NOTE AND EQUITY PURCHASE AGREEMENT

Exhibit 4.3

Execution Copy

 

NOTE AND EQUITY PURCHASE AGREEMENT

by and among

ASALLIANCES BIOFUELS, LLC

and

AMERICAN CAPITAL FINANCIAL SERVICES, INC.,

AS AGENT

and

THE PURCHASERS IDENTIFIED ON

ANNEX A HERETO

February 6, 2006

 

TABLE OF CONTENTS

 

 

 

NOTE AND EQUITY PURCHASE AGREEMENT

Up to $62,500,000 Aggregate Principal Amount of

Notes of the Company

Due February 6, 2015

Issuance of up to 581,612 Class A Units for a

Purchase Price of up to $63,239,910

Issuance of 40,000 Class B Units

THIS NOTE AND EQUITY PURCHASE AGREEMENT (this “ Agreement ”), dated as of February 6, 2006, is by and among ASALLIANCES BIOFUELS, LLC, a Delaware limited liability company (the “ Company ”), the securities purchasers that are now and hereafter at any time parties hereto and are listed in Annex A (or any amendment or supplement thereto) attached hereto (each a “ Purchaser ” and collectively, “ Purchasers ”), and AMERICAN CAPITAL FINANCIAL SERVICES, INC., a Delaware corporation (“ ACFS ”), as administrative agent for Purchasers (in such capacity, “ Agent ”). Capitalized terms used and not defined elsewhere in this Agreement are defined in Article 1 hereof.

RECITALS

WHEREAS, the Company has requested that Purchasers, among other things, (a) provide financing to the Company in the form of up to $62,500,000 of senior subordinated debt and (b) purchase up to $63,239,910 of Class A Units (as defined below) representing 96.93% of Class A Units of Company and the Distribution Percentage as set forth on Exhibit M thereto (the “ Class A Issuance ”).

WHEREAS, in order to induce Purchasers to purchase each of the Notes (as defined below), Company has agreed to issue and sell to Purchasers, in connection with the purchase of the Notes, 40,000 Class B Units (as defined below) of Company (the “ Class B Issuance ,” and together with the Class A Issuance, the “ Unit Issuance ”) subject to the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, the parties hereto, in consideration of the premises and their mutual covenants and agreements herein set forth and intending to be legally bound hereby, covenant and agree as follows:

SECTION 1

DEFINITIONS

1.1 Certain Definitions . In addition to other words and terms defined elsewhere in this Agreement, the following words and terms have the meanings set forth below (and such meanings are equally applicable to both the singular and plural form of the terms defined, as the context may require):

“ ACAS ” means American Capital Strategies, Ltd., a Delaware corporation.

“ ACFS ” means American Capital Financial Services, Inc., a Delaware corporation.

“ Accountant’s Letter ” means that certain letter executed by Company to its accountants, in form and substance reasonably satisfactory to Agent.

“ Accounts Bank ” means First National Bank of Omaha, not in its individual capacity, but solely as depositary bank, bank and securities intermediary, and each other Person that may, from time to time, be appointed as successor Accounts Bank pursuant to the Senior Credit Agreement.

“ Additional Material Project Document ” means each contract, agreement, letter agreement or other instrument to which any Loan Party or the Company becomes a party after the date hereof, other than any document (a) under which any Loan Party or the Company (or the Loan Parties and the Company on an aggregate basis) would not reasonably be expected to have obligations or liabilities, or be entitled to receive revenues, in the aggregate in excess of five million Dollars ($5,000,000) in value in any twelve (12) month period and (b) a termination of which would not reasonably be expected to have a Material Adverse Effect; provided that for the purposes of this definition, any series of related transactions (other than transactions, including hedging transactions, relating to the sale of Products or the purchase of corn and natural gas) shall be considered as one transaction, and all contracts, agreements, letter agreements or other instruments in respect of such transactions shall be considered as one contract, agreement, letter agreement or other instrument, as applicable.

“ Additional Project Document ” means each contract, agreement, letter agreement or other instrument to which any Loan Party or the Company becomes a party after the date hereof, other than (a) an Additional Material Project Document or (b) any document under which any Loan Party or the Company (or the Loan Parties and the Company on an aggregate basis) would not reasonably be expected to have obligations or liabilities, or be entitled to receive revenues, in the aggregate in excess of two million Dollars ($2,000,000) in value in any twelve (12) month period; provided that for the purposes of this definition, any series of related transactions (other than transactions, including hedging transactions, relating to the sale of Products or the purchase of corn and natural gas) shall be considered as one transaction, and all contracts, agreements, letter agreements or other instruments in respect of such transactions shall be considered as one contract, agreement, letter agreement or other instrument, as applicable.

“ Administrative Fee ” shall have the meaning as set forth in the Fee Letter.

 

“ Affiliate ” means with respect to any Person, any other Person that is directly or indirectly controlling, controlled by or under common control with such Person or entity or any of its Subsidiaries, and the term “control” (including the terms “controlled by” and “under common control with”) means having, directly or indirectly, the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or by contract or otherwise. Without limiting the foregoing, the ownership of ten percent (10%) or more of the voting securities of a Person shall be deemed to constitute control and notwithstanding anything to the contrary herein, none of the Purchasers nor any of their respective Affiliates shall be deemed to be Affiliates of the Loan Parties or the Company solely by virtue of the transactions contemplated in this Agreement.

“ Agent ” has the meaning assigned to such term in the preamble hereto and any successor agent provided for hereunder.

“ Agreement ” means this Note and Equity Purchase Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.

“ Agreements for Water Services ” means the Bloomingburg Agreement for Water Services and the Linden Agreement for Water Services.

“ Agricultural Market Consultant ” means Informa Economics, Inc., or any replacement agricultural market consultant appointed by the Agent, with approval of the Required Purchasers and (so long as no Event of Default has occurred and is continuing) after consultation with the Company.

“ Albion ” means ASA Albion, LLC, a Delaware limited liability company.

“ Albion Construction Account ” has the meaning set forth in the Senior Credit Agreement.

“ Albion Construction Budget ” means the budget attached hereto as Schedule 1.1(a) that sets forth all categories of costs and expenses required in connection with the development, construction, start-up, and testing of the Albion Plant, including all construction costs, all costs under the Albion Design Build Contract, all interest, taxes and other carrying costs related to the Albion Notes and the Albion Construction Loans (as defined in the Senior Credit Agreement), and costs related to the construction of the facilities described under the Project Documents relating to the Albion Plant, as updated from time to time with the prior written consent of the Agent or otherwise in accordance with Section 7.2(z) hereof.

“ Albion Construction Withdrawal Certificate ” means a certificate in substantially the form of Exhibit I.

“ Albion Corn Futures Advisory Agreement ” means the Futures Advisory Agreement, dated as of the Closing Date, between Cargill Commodity Services, Inc., a Delaware corporation, doing business as Cargill Direct, and Albion.

“ Albion Corn Supply Agreement ” means the Corn Supply Agreement, dated as of the Closing Date, between Cargill and Albion.

 

“ Albion Design Build Contract ” means the Lump-Sum Design Build Agreement, dated as of the Closing Date, between the Design Builder and Albion for construction of the Albion Plant (excluding the Leased Premises), as clarified pursuant to the Design Basis Letter Agreement.

“ Albion Distillers Grains Marketing Agreement ” means the Distillers Grains Marketing Agreement, dated as of the Closing Date, between Cargill and Albion.

“ Albion Electric Facilities Agreement ” means the electric facilities agreement to be entered into between Albion and Cornhusker Public Power District.

“ Albion Electric Services Agreement ” means the electric facilities agreement to be entered into between Albion and Cornhusker Public Power District of Columbus, Nebraska.

“ Albion Ethanol Marketing Agreement ” means the Ethanol Marketing Agreement, dated as of the Closing Date, between Cargill, acting through its Sweeteners North America business unit, and Albion.

“ Albion Facility Cap ” means $20,677,831.

“ Albion Facility Funding Period ” means the period commencing on March 1, 2006 and continuing until October 31, 2006.

“ Albion Gas Risk Management Agreement ” means the Gas Risk Management Agreement, dated as of the Closing Date, among Cargill Commodity Services Inc., a Delaware corporation, doing business as Cargill Energy Services, Albion and Cargill.

“ Albion Gas Supply Agreement ” means the Base Contract for Sale and Purchase of Natural Gas, dated as of the Closing Date, between Cargill and Albion, as supplemented by the Cargill, Incorporated Special Provisions NAESB, of the same date between the same parties.

“ Albion Gas Transportation Agreement ” means the Transportation Service Agreement to be entered into between Kinder Morgan, Inc. and Albion.

“ Albion Grain Facility Lease ” means the Lease Agreement, dated as of the Closing Date, between Cargill and Albion.

“ Albion ICM License ” means the License Agreement, dated as of the Closing Date, between ICM and Albion.

“ Albion LLC Agreement ” means the Limited Liability Company Agreement of ASA Albion, LLC, dated as of the Closing Date executed by ASA Holdings and the Independent Member of Albion.

“ Albion Master Agreement ” means the Master Agreement, dated as of the Closing Date, among Cargill, Cargill Commodity Services Inc., a Delaware corporation, ASA Holdings and Albion.

 

“ Albion Note ” means, collectively, each of the Albion Notes issued pursuant to Section 2.1(a) hereof.

“ Albion Operating Agreement ” means the Plant Operation Agreement, dated as of the Closing Date, between Albion and UBEM.

“ Albion Plant ” means the dry grind ethanol production facility located near Albion, Nebraska, with a nameplate capacity of 100 million gallons-per-year, including the Site on which such facility is located, and all buildings, structures, improvements, easements and other property related thereto.

“ Albion Project Costs ” means the following costs and expenses incurred by Albion in connection with the Albion Plant prior to the Final Completion Date for the Albion Plant and set forth in the Albion Construction Budget or otherwise approved in writing by the Agent (in consultation with the Owner’s Engineer):

 

(i)

costs incurred by Albion under the Albion Design Build Contract, and other costs directly related to the acquisition, site preparation, design, engineering, construction, installation, start-up, and testing of the Albion Plant;

 

(ii)

fees and expenses incurred by or on behalf of Albion and allocated to the Albion Plant in connection with the development of the Project and the consummation of the transactions contemplated by this Agreement, including financial, accounting, legal, surveying and consulting fees, and the costs of preliminary engineering;

 

(iii)

interest and Fees (as defined in the Senior Credit Agreement) on the Albion Construction Loans (as defined in the Senior Credit Agreement) until the Commercial Operation Date (as defined in the Senior Credit Agreement) for the Albion Plant;

 

(iv)

financing fees and expenses in connection with the Loans (as defined in the Senior Credit Agreement) and the fees, costs and expenses of the Agents’ counsel any Interest Rate Protection Provider’s counsel and the Consultants that are allocated to the Albion Plant;

 

(v)

insurance premiums with respect to the Title Insurance Policy for the Albion Plant and the insurance for the Albion Plant required under the Senior Credit Agreement;

 

(vi)

interest and all fees on the Albion Notes until the Commercial Operations Date for the Albion Plant;

 

(vii)

financing fees and expenses in connection with the Albion Notes and the fees, costs and expenses of the Agent’s counsel and the Consultants that are allocated to the Albion Plant;

 

(viii)

costs of corn and natural gas utilized for commissioning of, Performance Tests for, and operation of, the Albion Plant prior to the Commercial Operation Date; and

 

(ix)

all other costs and expenses included in the Albion Construction Budget that are approved by Agent.

“ Albion Rail Use Agreements ” means, collectively, (i) the rail use agreement to be entered into between Albion and Cargill and (ii) the rail use agreement to be entered into between Albion and Union Pacific Railroad Company.

“ Albion Railroad Easement Agreement ” means the Railroad Easement Agreement, dated on or about the date hereof, between Albion and Cargill.

“ Albion Wastewater Discharge Easement ” means the easement to be granted to Albion for wastewater discharge on terms and conditions reasonably satisfactory to the Agent.

“ Ancillary Documents ” means, with respect to each Additional Project Document and each Additional Material Project Document, the following, each of which shall be in form and substance reasonably satisfactory to the Agent:

 

(i)

if reasonably requested by Agent, opinions of counsel for the Company, Loan Parties and each Project Party that is a party to such Additional Project Document addressing such matters relating to such Additional Project Document or Additional Material Project Document; and

 

(ii)

certified evidence from the Company of the authorization of each Loan Party that is a party to such Additional Project Document or Additional Material Project Document, as the case may be.

