THAN THOSE RESULTING FROM A
DRAW ON A LETTER OF CREDIT) FOR (I) PROJECT COSTS RELATING TO THE INITIAL
START-UP AND TESTING OF THE ABERDEEN II PLANT SHALL BE DEPOSITED INTO THE
CONSTRUCTION ACCOUNT, (II) OPERATION AND MAINTENANCE EXPENSES SHALL BE DEPOSITED
INTO THE OPERATING ACCOUNT, AND (III) MAINTENANCE CAPITAL EXPENSES SHALL BE
DEPOSITED INTO THE MAINTENANCE CAPITAL EXPENSE ACCOUNT, AND IN EACH SUCH CASE
SHALL BE APPLIED SOLELY IN ACCORDANCE WITH THIS AGREEMENT AND THE ACCOUNTS
AGREEMENT AND SHALL BE USED SOLELY FOR THE PAYMENT OF WORKING CAPITAL EXPENSES.
FUNDINGS OF WORKING CAPITAL LOANS FOR OPERATION AND MAINTENANCE EXPENSES AND FOR
MAINTENANCE CAPITAL EXPENSES SHALL BE SUBJECT TO THE
4
RESTRICTIONS WITH RESPECT TO SUCH EXPENSES SET FORTH IN THIS AGREEMENT AND THE
ACCOUNTS AGREEMENT.
(D)
WITHIN THE LIMITS SET FORTH IN SECTION 2.03(A), THE BORROWER MAY PAY OR
PREPAY AND REBORROW WORKING CAPITAL LOANS.
SECTION 2.04
LETTERS OF CREDIT. (A) THE ISSUING BANK AGREES AT ANY TIME ON OR
AFTER THE CLOSING DATE, AND FROM TIME TO TIME ON THE TERMS AND CONDITIONS OF
THIS AGREEMENT, UPON RECEIPT FROM THE BORROWER OF AN ISSUANCE REQUEST, TO ISSUE
A LETTER OF CREDIT ON BEHALF OF THE BORROWER ON THE DATE AND IN THE AMOUNT SET
FORTH IN SUCH ISSUANCE REQUEST; PROVIDED, THAT (I) LETTERS OF CREDIT MAY ONLY BE
ISSUED FOR SECURITY FOR UTILITIES AND RAILCAR LEASES, IN EACH CASE RELATED TO
THE PROJECT, (II) THE AGGREGATE MAXIMUM AVAILABLE AMOUNTS OF ALL ISSUED AND
OUTSTANDING LETTERS OF CREDIT SHALL NOT EXCEED THE LC CAP AND (III) THE
AGGREGATE OF, AT ANY TIME, THE AGGREGATE MAXIMUM AVAILABLE AMOUNTS OF ALL ISSUED
AND OUTSTANDING LETTERS OF CREDIT PLUS THE AGGREGATE OUTSTANDING PRINCIPAL
AMOUNT OF ALL WORKING CAPITAL LOANS SHALL NOT EXCEED THE LESSER OF THE AGGREGATE
WORKING CAPITAL LOAN COMMITMENT AND THE WORKING CAPITAL AVAILABLE AMOUNT.
(B)
THE BORROWER SHALL GIVE THE ADMINISTRATIVE AGENT AT LEAST FIVE
(5) BUSINESS DAYS IRREVOCABLE PRIOR WRITTEN NOTICE (SUCH NOTICE, IN
SUBSTANTIALLY THE FORM OF EXHIBIT T, AN "ISSUANCE REQUEST") (EFFECTIVE UPON
RECEIPT) SPECIFYING THE DATE (WHICH SHALL BE A DAY THAT IS NO LATER THAN THIRTY
(30) DAYS PRECEDING THE WORKING CAPITAL LOAN MATURITY DATE) A LETTER OF CREDIT
IS REQUESTED TO BE ISSUED, DESCRIBING IN REASONABLE DETAIL THE NATURE OF THE
TRANSACTIONS OR OBLIGATIONS PROPOSED TO BE SUPPORTED THEREBY (WHICH SHALL BE OF
THE NATURE DESCRIBED IN SECTION 2.04(A)(I)) AND THE MAXIMUM AVAILABLE AMOUNT OF
SUCH LETTER OF CREDIT, WHICH SHALL BE NO LESS THAN TWO HUNDRED FIFTY THOUSAND
DOLLARS ($250,000)). UPON RECEIPT OF AN ISSUANCE REQUEST, THE ADMINISTRATIVE
AGENT SHALL PROMPTLY ADVISE THE ISSUING BANK OF THE CONTENTS THEREOF.
(C)
EACH WORKING CAPITAL LENDER (OTHER THAN THE ISSUING BANK) AGREES THAT,
UPON THE ISSUANCE OF ANY LETTER OF CREDIT HEREUNDER, IT SHALL AUTOMATICALLY
ACQUIRE A PARTICIPATION IN THE ISSUING BANK'S LIABILITY THEREUNDER IN AN AMOUNT
EQUAL TO SUCH LENDER'S WORKING CAPITAL LOAN COMMITMENT PERCENTAGE OF SUCH
LIABILITY, AND EACH WORKING CAPITAL LENDER (OTHER THAN THE ISSUING BANK) THEREBY
SHALL ABSOLUTELY, UNCONDITIONALLY