stated Amount of any Debt
Service Reserve Letter of Credit) on such Monthly Date;


 


(x)            tenth, on
each Monthly Date until the expiration of the Warranty Period, to the
Contingency Reserve Account, the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent as shall cause the amount on
deposit in the Contingency Reserve Account to equal the Contingency Reserve
Required Amount at such time;


 


(xi)           eleventh,
provided that no Material Default or Event of Default has occurred and is
continuing, on each Quarterly Payment Date, to the Second Lien Agent, for the
account of the Second Lien Claimholders, in the amount certified in writing by
the Borrower (with a copy to the Administrative Agent and the Second Lien
Agent) as Current Priority Subordinated Interest for the Quarterly Period
ending on such Quarterly Payment Date;


 


(xii)          twelfth,
once the Pre-Conversion Prepayment Target has been achieved, on each Quarterly
Payment Date, to the Administrative Agent in the amount certified by the
Borrower in such Revenue Account Withdrawal Certificate or otherwise instructed
in writing to the Accounts Bank by the Administrative Agent, for application as
a prepayment of the Term Loans in accordance with Section 3.10(b)(ii) (Mandatory Prepayment) of the Credit Agreement in an amount
equal to sixty percent (60%) of the cash remaining in the Revenue Account
after the transfer required (if any) pursuant to priority eleventh;


 


41

















 


(xiii)         thirteenth,
only after the Notice of Security Discharge Date has been delivered, on each
January 1 and July 1, to the Second Lien Agent, for the account of the Second
Lien Claimholders, on a pro  rata basis, as and in the amount certified
in writing by the Borrower as principal amounts due and payable with respect to
the Subordinated Debt;


 


(xiv)        fourteenth,
provided that no Default or Event of Default has occurred and is continuing, on
each Quarterly Payment Date, in an amount certified by the Borrower in such
Revenue Account Withdrawal Certificate to the Persons or accounts specified in
such Revenue Account Withdrawal Certificate (including, if required to be paid
directly to any taxing authority, to such taxing authority) for payment of any
Permitted Tax Distribution, provided that prior to achievement of the
Pre-Conversion Prepayment Target no more than 50% of the cash available at this
priority fourteenth shall be applied for such
Permitted Tax Distribution;


 


(xv)         fifteenth,
to the Administrative Agent in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent:


 


(A)      on each Quarterly Payment Date until the
Pre-Conversion Prepayment Target has been achieved, for application as a
prepayment of the Term Loans in accordance with Section 3.10(b)(ii) (Mandatory
Prepayment) of the Credit Agreement in an amount equal to the cash remaining in
the Revenue Account after the transfer required (if any) pursuant to priority
fourteenth, provided
that the aggregate prepayments pursuant to priority eleventh of Section 6.01(b) and
this priority fifteenth
shall not exceed twenty-nine million Dollars ($29,000,000), and


 


(B)       on the date on which the Pre-Conversion
Prepayment Target is achieved, for application as a prepayment of the Term
Loans in an amount equal to 60% of the cash remaining in the Revenue Account
after the transfer required (if any) pursuant to subsection (A) above;


 


42

















 


(xvi)        sixteenth, on
each Quarterly Payment Date, to the Administrative Agent, in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate or
otherwise instructed in writing to the Accounts Bank by the Administrative
Agent, for application as a prepayment of the Term Loans in accordance with
Section 3.10(b)(ii) (Mandatory Prepayment)
of the Credit Agreement in an amount such that after such prepayment the
then-outstanding principal amount of the Term Loans is equal to the Target
Balance Amount for such Quarterly Payment Date;


 


(xvii)       seventeenth,
on each Quarterly Payment Date (A) if the Historical Debt Service Coverage
Ratio as of such Quarterly Payment Date is less than 1.5:1.0, to the Administrative
Agent, all amounts on deposit in or standing to the credit of the Revenue
Account after the transfer required to be made pursuant to priority sixteenth, for application as a prepayment of the Term
Loans in accordance with Section 3.10(c) (Mandatory
Prepayment) of the Credit Agreement, as certified by the Borrower in
such Revenue Account Withdrawal Certificate or instructed in writing to the
Accounts Bank by the Administrative Agent, or (B) if the Historical Debt Service Coverage Ratio as of such
Quarterly Payment Date is greater than or equal to 1.5:1.0 and the
Prospective Debt Service Coverage Ratio
as of such Quarterly Payment Date is less than 1.5:1.0, as certified by
the Borrower in such Revenue Account Withdrawal Certificate or instructed in writing
to the Accounts Bank by the Administrative Agent, to the Prepayment Holding
Account, all amounts on deposit in or standing to the credit of the Revenue
Account after the transfer required pursuant to priority sixteenth;


 


(xviii)      eighteenth, only after the Notice of Security Discharge
Date, on each January 1 and July 1, to the Second Lien Agent, for the
account of the Second Lien Claimholders, on a pro  rata basis, as
and in the amount certified by the Borrower in such Revenue Account Withdrawal
Certificate to fund the Bond Revenue Fund, which amount shall be an amount
certified by the Borrower;


 


43

















 


(xix)         nineteenth,
on each Quarterly Payment Date, subject to the satisfaction of the conditions
set forth in Section 7.02(s) (Negative Covenants -
Restricted Payments) of the Credit Agreement, in the amount
certified by an Authorized Officer of the Borrower in the Restricted Payment
Certificate, to the Persons or accounts specified in the Restricted Payment Certificate,
for the payment of interest, fees, expenses and other amounts (including
amounts to replenish the Bond Debt Service Reserve Fund or the “Rebate Fund”
(as defined in the Bond Indenture) pursuant to the Bond Indenture) then due and
owing with respect to the Subordinated Debt; and


 


(xx)          twentieth,
subject to the satisfaction of the conditions set forth in Section 7.02(s)
(Negative Covenants—Restricted Payments)
of the Credit Agreement, on, or within thirty (30) days following, each
Quarterly Payment Date, as and in the amount certified by an Authorized Officer
of the Borrower in a Restricted Payment Certificate.


 


ARTICLE VII



OPERATING ACCOUNT


 


Section 7.01           Operating
Account. (a)  Payments into the
Operating Account. Funds shall be deposited into the Operating Account
pursuant to priority first  of Section 6.01(b) (Revenue Account) and priority first
of Section 6.01(c) (Revenue
Account).


 


(b)        Withdrawals from the
Operating Account. Unless a Notice of Suspension is in effect or a Default
or Event of Default would occur as a result of any application of funds
contemplated hereby, and so long as adequate funds are then available in the
Operating Account, the Borrower:


 


(i)            may, by written
instruction to the Accounts Bank (with a copy to the Collateral Agent and the
Administrative Agent), withdraw or transfer funds from the Operating Account
from time to time as may be necessary to pay directly any amounts owed by the
Borrower for Operation and Maintenance Expenses; and


 


44

















 


(ii)           may direct the transfer
of funds from time to time to the Local Accounts, with respect to which a
Blocked Account Agreement has been executed and is in full force and effect, by
delivery of an Operating Account Withdrawal Certificate to the Accounts Bank.


 


(c)         The Borrower shall ensure
that the funds on deposit in and standing to the credit of all Local Accounts
do not exceed, in the aggregate at any one time, two hundred thousand Dollars
($200,000).


 


ARTICLE VIII



MAINTENANCE CAPITAL EXPENSE ACCOUNT


 


Section 8.01           Maintenance
Capital Expense Account. (a) Payments into the Maintenance Capital
Expense Account. Funds shall be deposited into the Maintenance Capital
Expense Account pursuant to priority second
of Section 6.01(b) (Revenue Account)
and priority second of Section 6.01(c)
(Revenue Account).


 


(b)        Withdrawals from the
Maintenance Capital Expense Account. Unless a Notice of Suspension is in
effect or a Default or Event of Default would occur as a result of any
application of funds contemplated hereby, and so long as adequate funds are
then available in the Maintenance Capital Expense Account, the Borrower may, by
written instruction to the Accounts Bank (with a copy to the Administrative
Agent), withdraw or transfer funds from the Maintenance Capital Expense Account
from time to time as may be necessary to pay directly any amounts owed by the
Borrower for Maintenance Capital Expenses in accordance with the most recent
Revenue Account Withdrawal Certificate.


 


ARTICLE IX



WORKING CAPITAL RESERVE ACCOUNT


 


Section 9.01           Working
Capital Reserve Account. (a)  Payments
into the Working Capital Reserve Account. Funds shall be deposited into the
Working Capital Reserve Account in accordance with priority eighth of Section 6.01(b) (Revenue Account), priority eighth
of Section 6.01(c) (Revenue
Account), priority third of
Section 3.09(d)(ii) (Optional
Prepayment) of the Credit Agreement and priority fourth of Section 3.10(g) (Mandatory Prepayment) of the Credit
Agreement. Amounts deposited into the Working Capital Reserve Account pursuant
to priority second of
Section 3.09(d)(ii) (Optional
Prepayment) of the Credit Agreement and priority third of


 


45

















 


Section
3.10(g) (Mandatory Prepayment) of
the Credit Agreement shall be deposited into the LC Cash Collateral
Sub-Account.


 


(b)        Withdrawals from the
Working Capital Reserve Account. Unless a Notice of Suspension is in effect
or a Default or Event of Default would occur as a result of any application of
funds contemplated hereby, the Borrower may direct, by delivery of a Working
Capital Reserve Transfer Certificate to the Accounts Bank (with a copy to the
Administrative Agent), the transfer or withdrawal of amounts standing to the
credit of the Working Capital Reserve Account (other than amounts standing to
the credit of the LC Cash Collateral Sub-Account) to the Revenue Account for:


 


(i)            amounts due and owing
for Operation and Maintenance Expenses, as certified by the Borrower in such
Working Capital Reserve Transfer Certificate, but only to the extent that
adequate funds are not available for the payment of such Operation and
Maintenance Expenses in the Operating Account.


 


(ii)           amounts due and owing
for Maintenance Capital Expenses, as certified by the Borrower in such Working
Capital Reserve Transfer Certificate, but only to the extent that adequate
funds are not available for the payment of such Maintenance Capital Expenses in
the Maintenance Capital Expense Account.


 


(c)         Excess Amount in
Working Capital Reserve. If, on any Quarterly Payment Date, the funds on
deposit in or standing to the credit of the Working Capital Reserve Account
(other than amounts standing to the credit of the LC Cash Collateral
Sub-Account) are in excess of the Working Capital Reserve Required Amount,
unless a Notice of Suspension is in effect or a Default or Event of Default
would occur as a result of such transfer, the Borrower may direct, by delivery
of a Working Capital Reserve Transfer Certificate to the Accounts Bank (with a
copy to the Administrative Agent), the transfer to the Revenue Account of an
amount equal to the difference between (x) the aggregate amount of all
funds on deposit in or standing to the credit of the Working Capital Reserve
Account and (y) the Working Capital Reserve Required Amount, as certified
by the Borrower and confirmed by the Administrative Agent in such Working
Capital Reserve Transfer Certificate.


 


(d)           Following the funding of the LC Cash
Collateral Sub-Account, the Borrower or the Administrative Agent may direct in
writing, in the case of the Borrower by delivery of a Working Capital Reserve
Transfer Certificate to the Accounts Bank (with a copy to the Administrative
Agent), the transfer of amounts standing to the credit


 


46

















 


of the LC Cash
Collateral Sub-Account to pay to the Administrative Agent, for the account of
the Working Capital Lenders, the amount of any Working Capital Loans resulting
from draws on the Letters of Credit.