“ Annual Statements ” has the meaning assigned to such term in Section 5.1(c)(i) hereof.

“ Application for Payment ” means an “Application for Payment” as defined in Section 10.2.1 of each Design Build Contract.

“ Applicable Percentage ” means (i) 15% until the Discharge Date (as defined in the Senior Credit Agreement) and (ii) thereafter, (A) if the Fixed Charge Coverage Ratio is greater than or equal to 1.5:1.0, 15% or (B) if the Fixed Charge Coverage Ratio is less than 1:5 to 1.0, 100%.

“ ASA Holdings ” means ASA OpCo Holdings, LLC, a Delaware limited liability company.

“ ASA Holdings LLC Agreement ” means the Limited Liability Company Agreement of ASA OpCo Holdings, LLC, dated as of the Closing Date, executed by the Company and the Independent Member of ASA Holdings.

 

“ Bloomingburg ” means ASA Bloomingburg, LLC, a Delaware limited liability company.

“ Bloomingburg Agreement for Water Services ” means the agreement for water services to be entered into between Bloomingburg and the applicable third party.

“ Bloomingburg Construction Account ” has the meaning set forth in the Senior Credit Agreement.

“ Bloomingburg Construction Budget ” means the budget attached hereto as Schedule 1.1(b) that sets forth all categories of costs and expenses required in connection with the development, construction, start-up, and testing of the Bloomingburg Plant, including all construction and non-construction costs, all costs under the Bloomingburg Design Build Contract, all interest, taxes and other carrying costs related to the Bloomingburg Notes and the Bloomingburg Construction Loans (as defined in the Senior Credit Agreement), and the costs related to the construction of the facilities described under the Project Documents relating to the Bloomingburg Plant, as updated from time to time with the prior written consent of the Agent or otherwise in accordance with Section 7.2(z) hereof.

“ Bloomingburg Construction Withdrawal Certificate ” means a certificate in substantially the form of Exhibit I.

“ Bloomingburg Corn Futures Advisory Agreement ” means the Futures Advisory Agreement, dated as of the Closing Date, between Cargill Commodity Services, Inc., a Delaware corporation, doing business as Cargill Direct, and Bloomingburg.

“ Bloomingburg Corn Supply Agreement ” means the Corn Supply Agreement, dated as of the Closing Date, between Cargill and Bloomingburg.

“ Bloomingburg Design Build Contract ” means the Lump-Sum Design Build Agreement between the Design Builder and Bloomingburg, dated as of the Closing Date, for construction of the Bloomingburg Plant (excluding the Leased Premises), as clarified pursuant to the Design Basis Letter Agreement.

“ Bloomingburg Distillers Grains Marketing Agreement ” means the Distillers Grains Marketing Agreement, dated as of the Closing Date, between Cargill and Bloomingburg.

“ Bloomingburg Electric Facilities Agreement ” means the electric facilities agreement to be entered into between Bloomingburg and The Dayton Power and Light Company.

“ Bloomingburg Electric Services Agreement ” means the electric facilities agreement to be entered into between Bloomingburg and The Dayton Power and Light Company.

“ Bloomingburg Ethanol Marketing Agreement ” means the Ethanol Marketing Agreement, dated as of the Closing Date, between Cargill, acting through its Sweeteners North America business unit, and Bloomingburg.

“ Bloomingburg Facility Cap ” means $21,143,401.

 

“ Bloomingburg Facility Funding Period ” means the period commencing on April 1, 2006 and continuing until November 30, 2006.

“ Bloomingburg Gas Risk Management Agreement ” means the Gas Risk Management Agreement, dated as of the Closing Date, among Cargill Commodity Services Inc., a Delaware corporation, doing business as Cargill Energy Services, Bloomingburg and Cargill.

“ Bloomingburg Gas Supply Agreement ” means the Base Contract for Sale and Purchase of Natural Gas, dated as of the Closing Date, between Cargill and Bloomingburg, as supplemented by the Cargill, Incorporated Special Provisions NAESB, of the same date between the same parties.

“ Bloomingburg Gas Transportation Agreement ” means the Transportation Service Agreement to be entered into between Vectren Energy Delivery of Ohio, Inc. and Bloomingburg.

“ Bloomingburg Grain Facility Lease ” means the Lease Agreement, dated as of the Closing Date, between Cargill and Bloomingburg.

“ Bloomingburg ICM License ” means the License Agreement, dated as of the Closing Date, between ICM, Inc. and Bloomingburg.

“ Bloomingburg LLC Agreement ” means the Limited Liability Company Agreement of ASA Bloomingburg, LLC, dated as of the Closing Date executed by ASA Holdings and the Independent Member of Bloomingburg.

“ Bloomingburg Master Agreement ” means the Master Agreement, dated as of the Closing Date, among Cargill, Cargill Commodity Services Inc., a Delaware corporation, ASA Holdings and Bloomingburg.

“ Bloomingburg Note ” means, collectively, each of the Bloomingburg Notes issued pursuant to Section 2.1(b) hereof.

“ Bloomingburg Operating Agreement ” means the Plant Operation Agreement, dated as of the Closing Date, between Bloomingburg and UBEM.

“ Bloomingburg Plant ” means the dry grind ethanol production facility located near Bloomingburg, Ohio, with a nameplate capacity of 100 million gallons-per-year, including the Site on which such facility is located, and all buildings, structures, improvements, easements and other property related thereto.

“ Bloomingburg Project Costs ” means the following costs and expenses incurred by Bloomingburg in connection with the Bloomingburg Plant prior to the Final Completion Date for the Bloomingburg Plant and set forth in the Bloomingburg Construction Budget or otherwise approved in writing by the Agent (in consultation with the Owner’s Engineer):

 

(i)

costs incurred by Bloomingburg under the Bloomingburg Design Build Contract, and other costs directly related to the acquisition, site preparation, design, engineering, construction, installation, start-up, and testing of the Bloomingburg Plant;

 

(ii)

fees and expenses incurred by or on behalf of Bloomingburg and allocated to the Bloomingburg Plant in connection with the development of the Project and the consummation of the transactions contemplated by this Agreement, including financial, accounting, legal, surveying and consulting fees, and the costs of preliminary engineering;

 

(iii)

interest and Fees (as defined in the Senior Credit Agreement) on the Bloomingburg Construction Loans (as defined in the Senior Credit Agreement) until the Commercial Operation Date (as defined in the Senior Credit Agreement) for the Bloomingburg Plant;

 

(iv)

financing fees and expenses in connection with the Loans (as defined in the Senior Credit Agreement) and the fees, costs and expenses of the Agents’ counsel any Interest Rate Protection Provider’s counsel and the Consultants that are allocated to the Bloomingburg Plant;

 

(v)

insurance premiums with respect to the Title Insurance Policy for the Bloomingburg Plant and the insurance for the Bloomingburg Plant required under the Senior Credit Agreement;

 

(vi)

interest and all fees on the Bloomingburg Notes until the Commercial Operations Date for the Bloomingburg Plant;

 

(vii)

financing fees and expenses in connection with the Bloomingburg Notes and the fees, costs and expenses of the Agents’ counsel and the Consultants that are allocated to the Bloomingburg Plant;

 

(viii)

costs of corn and natural gas utilized for commissioning of, Performance Tests for, and operation of, the Bloomingburg Plant prior to the Commercial Operation Date; and

 

(ix)

all other costs and expenses included in the Bloomingburg Construction Budget that are approved by Agent.

“ Bloomingburg Rail Use Agreements ” means, collectively, (i) the rail use agreement to be entered into between Bloomingburg and Cargill and (ii) the rail use license agreement to be entered into between Bloomingburg and RailAmerica (or another rail use provider reasonably acceptable to the Agent).

“ Bloomingburg Railroad Easement Agreement ” means the Railroad Easement Agreement, dated on or about the date hereof, between Bloomingburg and Cargill.

“ Business ” means the principal business of the Company and the Loan Parties as set forth in Section 5.1(b) herein and as such shall continue to be conducted following the purchase and sale of the Securities.

 

“ Business Day ” means any day other than a Saturday, Sunday or other day on which banking institutions in Maryland or New York are authorized or required by law to close.

“ Capitalized Leases ” means, with respect to any Person, leases of (or other agreements conveying the right to use) any property (whether real, personal or mixed) by such Person as lessee that, in accordance with GAAP (as defined in Section 1.2 hereof), either would be required to be classified and accounted for as capital leases on a balance sheet of such Person or otherwise be disclosed as such in a note to such balance sheet.

“ Cargill ” means Cargill Incorporated, a Delaware corporation.

“ Cargill Goods and Services Agreements ” means, collectively, the Master Agreements, the Corn Supply Agreements, the Gas Supply Agreements, the Ethanol Marketing Agreements, the Distillers Grains Marketing Agreements, the Gas Risk Management Agreements, and the Corn Futures Advisory Agreements.

“ Cargill Setoff Amount ” means, for any period, the sum of the amounts that will become due and payable by the Loan Parties to Cargill during such period for physical delivery of goods under the Corn Supply Agreements and the Gas Supply Agreements, but only to the limited extent that such amounts are less than or equal to the amounts to become due and payable by Cargill to the Loan Parties during such period for physical delivery of goods under the Ethanol Marketing Agreements and the Distillers Grains Marketing Agreement.

“ Capital Expenditures ” means for any period of determination capital expenditures of the Company and the Loan Parties for such period determined and consolidated in accordance with GAAP, excluding expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed with insurance proceeds, cash awards arising from a taking by eminent domain or condemnation or cash proceeds of asset dispositions reinvested in replacement assets.

“ Cash Equivalents ” means:

 

(i)

direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one hundred eighty (180) days from the date of acquisition thereof;

 

(ii)

time deposits, insured certificates of deposit or banker’s acceptances in each case maturing within one hundred eighty (180) days from the date of acquisition thereof with or of any commercial bank rated “A” (or the then-equivalent rating) or better by Moody’s and S&P;

 

(iii)

commercial paper issued by any commercial bank rated at least A1 (or the then-equivalent rating) by S&P or at least P-1 (or the then-

 

equivalent rating) by Moody’s which, in each case, have a maturity not exceeding ninety (90) days from the date of acquisition thereof;

 

(iv)

any repurchase agreement with any Senior Lender or other commercial bank rated “A” (or the then-equivalent rating) or better by Moody’s and S&P, which agreement is secured by securities of the type described in any other clause of this definition, which securities shall at all times have a market value (exclusive of accrued interest) of not less than one hundred three percent (103%) of the full amount of the repurchase agreement; provided , that such repurchase obligations shall be transferred to and segregated from other obligations owed by Senior Lenders or any such commercial bank; and

 

(v)

investments in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to securities of the type described in clauses (i)-(iv) of this definition.

“ Cash Flow ” means, for any period, the sum (without duplication) of the following: (i) all cash paid to the Company and the Loan Parties during such period in connection with the Ethanol Marketing Agreements, Distillers Grains Marketing Agreements and any other sales of Products, (ii) all interest and investment earnings paid to the Company and the Loan Parties or the Project Accounts (as defined in the Senior Credit Agreement) during such period on amounts on deposit in the Project Accounts (as defined in the Senior Credit Agreement), (iii) all cash paid to the Company and the Loan Parties during such period as Business Interruption Insurance Proceeds (as defined in the Senior Credit Agreement) and (iv) all other cash paid to the Company and Loan Parties during such period; provided , however , that Cash Flow shall not include any proceeds of the Loans (as defined in the Senior Credit Agreement) or any other Indebtedness incurred by the Company or any Loan Party; Insurance Proceeds (as defined in the Senior Credit Agreement); Condemnation Proceeds (as defined in the Senior Credit Agreement); any proceeds of the Securities purchased or issued hereunder; any amounts drawn under, or paid pursuant to, any Debt Service Reserve Letter of Credit (as defined in the Senior Credit Agreement); proceeds from any disposition of assets of any Plant or the Company or any Loan Party; tax refunds; amounts received, whether by way of a capital contribution or otherwise, from any holders of Equity Interests of any Loan Party or the Company; and any other extraordinary or non-cash income or receipt of the Company or any Loan Party under GAAP.

“ Cash Flow Available for Debt Service ” shall have the meaning set forth in the Senior Credit Agreement.

