AMENDED AND RESTATED ACCOUNTS AGREEMENT dated as of June 16, 2010 among ABE SOUTH DAKOTA, LLC, as the Borrower, AMARILLO NATIONAL BANK, as the Accounts Bank and the Securities Intermediary, WESTLB AG, NEW YORK BRANCH, as the Collateral Agent for the...

Exhibit 10.3

EXECUTION VERSION

AMENDED AND RESTATED ACCOUNTS AGREEMENT

dated as of June 16, 2010

among

ABE SOUTH DAKOTA, LLC,
as the Borrower,

AMARILLO NATIONAL BANK,
as the Accounts Bank and the Securities Intermediary,

WESTLB AG, NEW YORK BRANCH,
as the Collateral Agent for the Senior Secured Parties,

and

WESTLB AG, NEW YORK BRANCH,
as the Administrative Agent for the Lenders

TABLE OF CONTENTS


	Page
ARTICLE I DEFINITIONS AND INTERPRETATION		3
Section 1.01 Defined Terms		3
Section 1.02 Principles of Interpretation		9
Section 1.03 Credit Agreement and UCC Definitions		10
Section 1.04 Accounting and Financial Determinations		10

ARTICLE II APPOINTMENT; GRANT OF SECURITY INTEREST		10
Section 2.01 Appointment by Collateral Agent		10
Section 2.02 Limitation of Liability		11
Section 2.03 Project Accounts		11
Section 2.04 Representations, Warranties and Covenants of Accounts Bank		12
Section 2.05 Project Accounts as Deposit Account		15
Section 2.06 Grant of First-Priority Security Interest		15
Section 2.07 Control and Perfection of Account Collateral		16
Section 2.08 Subordination		16
Section 2.09 Agreement to Hold In Trust		17

ARTICLE III PROJECT ACCOUNTS		18
Section 3.01 Establishment of Project Accounts		18
Section 3.02 Deposits into and Withdrawals from Project Accounts		19

ARTICLE IV REVENUE ACCOUNT		21
Section 4.01 Revenue Account		21

ARTICLE V OPERATING ACCOUNT		26
Section 5.01 Operating Account		26

ARTICLE VI MAINTENANCE CAPITAL EXPENSE ACCOUNT		27
Section 6.01 Maintenance Capital Expense Account		27

ARTICLE VII WORKING CAPITAL RESERVE ACCOUNT		27
Section 7.01 Working Capital Reserve Account		27
Section 7.02 Huron Rail Project Sub-Account		28

ARTICLE VIII DEBT SERVICE RESERVE ACCOUNT		29
Section 8.01 Debt Service Reserve Account		29
Section 8.02 Debt Service Letter of Credit		30
Section 8.03 Excess in Debt Service Reserve Account		31

ARTICLE IX INSURANCE AND CONDEMNATION PROCEEDS ACCOUNTS		32
Section 9.01 Insurance and Condemnation Proceeds Accounts		32

ARTICLE X EXTRAORDINARY PROCEEDS ACCOUNT		35


	Page
Section 10.01 Extraordinary Proceeds Account		35

ARTICLE XI GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS		37
Section 11.01 No Security Interests		37
Section 11.02 Borrower Acknowledgments		37
Section 11.03 Further Assurances		37
Section 11.04 UCC Termination Statements		39

ARTICLE XII INTEREST AND INVESTMENTS		39
Section 12.01 Investments		39
Section 12.02 Sale and Liquidation		40
Section 12.03 Interest and Investment Income		40
Section 12.04 Accounts Information		41

ARTICLE XIII DEFAULT AND ENFORCEMENT		42
Section 13.01 Notices of Suspension of Project Accounts		42
Section 13.02 Collateral Agent Appointed Attorney-in-Fact		42
Section 13.03 Enforcement		44
Section 13.04 Application of Proceeds		46
Section 13.05 Collateral Agent’s Discretionary Powers		46
Section 13.06 Regarding the Collateral Agent and the Administrative Agent		46

ARTICLE XIV THE ACCOUNTS BANK		47
Section 14.01 Duties of the Accounts Bank and Securities Intermediary		47
Section 14.02 Exculpatory Provisions		48
Section 14.03 Reliance by Accounts Bank		49
Section 14.04 Written Instructions; Notices		50
Section 14.05 Resignation or Removal of Accounts Bank		50
Section 14.06 No Amendment to Duties of Accounts Bank Without Consent		52

ARTICLE XV REPRESENTATIONS AND WARRANTIES		52
Section 15.01 Representations and Warranties		52

ARTICLE XVI MISCELLANEOUS		53
Section 16.01 Termination		53
Section 16.02 Amendments, Etc		53
Section 16.03 Applicable Law; Jurisdiction; Etc		54
Section 16.04 Assignments		56
Section 16.05 Benefits of Accounts Agreement		56
Section 16.06 Costs and Expenses		56
Section 16.07 Counterparts; Effectiveness		57
Section 16.08 Indemnification by the Borrower		57
Section 16.09 No Waiver; Cumulative Remedies		58
Section 16.10 Conflicting Instructions		58
Section 16.11 Notices and Other Communications		59
Section 16.12 Patriot Act Notice		61
Section 16.13 Severability		61


	Page
Section 16.14 Survival		61
Section 16.15 Waiver of Consequential Damages, Etc		62
Section 16.16 Waiver of Litigation Payments		62
Section 16.17 Bond Trustee		62

iii


EXHIBITS

Exhibit A		Form of Revenue Account Withdrawal Certificate
Exhibit B		Form of Operating Account Withdrawal Certificate
Exhibit C		Form of Maintenance Capital Expense Transfer Certificate
Exhibit D		Form of Working Capital Reserve Transfer Certificate
Exhibit E		Form of Debt Service Reserve Release Certificate
Exhibit F		Form of Insurance and Condemnation Proceeds Request Certificate
Exhibit G		Form of Extraordinary Proceeds Release Certificate
Exhibit H		Form of Restricted Payment Certificate
Exhibit I		Form of Huron Rail Project Withdrawal Certificate
Exhibit J		Form of Independent Engineer’s Certificate
Exhibit K		Form of Lien Waiver Statement

THIS AMENDED AND RESTATED ACCOUNTS AGREEMENT, dated as of June 16, 2010, (this “Accounts Agreement”), is entered into by and among ABE SOUTH DAKOTA, LLC, (f/k/a Heartland Grain Fuels, L.P.) a Delaware limited liability company (the “Borrower”), AMARILLO NATIONAL BANK, in its capacity as accounts bank (together with its successors and assigns in such capacity, the “Accounts Bank”) and in its capacity as securities intermediary (together with its successors and assigns in such capacity, the “Securities Intermediary”), WESTLB AG, NEW YORK BRANCH, in its capacity as collateral agent for the Senior Secured Parties (as defined below) (together with its successors and assigns in such capacity, the “Collateral Agent”), WESTLB AG, NEW YORK BRANCH, in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the “Administrative Agent”).

RECITALS

WHEREAS, pursuant to a Senior Credit Agreement, dated as of October 1, 2007 (the “Original Credit Agreement”), among the Borrower, each of the lenders party thereto (the “Original Lenders”), the Administrative Agent, the Collateral Agent, WestLB AG, New York Branch, as issuing bank with respect to the letters of credit, and WestLB AG, New York Branch, as lead arranger, sole bookrunner and syndication agent, the Original Lenders made certain construction, term and working capital loans (the “Original Loans”) to the Borrower to, among other things, (a) refinance existing indebtedness of the Borrower with respect to the operating ethanol plant of the Borrower located in Huron, South Dakota, producing approximately thirty (30) million gallons-per-year of denatured ethanol, together with distillers grains, and the operating ethanol plant of the Borrower located in Aberdeen, South Dakota, producing approximately nine (9) million gallons-per-year of denatured ethanol, together with distillers grains, (b) to finance the ownership, development, engineering, construction, testing and operation of an expansion ethanol plant located at the same Site in Aberdeen, South Dakota, which plant has been constructed and is producing approximately forty (40) million gallons-per-year of denatured ethanol, together with distillers grains and (c) to provide for the Borrower’s working capital needs;

WHEREAS, as required under the Original Credit Agreement, the Borrower entered into that certain Assignment and Security Agreement, dated as of October 1, 2007 (the “Original Security Agreement”), between the Borrower and the Collateral Agent, and granted to the Collateral Agent, for the benefit of the Senior Secured Parties (as defined in the Original Credit Agreement), a security interest in all assets of the Grantor as security for the repayment of the Obligations (as such term is defined in the Original Credit Agreement) of the Borrower under the Original Credit Agreement;

WHEREAS, as required under the Original Credit Agreement, the Borrower entered into that certain Accounts Agreement, dated as of October 1, 2007 (the “Original Accounts Agreement”), by and among the Borrower, the Accounts Bank, the Securities Intermediary, the Collateral Agent, the Administrative Agent, and the Second Lien Agent for the Second Lien Claimholders (each as defined therein);

WHEREAS, certain Events of Default have occurred under the Original Credit Agreement as a result of the failure of the Borrower to make certain interest and principal payments on the Original Loans;

WHEREAS, pursuant to a Forbearance Agreement, dated on or about January 9, 2009 (the “Forbearance Agreement”), between the Borrower, Dakota Fuels, Inc. and ABE Heartland, LLC, as the loan parties, and the Original Lenders (as Lenders and, in certain instances, as Interest Rate Protection Providers (as each such term is defined in the Original Credit Agreement) party thereto, the Administrative Agent and the Collateral Agent, as the forbearing parties, such forbearing parties agreed to forbear from exercising certain rights and remedies under the Original Credit Agreement and the other Financing Documents (as defined in the Original Credit Agreement) for a period to end no later than March 31, 2009;