 


(e)         If at any time the amounts
standing to the credit of the LC Cash Collateral Sub-Account are in excess of
the aggregate Maximum Available Amounts under all Letters of Credit then
outstanding, the Borrower may direct, by delivery of a Working Capital Reserve
Transfer Certificate to the Accounts Bank (with a copy to the Administrative
Agent), the transfer to the Revenue Account of an amount equal to the
difference between (x) the aggregate total amount of all funds on deposit
in or standing to the credit of the LC Cash Collateral Sub-Account and
(y) the aggregate of all such Maximum Available Amounts, as certified by
the Borrower and confirmed by the Administrative Agent in such Working Capital
Reserve Transfer Certificate.


 


ARTICLE X



DEBT SERVICE RESERVE ACCOUNT


 


Section 10.01         Debt
Service Reserve Account. (a)  Payments
into the Debt Service Reserve Account. Funds shall be deposited into the
Debt Service Reserve Account:


 


(i)            on the Conversion
Date, pursuant to priority first of
Section 2.06(e) (Funding of Loans)
of the Credit Agreement; and


 


(ii)           pursuant to priority
ninth of Section 6.01(c)(Revenue Account).


 


provided that,
notwithstanding the foregoing, in lieu of cash, the Borrower may cause to be
delivered to the Accounts Bank one or more Debt Service Reserve Letters of
Credit (each of which shall be accompanied by a Debt Service LC Waiver Letter),
the Stated Amounts of which shall be credited to the Debt Service Reserve
Account.


 


(b)        Withdrawals from the
Debt Service Reserve Account. On any date when the amounts available at priorities
third, fourth
and  seventh  as set forth in Section 6.01(c) (Revenue
Account) are insufficient to pay Debt Service then due and
owing, the Accounts Bank shall (upon written notification from the Borrower or
the Administrative Agent, with a copy to the Administrative Agent or the
Borrower, as applicable, setting forth the amount of such shortfall) withdraw
funds from the Debt Service Reserve Account to pay to the Administrative Agent,
for the account of the Senior Secured Parties, the amount of such shortfall of
the Debt Service then due and


 


47

















 


payable, which
funds shall be applied by the Administrative Agent in the order of priority set
forth in priorities third, fourth and seventh  in Section 6.01(c) (Revenue Account). The Accounts Bank shall promptly
notify the Administrative Agent and the Collateral Agent if, at any time, there
are insufficient funds (without taking into account any Debt Service Reserve
Letters of Credit) standing to the credit of the Debt Service Reserve Account
to make the payments required under this Section 10.01(b).


 


Section 10.02         Debt
Service Letter of Credit. Upon the written instruction of the
Administrative Agent (which will promptly thereafter send a copy of such
instruction to the Borrower), the Collateral Agent shall make a demand in
accordance with the provisions of each Debt Service Reserve Letter of Credit,
draw all or a portion of the Stated Amount of any Debt Service Reserve Letter
of Credit that has been delivered in accordance with this Accounts Agreement,
and deposit the funds received into the Debt Service Reserve Account. The
Administrative Agent shall instruct the Collateral Agent to make such demand:


 


(a)         if amounts are required
to be withdrawn from the Debt Service Reserve Account pursuant to Section 10.01(b),
and the amounts to be so withdrawn exceed the funds, not including the
aggregate Stated Amounts of the Debt Service Reserve Letters of Credit standing
to the credit of the Debt Service Reserve Account, in the amount necessary to
make the payments of Debt Service then due and payable;


 


(b)        in full, if the commercial
bank that issued such Debt Service Reserve Letter of Credit is no longer an
Acceptable Bank; or


 


(c)         in full, if (A) no
less than thirty (30) days prior to the expiry date of each such Debt
Service Reserve Letter of Credit, the Collateral Agent has not received notice
from the issuing bank that it will extend such expiry date or renew such Debt
Service Reserve Letter of Credit and no substitute or replacement letter of
credit satisfying the requirements of a “Debt Service Reserve Letter of Credit”
has been delivered to the Collateral Agent to replace the Stated Amount of such
expiring Debt Service Reserve Letter of Credit and (B) excluding the
Stated Amount of such Debt Service Reserve Letter of Credit and the Stated
Amount of any other Debt Service Reserve Letter of Credit that similarly could
be drawn, an amount equal to the Debt Service Reserve Required Amount is not on
deposit in or standing to the credit of the Debt Service Reserve Account on the
date of such drawing.


 


Section 10.03         Excess
in Debt Service Reserve Account. If, on any Quarterly Payment Date, the
funds on deposit in or standing to the credit of the Debt Service Reserve
Account (taking into account the Stated Amounts of any Debt Service Reserve
Letters of Credit standing to the credit of the Debt Service Reserve Account)
are in excess of the Debt Service Reserve Required Amount, unless a Notice of
Suspension is


 


48

















 


in effect or a
Default or Event of Default would occur as a result of such transfer, the
Borrower may direct, by delivery of a Debt Service Reserve Release Certificate
to the Accounts Bank (with a copy to the Administrative Agent), the transfer to
the Revenue Account of an amount equal to the difference between (x) the
aggregate total amount of all funds on deposit in or standing to the credit of
the Debt Service Reserve Account (taking into account the Stated Amounts of any
Debt Service Reserve Letters of Credit standing to the credit of the Debt
Service Reserve Account) and (y) the Debt Service Reserve Required Amount,
as certified by the Borrower and confirmed by the Administrative Agent in such
Debt Service Reserve Release Certificate; provided, that if such
difference is positive due to the posting of a Debt Service Reserve Letter of
Credit to the Debt Service Reserve Account to replace or substitute for cash
then on deposit, such amount may be distributed directly to any Pledgor or such
other Affiliate of the Borrower who provided such Debt Service Reserve Letter
of Credit (and such distribution shall not be treated as a Restricted Payment
for purposes of this Accounts Agreement).


 


ARTICLE XI



PREPAYMENT HOLDING ACCOUNT


 


Section 11.01         Prepayment
Holding Account. (a)  Payments
into the Prepayment Holding Account. Funds shall be deposited into the
Prepayment Holding Account pursuant to priority seventeenth of Section 6.01(c) (Revenue Account).


 


(b)        Withdrawals from the
Prepayment Holding Account. The Accounts Bank shall withdraw funds from the
Prepayment Holding Account upon receipt of written instructions from the
Borrower or the Administrative Agent in accordance with the terms set forth
below.


 


(i)            Excess Amounts in
Prepayment Holding Account. If, on any Quarterly Payment Date, each of the
Historical Debt Service Coverage Ratio and the Prospective Debt Service
Coverage Ratio are greater than or equal to 1.5:1.0 then, subject to the
satisfaction of the conditions set forth in Section 7.02(s) (Negative Covenants - Restricted Payments) of the Credit
Agreement, the Borrower may submit a Restricted Payment Certificate to the
Accounts Bank directing the transfer of amounts on deposit in and standing to
the credit of the Prepayment Holding Account for deposit into the Revenue
Account.


 


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(ii)           Mandatory Prepayment.
If, on any Quarterly Payment Date, the Historical Debt Service Coverage Ratio
is less than 1.5:1.0 then all amounts on deposit in and standing to the
credit of the Prepayment Holding Account shall, upon the written instruction of
the Borrower or the Administrative Agent, be paid to the Administrative Agent,
for the account of the Lenders, in the amount certified by the Borrower in such
Revenue Account Withdrawal Certificate or otherwise instructed in writing to
the Accounts Bank by the Administrative Agent, as a prepayment of the Term
Loans (as defined in the Credit Agreement) in accordance with
Section 3.10(c) (Mandatory Prepayment)
of the Credit Agreement.


 


(iii)          Optional Prepayment.
On any Interest Payment Date, any amounts on deposit in and standing to the
credit of the Prepayment Holding Account may, at the sole option and upon the
written instruction of the Borrower, be paid to the Administrative Agent for
the account of the Lenders, as a prepayment of the Loans in the amount
certified by the Borrower in such Revenue Account Withdrawal Certificate, in
accordance with Section 3.09 (Optional Prepayment)
of the Credit Agreement.


 


ARTICLE XII



INSURANCE AND CONDEMNATION PROCEEDS ACCOUNTS


 


Section 12.01         Insurance
and Condemnation Proceeds Accounts. (a) 
Payments into the Insurance and Condemnation Proceeds Accounts. Until
the Security Discharge Date, the Borrower shall cause all Insurance Proceeds
and all Condemnation Proceeds with respect to any Aberdeen Plant to be
deposited in or credited to the Aberdeen Insurance and Condemnation Proceeds
Account, and with respect to the Huron Plant to be deposited in or credited to
the Huron Insurance and Condemnation Proceeds Account.


 


(b)        Withdrawals from the
Insurance and Condemnation Proceeds Accounts. The Borrower shall not make,
direct, or request the Accounts Bank to make, any withdrawals from any
Insurance and Condemnation Proceeds Account except as permitted by this Article
XII and provided that no Notice of Suspension has been delivered that has
not been withdrawn and no Default or Event of Default would occur as a result
of such transfer or withdrawal.


 


50

















 


(c)         Amounts of $2,500,000
or Less. The Borrower may apply any Insurance Proceeds and Condemnation
Proceeds deposited into any Insurance and Condemnation Proceeds Account in
amounts less than or equal to two million five hundred thousand Dollars
($2,500,000) arising from any one claim or any series of claims relating to the
same occurrence directly for the replacement or repair of damaged assets to
which such Insurance Proceeds or Condemnation Proceeds, as the case may be,
relate; provided, that the Borrower delivers to the Administrative Agent
and the Accounts Bank, no fewer than five (5) Business Days in advance of any
such proposed transfers or withdrawals from such Insurance and Condemnation
Proceeds Account, an Insurance and Condemnation Proceeds Request Certificate
setting forth proposed instructions for such withdrawals or transfers. An
Authorized Officer of the Borrower shall certify that each Insurance and
Condemnation Proceeds Request Certificate is being delivered, and the withdrawals
specified therein are being directed, in accordance with this Accounts
Agreement and the other Transaction Documents, and shall also certify that the
directed withdrawals or transfers will be used exclusively for repair or
replacement of damaged assets to which such Insurance Proceeds or Condemnation
Proceeds, as the case may be, relate.


