Common use of Unavailability of Insurance Clause in Contracts

Unavailability of Insurance. If any insurance required herein is not available on a commercially reasonable basis, the Administrative Agent shall not unreasonably withhold its agreement to waive such requirement; provided, however, that the Borrower shall first request any such waiver in writing to the Administrative Agent, which request shall be accompanied by a written report prepared by an insurance broker of nationally recognized standing, certifying that such insurance required is not available on a commercially reasonable basis (and, in any case where the insurance is available but the required amount is not so available, certifying as to the maximum amount which is so available) and explaining in detail the basis for such conclusion. If, after reviewing such report with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower shall not be required to maintain such insurance until such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent may request, and the Borrower shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reasonably acceptable to the Administrative Agent from an independent insurance broker or the Insurance Consultant updating the prior report and reaffirming the conclusion thereof. It is understood that the failure of the Borrower to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer exists. For the purposes of this subsection, insurance will be considered “not available on a commercially reasonably basis” when it is obtainable only at excessive costs which are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to the Project because of such excessive costs. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH

Unavailability of Insurance. If any insurance (including the limits or deductibles thereof) hereby required herein to be maintained is not reasonably available on a and commercially reasonable basisfeasible in the commercial insurance market, the Administrative Agent Required Lenders shall not unreasonably withhold its their agreement to waive such requirementrequirement to the extent the maintenance thereof is not so available; provided, however, that the Borrower Borrowers shall first request any such waiver in writing to the Administrative AgentRequired Lenders, which request shall be accompanied by a written report prepared by an insurance broker of nationally recognized standing, certifying that such insurance required is not reasonably available on a and commercially reasonable basis feasible (and, in any case where the insurance is available but the required amount is not so available, certifying as to the maximum amount which is so available) and explaining in detail the basis for such conclusionconclusions. If, If after reviewing such report evidence with the Insurance Consultant, the Administrative Agent concurs Required Lenders concur with such report, the Borrower Borrowers shall not be required to maintain such insurance until such time as such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent or the Lenders may request, and the Borrower Borrowers shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reports reasonably acceptable to the Administrative Agent from an such independent insurance broker or the Insurance Consultant updating the their prior report reports and reaffirming the conclusion thereofsuch conclusion. It is understood that the failure of the Borrower Borrowers to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer existsnon-existence. For the purposes of this subsectionSection 10.1, insurance will be considered “not reasonably available on a and commercially reasonably basisfeasible” when it is obtainable only at excessive costs which that are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to the Project relevant Plant because of such excessive costs. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH

Unavailability of Insurance. (a) If any insurance required herein to be maintained pursuant to this Article 17 (including the limits, deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the Concessionaire will provide written notice to the Department accompanied by a letter from the Concessionaire’s insurance advisor stating that such insurance is unavailable anywhere in the global market on a commercially reasonable basis. Such notice will be given not later than 30 Days prior to the scheduled date for renewal of any EXECUTION VERSION – DECEMBER 5, 2011 such policy. Except to the extent attributable to the Concessionaire, or any Concessionaire Party upon receipt of such notice by the Department, the Concessionaire and the Department will immediately enter into good faith negotiations regarding the matters set forth in Section 17.05(c) and (d) below. (b) The Concessionaire will not be excused from satisfying the insurance requirements of this Article 17 merely because premiums for such insurance are higher than anticipated. To establish that the required coverages (or required terms of such coverages, including insurance policy limits) are not available on commercially reasonable terms, the Concessionaire will bear the burden of proving either that (i) the same is not available at all in the global insurance and reinsurance markets or (ii) the premiums for the same have so materially increased over those previously paid for the same coverage that a reasonable and prudent risk manager for a Person seeking to insure comparable risks would conclude that such increased premiums are not justified by the risk protection afforded. For the purpose of clause (ii), the only increases in premiums that may be considered are those caused by changes in general market conditions in the insurance industry. (c) In the event that the Concessionaire and the Department cannot reach a resolution acceptable to both parties within ten Days, the Concessionaire and the Department will make arrangements for the formation of an insurance panel consisting of the Concessionaire’s insurance advisor (or broker), the Department or its insurance advisor (or broker) and an independent insurance expert from a nationally recognized insurance brokerage firm, chosen by the Concessionaire and reasonably acceptable to the Department. Such independent expert will conduct a separate review of the relevant insurance requirements of this Article 17 and the market for such insurance at the time, giving due consideration to the representations of both insurance advisors, and upon conclusion of such review will issue a written report stating whether such insurance is available or unavailable on a commercially reasonable basis. (d) If the insurance expert concludes that such insurance is not available on a commercially reasonable basis, the Administrative Agent shall not unreasonably withhold its agreement to waive such requirement; provided, however, that the Borrower shall first request any such waiver in writing to the Administrative Agent, which request shall be accompanied by insurance expert will provide a written report prepared by an recommendation (which will include the amount and type of insurance broker of nationally recognized standing, certifying that such insurance required which is not available on upon a commercially reasonable basis (andbasis) not less than 15 Days before the date for renewal of such insurance. The Concessionaire will, in any case where prior to the expiration of the insurance is available but then in effect, obtain the insurance required amount is not so availableby this Article 17 as adjusted in accordance with such recommendation. (e) The Department makes no representation that the limits of liability specified for any insurance policy to be carried pursuant to this Agreement are adequate to protect the Concessionaire against its undertakings pursuant to this Agreement, certifying as to the maximum amount which is so available) and explaining in detail Department, or any third party. No such limits of liability will preclude the basis for such conclusion. If, after reviewing such report with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower shall not be required Department from taking any actions as are available to maintain such insurance until such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent may request, and the Borrower shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reasonably acceptable to the Administrative Agent from an independent insurance broker or the Insurance Consultant updating the prior report and reaffirming the conclusion thereof. It is understood that the failure of the Borrower to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer exists. For the purposes of this subsection, insurance will be considered “not available on a commercially reasonably basis” when it is obtainable only at excessive costs which are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to under the Project because of such excessive costsAgreements or Law. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH

Unavailability of Insurance. If any insurance required herein is not available on a commercially reasonable basis, the Administrative Agent shall not unreasonably withhold its agreement to waive such requirement; provided, however, that the Borrower shall first request any such waiver in writing to the Administrative Agent, which request shall be accompanied by a written report prepared by an insurance broker of nationally recognized standing, certifying that such insurance required is not available on a commercially reasonable basis (and, in any case where the insurance is available but the required amount is not so available, certifying as to the maximum amount which is so available) and explaining in detail the basis for such conclusion. If, after reviewing such report with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower shall not be required to maintain such insurance until such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent may request, and the Borrower shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reasonably acceptable to the Administrative Agent from an independent insurance broker or the Insurance Consultant updating the prior report and reaffirming the conclusion thereof. It is understood that the failure of the Borrower to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer exists. For the purposes of this subsection, insurance will be considered “not available on a commercially reasonably basis” when it is obtainable only at excessive costs which are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to the Project because of such excessive costs. I. BORROWER: SOUTHWEST GEORGIA ETHANOL. Funding, Investor Fee and Put/Call Agreement dated on or about the date hereof by and among Borrower, Seneca Biodiesel Holdco, Inc., Renewable Energy Group, Inc., REG Intermediate Holdco, Inc. and REG Seneca, LLC II. ADMINISTRATIVE AGENTAccounting Services Side Agreement dated on or about the date hereof by and between Seneca Biodiesel Holdco, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AGLLC and USRG Management Company, NEW YORK BRANCH IIILLC, and acknowledged by Borrower. COLLATERAL AGENT: WESTLB AGServices Side Agreement dated on or about the date hereof by and between Borrower and Bunge North America, NEW YORK BRANCHInc.

