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HomeMy WebLinkAbout6.C. Pulbic Hearing on the Isuance of Solid Waste Bonds for Recovery Technology Solutions Shakopee, LLC. Res. No. 7503 fti Public Hearings 6. C. [AKOPEE TO: Mayor and City Council Mark McNeill, City Administrator FROM: Samantha DiMaggio, Economic Development Coordinator DATE: 10/21/2014 SUBJECT: Public Hearing on the Issuance of Solid Waste Revenue Bonds for Recovery Technology Solutions Shakopee, LLC (D) - Res. No. 7503 Action Sought Request consideration and approval of Resolution No. 7503, A Resolution Authorizing the Issuance, Sale and Delivery of Revenue Bonds for the Benefit of Recovery Technology Solutions Shakopee, LLC; and Approving the Form of and Authozing the Execution and Delivery of the Bonds and the Related Documents. Background Recovery Technology Solutions Shakopee (RTS), LLC, a Delaware limited liability company (the "Company"), is in the process of developing an asphalt shingle recovery facility (the "Facility") to be located at 6528 County Road 101 East(the "Site") in the City of Shakopee (the "City"), with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil. The Company has requested that the City issue its Solid Waste Revenue Bonds (Recovery Technology Solutions, LLC Project), Series 2014 (the "Bonds"), in one or more series, in the aggregate principal amount not to exceed $16,000,000. Proceeds of the Bonds, if issued, will be used to (i) finance, refinance, or reimburse all or a portion of the acquisition, construction, equipping, installing, and improving of the Facility; (ii) fund one or more reserve funds; and(iii)pay costs of issuance (collectively, the "Project"). If approved by the City Council, the Bonds will be issued pursuant to Minnesota Statutes, Sections 469.152 through 469.1655, as amended(the "Act"). In order to satisfy the public notice requirements of the Act and Section 147(f) of the Internal Revenue Code of 1986, as amended (the "Code"), the Company requested that the City Council hold a public hearing on October 21, 2014. The City Council is being asked to adopt the enclosed resolution following the public hearing, which approves the Project, the issuance of the Bonds, and the documents to be executed and delivered in connection with the Project. The enclosed resolution, Res. No. 7503, authorizes the City to enter into a Real Estate, Improvements, and Equipment Lease Agreement(the "Base Lease Agreement") with the Company whereby the Company would lease the Site and the Facility to the City. The City will also be asked to execute a Lease Agreement(the "Lease Agreement") with the Company whereby the Company proposes to lease the Site and the Facility back from the City, subject to the Company's agreement to pay all rental payments and comply with all other obligations related to the City and the Facility. The Base Lease Agreement is solely for financing purposes and the City will be fully indemnified by the Company for any and all matters related to the Base Lease Agreement. If the City agrees to issue the Bonds, the Bonds will be conduit revenue bonds secured solely by the revenues derived from the Lease Agreement and from other security provided by the Company, including a mortgage and a security agreement. The Bonds will not constitute a general or moral obligation of the City and will not be secured by or payable from any property or assets of the City (other than the interests of the City in the Lease Agreement) and will not be secured by any taxing power of the City. The Bonds will not be subject to any debt limitation imposed on the City, and the issuance of the Bonds will not have any adverse impact on the credit rating of the City, even in the event that the Company encounters financial difficulties with respect to the Project to be financed with the proceeds of the Bonds. The Bonds, if issued, will be "private activity bonds" within the meaning of Section 141(a) of the Code but will be "exempt facility bonds" the net proceeds of which are to be used to provide a "solid waste disposal project" within the meaning of Section 142(a)(6) of the Code. Under the terms of the Lease Agreement, the Borrower will agree to pay the out-of-pocket expenses of the City with respect to this transaction as well as the City's administrative fee. Recommendation Staff recommends approval of Resolution No. 7503. Budget Impact Legal costs incurred by the City will be reimbursed by RTS. Relationship to Vision Maintain improve and create strong partnerships with other public and private sector entities (D). Requested Action The City Council should hold a Public Hearing on the issuance of Solid Waste Revenue (conduit) Bonds on behalf of Recovery Technology Solutions Shakopee, LLC. Following the Public Hearing, if the City Council concurs, it should, by motion, approve the following Resolution: Res. No. 7503, A Resolution Authorizing the Issuance, Sale and Delivery of Revenue Bonds for the Benefit of Recovery Technology Solutions Shakopee, LLC; and Approving the Form of and Authozing the Execution and Delivery of the Bonds and the Related Documents. Attachments: Resolution No. 7503 CITY OF SHAKOPEE,MINNESOTA RESOLUTION NO.7503 AUTHORIZING THE ISSUANCE, SALE, AND DELIVERY OF REVENUE BONDS FOR THE BENEFIT OF RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC; AND APPROVING THE FORM OF AND AUTHORIZING THE EXECUTION AND DELIVERY OF THE BONDS AND THE RELATED DOCUMENTS WHEREAS, the City of Shakopee, Minnesota (the "City") is a statutory city and political subdivision duly organized and existing under the Constitution and laws of the State of Minnesota; and WHEREAS, pursuant to the Constitution and laws of the State of Minnesota, particularly Minnesota Statutes, Sections 469.152 through 469.1655, as amended(the"Act"),the City is authorized to issue revenue bonds to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment or extension of a project, defined in the Act as any properties, real or personal, used or useful in connection with a revenue producing enterprise, whether or not operated for profit;and WHEREAS, Recovery Technology Solutions Shakopee, LLC, a Delaware limited liability company (the "Company"), has requested that the City issue its Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 (the "Bonds"), in one or more series, in the aggregate principal amount not to exceed $16,000,000, for the purpose of(i) financing, refinancing or reimbursement of all or a portion of the acquisition, construction,equipping, installing, and improving of an asphalt shingle recovery facility (the "Facility") to be located at 6528 County Road 101 East in the City (the "Site"); (ii)funding of one or more reserve funds; and (iii) paying costs of issuance related to the Bonds(collectively,the"Project"); and WHEREAS, for financing purposes, the Company has requested that the City enter into a Real Estate, Improvements, and Equipment Lease Agreement, to be dated on or after November 1, 2014 (the "Base Lease Agreement"),between the Company and the City,whereby the Company leases the Site and the Facility to the City;and WHEREAS, pursuant to a Lease Agreement, to be dated or on after November 1, 2014 (the "Lease Agreement"),between the City and the Company,the Company has proposed to lease the Site and the Facility back from the City, subject to the Company's agreement to pay all rental payments and comply with all other obligations related to the Site and the Facility;and WHEREAS, in accordance with the terms of the Act,the City has prepared an application to the Minnesota Department of Employment and Economic Development ("DEED") for approval of the Project pursuant to the requirements of Section 469.154 of the Act; and WHEREAS, prior to the issuance of the Bonds, the City Council of the City must conduct a public hearing to (i) approve the issuance of the Bonds pursuant to the requirements of Section 147(f) of the Internal Revenue Code of 1986, as amended, and regulations promulgated thereunder (the "Code"); and(ii)approve the Project pursuant to Section 469.154,subdivision 4 of the Act; and 450342v3 JAE SH155-303 WHEREAS, a notice of public hearing(the "Public Notice")was published at least fourteen(14) days before the regularly scheduled meeting of the City Council of the City in the Shakopee Valley News, the official newspaper and a newspaper of general circulation in the City, with respect to the required public hearing under Section 147(f)of the Code and the Act; and WHEREAS, on the date hereof, the City Council conducted a public hearing at which a reasonable opportunity was provided for interested individuals to express their views, both orally and in writing on the following: (i) approval of the issuance of the Bonds pursuant to the requirements of Section 147(f) of the Code and the regulations promulgated thereunder; and (ii) approval of the issuance of the Bonds and approval of the Project pursuant to the requirements of the Act;and WHEREAS,the