 


(d)        Amounts in Excess of
$2,500,000 but not Exceeding $15,000,000. Any Insurance Proceeds and
Condemnation Proceeds deposited into any Insurance and Condemnation Proceeds
Account in amounts greater than two million five hundred thousand Dollars
($2,500,000) but less than or equal to fifteen million  Dollars ($15,000,000) arising from any one
claim or any series of claims relating to the same occurrence shall:


 


(i)            be applied for repair
or replacement of damaged assets to which such Insurance Proceeds or
Condemnation Proceeds, as the case may be, relate in accordance with the
Borrower’s direction in an Insurance and Condemnation Proceeds Request
Certificate delivered to the Administrative Agent and the Accounts Bank if,
within sixty (60) days after the occurrence of the Casualty Event or Event
of Taking (or such later date as may be acceptable to the Administrative Agent)
giving rise to such proceeds, the Borrower delivers a Restoration or
Replacement Plan to the Administrative Agent and the Independent Engineer with
respect to such Casualty Event or Event of Taking that is based upon, and
accompanied by, each of the following:


 


(A)      a description of the nature and extent of such
Casualty Event or Event of Taking, as the case may be;


 


51

















 


(B)       a bona fide assessment (from a contractor chosen
by the Borrower and reasonably acceptable to the Independent Engineer) of the
estimated cost and time needed to restore or replace the Project to
substantially the same value and general performance capability as prior to
such event;


 


(C)       reasonably satisfactory evidence that such
Insurance Proceeds or Condemnation Proceeds, as the case may be, are sufficient
to make the necessary restorations or replacements;


 


(D)       a certificate of an Authorized Officer of the
Borrower certifying that (1) all work contemplated to be done under the
Restoration or Replacement Plan is reasonably expected to be done within the
time periods, if any, required under any Project Document; (2) all
Governmental Approvals necessary to perform the work have been obtained (or are
reasonably expected to be obtained without undue delay); and (3) the
Project once repaired/restored will continue to perform at the annual levels
set forth in the then-current Operating Budget with respect to production
volume, yield and utility consumption (or other levels approved by the Required
Lenders);


 


(E)       the Casualty Event or Event of Taking, as the
case may be (including the non-operation of the Project during any period of
repair or restoration) has not resulted or would not reasonably be expected to
result in a default giving rise to a termination of, or a materially adverse
modification of, one or more of the Governmental Approvals or Project Documents
(or, in the case of a default giving rise to a termination of a Project
Document, an agreement replacing such Project Document, in form and substance,
and with a counterparty, reasonably satisfactory to the Required Lenders, is
entered into (together with all applicable Ancillary Documents) within
forty-five (45) days thereof (or, such termination could not reasonably be
expected to result in a Material Adverse Effect, within sixty (60) days
thereof));


 


52

















 


(F)       after taking into consideration the availability
of such Insurance Proceeds or Condemnation Proceeds, as applicable, and
Business Interruption Insurance Proceeds and any additional funded equity
contributions for the purpose of covering such costs, there will be adequate
amounts available to pay all ongoing expenses including Debt Service during the
period of repair or restoration;


 


(G)       construction contractors and vendors of
recognized skill, reputation and creditworthiness and reasonably acceptable to
the Administrative Agent and the Independent Engineer have executed
reconstruction contracts, purchase orders or similar arrangements for the
repair, rebuilding or restoration on terms and conditions reasonably acceptable
to the Administrative Agent and the Independent Engineer; and


 


(H)       a confirmation by the Independent Engineer of
its agreement with the matters set forth in Section 12.01(d)(i)(A)-(G)
and its approval of such Restoration or Replacement Plan, which approval will
not be unreasonably withheld, conditioned or delayed; or


 


(ii)           Mandatory Prepayment.
If (A) the Borrower does not deliver such Restoration or Replacement Plan
and the accompanying deliveries referred to in Section 12.01(d)(i)
within such sixty (60) day period, or (B) after such Restoration or
Replacement Plan is effected, there are excess Insurance Proceeds or
Condemnation Proceeds, as the case may be, on deposit in or standing to the
credit of such Insurance and Condemnation Proceeds Account, the Accounts Bank
shall on the next succeeding Quarterly Payment Date thereafter, upon the
written instruction of the Borrower or the Administrative Agent, transfer to
the Administrative Agent, for the account of the Lenders, an amount equal to
such Insurance Proceeds or Condemnation Proceeds, as the case may be, for
mandatory prepayment of the Loans in accordance with Section 3.10(a)(i) or
(ii) (as applicable) (Mandatory Prepayment)
of the Credit Agreement.


 


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(e)         Amounts Exceeding
$15,000,000. Any Insurance Proceeds or Condemnation Proceeds deposited into
any Insurance and Condemnation Proceeds Account in amounts greater than fifteen
million Dollars ($15,000,000) arising from any one claim or any series of
claims relating to the same occurrence shall be applied, at the written
instruction of the Administrative Agent, to the Administrative Agent to prepay
the Loans or for repair or replacement of damaged assets, as determined by the
Required Lenders in their sole discretion.


 


ARTICLE XIII



EXTRAORDINARY PROCEEDS ACCOUNT


 


Section 13.01         Extraordinary
Proceeds Account. (a)  Payments
into the Extraordinary Proceeds Account. Until the Security Discharge Date,
the Borrower shall cause (i) all proceeds of asset disposals (other than
proceeds from the sale of Products) that will not be used for replacement in
accordance with Section 7.02(f)(i) (Negative
Covenants — Asset Dispositions) of the Credit Agreement and
(ii) all Project Document Termination Payments to be deposited into the
Extraordinary Proceeds Account.


 


(b)        Withdrawals from the
Extraordinary Proceeds Account. (i)  Asset Disposal. If at any time proceeds of an asset
disposal are deposited into the Extraordinary Proceeds Account, then on any
Quarterly Payment Date:


 


(A)      if such proceeds are in an amount in the
aggregate of less than three million Dollars ($3,000,000) (taken together with
any other proceeds of asset disposals deposited in the Extraordinary Proceeds
Account during the then-current Fiscal Year) the Borrower may submit an
Extraordinary Proceeds Release Certificate to the Accounts Bank, certified by
an Authorized Officer of the Borrower, directing the transfer of such funds to
the Revenue Account; and


 


(B)       if such proceeds are in an amount equal to or
greater than three million Dollars ($3,000,000) (taken together with any other
proceeds of asset disposals deposited in the Extraordinary Proceeds Account
during the then-current Fiscal Year), such amounts in excess of three million
Dollars ($3,000,000) shall be transferred, upon the written instruction of the
Borrower or the Administrative Agent, to the Administrative Agent for
application as a prepayment of the Loans in


 


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accordance with Section 3.10(a)(iv) (Mandatory Prepayment) of the Credit Agreement.


 


(ii)           Project Document
Termination Payments. If at any time Project Document Termination Payments
are deposited into the Extraordinary Proceeds Account, then on any Quarterly
Payment Date:


 


(A)      if such Project Document Termination Payments are
in an amount in the aggregate of less than three million Dollars ($3,000,000)
(taken together with any other Project Document Termination Payments received
during the then-current Fiscal Year), the Borrower may submit an Extraordinary
Proceeds Release Certificate to the Accounts Bank, certified by an Authorized
Officer of the Borrower, directing the transfer of such Project Document
Termination Payments to the Revenue Account; and


 


(B)       if such Project Document Termination Payments
are in an amount equal to or greater than three million Dollars ($3,000,000)
(taken together with any other Project Document Termination Payments received
during the then-current Fiscal Year), such amounts in excess of three million
Dollars ($3,000,000) shall be transferred, upon the written instruction of the
Borrower or the Administrative Agent, to the Administrative Agent for
application as a prepayment of the Loans in accordance with
Section 3.10(a)(iii) (Mandatory
Prepayment) of the Credit Agreement.


 


ARTICLE XIV



CONTINGENCY RESERVE ACCOUNT


 


Section 14.01         Contingency
Reserve Account. (a) Payments into the Contingency Reserve Account. Funds
shall be deposited into the Contingency Reserve Account pursuant to priority
ninth of Section 6.01(b)
(Revenue Account) and
priority third of
Section 2.06(e) (Funding of Loans)
of the Credit Agreement,


 


(b)        Withdrawals from the
Contingency Reserve Account. Unless a Notice of Suspension is in effect or
a Default or Event of Default would occur as a result of any application of
funds contemplated hereby, the Borrower may direct, by


 


55

















 


delivery of a
Contingency Reserve Transfer Certificate to the Accounts Bank (with a copy to
the Administrative Agent) or the Administrative Agent may direct the Accounts
Bank to transfer or withdraw amounts standing to the credit of the Contingency
Reserve Account in accordance with the terms below.


 


(i)            Project Costs. If,
prior to the Conversion Date, at any time from time to time, sufficient amounts
are not available in the Construction Budget to pay Project Costs then due and
owing, then funds may be transferred from the Contingency Reserve Account to
the Construction Account to pay Project Costs, as certified by an Authorized
Officer of the Borrower in such Contingency Reserve Transfer Certificate or
such written instruction by the Administrative Agent.


 


(ii)           Conversion Date.
On the Conversion Date, funds on deposit in the Contingency Reserve Account that
are in excess of the Contingency Reserve Required Amount at such time, as
certified by an Authorized Officer of the Borrower in such Contingency Reserve
Transfer Certificate or such written instruction by the Administrative Agent,
(A) upon written notice of either Borrower or Administrative Agent, shall be
applied to fund the Debt Service Reserve Account in an amount such that the
amount on deposit therein is equal to the Debt Service Reserve Required Amount,
and (B) after the application of amounts set forth in clause (A), if any, shall
be deposited into the Revenue Account for application in accordance with the
priorities set forth in Section 6.01(c) (Revenue Account).


 


(iii)          Warranty Period.


 


(A)      At any time during the Warranty Period, funds on
deposit in the Contingency Reserve Account may be withdrawn from the
Contingency Reserve Account to pay for Warranty Work, as certified by an
Authorized Officer of the Borrower in such Contingency Reserve Transfer
Certificate; provided that prior written consent of the Independent
Engineer shall be required if the amount withdrawn, individually or in the
aggregate relating to the same Warranty Work, exceeds five hundred thousand
Dollars ($500,000).


 


56

















 


(B)       Upon expiration of the Warranty Period (as
defined in the Credit Agreement), any remaining funds on deposit in the
Contingency Reserve Accounts shall be transferred to the Revenue Account, as
certified by an Authorized Officer of the Borrower in such Contingency Reserve
Transfer Certificate or such written instruction by the Administrative Agent.


 


ARTICLE XV



GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS


 


Section 15.01         No
Security Interests. The Borrower shall not at any time create or permit to
subsist any Lien (other than (a) until the Security Discharge Date,
first-priority Liens in favor of the Collateral Agent, for the benefit of the
Senior Secured Parties, arising under this Accounts Agreement or the other
Security Documents, (b) second-priority Liens in favor of the Second Lien
Agent, for the benefit of the Second Lien Claimholders, arising under this
Accounts Agreement or the Bond Collateral Documents, and (c) Permitted
Liens) on all or any part of any of the Project Accounts or the Account Collateral,
or assign, transfer or otherwise dispose of all or any part of its right or
title to any of the Project Accounts or the Account Collateral other than in
accordance with, or as permitted by, the terms of this Accounts Agreement, or
the other Financing Documents.


 


Section 15.02         Borrower
Acknowledgments.  (a) The Borrower acknowledges that neither
any insufficiency of funds in the Project Accounts (or any of them), nor any
inability to apply any funds in the Project Accounts (or any of them) against
any or all amounts owing under the Credit Agreement or the Subordinated Loan
Agreement, or any other Financing Document or Subordinated Debt Document, shall
at any time limit, reduce or otherwise affect the Borrower’s Obligations under
the Credit Agreement or any other Financing Document, or the Borrower’s
obligations under the Subordinated Loan Agreement or any other Subordinated
Debt Document.


 


(b)        Each party to this
Accounts Agreement acknowledges that none of the Accounts Bank, the Collateral
Agent or any other Senior Secured Party, or the Second Lien Agent or any Second
Lien Claimholder, shall incur any obligation or liability in circumstances
where there are insufficient funds deposited in or credited to any Project
Account to make a payment in full that would otherwise have been made pursuant
to the terms of this Accounts Agreement, except (in the case of the Accounts
Bank) to the extent that the loss arises directly from the Accounts Bank’s
gross negligence or willful misconduct.