“ Cash Flow Interest ” shall have the meaning as set forth in Section 3.1 hereof.

“ Casualty Event ” means an event that causes any Plant, or any portion thereof, to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever.

 

“ CERCLA ” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9604, et seq .), as amended, and rules, regulations, standards guidelines and publications issued thereunder.

“ Change of Control ” means any transaction or series of related transactions (including any merger or consolidation) the result of which is that (i) ASA Holdings fails to maintain, directly, legally, or beneficially, one hundred percent (100%) of the Equity Interests of any of Albion, Bloomingburg or Linden (other than the Equity Interest held by the Independent Member), (ii) Company fails to maintain directly, legally or beneficially, one hundred percent (100%) in the aggregate of the Equity Interests of ASA Holdings (other than the Equity Interest held by the Independent Member), (iii) Cargill fails to own at least 4.9237% of all Equity Interests (including all classes) in Company, (iv) prior to the Conversion Date (as defined in the Credit Agreement), Fagen fails to own at least 5.2754% of all Equity Interests (including all classes) in Company, or (v) a Change of Control (as defined in the Senior Credit Agreement) has occurred.

“ Change Order ” means each “Change Order” (if any) as described in Section 13.1.1 of any Design Build Contract.

“ Charter Documents ” means the certificate of formation filed with the appropriate Governmental Authorities of each of the Company and the Loan Parties, as applicable, including all amendments and supplements thereto.

“ Class A Issuance ” has the meaning set forth in the preamble hereto.

“ Class B Issuance ” has the meaning set forth in the preamble hereto.

“ Class A Units ” means an interest in the Company designated as a Class A Unit as set forth in the Company LLC Agreement with the rights and preferences as set forth therein and in substantially the form of Exhibit A-2 hereto.

“ Class B Units ” means an interest in the Company designated as a Class B Unit as set forth in the Company LLC Agreement with the rights and preferences as set forth therein and in substantially the form of Exhibit A-3 hereto.

“ Closing ” shall have the meaning as set forth in Section 2.4 hereof.

“ Closing Date ” shall have the meaning as set forth in Section 2.4 hereof.

“ Closing Date Senior Credit Documents ” means the following:

(i) the Senior Credit Agreement,

(ii) the Pledge Agreements (as defined in the Senior Credit Agreement),

(iii) the Consents (as defined in the Senior Credit Agreement, other than Consents related to Project Documents not executed as of the Closing Date),

 

(iv) the Security Agreements (as defined in the Senior Credit Agreement),

(v) the Mortgages (as defined in the Senior Credit Agreement),

(vi) the Right of First Offer and Refusal Agreement, and

(vii) the Fee Letters (as defined in the Senior Credit Agreement).

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Commercial Operation Date ” means, with respect to each Plant, the date on which such Plant has reached Substantial Completion, as certified by the Company and the Owner’s Engineer to the Agent.

“ Commodity Risk Management Plans ” means risk management plans prepared by the Loan Parties and approved by the Senior Lenders setting forth terms and conditions relating to any Commodity Hedging Arrangements from time to time proposed to be entered into by the Loan Parties (including pursuant to the Corn Futures Advisory Agreements and the Gas Risk Management Agreements), including any updates made to such risk management plans with the approval of the Senior Lenders.

“ Company ” has the meaning assigned to such term in the preamble hereof.

“ Company LLC Agreement ” means that certain Limited Liability Company Agreement of ASAlliances Biofuels LLC, dated as of the Closing Date, executed by the Company, Midwest First Financial Inc., ACASB, Inc., Laminar Direct Capital L.P., USRG ASA, LLC, FDC Ethanol, LLC, Cargill Biofuels Investments, LLC, ASAlliances Holdings, LP on the Closing Date.

“ Condition ” means any condition that results in or otherwise relates to any Environmental Claim.

“ Construction Budgets ” means, collectively, the Albion Construction Budget, the Bloomingburg Construction Budget and the Linden Construction Budget.

“ Consultants ” means the Independent Engineer, the Owner’s Engineer, the Insurance Consultant, the Ethanol Market Consultant, the Environmental Consultant and the Agricultural Market Consultant.

“ Contest ” means, with respect to any matter or claim involving any Person, that such Person is contesting such matter or claim in good faith and by appropriate proceedings timely instituted; provided that the following conditions are satisfied: (a) such Person has posted a bond or other security acceptable to the Agent; (b) during the period of such contest, the enforcement of any contested item is effectively stayed; (c) none of such Person or any of its officers, directors or employees, or any Purchaser or its respective officers, directors or employees, is or would reasonably be expected to become subject to any criminal liability or sanction in connection with such contested items; and (d) such contest and any resultant failure to pay or discharge the claimed or assessed amount does not, and would not reasonably be expected to

 

(i) result in a Material Adverse Effect or (ii) involve a material risk of the sale, forfeiture or loss of, or the creation, existence or imposition of any Lien on, any part of the Project.

“ Contingency Line Item ” means the Line Item in each Construction Budget identified as “contingency” that is intended to cover the eventuality of unforeseen Project Costs for the relevant Plant.

“ Contractual Obligation ” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“ Controlled Group ” means the “controlled group of corporations” as that term is defined in Section 1563 of the Code of which the Loan Parties are a part from time to time.

“ Conversion Date ” has the meaning assigned to such term in the Senior Credit Agreement.

“ Conversion Date Certain ” means the earlier to occur of (i) the date that is twenty-two (22) months from the date of the first Borrowing (as defined in the Senior Credit Agreement) and (ii) March 15, 2008.

“ Corn Futures Advisory Agreements ” means, collectively, the Albion Corn Futures Advisory Agreement, the Bloomingburg Corn Futures Advisory Agreement and the Linden Corn Futures Advisory Agreement.

“ Corn Supply Agreements ” means, collectively, the Albion Corn Supply Agreement, the Bloomingburg Corn Supply Agreement and the Linden Corn Supply Agreement.

“ Covered Taxes ” has the meaning assigned to such term in Section 3.7 hereof.

“ DDG ” means dried distillers grains produced by the Loan Parties at the Project.

“ Default ” means any event or condition that, but for the giving of notice or the lapse of time, or both, would constitute an Event of Default.

“ Deferred Approvals ” shall have the meaning as set forth in Section 5.1(g) hereto.

“ Design Basis Letter Agreement ” means the letter agreement, dated as of December 2, 2005, between R. W. Beck, Inc. and Fagen, regarding “ASA OpCo Holdings Ethanol Project Nominal Design Basis Revision 2”.

“ Design Build Contracts ” means, collectively, the Albion Design Build Contract, the Bloomingburg Design Build Contract and the Linden Design Build Contract.

“ Design Builder ” means Fagen.

“ Distillers Grains ” means DDG, WDG, and any other form of distillers grain products (including syrup) marketed by any Loan Party from time to time.

 

“ Distillers Grains Marketing Agreements ” means, collectively, the Albion Distillers Grains Marketing Agreement, the Bloomingburg Distillers Grains Marketing Agreement and the Linden Distillers Grains Marketing Agreement.

“ Dividends ” means, with respect to any unit or other Equity Interest issued by any Person, (a) the retirement, redemption, purchase, or other acquisition for value of such unit or other Equity Interest by such Person, (b) the declaration or payment of any dividend or distribution on or with respect to such unit or other Equity Interest by such Person (including, without limitation, distributions to pay taxes payable by the holders of such stock as a result of taxable income attributed to such holders), and (c) with respect to Company only, any other payment by such Person with respect to such unit or other Equity Interest.

“ EBITDA ” means for any period, without duplication, the sum of the following for the Company and the Loan Parties on a consolidated basis, each calculated for such period: (a) Net Income (adjusted for and specifically excluding extraordinary gains or extraordinary losses and gains or losses from sales of assets, other than inventory sold in the ordinary course of business), minus (b) interest income, plus (c) interest expense, plus (d) charges against income for Taxes, plus (e) depreciation expenses, plus (f) amortization expenses, plus (g) Management Fees paid in accordance with the Management Services Agreement and the other fees payable pursuant to the Fee Letter, plus (h) all non-cash compensation expenses of the Company and the Loan Parties on a consolidated basis, plus (i) all non-recurring expenses related to the Transactions and the Related Transactions.

“ Electric Facilities Agreements ” means, collectively, the Albion Electric Facilities Agreement and the Bloomingburg Electric Facilities Agreement.

“ Electric Services Agreements ” means, collectively, the Albion Electric Services Agreement and the Bloomingburg Electric Services Agreement.

“ Environmental Affiliate ” means any Person, to the extent the Company or any Loan Party would reasonably be expected to have liability as a result of the Company or such Loan Party retaining, assuming, accepting or otherwise being subject to liability for Environmental Claims relating to such Person, whether the source of the Company’s or such Loan Party’s obligation is by contract or operation of Law.

“ Environmental Approvals ” means any Governmental Approvals required under applicable Environmental Laws.

“ Environmental Claim ” means any written notice, claim, demand or similar written communication by any Person alleging potential liability or requiring or demanding remedial or responsive measures (including potential liability for investigatory costs, cleanup, remediation and mitigation costs, governmental response costs, natural resources damages, property damages, personal injuries, fines or penalties) in each such case (x) either (i) in an aggregate total amount in excess of one hundred thousand Dollars ($100,000) or (ii) that has or would reasonably be expected to result in a Material Adverse Effect, and (y) arising out of, based on or resulting from (i) the presence, release or threatened release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by such Person, (ii) circumstances

 

forming the basis of any violation, or alleged violation, of any Environmental Laws or Environmental Approvals, or (iii) exposure to Materials of Environmental Concern.

“ Environmental Consultant ” means Natural Resource Group, Inc., or any replacement environmental consultant appointed by the Agent with the approval of the Agent and (so long as no Event of Default has occurred and is continuing) after consultation with the Company.

“ Environmental Indemnity Agreement ” means that certain Environmental Indemnity Agreement dated on or about the date hereof, by and among the Company, the Loan Parties and the Agent, for the benefit of the Purchasers.

“ Environmental Laws ” means all Laws applicable to the Project relating to pollution or protection of human health, safety or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including Laws relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise applicable to the Project relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern.

“ Environmental Site Assessment Report ” means, with respect to each Plant (excluding the Leased Premises), a Phase I environmental site assessment report prepared by an environmental consulting firm acceptable to the Agent, which report shall comply with ASTM standard 1527-00 and a Phase II environmental site assessment, acceptable to the Agent, addressing any recognized environmental conditions or other areas of concern identified in the relevant Phase I report if in the reasonable determination of the Agent, acting in consultation with the Environmental Consultant, a Phase II assessment is warranted.

“ Equity Interests ” means, with respect to any Person, all of the shares of Equity Interests of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of Equity Interests of (or other ownership of profit interests in) such Person, all of the securities convertible into or exchangeable for shares of Equity Interests of (or other ownership or profit interest in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination, in each such case including all voting rights and economic rights related thereto.

“ Equity Purchase ” shall have the meaning as set forth in Section 2.2(a) hereof.

“ Equity Purchase Request ” means a request executed by the Company and delivered to the Agent substantially the form of Exhibit N hereto.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, as the same may from time to time be amended, and the rules and regulations of any governmental agency or authority, as from time to time in effect, promulgated thereunder.

 

“ Ethanol Market Consultant ” means Muse, Stancil & Co., or any replacement ethanol market consultant appointed by the Agent with approval of the Agent and (so long as no Event of Default has occurred and is continuing) after consultation with the Company.

“ Ethanol Marketing Agreements ” means, collectively, the Albion Ethanol Marketing Agreement, the Bloomingburg Ethanol Marketing Agreement and the Linden Ethanol Marketing Agreement.

“ Event of Abandonment ” means any of the following shall have occurred: (i) the abandonment by the Company or any Loan Party of the development, construction, operation or maintenance of any Plant for a period of more than (x) sixty (60) consecutive days at any time prior to the Conversion Date or (y) ninety (90) consecutive days at any time after the Conversion Date, (ii) the suspension of all or substantially all of the Company’s or any Loan Party’s activities with respect to any Plant, other than as the result of a force majeure or Casualty Event, for a period of more than (x) sixty (60) consecutive days at any time prior to the Conversion Date or (y) ninety (90) consecutive days at any time after the Conversion Date, or (iii) any written acknowledgement by the Company or any Loan Party of a final decision to take any of the foregoing actions.