Bonds are to be issued by the City pursuant to the Act and an Indenture of Trust, to be dated on or after November 1, 2014 (the "Indenture"), between the City and UMB Bank, N.A., a national banking association, as trustee (the "Trustee"), and the principal, premium (if any), and interest on the Bonds: (i)shall be payable solely from the revenue pledged therefor; (ii)shall not constitute a debt of the City within the meaning of any constitutional or statutory limitation; (iii)shall not constitute nor give rise to a pecuniary liability of the City or a charge against its general credit or taxing powers; and (iv)shall not constitute a charge, lien, or encumbrance, legal or equitable, upon any property of the City other than the City's interest in the Lease Agreement;and WHEREAS,the Lease Agreement requires the Company to make payments of basic rent("Basic Rent") constituting lease payments ("Lease Payments") thereunder in amounts and at times sufficient to pay the principal of, premium (if any), and interest on the Bonds when due, and the Lease Payments required to be made by the Company to the City under the terms of the Lease Agreement will be assigned by the City to the Trustee to secure the payment of the principal of, premium(if any), and interest on the Bonds; and WHEREAS, in order to provide further security for the payment of the principal of, premium (if any),and interest on the Bonds and the Company's obligations under the Lease Agreement,the Company proposes to execute(i)an Accounts Agreement,to be dated on or after November 1,2014 (the"Accounts Agreement"), between the Company the Trustee,and an accounts bank and securities intermediary named therein; (ii) a Fee and Leasehold Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing,to be dated on or after November 1,2014 (the"Company Leasehold Mortgage"),from the Company to the Trustee; and (iii) a Security Agreement, to be dated on or after November 1, 2014 (the "Security Agreement"),from the Company to the Trustee;and WHEREAS,the Company has requested that the City execute a mortgage of its leasehold interest in the Site and Facility derived from the Base Lease Agreement(the"City Leasehold Mortgage")and that the City consent to the Company Leasehold Mortgage by executing and delivering a consent thereto (the "Consent to Company Leasehold Mortgage");and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SHAKOPEE,MINNESOTA,AS FOLLOWS: 1. The City finds that the Project furthers the economic development purposes stated in Section 469.152 of the Act and constitutes a revenue producing"project," as defined in Section 469.153, subdivision 2(a)of the Act. 2. For the purposes set forth above, there is hereby authorized the issuance, sale, and delivery of the Bonds in the aggregate principal amount not to exceed$16,000,000. The Bonds shall bear interest, shall be numbered, shall be dated, shall mature, shall be subject to redemption prior to maturity, 450342v3 JAE SH155-303 2 shall be in such form, and shall have such other terms, details, and provisions as are prescribed in the Indenture,in substantially the form now on file with the City. 3. All of the provisions of the Bonds,when executed as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Bonds shall be substantially in the form on file with the City, which is hereby approved, with such necessary and appropriate variations, omissions, and insertions (including changes to the principal amount of the Bonds, the determination of the interest rates on the Bonds,and changes to the terms of redemption of the Bonds)as the Mayor and the City Administrator of the City (the "Mayor" and "City Administrator," respectively), in their discretion, shall determine. The execution of the Bonds with the manual or facsimile signatures of the Mayor and the City Administrator and the delivery of the Bonds by the City shall be conclusive evidence of such determination. 4. Upon approval of the Project by DEED, the Mayor and the City Administrator are authorized and directed to prepare and execute the Bonds as prescribed in the Indenture and the Bonds shall be delivered to the Trustee. 5. The Bonds shall be special obligations of the City payable solely from the revenues provided by the Company pursuant to the Lease Agreement and other funds pledged pursuant to the Indenture. The City Council of the City hereby authorizes and directs the Mayor and the City Administrator to execute and deliver the Indenture to the Trustee, and hereby authorizes and directs the execution of the Bonds in accordance with the terms of the Indenture, and hereby provides that the Indenture shall provide the terms and conditions,covenants,rights, obligations, duties,and agreements of the owners of the Bonds,the City and the Trustee as set forth therein. 6. All of the provisions of the Indenture, when executed as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Indenture shall be substantially in the form on file with the City, which is hereby approved, with such necessary and appropriate variations, omissions, and insertions as do not materially change the substance thereof, or as the Mayor and the City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and the City Administrator shall be conclusive evidence of such determination. 7. The Mayor and the City Administrator are hereby authorized and directed to execute and deliver the Base Lease Agreement, the Lease Agreement, the City Leasehold Mortgage, the Consent to Company Leasehold Mortgage,the Bond Placement Agreement,to be dated on or after November 1, 2014 (the "Bond Placement Agreement"), between the City, the Company, and Stern Brothers & Co. (the "Placement Agent"), and any other documents required to issue the Bonds (collectively, the "Bond Documents"). All of the provisions of the Bond Documents, when executed and delivered as authorized herein, shall be deemed to be a part of this resolution as fully and to the same extent as if incorporated verbatim herein and shall be in full force and effect from the date of execution and delivery thereof. The Bond Documents shall be substantially in the forms on file with the City which are hereby approved, with such omissions and insertions as do not materially change the substance thereof,or as the Mayor and the City Administrator, in their discretion, shall determine, and the execution thereof by the Mayor and the City Administrator shall be conclusive evidence of such determination. 8. The Bonds shall be revenue obligations of the City the proceeds of which shall be disbursed pursuant to the Lease Agreement, and the principal,premium, if any,and interest on the Bonds shall be payable solely from the proceeds of the Bonds,the revenues derived from the Lease Agreement, the revenues and assets pledged and assigned under the terms of the Company Leasehold Mortgage, the Security Agreement, and the other sources set forth in the Indenture. The Trustee is hereby authorized 450342v3 JAE SH155-303 3 and directed to accept from the Company any additional instruments, documents, or other security provided by the Company or, at its direction to secure the obligations of the Company under the Lease Agreement,the Company Leasehold Mortgage,and the Security Agreement or to secure the Bonds. 9. The Trustee is hereby appointed as Paying Agent and Bond Registrar for the Bonds. 10. The Mayor, the City Administrator, and the Finance Director of the City are hereby authorized to execute and deliver, on behalf of the City, such other documents as are necessary or appropriate in connection with the issuance, sale, and delivery of the Bonds, including one or more certificates of the City, an endorsement to the tax certificate of the Company, an Information Return for Tax-Exempt Private Activity Bond Issues, IRS Form 8038 (Rev. April 2011), and all other documents and certificates as shall be necessary and appropriate in connection with the issuance, sale,and delivery of the Bonds. The City hereby approves the execution and delivery by the Trustee of the Indenture and all other instruments,certificates,and documents prepared in conjunction with the issuance of the Bonds that require execution by the Trustee. The City hereby authorizes Kennedy & Graven, Chartered, as bond counsel of the City,to prepare,execute,and deliver its approving legal opinion with respect to the Bonds. 11. The City has not participated in the preparation of the Preliminary Limited Offering Memorandum(the "Preliminary Limited Offering Memorandum") or the Limited Offering Memorandum (the "Limited Offering Memorandum") relating to the Bonds and has made no independent investigation with respect to the information contained therein, including the appendices thereto, and the City assumes no responsibility for the sufficiency, accuracy, or completeness of such information(except for sections describing the City as the issuer of the Bonds and any litigation with respect to the City). Subject to the foregoing,the City hereby consents to the distribution and the use by the Placement Agent in connection with the sale of the Bonds of the Preliminary Offering Memorandum and the Offering Memorandum. The Preliminary Offering Memorandum and the Offering Memorandum are the sole materials consented to by the City for use in connection with the offer and sale of the Bonds. 