Unavailability of Insurance. (a) If any insurance required herein to be maintained pursuant to this Article 17 (including the limits, deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the DB Contractor will provide written notice to the Concessionaire accompanied by a letter from the DB Contractor’s insurance advisor stating that such insurance is unavailable anywhere in the global market on a commercially reasonable basis. Such notice will be given not later than 37 Days prior to the scheduled date for renewal of any such policy. Except to the extent attributable to the DB Contractor or any DB Contractor Party, upon receipt of such notice by the Concessionaire, the Concessionaire shall notify the Department of such unavailability pursuant to Section 17.05 of the CA and will, unless prohibited by the Department, permit the DB Contractor to participate in the negotiations regarding the matters set forth in Section 17.05(c) and (d) of the CA. The DB Contractor shall benefit from any relief provided by the Department pursuant to the CA with respect to the DB Contractor’s assertion that insurance is not available on a commercially reasonable basis, . (b) The DB Contractor will not be excused from satisfying the Administrative Agent shall not unreasonably withhold its agreement to waive insurance requirements of this Article 17 merely because premiums for such requirement; provided, however, insurance are higher than anticipated. To establish that the Borrower shall first request any required coverages (or required terms of such waiver in writing to the Administrative Agentcoverages, which request shall be accompanied by a written report prepared by an including insurance broker of nationally recognized standing, certifying that such insurance required is policy limits) are not available on a commercially reasonable basis (and, in any case where the insurance is available but the required amount is not so available, certifying as to the maximum amount which is so available) and explaining in detail the basis for such conclusion. If, after reviewing such report with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower shall not be required to maintain such insurance until such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent may request, DB Contractor will bear the burden of proving either that (i) the same is not available at all in the global insurance and reinsurance markets or (ii) the Borrower shall furnish premiums for the same have so materially increased over those previously paid for the same coverage that no reasonable and prudent risk manager for a Person seeking to the Administrative Agent within fifteen (15) days after such request, a supplemental report reasonably acceptable to the Administrative Agent from an independent insurance broker or the Insurance Consultant updating the prior report and reaffirming the conclusion thereof. It is understood that the failure of the Borrower to timely furnish any such supplemental report shall be conclusive evidence insure comparable risks would conclude that such waiver is no longer effective because such condition no longer exists, but that such failure is not increased premiums are justified by the only way to establish that such condition no longer existsrisk protection afforded. For the purposes purpose of this subsectionclause (ii), insurance will the only increases in premiums that may be considered “are those caused by changes in general market conditions in the insurance industry. (c) [not available on a commercially reasonably basis” when it is obtainable only at excessive costs which are used] (d) [not justified in terms used] (e) The Concessionaire makes no representation that the limits of the risk liability specified for any insurance policy to be insured and is generally not being carried by or applicable pursuant to projects or operations similar this Agreement are adequate to protect the DB Contractor against its undertakings pursuant to this Agreement, to the Project because Concessionaire or any third party. No such limits of such excessive costsliability will preclude the Concessionaire from taking any actions as are available to it under this Agreement or Law. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH

Unavailability of Insurance. If any insurance (including the limits or deductibles thereof) hereby required herein to be maintained is not reasonably available on a and commercially reasonable basisfeasible in the commercial insurance market, the Administrative Agent (acting in consultation with the Insurance Consultant) shall not unreasonably withhold its their agreement to waive such requirementrequirement to the extent the maintenance thereof is not so available; provided, however, that the Borrower Borrowers shall first request any such waiver in writing to the Administrative Agent, which request shall be accompanied by a written report prepared by an insurance broker of nationally recognized standing, certifying that such insurance required is not reasonably available on a and commercially reasonable basis feasible (and, in any case where the insurance is available but the required amount is not so available, certifying as to the maximum amount which is so available) and explaining in detail the basis for such conclusionconclusions. If, If after reviewing such report evidence with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower Borrowers shall not be required to maintain such insurance until such time as such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent or the Lenders may request, and the Borrower Borrowers shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reports reasonably acceptable to the Administrative Agent from an such independent insurance broker or the Insurance Consultant updating the their prior report reports and reaffirming the conclusion thereofsuch conclusion. It is understood that the failure of the Borrower Borrowers to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer existsnon-existence. For the purposes of this subsectionSection 8.1, insurance will be considered “not reasonably available on a and commercially reasonably basisfeasible” when it is obtainable only at excessive costs which that are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to the Project relevant Plant because of such excessive costs. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH

Unavailability of Insurance. If any insurance (including the limits or deductibles thereof) hereby required herein to be maintained is not reasonably available on a and commercially reasonable basisfeasible in the commercial insurance market, the Administrative Agent (acting in consultation with the Insurance Consultant) shall not unreasonably withhold its their agreement to waive such requirementrequirement to the extent the maintenance thereof is not so available; provided, however, that the Borrower Borrowers shall first request any such waiver in writing to the Administrative Agent, which request shall be accompanied by a written report prepared by an insurance broker of nationally recognized standing, certifying that such insurance required is not reasonably available on a and commercially reasonable basis feasible (and, in any case where the insurance is available but the required amount is not so available, certifying as to the maximum amount which is so available) and explaining in detail the basis for such conclusionconclusions. If, If after reviewing such report evidence with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower Borrowers shall not be required to maintain such insurance until such time as such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent or the Lenders may request, and the Borrower Borrowers shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reports reasonably acceptable to the Administrative Agent from an such independent insurance broker or the Insurance Consultant updating the their prior report reports and reaffirming the conclusion thereofsuch conclusion. It is understood that the failure of the Borrower Borrowers to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer existsnon-existence. For the purposes of this subsectionSection 8, insurance will be considered “not not 7.01 reasonably available on a and commercially reasonably basisfeasible” when it is obtainable only at excessive costs which that are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to the Project relevant Plant because of such excessive costs. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH

Unavailability of Insurance. (a) If any insurance required herein to be maintained pursuant to this Article 17 (including the limits, deductibles or any other terms under policies for such insurance) ceases to be available on a commercially reasonable basis, the Concessionaire will provide written notice to the Department accompanied by a letter from the Concessionaire’s insurance advisor stating that such insurance is unavailable anywhere in the global market on a commercially reasonable basis. Such notice will be given not later than 30 Days prior to the scheduled date for renewal of any such policy. Except to the extent attributable to the Concessionaire, or any Concessionaire Party upon receipt of such notice by the Department, the Concessionaire and the Department will immediately enter into good faith negotiations regarding the matters set forth in Section 17.05(c) and (d) below. (b) The Concessionaire will not be excused from satisfying the insurance requirements of this Article 17 merely because premiums for such insurance are higher than anticipated. To establish that the required coverages (or required terms of such coverages, including insurance policy limits) are not available on commercially reasonable terms, the Concessionaire will bear the burden of proving either that (i) the same is not available at all in the global insurance and reinsurance markets or (ii) the premiums for the same have so materially increased over those previously paid for the same coverage that a reasonable and prudent risk manager for a Person seeking to insure comparable risks would conclude that such increased premiums are not justified by the risk protection afforded. For the purpose of clause (ii), the only increases in premiums that may be considered are those caused by changes in general market conditions in the insurance industry. (c) In the event that the Concessionaire and the Department cannot reach a resolution acceptable to both parties within ten Days, the Concessionaire and the Department will make arrangements for the formation of an insurance panel consisting of the Concessionaire’s insurance advisor (or broker), the Department or its insurance advisor (or broker) and an independent insurance expert from a nationally recognized insurance brokerage firm, chosen by the Concessionaire and reasonably acceptable to the Department. Such independent expert will conduct a separate review of the relevant insurance requirements of this Article 17 and the market for such insurance at the time, giving due consideration to the representations of both insurance advisors, and upon conclusion of such review will issue a written report stating whether such insurance is available or unavailable on a commercially reasonable basis. (d) If the insurance expert concludes that such insurance is not available on a commercially reasonable basis, the Administrative Agent shall not unreasonably withhold its agreement to waive such requirement; provided, however, that the Borrower shall first request any such waiver in writing to the Administrative Agent, which request shall be accompanied by insurance expert will provide a written report prepared by an recommendation (which will include the amount and type of insurance broker of nationally recognized standing, certifying that such insurance required which is not available on upon a commercially reasonable basis (andbasis) not less than 15 Days before the date for renewal of such insurance. The Concessionaire will, in any case where prior to the expiration of the insurance is available but then in effect, obtain the insurance required amount is not so availableby this Article 17 as adjusted in accordance with such recommendation. (e) The Department makes no representation that the limits of liability specified for any insurance policy to be carried pursuant to this Agreement are adequate to protect the Concessionaire against its undertakings pursuant to this Agreement, certifying as to the maximum amount which is so available) and explaining in detail Department, or any third party. No such limits of liability will preclude the basis for such conclusion. If, after reviewing such report with the Insurance Consultant, the Administrative Agent concurs with such report, the Borrower shall not be required Department from taking any actions as are available to maintain such insurance until such insurance is again available on commercially reasonable terms. At any time after the granting of any such waiver, but not more often than once a year, the Administrative Agent may request, and the Borrower shall furnish to the Administrative Agent within fifteen (15) days after such request, a supplemental report reasonably acceptable to the Administrative Agent from an independent insurance broker or the Insurance Consultant updating the prior report and reaffirming the conclusion thereof. It is understood that the failure of the Borrower to timely furnish any such supplemental report shall be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish that such condition no longer exists. For the purposes of this subsection, insurance will be considered “not available on a commercially reasonably basis” when it is obtainable only at excessive costs which are not justified in terms of the risk to be insured and is generally not being carried by or applicable to projects or operations similar to under the Project because of such excessive costsAgreements or Law. I. BORROWER: SOUTHWEST GEORGIA ETHANOL, LLC II. ADMINISTRATIVE AGENT, LEAD ARRANGER AND SOLE BOOKRUNNER: WESTLB AG, NEW YORK BRANCH III. COLLATERAL AGENT: WESTLB AG, NEW YORK BRANCH