WHEREAS, the Forbearance Agreement has terminated pursuant to its terms, and the Borrower remains in default under the Original Credit Agreement;

WHEREAS, the Borrower has converted from a Delaware limited partnership into a Delaware limited liability company;

WHEREAS, pursuant to a Restructuring Agreement, dated as of the date hereof (the “Restructuring Agreement”), among the Borrower, Dakota Fuels, Inc., ABE Heartland, LLC, Advanced BioEnergy, LLC, Xxxxx Fargo Bank, National Association, in its capacity as trustee of the Xxxxx County, South Dakota Subordinate Solid Waste Facilities Revenue Bonds (Heartland Grain Fuels, L.P. Ethanol Plant Project) Series 2007A (such trustee, the “Bond Trustee” and such bonds, the “Subordinated Bonds”), the holders of the Subordinated Bonds, Xxxxx County, South Dakota, as issuer of the Subordinated Bonds (the “Issuer”), the Administrative Agent, the Collateral Agent and the Original Lenders, as of the Effective Date the parties thereto have agreed to restructure the Original Loans and to fully cancel all outstanding obligations under the Subordinated Loan Agreement and the other financing documents related thereto in accordance with the terms of the Restructuring Agreement;

WHEREAS, in accordance with the terms of the Restructuring Agreement, the Borrower, each of the Lenders from time to time party thereto, the Administrative Agent and the Collateral Agent have agreed to enter into the Amended and Restated

Senior Credit Agreement, dated as of the date hereof (the “Credit Agreement”) to amend and restate the Original Credit Agreement; and

WHEREAS, it is a requirement under the Credit Agreement that the Borrower execute and deliver this Accounts Agreement, which, as of the Effective Date, shall have the effect of amending and restating the Original Accounts Agreement in its entirety upon and subject to the terms and conditions hereinafter set forth.

AGREEMENT

NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01 Defined Terms. The following terms when used in this Accounts Agreement, including its preamble and recitals, shall, except where the context otherwise requires, have the following meanings or if not provided herein, the meanings provided in the Credit Agreement, or if not defined herein or therein, the UCC:

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

“Account Collateral” has the meaning provided in Section 2.06 (Grant of First-Priority Security Interest).

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

“Accounts Bank Action” has the meaning provided in Section 14.04(b) (Written Instructions; Notices).

“Accounts Bank Fee Letter” means that certain Accounts Bank Fee Letter, dated as of October 1, 2007, between the Accounts Bank and the Borrower, as amended and restated by that certain Amended and Restated Accounts Bank Fee Letter, dated on or about the date hereof, setting forth certain fees due and payable to the Accounts Bank.

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

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

“Bond Trustee” has the meaning provided in the eighth recital.

“Borrower” has the meaning provided in the preamble.

“Cash Equivalents” means:

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

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

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

	(d)		investments in certificates of deposit, banker’s acceptances and time deposits maturing within two hundred and seventy (270) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Administrative Agent or any domestic office of any commercial bank organized under the laws of the United States of America, any State thereof, any country that is a member of the Organisation for Economic Co-Operation and Development or any political subdivision thereof, that has a combined capital and surplus and undivided profits of not less than five hundred million Dollars ($500,000,000);

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

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

“Closing Fee” means an amount equal to ten thousand Dollars ($10,000) times the number of days that have elapsed from April 1, 2010 to and including the Effective Date.

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

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

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

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

“Effective Date” means the date on which all of the conditions set forth in Section 6.01 (Conditions to Effectiveness) of the Credit Agreement have been satisfied or waived.

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

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

“Forbearance Agreement” has the meaning set forth in the third recital.

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

“Huron Rail Project” means the project for the construction of the 3 track ladder system connecting the Huron Plant loading facility to the Canadian Pacific main line on approximately four acres of land to the west of the Huron Plant that is capable of storing up to ninety tank or xxxxxx railcars.

“Huron Rail Project Sub-Account” has the meaning provided in Section 3.01(a)(iv) (Establishment of Project Accounts).

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

“Indemnitee” has the meaning provided in Section 16.08 (Indemnification by the Borrower).

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

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

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

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

“Lien Waiver Statement” means, in connection with the construction of the Huron Rail Project, a statement evidencing receipt of payment by a contractor, subcontractor or other Person providing work for the Huron Rail Project (i) in the form attached as Exhibit K or (ii) in form and substance satisfactory to each of the Administrative Agent and the Independent Engineer.

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

“Maintenance Capital Expense Transfer Certificate” means a certificate in substantially the form of Exhibit C, duly executed by an Authorized Officer of the

Borrower directing the transfer or withdrawal of funds from the Maintenance Capital Expense Account.

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

“Notice of Security Discharge Date” has the meaning provided in Section 2.08(a) (Subordination).

“Notice of Suspension” has the meaning provided in Section 13.01(a) (Notices of Suspension of Project Accounts).

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

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

“Original Accounts Agreement” has the meaning provided in the second recital.

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

“Original Lenders” has the meaning provided in the first recital.

“Original Loans” has the meaning provided in the first recital.

“Original Security Agreement” has the meaning provided in the second recital,

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

“Permitted Budgeted Operating Expenses Level” means, for any month in any Fiscal Year, with respect to Operation and Maintenance Expenses (other than Operation and Maintenance Expenses for the cost of corn and natural gas), one hundred and ten percent (110%) of the amount projected for such expenses (other than Operation and Maintenance Expenses for the cost of corn and natural gas) for the period from the start of such Fiscal Year (or, if the Effective Date occurred during such Fiscal Year, from the Effective Date) through (and including) such month in the then-current Operating Budget.

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

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

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

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

“Restructuring Agreement” has the meaning provided in the eighth recital.

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

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

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

“Security Discharge Date” means the date on which all amounts payable in respect of the Obligations have been irrevocably and indefeasibly paid in full in cash (other than obligations under the Financing Documents that by their terms survive and with respect to which no claim has been made by the Senior Secured Parties).

“Senior Secured Parties” means the Lenders and the Agents.

“Subordinated Bonds” has the meaning provided in the eighth recital.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by

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

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

“Working Capital Reserve Required Amount” means as of any date on and after the Effective Date, four million Dollars ($4,000,000).

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

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

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

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

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

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

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

(g) The word “or” is not exclusive.

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

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

Section 1.04 Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used in any Financing Document shall be interpreted, all accounting determinations and computations hereunder or thereunder shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with GAAP.

ARTICLE II

APPOINTMENT; GRANT OF SECURITY INTEREST

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

(b) The Collateral Agent also hereby appoints and authorizes the Accounts Bank to act on its behalf for the purpose of the creation and perfection of a first priority security interest in favor of the Collateral Agent, for the benefit of the

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

Section 2.02 Limitation of Liability. Notwithstanding any provision to the contrary contained elsewhere in any Financing Document, the Accounts Bank shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Accounts Bank have or be deemed to have any fiduciary relationship with any Senior Secured Party and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into any Financing Document or otherwise exist against the Accounts Bank. Without limiting the generality of the foregoing sentence, the use of the term “agent” in any Financing Document with reference to the Accounts Bank is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

Section 2.03 Project Accounts. (a) The Borrower agrees that it will have no legal or equitable right to withdraw funds from the Project Accounts, except for those rights expressly granted to the Borrower in this Accounts Agreement. The Account Collateral will not constitute repayment of any Obligations until so applied as payments in accordance with the terms of this Accounts Agreement and the other Financing Documents.

(b) The Accounts Bank shall not have title to the funds on deposit in or credited to the Project Accounts, and shall credit the Project Accounts with all receipts of interest, dividends and other income received on the property held in the Project Accounts. The Accounts Bank shall administer and manage the Project Accounts in strict compliance with its duties with respect to the Project Accounts pursuant to this Accounts Agreement, and shall be subject to and comply with all of the obligations that the Accounts Bank owes to the Borrower and the Collateral Agent, for the benefit of the Senior Secured Parties, with respect to the Project Accounts, including all subordination obligations set forth in Section 2.08 (Subordination) with respect to the Accounts Bank’s right of set-off or recoupment or right to obtain a Lien, pursuant to the terms of this Accounts Agreement. The Accounts Bank hereby agrees to comply with any and all written instructions originated by the Collateral Agent directing the

disbursement, deposit and/or transfer of any funds and all other property held in the Project Accounts without any further consent of the Borrower or any other Person, and to comply with any and all written instructions originated by the Borrower directing the disbursement, deposit and/or transfer of any funds and all other property held in the Project Accounts subject to, and in accordance with, the terms of this Accounts Agreement.