12. All covenants, stipulations, obligations, and agreements of the City contained herein and in the aforementioned documents shall be deemed to be the covenants, stipulations, obligations, and agreements of the City to the full extent authorized or permitted by law, and all such covenants, stipulations, obligations, and agreements shall be binding upon the City. Except as otherwise provided herein, all rights, powers, and privileges conferred and duties and liabilities imposed upon the City or the City Council by the provisions of this resolution or of the aforementioned documents shall be exercised or performed by the City or by such members of the City Council, or such officers, board, body or agency thereof as may be required or authorized by law to exercise such powers and to perform such duties. No covenant, stipulation, obligation or agreement herein contained or contained in the aforementioned documents shall be deemed to be a covenant, stipulation, obligation or agreement of any member of the City Council of the City, or any officer, agent or employee of the City in that person's individual capacity, and neither the City Council of the City nor any officer or employee executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. No provision, covenant or agreement contained in the aforementioned documents,the Bonds or in any other document relating to the Bonds, and no obligation therein or herein imposed upon the City or the breach thereof, shall constitute or give rise to any pecuniary liability of the City or any charge upon its general credit or taxing powers. In making the agreements,provisions,covenants, and representations set forth in such documents,the City has not obligated itself to pay or remit any funds or revenues,other than funds and revenues derived from the Lease Agreement, the Security Agreement, and the Company 450342v3 JAE SH155-303 4 Leasehold Mortgage,which are to be applied to the payment of the Bonds, as provided therein and in the Indenture. 13. Except as herein otherwise expressly provided, nothing herein or in the aforementioned documents expressed or implied, is intended or shall be construed to confer upon any person or firm or corporation,other than the City or any holder of the Bonds issued under the provisions of this resolution, any right, remedy or claim, legal or equitable, under and by reason of this resolution or any provisions hereof,this resolution,the aforementioned documents and all of their provisions being intended to be and being for the sole and exclusive benefit of the City and any holder from time to time of the Bonds issued under the provisions of this resolution. 14. In case any one or more of the provisions of this resolution, other than the provisions contained in the first sentence of Section 5 hereof, or of the aforementioned documents, or of the Bonds issued hereunder shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provision of this resolution,or of the aforementioned documents,or of the Bonds,but this resolution, the aforementioned documents, and the Bonds shall be construed and endorsed as if such illegal or invalid provisions had not been contained therein. 15. The Bonds, when executed and delivered, shall contain a recital that they are issued pursuant to the Act, and such recital shall be conclusive evidence of the validity of the Bonds and the regularity of the issuance thereof, and that all acts,conditions,and things required by the laws of the State of Minnesota relating to the adoption of this resolution,to the issuance of the Bonds, and to the execution of the aforementioned documents to happen, exist and be performed precedent to the execution of the aforementioned documents have happened,exist and have been performed as so required by law. 16. The officers of the City, bond counsel, other attorneys, engineers, and other agents or employees of the City are hereby authorized to do all acts and things required of them by or in connection with this resolution, the aforementioned documents, and the Bonds for the full, punctual, and complete performance of all the terms, covenants, and agreements contained in the Bonds, the aforementioned documents and this resolution. In the event that for any reason the Mayor is unable to carry out the execution of any of the documents or other acts provided herein,any other member of the City Council of the City shall be authorized to act in his capacity and undertake such execution or acts on behalf of the City with full force and effect,which execution or acts shall be valid and binding on the City. If for any reason the City Administrator is unable to execute and deliver the documents referred to in this resolution, such documents may be executed by a member of the City Council, with the same force and effect as if such documents were executed and delivered by the City Administrator. 17. The City understands that the Company will pay directly to the City any and all costs paid or incurred by the City in connection with the transactions authorized herein, whether or not the Bonds are issued. The City further understands that the Company will pay to the City its administrative fee for the issuance of conduit debt. 18. The City's agreement to execute the Base Lease Agreement and the City Leasehold Mortgage is for financing purposes and is based on the understanding that the City will receive full indemnity from the Company with respect to all matters related to the Base Lease Agreement and the City Leasehold Mortgage. 19. The consent provided in this resolution shall be in full force and effect from and after its passage and shall continue to be of full force and effect for one year. 450342v3 JAE SH155-303 5 Approved by the City Council of Shakopee,Minnesota this 21st day of October, 2014. Mayor ATTEST: Finance Director/City Clerk 450342v3 JAE SH155-303 KD DRAFT 10-6-14 (v1) PLEDGE AND SECURITY AGREEMENT among RECOVERY TECHNOLOGY SOLUTIONS HOLDINGS,LLC, as Pledgor, RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Company and UMB BANK,N.A., as Pledgee Relating to and Securing: $[16,000,000] CITY OF SHAKOPEE,MINNESOTA SOLID WASTE REVENUE BONDS,SERIES 2014 (Recovery Technology Solutions Shakopee,LLC Project) Dated as of ,2014 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 2 Section 1.01 Defined Terms 2 Section 1.02 Indenture and UCC Definitions 3 ARTICLE II PLEDGE AND GRANT OF SECURITY INTEREST 3 Section 2.01 Granting Clause 3 Section 2.02 Delivery of Collateral 4 Section 2.03 Retention of Certain Rights 4 Section 2.04 Obligations Unconditional. 4 Section 2.05 Waiver 5 ARTICLE III EVENTS OF DEFAULT 6 ARTICLE IV REPRESENTATIONS AND WARRANTIES 7 Section 4.01 Organization;Power; Compliance with Law and Contractual Obligations. 7 Section 4.02 Due Authorization;Non-Contravention 7 Section 4.03 Validity 7 Section 4.04 Beneficial Ownership;Pledged Equity Interests 7 Section 4.05 No Prior Assignment 7 Section 4.06 No Other Financing Documents 8 Section 4.07 Name; Organizational Number 8 Section 4.08 Capital Adequacy;Etc 8 Section 4.09 Perfection of Security Interest 8 ARTICLE V COVENANTS OF THE PLEDGOR 8 Section 5.01 Defense of Collateral 9 Section 5.02 Limitation of Liens 9 Section 5.03 No Other Filings 9 Section 5.04 No Sale of Collateral. 9 Section 5.05 No Impairment of Security 9 Section 5.06 Filing of Bankruptcy Proceedings 9 Section 5.07 Distributions. 9 Section 5.08 Maintenance of Records 9 Section 5.09 Name;Jurisdiction of Organization. 10 Section 5.10 Amendments to Organizational Documents. 10 Section 5.11 Perfection. 10 Section 5.12 Information Concerning Collateral. 10 Section 5.13 Payment of Taxes 10 ARTICLE VI REMEDIES UPON EVENT OF DEFAULT 10 Section 6.01 Remedies Upon an Event of Default 10 Section 6.02 Minimum Notice Period 11 Section 6.03 Sale of Collateral 12 Section 6.04 Actions Taken by the Pledgee 12 Section 6.05 Private Sales. 12 Section 6.06 Compliance With Limitations and Restrictions. 12 Section 6.07 No Impairment of Remedies. 13 ARTICLE VII FURTHER ASSURANCES 13 Section 7.01 Attorney-in-Fact 13 Section 7.02 Delivery of Collateral;Proxy. 13 Section 7.03 Place of Business; Location of Records 13 Section 7.04 Waiver of Transfer Restrictions. 14 Section 7.05 The Company's Consent and Covenant 14 Section 7.06 Foreclosure. 14 Section 7.07 Waiver of Rights of Subrogation 14 Section 7.08 Application of Proceeds. 14 Section 7.09 Limitation on Duty of the Pledgee with Respect to the Collateral 14 Section 7.10 Termination of Security Interest 15 ARTICLE VIII MISCELLANEOUS 15 Section 8.01 Amendments,Etc. 15 Section 8.02 Applicable Law;Jurisdiction;Etc. 15 Section 8.03 Benefits of Agreement. 