“ Event of Default ” means any of the events of default described in Section 8.1 hereof.

“ Event of Taking ” means any taking, exercise of rights of eminent domain, public improvement, inverse condemnation, condemnation or similar action of or proceeding by any Governmental Authority relating to any part of any Plant, the Project, any Equity Interests in Company or any Loan Party, or any other assets thereof.

“ Event of Total Loss ” means the occurrence of a Casualty Event affecting all or substantially all of any Plant, the Project or the assets of the Company or any Loan Party.

“ Excess Cash Flow ” means, at any date of determination, the amount equal to forty percent (40%) of the cash remaining in the Revenue Account (as defined in the Senior Credit Agreement) after the transfer required pursuant to priority tenth of Section 8.08(b) of the Senior Credit Agreement as in effect on the date hereof, minus the amount represented in priority twelfth of Section 8.08(b) of the Senior Credit Agreement as in effect on the date hereof.

“ Facility Funding Period ” means collectively, the Albion Facility Funding Period, the Bloomingburg Facility Funding Period and Linden Facility Funding Period.

“ Fagen ” means Fagen, Inc., a Minnesota corporation.

“ Fagen Engineering ” means Fagen Engineering, LLC, a Minnesota limited liability company.

“ Fee Letter ” has the meaning assigned to such term in Section 4.1(f).

“ Financial Model ” means the pro forma financial statements and projections of revenue and expenses and cash flows with respect to the Company and the Loan Parties and the Project for each of the calendar years 2006 through 2015, attached hereto as Schedule 1.1(e) , as the same may be updated and approved by the Agent from time to time in accordance with Section 7.1(v) hereof.

 

“ Financial Officer ” means, prior to Final Completion Date, the Interim Financial Manager, the Interim Operating Manager and the Interim Executive Manager of such Person and, after the Final Completion Date, the controller, treasurer or chief financial officer of such Person; provided , however , if at any time a chief executive officer, chief financial officer or chief operating officer is appointed for Company, then “Financial Officer” shall mean such chief executive officer, chief financial officer or chief operating officer so appointed, provided , further , if at any time a chief financial officer is appointed, then “Financial Officer” shall mean the chief financial officer that was appointed.

“ Final Completion ” means, with respect to each Plant, that each of the following conditions has been achieved to the satisfaction of the Agent:

(a) such Plant shall have achieved commercial operations, as certified by the Owner’s Engineer;

(b) each of Substantial Completion and Final Completion, as defined in the Design Build Contract for such Plant, shall have occurred;

(c) construction of such Plant shall have been completed and all costs related thereto shall have been fully paid;

(d) the Agent shall have received reasonably satisfactory evidence that there are no mechanic’s, workmen’s, materialmen’s or other similar Liens on any part of such Plant, such Plant’s Site, or other related Project assets relating to the work or services for such Plant provided by the Design Builder or any of its subcontractors, other than Liens that are subject to a Contest;

(e) the Agent and the Owner’s Engineer shall have received an updated survey for such Plant’s Site, reasonably satisfactory to the Agent;

(f) Owners Scope for such Plant has been completed to the reasonable satisfaction of the Owner’s Engineer;

(g) the Owner’s Engineer shall have confirmed that the final air emissions test for such Plant has been satisfactorily completed;

(h) the Agent shall have received the Final Completion Certificate for such Plant duly executed by the Company and the Owner’s Engineer;

(i) the Agent shall receive a final ALTA Survey of the Site for such Plant reflecting the “as-built” condition of such Plant, in form and substance satisfactory to each Purchaser and the Title Insurance Company, dated on or about the Final Completion Date for each site showing no encroachment or encumbrance other than those acceptable to the Purchaser and showing compliance with all setback requirements;

 

(j) the Agent shall have received a date down endorsement to the Title Insurance Policy indicating that there has been no change in the state of or title to the Plant’s Site, which endorsement shall have the effect of updating the date of the Title Insurance Policy for such Plant as of the Final Completion Date for such Plant’s Site; and

(k) the Agent shall have received a copy of the initial Operating Budget for the Project and for such Plant, in form and substance reasonably satisfactory to the Required Purchasers.

“ Final Completion Certificate ” means a certificate of the Owner’s Engineer and the Company, reasonably satisfactory to the Required Purchasers, in substantially the form of Exhibit F , confirming that Final Completion has occurred.

“ Final Completion Date ” means, with respect to each Plant, the date on which such Plant has achieved Final Completion, as certified by the Company and the Owner’s Engineer.

“ Financial Statement Schedule ” has the meaning assigned to such term in Section 5.1(c)(i) hereof.

“ Financing Statements ” has the meaning assigned to such term in Section 5.1(c)(i) hereof.

“ First National Bank of Omaha ” shall have the meaning as set forth in Senior Credit Agreement.

“ Fiscal Quarter ” means any quarter of a Fiscal Year.

“ Fiscal Year ” or “fiscal year” means each twelve month period ending on December 31 of each year.

“ Fixed Charges ” means, for any period, and each calculated for such period (without duplication) on a consolidated basis, (a) cash interest expense of the Company and the Loan Parties; plus (b) scheduled payments of principal with respect to all Indebtedness of the Company and the Loan Parties; plus (c) cash payment of income or franchise taxes included in the determination of Net Income, excluding any provision for deferred taxes; plus (d) payment of deferred taxes accrued in any prior period; plus (e) the Management Fees paid in accordance with the Management Services Agreement and the fees paid in accordance with the Fee Letter.

“ Fixed Charge Coverage Ratio ” means for a particular measurement period, the ratio of (a) EBITDA minus Capital Expenditures (exclusive of Capital Expenditures financed during such period under Capitalized Leases or other Indebtedness), to (b) Fixed Charges, in each case of the Company and the Loan Parties on a consolidated basis during such measurement period.

“ Funding Notice ” has the meaning assigned to such term in Section 2.1(e) hereof.

“ GAAP ” has the meaning assigned to such term in Section 1.2 hereof.

 

“ Gas Risk Management Agreements ” means, collectively, the Albion Gas Risk Management Agreement, the Bloomingburg Gas Risk Management Agreement, and the Linden Gas Risk Management Agreement.

“ Gas Supply Agreements ” means, collectively, the Albion Gas Supply Agreement, the Bloomingburg Gas Supply Agreement and the Linden Gas Supply Agreement.

“ Gas Transportation Agreements ” means, collectively, the Albion Gas Transportation Agreement, the Bloomingburg Gas Transportation Agreement and the Linden Gas Transportation Agreement.

“ Governmental Approval ” means any authorization, consent, approval, license, lease, ruling, permit, certificate, exemption, filing for registration by or with any Governmental Authority.

“ Governmental Authorities ” means any federal, state or municipal court or other governmental department, commission, board, bureau, agency or instrumentality, governmental or quasi-governmental, domestic or foreign or any entity exercising legislative, executive, judicial or regulatory functions of or pertaining to government.

“ Grain Facility Leases ” means, collectively, the Albion Grain Facility Lease, the Bloomingburg Grain Facility Lease and the Linden Grain Facility Lease.

“ Guaranteed Final Completion Date ” means, with respect to any Plant, the “Guaranteed Final Completion Date,” as defined in the Design Build Contract for such Plant.

“ Guaranteed Substantial Completion Date ” means, with respect to any Plant, the “Guaranteed Substantial Completion Date,” as defined in the Design Build Contract for such Plant.

“ Guaranty ” means any guaranty of the payment or performance of any Indebtedness or other obligation and any other arrangement whereby credit is extended to one obligor on the basis of any promise of another Person, whether that promise is expressed in terms of an obligation to pay the Indebtedness of such obligor, or to purchase an obligation owed by such obligor, or to maintain the capital, working capital, solvency or general financial condition of such obligor, whether or not any such arrangement is reflected on the balance sheet of such other Person, firm or corporation, or referred to in a footnote thereto, but shall not include endorsements of items for collection in the ordinary course of business. For the purpose of all computations made under this Agreement, the amount of a Guaranty in respect of any obligation shall be deemed to be equal to the maximum aggregate amount of such obligation or, if the Guaranty is limited to less than the full amount of such obligation, the maximum aggregate potential liability under the terms of the Guaranty.

“ ICM ” means ICM, Inc., a Kansas corporation.

“ ICM Licenses ” means, collectively, the Albion ICM License, the Bloomingburg ICM License and the Linden ICM License.

 

“ Indebtedness ” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for or in respect of moneys borrowed or raised, whether or not for cash by whatever means (including acceptances, deposits, discounting, letters of credit, factoring, and any other form of financing which is recognized in accordance with GAAP in such Person’s financial statements as being in the nature of a borrowing or is treated as “off-balance sheet” financing);

(b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(c) all obligations of such Person for the deferred purchase price of property or services (other than (i) with respect to the Company or any Loan Party, trade accounts payable by the Company or such Loan Party under any Cargill Goods and Services Agreement within thirty (30) days of being incurred arising in the ordinary course of the Company or such Loan Party’s business and not past due for more than thirty (30) days after the date on which such trade payable was created or (ii) any other trade accounts payable, within sixty (60) days of being incurred arising in the ordinary course of such Person’s business and not past due for more than sixty (60) days after the date on which such trade payable was created);

(d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property or are otherwise limited in recourse);

(e) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(f) all obligations under any Capitalized Lease;

(g) net obligations of such Person under any Swap Contract (as defined in the Senior Credit Agreement);

(h) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of redeemable preferred interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid Dividends; and

(i) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract (as defined in the Senior Credit Agreement) on any date shall be

 

deemed to be the Swap Termination Value (as defined in the Senior Credit Agreement) thereof as of such date.

“ Independent Engineer ” means RW Beck, Inc.

“ Initial Unit Issuance ” shall have the meaning set forth in Section 2.2 hereof.

“ Insurance Consultant ” means Moore-McNeil, LLC, or any replacement insurance consultant appointed by the Agent with the prior written consent of the Required Purchasers and (so long as no Event of Default has occurred and is continuing) after consultation with the Company.

“ Intercreditor Agreement ” shall have the meaning assigned to such term in Section 4.1(d) hereof.

“ Interest Rate Protection Agreement ” means any interest rate swap, interest rate cap, interest rate collar or other interest rate hedging agreement or interest rate protection arrangement.

“ Investment ” means, as applied to any Person, the amount paid or agreed to be paid or loaned, advanced or contributed to other Persons, and in any event shall include (a) any direct or indirect purchase or other acquisition of any notes, obligations, instruments, stock, securities or ownership interest (including partnership interests and joint venture interests) and (b) any capital contribution to any other Person.

“ Knowledge ” means the actual knowledge, after due inquiry, of any authorized officer, Financial Officer, chair, president, chief executive officer, chief operating officer, secretary, manager, interim operating manager, interim financial manager or interim executive manager of Company or any Loan Party, as applicable, including any Person holding any such office on an interim basis, and any other officer of any Company or Loan Party identified as a Named Officer (as defined in the respective Operating Agreements, as the case may be) in accordance with the terms of the respective Operating Agreements, as the case may be.

“ Laminar ” means Laminar Direct Capital L.P., a Delaware limited partnership.

“ Laws ” means all U.S. and foreign federal, state or local statutes, laws, rules, regulations, ordinances, codes, policies, rules of common law, and the like, now or hereafter in effect, including any judicial or administrative interpretations thereof, and any judicial or administrative orders, consents, decrees or judgments.

“ Leased Premises ” means, with respect to each Grain Facility Lease, the Premises as defined in such Grain Facility Lease.

“ Lien ” means any security interest, pledge, bailment, mortgage, hypothecation, deed of trust, conditional sales and title retention agreement (including any lease in the nature thereof), charge, encumbrance or other similar arrangement or interest in real or personal property, now owned or hereafter acquired, whether such interest is based on common law, statute or contract.

 

“ Linden ” means ASA Linden, LLC, a Delaware limited liability company.

“ Linden Agreement for Water Services ” means the agreement for water services to be entered into between Linden and the applicable third party.

“ Linden Construction Account ” has the meaning set forth in the Senior Credit Agreement.

