Common use of Construction Account Clause in Contracts

Construction Account. (a) The Administrative Agent shall, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate of the Company setting forth the costs due and payable and to be paid from the Construction Account, distribute, from the cash available in the Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall, upon receipt by it of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid or are no longer payable, distribute, from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;

Construction Account. (a) The Administrative Agent shall, upon receipt by it of a final Borrowing Notice in respect of a Construction Loan with attached payment instructions or a certificate of the Company setting forth the costs Project Costs due and payable and to be paid from the Construction Account, distribute, from the cash available in the Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such final Borrowing Notice or certificate. In order Such costs may include repayment to fund the payment Spon sor/Shareholder, without duplication of such costsamounts distributed to the Company under Section 8.8(a)"first", of Advance Pre-Sales Equity in an aggregate amount not to exceed at any time an amount equal to (x) the aggregate Level 3 Proceeds actually paid by Xxxxx 0 and received by the Contractor, the NACS Contractor or other Persons to whom Level 3 Proceeds are payable pursuant to the Development Agreement and/or the Level 3 Fiber Pair Agreement since the initial Borrowing Date and as of the relevant date of determination, as certified by a Responsible Officer of the Company LESS (y) any amounts previously distributed to the Company pursuant to Section 8.8(a)"first", the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, at the option of the Company stated in such Borrowing Notice or certificate, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall, upon receipt by it of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid or are no longer payable, distribute, from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;

Construction Account. (a) The Administrative Agent shall, upon Upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate the Depositary Bank, the following amounts shall be deposited into the Construction Account: (i) the proceeds of the Company setting forth Construction Loans disbursed on any Borrowing Date; (ii) the costs proceeds of all cash equity contributions made to the Borrower pursuant to the Equity Contribution Agreement; (iii) all Pre-Completion Project Revenues transferred from the Revenue Account pursuant to Section 4.2(c); (iv) all Loss Proceeds received by the Borrower on or prior to the Term Conversion Date; and (v) all other amounts permitted or required to be transferred to the Construction Account from any other Account as provided in this Agreement. (b) Unless there shall have occurred and be continuing an Event of Default or an Event of Default will occur upon giving effect to the application described herein (except as provided in Section 8.1), on each Disbursement Date (but not more often than once per month), the Borrower may withdraw amounts in the Construction Account to pay for Project Costs actually due and payable on such date or which are not yet due and payable but which the Borrower reasonably anticipates will become so within [***] days after such Disbursement Date (or within [***] days in the case of the PUMA, without duplication), in each case to the payees entitled to receive such amounts (or for deposit in the Local Account for payment to such payees as set forth in the applicable Construction Account Withdrawal Certificate) in accordance with the applicable Construction Account Withdrawal Certificate. Such Construction Account Withdrawal Certificate shall be paid from delivered concurrently with the delivery of a Drawdown Certificate by the Borrower to the Administrative Agent and the Independent Engineer pursuant to Section 3.2(d)(i) of the Credit Agreement. All such Withdrawals shall be made pursuant to a Construction Account Withdrawal Certificate, duly completed and delivered by the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank in accordance with Section 2.5 hereof. (c) On the Term Conversion Date, the Depositary Bank shall transfer the funds on deposit in the Construction Account as follows: First, transfer to a designated “completion” Sub-Account of the Construction Account, distributean amount equal to the sum of (1) any Project capital costs which the Borrower reasonably anticipates will become due and payable under the PUMA after the Term Conversion Date (as certified by the Independent Engineer) plus (2) costs related to completion of the Projects (as certified by the Independent Engineer). Second, from transfer (in accordance with Section 4.2(b) hereof) to the cash available Debt Service Reserve Account funds sufficient to cause the balance in the Debt Service Reserve Account, when added to any letters of credit posted by the Borrower, to equal the then-applicable Required DSR Balance. Third, transfer to the Prepayment Account an amount equal to the Conversion Payoff to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(g) of the Credit Agreement. Fourth, (i) if the Term Conversion Date Distribution Conditions are satisfied, distribute remaining amounts on deposit in the Construction Account, except to the Company for extent otherwise directed by both Sponsors, in writing, distribute the benefit of the Persons entitled thereto, all remaining amounts then due and owing as set forth on deposit in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from to the following sources Sponsors pro rata in accordance with their respective Applicable Sponsor Share and (in ii) if the indicated priority): 136 FIRSTTerm Conversion Date Distribution Conditions are not satisfied, from the Pre-Sale Proceeds Account, all funds transfer remaining amounts on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall, upon receipt by it of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid or are no longer payable, distribute, from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;Revenue Account for application in accordance with Section 4.2.