17 Section 8.04 Expenses 17 Section 8.05 Interest 17 Section 8.06 Counterparts; Effectiveness 17 Section 8.07 Entire Agreement 17 Section 8.08 No Waiver; Cumulative Remedies 17 Section 8.09 Notices and Other Communications. 17 Section 8.10 Reinstatement 18 Section 8.11 Rights of the Pledgee 18 Section 8.12 Severability 19 Section 8.13 Successions and Assignments. 19 Section 8.14 Survival. 19 Section 8.15 Time. 19 Section 8.16 Waiver of Consequential Damages,Etc 19 Section 8.17 Waiver of Litigation Payments 19 ii EXHIBITS Exhibit A - Irrevocable Proxy Exhibit B - Transfer Document Exhibit C - Schedule of Security Filings Schedule I - Description of Pledged Equity Interests iii PLEDGE AND SECURITY AGREEMENT This PLEDGE AND SECURITY AGREEMENT, dated as of , 2014 (this "Agreement"), is entered into by and among RECOVERY TECHNOLOGY SOLUTIONS HOLDINGS, LLC, a limited liability company organized and existing under the laws of the State of Delaware (the "Pledgor"), RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a limited liability company organized and existing under the laws of State of Delaware (the "Company"), and UMB BANK, N.A., a national banking association (together with its successors in such capacity,the"Pledgee"), in its capacity as Trustee under that certain Indenture of Trust dated as of , 2014 (as supplemented and amended from time to time, the "Indenture") between the City of Shakopee, Minnesota, a municipal corporation(the"City") and the Pledgee. WITNESSETH: WHEREAS, pursuant to the Indenture, the City will issue and deliver its $[16,000,000] City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project) (the "Bonds") for the purpose of financing the costs and expenses of the acquisition, construction, installation and equipping of a state-of-the-art facility to recycle asphalt from roof shingles located in Scott County, Minnesota (the "Project"), in accordance with the terms of such Indenture; WHEREAS, the proceeds of the Bonds will be loaned and disbursed to the Company under the terms of an Accounts Agreement (the "Accounts Agreement") dated , 2014, among the Company, the Pledgee and UMB Bank, N.A., a national banking association, and its successors and assigns, in its capacity as accounts bank and securities intermediary(the"Disbursement Agent"),pursuant to which the Disbursement Agent will disburse the proceeds of the Bonds to the Company as provided therein; WHEREAS, pursuant to that certain Lease Agreement dated as of , 2014 (the "Lease Agreement"), between the City and the Company, the City has agreed to(a)provide for the application of the proceeds of the Bonds for the benefit of the Company to be used: (i) for the financing, refinancing or reimbursement of all or a portion of the costs of acquiring, constructing, equipping, installing, and improving the Project (all as more specifically described in Exhibit A to the Lease Agreement); (ii) to fund a debt service reserve account for the Bonds; and(iii)to pay certain costs relating to the issuance of the Bonds,and(b) lease the Project to the Company, subject to the Company's agreement to pay Basic Rent and Additional Rent and other obligations provided for under such Lease Agreement sufficient to pay when due (whether at stated maturity, by acceleration or otherwise) the principal of and premium, if any, and interest on the Bonds and to pay certain other expenses in connection with the Bonds; WHEREAS, the Pledgor directly owns interests in the Company and will obtain benefits as a result of the issuance of the Bonds; WHEREAS, as of the date hereof,the Pledgor is the sole member and owns one hundred percent (100%)of the Equity Interests(as hereinafter defined)of the Company; and WHEREAS, it is a requirement under the Indenture that the Pledgor execute and deliver this Agreement. NOW, THEREFORE, in consideration of the promises contained herein, and to induce the Pledgee to enter into the Indenture and to make the advances of credit to the Company contemplated thereby, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, intending to be legally bound, the Company and the Pledgor hereby agree with the Pledgee, for the benefit of the holders of the Bonds,as follows: ARTICLE I DEFINITIONS Section 1.01 Defined Terms. The following terms when used in this Agreement, including its preamble and recitals, shall have the following meanings: "Accounts Agreement"has the meaning given in the Recitals to this Agreement. "Agreement"means this Pledge and Security Agreement,as amended. "Bond Documents"has the meaning given, and as defined in,the Indenture. "Bonds"has the meaning given in the Recitals to this Agreement. "City"has the meaning given in the Preamble to this Agreement. "Collateral"has the meaning given in Section 2.01 (Granting Clause). "Company"has the meaning given in the Preamble to this Agreement. "Disbursement Agent"has the meaning given in the Recitals to this Agreement. "Equity Interests"means,with respect to any Person, all of the shares of capital stock of(or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of(or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of(or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares(or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination, in each such case including all voting rights and economic rights related thereto. "Event of Default"means an Event of Default under, and as defined in,the Indenture. "Indenture"has the meaning given in the Preamble to this Agreement. "Lease Agreement"has the meaning given in the Recitals to this Agreement. "Obligations" means the obligation of the Company to pay all principal of and interest premium, if any, on the Bonds when due, together with the obligation of the Company to pay all fees and costs described in the Accounts,and together with all other obligations and liabilities of any nature of the Issuer owed to bondholders (or any of them) under the Bonds, or to the Pledgee arising out of or related to the Security Documents (as defined in the Indenture), or to the Pledgee, whether now or hereafter existing, arising out of or related to the Bonds,the Bond Documents or the Project. "Pledged Equity Interests"has the meaning given in Section 2.01 (Granting Clause). 2 "Pledgee"has the meaning given in the Preamble to this Agreement. "Pledgor"has the meaning given in the Preamble to this Agreement. "Project"has the meaning given in the Recitals to this Agreement. "Security Discharge Date" means the date on which all amounts payable in respect of the Obligations have been irrevocably and indefeasibly paid in full in cash (other than obligations under the Bond Documents that by their terms survive and with respect to which no claim has been made by the Pledgee). Section 1.02 Indenture and UCC Definitions. Unless otherwise defined herein or unless the context otherwise requires, terms used in this Agreement, including its preamble and recitals, have the meanings provided in the Indenture or,if not defined therein,the UCC. ARTICLE II PLEDGE AND GRANT OF SECURITY INTEREST Section 2.01 Granting Clause. To secure the timely payment in full when due (whether at stated maturity, by acceleration or otherwise) in cash and performance in full of the Obligations, the Pledgor hereby collaterally assigns, grants and pledges to the Pledgee, for the benefit of the holders of the Bonds, a continuing security interest and lien in all the estate, right, title and interest of the Pledgor, now owned or hereafter existing or acquired, and howsoever its interest therein may arise or appear (whether by ownership, security interest, lien, claim or otherwise), including all the estate,right,title and interest of the Pledgor in,to and under the following(the"Collateral"): (a) Any and all of the Pledgor's right(s), title(s) and interest(s), whether now owned or hereafter existing or acquired, in the Company, and all of the Equity Interests of the Company related thereto, whether or not evidenced or represented by any certificated security or other instrument (the "Pledged Equity Interests"), including the membership interests described on Schedule I hereto and the Pledgor's share of: (i) all rights to receive income, gain, profit, dividends and other distributions allocated or distributed to the Pledgor in respect of or in exchange for all or any portion of the Pledged Equity Interests; (ii) all of the Pledgor's capital or ownership interest or other Equity Interest, including capital accounts,in the Company; (iii) all of the Pledgor's voting rights in or rights to control or direct the affairs of the Company; (iv) all other rights, title and interest in or to the Company derived from the Pledged Equity Interests; (v) all indebtedness or other obligations of the Company owed to the Pledgor; (vi) all claims of the Pledgor for damages arising out of, or for any breach or default relating to,the Pledged Equity Interests; 3 (vii) all securities, notes, certificates and other