“ Linden Construction Budget ” means the budget attached hereto as Schedule 1.1(c) that sets forth all categories of costs and expenses required in connection with the development, construction, start-up, and testing of the Linden Plant, including all construction and non-construction costs, all costs under the Linden Design Build Contract, all interest, taxes and other carrying costs related to the Linden Notes and the Linden Construction Loans (as defined in the Senior Credit Agreement), and the costs related to the construction of the facilities described under the Project Documents relating to the Linden Plant, as updated from time to time with the prior written consent of the Agent or otherwise in accordance with Section 7.2(z) hereof.

“ Linden Construction Withdrawal Certificate ” means a certificate in substantially the form of Exhibit I.

“ Linden Corn Futures Advisory Agreement ” means the Futures Advisory Agreement, dated as of the Closing Date, between Cargill Commodity Services, Inc., a Delaware corporation, doing business as Cargill Direct, and Linden.

“ Linden Corn Supply Agreement ” means the Corn Supply Agreement, dated as of the Closing Date, between Cargill and Linden.

“ Linden Design Build Contract ” means the Lump-Sum Design Build Agreement, dated as of the Closing Date, between the Design Builder and Linden for construction of the Linden Plant (excluding the Leased Premises), as clarified pursuant to the Design Basis Letter Agreement.

“ Linden Distillers Grains Marketing Agreement ” means the Distillers Grains Marketing Agreement, dated as of the Closing Date, between Cargill and Linden.

“ Linden Electric Facilities and Services Agreement ” means the electric facilities agreement to be entered into between Albion and Tipmont REMC.

“ Linden Ethanol Marketing Agreement ” means the Ethanol Marketing Agreement, dated as of the Closing Date, between Cargill, acting through its Sweeteners North America business unit, and Linden.

“ Linden Facility Cap ” means $20,678,768.

“ Linden Facility Funding Period ” means the period commencing on March 1, 2006 and continuing until October 31, 2006.

 

“ Linden Gas Risk Management Agreement ” means the Gas Risk Management Agreement, dated as of the Closing Date, among Cargill Commodity Services Inc., a Delaware corporation, doing business as Cargill Energy Services, Linden and Cargill.

“ Linden Gas Supply Agreement ” means the Base Contract for Sale and Purchase of Natural Gas, dated as of the Closing Date, between Cargill and Linden, as supplemented by the Cargill, Incorporated Special Provisions NAESB, of the same date between the same parties.

“ Linden Gas Transportation Agreement ” means the Gas Service Agreement to be entered into between Vectren Energy of Indiana, Inc., a/k/a Indiana Gas Company, and Linden.

“ Linden Grain Facility Lease ” means the Lease Agreement, dated as of the Closing Date, between Cargill and Linden.

“ Linden ICM License ” means the License Agreement, dated as of the Closing Date, between ICM and Linden.

“ Linden LLC Agreement ” means the Limited Liability Company Agreement of ASA Linden, LLC, dated as of the Closing Date executed by ASA Holdings and the Independent Member of Linden.

“ Linden Master Agreement ” means the Master Agreement, dated as of the Closing Date, among Cargill, Cargill Commodity Services Inc., a Delaware corporation, ASA Holdings and Linden.

“ Linden Note ” means, collectively, each of the Linden Notes issued pursuant to Section 2.1(c) hereof.

“ Linden Operating Agreement ” means the Plant Operation Agreement, dated as of the Closing Date, between Linden and UBEM.

“ Linden Plant ” means the dry grind ethanol production facility located near Linden, Indiana, with a nameplate capacity of 100 million gallons-per-year, including the Site on which such facility is located, and all buildings, structures, improvements, easements and other property related thereto.

“ Linden Project Costs ” means the following costs and expenses incurred by Linden in connection with the Linden Plant prior to the Final Completion Date for the Linden Plant and set forth in the Linden Construction Budget or otherwise approved in writing by the Agent (in consultation with the Owner’s Engineer):

 

(i)

costs incurred by Linden under the Linden Design Build Contract, and other costs directly related to the acquisition, site preparation, design, engineering, construction, installation, start-up, and testing of the Linden Plant;

 

(ii)

fees and expenses incurred by or on behalf of Linden and allocated to the Linden Plant in connection with the development of the Project and the consummation of

 

the transactions contemplated by this Agreement, including financial, accounting, legal, surveying and consulting fees, and the costs of preliminary engineering;

 

(iii)

interest and Fees (as defined in the Senior Credit Agreement) on the Linden Construction Loans (as defined in the Senior Credit Agreement) until the Commercial Operation Date (as defined in the Senior Credit Agreement) for the Linden Plant;

 

(iv)

financing fees and expenses in connection with the Loans (as defined in the Senior Credit Agreement) and the fees, costs and expenses of the Agents’ counsel, any Interest Rate Protection Provider’s counsel and the Consultants that are allocated to the Linden Plant;

 

(v)

insurance premiums with respect to the Title Insurance Policy for the Linden Plant and the insurance for the Linden Plant required under the Senior Credit Agreement);

 

(vi)

interest and all fees on the Linden Notes until the Commercial Operations Date for the Linden Plant;

 

(vii)

financing fees and expenses in connection with the Linden Notes and the fees, costs and expenses of the Agent’s counsel and the Consultants that are allocated to the Linden Plant;

 

(viii)

costs of corn and natural gas utilized for commissioning of, Performance Tests for, and operation of, the Linden Plant prior to the Commercial Operation Date; and

 

(ix)

all other costs and expenses included in the Linden Construction Budget that are approved by Agent.

“ Linden Rail Use Agreements ” means, collectively, (i) the rail use agreement to be entered into between Linden and Cargill and (ii) the rail use agreement to be entered into between Linden and CSX Transportation, Inc.

“ Linden Railroad Easement Agreement ” means the Railroad Easement Agreement, dated as on or about the date hereof, between Linden and Cargill.

“ Linden Well Easement ” means the easement to be granted to Linden for a well on terms and conditions reasonably satisfactory to the Agent.

“ Line Item ” means a line item of cost or expense set forth in any Construction Budget.

“ Litigation Schedule ” has the meaning assigned to such term in Section 5.1(j) hereof.

“ Loan Parties ” means ASA Holdings, ASA Albion, ASA Bloomingburg and ASA Linden.

 

“ Loan Parties’ Guaranty ” has the meaning assigned to such term in Section 4.1(c) hereof.

“ Maintenance Capital Expenses ” means all expenditures by the Company and the Loan Parties for regularly scheduled (or reasonably anticipated) major maintenance of the Project in accordance with the Operating Budgets then in effect, Prudent Ethanol Operating Practice and vendor and supplier requirements constituting major maintenance (including teardowns, overhauls, capital improvements, replacements and/or refurbishments of major components of the Project).

“ Manage ” and “ Management ” means generation, production, handling, distribution, processing, use, storage, treatment, operation, transportation, recycling, reuse and/or disposal, as those terms are defined in CERCLA, RCRA and other Environmental Laws (including as those terms are further defined, construed, or otherwise used in rules, regulations, standards, guidelines and publications issued pursuant to, or otherwise in implementation of, such Environmental Laws).

“ Management Fee ” shall mean the management fees contemplated by the Management Services Agreement.

“ Management Services Agreement ” means the Management and Administrative Services Agreement dated as of the Closing Date by and between the Company and ASA Holdings.

“ Master Agreements ” means, collectively, the Albion Master Agreement, the Bloomingburg Master Agreement and the Linden Master Agreement.

“ Material Adverse Effect ” means (i) a material adverse effect on the business, properties, assets, liabilities, condition (financial or otherwise), prospects or operations of the Company or any of the Loan Parties, any Plant or any Project, (ii) any event, development or circumstance that has had or would reasonably be expected to have a material adverse effect on the ability of the Company, any Loan Party or any Project Party to perform its obligations under any Transaction Document, the Senior Credit Agreement or any Project Document to which it is a party, or (iii) any event, development or circumstance that has had or would reasonably be expected to have a material adverse effect on the rights or remedies of any Purchaser under any Purchase Document.

“ Materials of Environmental Concern ” means chemicals, pollutants, contaminants, wastes, toxic substances and hazardous substances, any toxic mold, radon gas or other naturally occurring toxic or hazardous substance or organism and any material that is regulated in any way, or for which liability is imposed, pursuant to an Environmental Law.

“ Monthly Progress Report ” means, with respect to each Plant, a “Monthly Progress Report” as defined in Section 3.8 of the Design Build Contract for such Plant.

“ Moody’s ” has the meaning assigned to such term in Section 7.2(i)(ii) hereof.

“ Multiemployer Plan ” means a multiemployer plan (within the meaning of Section 3(37) of ERISA) that is maintained for the benefit of the employees of the Company or any Loan Parties or any member of the Controlled Group.

 

“ Necessary Project Approvals ” shall have the meaning as set forth in Section 5.1(g) hereto.

“ Negative Pledge Agreement ” shall have the meaning as set forth in Section 4.1(c) hereto.

“ Net Income ” means, for any period, the net income (or loss) of the Company and the Loan Parties on a consolidated basis for such period, after deduction of all expenses, taxes and other proper charges, determined in accordance with GAAP, for such period taken as a single accounting period.

“ Non-Appealable ” means, with respect to any specified time period allowing an appeal of any ruling under any constitutional provision, Law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding or injunction that such specified time period has elapsed without an appeal having been brought.

“ Note Funding Date ” means the date on which any Purchaser makes an advance under any Note pursuant to Section 2.1 .

“ Notes ” means, collectively, the Albion Notes, the Bloomingburg Notes and the Linden Notes, in each case, in the form attached hereto as Exhibit A-1 .

“ Notes Payment Default ” means the occurrence of an Event of Default as a result of the failure to pay interest or principal on Notes beyond any applicable cure period.

“ Notice of Suspension ” means the date that Agent sends notice to the Company indicating that Company shall no longer be able to direct the Loan Parties to withdraw or otherwise direct the Loan Parties to deal with any funds deposited in or credited to the Construction Accounts at any time during the occurrence and continuance of an Event of Default and the Company shall cause the Loan Parties to comply with such request.

“ Notice to Proceed ” means, with respect to each Plant, a “Notice to Proceed” as defined in Section 6.3 of, and issued in accordance with the terms of, the Design Build Contract relating to such Plant.

“ Operating Agreements ” means, collectively, the Company LLC Agreement, the ASA Holdings LLC Agreement, the Albion LLC Agreement, the Bloomingburg LLC Agreement and the Linden LLC Agreement.

“ Operation and Maintenance Expenses ” has the meaning set forth in the Senior Credit Agreement.

“ Operating Budget ” shall have the meaning as set forth in Section 7.1(e) hereof.

“ Operating Budget Category ” has the meaning set forth in the Senior Credit Agreement.

“ Organizational Schedule ” has the meaning assigned to such term in Section 5.1(a) hereof.

 

“ Other Taxes ” has the meaning assigned to such term in Section 3.7 hereof.

“ Owner’s Engineer ” means HDR Engineering, Inc., or any replacement owner’s engineer appointed by the Agent with the prior written consent of the Required Purchasers and (so long as no Event of Default has occurred and is continuing) after consultation with the Company.

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

“ Owners Scope ” means, with respect to any Plant, all work relating to the construction of such Plant that is the responsibility of Owner (as defined in such Design Build Contract for such Plant) or any of Owner’s contractors (other than the Design Builder), including work set forth in Section 4.6 and Exhibit C of the Design Build Contract for such Plant.

“ Payment Bond ” means each payment bond obtained by the Design Builder pursuant to Section 7.4.2 of each Design Build Contract.

“ PBGC ” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA, or any other governmental agency, department or instrumentality succeeding to the functions thereof.

“ Performance Bond ” means each performance bond obtained by the Design Builder pursuant to Section 7.4.1 of each Design Build Contract.

“ Performance Test ” means, with respect to each Plant, “Performance Test” as defined in Section 7.2.1 of the Design Build Contract for such Plant.

“ Performance Test Report ” has the meaning assigned to such term in Section 7.1(x) hereof.

“ Permitted Liens ” has the meaning assigned to such term Section 7.2(b) hereof.

“ Permitted Tax Distributions ” means, with respect to any Person, any Dividends to any holder of such Person’s stock or other equity securities to permit such holder to pay federal income taxes and all relevant state and local income taxes at a rate equal to the highest marginal applicable tax rate for the applicable tax year, however denominated (together with any interest, penalties, additions to tax, or additional amounts with respect thereto) imposed as a result of taxable income attributed to such holder as a partner of such Person under federal, state, and local income tax laws, determined on a basis that combines those liabilities arising out of the net effect of the income, gains, deductions, losses, and credits of such Person and attributable to it in proportion and to the extent in which such holder holds stock or other equity securities of such Person.