Section 2.04 Representations, Warranties and Covenants of Accounts Bank. The Accounts Bank hereby represents, warrants, covenants and agrees as follows:

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

(b) it is the bank with which each Project Account is maintained and the securities intermediary with respect to the financial assets held in the Project Accounts. In this regard, (i) if the Accounts Bank has knowledge that an issuer of any financial asset is required to make a payment or distribution in respect of such financial asset, the Accounts Bank shall have fulfilled its duty under applicable Law to take action to obtain such payment or distribution if (A) it credits such payment or distribution to the Project Accounts in accordance with this Accounts Agreement if such payment or distribution is made or (B) it notifies the Borrower and the Collateral Agent that such payment or distribution has not been made, and (ii) if the Accounts Bank is required by applicable Law or this Accounts Agreement to credit to any Project Account any financial asset purported to be transferred or credited to the Accounts Bank pursuant to applicable Law, the Accounts Bank shall have fulfilled its duty to so credit any Project Account if it credits as a security entitlement to the applicable party whatever rights the Accounts Bank purportedly has in the financial asset transferred or credited to the Accounts Bank and the Accounts Bank shall have no duty to ensure that applicable Law has been complied with in respect of the transfer of the financial asset or to create a security interest in or Lien on any financial asset purported to be transferred or credited to the Accounts Bank and subsequently credited to any Project Account;

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

(d) the Collateral Agent, for the benefit of the Senior Secured Parties, and no other Person, is the Accounts Bank’s customer with respect to the Project

Accounts, and the Borrower has consented to the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, being deemed the customer hereunder;

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

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

(g) each Project Account is and will be maintained as a securities account or, as set forth in Section 2.05 (Project Accounts as Deposit Account), a deposit account;

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

(i) each item of property (including any cash, security, general intangible, document, instrument or obligation, share, participation, interest or other property whatsoever) deposited in or credited to any Project Account shall be treated as a financial asset under and for the purposes of Article 8 of the UCC, including Section 8-102(a)(9)(iii) thereof. Notwithstanding any provision herein to the contrary, any property contained in the Project Accounts that is not deemed to be a financial asset under applicable Law, to the extent permitted by applicable Law, will be deemed to be deposited in a deposit account and subject to Section 2.05 (Project Accounts as Deposit Account);

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

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

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

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

(n) except for the claims and interest of (i) the Collateral Agent, for the benefit of the Senior Secured Parties, in the Project Accounts, and (ii) the Borrower, in the Project Accounts, it does not know of and has not received written notice of any right or claim (including any adverse claim) to or interest in the Project Accounts or any Account Collateral (including, without limitation, funds and financial assets) deposited in or credited to the Project Accounts by any Person. If any Person (other than the Collateral Agent, on behalf of the Senior Secured Parties) asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Project Account or in any financial asset or other property deposited therein or credited thereto, the Accounts Bank will promptly notify the Collateral Agent and the Borrower thereof; and

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

Section 2.05 Project Accounts as Deposit Account. (a) The parties hereto agree that, to the extent that the Project Accounts are not considered “securities accounts” (within the meaning of Section 8-501(a) of the UCC), the Project Accounts shall be deemed to be deposit accounts (as defined in Section 9-102(a)(29) of the UCC) to the extent a security interest can be granted and perfected under the UCC in the Project Accounts as deposit accounts, which the Borrower shall maintain with the Accounts Bank acting not as Securities Intermediary but as a “bank” (within the meaning of Section 9-102(a)(8) of the UCC).

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

Section 2.06 Grant of First-Priority Security Interest. (a) As security for the prompt and complete payment when due (whether at stated maturity, by acceleration or otherwise) of any and all of the Obligations and the due performance and compliance by the Borrower with all of the terms, conditions, and agreements to be performed and complied with by it under and pursuant to the terms of the Credit Agreement and the other Financing Documents, the Borrower (x) collaterally assigned, granted and pledged pursuant to the Original Security Agreement, and acknowledges and agrees that the “Account Collateral” pledged pursuant to the Original Accounts Agreement is subject to, and continues to be subject to, without interruption, the continuing first lien on, and continuing first priority perfected security interest granted in the Original Security Agreement, and (y) hereby acknowledges and confirms the pledge, collateral assignment, hypothecation, and granting of a first-priority security interest to the Collateral Agent, for the benefit of the Senior Secured Parties, pursuant to the Security Agreement in, all of its right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by the Borrower, wherever located, and whether now or hereafter existing or arising (collectively, the “Account Collateral”):

(i)

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

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

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

Section 2.07 Control and Perfection of Account Collateral. (a) The Borrower specifically acknowledges and agrees that (i) (A) each Project Account pledged hereunder shall be maintained so that the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, has control of such Project Account in the manner specified in Section 9-104 of the UCC, (B) all Cash Equivalents pledged hereunder shall be maintained so that the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, has control of such Cash Equivalents in the manner specified in Section 9-106 of the UCC, and (C) all financial assets held in the Project Accounts and pledged hereunder shall be maintained so that the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, has control of such financial assets in the manner specified in Section 8-106 of the UCC.

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

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

Section 2.08 Subordination. (a) The Accounts Bank hereby acknowledges the first-priority security interest granted hereby to the Collateral Agent, for the benefit of the Senior Secured Parties. In the event that the Accounts Bank has or

subsequently obtains by agreement, operation of Law or otherwise a right of recoupment or set-off or any Lien in any of the Project Accounts, Account Collateral or any financial asset or other property deposited therein or credited thereto or any security entitlement related thereto, the Accounts Bank hereby agrees that such right of recoupment or set-off and/or any such Lien shall (except to the extent provided in clause (c) of this Section 2.08) be subordinate to the security interest of the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties. The Accounts Bank agrees that it shall not (except to the extent provided in clause (c) of this Section 2.08) assert or enforce any such right of recoupment or set-off and/or any Lien until the date on which the Administrative Agent notifies the Accounts Bank in writing that the Security Discharge Date has occurred (the “Notice of Security Discharge Date”).

(b) Until the Notice of Security Discharge Date, the financial assets and other items deposited in or credited to the Project Accounts and all other Account Collateral will not (except to the extent provided in clause (c) of this Section 2.08) be subject to deduction, set-off, banker’s lien or any other right in favor of any Person other than the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties.

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

Section 2.09 Agreement to Hold In Trust. All payments received directly by the Borrower that are required to be deposited into the Project Accounts in accordance with the terms of this Accounts Agreement, the Credit Agreement, or any other Financing Document (including any amount received by the Borrower pursuant to, or in connection with, any Project Document or any sale of Products) shall be held by the Borrower in trust for the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, shall be segregated from other funds of the Borrower and shall, forthwith upon receipt by the Borrower, be turned over to the Collateral Agent or its designee in the same form as received by the Borrower (duly endorsed by the Borrower to the Collateral Agent or the Accounts Bank, if requested) for deposit and disbursement in accordance with this Accounts Agreement.

ARTICLE III

PROJECT ACCOUNTS

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

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

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

	(iii)		a special, segregated, Dollar-denominated account entitled “Maintenance Capital Expense Account”, Account No. 129488 (the “Maintenance Capital Expense Account”);

	(iv)		a special, segregated, Dollar-denominated account entitled “Working Capital Reserve Account”, Account No. 128619 (the “Working Capital Reserve Account”); and a special, segregated, Dollar-denominated sub-account thereof entitled “Huron Rail Project Sub-Account”, Account No. 147516 (the “Huron Rail Project Sub-Account”);

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

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

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

(viii)

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

(b) Closure of Certain Project Accounts Under Original Accounts Agreement. On the Effective Date, the Accounts Bank shall (i) transfer to the Revenue Account any remaining funds on deposit in or standing to the credit of each of the Construction Account, the Liquidated Damages Account, the Prepayment Holding Account, the Contingency Reserve Account and the Bond Proceeds Sub-Account and the XX Xxxx Collateral Sub-Account (as each such account is defined in the Original Accounts Agreement), (ii) terminate and close each such account and (iii) provide evidence reasonably satisfactory to the Collateral Agent that each such account has been terminated and closed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE IV

REVENUE ACCOUNT

Section 4.01 Revenue Account. (a) Payments into the Revenue Account. The Borrower shall cause the following amounts to be paid into the Revenue Account:

	(i)		all Cash Flow;

	(ii)		except as set forth in Section 10.01 (Extraordinary Proceeds Account), all proceeds from the sale or disposition of any assets of the Borrower;

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

	(iv)		amounts transferred to the Revenue Account pursuant to Section 2.01 (Payments by ABE) or Section 4.01(d) (Remittance of Disputed Interest by Bond Trustee) of the Restructuring Agreement or Section 3.01(b) (Closure of Certain Project Accounts Under Original Accounts Agreement), Section 7.01(b) (Withdrawals from the Working Capital Reserve Account), Section 7.01(c) (Excess Amount in Working Capital Reserve Account), Section 7.02(c) (Huron Rail Project Sub-Account — Termination), Section 8.03 (Excess in Debt Service Reserve Account), Section 10.01(b)(i) (Withdrawals from the Extraordinary Proceeds Account — Asset Disposal) or Section 10.01(c)(i) (Withdrawals from the Extraordinary Proceeds Account — Project Document Termination Payments).

(b) Withdrawals from the Revenue Account on the Effective Date. On the Effective Date, the Accounts Bank shall cause funds on deposit in or standing to the credit of the Revenue Account to be withdrawn and transferred as follows:

	(i)		an amount equal to the Closing Fee (if any) due and payable to be paid to the Administrative Agent for the account of the Lenders, in accordance with Section 2.02(a) (Payments by the Borrower) of the Restructuring Agreement;

	(ii)		an amount equal to ten million Dollars ($10,000,000) to be paid to the Administrative Agent for the account of the Lenders in accordance with Section 2.02(a) (Payments by the Borrower) of the Restructuring Agreement;

	(iii)		an amount equal to five million Dollars ($5,000,000) to be to be paid to the Administrative Agent for the account of the Lenders in accordance with Section 2.02(a) (Payments by the Borrower) of the Restructuring Agreement;

	(iv)		to the Debt Service Reserve Account in an amount equal to the difference between (A) the Debt Service Reserve

			Required Amount and (B) the funds on deposit in or standing to the credit of the Debt Service Reserve Account (including the Stated Amount of any Debt Service Reserve Letter of Credit);

	(v)		to the Working Capital Reserve Account, in the amount equal to the difference between (A) the Working Capital Reserve Required Amount and (B) the funds on deposit in or standing to the credit of the Working Capital Reserve Account (other than amounts standing to the credit of the Huron Rail Project Sub-Account);

	(vi)		to the Huron Rail Project Sub-Account, in an amount equal to two million Dollars ($2,000,000);

	(vii)		an amount approved by the Required Lenders owing to the counterparty under any Interest Rate Cap Agreement;

	(viii)		an amount equal to two million, two hundred and fifty thousand Dollars ($2,250,000) to be paid to be paid to the Bond Trustee for the account of the holders of the Subordinated Bonds in accordance with Section 2.02(b) (Payments by the Borrower) of the Restructuring Agreement;

	(ix)		an amount equal to sixteen thousand four hundred ninety-five Dollars and sixteen cents ($16,495.16) to be paid to Xxxxxx and Xxxxxx, P.A., counsel to the Issuer, in accordance with Section 2.02(b) (Payments by the Borrower) of the Restructuring Agreement.