instruments representing or evidencing any of the foregoing rights and interests or the ownership thereof and any interest of the Pledgor reflected in the books of any financial intermediary pertaining to such rights and interests; (viii) all distributions,non-cash dividends, cash, options,warrants, stock splits, reclassifications, rights, instruments or other investment property and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such rights and interests; and (ix) all security entitlements of the Pledgor in any and all of the foregoing; and (b) all proceeds (including proceeds of proceeds) of the foregoing Collateral, whether cash or non-cash; provided, however, that "Collateral" shall not include any cash or other property distributed to the Pledgor following a distribution made in accordance with Section 2.6.16 (Negative Covenants—Restricted Payments)of the Lease Agreement. Section 2.02 Delivery of Collateral. All certificates,notes and other instruments representing or evidencing any Collateral shall be delivered to and held by or on behalf of,and,in the case of notes, endorsed to the order of,the Pledgee,or its designee pursuant hereto. (b) If any Collateral consists of security entitlements, the Pledgor shall transfer such security entitlements to the Pledgee (or its custodian, nominee or other designee) or cause the applicable securities intermediary to agree that it will comply with entitlement orders by the Pledgee without further consent by the Pledgor. Section 2.03 Retention of Certain Rights. So long no Event of Default has occurred and is continuing, the Pledgor reserves the right to exercise all voting and other rights, title and interest with respect to the Collateral (except as may be limited by the Bond Documents) and, to the extent permitted under the Indenture, to receive all income, gains, profits, dividends and other distributions from the Collateral whether non-cash dividends, cash, options, warrants, stock splits, reclassifications, rights, instruments or other investment property or other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such rights and interests; provided that no vote shall be cast,right exercised or other action taken that could reasonably be expected to result in a Material Adverse Effect(as defined in the Indenture)or result in an Event of Default. Section 2.04 Obligations Unconditional. The obligations of the Pledgor in this Agreement shall be continuing, irrevocable, primary, absolute and unconditional irrespective of the value, genuineness, validity, regularity or enforceability of any Bond Documents, or any other agreement or instrument referred to therein, or any substitution, release or exchange of any guarantee of or security for any of the Obligations and, to the fullest extent permitted by applicable Law, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, other than the occurrence of the Security Discharge Date, it being the intent of this Section 2.04 that the obligations of the Pledgor hereunder shall be absolute and unconditional under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Pledgor hereunder, which 4 shall remain absolute and unconditional as described above without regard to and not be released, discharged or in any way affected(whether in full or in part)by: (a) at any time or from time to time, without notice to the Pledgor, the time for any performance of or compliance with any of the Obligations is extended, or such performance or compliance is waived; (b) any Bond Documents is amended or modified or there is a departure from, or waiver of,any of the terms of any Bond Documents; (c) the maturity of any of the Obligations is accelerated, or any of the Obligations is modified, supplemented and/or amended in any respect, or any right under any Bond Documents, or any other agreement or instrument referred to therein is waived or any guarantee of any of the Obligations or any security therefore is released or exchanged in whole or in part or otherwise dealt with; (d) any lien granted to, or in favor of, the Pledgee as security for any of the Obligations fails to be perfected; or (e) any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of the Pledgor, or any defense which the Pledgor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding. The Pledgor acknowledges and agrees that the Obligations include interest on the Obligations at the applicable rate therefor under the Bond Documents which accrues after the commencement of any such proceeding (or, if interest on any portion of the Obligations ceases to accrue by operation of law by reason of the commencement of said proceeding, such Obligations include the interest which would have accrued on such portion of the Obligations if said proceedings had not been commenced), since it is the intention of the parties that the amount of the Obligations secured pursuant to this Agreement should be determined without regard to any rule of law or order which may relieve the Pledgor of any portion of the Obligations. The Pledgor will permit any trustee in bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar person to pay the Pledgee, or allow the claim of the Pledgee in respect of, interest which would have accrued after the date on which such proceeding is commenced. Notwithstanding the above, so long as any Obligation remains outstanding, the Pledgor shall not, without the prior written consent of the Pledgee, commence or join with any other person in commencing any bankruptcy, reorganization or insolvency proceedings of or against the Company. Section 2.05 Waiver. The enforceability and effectiveness of this Agreement and the liability of the Pledgor, and the rights, remedies, powers and privileges of the Pledgee, under this Agreement shall not be affected, limited, reduced, discharged or terminated, and the Pledgor hereby expressly waives, to the extent permitted by applicable law, any defense now or in the future arising,by reason of: (a) the illegality, invalidity or unenforceability of all or any part of the Obligations, any Bond Documents or any agreement, security document, guarantee or other instrument relating to all or any part of the Obligations; (b) the illegality, invalidity or unenforceability of any security or guarantee for all or any part of the Obligations or the lack of perfection or continuing perfection or failure of the priority of any lien or encumbrance on any collateral for all or any part of the Obligations; 5 (c) the cessation, for any cause whatsoever, of the liability of any Person that is a guarantor of all or any part of the Obligations (other than by reason of the full payment and performance of all Obligations); (d) any judicial or nonjudicial foreclosure or sale of, or other election of remedies with respect to,any interest in real property or other Collateral serving as security for all or any part of the Obligations, even though such foreclosure, sale or election of remedies may impair the subrogation rights of either the Company or the Pledgor or may preclude the Company or the Pledgor from obtaining reimbursement, contribution, indemnification or other recovery from the Company or any other Person and even though the Company or the Pledgor may not, as a result of such foreclosure, sale or election of remedies,be liable for any deficiency; (e) any act or omission of the Pledgee or any other Person(other than payment of the Obligations)that directly or indirectly results in or aids the discharge or release of the Pledgor or any part of the Obligations or any security or guarantee (including any letter of credit) for all or any part of the Obligations by operation of law or otherwise; (f) any law which provides that the obligation of a surety or the Pledgor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety's or the Pledgor's obligation in proportion to the principal obligation; (g) any failure of the Pledgee to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person; (h) the election by the Pledgee, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2)of the Bankruptcy Code; (i) any extension of credit or the grant of any lien or encumbrance under Section 364 of the Bankruptcy Code; (j) any use of cash collateral under Section 363 of the Bankruptcy Code; (k) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person; (1) the avoidance of any lien or encumbrance in favor of the Pledgee for any reason; (m) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any part of the Obligations (or any interest on all or any part of the Obligations)in or as a result of any such proceeding; or (n) any action taken by the Pledgee that is authorized by this Section 2.05 or otherwise in this Agreement, by any other provision of any Bond Documents or any omission to take any such action. ARTICLE III EVENTS OF DEFAULT 6 The occurrence of an Event of Default, whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any Governmental Authority, shall constitute a default hereunder. Any