Construction Account. (a) The Administrative Agent shallAs contemplated by Section 2.1, upon receipt by it of a Borrowing Notice with attached payment instructions on or a certificate prior to the Financial Closing Date, Depositary shall establish in the name of the Company setting forth Collateral Agent at Depositary an account entitled “New York 2008 Portfolio Wind Generation Projects – Construction Account” (the costs due “Construction Account”). The proceeds of all Construction Loans and payable and to all Test Revenues shall be paid from deposited into the Construction Account, distribute, from the cash available in the Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On Funds in the Conversion Date, the Administrative Agent shall, upon receipt Construction Account shall be applied by it of a certificate of the Company stating disbursement by Depositary pursuant to an Executed Withdrawal/Transfer Certificate or as otherwise specified in Article 4 (provided that all costs to be paid any such disbursements from the Construction Account made after the Term-Conversion Date shall be subject to the conditions set forth in clause (f) below): (i) for the payment of Project Costs; or (ii) to the Project Company Construction Accounts for payment, or reimbursement of prior payment, of Project Costs. (c) Funds in the Project Company Construction Accounts shall be applied by disbursement by Depositary pursuant to an Executed Withdrawal/Transfer Certificate or as otherwise specified in Article 4: (i) to the applicable Construction Working Capital Account for the reimbursement of Project Costs that have been paid evidenced by (A) an invoice (open or paid) or (B) other evidence of payment of Project Costs, which solely with respect to clause (B), are no longer payablereasonably satisfactory to Administrative Agent; or (ii) to the EPC Contractor Construction Account or such other entity or account indicated in such Executed Withdrawal/Transfer Certificate for the payment of Project Costs. (d) Funds in the EPC Contractor Construction Account shall be applied by disbursement by Depositary pursuant to an Executed Withdrawal/Transfer Certificate or as otherwise specified in Article 4, distributeto the account of the EPC Contractor or such other entity or account indicated in such Executed Withdrawal/Transfer Certificate for the payment of Project Costs. (e) In furtherance thereof, from Borrower agrees that, upon the cash available occurrence and during the continuance of an Event of Default, (i) Depositary, at the direction of Collateral Agent, may transfer any or all of the sums in the Construction Account, the Construction Working Capital Accounts, Project Company Construction Accounts and EPC Contractor Construction Account into the account of the applicable Contractors, or any other materialmen or subcontractors in payment of amounts set forth due and owing to such party from any Noble Entity without further authorization from Borrower, (ii) Collateral Agent may direct Depositary to make such direct payments and (iii) no further direction or authorization from Borrower shall be necessary to warrant or permit Collateral Agent to direct Depositary to make such direct payments. (f) Collateral Agent and Depositary shall have the right, but not the obligation, to (i) upon the occurrence and during the continuation of an Event of Default, supply any missing endorsements of any Noble Entity or Noble Environmental that are not supplied after a written request by Collateral Agent and to pay and charge items payable by Depositary pursuant to and in such certificate accordance with this Article 5; (ii) refuse to honor any check drawn on any Account which does not sufficiently identify the work or materials covered by the check, or which conflicts with this Agreement, the Intercreditor Agreement or the Financing Agreement, or which has been improperly filled out or endorsed; (iii) create and charge to the applicable Account overdrafts and all applicable charges under The Bank of New York Fee Agreement related to the Accounts; (iv) remit copies of checks and other items related to the Accounts with statements instead of the originals which may be retained by Depositary; and (v) upon the occurrence and during the continuation of an Event of Default, pay First Lien Obligations and amounts under the Project Documents (A) owing and past due after any applicable grace period and (B) not being contested in good faith by any Noble Entity, in accordance with this Agreement, the Intercreditor Agreement and the Financing Agreement. Collateral Agent shall promptly notify Borrower of any of the above actions. (g) On the Term-Conversion Date, after application of the Borrowings described in Section 3.3(a) of the Financing Agreement, the proceeds of the Final Drawing and all amounts remaining in the following order Construction Account (other than the proceeds of priority: FIRSTthe Term Loan, if any, made on the Term-Conversion Date pursuant to Section 2.12 of the Administrative Agent, Financing Agreement and any other amounts to be applied to the payment of Project Costs in respect of Incomplete Turbines (if any)) shall be deposited, pursuant to an Executed Withdrawal/Transfer Certificate into the Operating Account; provided, however, that and, unless an Event of Default has occurred and is continuing as of such date, the Noble Base Equity Excess Amount, if any, shall be released to an unrestricted account designated by Borrower irrespective of the conditions set forth in Section 6.6 of the Financing Agreement. On the Incomplete Turbine Completion Date, all accrued but unpaid interest on amounts remaining in the Construction Loans or Account, the Term LoansProject Company Construction Accounts and/or the EPC Contractor Construction Account shall be deposited pursuant to an Executed Withdrawal/Transfer Certificate, as applicable; SECONDinto the Operating Account (or, to the Administrative Agentextent required pursuant to Section 2.12(f) of the Financing Agreement, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal Term Loan as provided therein); provided, however, that and, unless an Event of Default has occurred and is continuing as of such date, the Revolving Credit LoansNoble Base Equity Excess Amount, if any; FOURTH, shall be released to an unrestricted account designated by Borrower irrespective of the conditions set forth in Section 6.6 of the Financing Agreement. (h) At all times after the Term-Conversion Date and until the Incomplete Turbine Completion Date, the disbursement of amounts on deposit in the Construction Account shall be subject to the following conditions (in addition to the other conditions specified herein for such disbursements): (i) Administrative AgentAgent shall have received a certificate from Borrower, substantially in the form attached as Exhibit G-1 to the Financing Agreement, dated the date such Borrowing is proposed to be applied made, certifying to the prepayment matters set forth in Section 3.4 of