(c) Withdrawals from the Revenue Account. Unless a Notice of Suspension is in effect or a Default or Event of Default would occur as a result of any application of funds contemplated by this Section 4.01(c), upon receipt of a Revenue Account Withdrawal Certificate duly executed by an Authorized Officer of the Borrower (with a copy to the Administrative Agent), the Accounts Bank shall, in accordance with the directions set forth therein, cause funds held in the Revenue Account to be withdrawn or transferred to pay the following amounts on the dates and at the priorities indicated below:

(i)

first, on the Effective Date and on each Monthly Date (or, in the case of amounts to pay Operation and Maintenance

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

	(ii)		second, on each Monthly Date, to the Maintenance Capital Expense Account, in the amount certified by the Borrower in such Revenue Account Withdrawal Certificate as necessary to pay Maintenance Capital Expenses that, in each such case, are or will become due and payable during the immediately succeeding calendar month; provided that such transfer shall require the approval of the Independent Engineer if such Maintenance Capital Expenses together with all previous transfers to the Maintenance Capital Expense Account during the then current Fiscal Year would exceed five hundred thousand Dollars ($500,000) in the then current Fiscal Year;

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

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

	(v)		fifth, on each Quarterly Payment Date, to pay to the Administrative Agent, for the account of the Lenders, on a pro rata basis, in the amount certified by the Borrower in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Administrative Agent as principal amounts due and payable with respect of the Loans;

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

	(vii)		seventh, on each Quarterly Payment Date, to the Working Capital Reserve Account, in the amount certified by the Borrower in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Administrative Agent as equal to the difference between (A) the Working Capital Reserve Required Amount and (B) the funds on deposit in or standing to the credit of the Working Capital Reserve Account (other than amounts standing to the credit of the Huron Rail Project Sub-Account) on such Quarterly Payment Date;

	(viii)		eighth, provided that no Default or Event of Default has occurred and is continuing, on each Quarterly Payment Date, in an amount certified by the Borrower in such Revenue Account Withdrawal Certificate to the Persons or

			accounts specified in such Revenue Account Withdrawal Certificate (including, if required to be paid directly to any taxing authority, to such taxing authority) for payment of any Permitted Tax Distribution;

	(ix)		ninth, on each Quarterly Payment Date, to the Administrative Agent (A) if the outstanding principal amount of the Loans is equal to or greater than twenty five million Dollars ($25,000,000), all of the cash remaining in the Revenue Account after the transfer required (if any) pursuant to priority eighth, or (B) if the outstanding principal amount of the Loans is less than twenty five million Dollars ($25,000,000), in an amount equal to seventy five percent (75%) of the cash remaining in the Revenue Account after the transfer required (if any) pursuant to priority eighth, either as certified by the Borrower in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Administrative Agent, for application as a prepayment of the Loans in accordance with Section 3.08(e) (Mandatory Prepayment) of the Credit Agreement; and

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

ARTICLE V

OPERATING ACCOUNT

Section 5.01 Operating Account. (a) Payments into the Operating Account. Funds shall be deposited into the Operating Account pursuant to priority first of Section 4.01(c) (Withdrawals from the Revenue Account).

(b) Withdrawals from the Operating Account. Unless a Notice of Suspension is in effect or a Default or Event of Default would occur as a result of any application of funds contemplated hereby, and so long as adequate funds are then available in the Operating Account, the Borrower may, by delivery of an Operating Account Withdrawal Certificate to the Accounts Bank (with a copy to the Collateral Agent and the Administrative Agent), withdraw or transfer funds from the Operating

Account from time to time as may be necessary to pay directly any amounts owed by the Borrower for Operation and Maintenance Expenses.

ARTICLE VI

MAINTENANCE CAPITAL EXPENSE ACCOUNT

Section 6.01 Maintenance Capital Expense Account. (a) Payments into the Maintenance Capital Expense Account. Funds shall be deposited into the Maintenance Capital Expense Account pursuant to priority second of Section 4.01(c) (Withdrawals from the Revenue Account).

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

ARTICLE VII

WORKING CAPITAL RESERVE ACCOUNT

Section 7.01 Working Capital Reserve Account.

(a) Payments into the Working Capital Reserve Account. Funds shall be deposited into the Working Capital Reserve Account in accordance with Section 4.01(b)(v) (Withdrawals from the Revenue Account on the Effective Date) and priority seventh of Section 4.01(c) (Withdrawals from the Revenue Account).

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

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

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

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

Section 7.02 Huron Rail Project Sub-Account.

(a) Deposits into the Huron Rail Project Sub-Account. Funds shall be deposited into the Huron Rail Project Sub-Account in accordance with Section 4.01(b)(vi) (Withdrawals from the Revenue Account on the Effective Date).

(b) Withdrawals from the Huron Rail Project Sub-Account.

(i)

Unless a Notice of Suspension is in effect or a Default or Event of Default would occur as a result of any application of funds contemplated by this Section 7.02(b), funds standing to the credit of the Huron Rail Project Sub-Account shall be disbursed only upon delivery to the

Accounts Bank of (A) a Huron Rail Project Withdrawal Certificate (with a copy to the Administrative Agent and the Independent Engineer), signed by the Borrower, (B) a Lien Waiver Statement from each contractor, subcontractor and other Person providing work for the Huron Rail Project evidencing receipt of payment for all work performed in connection with the Huron Rail Project and such Huron Rail Project Withdrawal Certificate, dated on or about the time of the Huron Rail Project Withdrawal Certificate covering all payments paid, or that are due and payable on the date of such Lien Waiver Statement and all work done and sums received by such contractor or subcontractor (unless covered by a previous Lien Waiver Statement), (C) all invoices in respect of such work in connection with the Huron Rail Project proposed to be paid in such Huron Rail Project Withdrawal Certificate, which invoices shall have been received in form and substance satisfactory to the Independent Engineer, and (D) an Independent Engineer’s Certificate in respect of the above. All payments from the Huron Rail Project Sub-Account shall be made by the Accounts Bank pursuant to instructions set forth in the relevant Huron Rail Project Withdrawal Certificate directly to the payee.

(c) Termination. Upon the earlier of (x) July 31, 2011 and (y) completion of the Huron Rail Project and payment of all outstanding amounts for work performed in connection therewith (as certified by the Independent Engineer), the Borrower shall direct, by delivery of a Huron Rail Project Withdrawal Certificate to the Accounts Bank (with a copy to the Administrative Agent), the transfer (or the Administrative Agent may direct the Accounts Bank in writing to transfer) to the Revenue Account all amounts on deposit in or standing to the credit of the Huron Rail Project Sub-Account, and the Huron Rail Project Sub-Account shall be terminated and closed.

ARTICLE VIII

DEBT SERVICE RESERVE ACCOUNT

Section 8.01 Debt Service Reserve Account. (a) Payments into the Debt Service Reserve Account. Funds shall be deposited into the Debt Service Reserve Account:

	(i)		on the Effective Date, pursuant to Section 4.01(b)(iv) (Withdrawals from the Revenue Account on the Effective Date); and

	(ii)		pursuant to priority sixth of Section 4.01(c) (Withdrawals from the Revenue Account); provided that, notwithstanding the foregoing, in lieu of cash, the Borrower may cause to be delivered to the Accounts Bank one or more Debt Service Reserve Letters of Credit (each of which shall be accompanied by a Debt Service LC Waiver Letter), the Stated Amounts of which shall be credited to the Debt Service Reserve Account.

(b) Withdrawals from the Debt Service Reserve Account. On any date when the amounts available at priorities third, fourth and fifth of Section 4.01(c) (Withdrawals from the Revenue Account) are insufficient to pay Debt Service then due and owing, the Accounts Bank shall (upon written notification from the Borrower or the Administrative Agent, with a copy to the Administrative Agent or the Borrower, as applicable, setting forth the amount of such shortfall) withdraw funds from the Debt Service Reserve Account to pay to the Administrative Agent, for the account of the Senior Secured Parties, the amount of such shortfall of the Debt Service then due and payable, which funds shall be applied by the Administrative Agent in the order of priority set forth in priorities third, fourth and fifth of Section 4.01(c) (Withdrawals from the Revenue Account). The Accounts Bank shall promptly notify the Administrative Agent and the Collateral Agent if, at any time, there are insufficient funds (without taking into account any Debt Service Reserve Letters of Credit) standing to the credit of the Debt Service Reserve Account to make the payments required under this Section 8.01(b).