such Event of Default shall be considered cured or waived for the purposes of this Agreement when it has been cured or waived in accordance with the Indenture, as applicable. ARTICLE IV REPRESENTATIONS AND WARRANTIES The Pledgor represents and warrants to and in favor of the Pledgee, for the benefit of the holders of the Bonds, as follows: Section 4.01 Organization; Power; Compliance with Law and Contractual Obligations. The Pledgor(a) is a limited liability company validly organized and existing and in good standing under the laws of the State of Delaware, (b)is duly qualified to do business as is now being conducted and as is proposed to be conducted and is in good standing as a foreign limited liability company in each jurisdiction where the nature of its business requires such qualification, (c)has all requisite power and authority and holds all Governmental Approvals required as of the date of this representation to enter into and perform its obligations under this Agreement. Section 4.02 Due Authorization; Non-Contravention. The execution, delivery and performance by the Pledgor of this Agreement is within the Pledgor's powers, has been duly authorized by all necessary action, and does not contravene (i)the Pledgor's Articles of Organization and Operating Agreement, or(ii)any Law or contractual obligation binding on or affecting the Pledgor. (b) The exercise by the Pledgee of any of its rights and remedies with respect to the Collateral in accordance with the terms of this Agreement will not contravene any contractual obligation binding on or affecting the Pledgor or any of the properties of the Pledgor and will not result in or require the creation of any Lien upon or with respect to any of the Collateral other than pursuant to this Agreement. Section 4.03 Validity. This Agreement constitutes the legal, valid and binding obligations of the Pledgor enforceable in accordance with its terms, except as the enforceability hereof may be limited by (a)bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors' rights generally and (b)general equitable principles (whether considered in a proceeding in equity or at law). Section 4.04 Beneficial Ownership; Pledged Equity Interests. The Pledgor is the lawful and beneficial owner of and has full right, title and interest in, to and under all rights and interests comprising the Collateral, subject to no Liens (other than the Liens created under this Agreement, other Permitted Encumbrances (as defined in the Indenture). The Pledged Equity Interests (a)have been duly authorized and validly issued, (b)are fully paid and non-assessable and(c)constitute one hundred percent (100%)of the outstanding membership interests of the Company. Section 4.05 No Prior Assignment. The Pledgor has not previously assigned any of its rights in, to or under all or any portion of the Collateral (except to the Pledgee, on behalf and for the benefit of, the holders of the Bonds,under any other Bond Documents). 7 Section 4.06 No Other Financing Documents. The Pledgor has not executed, has not authorized, and is not aware of, any effective UCC financing statement, security agreement or other instrument similar in effect covering all or any part of the Collateral on file in any recording office (except as may have been filed pursuant to(a)this Agreement, and(b)the other Bond Documents). Section 4.07 Name; Organizational Number. The name of the Pledgor is Recovery Technology Solutions Holdings, LLC, as indicated in the public records of the State of Delaware. The Pledgor's federal employee identification number is 46-3208673 and the Pledgor's Delaware corporate file number is Section 4.08 Capital Adequacy; Etc. (a) The Pledgor is, and after giving effect to the transactions contemplated hereby will be, Solvent(as defined in the Indenture). (b) The Pledgor is not executing this Agreement with any intention to hinder, delay or defraud any present or future creditor or creditors of the Pledgor. Section 4.09 Perfection of Security Interest. (a) The security interest granted to the Pledgee (for the benefit of the holders of the Bonds) pursuant to this Agreement in the Collateral constitutes a valid Lien in the Collateral subject, with respect to any proceeds,to the limitations set forth in Section 9- 315 of the UCC. The security interest granted to the Pledgee(for the benefit of the holders of the Bonds) pursuant to this Agreement in the Collateral will be perfected (i)with respect to any property that can solely be perfected by filing, to the extent Article 9 of the UCC applies thereto, upon the filing of UCC financing statements in the proper filing offices identified on Exhibit C and (ii)with respect to any property that can be perfected by possession, upon the Pledgee receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of mortgage, Lien, security interests, encumbrance,assignment or otherwise. (b) Except to the extent possession of portions of such Collateral is required for perfection, after giving effect to the filings,registrations and giving of notice referred to in this section, all such action as is necessary has been taken(or will be taken prior to the date of the first Borrowing Notice) to establish and perfect the Pledgee's rights in and to such Collateral to the extent the Pledgee's security interest can be perfected by filing, including any recording, filing, registration, giving of notice or other similar action. Subject to the requirements contained in the UCC with respect to the filing of continuation statements, as of the date hereof, no filing, recording, re-filing or re-recording other than those listed on Exhibit C is necessary to perfect and maintain the perfection of the security interests granted to the Pledgee (for the benefit of the holders of the Bonds) pursuant to this Agreement, to the extent the Pledgee's security interest can be perfected by filing, and all such filings have been made (or will be made prior to the date of the first Funding Notice). All such Collateral that requires perfection of the Lien and security interest described above by possession has been (or will be contemporaneously with the execution of this Agreement)delivered to the Pledgee. ARTICLE V COVENANTS OF THE PLEDGOR The Pledgor covenants to and in favor of the Pledgee and the holders of the Bonds as follows: 8 Section 5.01 Defense of Collateral. The Pledgor shall, until the Security Discharge Date, defend its title to the Collateral and the interest of the Pledgee (for the benefit of itself and the holders of the Bonds)in the Collateral pledged hereunder against the claims and demands of all other Persons. Section 5.02 Limitation of Liens. The Pledgor shall not create, incur, assume or suffer to exist any Liens on or with respect to all or any part of the Collateral (other than Permitted Encumbrances). The Pledgor shall at its own cost and expense promptly take such action as may be necessary to discharge any such Liens(other than Permitted Encumbrances)on the Collateral. Section 5.03 No Other Filings. The Pledgor shall not file or authorize or permit to be filed in any jurisdiction any financing statements under the UCC or any like statement relating to the Collateral in which the Pledgee (for the benefit of the holders of the Bonds) is not named as the sole secured party, other than any financing statements under the UCC or like statements in respect of Permitted Encumbrances. Section 5.04 No Sale of Collateral. Except as permitted by the terms of the Indenture, the Pledgor shall not cause, suffer or permit the sale, assignment, conveyance, pledge or other transfer of all or any portion of the Pledgor's Equity Interest in the Company or any other portion of the Collateral. Section 5.05 No Impairment of Security. The Pledgor shall not take any action, or fail to take any action, that would impair in any manner the enforceability of the Pledgee's security interest in and Lien on any Collateral. Section 5.06 Filing of Bankruptcy Proceedings. To the extent it may do so under applicable Law, the Pledgor, for itself, its successors and assigns, shall not cast any vote as an owner in the Company (a)in favor of the commencement of a voluntary case or other proceeding seeking liquidation, reorganization, rehabilitation or other relief with respect to the Company or its debts under any bankruptcy, insolvency or other similar Law now or hereafter in effect in any jurisdiction or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the owners of the Company or any substantial part of the Company's property, (b)to authorize the Company to consent to any such aforesaid relief or to the appointment of or taking possession by any such aforesaid official in an involuntary case or other proceeding commenced against the Company or(c)to authorize the Company to make a general assignment for the benefit of creditors. Section 5.07 Distributions. If the Pledgor in its capacity as an owner of the Company receives any income, dividend or other distribution of money or property of any kind from the Company (other than as expressly permitted by the Bond Documents), the Pledgor shall hold such income or distribution as trustee for and shall promptly deliver the same to the Pledgee in the exact form received by the Pledgor(or duly endorsed by the Pledgor to the Pledgee, if required). Section 5.08 Maintenance of Records. The Pledgor shall, at all times, keep accurate and complete records of the Collateral. The Pledgor shall permit officers and designated representatives of the Pledgee to examine the Pledgor's books and records pertaining to the Collateral, and make copies thereof or abstracts therefrom, all at the expense of the Pledgor and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Pledgor; provided that if an Event of Default has occurred and is continuing, the Pledgee (or any of its officers or designated representatives) may do any of the foregoing at any time during normal business hours and without advance notice. Upon the occurrence and during the continuation of any Event of Default, at the Pledgee's request, the Pledgor shall promptly deliver to the Pledgee copies of any and all of the records mentioned above. 