“ Person ” means any individual, partnership, limited partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, unincorporated organization or governmental entity or department, agency or political subdivision thereof.

 

“ Plan ” means any employee benefit plan (within the meaning of Section 3(3) of ERISA), other than a Multiemployer Plan, established or maintained by any of the Company or the Loan Parties or any member of the Controlled Group.

“ Plants ” means, collectively, the Albion Plant, the Bloomingburg Plant and the Linden Plant.

“ Pledge Agreement ” has the meaning assigned to such term in Section 4.1(c) hereof.

“ Pollutant ” means any “hazardous substance” and any “pollutant or contaminant” as those terms are defined in CERCLA; any “hazardous waste” as that term is defined in RCRA; any “hazardous material” as that term is defined in the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq .), as amended (including as those terms are further defined, construed, or otherwise used in rules, regulations, standards, guidelines and publications issued pursuant to, or otherwise in implementation of, said Environmental Laws); and including without limitation any petroleum product or byproduct, solvent, flammable or explosive material, radioactive material, asbestos, polychlorinated biphenyls (PCBs), dioxins, dibenzofurans, heavy metals, and radon gas; and including any other substance or material that is reasonably determined to present a threat, hazard or risk to human health or the environment.

“ Products ” means ethanol, Distillers Grains, carbon dioxide, and any other co-product or by-product produced in connection with the production of ethanol at the Plants.

“ Project ” means, at all times, each Plant and all auxiliary and other facilities constructed or to be constructed by or on behalf of any Loan Parties pursuant to the Project Documents or otherwise, together with all fixtures and improvements thereto and each Site and all other real property, easements and rights-of-way held by or on behalf of any Loan Parties and all rights to use easements and rights-of-way of others.

“ Project Costs ” means, collectively, the Albion Project Costs, the Bloomingburg Project Costs and the Linden Project Costs.

“ Project Documents ” means:

(a) the Design Build Contracts;

(b) the Cargill Goods and Services Agreements;

(c) the Electric Facilities Agreements;

(d) the Electric Services Agreements;

(e) the ICM Licenses;

(f) the Linden Electric Facilities and Services Agreement;

(g) the Gas Transportation Agreements;

 

(h) the Performance Bonds;

(i) the Payment Bonds;

(j) the Operating Agreements and any Replacement Operating Agreement;

(k) the Grain Facility Leases;

(l) the Railroad Easement Agreement;

(m) the Agreements for Water Services;

(n) the Rail Use Agreements;

(o) the Albion Wastewater Easement;

(p) the Linden Well Eastment;

(q) other project documents to be mutually agreed by the Company, and Agent after execution by the applicable Loan Party and the applicable Project Party;

(r) each Additional Material Project Document; and

(s) any replacement agreement for any of such agreements.

“ Project Party ” means each Person (other than the Company and the Loan Parties) who is a party to a Project Document.

“ Properties and Facilities ” has the meaning assigned to such term in Section 5.1(q) hereof.

“ Proprietary Rights ” means all patents, trademarks, trade names, service marks, copyrights, inventions, production methods, licenses, formulas, know-how and trade secrets, regardless of whether such are registered with any Governmental Authorities, including applications therefor.

“ Prudent Ethanol Operating Practice ” means those reasonable practices, methods and acts that (i) are commonly used in the regions where the Plants are located to manage, operate and maintain ethanol production, distribution, equipment and associated facilities of the size and type that comprise the Project safely, reliably, and efficiently and in compliance with applicable laws, manufacturers’ warranties and manufacturers’ recommendations, and (ii) in the exercise of reasonable judgment, skill, diligence, foresight and care are expected of an ethanol plant operator, in order to efficiently accomplish the desired result consistent with safety standards, applicable laws, manufacturers’ warranties, manufacturers’ recommendations and, in the case of the Project, the Project Documents. Prudent Ethanol Operating Practice does not necessarily mean one particular practice, method, equipment specifications or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.

 

“ Purchase Documents ” means this Agreement, the Notes, the Security Documents, the Company LLC Agreement, the Fee Letter and all other agreements, instruments and documents delivered in connection therewith as any or all of the foregoing may be supplemented or amended from time to time.

“ Purchaser ” has the meaning assigned to such term in the preamble hereof and in Section 6.2 hereof.

“ Rail Use Agreements ” means the Albion Rail Use Agreements, the Bloomingburg Rail Use Agreements and the Linden Rail Use Agreements.

“ Railroad Easement Agreements ” means the Albion Railroad Easement Agreement, the Bloomingburg Railroad Easement Agreement and the Linden Railroad Easement Agreement.

“ RCRA ” means the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq .), as amended, and all rules, regulations, standards, guidelines, and publications issued thereunder.

“ Related Transactions ” means the transactions contemplated under the Senior Credit Documents and the Project Documents.

“ Removal ,” “ Remedial ” and “ Response ” actions mean the types of activities covered by CERCLA, RCRA, and other comparable Environmental Laws, whether the activities are those which might be taken by a Governmental Authority or those which a Governmental Authority or any other Person might seek to require of waste generators, handlers, distributors, processors, users, storers, treaters, owners, operators, transporters, recyclers, reusers, disposers, or other Persons under “removal,” “remedial,” or other “response” actions.

“ Replacement Operating Agreement ” means an agreement in form and substance reasonably satisfactory to the Agent, between a Loan Party and an operator acceptable to the Agent, for the operation of a Plant (excluding the Leased Premises).

“ Reportable Event ” means any of the events which are reportable under Section 4043 of ERISA and the regulations promulgated thereunder, other than an occurrence for which the thirty (30) day notice contained in 29 C.F.R. § 2615.3(a) is waived.

“ Required Purchasers ” means, (i) at any time during which ACAS, Laminar and US Renewable, collectively, own 70% or more of the outstanding principal amount of the Notes, Purchasers holding a pro rata percentage of the outstanding principal amount of the Notes aggregating at least 70% at such time and (ii) at any time during which ACAS, Laminar and US Renewable, collectively, own less than 70% of the outstanding principal amount of the Notes, Purchasers holding a pro rata percentage of the outstanding principal amount of the Notes aggregating at least 51% at such time.

“ Right of First Offer and Refusal Agreement ” means the Right of First Offer and Refusal Agreement, dated on or about the date hereof, among the Loan Parties, the Senior Agent, the Senior Lenders, the Agent and the Purchasers.

 

“ SEC ” means the Securities and Exchange Commission and any governmental body or agency succeeding to the functions thereof.

“ Securities ” has the meaning assigned to such term in Section 2.3 hereof.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Security Documents ” means the Pledge Agreement, the Loan Parties’ Guaranty, the Negative Pledge Agreement, the Financing Statement filed in connection with such Pledge Agreement and the Environmental Indemnity Agreement.

“ Senior Agent ” means WestLB AG, New York Branch, as administrative agent under the Senior Credit Agreement, and its successors and assigns acting in such capacity.

“ Senior Credit Agreement ” means that certain Credit Agreement dated as of the date hereof, by and among the Loan Parties, Senior Agent, Senior Lenders and certain other parties from time to time party thereto, as such may be amended, restated, supplemented or otherwise modified from time to time as permitted under the Intercreditor Agreement.

“ Senior Credit Documents ” means the Senior Credit Agreement, the Senior Notes, the Right of First Offer and Refusal Agreement, and all documents, instruments, certificates and agreements contemplated thereby or executed in connection thereunder.

“ Senior Lender ” means, collectively, the lenders from time to time party to the Senior Credit Agreement and their successors and assigns.

“ Senior Notes ” means the Construction Notes and Term Notes (each as defined in the Senior Credit Agreement) executed by the Loan Parties and payable to Senior Lender in the original principal amount of $275,000,000, and all renewals, extensions, restatements, substitutions and replacements thereto in accordance with the terms of the Intercreditor Agreement.

“ Site ” means, with respect to each Plant, those certain parcels described on Schedule 1.1(d) with respect to such Plant.

“ Subsequent Closing ” shall have the meaning as set forth in Section 2.4 hereof.

“ Subsequent Closing Date ” shall have the meaning as set forth in Section 2.4 hereof.

“ Subsidiary ” means, with respect to any corporation or limited liability company, any other corporation or limited liability company of which the outstanding Equity Interests or equity interests possessing a majority of voting power in the election of directors or managers, as applicable, (otherwise than as the result of a default) is owned or controlled by such corporation directly or indirectly through one or more intermediaries.

“ Substantial Completion ” with respect to each Plant, has the meaning provided in the relevant Design Build Contract.

 

“ Taxes ” has the meaning assigned to such term in Section 3.7 hereof.

“ Title Continuation ” means a written notice issued by the Title Insurance Company (including their local title insurance abstractors) confirming the status of title as set forth in the Title Insurance Policy, which indicates that, since the last preceding Subsequent Closing Date (or if there has been no such last preceding Subsequent Closing Date, the date hereof), there has been no change in the state of title to the Premise and no Liens or survey exceptions (in the case of any updated or “as-built” survey that has been issued) not theretofore approved by the Required Purchasers, which written notice shall contain no recorded mechanic’s liens except as approved by the Required Purchasers or as otherwise subject to a Contest.

“ Title Insurance Company ” means First American Title Company or such other title insurance company or companies satisfactory to the Agent.

“ Title Insurance Policy ” means the paid title insurance policy (the “ Title Insurance Policy ”), in the aggregate amount equal to two hundred seventy-five million Dollars ($275,000,000) in favor of the applicable Loan Party, containing such endorsements as reasonably requested by Agent (with co-insurance or reinsurance in such amounts and with such title insurance companies as may be reasonably required and approved by the Agent), containing no exception for mechanics’ or materialmen’s Liens and no other exceptions (printed or otherwise) other than those reasonably approved by the Agent.

“ Transaction Documents ” has the meaning assigned to such term in Section 5.1(f) hereof.

“ Transactions ” means the incurrence of debt and the issuance of securities in connection therewith, as contemplated by this Agreement, the Notes and all other agreements contemplated hereby and thereby whether on the Closing Date, any Subsequent Closing Date or Unit Purchase Date.

“ UBEM ” means United Bio Energy Management, LLC, a Kansas limited liability company.

“ Unfunded Portion of the Notes ” means the sum of (i) the Albion Facility Cap, minus the aggregate principal amount of the Albion Notes, plus (ii) the Bloomingburg Facility Cap, minus the aggregate principal amount of the Bloomingburg Notes, plus (iii) the Linden Facility Cap, minus the aggregate principal amount of the Linden Notes.

“ United States Person ” means a “United States Person” as defined in Section 7701(a)(30) of the Code.

“ Units ” means, collectively, the Class A Units and the Class B Units of the Company.

“ Unit Issuance ” shall have the meaning as set forth in the preamble hereto.

“ Unit Purchase Cap ” has the meaning assigned to such term in Section 2.2 hereof.

“ Unit Purchase Date ” means the date on which any Purchaser makes an advance with respect to any Class A Units of the Company pursuant to Section 2.3 hereof.

 

“ US Renewable ” means USRG ASA, LLC, a Delaware limited liability company.

“ UST ” means an underground storage tank, including as that term is defined, construed and otherwise used in RCRA and in rules, regulations, standards, guidelines and publications issued pursuant to RCRA and comparable state and local laws.

“ WDG ” means wet distillers grains produced by the Loan Parties at the Plants.

“ Work Schedule ” means, with respect to each Plant, a “Work Schedule” as defined in Section 6.1 of the Design Build Contract for such Plant that is satisfactory to the Owner’s Engineer.

1.2 Accounting Principles . The character or amount of any asset, liability, capital account or reserve and of any item of income or expense to be determined, and any consolidation or other accounting computation to be made, and the construction of any definition containing a financial term, pursuant to this Agreement shall be determined or made in accordance with generally accepted accounting principles in the United States of America consistently applied (“ GAAP ”), unless such principles are inconsistent with the express requirements of this Agreement.