Section 8.02 Debt Service Letter of Credit. Upon the written instruction of the Administrative Agent (which will promptly thereafter send a copy of such instruction to the Borrower), the Collateral Agent shall make a demand in accordance with the provisions of each Debt Service Reserve Letter of Credit, draw all or a portion of the Stated Amount of any Debt Service Reserve Letter of Credit that has been delivered in accordance with this Accounts Agreement, and deposit the funds received into the Debt Service Reserve Account. The Administrative Agent shall instruct the Collateral Agent to make such demand:

(a) if amounts are required to be withdrawn from the Debt Service Reserve Account pursuant to Section 8.01(b), and the amounts to be so withdrawn exceed the funds, not including the aggregate Stated Amounts of the Debt Service

Reserve Letters of Credit standing to the credit of the Debt Service Reserve Account, in the amount necessary to make the payments of Debt Service then due and payable;

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

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

Section 8.03 Excess in Debt Service Reserve Account. If, on any date, the funds on deposit in or standing to the credit of the Debt Service Reserve Account (taking into account the Stated Amounts of any Debt Service Reserve Letters of Credit standing to the credit of the Debt Service Reserve Account) are in excess of the Debt Service Reserve Required Amount, unless a Notice of Suspension is in effect or a Default or Event of Default would occur as a result of such transfer, the Borrower may direct, by delivery of a Debt Service Reserve Release Certificate to the Accounts Bank (with a copy to the Administrative Agent), the transfer to the Revenue Account of an amount equal to the difference between (x) the aggregate total amount of all funds on deposit in or standing to the credit of the Debt Service Reserve Account (taking into account the Stated Amounts of any Debt Service Reserve Letters of Credit standing to the credit of the Debt Service Reserve Account) and (y) the Debt Service Reserve Required Amount, as certified by the Borrower and confirmed by the Administrative Agent in such Debt Service Reserve Release Certificate; provided, that if such difference is positive due to the posting of a Debt Service Reserve Letter of Credit to the Debt Service Reserve Account to replace or substitute for cash then on deposit, such amount may be distributed directly to the Pledgor or such other Affiliate of the Borrower who provided such Debt Service Reserve Letter of Credit (and such distribution shall not be treated as a Restricted Payment for purposes of this Accounts Agreement)

ARTICLE IX

INSURANCE AND CONDEMNATION PROCEEDS ACCOUNTS

Section 9.01 Insurance and Condemnation Proceeds Accounts.

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

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

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

(d) Amounts in Excess of $2,500,000 but not Exceeding $15,000,000. Any Insurance Proceeds and Condemnation Proceeds deposited into any Insurance and Condemnation Proceeds Account in amounts greater than two million five hundred thousand Dollars ($2,500,000) but less than or equal to fifteen million Dollars

($15,000,000) arising from any one claim or any series of claims relating to the same occurrence shall:

(i)

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

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

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

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

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

			current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the Required Lenders);

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

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

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

	(H)		a confirmation by the Independent Engineer of its agreement with the matters set forth in Section 9.01(d)(i)(A)-(G) and its approval of such Restoration

or Replacement Plan, which approval will not be unreasonably withheld, conditioned or delayed; or

(ii)

Mandatory Prepayment. If (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 9.01(d)(i) within such sixty (60) day period, or (B) after such Restoration or Replacement Plan is effected, there are excess Insurance Proceeds or Condemnation Proceeds, as the case may be, on deposit in or standing to the credit of such Insurance and Condemnation Proceeds Account, the Accounts Bank shall on the next succeeding Quarterly Payment Date thereafter, upon the written instruction of the Borrower or the Administrative Agent, transfer to the Administrative Agent, for the account of the Lenders, an amount equal to such Insurance Proceeds or Condemnation Proceeds, as the case may be, for mandatory prepayment of the Loans in accordance with Section 3.08(a) or (b) (as applicable) (Mandatory Prepayment) of the Credit Agreement.

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

ARTICLE X

EXTRAORDINARY PROCEEDS ACCOUNT

Section 10.01 Extraordinary Proceeds Account.

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

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

	(i)		if such proceeds are in an amount in the aggregate of less than one million Dollars ($1,000,000) (taken together with any other proceeds of asset disposals deposited in the Extraordinary Proceeds Account during the then-current Fiscal Year) the Borrower may submit an Extraordinary Proceeds Release Certificate to the Accounts Bank, certified by an Authorized Officer of the Borrower, directing the transfer of such funds to the Revenue Account; and

	(ii)		if such proceeds are in an amount equal to or greater than one million Dollars ($1,000,000) (taken together with any other proceeds of asset disposals deposited in the Extraordinary Proceeds Account during the then-current Fiscal Year), such amounts in excess of one million Dollars ($1,000,000) shall be transferred, upon the written instruction of the Borrower or the Administrative Agent, to the Administrative Agent for application as a prepayment of the Loans in accordance with Section 3.08(d) (Mandatory Prepayment) of the Credit Agreement.

(c)

Withdrawals from the Extraordinary Proceeds Account — Project Document Termination Payments. If at any time Project Document Termination Payments are deposited into the Extraordinary Proceeds Account, then on any Quarterly Payment Date:

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

	(ii)		if such Project Document Termination Payments are in an amount equal to or greater than three million Dollars

($3,000,000) (taken together with any other Project Document Termination Payments received during the then-current Fiscal Year), such amounts in excess of three million Dollars ($3,000,000) shall be transferred, upon the written instruction of the Borrower or the Administrative Agent, to the Administrative Agent for application as a prepayment of the Loans in accordance with Section 3.08(c) (Mandatory Prepayment) of the Credit Agreement.

ARTICLE XI

GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS

Section 11.01 No Security Interests. The Borrower shall not at any time create or permit to subsist any Lien (other than (a) until the Security Discharge Date, first-priority Liens in favor of the Collateral Agent, for the benefit of the Senior Secured Parties, arising under this Accounts Agreement or the other Security Documents and (b) Permitted Liens) on all or any part of any of the Project Accounts or the Account Collateral, or assign, transfer or otherwise dispose of all or any part of its right or title to any of the Project Accounts or the Account Collateral other than in accordance with, or as permitted by, the terms of this Accounts Agreement or the other Financing Documents.

Section 11.02 Borrower Acknowledgments. (a) The Borrower acknowledges that neither any insufficiency of funds in the Project Accounts (or any of them), nor any inability to apply any funds in the Project Accounts (or any of them) against any or all amounts owing under the Credit Agreement or any other Financing Document, shall at any time limit, reduce or otherwise affect the Borrower’s Obligations under the Credit Agreement or any other Financing Document.

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

Section 11.03 Further Assurances. (a) The Borrower shall, at any time and from time to time at the first demand of the Accounts Bank or the Collateral Agent and at the sole cost and expense of the Borrower, promptly and duly execute and deliver, or otherwise authenticate, all further instruments and documents, and take all further action, that may be necessary or required under applicable Law or that the Accounts

Bank or the Collateral Agent may reasonably request, in order to perfect and protect any pledge or security interest granted or purported to be granted hereunder or to enable each of the Accounts Bank, the Collateral Agent, on behalf of the Senior Secured Parties, to exercise and enforce its rights and remedies hereunder with respect to any Account Collateral.

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

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

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

	(iii)		take all action necessary to ensure that the Collateral Agent, for the benefit of the Senior Secured Parties, has a first-priority perfected security interest in all Account Collateral described in Section 2.06 (Grant of First-Priority Security Interest) under the laws of the jurisdiction in which the Borrower is located (within the meaning of Section 9-307 of the UCC);

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

(d) The Borrower hereby authorizes the Administrative Agent and the Collateral Agent to file one or more UCC financing or continuation statements, and

amendments thereto, relating to all or any part of the Account Collateral without the signature of the Borrower where permitted by applicable Law.

Section 11.04 UCC Termination Statements. At the request of the Borrower, upon the Notice of Security Discharge Date, the Collateral Agent will, at the sole cost and expense of the Borrower, file UCC termination statements terminating the existing UCC financing statements filed by the Collateral Agent pursuant to the Financing Documents.

ARTICLE XII

INTEREST AND INVESTMENTS

Section 12.01 Investments. (a) Each amount deposited in or credited to a Project Account from time to time shall, from the time it is so deposited or credited until the time it is withdrawn from that Project Account (whether for the purpose of making an investment in Cash Equivalents or otherwise applied in accordance with the terms of this Accounts Agreement), earn interest at such rates as may be agreed from time to time by the Borrower and the Accounts Bank.

(b) Prior to the receipt by the Accounts Bank of a Notice of Suspension, any amounts held by the Accounts Bank in the Project Accounts shall be invested by the Accounts Bank from time to time, at the risk and expense of the Borrower, solely in such Cash Equivalents as an Authorized Officer of the Borrower shall direct in writing (which may be in the form of a standing instruction). The Borrower shall select Cash Equivalents having such maturities as shall cause the Project Accounts to have a cash balance as of any day sufficient to cover the transfers to be made from the Project Accounts on such day in accordance with this Accounts Agreement, the Credit Agreement, the other Financing Documents, the Project Documents and any Additional Project Documents. Upon delivery by the Collateral Agent to the Accounts Bank of a Notice of Suspension and until written revocation of such Notice of Suspension is delivered to the Accounts Bank by the Collateral Agent, any amounts held by the Accounts Bank in the Project Accounts shall be invested by the Accounts Bank from time to time, solely in such Cash Equivalents as the Collateral Agent or the Administrative Agent, in its sole discretion, may direct; provided that the Accounts Bank’s obligation to invest such amounts is conditioned upon receipt by the Accounts Bank of a valid United States Department of the Treasury Internal Revenue Service tax Form W-9 in accordance with Section 12.03(b) (Interest and Investment Income). Neither the Collateral Agent, the Accounts Bank nor the Administrative Agent shall be liable for any loss resulting from any Cash Equivalents (or any investment or reinvestment therein or liquidation or redemption thereof) from any Project Account or the sale or redemption thereof except to the extent that such loss results solely from the

gross negligence or willful misconduct of the Collateral Agent, the Accounts Bank or the Administrative Agent, as the case may be, it being understood and agreed that in no event shall any of the Administrative Agent, the Accounts Bank or the Collateral Agent, as the case may be, be liable for any loss resulting from any investment made, or any sale or redemption of any investment made, in accordance with instructions received from the Borrower, the Collateral Agent or the Administrative Agent, as the case may be, or failure to receive written direction as required hereunder, or in accordance with Section 12.02 (Sale and Liquidation) hereof.