9 Section 5.09 Name; Jurisdiction of Organization. The Pledgor shall not change its name, its jurisdiction of organization,the location of its principal place of business or its organization identification number without the prior written consent of the Pledgee at least thirty(30) days prior to such change. In the event of such change, Pledgor shall (at its expense) execute and deliver such instruments and documents as may be reasonably required by Pledgee or required by applicable Law to maintain a prior perfected security interest in the Collateral. Section 5.10 Amendments to Organizational Documents. Except as expressly permitted by this Agreement, the Indenture or the other Bond Documents, the Pledgor shall not terminate, amend, supplement or otherwise modify, or cancel, the Articles of Organization and Operating Agreement of the Company. Section 5.11 Perfection. The Pledgor agrees that from time to time, at the expense of the Pledgor, the Pledgor shall promptly execute and deliver all further instruments and documents, and take all further action, that may be reasonably necessary, or that the Pledgee may otherwise reasonably request, in order to perfect, to ensure the continued perfection of, and to protect the assignment and security interest granted or intended to be granted hereby or to enable the Pledgee to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, the Pledgor shall (i)deliver any of the Collateral represented by a certificate or other instrument to the Pledgee, accompanied by such duly executed instruments of transfer or assignment as the Pledgee may reasonably request, and (ii) authorize, execute and file such financing or continuation statements, or amendments thereto, and such other instruments, endorsements or notices, as may be reasonably necessary or desirable or as the Pledgee may reasonably request, in order to perfect and preserve the assignments and security interests granted or purported to be granted hereby. (b) The Pledgor hereby authorizes the filing of any financing statements or continuation statements, and amendments to financing statements, or any similar document in any jurisdictions and with any filing offices as the Pledgee may reasonably determine are necessary or advisable to perfect the security interest granted to the Pledgee, for the benefit of the holders of the Bonds,herein(provided,however,that the Pledgee shall in no way be responsible for the filing or content of such UCC financing statements or any renewal thereof). Such financing statements may describe the Collateral in the same or similar and consistent manner as described herein. Section 5.12 Information Concerning Collateral. The Pledgor shall,promptly upon request, provide to the Pledgee all information and evidence it may reasonably request concerning the Collateral to enable the Pledgee to enforce the provisions of this Agreement. Section 5.13 Payment of Taxes. The Pledgor shall pay or cause to be paid, before any fine, penalty, interest or cost attaches thereto, all Taxes and other non-governmental charges or levies (other than those Taxes or levies that are subject to a Contest) now or hereafter assessed or levied against the Collateral pledged by it hereunder and shall retain copies of and, upon request, permit the Pledgee to examine receipts showing payment of any of the foregoing. ARTICLE VI REMEDIES UPON EVENT OF DEFAULT Section 6.01 Remedies Upon an Event of Default. Upon the occurrence and during the continuation of an Event of Default,the Pledgee shall have the right, at its election, but not the obligation, to do any of the following: 10 (a) vote or exercise any and all of the Pledgor's rights or powers incident to its ownership of the Pledged Equity Interests, including any rights or powers to manage or control the Company and receive dividends or distributions; (b) demand, sue for, collect or receive any money or property at any time payable to or receivable by the Pledgor on account of or in exchange for all or any part of the Collateral; (c) cause any action at law or suit in equity or other proceeding to be instituted and prosecuted to collect or enforce any obligation or exercise any right hereunder or included in the Collateral, including specific enforcement of any covenant or agreement contained herein, or to foreclose or enforce the security interest in all or any part of the Collateral granted herein, or to enforce any other legal or equitable right vested in it by this Agreement or by applicable Law; (d) amend, terminate, supplement or modify all or any of the Company's Articles of Organization and Operating Agreement; (e) incur expenses, including reasonable attorneys' fees, reasonable consultants' fees,and other costs appropriate to the exercise of any right or power under this Agreement; (f) perform any obligation of the Pledgor hereunder; (g) secure the appointment of a receiver of the Collateral or any part thereof,whether incidental to a proposed sale of the Collateral or otherwise, and all disbursements made by such receiver and the expenses of such receivership shall be added to and be made a part of the Obligations, and, whether or not the principal sum of the Obligations, including such disbursements and expenses, exceeds the indebtedness originally intended to be secured hereby, the entire amount of said sum, including such disbursements and expenses, shall be secured by this Agreement and shall be due and payable upon demand therefor and thereafter shall bear interest at the Default Rate or the maximum rate permitted by applicable Law,whichever is less; (h) exercise any other or additional rights or remedies granted to the Pledgee under any other provision of this Agreement, any other Bond Documents, or exercisable by a secured party under the UCC or under any other applicable Law and, without limiting the generality of the foregoing and without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any exchange or broker's board or elsewhere, at such price or prices and on such other terms as the Pledgee may deem commercially reasonable in accordance with the UCC; (i) take any other lawful action that the Pledgee deems necessary or desirable to protect or realize upon its security interest in the Collateral or any part thereof; and/or (j) appoint another Person(who may be an employee, officer or other representative of the Pledgee)to do any of the foregoing, or take any other action permitted hereunder, on behalf of the Pledgee. Section 6.02 Minimum Notice Period. If, pursuant to applicable requirements of Law (as defined in the Indenture), prior notice of any action described in Section 6.01 (Remedies Upon an Event of Default) is required to be given to the Pledgor or the Company, the Pledgor and the Company hereby acknowledge and agree that the minimum time required by such applicable Law, or if no minimum is specified,ten(10)Business Days, shall be deemed a reasonable notice period under such applicable Law. 11 Section 6.03 Sale of Collateral. In addition to exercising the foregoing rights, the Pledgee may, to the extent permitted by applicable Law, arrange for and conduct a sale of the Collateral at a public or private sale (as the Pledgee may elect) which sale may be conducted by an employee or representative of the Pledgee, and any such sale shall be conducted in a commercially reasonable manner. The Pledgee may release, temporarily or otherwise, to the Pledgor any item of Collateral of which the Pledgee has taken possession pursuant to any right granted to the Pledgee by this Agreement without waiving any rights granted to the Pledgee under this Agreement, the Indenture or the other Bond Documents. The Pledgor, in dealing with or disposing of the Collateral or any part thereof,hereby waives all