the unpaid principal Financing Agreement as of the Construction Loans or the Term Loans, as applicable; FIFTH, date of such disbursement; (ii) not less than four (4) Banking Days prior to the date proposed for such disbursement, Borrower shall provide Administrative AgentAgent with a certificate, dated the date such Borrowing is to be applied made and signed by Borrower, substantially in the form of Exhibit D-4 to the cash collateralization Financing Agreement and (ii) not less than four (4) Banking Days prior to the date proposed for such disbursement, the Independent Engineer shall have received all necessary information from Borrower and the EPC Contractors and shall have provided Administrative Agent with a certificate of the unused Revolving Credit CommitmentsIndependent Engineer, in substantially the form of Exhibit D-6 to the Financing Agreement; (iii) after taking into consideration the disbursement being requested, Available Construction Funds shall not be less than the aggregate unpaid amount of Project Costs estimated by the Independent Engineer as necessary to cause Completion of the Incomplete Turbines and Final Completion with respect to all of the Projects in all material respects in accordance with all Legal Requirements and the Construction Contracts on terms or prior to a date not later than the Initial Repayment Date and pursuant the Final Completion Date, respectively; (iv) Borrower shall provide a “date down” endorsement to documentation the Title Policies, which endorsement shall increase the coverage of the Title Insurance Policies by the amount of such disbursement, amend the effective date of the Title Insurance Policies to the date of such Borrowing and continue to insure the first priority lien of the Mortgages subject to no Liens or encumbrances, other than Permitted Liens; (v) Borrower shall have delivered to Administrative Agent duly executed acknowledgments of payments and lien waivers in the form attached as Exhibit D-8 to the Financing Agreement (or in such other form reasonably satisfactory to the Administrative Agent;), from each applicable Contractor and its subcontractors and materialmen for all work, services and materials, including equipment and fixtures of all kinds, done, previously performed or furnished which were the subject of disbursements from the Construction Account since the Term-Conversion Date and prior to the requested disbursement; provided, that with respect to any disbursement, lien waivers shall not be required from (i) the Turbine Supplier, unless such lien waivers are delivered by the Turbine Supplier under the Turbine Supply Agreement or (ii) subcontractors and materialmen with respect to a contract, subcontract or purchase order with a value of less than $1,000,000; and (vi) all Applicable Permits required to have been obtained by the date of such disbursement shall have been issued and shall be in full force and effect and reasonably satisfactory in form and substance to Administrative Agent and, except as set forth on Exhibit H-2 to the Financing Agreement, not subject to (x) any unsatisfied condition that must be satisfied prior to the Permit becoming effective or (y) any pending or threatened appeal or other proceedings, except in each case that could not reasonably be expected to result in a Material Adverse Effect.

Construction Account. (a) The Administrative Agent shallOn the Closing Date, upon receipt by it the Company shall cause the Trustee to make the transfer specified in the final sentence of a Borrowing Notice with attached payment instructions or a certificate Section 5.1 of the Company setting forth Indenture and the costs due and payable and to be paid from Collateral Agent shall deposit the Construction Account, distribute, from the cash available amount so received in the Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Closing Date, the Administrative Agent shall, upon receipt by it the Collateral Agent of a certificate complete and properly executed requisition substantially in the form of Exhibit 3.8 (a "Requisition") signed by the Company stating that all costs to (the contents of which shall be paid from confirmed by the Independent Engineer), the Collateral Agent shall apply the amounts in the Construction Account to the payment, or reimbursement, to the extent the same have been paid or are no longer payablesatisfied by the Company, distributeof Project Costs. (c) Monthly after the Closing Date, or as frequently as may reasonably be necessary, the Company may submit a Requisition to disburse monies from the cash available Construction Account; provided, that each Requisition (except for any Requisition with respect to the initial drawing on the Closing Date) shall be submitted to the Collateral Agent no less than three (3) Business Days in advance of the drawing date and shall include the following: (i) a certification that the proceeds thereof shall be used solely to pay Project Costs in accordance with the Indenture; (ii) a certification that work performed to date has been satisfactorily performed in a good and workmanlike manner and according to the EPC Contract; (iii) a statement that undisbursed funds in the Construction Account, together with funds available under the Equity Subscription Agreement and other available sources of funds, are reasonably expected to be sufficient to complete the Facility according to the EPC Contract by the Date Certain; (iv) a statement that no Default or Event of Default under the Indenture, the DSR LOC Reimbursement Agreement, the CP LOC Reimbursement Agreement or any working capital facility has occurred and is continuing; (v) a statement that all proceeds of prior Requisitions have been expended or applied pursuant to the provisions of the Financing Documents and that the items for which amounts are requested in the subject Requisition have not been the basis for a previous Requisition; (vi) a certification that required insurance, material Governmental Approvals and necessary Project Contracts are in full force and effect; and (vii) a certification that the representations set forth in Sections 3.1, 3.3, 3.4, 3.5, 3.8 and 3.10 of the Indenture are true and correct in all material respects. Subject to the remaining provisions of this Section 3.8, upon receipt of a properly delivered Requisition, the Collateral Agent shall transfer funds from the Construction Account in accordance with such Requisition. (d) If the Company cannot satisfy the requirements of clauses (i) or (v) of Section 3.8(c), the Collateral Agent shall not release funds from the Construction Account in respect of such Requisition until such clauses are satisfied. If the Company cannot satisfy clauses (ii), (iii), (iv), (vi) or (vii) of Section 3.8(c), but the Collateral Agent receives a Requisition signed by the Company (the contents of which shall be confirmed by the Independent Engineer) (i) specifying and identifying the failure, and the causes for the failure, to satisfy the requirements of such clauses (ii), (iii), (iv), (vi) or (vii) of Section 3.8(c) and (ii) certifying that (A) the requirements of clauses (i) and (v) of Section 3.8(c) are satisfied, (B) there exists no Bankruptcy Event in respect of the Company or AES Ironwood, and (C) each of the EPC Contract, the Power Purchase Agreement, required insurance policies and material Governmental Approvals needed for construction of the Facility is in full force and effect, then the Collateral Agent shall disburse funds in accordance with such Requisition. Within fifteen (15) days of receipt of such Requisition, the Collateral Agent shall give notice to the Senior Parties describing such failure and specifying that, unless the Required Senior Parties give notice to the Collateral Agent of their objection to payment of further Requisitions containing any such specified failures, the Collateral Agent shall continue to make payment of such Requisitions from available funds in the Construction Account, unless the Collateral Agent shall have received, by the second Business Day prior to the time of payment of such Requisition, notice of objection from the Required Senior Parties. (e) Notwithstanding the foregoing, the Collateral Agent will not release funds from the Construction Account in respect of a requisition if a Trigger Event shall have occurred and be known to the Collateral Agent and be continuing until the Collateral Agent determines that such Trigger Event is no longer continuing or the Required Senior Parties give instructions to the Collateral Agent as to application of funds. (f) If on the date that the Collateral Agent receives a Requisition pursuant to Section 3.8(c) there are insufficient monies in the Construction Account to fully satisfy the uses of funds set forth in such certificate in Requisition, the following order of priority: FIRSTCollateral Agent shall, to the Administrative Agentand is hereby directed to, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or date such Requisition is so received deliver a written notice in accordance with the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment Equity Subscription Agreement requesting an Equity Contribution in accordance with Section 2 of the unpaid principal Equity Subscription Agreement. The Collateral Agent shall apply the proceeds of such Equity Contribution in accordance with the Revolving Credit Loans, if any; FOURTH, to provisions of Section 3.8 and the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;remaining provisions hereof.

Construction Account. (a) The Administrative Agent shallTrustee shall establish an account styled "RBF Exploration Construction Account" (the "Construction Account"), subject to the Trustee's sole dominion and control. From the proceeds received by the Issuer upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate the issuance of the Company setting forth Notes pursuant hereto and pursuant to the costs due and payable and Note Purchase Agreements, Issuer shall deposit or cause to be paid from the Construction Account, distribute, from the cash available deposited in the Construction Account, Account all proceeds received by the Issuer upon the issuance of the Notes pursuant hereto and pursuant to the Company for the benefit of the Persons entitled theretoNote Purchase Agreements, all less any amounts then due and owing as set forth in such certificate. In order used to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Payment Reserve Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On Upon receipt of a duly completed Certificate of Requisition (with all required attachments) (which may be completed by and signed by the Conversion DateSureties as provided in paragraph (3)(a) of the Performance Bond) together with a duly completed Engineer s Certification executed by the Independent Engineer, provided (unless the Certificate of Requisition is submitted by the Sureties as aforesaid) no Indenture Default or Indenture Event of Default has occurred and is continuing, the Administrative Agent shall, upon receipt by it Trustee (subject to the priority of a certificate payment of any amounts due under Section 5.1(b)) shall advance the Company stating that all costs to be paid amount so requested from the Construction Account have been paid to the Building Account of the Issuer (or are no longer payable, distribute, the Sureties as appropriate) on the date which is two (2) Business Days from the cash available receipt by the Trustee of such Certificate of Requisition. By submission of each Certificate of Requisition to the Trustee, the Issuer shall be deemed to represent to the Trustee and the Note Holders that (i) the information contained in the Certificate of Requisition is true, (ii) the representations and warranties of the Issuer contained in this Indenture and in the Note Purchase Agreements and otherwise made in writing by or on behalf of the Issuer pursuant to the Indenture and the Note Purchase Agreements were true and correct when made and are true and correct at and as of the time of delivery of such certificate, except to the extent such representations and warranties are expressly limited to an earlier date or the Required Holders have expressly consented in writing to the contrary, (iii) the Issuer has performed and complied with all agreements and conditions contained in this Indenture and in the Note Purchase Agreements required to be performed or complied with by it prior to or at the time of delivery of such certificate, (iv) since the Purchase Date (as defined in the Note Purchase Agreement), no change has occurred, either in any case or in the aggregate, in the condition, financial or otherwise, of the Issuer or the Parent which would have a Material Adverse Effect, (v) there exists, and, after giving effect to the advance with respect to which such certificate is being delivered, will exist, no Indenture Default, (vi) no defaults or events which with notice or lapse of time could create a default have occurred and are continuing under the Construction Contract, the Construction Contract is in full force and effect and all work performed to date has been completed in a good and workmanlike manner and in compliance with the Construction Contract and the Specifications of the Drilling Rig and (vii) after the advance of funds requested by such certificate the funds remaining in the Construction AccountAccount will be sufficient for completion of the Drilling Rig in accordance with the Construction Contract, the amounts Specifications therefor, the furnishing of the Owner s Supplies and for compliance with the SDDI Contract. If the Certificate of Requisition is submitted by the Sureties, the Sureties shall be deemed to make the representations set forth in such certificate (i) above to the Trustees and the Note Holders. On the Commencement Date, any moneys remaining in the following order of priority: FIRST, Construction Account shall be transferred to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;Collection Account.