Section 12.02 Sale and Liquidation. In the event that the cash balance in any of the Project Accounts is as of any day insufficient to cover the transfers to be made from such Project Account on such day (and if advised in writing by the Administrative Agent or the Borrower of such circumstances), the Collateral Agent may (but shall not be obligated to) direct the Accounts Bank, without instructions from the Borrower, to sell or liquidate the Cash Equivalents standing to the credit of such Project Account (without regard to maturity date) in such manner as the Collateral Agent may direct in order to obtain cash at least sufficient to make such transfers and to pay any expenses and charges incurred in connection with effecting any such sale or liquidation, which expenses and charges the Accounts Bank shall be authorized to pay with cash on deposit in such Project Account. Neither the Accounts Bank, the Collateral Agent nor any other Senior Secured Party shall be liable to any Person for any loss suffered because of any such sale or liquidation.

Section 12.03 Interest and Investment Income. (a) All interest and other investment income earned from investments in Cash Equivalents made from amounts in any Project Account shall remain in such Project Account until transferred from such Project Account in accordance with the terms of this Accounts Agreement.

(b) It is acknowledged by the parties hereto that all investment income earned on amounts on deposit in or credited to the Project Accounts for all Tax purposes shall be attributed to and be income of the Borrower. The Borrower shall be responsible for determining any requirements for paying Taxes or reporting or withholding any payments for Tax purposes hereunder. The Borrower shall prepare and file all Tax information required with respect to the Project Accounts. The Borrower agrees to indemnify and hold each Senior Secured Party harmless against all liability for Tax withholding and/or reporting for any investment income earned on the Project Accounts and payments in respect thereof. Such indemnities shall survive the termination or discharge of this Accounts Agreement or resignation of the Accounts Bank. None of the Collateral Agent, the Accounts Bank or any Senior Secured Party shall have any obligation with respect to the making of or the reporting of any payments for Tax purposes. From time to time, and as reasonably requested by the Accounts Bank, the Borrower shall provide to the Accounts Bank a United States Department of the

Treasury Internal Revenue Service tax Form W-9 or other appropriate form required with respect to the withholding or exemption from withholding of income tax on any investment income earned on the Project Accounts. The Accounts Bank shall be entitled to rely on an opinion of legal counsel (which may be counsel to the Borrower) in connection with the reporting of any earnings with respect hereto.

Section 12.04 Accounts Information. (a) The Accounts Bank will:

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

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

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

(c) If any Cash Equivalent ceases to be a Cash Equivalent, the Accounts Bank will, as soon as reasonably practicable after becoming aware of such cessation, notify the Collateral Agent and the Borrower in writing of such cessation and, upon the written direction of the Borrower (or, if the Borrower fails to provide direction within three (3) Business Days of the date of the Accounts Bank’s notice, upon the written direction of the Collateral Agent), will cause the relevant investment to be

replaced by a Cash Equivalent or by cash; provided that this Section 12.04(c) will not oblige the Accounts Bank to liquidate any investment earlier than its normal maturity date unless:

	(i)		directed to do so under Section 12.02 (Sale and Liquidation); or

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

ARTICLE XIII

DEFAULT AND ENFORCEMENT

Section 13.01 Notices of Suspension of Project Accounts. (a) The Collateral Agent may, but shall not be required to, suspend the right of the Accounts Bank and the Borrower to withdraw or otherwise deal with any funds deposited in or credited to the Project Accounts at any time during the occurrence and continuance of an Event of Default by delivering a notice to the Accounts Bank (with a copy to the Borrower and the Administrative Agent) (a “Notice of Suspension”).

(b) Notwithstanding any other provision of the Credit Agreement or any other Financing Document, after the issuance by the Collateral Agent of a Notice of Suspension in accordance with Section 13.01(a) and until such time as the Collateral Agent advises the Accounts Bank and the Borrower in writing that it has withdrawn such Notice of Suspension, no amount may be withdrawn by the Accounts Bank from any Project Account, including for investment in Cash Equivalents, without the express prior written consent of the Collateral Agent.

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

Section 13.02 Collateral Agent Appointed Attorney-in-Fact. The Borrower hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact (which appointment as attorney-in-fact shall be coupled with an interest), with full authority, if a Notice of Suspension has been delivered to the Accounts Bank and until such Notice of Suspension has been withdrawn, to take any action and to execute any and all documents and instruments in the place and stead of the Borrower and in the name of the Borrower or otherwise, that the Collateral Agent may deem necessary or advisable to

accomplish the purposes of this Accounts Agreement in a commercially reasonable manner to the extent required by the UCC, without notice to the Borrower, including:

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

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

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

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

(e) (i) to direct any party liable for any payment under or with respect to any of the Account Collateral to make payment of any and all moneys due or to become due thereunder or with respect thereto directly to the Collateral Agent or as the Collateral Agent may direct, (ii) to ask or make, demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any of the Account Collateral, (iii) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Account Collateral or any part thereof and to enforce any other right in respect of any of the Account Collateral, (iv) to defend any suit, action or proceeding brought against the Borrower with respect to any of the Account Collateral and (v) to settle, compromise or adjust any suit, action or proceeding described in Section 13.02(e)(iii) and (iv) and, in connection therewith, to give such discharges or releases as the Collateral Agent may deem appropriate;

(f) to execute, in connection with any sale, lease, license or other disposition permitted to be made by the Collateral Agent hereunder, any endorsements,

assignments, transfer statements or other instruments of conveyance or transfer with respect to the Account Collateral, and to file or register the same if required by applicable Law; and

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

Section 13.03 Enforcement. (a) Notwithstanding any other provision of the Credit Agreement or any other Financing Document, the Collateral Agent or its designee may, on behalf of the Senior Secured Parties, at any time during the occurrence and continuance of an Event of Default, and following delivery of a Notice of Suspension that has not been withdrawn (provided that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 13.03(a)) take enforcement action with respect to the Account Collateral, as provided in Article VI (Remedies Upon a Security Event of Default) of the Security Agreement. Without limitation and in addition to any and all rights with respect to the Account Collateral under the Credit Agreement or any other Financing Document, the Collateral Agent may take enforcement action by:

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

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

	(iii)		taking possession of the Account Collateral or any part thereof by directing the Accounts Bank or the Borrower, as the case may be, to deliver the same to the Collateral Agent, for the benefit of the Senior Secured Parties, at any place or places designated by the Collateral Agent, it being understood that the Accounts Bank’s and the Borrower’s obligations to so deliver the Account Collateral are of the essence of this Accounts Agreement and that, accordingly,

			upon application to a court of equity having jurisdiction, the Collateral Agent, for the benefit of the Senior Secured Parties, shall be entitled to a decree requiring specific performance by the Accounts Bank or the Borrower, as the case may be, of such obligations;

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

	(v)		withdrawing any and all cash and liquidating any and all Cash Equivalents that are part of the Account Collateral and applying such cash, the liquidation proceeds of Cash Equivalents and other cash, if any, then held as Account Collateral in accordance with Section 13.04 (Application of Proceeds);

	(vi)		selling, assigning or otherwise liquidating the Account Collateral, or any part thereof, at a public or private sale, for cash, upon credit or for future delivery, and at such prices as the Collateral Agent may deem satisfactory, and taking possession of the proceeds of any such sale or liquidation.

(b) Notwithstanding anything to the contrary in this Accounts Agreement, the Credit Agreement or any other Financing Document, the Borrower

acknowledges that if an Event of Default has occurred and is continuing, and following delivery of a Notice of Suspension that has not been withdrawn (provided that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 13.03(b)), the Collateral Agent, on behalf of the Senior Secured Parties, is entitled to apply amounts deposited in or credited to any Project Account as contemplated in Section 13.04 (Application of Proceeds).

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

(d) The Collateral Agent may, during the continuance of an Event of Default, and at any time following the delivery of a Notice of Suspension and until such notice has been withdrawn (provided that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 13.03), exercise its rights under this Section 13.03 as frequently, and as many times, as it considers appropriate.

Section 13.04 Application of Proceeds. Upon the occurrence and during the continuation of an Event of Default, the proceeds of any sale of, or other realization upon, all or any part of the Account Collateral shall be applied in accordance with Section 8.04 (Application of Proceeds) of the Credit Agreement. The Borrower shall remain liable for any deficiency in accordance with the respective Financing Documents to which it is a party.

Section 13.05 Collateral Agent’s Discretionary Powers. Nothing in this Article XIII shall impair the right of the Collateral Agent in its discretion to take or omit to take any action deemed proper by the Collateral Agent and which action or omission is consistent with any express written direction of the Administrative Agent or with the express provisions of this Accounts Agreement. The Collateral Agent shall have the right at any time to seek instructions from the Administrative Agent concerning the administration of this Accounts Agreement, and to request, and receive, direction from the Administrative Agent regarding the enforcement actions set forth in Section 13.03 (Enforcement).

Section 13.06 Regarding the Collateral Agent and the Administrative Agent. The Collateral Agent and the Administrative Agent shall be afforded all of the rights, powers, protections, immunities and indemnities set forth in the Credit Agreement and, in the case of the Collateral Agent, the Security Agreement as if the same were specifically set forth herein.

ARTICLE XIV

THE ACCOUNTS BANK

Section 14.01 Duties of the Accounts Bank and Securities Intermediary. (a) The Accounts Bank, acting as Securities Intermediary, will have the obligations of a securities intermediary under Article 8 of the UCC, and acting as a bank with respect to the Project Accounts, will have the obligations of a bank under Article 9 of the UCC. The Accounts Bank will also have those duties and responsibilities expressly set forth in this Accounts Agreement, and no additional duties, responsibilities, obligations or liabilities shall be inferred from the provisions of this Accounts Agreement or imposed on the Accounts Bank. The Accounts Bank will act at the written direction of the Collateral Agent, the Administrative Agent and, as expressly provided in this Accounts Agreement, the Borrower, but will not be required to take any action that is contrary to this Accounts Agreement or applicable Law or that, in its reasonable judgment, would involve it in expense or liability, unless it has been furnished with adequate indemnity and/or security against such expense or liability. The Accounts Bank will have no responsibility to ensure the performance by any other party of its duties and obligations hereunder. The Accounts Bank will use the same care with respect to the safekeeping and handling of property held in the Project Accounts as the Accounts Bank uses in respect of property held for its own sole benefit. The provisions of this Article XIV are solely for the benefit of the Accounts Bank, the Collateral Agent and the Senior Secured Parties.