1.3 Other Definitional Provisions; Construction . Whenever the context so requires, neuter gender includes the masculine and feminine, the singular number includes the plural and vice versa. The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not in any particular provision of this Agreement, and references to section, article, annex, schedule, exhibit and like references are references to this Agreement unless otherwise specified. A Default or Event of Default shall “continue” or be “continuing” until such Default or Event of Default has been cured or waived by Agent and Required Purchasers. References in this Agreement to any Persons shall include such Persons’ successors and permitted assigns. The words “including,” “includes” and “include” shall be deemed to be followed in each instance by the words “without limitation”. Other terms contained in this Agreement (which are not otherwise specifically defined herein) shall have meanings provided in Article 9 of the Maryland Uniform Commercial Code on the date hereof to the extent the same are used or defined therein. References to the Senior Credit Agreement shall mean the Senior Credit Agreement as in effect from time to time but without giving effect to any amendments or modifications thereof which have not been consented to by the Agent and the Required Purchasers pursuant to Section 7.2(bb).

SECTION 2

ISSUE AND SALE OF SECURITIES

2.1 Authorization and Issuance of the Notes; Proceeds of Notes; Notices .

(a) Albion Notes . Subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Section 4.1 hereof, on the Closing Date, the Purchasers agree to purchase notes of Company due February 6, 2015 to be substantially in the form of the note attached hereto as Exhibit A-2 (including any notes issued in substitution therefor pursuant to Sections 6.3 and 6.4 hereof, each such note, an “ Albion Note ”) and the

 

Company agrees to issue Albion Notes in an aggregate amount equal to the Albion Facility Cap; provided, that, the Purchasers further agree, that advances under the Albion Notes shall be made, subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Sections 4.1 and 4.2 hereof, during the Albion Facility Funding Period, but in no event more frequently than once each calendar month, in each case, in an amount equal to the amount of incurred (or due and payable in the next thirty (30) days as evidenced by documentation reasonably acceptable to Agent) but previously unfinanced Albion Project Costs but in no event shall the advances made by Purchasers under the Albion Notes exceed the Albion Facility Cap. The Purchasers have duly authorized the issuance and sale of all such Albion Notes. The amount of the Albion Notes repaid or prepaid from time to time may not be reborrowed.

(b) Bloomingburg Notes . Subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Section 4.1 hereof, on the Closing Date, the Purchasers agree to purchase notes of Company due February 6, 2015 to be substantially in the form of the note attached hereto as Exhibit A-2 (including any notes issued in substitution therefor pursuant Sections 6.3 and 6.4 hereof, each such note, a “ Bloomingburg Note ”) and the Company agrees to issue Bloomingburg Notes in an aggregate amount equal to the Bloomingburg Facility Cap; provided, that, the Purchasers further agree, that advances under the Bloomingburg Notes shall be made, subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Sections 4.1 and 4.2 hereof, during the Bloomingburg Facility Funding Period, but in no event more frequently than once each calendar month, in each case, in an amount equal to the amount of incurred (or due and payable in the next thirty (30) days as evidenced by documentation reasonably acceptable to Agent) but previously unfinanced Bloomingburg Project Costs but in no event shall the advances made by Purchasers under the Bloomingburg Notes exceed the Bloomingburg Facility Cap. The Purchasers have duly authorized the issuance and sale of all such Bloomingburg Notes. The amount of the Bloomingburg Notes repaid or prepaid from time to time may not be reborrowed.

(c) Linden Notes . Subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Section 4.1 hereof, on the Closing Date, the Purchasers agree to purchase notes of Company due February 6, 2015 to be substantially in the form of the note attached hereto as Exhibit A-2 (including any notes issued in substitution therefor pursuant Section 6.3 and 6.4 hereof, each such note, a “ Linden Note ”) and the Company agrees to issue Linden Notes in an aggregate amount equal to the Linden Facility Cap; provided, that the Purchasers further agree, that advances under the Linden Notes shall be made, subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Section 4.1 and 4.2 hereof, during the Linden Facility Funding Period, but in no event more frequently than once each calendar month, in each case, in an amount equal to the amount of incurred (or due and payable in the next thirty (30) days as evidenced by documentation reasonably acceptable to Agent) but previously unfinanced Linden Project Costs but in no event shall the advances made by Purchasers under the Linden Notes exceed the Linden Facility Cap. The Purchasers have duly authorized the issuance and sale of all such Linden Notes. The amount of the Linden Notes repaid or prepaid from time to time may not be reborrowed.

(d) Proceeds of Notes . (i) The proceeds of each Albion Note shall be deposited into the Albion Construction Account, shall be deemed contributed by the Company to

 

Albion and Company shall cause Albion to apply such proceeds in accordance with this Agreement and used solely for the payment of the Albion Project Costs, (ii) the proceeds of the Bloomingburg Construction Loans shall be deposited into the Bloomingburg Construction Account, deemed contributed by the Company to Bloomingburg and Company shall cause Bloomingburg to apply such proceeds in accordance with this Agreement and used solely for the payment of the Bloomingburg Project Costs and (iii) the proceeds of the Linden Construction Loans shall be deposited into the Linden Construction Account, deemed contributed by the Company to Linden and Company shall cause Linden to apply such proceeds in accordance with this Agreement and used solely for the payment of the Linden Project Costs; provided , however , the Company shall retain the proceeds from the issuance of the Notes in the amount equal to the interest and fees set forth in clause (vi) and (vii) of the definition of “Albion Project Costs,” “Bloomingburg Project Costs” and “Linden Project Costs” in order to pay the Agent and the Purchasers such interest and fees due pursuant to this Agreement and the Purchase Documents. Notwithstanding the foregoing, upon request of the Company, the Purchasers shall consider funding the Unfunded Portion of the Notes to the Company, which may be contributed by Company to any Loan Party, to be used for the payment of such Loan Party’s Project Costs or for any Loan Party’s working capital needs; provided, that, such funding procedures and conditions to such fundings shall be agreed upon by the Purchasers at the time of such request by the Company.

(e) Notices . Subject to the terms and conditions as otherwise set forth herein, whenever the Company requests a funding under its Notes for any of the Project Costs as set forth above during the applicable Facility Funding Period, it shall give written notice thereof in the form of Exhibit D hereto (or telephonic notice promptly confirmed in writing) to the Agent, not later than 11:00 a.m. (Eastern Standard Time) (i) for fundings under the Notes in an amount less than $5,000,000 (provided, that the minimum amount requested in a Funding Notice shall be $1,000,000 and in integral multiples of $100,000 thereafter), five (5) Business Days, and (ii) for fundings under the Notes in an amount equal to or greater than $5,000,000, seven (7) Business Days, in each case, prior to the date of such proposed funding under the Notes (each, a “ Funding Notice ”). Each funding under the Notes are subject to the satisfaction of the conditions set forth in this Agreement. The Funding Notice shall be delivered to Agent together with each of the following documents:

(i) the Application for Payment for each Plant with respect to which the proceeds of such Notes will be used, together with the corresponding Monthly Progress Report, each of which shall be certified as true and complete by Company, on behalf of the applicable Loan Party, the Design Builder and the Owner’s Engineer;

(ii) the Owner’s Engineer final substantiation of the immediately preceding Application for Payment for each such Plant or, if the Owner’s Engineer has determined that any portion of the Work (as defined in the relevant Design Build Contract) proposed to be paid pursuant to any of the immediately preceding Applications for Payment cannot be substantiated, the Owner’s Engineer confirmation that the applicable Application for Payment with respect to the proceeds of such Notes will be used reflects any necessary adjustments for the portion of the Work that cannot be substantiated;

 

(iii) the invoices for all Project Costs (other than interest and fees on the Notes) that are not included in the Application for Payment with respect to which the proceeds of the Notes will be used;

(iv) absolute and unconditional sworn Lien waiver statements in the form attached to the Design Build Contract for such Plant evidencing receipt of payment by the Design Builder, all subcontractors, all contractors performing the Owners Scope and all other Persons who were paid from the proceeds of the last Note issued; provided that, if there has been no Note issued with respect to such Plant, such Lien waiver statements shall evidence receipt of all payments due and payable by the respective Loan Parties to the Design Builder, all subcontractors and all other Persons since the date hereof. Such Lien waiver statements shall (A) be dated on or about the date of the Funding Notice and (B) cover all work done and all sums received through the date of the Note issued with respect to such Plant (or if there has been no Note issued with respect to such Plant, the date of the last Application for Payment). Each such Lien waiver statement shall be certified as true and correct and complete by the relevant Design Builder and shall be verified by the Owner’s Engineer;

(v) a list of all Change Orders for such Plant not theretofore submitted to the Agent, together with a statement by the Company, on behalf of the Loan Parties, that copies of the same have been submitted to the Owner’s Engineer prior to the date of such Funding Notice and a list of all Change Orders for such Plant to the date of such Funding Notice and a list of all contemplated Change Orders for such Plant, together with confirmation that each such Change Order is in compliance with Section 7.2(t)(iii) hereof;

(vi) evidence (which shall include the waiver of Liens required hereunder and a detailed receipt for payment itemized by Line Item in the Construction Budget for such Plant) reasonably satisfactory to the Owner’s Engineer that the full amount of the proceeds of the then last Note issued for such Plant has been paid out by the Loan Parties or the Design Builder to the Persons with respect to whom the proceeds of such Notes were disbursed and otherwise in accordance with this Agreement; provided that, if there has been no Note issued with respect to such Plant, such evidence shall confirm receipt of all payments due and payable by the Loan Parties to the Design Builder, all subcontractors and all other Persons since the date hereof;

(vii) a certification by an authorized officer of the Company (i) if on the Closing Date, that the matters set forth in Section 4.1 hereto have been satisfied with respect to such requested funding and (ii) if on any Subsequent Closing Date, that the matters set forth in Section 4.2 hereto have been satisfied with respect to such requested funding.

2.2 Authorization and Issuance of Additional Securities; Notices . (a) Company has duly authorized the issuance and sale to Purchasers of (i) 258,304.81 Class A Units of Company, representing in the aggregate 93.35% of issued and outstanding Class A Units of Company on a fully diluted basis as of the Closing Date and the Distribution Percentage as set forth on Exhibit M hereto for the aggregate purchase price of $28,086,032 (the “ Initial Unit Purchase

 

Amount ”) and (ii) 40,000 Class B Units of Company, representing 15.63% of issued and outstanding Class B Units of Company on a fully diluted basis as of the Closing Date and the Distribution Percentage as set forth on Exhibit M hereto. Subject to the terms and conditions of this Agreement and upon the satisfaction of the conditions set forth in Sections 4.1 and 4.3 hereof, the Purchasers agree, at any time on or after the Closing Date and prior to November 30, 2006, but in no event more frequently than once each calendar month, to purchase the Class A Units for a purchase price up to the Unit Purchase Cap (minus the Initial Unit Purchase Amount and the amount of all other purchases of Class A Units by the Purchasers) and the Company agrees to authorize the issuance and sale of such Class A Units (each, an “ Equity Purchase ”). The proceeds of the Units will be contributed by the Company to the applicable Loan Party to be used for (i) start-up expenses with respect to the Plants, (ii) interest and other fees payable to the Agent and the Purchasers hereunder, (iii) Project Costs and (iv) general working capital purposes.

(b) Notices . Subject to the terms and conditions as otherwise set forth herein, whenever the Company requests any Equity Purchase, it shall give written notice thereof in the form of Exhibit N hereto (or telephonic notice promptly confirmed in writing) to the Agent, not later than 11:00 a.m. (Eastern Standard Time) (i) for amounts less than $5,000,000 (provided, that the minimum amount requested shall be $1,000,000 and in integral multiples of $100,000 thereafter), five (5) Business Days, and (ii) for amounts equal to or greater than $5,000,000, seven (7) Business Days, in each case, prior to the date of such proposed Unit Purchase Date.

2.3 Sale and Purchase . Subject to the terms and conditions and in reliance upon the representations, warranties and agreements set forth herein which shall be made by the Company and the Company, on behalf of the Loan Parties, on each Note Funding Date and each Unit Purchase Date, (a) on each Note Funding Date, subject to Section 2.1, the Purchasers shall make an advance with respect to the Notes in an amount equal to the pro rata portion of the Notes as set forth on Annex A , but in no event in excess of $62,500,000, (b) on each Unit Purchase Date, Purchasers shall purchase the Class A Units which represent the advance amount requested by Company in the Equity Purchase Request, and the Company shall authorize the Class A Units in an amount equal to the pro rata percentage of Class A Units of such Purchaser as set forth on Annex A , but in no event shall the aggregate purchase price of all Class A Units purchased by the Purchasers exceed the Unit Purchase Cap, and (c) in consideration of the purchase and sale of the Notes, Company shall issue to Purchasers on the Closing Date, the Class B Units, in an amount equal to the pro rata portion of the Class B Units set forth on Annex A (the Notes, the Class A Units and the Class B Units are sometimes referred to herein collectively as the “ Securities ”).