 


57

















 


Section 15.03         Further
Assurances. (a) The Borrower shall, at any time and from time to time at
the first demand of the Accounts Bank or the Collateral Agent and at the sole
cost and expense of the Borrower, promptly and duly execute and deliver, or
otherwise authenticate, all further instruments and documents, and take all
further action, that may be necessary or required under applicable Law or that
the Accounts Bank or the Collateral Agent may reasonably request, in order to
perfect and protect any pledge or security interest granted or purported to be
granted hereunder or to enable each of the Accounts Bank, the Collateral Agent,
on behalf of the Senior Secured Parties, to exercise and enforce its rights and
remedies hereunder with respect to any Account Collateral.


 


(b)        Without limiting the
generality of the foregoing, the Borrower will promptly, with respect to the
Account Collateral:


 


(i)            execute or
authenticate and file such UCC financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary,
or as the Accounts Bank, the Collateral Agent or the Administrative Agent may
reasonably request, in order to perfect and preserve the security interests
granted or purported to be granted hereunder;


 


(ii)           take all action
necessary to ensure that the Collateral Agent, for the benefit of the Senior
Secured Parties, has control of the Account Collateral as provided in
Sections 8-106, 9-104, 9-106 and any other applicable Section of the
UCC;


 


(iii)          take all action
necessary to ensure that the Collateral Agent, for the benefit of the Senior
Secured Parties, has a first-priority perfected security interest in all
Account Collateral described in Section 2.07 (Grant of
First-Priority Security Interest) under the laws of the
jurisdiction in which the Borrower is located (within the meaning of
Section 9-307 of the UCC);


 


(iv)          deliver to the
Collateral Agent or the Administrative Agent evidence that all other action
that the Accounts Bank, the Administrative Agent or the Collateral Agent may
deem reasonably necessary in order to perfect and protect the security interest
created by the Borrower under this Accounts Agreement has been taken.


 


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(c)         No provision in Section 15.03(b)
shall be deemed to limit the provisions in Section 16.03(a).


 


(d)        The Borrower hereby
authorizes the Administrative Agent and the Collateral Agent to file one or
more UCC financing or continuation statements, and amendments thereto, relating
to all or any part of the Account Collateral without the signature of the
Borrower where permitted by applicable Law.


 


Section 15.04         UCC
Termination Statements. At the request of the Borrower or the Second Lien
Agent, upon the Notice of Security Discharge Date, the Collateral Agent will,
at the sole cost and expense of the Borrower, file UCC termination statements
terminating the existing UCC financing statements filed by the Collateral Agent
pursuant to the Financing Documents.


 


ARTICLE XVI



INTEREST AND INVESTMENTS


 


Section 16.01         Investments.
(a) Each amount deposited in or credited to a Project Account from time to
time shall, from the time it is so deposited or credited until the time it is
withdrawn from that Project Account (whether for the purpose of making an
investment in Cash Equivalents or otherwise applied in accordance with the
terms of this Accounts Agreement), earn interest at such rates as may be agreed
from time to time by the Borrower and the Accounts Bank.


 


(b)        Prior to the receipt by
the Accounts Bank of a Notice of Suspension, any amounts held by the Accounts
Bank in the Project Accounts shall be invested by the Accounts Bank from time
to time, at the risk and expense of the Borrower, solely in such Cash
Equivalents as an Authorized Officer of the Borrower shall direct in writing
(which may be in the form of a standing instruction). The Borrower shall select
Cash Equivalents having such maturities as shall cause the Project Accounts to
have a cash balance as of any day sufficient to cover the transfers to be made
from the Project Accounts on such day in accordance with this Accounts
Agreement, the Credit Agreement, the other Financing Documents, the Project
Documents and any Additional Project Documents. Upon delivery by the Collateral
Agent to the Accounts Bank of a Notice of Suspension and until written
revocation of such Notice of Suspension is delivered to the Accounts Bank by
the Collateral Agent, any amounts held by the Accounts Bank in the Project
Accounts shall be invested by the Accounts Bank from time to time, solely in
such Cash Equivalents as the Collateral Agent or the Administrative Agent, in
its sole discretion, may direct; provided that the Accounts Bank’s
obligation to invest such amounts is conditioned upon receipt by the Accounts
Bank of a valid United States Department of the Treasury Internal Revenue


 


59

















 


Service tax
Form W-9 in accordance with Section 16.03(b) (Interest and
Investment Income). Neither the Collateral Agent, the Accounts
Bank nor the Administrative Agent shall be liable for any loss resulting from
any Cash Equivalents (or any investment or reinvestment therein or liquidation
or redemption thereof) from any Project Account or the sale or redemption thereof
except to the extent that such loss results solely from the gross negligence or
willful misconduct of the Collateral Agent, the Accounts Bank or the
Administrative Agent, as the case may be, it being understood and agreed that
in no event shall any of the Administrative Agent, the Accounts Bank or the
Collateral Agent, as the case may be, be liable for any loss resulting from any
investment made, or any sale or redemption of any investment made, in
accordance with instructions received from the Borrower, the Collateral Agent
or the Administrative Agent, as the case may be, or failure to receive written
direction as required hereunder, or in accordance with Section 16.02 (Sale and Liquidation) hereof.


 


Section 16.02         Sale
and Liquidation. In the event that the cash balance in any of the Project
Accounts is as of any day insufficient to cover the transfers to be made from
such Project Account on such day (and if advised in writing by the
Administrative Agent or the Borrower of such circumstances), the Collateral
Agent may (but shall not be obligated to) direct the Accounts Bank, without
instructions from the Borrower, to sell or liquidate the Cash Equivalents
standing to the credit of such Project Account (without regard to maturity
date) in such manner as the Collateral Agent may direct in order to obtain cash
at least sufficient to make such transfers and to pay any expenses and charges
incurred in connection with effecting any such sale or liquidation, which
expenses and charges the Accounts Bank shall be authorized to pay with cash on
deposit in such Project Account. Neither the Accounts Bank, the Collateral
Agent nor any other Senior Secured Party shall be liable to any Person for any
loss suffered because of any such sale or liquidation.


 


Section 16.03         Interest
and Investment Income. (a) All interest and other investment income
earned from investments in Cash Equivalents made from amounts in any Project
Account shall remain in such Project Account until transferred from such
Project Account in accordance with the terms of this Accounts Agreement.


 


(b)        It is acknowledged by the
parties hereto that all investment income earned on amounts on deposit in or
credited to the Project Accounts for all Tax purposes shall be attributed to
and be income of the Borrower. The Borrower shall be responsible for
determining any requirements for paying Taxes or reporting or withholding any
payments for Tax purposes hereunder. The Borrower shall prepare and file all
Tax information required with respect to the Project Accounts. The Borrower
agrees to indemnify and hold each Senior Secured Party and each Second Lien
Claimholder harmless against all liability for Tax withholding and/or reporting
for any investment income earned on the Project Accounts and payments in
respect thereof. Such


 


60
















 


indemnities shall survive the termination or
discharge of this Accounts Agreement or resignation of the Accounts Bank. None
of the Collateral Agent, the Accounts Bank, the Second Lien Agent, any Senior
Secured Party or any Second Lien Claimholder shall have any obligation with
respect to the making of or the reporting of any payments for Tax purposes. From
time to time, and as reasonably requested by the Accounts Bank, the Borrower
shall provide to the Accounts Bank a United States Department of the Treasury
Internal Revenue Service tax Form W-9 or other appropriate form required
with respect to the withholding or exemption from withholding of income tax on
any investment income earned on the Project Accounts. The Accounts Bank shall
be entitled to rely on an opinion of legal counsel (which may be counsel to the
Borrower) in connection with the reporting of any earnings with respect hereto.


 


Section 16.04         Accounts
Information. (a) The Accounts Bank will:


 


(i)            within ten
(10) Business Days after the end of the month in which the first deposit
is made into any Project Account and within ten (10) Business Days after
the end of each month thereafter, provide the Borrower, the Collateral Agent
and the Administrative Agent a report with respect to the Project Accounts,
setting forth in reasonable detail all deposits to and disbursements from each
of the Project Accounts during such month, including the date on which made,
and the balances of and any investments in each of the Project Accounts at the
end of such month, including information regarding categories, amounts,
maturities and issuers of Cash Equivalents; and


 


(ii)           within ten
(10) Business Days after receipt of any written request by the Borrower,
the Collateral Agent, the Administrative Agent or the Second Lien Agent,
provide to the Borrower, the Collateral Agent, the Administrative Agent or the
Second Lien Agent, as the case may be, such other information as the Borrower,
the Collateral Agent, the Administrative Agent, or the Second Lien Agent, as
the case may be, may reasonably specify regarding all Cash Equivalents and any
other investments made by the Accounts Bank pursuant hereto and regarding
amounts available in the Project Accounts.


 


(b)        The Accounts Bank will
maintain all of the Project Accounts and all books and records with respect
thereto as may be necessary to record properly all transactions carried out by
it under this Accounts Agreement.


 


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(c)         If any Cash Equivalent
ceases to be a Cash Equivalent, the Accounts Bank will, as soon as reasonably
practicable after becoming aware of such cessation, notify the Collateral Agent
and the Borrower in writing of such cessation and, upon the written direction
of the Borrower (or, if the Borrower fails to provide direction within three
(3) Business Days of the date of the Accounts Bank’s notice, upon the written
direction of the Collateral Agent), will cause the relevant investment to be
replaced by a Cash Equivalent or by cash; provided that this Section 16.04(c)
will not oblige the Accounts Bank to liquidate any investment earlier than its
normal maturity date unless:


 


(i)            directed to do so
under Section 16.02 (Sale and Liquidation);
or


 


(ii)           the maturity date of
the relevant investment exceeds the maturity date that would enable it to
continue to qualify as a Cash Equivalent.


 


ARTICLE XVII



DEFAULT AND ENFORCEMENT


 


Section 17.01         Notices
of Suspension of Project Accounts. (a) The Collateral Agent may, but
shall not be required to, suspend the right of the Accounts Bank and the
Borrower to withdraw or otherwise deal with any funds deposited in or credited
to the Project Accounts at any time during the occurrence and continuance of an
Event of Default by delivering a notice to the Accounts Bank (with a copy to
the Borrower, the Administrative Agent and the Bond Trustee) (a “Notice of
Suspension”).


 


(b)        Notwithstanding any other
provision of the Credit Agreement or any other Financing Document, after the
issuance by the Collateral Agent of a Notice of Suspension in accordance with Section 17.01(a)
and until such time as the Collateral Agent advises the Accounts Bank and the
Borrower in writing that it has withdrawn such Notice of Suspension, no amount
may be withdrawn by the Accounts Bank from any Project Account, including for
investment in Cash Equivalents, without the express prior written consent of
the Collateral Agent.


 


(c)         For the avoidance of
doubt, the withdrawal of a Notice of Suspension by the Collateral Agent shall
not affect any other Notice of Suspension that it may have issued.