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

to the Project Accounts. It is expressly understood and agreed that any investment made with funds held in the Project Accounts may be made only in accordance with the express provisions of Section 12.01 (Investments) and, when an investment is so made, it is expressly understood and agreed that such investment was made with the permission of the Collateral Agent in the exercise of its exclusive possession of, and dominion and control over, the Project Accounts, which it maintains through the Accounts Bank. The Accounts Bank shall not in any way whatsoever be liable for any loss or depreciation in the value of any investments made pursuant to the terms of this Accounts Agreement.

Section 14.02 Exculpatory Provisions. (a) Neither the Accounts Bank nor any of its directors, officers, employees or agents will have any duties or obligations except those expressly set forth herein or required by applicable law. Without limiting the generality of the foregoing, the Accounts Bank shall not:

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

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

	(iii)		except as expressly set forth herein, have any duty to disclose, nor shall the Accounts Bank be liable for any failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained

			by the Accounts Bank or any of its Affiliates in any capacity; or

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

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

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

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

Section 14.03 Reliance by Accounts Bank. The Accounts Bank shall be entitled to rely upon, and shall not (nor shall any of its directors, officers, employees or

agents) incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Accounts Bank also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. The Accounts Bank may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Accounts Bank may at any time and from time to time solicit written instructions in the form of directions from the Administrative Agent, the Collateral Agent or the Required Lenders or an order of a court of competent jurisdiction, as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Accounts Agreement.

Section 14.04 Written Instructions; Notices. (a) Notwithstanding anything in this Accounts Agreement, the Credit Agreement, any other Financing Document to the contrary, the Accounts Bank shall have no obligation to (i) make any payment, transfer or withdrawal from any Project Account until it has received written direction to make such payment, transfer or withdrawal from the Administrative Agent, the Collateral Agent or the Borrower as set forth herein or (ii) determine whether any payment, transfer or withdrawal from any Project Account made in accordance with any written direction from the Administrative Agent, the Collateral Agent or the Borrower complies with the terms of this Accounts Agreement. The Accounts Bank shall have no liability for, nor any responsibility or obligation to confirm, the use or application by the Borrower, the Collateral Agent or the Administrative Agent or any other recipient of amounts withdrawn or transferred from any Project Account.

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

Section 14.05 Resignation or Removal of Accounts Bank. (a) The Accounts Bank may resign from the performance of all its functions and duties hereunder

at any time by giving thirty (30) days’ prior notice to the Borrower and the Collateral Agent. The Accounts Bank may be removed (i) at any time by the Administrative Agent or the Required Lenders, or (ii) in the event of a material breach by the Accounts Bank of its duties hereunder, by the Borrower in consultation with the Administrative Agent. Such resignation or removal shall take effect upon the appointment of a successor Accounts Bank, in accordance with this Section 14.05.

(b) Upon the notice of resignation by the Accounts Bank or upon the removal of the Accounts Bank pursuant to Section 14.05(a), the Administrative Agent shall appoint a successor Accounts Bank hereunder, who shall be a commercial bank having a combined capital and surplus of at least two hundred fifty million Dollars ($250,000,000). So long as no Event of Default has occurred and is continuing, such appointment shall be subject to the Borrower’s approval (such approval not to be unreasonably withheld or delayed).

(c) If no successor Accounts Bank has been appointed by the Administrative Agent within thirty (30) days after the date such notice of resignation was given by the Accounts Bank or the date on which the Administrative Agent, the Required Lenders or the Borrower elected to remove the Accounts Bank, pursuant to Section 14.05(a), any Senior Secured Party may petition any court of competent jurisdiction for the appointment of a successor Accounts Bank. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor Accounts Bank who shall serve as Accounts Bank hereunder until such time, if any, as the Administrative Agent appoints a successor Accounts Bank, as provided above.

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

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

Section 14.06 No Amendment to Duties of Accounts Bank Without Consent. The Accounts Bank shall not be bound by any waiver, amendment, supplement or modification of this Accounts Agreement that affects its rights or duties hereunder or thereunder unless the Accounts Bank shall have given its prior written consent, in its capacity as Accounts Bank, thereto.

ARTICLE XV

REPRESENTATIONS AND WARRANTIES

Section 15.01 Representations and Warranties. The Borrower represents and warrants as of the date of this Accounts Agreement that:

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

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

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

(d) except for the filings, registrations, notifications and recordings referred to in Section 15.01(b), no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for (i) the grant by the Borrower of the pledge and security interest granted hereunder or for the execution, delivery or performance of this Accounts Agreement by the Borrower, (ii) the perfection or maintenance of the pledge and security interest created hereunder (including the first-priority nature of such pledge and security interest in favor of the Collateral Agent for the benefit of the Senior Secured Parties), or (iii) the exercise by the Collateral Agent, on behalf of the Senior Secured Parties, and the Accounts Bank of their respective rights provided for in this Accounts Agreement or the remedies in respect of the Account Collateral pursuant to this Accounts Agreement;

(e) except for the rights of the Collateral Agent, for the benefit of the Senior Secured Parties, granted hereunder or pursuant hereto, it does not know of and has not received written notice of any right or claim to or interest in (including any adverse claim) any Account Collateral by any Person other than the Borrower; and

(f) its exact legal name is ABE South Dakota, LLC, it is duly organized and validly existing as a limited liability company under the laws of the State of Delaware and except as set forth in Schedule 5.28 (Prior Legal Names of Borrower) of the Credit Agreement, it has not had any other names in the previous five (5) years, and its chief executive office is located at the address provided for the Borrower in Section 16.11(Notices and Other Communications).

ARTICLE XVI

MISCELLANEOUS

Section 16.01 Termination. This Accounts Agreement shall terminate if the Security Discharge Date has occurred. Upon termination of this Accounts Agreement, all Funds in the Project Accounts shall be released to the Borrower.

Section 16.02 Amendments, Etc. No amendment or waiver of any provision of this Accounts Agreement and no consent to any departure by the Borrower shall be effective unless in writing signed by the Collateral Agent and, in the case of an amendment, the Borrower, the Collateral Agent, the Administrative Agent and the

Accounts Bank, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that no amendment, waiver or consent shall, unless in writing and signed by the Accounts Bank in addition to the Collateral Agent, affect the rights or duties of, or any fees or other amounts payable to, the Accounts Bank under this Accounts Agreement.

Section 16.03 Applicable Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS ACCOUNTS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS ACCOUNTS AGREEMENT, OR ANY OTHER FINANCING DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS ACCOUNTS AGREEMENT OR IN ANY OTHER FINANCING DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY SENIOR SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS ACCOUNTS AGREEMENT, ANY OTHER FINANCING DOCUMENT AGAINST THE BORROWER, THE ACCOUNTS BANK OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION

OR PROCEEDING ARISING OUT OF OR RELATING TO THIS ACCOUNTS AGREEMENT OR ANY OTHER FINANCING DOCUMENT IN ANY COURT REFERRED TO IN SECTION 16.03(b). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) Appointment of Process Agent and Service of Process. The Borrower hereby irrevocably appoints C T Corporation System with an office on the date hereof at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its agent to receive on behalf of itself and its property services of copies of the summons and complaint and any other process that may be served in any such action or proceeding in the State of New York. If for any reason the Process Agent shall cease to act as such for the Borrower, the Borrower hereby agrees to designate a new agent in New York City on the terms and for the purposes of this Section 16.03(d) reasonably satisfactory to the Collateral Agent, on behalf of the Senior Secured Parties. Such service may be made by mailing or delivering a copy of such process to the Borrower in care of the Process Agent at the Process Agent’s above address, and the Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, the Borrower also irrevocably consents to the service of any and all process in any such action or proceeding by the air mailing of copies of such process to the Borrower at its then effective notice addresses pursuant to Section 16.11(Notices and Other Communications).

(e) Immunity. To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Borrower hereby irrevocably and unconditionally waives such immunity in respect of its obligations under this Accounts Agreement, the other Financing Documents and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 16.03(d) shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.

(f) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS ACCOUNTS AGREEMENT, ANY OTHER FINANCING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER

THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS ACCOUNTS AGREEMENT, THE OTHER FINANCING DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 16.03.

Section 16.04 Assignments. The provisions of this Accounts Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Collateral Agent and the Administrative Agent, and the Accounts Bank may not assign or delegate any of its rights or obligations under this Accounts Agreement except pursuant to Section 14.05 (Resignation or Removal of Accounts Bank).

Section 16.05 Benefits of Accounts Agreement. Nothing in this Accounts Agreement or any other Financing Document, express or implied, shall give to any Person, other than the parties hereto, the Senior Secured Parties and their respective successors and assigns permitted under this Accounts Agreement or any other Financing Document, Participants to the extent provided in Section 10.03 (Assignments) of the Credit Agreement, and Related Parties of the Administrative Agent, the Collateral Agent and the Accounts Bank any benefit or any legal or equitable right or remedy under or by reason of this Accounts Agreement.