Construction Account. (a) After the Effective Date, the Agent shall establish a separate account or accounts with respect to each Additional Unit (each such account a “Construction Account” and collectively the “Construction Accounts”). The Administrative Agent shallamounts held in the Construction Accounts, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate which in the discretion of the Company setting forth Agent may be interest bearing or non-interest bearing, may be physically maintained by the costs due Agent in one or more bank accounts by a bank or banks the deposits in which are insured, subject to applicable limits, by the Federal Deposit Insurance Corporation and payable which meets or meet all applicable requirements imposed upon depositaries of the Agent. All moneys for the payment of the applicable Cost of Construction and Fuel Costs incurred by the Participating Parties after the Effective Date and prior to Commercial Operation of each Additional Unit shall be deposited by the Participating Parties in the applicable Construction Account and the Agent shall withdraw and apply funds therefrom only as necessary to pay the applicable Cost of Construction and Fuel Costs. In the event that during any month the balance in the applicable Construction Account is insufficient to pay the applicable Cost of Construction and Fuel Costs required to be paid that month (other than as a result of the non-payment by a Participating Party of an amount due from it pursuant to Section 7.4 hereof), the Agent shall promptly so notify the other Participating Parties, by telephone and promptly confirmed in writing, stating the amount required to be paid by each Participating Party. Each of the Participating Parties shall pay its respective share of such deficit into the applicable Construction Account in immediately available funds not later than on the fifth (5th) banking day after receipt of such notice from the Agent. The Agent shall have no responsibility or liability to make up any such deficit out of its own funds in excess of its proportionate share of such deficit. (b) After the Effective Date and until the date of Commercial Operation of each Additional Unit, each Participating Party shall own and maintain its Ownership Interest in the applicable Construction Account(s); provided, however, that the Agent shall have the sole right and authority to make withdrawals from the Construction Accounts; and provided further, that a Participating Party shall not own any Ownership Interest in any amount in any Construction Account in respect of interest paid into such Construction Account by or on behalf of such Participating Party pursuant to the provisions of Section 7.7 hereof, which amount shall be owned in common, and credited against payments required to be made into such Construction Account, distributeby the other Participating Parties not then in default in the performance of their obligations under this Agreement in the proportion which their Ownership Interests in the applicable Additional Unit bear to each other. (c) Upon Commercial Operation of each Additional Unit, from and the cash available settlement of all the obligations relating to the applicable Cost of Construction of and Fuel Costs for such Additional Unit incurred prior to the Commercial Operation of such Additional Unit, the Agent shall close the Construction Account for such Additional Unit and distribute to each Participating Party its undivided ownership interest of any balance remaining in such Construction Account, except that if a Participating Party shall then be in default of its obligations hereunder or under the Amended and Restated Operating Agreement with respect to any Additional Unit, an amount equal to the liability of such defaulting Participating Party on account of such default (or if such amount exceeds such Participating Party’s share of the balance in the Construction Account, its entire share of such balance) shall first be distributed to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (non-defaulting Participating Parties in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall, upon receipt by it of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid or are no longer payable, distribute, from the cash available proportion which their Ownership Interests in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, applicable Additional Unit bear to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;each other.

Construction Account. (a) The On or prior to the Closing Date, SWMP shall establish at Administrative Agent shall, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate of the Company setting forth the costs due and payable and to be paid from the Agent’s office an account entitled “Snowflake Project Construction Account, distribute, from the cash available in the ” (“Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate”). In order to fund the payment of such costs, the Administrative Agent There shall transfer the requisite funds be deposited into the Construction Account from the following sources proceeds of all Construction Loans, together with any equity contributions, and all Project Revenues (in the indicated priority): 136 FIRST, from the Prenot to include any Renegy Fuel Business Revenues) earned prior to Term-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs)Conversion. (b) On the Conversion Date, the Borrowers agree that Administrative Agent shall, upon receipt by it shall transfer any or all of a certificate Construction Loan and other sums in the Construction Account into the account of any contractor, or any other materialmen or subcontractors in payment of amounts due and owing to such party from Borrowers without further authorization from Borrowers, but only after providing two Business Days’ notice to Borrowers unless Administrative Agent determines that delay in payment will prejudice the Project or Administrative Agent; provided, however, that if Borrowers have notified Administrative Agent that they are contesting a claim for payment by such contractor or a subcontractor or materialmen in accordance with the requirements of this Agreement and the definition of “Permitted Liens,” Administrative Agent will not pay any amount being contested. Borrowers hereby constitute and appoint Administrative Agent their true and lawful attorney-in-fact to make such direct-payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable. No further direction or authorization from Borrowers shall be necessary to warrant or permit Administrative Agent to make such direct-payments, and all such payments shall satisfy pro tanto the obligations of Administrative Agent hereunder, and shall be secured by the Collateral Documents as fully as if made directly to the applicable Borrower, regardless of the Company stating disposition thereof by the payee. (c) Borrowers shall pay Project Costs and, prior to Term-Conversion, O&M Costs (not to include any Renegy Fuel Business Costs), by requesting that all costs Administrative Agent disburse funds in the Construction Account to providers of goods and services. Such request shall be paid in the form of a Drawdown Certificate (together with backup documentation as indicated in the form of Drawdown Certificate). (d) Upon Term-Conversion, Administrative Agent shall (i) transfer the DSR Requirement from the Construction Account have been paid or are no longer payable, distribute, to the DSR Account and (ii) transfer to the Sponsor from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and Account any amount determined pursuant to documentation reasonably satisfactory to the Administrative Agent;Section 3.4.3(b).