 


Section 17.02         Collateral
Agent Appointed Attorney-in-Fact. The Borrower hereby irrevocably
constitutes and appoints the Collateral Agent and any


 


62

















 


officer or
agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact (which appointment as attorney-in-fact shall be coupled with
an interest), with full authority, if a Notice of Suspension has been delivered
to the Accounts Bank and until such Notice of Suspension has been withdrawn, to
take any action and to execute any and all documents and instruments in the
place and stead of the Borrower and in the name of the Borrower or otherwise,
that the Collateral Agent may deem necessary or advisable to accomplish the
purposes of this Accounts Agreement in a commercially reasonable manner to the
extent required by the UCC, without notice to the Borrower, including:


 


(a)         if an Event of Default
has occurred and is continuing, to exercise the rights and remedies set forth
in this Accounts Agreement and the other Financing Documents;


 


(b)        to take any action that
the Collateral Agent may, in its discretion and at the Borrower’s expense, deem
necessary or appropriate (i) to perfect, maintain and enforce any security
interest or other Lien created in favor of the Collateral Agent, for the
benefit of the Senior Secured Parties, (ii) to create, perfect, maintain
and enforce any security interest or other Lien granted or purported to be
granted hereby or (iii) to otherwise accomplish the purposes of this
Accounts Agreement;


 


(c)         to receive, endorse and
collect all funds or other property in which the Borrower has an interest and
that would constitute Account Collateral under the terms of this Accounts
Agreement, in each case representing any proceeds, dividends, interest payments
or other distributions constituting Account Collateral or any part thereof and
to give full discharge for the same and to file any claim or to take any other
action or proceeding in any court of law or equity or otherwise deemed
necessary or appropriate by the Collateral Agent for the purpose of collecting
any and all of such proceeds, dividends, payments or other distributions;


 


(d)        to pay or discharge Taxes
and Liens levied or placed on the Account Collateral;


 


(e)         (i) to direct any
party liable for any payment under or with respect to any of the Account
Collateral to make payment of any and all moneys due or to become due
thereunder or with respect thereto directly to the Collateral Agent or as the
Collateral Agent may direct, (ii) to ask or make, demand for, collect,
receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out of any of
the Account Collateral, (iii) to commence and prosecute any suits, actions
or proceedings at law or in equity in any court of competent jurisdiction to
collect the Account Collateral or any part thereof and to enforce any other
right in respect of any of the Account Collateral, (iv) to defend any
suit, action or proceeding brought against the Borrower with respect to any of
the


 


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Account
Collateral and (v) to settle, compromise or adjust any suit, action or
proceeding described in Section 17.02(e)(iii) and (iv) and,
in connection therewith, to give such discharges or releases as the Collateral
Agent may deem appropriate;


 


(f)         (i) to execute,
in connection with any sale, lease, license or other disposition permitted to
be made by the Collateral Agent hereunder, any endorsements, assignments,
transfer statements or other instruments of conveyance or transfer with respect
to the Account Collateral, and to file or register the same if required by
applicable Law; and


 


(g)        to communicate in its own
name with any party to any agreement or instrument included in the Account
Collateral, at any reasonable time, with regard to any matter relating to such
agreement or instrument.


 


Section 17.03         Enforcement.
(a) Notwithstanding any other provision of the Credit Agreement or any
other Financing Document, the Collateral Agent or its designee may, on behalf
of the Senior Secured Parties, at any time during the occurrence and
continuance of an Event of Default, and following delivery of a Notice of Suspension
that has not been withdrawn (provided that any failure to deliver such notice
shall not affect the validity of any actions taken under this Section 17.03(a))
take enforcement action with respect to the Account Collateral, as provided in
Article VI (Remedies Upon a Security
Event of Default) of the Security Agreement. Without limitation and
in addition to any and all rights with respect to the Account Collateral under
the Credit Agreement or any other Financing Document, the Collateral Agent may
take enforcement action by:


 


(i)            personally, or by
attorneys, taking possession of the Account Collateral or any part thereof,
from the Accounts Bank, the Borrower or any other Person that then has
possession of any part thereof with or without notice or process of law;


 


(ii)           instructing any
obligor, guarantor or counterparty to any agreement, instrument or other
obligation in respect of or relating to the Borrower or the Account Collateral
to make any payment required by the terms of such agreement, instrument or
obligation directly to the Collateral Agent or the Administrative Agent, for
the benefit of the Senior Secured Parties;


 


(iii)          taking possession of the
Account Collateral or any part thereof by directing the Accounts Bank or the
Borrower, as


 


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the case may be, to deliver the same to the
Collateral Agent, for the benefit of the Senior Secured Parties, at any place
or places designated by the Collateral Agent, it being understood that the
Accounts Bank’s and the Borrower’s obligations to so deliver the Account
Collateral are of the essence of this Accounts Agreement and that, accordingly,
upon application to a court of equity having jurisdiction, the Collateral
Agent, for the benefit of the Senior Secured Parties, shall be entitled to a
decree requiring specific performance by the Accounts Bank or the Borrower, as
the case may be, of such obligations;


 


(iv)          foreclosing on the
Account Collateral as herein provided or in any manner permitted by applicable
Law (including through any permitted non-judicial foreclosure) either
concurrently or in such order as the Collateral Agent may determine without
affecting the rights or remedies to which the Collateral Agent, for the benefit
of the Senior Secured Parties, may be entitled under this Accounts Agreement,
the Credit Agreement, or any other Financing Document. The Borrower hereby
waives, to the extent permitted by applicable Law, notice and judicial hearing
in connection with the Collateral Agent’s taking possession or commencing any
collection, recovery, receipt, appropriation, repossession, retention, set-off,
sale, leasing, licensing, conveyance, assignment, transfer, liquidation, or
other disposition of or realization upon any or all of the Account Collateral,
including any and all prior notice and hearing for any prejudgment remedy or
remedies and any right to any such notice which the Borrower would otherwise
have under applicable Law;


 


(v)           withdrawing any and all
cash and liquidating any and all Cash Equivalents that are part of the Account
Collateral and applying such cash, the liquidation proceeds of Cash Equivalents
and other cash, if any, then held as Account Collateral in accordance with Section
17.04 (Application of Proceeds);


 


(vi)          selling, assigning or otherwise
liquidating the Account Collateral, or any part thereof, at a public or private
sale, for cash, upon credit or for future delivery, and at such


 


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prices as the Collateral Agent may deem
satisfactory, and taking possession of the proceeds of any such sale or
liquidation.


 


(b)        Notwithstanding anything
to the contrary in this Accounts Agreement, the Credit Agreement, any other
Financing Document or the Subordinated Debt Documents, the Borrower acknowledges
that if an Event of Default has occurred and is continuing, and following
delivery of a Notice of Suspension that has not been withdrawn (provided that
any failure to deliver such notice shall not affect the validity of any actions
taken under this Section 17.03(b)), the Collateral Agent, on behalf
of the Senior Secured Parties, is entitled to apply amounts deposited in or
credited to any Project Account (other than the Bond Proceeds Sub-Account) as
contemplated in Section 17.04 (Application of Proceeds).


 


(c)         The Accounts Bank shall
promptly comply with any instruction given by the Collateral Agent as
contemplated by Section 2.01 (Appointment)
(without reference to any inconsistent request or instruction from the Borrower
or otherwise).


 


(d)        The Collateral Agent may,
during the continuance of an Event of Default, and at any time following the
delivery of a Notice of Suspension and until such notice has been withdrawn
(provided that any failure to deliver such notice shall not affect the validity
of any actions taken under this Section 17.03), exercise its rights
under this Section 17.03 as frequently, and as many times, as it
considers appropriate.


 


Section 17.04         Application
of Proceeds. Upon the occurrence and during the continuation of an Event of
Default, the proceeds of any sale of, or other realization upon, all or any
part of the Account Collateral shall be applied in accordance with
Section 4.2 of the Intercreditor Agreement. The Borrower shall remain
liable for any deficiency in accordance with the respective Financing Documents
to which it is a party.


 


Section 17.05         Collateral
Agent’s Discretionary Powers. Nothing in this Article XVII
shall impair the right of the Collateral Agent in its discretion to take or
omit to take any action deemed proper by the Collateral Agent and which action
or omission is consistent with any express written direction of the
Administrative Agent or with the express provisions of this Accounts Agreement.
The Collateral Agent shall have the right at any time to seek instructions from
the Administrative Agent concerning the administration of this Accounts
Agreement, and to request, and receive, direction from the Administrative Agent
regarding the enforcement actions set forth in Section 17.03 (Enforcement).


 


Section 17.06         Regarding
the Collateral Agent. The Collateral Agent shall be afforded all of the
rights, powers, protections, immunities and indemnities set forth in


 


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the Credit
Agreement and the Security Agreement as if the same were specifically set forth
herein.


 


ARTICLE XVIII



THE ACCOUNTS BANK


 


Section 18.01         Duties
of the Accounts Bank and Securities Intermediary. (a) The Accounts
Bank, acting as Securities Intermediary, will have the obligations of a
securities intermediary under Article 8 of the UCC, and acting as a bank
with respect to the Project Accounts, will have the obligations of a bank under
Article 9 of the UCC. The Accounts Bank will also have those duties and
responsibilities expressly set forth in this Accounts Agreement, and no
additional duties, responsibilities, obligations or liabilities shall be
inferred from the provisions of this Accounts Agreement or imposed on the
Accounts Bank. The Accounts Bank will act at the written direction of the
Collateral Agent, the Administrative Agent and, as expressly provided in this
Accounts Agreement, the Borrower, but will not be required to take any action
that is contrary to this Accounts Agreement or applicable Law or that, in its
reasonable judgment, would involve it in expense or liability, unless it has
been furnished with adequate indemnity and/or security against such expense or
liability. The Accounts Bank will have no responsibility to ensure the
performance by any other party of its duties and obligations hereunder. The
Accounts Bank will use the same care with respect to the safekeeping and
handling of property held in the Project Accounts as the Accounts Bank uses in
respect of property held for its own sole benefit. The provisions of this Article XVIII
are solely for the benefit of the Accounts Bank, the Collateral Agent and the
Senior Secured Parties.


 


(b)        In performing its functions and duties under this Accounts Agreement,
the Accounts Bank will act solely as the depository of the Collateral
Agent, for the benefit of the Senior Secured Parties, and as Securities
Intermediary or as a bank, as the case may be, with respect to the Project Accounts for the benefit of the
Collateral Agent, for the benefit of the Senior Secured Parties. The Accounts
Bank does not assume and will not be deemed to have assumed any obligation
toward or relationship of agency or trust with or for the Borrower or any
Person other than the Collateral Agent. None of the Senior Secured Parties, the
Second Lien Agent, any Second Lien Claimholder or the Borrower will have any
rights against the Accounts Bank hereunder, other than for the Accounts Bank’s
gross negligence or willful misconduct. Except as otherwise expressly provided
in this Accounts Agreement, the Borrower will not have any right to direct the
Accounts Bank to distribute or allocate any funds, instruments, securities,
financial assets or other assets in the Project Accounts or to withdraw or
transfer any funds, instruments, securities, financial assets or other assets from
the Project Accounts. Except as otherwise expressly provided in this Accounts
Agreement,


 


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the Collateral
Agent, on behalf of the Senior Secured Parties, will have the sole right to
issue directions and instructions to the Accounts Bank, acting as Securities
Intermediary or bank, as the case may be, in accordance with this Accounts
Agreement, and to issue entitlement orders with respect to the Project Accounts.
It is expressly understood and agreed that any investment made with funds held
in the Project Accounts may be made only in accordance with the express
provisions of Section 16.01 (Investments)
and, when an investment is so made, it is expressly understood and agreed that
such investment was made with the permission of the Collateral Agent in the
exercise of its exclusive possession of, and dominion and control over, the
Project Accounts, which it maintains through the Accounts Bank. The Accounts
Bank shall not in any way whatsoever be liable for any loss or depreciation in
the value of any investments made pursuant to the terms of this Accounts
Agreement.