Section 16.06 Costs and Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Accounts Bank, the Administrative Agent and the Collateral Agent (including all reasonable fees, costs and expenses of counsel and financial advisors for the Accounts Bank, the Administrative Agent and the Collateral Agent), in connection with the preparation, negotiation, execution and delivery of this Accounts Agreement and the administration and maintenance of the Project Accounts (whether or not the transactions contemplated hereby are consummated); (ii) all reasonable and documented out-of-pocket expenses incurred by the Collateral Agent, the Administrative Agent and the Accounts Bank (including all reasonable fees, costs and expenses of counsel and financial advisors for Collateral Agent, the Administrative Agent and the Accounts Bank), in connection with any amendments, modifications or waivers of the provisions of this Accounts Agreement (whether or not the transactions contemplated hereby are consummated); (iii) all reasonable and documented out-of-pocket expenses incurred by the Accounts Bank, the Administrative Agent and the Collateral Agent (including all reasonable fees, costs and

expenses of counsel and financial advisors for Accounts Bank, the Administrative Agent and the Collateral Agent), in connection with the administration of this Accounts Agreement (whether or not the transactions contemplated hereby are consummated); and (iv) all out-of-pocket expenses incurred by the Accounts Bank, the Administrative Agent and the Collateral Agent (including all fees, costs and expenses of counsel and financial advisors for any of the Accounts Bank, the Administrative Agent and the Collateral Agent), in connection with the enforcement or protection of their rights in connection with this Accounts Agreement, including their rights under this Section 16.06, including in connection with any workout, restructuring or negotiations in respect of any of the Obligations.

Section 16.07 Counterparts; Effectiveness. This Accounts Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Accounts Agreement shall become effective when it has been executed by the Collateral Agent and when the Collateral Agent has received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Accounts Agreement by telecopy or portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Accounts Agreement. With effect on and from the Effective Date, the Original Accounts Agreement shall be amended and restated in its entirety by this Accounts Agreement and the rights and obligations of the parties under the Original Accounts Agreement shall be governed by and construed in accordance with this Accounts Agreement. The performance of the parties’ obligations under this Accounts Agreement prior to the date hereof shall be deemed to be governed by and construed in accordance with the Original Accounts Agreement.

Section 16.08 Indemnification by the Borrower. In addition to the indemnity by Borrower set forth in Section 16.11(f) (Notices and Other Communications), the Borrower hereby agrees to indemnify the Collateral Agent (and any sub-agent thereof), the Administrative Agent (and any sub-agent thereof), the Accounts Bank and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including all reasonable fees, costs and expenses of counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Borrower arising out of, in connection with, or as a result of:

(a) the execution or delivery of the Original Accounts Agreement, this Accounts Agreement, the Restructuring Agreement or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their

respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby;

(b) any funds deposited in or credited to any Project Account (as defined hereunder or under the Original Accounts Agreement) or the use or proposed use of the proceeds therefrom; and

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

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

Section 16.09 No Waiver; Cumulative Remedies. No failure by any Senior Secured Party, the Accounts Bank, the Administrative Agent or the Collateral Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder, or under any other Financing Document, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Financing Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Section 16.10 Conflicting Instructions. If pursuant to any provision of this Accounts Agreement that provides for any of the Collateral Agent or the Administrative Agent or the Borrower to give instructions, directions, notices, certificates, requests or requisitions to the Accounts Bank, the Accounts Bank receives conflicting instructions, directions, notices, certificates, requests or requisitions from the Collateral Agent or the Administrative Agent, as applicable, and the Borrower, the instruction, direction, notice, certificate, request or requisition provided by the Collateral Agent or the Administrative Agent, as applicable, shall control and the Accounts Bank shall comply with any and all such instructions originated by the Collateral Agent or the Administrative Agent, as applicable.

Section 16.11 Notices and Other Communications. (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 16.11(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or electronic mail as follows:

If to the Borrower:

ABE South Dakota, LLC
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:       Chief Executive Officer
Telephone:     000-000-0000
Facsimile:      000-000-0000
E-mail:           xxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx

If to the Accounts Bank:

Amarillo National Bank
X.X. Xxx 0
Xxxxxxxx, Xxxxx 00000
(or, for delivery by overnight courier, to:
000 X. Xxxxxx
Xxxxxxxx, Xxxxx 79101)
Attention:       Xxxxx Xxxxxxx, Executive Vice President
Telephone:     000- 000-0000
Facsimile:      806-345-1663
E-mail:           xxxxx.xxxxxxx@xxx.xxx

If to the Collateral Agent:

WestLB AG, New York Branch
7 World Trade Center
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:       Xxxxxx Xxxxxxx
Telephone:      000 000-0000
Facsimile:       000 000-0000
Email:             Xxxxxx_Xxxxxxx@xxxxxx.xxx
Group e-mail: XXX_Xxxxxxxxx_Xxxxxx@XxxxXX.xxx

If to the Administrative Agent:

WestLB AG, New York Branch
7 World Trade Center
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:      Xxxxxx Xxxxxx
Telephone:    (000) 000-0000
Facsimile:     (000) 000-0000
E-mail:          XXX_Xxxxxx_Xxxxxxxx@XxxxXX.xxx

(b) Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 16.11(d)) shall be effective as provided in Section 16.11(d).

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

(d) Unless otherwise prescribed, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not received during the normal business hours of the recipient, such notice or communication shall be deemed to have been received at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in Section 16.11(a) of notification that such notice or communication is available and identifying the website address therefor.

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

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

Section 16.12 Patriot Act Notice. The Accounts Bank hereby notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Accounts Bank to identify the Borrower in accordance with the Patriot Act.

Section 16.13 Severability. If any provision of this Accounts Agreement or any other Financing Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Accounts Agreement or such other Financing Document shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 16.14 Survival. Notwithstanding anything in this Accounts Agreement to the contrary, Article XV (Representations and Warranties) and Section 16.06 (Costs and Expenses) and Section 16.08 (Indemnification by the Borrower) shall survive any termination of this Accounts Agreement. In addition, each representation and warranty made hereunder, in any other Financing Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Accounts Bank, the Collateral Agent, the

Administrative Agent and each other Senior Secured Party, regardless of any investigation made by the Accounts Bank, the Collateral Agent, the Administrative Agent or any other Senior Secured Party, or on their behalf and notwithstanding that the Accounts Bank, the Collateral Agent, the Administrative Agent or any other Senior Secured Party may have had notice or knowledge of any Default or Event of Default at the time of the Funding, and shall continue in full force and effect as long as any Loan, any other Obligation hereunder or under any other Financing Document shall remain unpaid or unsatisfied.

Section 16.15 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Accounts Agreement, any other Financing Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Accounts Agreement, the other Financing Documents or the transactions contemplated hereby or thereby.

Section 16.16 Waiver of Litigation Payments. To the extent that the Borrower may, in any action, suit or proceeding brought in any of the courts referred to in Section 16.03(b) (Applicable Law; Jurisdiction; Etc.) or elsewhere arising out of or in connection with this Accounts Agreement or any other Financing Document to which it is a party, be entitled to the benefit of any provision of law requiring any Lender or any Agent in such action, suit or proceeding to post security for the costs of such Person or to post a bond or to take similar action, each such Person hereby irrevocably waives such benefit, in each case to the fullest extent now or in the future permitted under the laws of New York or, as the case may be, the jurisdiction in which such court is located.

Section 16.17 Bond Trustee. The Bond Trustee is a signatory to this agreement for the sole purpose of acknowledging and giving its prior written consent to the amendment and restatement of the Original Accounts Agreement contemplated hereby, and, unless the context otherwise requires, the words “party” and “parties” when used in this Accounts Agreement (except for Section 16.07 (Counterparts; Effectiveness)) shall not be references to the Bond Trustee.

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

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


ABE SOUTH DAKOTA, LLC, as the Borrower
By:	/s/ Xxxxxxx X. Xxxxxxxx
	Name:	Xxxxxxx X. Xxxxxxxx
	Title:	President and Chief Executive Officer

Signature Page to Amended and Restated Accounts Agreement


AMARILLO NATIONAL BANK, as the Securities Intermediary
By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Executive Vice President

AMARILLO NATIONAL BANK, as the Accounts Bank
By:	/s/ Xxxxx X. Xxxxxxx
	Name:	Xxxxx X. Xxxxxxx
	Title:	Executive Vice President

Signature Page to Amended and Restated Accounts Agreement


WESTLB AG, NEW YORK BRANCH, as the Collateral Agent
By:	/s/ X. Xxxxx Min
	Name:	X. Xxxxx Min
	Title:	Managing Director


By:	/s/ Xxxxxxxx X’Xxxxxx
	Name:	Xxxxxxxx X’Xxxxxx
	Title:	Director


WESTLB, AG, NEW YORK BRANCH, as the Administrative Agent
By:	/s/ X. Xxxxx Min
	Name:	X. Xxxxx Min
	Title:	Managing Director


By:	/s/ Xxxxxxxx X’Xxxxxx
	Name:	Xxxxxxxx X’Xxxxxx
	Title:	Director

Signature Page to Amended and Restated Accounts Agreement

IN WITNESS WHEREOF, the party below acknowledges and accepts this Accounts Agreement by its officer as of the day and year first above written.


THE PARTY BELOW IS EXECUTING THIS AGREEMENT SOLELY FOR PURPOSES OF SECTION 16.07 (Counterparts; Effectiveness) and 16.17 (Bond Trustee): XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE OF THE XXXXX COUNTY, SOUTH DAKOTA SUBORDINATE SOLID WASTE FACILITIES REVENUE BONDS (HEARTLAND GRAIN FUELS, L.P. ETHANOL PLANT PROJECT) SERIES 2007A, as the Bond Trustee
By:	/s/ Xxxxxxx X. Xxxxx
	Name:	Xxxxxxx X. Xxxxx
	Title:	Vice President

Signature Page to Amended and Restated Accounts Agreement

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AMENDED AND RESTATED ACCOUNTS AGREEMENT dated as of June 16, 2010 among ABE SOUTH DAKOTA, LLC, as the Borrower, AMARILLO NATIONAL BANK, as the Accounts Bank and the Securities Intermediary, WESTLB AG, NEW YORK BRANCH, as the Collateral Agent for the...

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