Construction Account. (a) The Administrative Agent shallOn the Closing Date, upon receipt by it the Company shall cause the Trustee to make the transfer specified in the final sentence of a Borrowing Notice with attached payment instructions or a certificate Section 5.1 of the Company setting forth Indenture and the costs due and payable and to be paid from Collateral Agent shall deposit the Construction Account, distribute, from the cash available amount so received in the Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Closing Date, the Administrative Agent shall, upon receipt by it the Collateral Agent of a certificate complete and properly executed requisition substantially in the form of Exhibit 3.8 (A "REQUISITION") signed by the Company stating that all costs to (the contents of which shall be paid from confirmed by the Independent Engineer), the Collateral Agent shall apply the amounts in the Construction Account to the payment, or reimbursement, to the extent the same have been paid or are no longer payablesatisfied by the Company, distributeof Project Costs including, but not limited to, fees payable under the Working Capital Agreement. (c) Monthly after the Closing Date, or as frequently as may reasonably be necessary, the Company may submit a Requisition to disburse monies from the cash available Construction Account; PROVIDED, that each Requisition (except for any Requisition with respect to the initial drawing on the Closing Date) shall be submitted to the Collateral Agent no less than three (3) Business Days in advance of the drawing date and shall include the following: (i) a certification that the proceeds thereof shall be used solely to pay Project Costs in accordance with the Indenture; (ii) a certification that work performed to date has been satisfactorily performed in a good and workmanlike manner and according to the EPC Contract; (iii) a statement that undisbursed funds in the Construction Account, together with funds available under the amounts set forth in such certificate in Equity Subscription Agreement and other available sources of funds, are reasonably expected to be sufficient to complete the following order of priority: FIRST, Facility according to the Administrative AgentEPC Contract by the Date Certain; (iv) a statement that no Default or Event of Default under the Indenture, to be applied to the payment of all accrued but unpaid interest on DSR LOC Reimbursement Agreement, the Construction Loans PPA LOC Reimbursement Agreement or the Term Loans, as applicableWorking Capital Agreement has occurred and is continuing; SECOND, to the Administrative Agent, to be applied to the payment (v) a statement that all proceeds of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans prior Requisitions have been expended or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;applied

Construction Account. (a) The On or prior to the Closing Date, SWMP shall establish at Administrative Agent shall, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate of the Company setting forth the costs due and payable and to be paid from the Agent's office an account entitled "Snowflake Project Construction Account, distribute, from the cash available in the " ("Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate"). In order to fund the payment of such costs, the Administrative Agent There shall transfer the requisite funds be deposited into the Construction Account from the following sources (in the indicated priority): 136 FIRSTproceeds of all Construction Loans, from the Pretogether with any equity contributions, and all Project Revenues earned prior to Term-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs)Conversion. (b) On the Conversion Date, the Borrowers agree that Administrative Agent shall, upon receipt by it shall transfer any or all of a certificate Construction Loan and other sums in the Construction Account into the account of any contractor, or any other materialmen or subcontractors in payment of amounts due and owing to such party from Borrowers without further authorization from Borrowers, but only after providing two Business Days' notice to Borrowers unless Administrative Agent determines that delay in payment will prejudice the Project or Administrative Agent; provided, however, that if Borrowers have notified Administrative Agent that they are contesting a claim for payment by such contractor or a subcontractor or materialmen in accordance with the requirements of this Agreement and the definition of "Permitted Liens," Administrative Agent will not pay any amount being contested. Borrowers hereby constitute and appoint Administrative Agent their true and lawful attorney-in-fact to make such direct-payments and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable. No further direction or authorization from Borrowers shall be necessary to warrant or permit Administrative Agent to make such direct-payments, and all such payments shall satisfy pro tanto the obligations of Administrative Agent hereunder, and shall be secured by the Collateral Documents as fully as if made directly to the applicable Borrower, regardless of the Company stating disposition thereof by the payee. (c) Borrowers shall pay Project Costs and, prior to Term-Conversion, O&M Costs, by requesting that all costs Administrative Agent disburse funds in the Construction Account to providers of goods and services. Such request shall be paid in the form of a Drawdown Certificate (together with backup documentation as indicated in the form of Drawdown Certificate). (d) Upon Term-Conversion, Administrative Agent shall (i) transfer the DSR Requirement from the Construction Account have been paid or are no longer payable, distribute, to the DSR Account and (ii) transfer to the Sponsor from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and Account any amount determined pursuant to documentation reasonably satisfactory to the Administrative Agent;Section 3.4.3(b).