 


Section 18.02         Exculpatory
Provisions. (a) Neither the Accounts Bank nor any of its directors,
officers, employees or agents will have any duties or obligations except those
expressly set forth herein or required by applicable law. Without limiting the
generality of the foregoing, the Accounts Bank shall not:


 


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


 


(ii)           have any duty to take
any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Accounts
Bank is required to exercise as directed in writing by the Collateral Agent,
the Administrative Agent or the Required Lenders; provided that the Accounts Bank shall not be required to
take any action that, in its opinion or the opinion of its counsel, may expose
the Accounts Bank to liability or that is contrary to any Financing Document or
applicable Law; and provided further that no such direction given to the
Accounts Bank that in the sole judgment of the Accounts Bank imposes, or
purports to impose, or might reasonably be expected to impose upon the Accounts
Bank any obligation or liability not set forth herein or arising hereunder
shall be binding upon the Accounts Bank unless the Accounts Bank, in its sole
discretion, accepts such direction;


 


(iii)          except as expressly set
forth herein, have any duty to disclose, nor shall the Accounts Bank be liable
for any


 


68

















 


failure to disclose, any information relating
to the Borrower or any of its Affiliates that is communicated to or obtained by
the Accounts Bank or any of its Affiliates in any capacity; or


 


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


 


(b)        Neither the Accounts Bank
nor any of its directors, officers, employees or agents shall be liable for any
action taken or not taken by it (i) with the prior written consent or at
the request of the Collateral Agent, the Administrative Agent or the Required
Lenders, (ii) as may be reasonably necessary, or as the Accounts Bank may
believe in good faith to be necessary, under the circumstances as provided in Section 2.01
(Appointment by Collateral Agent), Section
2.02 (Appointment by Second Lien Agent)
and Section 2.03 (Limitation of Liability)
or (iii) in the absence of its own gross negligence or willful misconduct.


 


(c)         Neither the Accounts Bank
nor any of its directors, officers, employees or agents shall be responsible
for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Accounts
Agreement, the Credit Agreement, or any other Financing Document, (ii) the
contents of any certificate, report, opinion or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein or therein (including the use of proceeds) or the
occurrence or continuance of any Default or Event of Default, (iv) the
validity, enforceability, effectiveness, genuineness or admissibility in
evidence of this Accounts Agreement, the Credit Agreement, any other Financing
Document, or any other agreement, instrument or document, or the perfection or
priority of any Lien or security interest created or purported to be created by
any Security Document (or title to or rights in any collateral under any
Security Document), or (v) the satisfaction of any condition set forth in
ARTICLE VI (Conditions Precedent) of the
Credit Agreement or elsewhere herein or therein, other than to confirm receipt
of items expressly required to be delivered to the Accounts Bank.


 


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


 


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Section 18.03         Reliance
by Accounts Bank. The Accounts Bank shall be entitled to rely upon, and
shall not (nor shall any of its directors, officers, employees or agents) incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person. The Accounts Bank also may rely upon any statement made to
it orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. The Accounts
Bank may consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts. The Accounts Bank may at any time and
from time to time solicit written instructions in the form of directions from
the Administrative Agent, the Collateral Agent or the Required Lenders or an
order of a court of competent jurisdiction, as to any action that it may be
requested or required to take, or that it may propose to take, in the
performance of any of its obligations under this Accounts Agreement.


 


Section 18.04         Written
Instructions; Notices. (a) Notwithstanding anything in this Accounts
Agreement, the Credit Agreement, any other Financing Document or any
Subordinated Debt Document to the contrary, the Accounts Bank shall have no
obligation to (i) make any payment, transfer or withdrawal from any
Project Account until it has received written direction to make such payment,
transfer or withdrawal from the Administrative Agent, the Collateral Agent or
the Borrower as set forth herein or (ii) determine whether any payment,
transfer or withdrawal from any Project Account made in accordance with any
written direction from the Administrative Agent, the Collateral Agent or the Borrower
complies with the terms of this Accounts Agreement. The Accounts Bank shall
have no liability for, nor any responsibility or obligation to confirm, the use
or application by the Borrower, the Collateral Agent or the Administrative
Agent or any other recipient of amounts withdrawn or transferred from any
Project Account.


 


(b)        Except as otherwise
provided in this Accounts Agreement, the Accounts Bank shall take action under
this Accounts Agreement only as it shall be directed in writing by the
Collateral Agent or the Administrative Agent. In each case that the Accounts
Bank may or is required under the other Financing Documents to take any action
(an “Accounts Bank Action”), including without limitation to make any
determination or judgment, to give consents, to exercise rights, powers or
remedies or otherwise to act hereunder, under any other Financing Document, the
Accounts Bank may seek direction from the Collateral Agent or the
Administrative Agent and shall be entitled to refrain from such Accounts Bank Action
unless and until it has received such direction and shall not incur any
liability to any Person by reason of so refraining.


 


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Section 18.05         Resignation
or Removal of Accounts Bank. (a)  The
Accounts Bank may resign from the performance of all its functions and duties
hereunder at any time by giving thirty (30)  days’
prior notice to the Borrower and the Collateral Agent. The Accounts Bank may be
removed (i) at any time by the Administrative Agent or the Required
Lenders, or (ii)  in the event of a material breach by the Accounts Bank
of its duties hereunder, by the Borrower in consultation with the
Administrative Agent. Such resignation or removal shall take effect upon the
appointment of a successor Accounts Bank, in accordance with this Section 18.05.


 


(b)        Upon the notice of
resignation by the Accounts Bank or upon the removal of the Accounts Bank
pursuant to Section 18.05(a), the Administrative Agent shall appoint a
successor Accounts Bank hereunder, who shall be a commercial bank having a
combined capital and surplus of at least two hundred fifty million Dollars
($250,000,000). So long as no Event of Default has occurred and is continuing,
such appointment shall be subject to the Borrower’s approval (such approval not
to be unreasonably withheld or delayed).


 


(c)         If no successor Accounts
Bank has been appointed by the Administrative Agent within thirty
(30) days after the date such notice of resignation was given by the
Accounts Bank or the date on which the Administrative Agent, the Required
Lenders or the Borrower elected to remove the Accounts Bank, pursuant to Section
18.05(a), any Senior Secured Party may petition any court of competent
jurisdiction for the appointment of a successor Accounts Bank. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint a
successor Accounts Bank who shall serve as Accounts Bank hereunder until such
time, if any, as the Administrative Agent appoints a successor Accounts Bank,
as provided above.


 


(d)        Upon the acceptance of a
successor’s appointment as Accounts Bank hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or removed) Accounts Bank, and the retiring (or removed)
Accounts Bank shall be discharged from all of its duties and obligations
hereunder. After the retirement or removal of the Accounts Bank hereunder, the
provisions of this Article XVIII shall continue in effect for the
benefit of the retiring (or removed) Accounts Bank in respect of any actions
taken or omitted to be taken by it while the retiring or removed Accounts Bank
was acting as Accounts Bank.


 


(e)         The retiring or removed
Accounts Bank will promptly transfer all of the Project Accounts and the
Account Collateral to the possession or control of the successor Accounts Bank
and will, at the sole cost and expense of the Borrower, execute and deliver
such notices, instructions and assignments as may be reasonably necessary or
desirable to transfer the rights of the Accounts Bank, together with all
records and


 


71

















 


reports, with
respect to the Project Accounts and the Account Collateral to the successor
Accounts Bank.


 


Section 18.06         No
Amendment to Duties of Accounts Bank Without Consent. The Accounts Bank
shall not be bound by any waiver, amendment, supplement or modification of this
Accounts Agreement that affects its rights or duties hereunder or thereunder
unless the Accounts Bank shall have given its prior written consent, in its
capacity as Accounts Bank, thereto.


 


ARTICLE XIX



REPRESENTATIONS AND WARRANTIES


 


Section 19.01         Representations
and Warranties. The Borrower represents and warrants as of the date of this
Accounts Agreement, as of the date of each Funding Notice, on each Funding Date
and on the Conversion Date that:


 


(a)         it is the legal and
beneficial owner of the Account Collateral free and clear of any Lien, claim,
encumbrance, option or right of others, except for the first-priority security
interest and other rights created under or provided for in this Accounts
Agreement and the other Financing Documents, the Bond Liens and other Permitted
Liens, and has the power and authority to pledge the Account Collateral pledged
by it hereunder. It has not authorized the filing of any effective financing
statement or other instrument similar in effect covering all or any part of the
Account Collateral, except (i) as filed in favor of the Collateral Agent,
for the benefit of the Senior Secured Parties, pursuant to this Accounts
Agreement or the other Financing Documents, and (ii) as filed or to be
filed, subsequent to such filing, in respect of the Bond Liens. To the best of
its knowledge, no effective financing statement or other instrument similar in
effect covering all or any part of the Account Collateral or listing the
Borrower or any trade name of the Borrower as debtor is on file in the
applicable recording office, except (i) as filed in favor of the
Collateral Agent, for the benefit of the Senior Secured Parties, relating to
the Financing Documents, or (ii) as filed or to be filed, subsequent to
such filing, in respect of the Bond Liens, subject to Section 7.02(b) (Negative Covenants—Liens) of the Credit Agreement and to the
Intercreditor Agreement, and it has not entered into, and shall not enter into,
any security control agreement or other agreement similar in effect, in each
case covering all or any part of the Account Collateral, except (i) as may
have been entered into in favor of the Collateral Agent, for the benefit of the
Senior Secured Parties, relating to this Accounts Agreement or the other
Financing Documents or (ii) as entered into, or to be entered into, in
favor of the Second Lien Agent, for the benefit of the Second Lien Claimholders,
pursuant to the Bond Indenture, subject to Section 7.02(b) (Negative Covenants — Liens) of the Credit Agreement and to
the Intercreditor Agreement;


 


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(b)        on or prior to the date of
the first Funding Notice all filings, registrations, notifications and
recordings, if any, necessary or appropriate to create, preserve, protect and
perfect the first-priority security interest granted by the Borrower to the
Collateral Agent, for the benefit of the Senior Secured Parties, hereby in
respect of the Account Collateral will have been made, and such first-priority
security interest granted to the Collateral Agent, for the benefit of the
Senior Secured Parties, pursuant to this Accounts Agreement in and to the Account
Collateral will constitute a valid and enforceable security interest therein
that, to the extent such security interest may be perfected under the UCC, will
be perfected and that will be subject to no prior security interest that can be
perfected under the UCC;


 


(c)         until the Security
Discharge Date, the Borrower will not execute or authorize to be filed in any
public office any UCC financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) or statements relating
to the Account Collateral, except for (i) the filings or registrations made in
respect of the Financing Documents and (ii) the filings or registrations
made or to be made, subsequent to such filings, in respect of the Bond Liens.


 


(d)        except for the filings,
registrations, notifications and recordings referred to in Section 19.01(b),
no authorization, approval or other action by, and no notice to or filing with,
any Governmental Authority or any other third party is required for
(i) the grant by the Borrower of the pledges and security interests
granted hereunder or for the execution, delivery or performance of this
Accounts Agreement by the Borrower, (ii) the perfection or maintenance of
the pledges and security interests created hereunder (including the
first-priority nature of the pledge and security interest in favor of the
Collateral Agent for the benefit of the Senior Secured Parties), or
(iii) the exercise by the Collateral Agent, on behalf of the Senior
Secured Parties, and the Accounts Bank of their respective rights provided for
in this Accounts Agreement or the remedies in respect of the Account Collateral
pursuant to this Accounts Agreement;


 


(e)         except for the rights of
the Collateral Agent, for the benefit of the Senior Secured Parties, granted
hereunder or pursuant hereto, and the second-priority rights of the Second Lien
Agent, for the benefit of the Second Lien Claimholders, pursuant to the
Subordinated Bond Documents and subject to Section 7.02 (Negative
Covenants) of the Credit Agreement and to the Intercreditor
Agreement, it does not know of and has not received written notice of any right
or claim to or interest in (including any adverse claim) any Account Collateral
by any Person other than the Borrower; and


 


(f)         its exact legal name is
Heartland Grain Fuels, L.P., it is duly organized and validly existing as a
limited partnership under the laws of the State of


 


73

















 


Delaware, and
its chief executive office is located at the address provided for the Borrower
in Section 20.10 (Notices and Other
Communications).


