GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS A RESULT OF A BREACH BY SUCH
AGENT OR LENDER OF ITS OBLIGATIONS HEREUNDER, (II) IS OR BECOMES AVAILABLE TO
SUCH AGENT OR LENDER FROM A SOURCE OTHER THAN THE BORROWER THAT IS NOT, TO THE
KNOWLEDGE OF SUCH AGENT OR LENDER, ACTING IN VIOLATION OF A CONFIDENTIALITY
OBLIGATION WITH THE BORROWER OR (III) IS INDEPENDENTLY COMPILED BY ANY AGENT OR
LENDER, AS EVIDENCED BY THEIR RECORDS, WITHOUT THE USE OF THE INFORMATION. ANY
PERSON REQUIRED TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION AS PROVIDED IN
THIS SECTION 10.17 SHALL BE CONSIDERED TO HAVE COMPLIED WITH ITS OBLIGATION TO
DO SO IF SUCH PERSON HAS EXERCISED THE SAME DEGREE OF CARE TO MAINTAIN THE
CONFIDENTIALITY OF SUCH INFORMATION AS SUCH PERSON WOULD ACCORD TO ITS OWN
CONFIDENTIAL INFORMATION.
122
SECTION 10.18
WAIVER OF CONSEQUENTIAL DAMAGES, ETC. EXCEPT AS OTHERWISE
PROVIDED IN SECTION 10.08 (INDEMNIFICATION BY THE BORROWER) FOR THE BENEFIT OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER
SHALL NOT ASSERT, AND THE BORROWER HEREBY WAIVES, ANY CLAIM AGAINST ANY
INDEMNITEE, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES) ARISING OUT OF, IN
CONNECTION WITH, OR AS A RESULT OF, THIS AGREEMENT, ANY OTHER FINANCING DOCUMENT
OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR THE USE OF THE PROCEEDS THEREOF. NO
INDEMNITEE SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY UNINTENDED
RECIPIENTS OF ANY INFORMATION OR OTHER MATERIALS DISTRIBUTED BY IT THROUGH
TELECOMMUNICATIONS, ELECTRONIC OR OTHER INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT OR THE OTHER FINANCING DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 10.19
WAIVER OF LITIGATION PAYMENTS. TO THE EXTENT THAT THE BORROWER
MAY, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT IN ANY OF THE COURTS REFERRED TO
IN SECTION 10.02(B) (APPLICABLE LAW; JURISDICTION; ETC. - SUBMISSION TO
JURISDICTION) OR ELSEWHERE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY OTHER FINANCING DOCUMENT TO WHICH IT IS A PARTY, BE ENTITLED TO THE
BENEFIT OF ANY PROVISION OF LAW REQUIRING ANY LENDER OR ANY AGENT IN SUCH
ACTION, SUIT OR PROCEEDING TO POST SECURITY FOR THE COSTS OF SUCH PERSON OR TO
POST A BOND OR TO TAKE SIMILAR ACTION, THE BORROWER HEREBY IRREVOCABLY WAIVES
SUCH BENEFIT, IN EACH CASE TO THE FULLEST EXTENT NOW OR IN THE FUTURE PERMITTED
UNDER THE LAWS OF NEW YORK OR, AS THE CASE MAY BE, THE JURISDICTION IN WHICH
SUCH COURT IS LOCATED.
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IN WITNESS WHEREOF, the parties hereto have caused this Senior Credit Agreement
to be executed by their respective officers as of the day and year first above
written.
HEARTLAND GRAIN FUELS, L.P.,
as Borrower
By:
Dakota Fuels, Inc.
Its:
General Partner
By
:/s/ Revis L. Stephenson III
Name: Revis L. Stephenson III
WESTLB AG,