2.4 The Closing; Subsequent Closings . Delivery of all Securities on the Closing Date and the purchase of Class A Units on the Closing Date (the “ Closing ”) shall be made at the offices of Chadbourne & Parke LLP, Houston, Texas, commencing at 10:00 a.m., local time, on February 6, 2006 or such other time and place mutually agreed upon by the parties. The date and time of the Closing as determined under this Section 2.4 are referred to herein as the “ Closing Date .” Delivery of the Securities purchased on the Closing Date shall be made to Purchasers against payment of the purchase price therefore, less any other amounts payable pursuant to Section 4.1(h) hereof, by wire transfer of immediately available funds in the manner agreed to by the Company and Purchasers. The Securities purchased shall be issued in such name or names

 

and in such permitted denomination or denominations as set forth in Annex A . Each subsequent funding with respect to the advances that are to be funded by the Purchasers on each Note Funding Date and with respect to the purchase by the Purchasers of the Class A Units and sale of the Class A Units by the Company on each Unit Purchase Date, as applicable (each, a “ Subsequent Closing ”), shall be made by wire transfer of immediately available funds to the applicable Construction Account. The date and time of each Subsequent Closing as finally determined pursuant to this Section 2.4 are referred to herein as the “ Subsequent Closing Date .”

SECTION 3

REPAYMENT OF THE NOTES

3.1 Interest Rates and Interest Payments . Company covenants and agrees to make payments to Agent, for the ratable benefit of Purchasers of the Notes, of accrued interest on funds advanced under the Notes on the first Business Day of each Fiscal Quarter, which shall commence on April 1, 2006, during the term of the Notes. Interest on the Notes will be computed on the basis of a year of 360 days, composed of twelve 30-day months, and the actual number of days elapsed. The Notes will bear interest on the outstanding principal amount thereof at a rate equal to 17% per annum, 11.0% of which shall be payable quarterly in arrears in cash (the “ Coupon Interest ”) and the remaining portion shall accrue and be payable quarterly, to the extent allowed under the Senior Credit Agreement, from the Company’s and the applicable Loan Parties’ Excess Cash Flow following the Conversion Date in an amount that will generate a 17% annualized internal rate of return on the Notes (excluding any fees, the Deferred Subordinated Priority Interest (as defined below) and any default interest payable as a result of the last sentence of this Section 3.1 or Section 8.2 hereof) realized from the Closing Date through applicable payment date using the date specific XIRR function in Microsoft Excel and calculated assuming, as of such date, the aggregate outstanding principal amount of, and accrued interest on, the Notes (the “ Cash Flow Interest ”). If Coupon Interest is not paid in full for any quarter as a result of a restriction under the Senior Credit Agreement applicable to the Current Priority Subordinated Interest (as defined in the Senior Credit Agreement), then the Deferred Priority Subordinated Interest (as defined in the Senior Credit Agreement) shall continue to accrue interest at the rate per annum as set forth above, plus 200 basis points.

3.2 Repayment of the Notes . (a) The Company covenants and agrees to repay to Agent, for the ratable benefit of Purchasers, the unpaid principal balance of the Notes in full, together with all accrued and unpaid interest, fees and other amounts due hereunder. Such repayment of the Notes shall be made by Company as follows: (i) commencing on the first day of each Fiscal Quarter following the Conversion Date, in quarterly payments equal to, with respect to any Plant, the Applicable Percentage of the applicable Loan Parties’ Excess Cash Flow, to the extent allowed under the Senior Credit Agreement, less the amount paid by Company to Agent, for the benefit of the Purchasers, representing such Loan Party’s Cash Flow Interest for such Plant and (ii) one final payment of any remaining principal on February 6, 2015.

(b) Applicable High Yield Discount Obligation Mandatory Prepayment . On any last day of any calendar quarter ending after the fifth anniversary of the Closing Date (a “Test Date”), if the aggregate amounts which would be includible in gross income of the holders of the Notes with respect to such Notes for all periods ending on or before such Test Date (as

 

determined in accordance with section 163(i) of the Code) (the “Aggregate Accrual”) would exceed an amount equal to the sum of (x) the aggregate amount of interest to be paid (within the meaning of section 163(i) of the Code) under the Notes on or before such Test Date, and (y) the product of (A) the issue price (as defined in sections 1273(b) and 1274(a) of the Code) of the Notes and (B) the yield to maturity (determined in accordance with section 163(i) of the Code) of the Notes (such sum, the “Maximum Accrual”), then the Borrower shall mandatorily pay to the Lenders ratably in cash, on each Test Date, an amount equal to the excess, if any, of the Aggregate Accrual over the Maximum Accrual (determined as of such Test Date) and the amount of such payment shall be treated for purposes of section 163(i) of the Code as interest paid under the Notes. Any payments made pursuant to this Section 3.2(b) shall be treated, as the case may be, as full or partial payment of the interest due on the Interest Payment Date immediately following the Test Date. Notwithstanding anything to the contrary contained herein, all payments of Principal, premium and interest due from the Borrower hereunder shall be made to the Lenders on an equal and ratable basis. All Notes which have been prepaid may not be reborrowed.

3.3 Optional Prepayment of Notes . Subject to the terms of this Section 3.3 , the Company may prepay to Agent, for the ratable benefit of Purchasers, the outstanding principal amount of the Notes in whole or in part in a minimum amount of $1,000,000 and in integral multiples of $100,000 in excess thereof, or such lesser amount as is then outstanding, at any time at a price equal to (a) the accrued interest, if any, to the date set for prepayment, plus (b) a prepayment fee (as set forth below in this Section 3.3 ) representing the amortization of certain of Purchasers’ costs incurred in connection with the purchase of the Notes. The prepayment fee for the Notes shall be equal to the principal amount of the Notes prepaid multiplied by the following percentage:

 

All such prepayments shall be applied by Agent to the Notes on a pro rata basis in the inverse order of their maturities after application of such prepayment to any accrued interest and prepayment fee payable in connection therewith.

3.4 Notice of Optional Prepayment . If the Company shall elect to prepay any Notes pursuant to Section 3.3 hereof, the Company shall give notice of such prepayment to Agent not less than 10 days or more than 90 days prior to the date fixed for prepayment, specifying (a) the date on which such prepayment is to be made, (b) the principal amount of such Notes to be prepaid on such date, and (c) the prepayment fee, if any, due under Section 3.3 , and accrued interest applicable to the prepayment. Such notice shall be accompanied by a certificate of the

 

chairman of the board of directors, the president or the vice president and of the treasurer of Company that such prepayment is being made in compliance with Section 3.3 . Notice of prepayment having been so given, the aggregate principal amount of the Notes specified in such notice, together with accrued interest thereon and the premium, if any, shall become due and payable on the prepayment date set forth in such notice unless such notice is revoked by the Company at least three (3) days prior to such prepayment.

3.5 Mandatory Prepayment . The Notes shall be prepaid in full, together with all interest, fees and expenses plus a prepayment premium computed in accordance with Section 3.3 , as if such prepayment were a voluntary prepayment, in the event of (i) the initial public offering of securities of Company, (ii) an Event of Default identified in Section 8.1(h) or 8.1(i) , or (iii) a merger, consolidation, reorganization of the Company. In addition, the Notes shall be prepaid (y) upon receipt of proceeds of any asset disposal of the Company or any Loan Party that are not used for replacement in accordance with Section 7.2(f)(i) and subject to Section 8.18(c)(ii) of the Senior Credit Agreement, in an amount equal to the proceeds received, if such mandatory prepayment is permitted by the Intercreditor Agreement or (z) upon the incurrence of any Indebtedness permitted in accordance with Section 7.2(a)(v) in an amount equal to the proceeds of such additional Indebtedness (net of issuance costs, if such mandatory prepayment is permitted by the Intercreditor Agreement).

3.6 Home Office Payment . The Company will pay all sums becoming due on such Note for principal, prepayment fees, if any, and interest to Agent by the method and at the address specified for such purpose in Annex A, or by such other method or at such other address as Purchasers shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, each holder of a Note shall surrender such Note for cancellation, reasonably promptly after such request, to the Company at its principal executive office.

3.7 Taxes . Any and all payments by the Company hereunder or under the Notes or other Purchase Documents that are made to or for the benefit of Purchasers shall be made free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or withholdings and penalties, interests and all other liabilities with respect thereto (collectively, “ Taxes ”), excluding taxes imposed on Agent’s or Purchasers’ net income or capital and franchise taxes imposed on any of them by the jurisdiction under the laws of which any of them is organized or any political subdivision thereof (all such nonexcluded Taxes being hereinafter referred to as “ Covered Taxes ”). If the Company shall be required by law to deduct any Covered Taxes from or in respect of any sum payable hereunder or under any Notes or other Purchase Documents to Agent for the benefit of Purchasers, or to Purchasers, the sum payable shall be increased as may be necessary so that after making all required deductions of Covered Taxes (including deductions of Covered Taxes applicable to additional sums payable under this paragraph), each Purchaser receives an amount equal to the sum it would have received had no such deductions been made. The Company shall make such deductions and the Company shall pay the full amount so deducted to the relevant taxation authority or other authority in accordance with applicable law. In addition, the Company agrees to pay any present or future stamp, documentary, excise, privilege, intangible or similar levies that arise at any time or from

 

time to time from any payment made under any and all Purchase Documents or from the execution or delivery by the Company or from the filing or recording or maintenance of, or otherwise with respect to the exercise by Agent or Purchasers of their respective rights under any and all Purchase Documents (collectively, “ Other Taxes ”). The Company will indemnify, protect, defend and hold Agent and Purchasers harmless for the full amount of Covered Taxes imposed on or with respect to amounts payable hereunder and Other Taxes, and any liability (including penalties, interest and expenses) arising therefrom or with respect thereto. Payment of this indemnification shall be made within 30 days from the date Agent or Purchasers provide the Company with a certificate certifying and setting forth in reasonable detail the calculation and the basis of determination thereof as to the amount and type of such Taxes. Any such certificates submitted by Agent or Purchasers in good faith to the Company shall, absent manifest error, be final, conclusive and binding on all parties. The obligation of the Company under this Section 3.7 shall survive the payment of the Notes and the termination of this Agreement. Within 30 days after the Company having received a receipt for payment of Covered Taxes and/or Other Taxes, the Company shall furnish to Agent, the original or certified copy of a receipt evidencing payment thereof.

Notwithstanding the foregoing, each Purchaser that is not a United States Person (a “ Non-U.S. Purchaser ”) shall deliver to the Company and the Agent two (2) copies of U.S. Internal Revenue Service Form W-8ECI, Form W-8BEN or Form W-8IMY (with supporting documentation), or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Purchaser claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments of interest by the Company under the Purchase Documents. Such forms shall be delivered by each Non-U.S. Purchaser on or before the date it becomes a party to this Agreement. In addition, each Non-U.S. Purchaser shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Purchaser. Each Non-U.S. Purchaser shall promptly notify the Company and the Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Company (or any other form of certification adopted by U.S. taxing authorities for such purpose). The Borrowers shall not be obligated to pay any additional amounts in respect of U.S. federal income taxes pursuant to this Section 3.7 to any Purchaser if such Non-US Purchaser fails to provide the forms set forth above to the Company.

3.8 Maximum Lawful Rate . This Agreement, the Notes and the other Purchase Documents are hereby limited by this Section 3.8 . In no event, whether by reason of acceleration of the maturity of the amounts due hereunder or otherwise, shall interest and fees contracted for, charged, received, paid or agreed to be paid to Purchasers exceed the maximum amount permissible under such applicable law. If, from any circumstance whatsoever, interest and fees would otherwise be payable to Agent or Purchasers in excess of the maximum amount permissible under applicable law, the interest and fees shall be reduced to the maximum amount permitted under applicable law. If from any circumstance, Agent or Purchasers shall have received anything of value deemed interest by applicable law in excess of the maximum lawful amount, an amount equal to any excess of interest shall be applied to the reduction of the principal amount of the Notes, in such manner as may be