 


ARTICLE XX



MISCELLANEOUS


 


Section 20.01         Rights
of Second Lien Agent and Second Lien Claimholders. (a) Upon the delivery by
the Administrative Agent to the Accounts Bank of written notice that the
Security Discharge Date has occurred (the “Notice of Security Discharge Date”):


 


(i)            all references to
withdrawals from the Project Accounts relating to payments to the Senior
Secured Parties shall have no force and effect;


 


(ii)           the Collateral Agent
and the Administrative Agent shall cease to have any rights hereunder, except
for their respective rights under Article XVIII (The Accounts
Bank) and this Article XX (Miscellaneous),
and shall cease to have any obligations hereunder;


 


(iii)          each reference in Section
2.04(b) (Project Accounts), Section 2.05 (Representations, Warranties and Covenants of Accounts Bank),
Section 2.06(b) (Project Accounts as
Deposit Account), Section
2.09 (Control and Perfection of Account Collateral),
Section 2.11 (Agreement to Hold in Trust),  Section
3.02(d), (g), (h), (i), (j) and (k) (Deposits into and
Withdrawals from Project Accounts), Section 15.01 (No Security Interests), Section 15.03 (Further Assurances), Section 15.04 (UCC Termination Statements), Section 16.01 (Investments), Section 16.02 (Sale and
Liquidation), Section 16.04 (Accounts
Information), Article XVII (Default and
Enforcement), Article XVIII (The Accounts
Bank), and Section 19.01 (Representations and
Warranties) to (A) the Collateral Agent and the Administrative
Agent shall be deemed a reference to the Second Lien Agent and (B) Senior
Secured Parties shall be deemed a reference to Second Lien Claimholders and
Accounts Bank;


 


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(b)        This Agreement shall
terminate if (i) the Security Discharge Date has occurred and (ii) the Accounts
Bank has received a notice in writing from the Borrower confirming that no
default or event of default has occurred and is continuing under the Bond
Indenture. Upon termination of this Agreement, all Funds in the Project
Accounts shall be released to the Borrower.


 


Section 20.02         Amendments,
Etc. No amendment or waiver of any provision of this Accounts Agreement and
no consent to any departure by the Borrower shall be effective unless in
writing signed by the Collateral Agent and, in the case of an amendment, the
Borrower, the Collateral Agent, the Administrative Agent and the Accounts Bank
(and, after the Notice of Security Discharge Date, the Second Lien Agent), and
each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided, that no
amendment, waiver or consent shall (i) unless in writing and signed by the
Accounts Bank in addition to the Collateral Agent, affect the rights or duties
of, or any fees or other amounts payable to, the Accounts Bank under this
Accounts Agreement, or (ii) unless in writing and signed by the Second Lien
Agent, affect the rights or duties of the Second Lien Agent under this Accounts
Agreement.


 


Section 20.03         Applicable
Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER
THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).


 


(b)        SUBMISSION TO
JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS ACCOUNTS AGREEMENT, OR ANY OTHER FINANCING DOCUMENT, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE
PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER


 


75

















 


JURISDICTIONS
BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
ACCOUNTS AGREEMENT OR IN ANY OTHER FINANCING DOCUMENT SHALL AFFECT ANY RIGHT
THAT ANY SENIOR SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR
PROCEEDING RELATING TO THIS ACCOUNTS AGREEMENT, ANY OTHER FINANCING DOCUMENT
AGAINST THE BORROWER, THE ACCOUNTS BANK OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)         WAIVER OF VENUE. EACH
OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS ACCOUNTS AGREEMENT OR ANY OTHER FINANCING DOCUMENT IN ANY COURT
REFERRED TO IN SECTION 20.03(b). EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.


 


(d)        Appointment of Process
Agent and Service of Process. The Borrower hereby irrevocably appoints C T
Corporation System with an office on the date hereof at 111 Eighth Avenue,
New York, New York 10011, as its agent to receive on behalf of
itself and its property services of copies of the summons and complaint and any
other process that may be served in any such action or proceeding in the State
of New York. If for any reason the Process Agent shall cease to act as such for
the Borrower, the Borrower hereby agrees to designate a new agent in New York
City on the terms and for the purposes of this Section 20.03
reasonably satisfactory to the Collateral Agent, on behalf of the Senior
Secured Parties. Such service may be made by mailing or delivering a copy of
such process to the Borrower in care of the Process Agent at the Process Agent’s
above address, and the Borrower hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. As an alternative method of
service, the Borrower also irrevocably consents to the service of any and all
process in any such action or proceeding by the air mailing of copies of such
process to the Borrower at its then effective notice addresses pursuant to Section 20.10
(Notices and Other Communications).


 


(e)         Immunity. To the
extent that the Borrower has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the Borrower hereby


 


76

















 


irrevocably
and unconditionally waives such immunity in respect of its obligations under
this Accounts Agreement, the other Financing Documents and, without limiting
the generality of the foregoing, agrees that the waivers set forth in this Section 20.03(e)
shall have the fullest scope permitted under the Foreign Sovereign Immunities
Act of 1976 of the United States and are intended to be irrevocable for
purposes of such Act.


 


(f)         WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS ACCOUNTS
AGREEMENT, ANY OTHER FINANCING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED
TO ENTER INTO THIS ACCOUNTS AGREEMENT, THE OTHER FINANCING DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.03.


 


Section 20.04         Assignments.
The provisions of this Accounts Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Collateral Agent and the Administrative Agent (and, after the Notice of
Security Discharge Date, the Second Lien Agent), and the Accounts Bank may not
assign or delegate any of its rights or obligations under this Accounts
Agreement except pursuant to Section 18.05 (Resignation or Removal of Accounts Bank).


 


Section 20.05         Benefits
of Accounts Agreement. Nothing in this Accounts Agreement or any other
Financing Document, express or implied, shall give to any Person, other than
the parties hereto, the Senior Secured Parties and their respective successors
and assigns permitted under this Accounts Agreement or any other Financing
Document, Participants to the extent provided in Section 10.03 (Assignments) of the Credit Agreement,
Second Lien Claimholders and their respective successors and assigns permitted
under this Accounts Agreement or any Subordinated Debt Document, and Related
Parties of the Administrative Agent, the Collateral Agent, the Accounts Bank
and the Second Lien Agent any benefit or any legal or equitable right or remedy
under or by reason of this Accounts Agreement.


 


77

















 


Section 20.06         Costs
and Expenses. (a)  The Borrower shall
pay (i) all reasonable and documented out-of-pocket expenses incurred by
the Accounts Bank, the Administrative Agent and the Collateral Agent (including
all reasonable fees, costs and expenses of counsel for the Accounts Bank, the
Administrative Agent and the Collateral Agent), in connection with the
preparation, negotiation, execution and delivery of this Accounts Agreement and
the administration and maintenance of the Project Accounts (whether or not the
transactions contemplated hereby are consummated); (ii) all reasonable and
documented out-of-pocket expenses incurred by the Collateral Agent, the Administrative
Agent and the Accounts Bank (including all reasonable fees, costs and expenses
of counsel for Collateral Agent, the Administrative Agent and the Accounts
Bank), in connection with any amendments, modifications or waivers of the
provisions of this Accounts Agreement (whether or not the transactions
contemplated hereby are consummated); (iii) all reasonable and documented
out-of-pocket expenses incurred by the Accounts Bank, the Administrative Agent
and the Collateral Agent (including all reasonable fees, costs and expenses of
counsel for Accounts Bank, the Administrative Agent and the Collateral Agent),
in connection with the administration of this Accounts Agreement (whether or
not the transactions contemplated hereby are consummated); and (iv) all
out-of-pocket expenses incurred by the Accounts Bank, the Administrative Agent
and the Collateral Agent (including all fees, costs and expenses of counsel for
any of the Accounts Bank, the Administrative Agent and the Collateral Agent),
in connection with the enforcement or protection of their rights in connection
with this Accounts Agreement, including their rights under this Section 20.06(a),
including in connection with any workout, restructuring or negotiations in
respect of the Obligations.


 


(b)        Subject to the terms of
the Intercreditor Agreement, the Borrower shall pay (i) all reasonable and
documented out-of-pocket expenses incurred by the Second Lien Agent (including
all reasonable fees, costs and expenses of counsel for the Second Lien Agent),
in connection with the preparation, negotiation, execution and delivery of this
Accounts Agreement and the administration and maintenance of the Project
Accounts (whether or not the transactions contemplated hereby are consummated);
(ii) all reasonable and documented out-of-pocket expenses incurred by the
Second Lien Agent (including all reasonable fees, costs and expenses of counsel
for the Second Lien Agent), in connection with any amendments, modifications or
waivers of the provisions of this Accounts Agreement (whether or not the
transactions contemplated hereby are consummated); (iii) all reasonable
and documented out-of-pocket expenses incurred by the Second Lien Agent
(including all reasonable fees, costs and expenses of counsel for the Second
Lien Agent), in connection with the administration of this Accounts Agreement
(whether or not the transactions contemplated hereby are consummated); and
(iv) all out-of-pocket expenses incurred by the Second Lien Agent
(including all fees, costs and expenses of counsel for the Second Lien Agent),
in connection with the enforcement or protection of its rights in connection


 


78

















 


with this
Accounts Agreement, including its rights under this Section 20.06(b),
including in connection with any workout, restructuring or negotiations in
respect of the Subordinated Debt.


 


Section 20.07         Counterparts;
Effectiveness. This Accounts Agreement may be executed in counterparts (and
by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Accounts Agreement shall become effective when it has
been executed by the Collateral Agent and when the Collateral Agent has
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. Delivery of an executed counterpart of a
signature page of this Accounts Agreement by telecopy or portable document
format (“pdf”) shall be effective as delivery of a manually executed
counterpart of this Accounts Agreement.


 


Section 20.08         Indemnification
by the Borrower. (a)  In addition to
the indemnity by Borrower set forth in Section 20.10(f) (Notices and Other Communications), the
Borrower hereby agrees to indemnify the Collateral Agent (and any sub-agent
thereof), the Administrative Agent (and any sub-agent thereof), the Accounts
Bank and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses
(including all reasonable fees, costs and expenses of counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any
third party or by the Borrower arising out of, in connection with, or as a
result of:


 


(i)            the execution or
delivery of this Accounts Agreement or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby;


 


(ii)           any funds deposited in
or credited to any Project Account or the use or proposed use of the proceeds
therefrom; and


 


(iii)          any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party, the GP Pledgor or any of its shareholders, directors
or creditors, the Borrower or any of its partners or creditors, and in each
case regardless of whether any Indemnitee is a party thereto and whether or not
any of the


 


79

















 


transactions contemplated hereunder, in all
cases, whether or not caused by or arising, in whole or in part, out of the
comparative, contributory or sole negligence of the Indemnitee.