Construction Account. (a) The Borrower (or, with respect to Loan proceeds, the Administrative Agent Agent) shall, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate of from and after the Company setting forth Closing Date, cause the costs due and payable and following amounts to be paid from into the Construction Account, distribute, from the cash available in : (i) all proceeds of the Construction Account, Loans (except for proceeds of Fundings applied directly to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costsDebt Service or as otherwise applied on the Conversion Date in accordance with Section 2.05(e) (Funding of Loans)); (ii) all proceeds of Working Capital Loans for start-up costs for the Project; (iii) until the Conversion Date, all equity contributions received by the Administrative Agent shall transfer Borrower (including the requisite funds Required Equity Contribution); (iv) all proceeds of any Performance Bond; (v) all damages payable under any Construction Contract; and (vi) all amounts required to be deposited into the Construction Account from as required under the following sources (in the indicated priority): 136 FIRST, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs)Completion Guaranty. (b) On Prior to the Conversion Datedate of the first Funding of the Construction Loans, the Borrower may direct the transfer or withdrawal of funds standing to the credit of the Construction Account to pay Project Costs by delivering a Construction Withdrawal Certificate to the Accounts Bank (with a copy to the Administrative Agent and the Independent Engineer). (c) From and after the date of the first Funding of Construction Loans, unless a Notice of Suspension is in effect or a Default or Event of Default would occur after giving effect to any application of funds contemplated hereby, the Borrower may direct the transfer or withdrawal of funds standing to the credit of the Construction Account to pay Project Costs then due and owing strictly in accordance with the Construction Budget by delivering a Construction Withdrawal Certificate to the Accounts Bank (with a copy to the Administrative Agent and the Independent Engineer) which, in the case of any Loan proceeds, shall be for application strictly in accordance with the relevant Funding Notice. All payments from the Construction Account shall be made by the Accounts Bank pursuant to instructions set forth in the relevant Construction Withdrawal Certificate directly to the payee. In the event that the Borrower fails to deliver such a Construction Withdrawal Certificate, the Administrative Agent shallis hereby authorized to direct, upon receipt by it in writing, the Accounts Bank to transfer or withdraw the amounts necessary to pay Project Costs that are, from time to time, due and payable. (d) On the Conversion Date all amounts on deposit in or standing to the credit of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid shall be withdrawn and such account shall be terminated and closed at the written instruction of the Borrower or are no longer payable, distribute, from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to Agent and such amounts shall be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to by the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;Agent in accordance with Section 2.05

Construction Account. (a) The On each Borrowing Date, the -------------------- Administrative Agent shall, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate of the Company setting forth the costs due and payable and to be paid from the Construction Account, shall distribute, from the cash available amounts on deposit in the Construction Account, directly to each Person to which an amount in excess of $200,000 is due and payable (and otherwise to the Company Checking Accounts designated by the Borrower for the benefit of the Persons entitled thereto), all the amounts identified as Capital Costs then due and payable in the Borrowing Request delivered in connection with such Borrowing Date. (b) If, prior to the Commercial Operation Date and after all amounts on deposit in the Borrower Equity Proceeds Account have been spent in accordance with the terms hereof, the amounts due and owing as set forth to any Subsidiary under any Intercompany Agreement exceed the amounts distributed to such Subsidiary pursuant to clause first of Section 8.08(a), and no amounts remain on deposit in such certificate. In order to fund ------------ --------------- the payment of such costsOperating Reserve Account and the Construction Contingency Reserve Account, the Administrative Agent shall transfer the requisite funds into distribute to such Subsidiary, from amounts on deposit in the Construction Account from Account, the following sources remaining amounts due and owing to such Subsidiary under any Intercompany Agreement. (c) If, prior to the Commercial Operation Date and after all amounts on deposit in the indicated priority): 136 FIRSTBorrower Equity Proceeds Account have been spent in accordance with the terms hereof, from OA&M Expenses, SG&A Expenses and Term C Loan Guaranty Fees of the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by Borrower due and payable exceed the amounts transferred from distributed in respect thereof pursuant to clause first of Section 8.08(a), and no amounts remain on ------------ --------------- deposit in the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Operating Reserve Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Construction Contingency Reserve Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall distribute to the Person entitled thereto, from amounts on deposit in the Construction Account, an amount equal to such OA&M Expenses, SG&A Expenses and Term C Loan Guaranty Fees of the Borrower remaining unpaid; provided that amounts distributed in respect -------- of OA&M Expenses and SG&A Expenses pursuant to this paragraph (b), Section ------------- ------- 8.12(b), Section 8.16(b), Section 8.22(a) and clause first of Section 8.08(a) ------- --------------- --------------- shall not in the aggregate exceed (x) $7,500,000 in any calendar quarter or (y) the amounts allocated therefor in the then current Operating Budget. (d) If, prior to the Commercial Operation Date and after all amounts on deposit in the Borrower Equity Proceeds Account have been spent in accordance with the terms hereof, insufficient Revenue has been received for application thereto pursuant to clause tenth of Section 8.08(a), the Administrative Agent ------------ --------------- shall, upon receipt by it of a certificate of the Company stating that all costs to Borrower (which shall be paid from the Construction Account have been paid or are delivered no longer payablemore frequently than once a month), distribute, from the cash available amounts on deposit in the Construction Account, to one or more Checking Accounts designated by the amounts set forth in Borrower; provided that the aggregate amount distributed to such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and Checking -------- Accounts pursuant to documentation reasonably satisfactory to the Administrative Agent;this paragraph (d), Section 8.08(a) and Section 8.08(d) ------------- --------------- --------------- shall not in exceed $1,000,000 in any calendar year.