 


provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and non-appealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee.


 


(b)        The Borrower hereby
agrees, subject to the terms of the Intercreditor Agreement, to indemnify the
Second Lien Agent and each Related Party thereof (each such Person being called
an “Second Lien Agent Indemnitee”) against, and hold each Second Lien
Agent Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including all reasonable fees, costs and
expenses of counsel for any Second Lien Agent Indemnitee), incurred by any
Second Lien Agent Indemnitee or asserted against any Second Lien Agent Indemnitee
by any third party or by the Borrower arising out of, in connection with, or as
a result of:


 


(i)            the execution or
delivery of this Accounts Agreement or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto or thereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby;


 


(ii)           any funds deposited in
or credited to any Project Account or the use or proposed use of the proceeds
therefrom; and


 


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


 


80

















 


provided that such
indemnity shall not, as to any Second Lien Agent Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and non-appealable
judgment to have resulted from the gross negligence or willful misconduct of
such Second Lien Agent Indemnitee.


 


Section 20.09         No
Waiver; Cumulative Remedies. No failure by any Senior Secured Party, the
Accounts Bank, the Administrative Agent, the Collateral Agent or the Second
Lien Agent to exercise, and no delay by any such Person in exercising, any
right, remedy, power or privilege hereunder, or under any other Financing
Document, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and
provided under each other Financing Document, are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.


 


Section 20.10         Notices
and Other Communications. (a)  Except in the case of notices and
other communications expressly permitted to be given by telephone (and except
as provided in Section 20.10(b)), all notices and other
communications provided for herein shall be in writing and shall be delivered
by hand or overnight courier service, mailed by certified or registered mail or
sent by telecopier or electronic mail as follows:


 


	
  If to the Borrower:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Heartland Grain
  Fuels, L.P.

  
	
   

  	
  10201 Wayzata
  Blvd, Suite 250

  
	
   

  	
  Minneapolis, MN
  55305

  
	
   

  	
  Attention:

  	
  Chief Executive
  Officer

  
	
   

  	
  Telephone:

  	
  763-226-2701

  
	
   

  	
  Facsimile:

  	
  763-226-2725

  
	
   

  	
  E-mail:

  	
  rstephenson@advancedbioenergy.com

  
	
   

  	
   

  	
   

  
	
  If to the Accounts Bank:

  
	
   

  	
   

  	
   

  
	
   

  	
  Amarillo National
  Bank

  
	
   

  	
  P.O. Box 1

  
	
   

  	
  Amarillo, Texas
  79105

  
	
   

  	
  (or, for
  delivery by overnight courier, to:

  
	
   

  	
  410 S. Taylor

  
	
   

  	
  Amarillo, Texas
  79101)

  
	
   

  	
  Attention:

  	
  Craig Sanders,
  Executive Vice President

  



 


81

















 


	
   

  	
  Telephone:

  	
  806-378-8244

  
	
   

  	
  Facsimile:

  	
  806-345-1663

  
	
   

  	
  E-mail:

  	
  craig.sanders@anb.com

  
	
   

  	
   

  	
   

  
	
  If to the Collateral Agent:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WestLB AG, New
  York Branch

  
	
   

  	
  1211 Avenue of
  the Americas

  
	
   

  	
  New York, NY
  10036

  
	
   

  	
  Attention:
  Thomas Brensic

  
	
   

  	
  Telephone:

  	
  212 597-1153

  
	
   

  	
  Facsimile:

  	
  212 597-1490

  
	
   

  	
  Email:

  	
  Thomas_Brensic@westlb.com

  
	
   

  	
  Group e-mail:

  	
  NYC_Documents_Groups@WestLB.com

  
	
   

  	
   

  	
   

  
	
  If to the Administrative Agent:

  
	
   

  	
   

  	
   

  
	
   

  	
  WestLB AG, New
  York Branch

  
	
   

  	
  1211 Avenue of
  the Americas

  
	
   

  	
  New York, NY
  10036

  
	
   

  	
  Attention:

  	
  Andrea Bailey

  
	
   

  	
  Telephone:

  	
  (212) 597-1158

  
	
   

  	
  Facsimile:

  	
  (212) 302-7946

  
	
   

  	
  E-mail:

  	
  NYC_Agency_Services@WestLB.com

  
	
   

  	
   

  	
   

  
	
  If to the Second Lien Agent:

  
	
   

  	
   

  	
   

  
	
   

  	
  Wells Fargo
  Bank, N.A.

  
	
   

  	
  Corporate Trust
  & Escrow Services

  
	
   

  	
  MAC N9311-115

  
	
   

  	
  625 Marquette
  Ave. 11th Floor

  
	
   

  	
  Minneapolis, MN
  55479

  
	
   

  	
  Attention:

  	
  Stephen R.
  Gubrud

  
	
   

  	
  Telephone:

  	
  (612) 667-9090

  
	
   

  	
  Facsimile:

  	
  (612) 667-2160

  
	
   

  	
  E-mail:

  	
  Steven.R.Gubrud@wellsfargo.com

  



 


(b)        Notices sent by hand or
overnight courier service, or mailed by certified or registered mail, shall be
deemed to have been given when received; notices sent by telecopier shall be
deemed to have been given when sent (except that, if not given during normal
business hours for the recipient, shall be deemed to have been given at the
opening of business on the next Business Day for the recipient). Notices


 


82

















 


delivered
through electronic communications to the extent provided in Section 20.10(d)
shall be effective as provided in Section 20.10(d).


 


(c)         Notices and other
communications to the Borrower, the Collateral Agent, the Administrative Agent
or the Accounts Bank hereunder may be delivered or furnished by electronic
communication (including e-mail and internet or intranet websites). Each of the
Collateral Agent, the Administrative Agent, the Accounts Bank or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such
procedures may be limited to particular notices or communications.


 


(d)        Unless otherwise
prescribed, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return
receipt requested” function, as available, return e-mail or other
written acknowledgement); provided
that if such notice or other communication is not received during the normal
business hours of the recipient, such notice or communication shall be deemed
to have been received at the opening of business on the next Business Day for
the recipient, and (ii) notices or communications posted to an internet or
intranet website shall be deemed received upon the deemed receipt by the
intended recipient at its e-mail address as described in Section 20.10(a)
of notification that such notice or communication is available and identifying
the website address therefor.


 


(e)         Each of the Borrower, the
Collateral Agent, the Administrative Agent, the Accounts Bank and the Second
Lien Agent may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto.


 


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


 


83

















 


Administrative
Agent, the Accounts Bank or the Second Lien Agent may be recorded by the
Collateral Agent, the Administrative Agent, the Accounts Bank or the Second
Lien Agent, and each of the parties hereto hereby consents to such recording.


 


Section 20.11         Patriot
Act Notice. The Accounts Bank hereby notifies the Borrower that pursuant to
the requirements of the Patriot Act, it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow the
Accounts Bank to identify the Borrower in accordance with the Patriot Act.


 


Section 20.12         Severability.
If any provision of this Accounts Agreement or any other Financing Document is
held to be illegal, invalid or unenforceable, (a) the legality, validity
and enforceability of the remaining provisions of this Accounts Agreement, the
other Financing Documents shall not be affected or impaired thereby and
(b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


Section 20.13         Survival.
Notwithstanding anything in this Accounts Agreement to the contrary, Article XIX
(Representations and Warranties)
and Section 20.06 (Costs and
Expenses) and 20.08 (Indemnification by the Borrower) shall survive any
termination of this Accounts Agreement. In addition, each representation and
warranty made hereunder, in any other Financing Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Accounts
Bank, the Collateral Agent, the Administrative Agent, each other Senior Secured
Party, the Second Lien Agent and each other Second Lien Claimholder, regardless
of any investigation made by the Accounts Bank, the Collateral Agent, the
Administrative Agent, each other Senior Secured Party, the Second Lien Agent
and each other Second Lien Claimholder or on their behalf and notwithstanding
that the Accounts Bank, the Collateral Agent, the Administrative Agent, each
other Senior Secured Party, the Second Lien Agent or each other Second Lien
Claimholder may have had notice or knowledge of any Default or Event of Default
at the time of the Funding, and shall continue in full force and effect as long
as any Loan, any other Obligation hereunder or under any other Financing
Document or obligation under the Subordinated Debt Documents shall remain
unpaid or unsatisfied.


 


Section 20.14         Waiver
of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out


 


84

















 


of, in
connection with, or as a result of, this Accounts Agreement, any other
Financing Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or the use of the
proceeds thereof. No Indemnitee shall be liable for any damages arising from
the use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other information
transmission systems in connection with this Accounts Agreement, the other Financing
Documents or the transactions contemplated hereby or thereby.


 


Section 20.15         Waiver
of Litigation Payments. To the extent that the Borrower may, in any action,
suit or proceeding brought in any of the courts referred to in Section 20.03(b)
(Applicable Law; Jurisdiction; Etc.)
or elsewhere arising out of or in connection with this Accounts Agreement or
any other Financing Document to which it is a party, be entitled to the benefit
of any provision of law requiring any Lender or any Agent in such action, suit
or proceeding to post security for the costs of such Person or to post a bond
or to take similar action, each such Person hereby irrevocably waives such
benefit, in each case to the fullest extent now or in the future permitted
under the laws of New York or, as the case may be, the jurisdiction in which
such court is located.


 


(Remainder of page intentionally blank. Next
page is signature page.)


 


85

















 


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


 


	
   

  	
  HEARTLAND
  GRAIN FUELS, L.P.,

  as the Borrower

  
	
   

  	
  By:

  	
  Dakota Fuels,
  Inc.

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Revis L.
  Stephenson III

  	
   

  
	
   

  	
   Name:

  	
  Revis L. Stephenson III

  
	
   

  	
   Title:

  	
  Chairman

  
						



 

















 


	
   

  	
  AMARILLO
  NATIONAL BANK,

  as the Accounts Bank

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig L.
  Sanders

  	
   

  
	
   

  	
   Name:

  	
  Craig L. Sanders

  
	
   

  	
   Title:

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMARILLO
  NATIONAL BANK,

  as the Securities Intermediary

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig L.
  Sanders

  	
   

  
	
   

  	
   Name:

  	
  Craig L. Sanders

  
	
   

  	
   Title:

  	
  Executive Vice President

  
						



 

















 


	
   

  	
  WESTLB
  AG, NEW YORK BRANCH,

  as the Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  Pantelogianis

  	
   

  
	
   

  	
   Name:

  	
  Michael Pantelogianis

  
	
   

  	
   Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Vastola

  	
   

  
	
   

  	
   Name:

  	
  Paul Vastola

  
	
   

  	
   Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WESTLB,
  AG, NEW YORK BRANCH,

  as the Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  Pantelogianis

  	
   

  
	
   

  	
   Name:

  	
  Michael Pantelogianis

  
	
   

  	
   Title:

  	
  Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Paul Vastola

  	
   

  
	
   

  	
   Name:

  	
  Paul Vastola

  
	
   

  	
   Title:

  	
  Director

  
					



 

















 


	
   

  	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE OF THE BROWN COUNTY, SOUTH
  DAKOTA SUBORDINATE SOLID WASTE FACILITIES REVENUE BONDS (HEARTLAND GRAIN
  FUELS, L.P. ETHANOL PLANT PROJECT) SERIES 2007A,

  as the Second Lien Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Steven
  Gubrud

  	
   

  
	
   

  	
   

  	
   Name:

  	
  Steven Gubrud

  
	
   

  	
   

  	
   Title:

  	
  Vice President