Construction Account. (a) The Administrative Agent shall, upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate of the Company setting forth the costs due and payable and to be paid from the Construction Account, distribute, from the cash available in the Construction Account, to the Company for the benefit of the Persons entitled thereto, all amounts then due and owing as set forth in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from the following sources (in the indicated priority): 136 FIRSTfirst, from the Pre-Sale Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); SECONDsecond, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRDthird, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED provided that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall, upon receipt by it of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid or are no longer payable, distribute, from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRSTfirst, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECONDsecond, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRDthird, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTHfourth, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTHfifth, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;; sixth, to the Administrative Agent, to be applied to the payment of all other Obligations; and seventh, the remaining balance, if any, shall be transferred to the Revenue Account.

Construction Account. (a) The Administrative Agent shall, upon Upon receipt by it of a Borrowing Notice with attached payment instructions or a certificate the Depositary Bank, the following amounts shall be deposited into the Construction Account: (i) the proceeds of the Company setting forth Construction Loans disbursed on any Borrowing Date; (ii) the costs proceeds of all cash equity contributions made to the Borrower pursuant to the Equity Contribution Agreement; (iii) all Pre-Completion Project Revenues transferred from the Revenue Account pursuant to Section 4.2(c); (iv) all Loss Proceeds received by the Borrower on or prior to the Term Conversion Date; and (v) all other amounts permitted or required to be transferred to the Construction Account from any other Account as provided in this Agreement. (b) Unless there shall have occurred and be continuing an Event of Default or an Event of Default will occur upon giving effect to the application described herein (except as provided in Section 8.1), on each Disbursement Date (but not more often than once per month), the Borrower may withdraw amounts in the Construction Account to pay for Project Costs actually due and payable on such date or which are not yet due and payable but which the Borrower reasonably anticipates will become so within thirty (30) days after such Disbursement Date (or within forty-five (45) days in the case of the PUMA, without duplication), in each case to the payees entitled to receive such amounts (or for deposit in the Local Account for payment to such payees as set forth in the applicable Construction Account Withdrawal Certificate) in accordance with the applicable Construction Account Withdrawal Certificate. Such Construction Account Withdrawal Certificate shall be paid from delivered concurrently with the delivery of a Drawdown Certificate by the Borrower to the Administrative Agent and the Independent Engineer pursuant to Section 3.2(d)(i) of the Credit Agreement. All such Withdrawals shall be made pursuant to a Construction Account Withdrawal Certificate, duly completed and delivered by the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank in accordance with Section 2.5 hereof. (c) On the Term Conversion Date, the Depositary Bank shall transfer the funds on deposit in the Construction Account as follows: First, transfer to a designated “completion” Sub-Account of the Construction Account, distributean amount equal to the sum of (1) any Project capital costs which the Borrower reasonably anticipates will become due and payable under the PUMA after the Term Conversion Date (as certified by the Independent Engineer) plus (2) costs related to completion of the Projects (as certified by the Independent Engineer). Second, from transfer (in accordance with Section 4.2(b) hereof) to the cash available Debt Service Reserve Account funds sufficient to cause the balance in the Debt Service Reserve Account, when added to any letters of credit posted by the Borrower, to equal the then-applicable Required DSR Balance. Third, transfer to the Prepayment Account an amount equal to the Conversion Payoff to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(g) of the Credit Agreement. Fourth, (i) if the Term Conversion Date Distribution Conditions are satisfied, distribute remaining amounts on deposit in the Construction Account, except to the Company for extent otherwise directed by both Sponsors, in writing, distribute the benefit of the Persons entitled thereto, all remaining amounts then due and owing as set forth on deposit in such certificate. In order to fund the payment of such costs, the Administrative Agent shall transfer the requisite funds into the Construction Account from to the following sources Sponsors pro rata in accordance with their respective Applicable Sponsor Share and (in ii) if the indicated priority): 136 FIRSTTerm Conversion Date Distribution Conditions are not satisfied, from the Pre-Sale Proceeds Account, all funds transfer remaining amounts on deposit therein (or such lesser amount as may be required to cover such costs); SECOND, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account, from the Debt Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs); and THIRD, to the extent such costs are not fully covered by the amounts transferred from the Pre-Sale Proceeds Account and the Debt Proceeds Account and PROVIDED that the Company shall have obtained (whether by way of Capacity Commitments or actual cash proceeds) not less than $200,000,000, in Requisite Qualifying Pre-Sales, from the Equity Proceeds Account, all funds on deposit therein (or such lesser amount as may be required to cover such costs). (b) On the Conversion Date, the Administrative Agent shall, upon receipt by it of a certificate of the Company stating that all costs to be paid from the Construction Account have been paid or are no longer payable, distribute, from the cash available in the Construction Account, the amounts set forth in such certificate in the following order of priority: FIRST, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Construction Loans or the Term Loans, as applicable; SECOND, to the Administrative Agent, to be applied to the payment of all accrued but unpaid interest on the Revolving Credit Loans, if any; THIRD, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Revolving Credit Loans, if any; FOURTH, to the Administrative Agent, to be applied to the prepayment of the unpaid principal of the Construction Loans or the Term Loans, as applicable; FIFTH, to the Administrative Agent, to be applied to the cash collateralization of the unused Revolving Credit Commitments, on terms and pursuant to documentation reasonably satisfactory to the Administrative Agent;Revenue Account for application in accordance with Section 4.2.