rights, legal and equitable, it may now or hereafter have to require marshaling of assets or to require, upon foreclosure, sales of assets in a particular order. The Pledgor also waives its right to challenge the reasonableness of any disclaimer of warranties, title and the like made by the Pledgee in connection with a sale of the Collateral. Each successor of the Pledgor under the Bond Documents agrees that it shall be bound by the above waiver, to the same extent as if such successor gave such waiver itself. The Pledgor also hereby waives, to the full extent it may lawfully do so,the benefit of all laws providing for rights of appraisal, valuation, stay or extension or of redemption after foreclosure now or hereafter in force. If the Pledgee sells any of the Collateral upon credit, the Pledgor will be credited only with payments actually made by the purchaser and received by the Pledgee. In the event the purchaser fails to pay for the Collateral,the Pledgee may resell the Collateral and the Pledgor shall be credited with the proceeds of the sale. In the event the Pledgee shall bid at any foreclosure or trustee's sale or at any private sale permitted by Law and this Agreement, any other Bond Documents,the Pledgee may bid all or less than the amount of the Obligations. The Pledgee shall not be obligated to make any sale of Collateral regardless of whether or not notice of sale has been given. The Pledgee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Pledgor further acknowledges and agrees that any offer to sell any part of the Collateral that has been (i)publicly advertised on a bona fide basis in a newspaper or other publication of general circulation or (ii)made privately in the manner described herein to not less than fifteen(15) bona fide offerees shall be deemed to involve a "public disposition"for the purposes of Section 9-610(c)of the UCC. Section 6.04 Actions Taken by the Pledgee. Any action or proceeding to enforce this Agreement may be taken by the Pledgee either in the Pledgor's name or in the Pledgee's name, as the Pledgee may deem necessary. Section 6.05 Private Sales. The Pledgee shall incur no liability as a result of the sale of the Collateral, or any part thereof, at any private sale made in good faith by the Pledgee pursuant to this Article VI conducted in a commercially reasonable manner and in accordance with the requirements of applicable Law. The Pledgor hereby waives any claims against the Pledgee arising by reason of the fact that the price at which the Collateral may have been sold at such a private sale was less than the price that might have been obtained at a public sale or was less than the aggregate amount of the Obligations, even if the Pledgee accepts the first offer received and does not offer the Collateral to more than one offeree, provided that such private sale is conducted in a commercially reasonable manner and in accordance with applicable Law. Section 6.06 Compliance With Limitations and Restrictions. The Pledgor hereby agrees that in respect of any sale of any of the Collateral pursuant to the terms hereof, the Pledgee is hereby authorized to comply with any limitation or restriction in connection with such sale as the Pledgee may be advised by counsel is necessary in order to avoid any violation of applicable Law, or in order to obtain any required approval of the sale or of the purchaser by any Governmental Authority or official, and the Pledgor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner,nor shall the Pledgee be liable or accountable to 12 the Pledgor for any discount allowed by reason of the fact that such Collateral is sold in compliance with any such limitation or restriction. Section 6.07 No Impairment of Remedies. If, in the exercise of any of its rights and remedies under this Agreement,the Pledgee shall forfeit any of its rights or remedies, including any right to enter a deficiency judgment against the Pledgor or any other Person,whether because of any applicable Law pertaining to "election of remedies" or otherwise, the Pledgor hereby consents to such action by the Pledgee and,to the extent permitted by applicable Law,waives any claim based upon such action, even if such action by the Pledgee shall result in a full or partial loss of any rights of subrogation, indemnification or reimbursement that the Pledgor might otherwise have had but for such action by the Pledgee or the terms herein. Any election of remedies that results in the denial or impairment of the right of the Pledgee to seek a deficiency judgment against any of the parties to any of the Bond Documents shall not, to the extent permitted by applicable Law, impair the Pledgor's obligations hereunder. ARTICLE VII FURTHER ASSURANCES Section 7.01 Attorney-in-Fact. The Pledgor hereby constitutes and appoints the Pledgee, acting for and on behalf of itself, and each successor or permitted assign of the Pledgee, the true and lawful attorney-in-fact of the Pledgor, with full power and authority in the place and stead of the Pledgor and in the name of the Pledgor, the Pledgee or otherwise, to enforce all rights, interests and remedies of the Pledgor with respect to the Collateral or enforce all rights, interests and remedies of the Pledgee under this Agreement (including the rights set forth in Section 6.01 (Remedies Upon an Event of Default); provided,however,that the Pledgee shall not exercise any of the aforementioned rights unless an Event of Default has occurred and is continuing. This power of attorney is a power coupled with an interest and shall be irrevocable; provided, however, that nothing in this Agreement shall prevent the Pledgor from, prior to the exercise by the Pledgee of any of the aforementioned rights, undertaking the Pledgor's operations in the ordinary course of business with respect to the Collateral, in accordance with the Bond Documents. Section 7.02 Delivery of Collateral; Proxy. All certificates or instruments representing or evidencing the Collateral shall be delivered to and held by or on behalf of the Pledgee pursuant hereto. All such certificates or instruments shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably acceptable to the Pledgee. The Pledgee shall have the right, at any time in its discretion and without prior notice to the Pledgor or the Company, following the occurrence and during the continuation of an Event of Default,to transfer to or to register in the name of the Pledgee or any of its nominees any or all of the Collateral and to exchange certificates or instruments representing or evidencing Collateral for certificates or instruments of smaller or larger denominations. In furtherance of the foregoing, the Pledgor shall further execute and deliver to the Pledgee a proxy in the form attached hereto as Exhibit A and an irrevocable power in the form of Exhibit B with respect to the ownership interests of the Company owned by the Pledgor. Section 7.03 Place of Business; Location of Records. Unless the Pledgee is otherwise notified under Section 5.09 (Name;Jurisdiction of Organization),the chief executive office and principal place of business of the Pledgor is, and all records of the Pledgor concerning the Collateral are and will be, located at the address set forth in Section 8.09(Notices and Other Communications). 13 Section 7.04 Waiver of Transfer Restrictions. Notwithstanding anything to the contrary contained in the Company's Articles of Organization and Operating Agreement, the Pledgor hereby waives any requirement contained in the Company's Articles of Organization and Operating Agreement that it consent to a transfer of any Equity Interest in the Company in connection with a foreclosure on such Equity Interest under the Bond Documents. Section 7.05 The Company's Consent and Covenant. The Company hereby consents to the assignment of and grant of a security interest in the Collateral to the Pledgee (for the benefit of the holders of the Bonds) and to the exercise by the Pledgee of all rights and powers assigned or delegated to the Pledgee by the Pledgor hereunder, including the rights upon and during the continuation of an Event of Default to exercise the Pledgor's voting rights and other rights to manage or control the Company, all in accordance with the Bond Documents. Section 7.06 Foreclosure. The Pledgor agrees that upon the occurrence and during the continuation of an Event of Default,the Pledgee may elect to non judicially or judicially foreclose against any real or personal property security it holds for the Obligations or any part thereof, or to exercise any other remedy against the Company or any other Person, any security or any guarantor, even if the effect of that action is to deprive the Pledgor of the right to collect reimbursement from the Company or any other Person for any sums paid by the Pledgor to the Pledgee. Section 7.07 Waiver of Rights of Subrogation. Until the Security Discharge Date, (a)the Pledgor shall not exercise any right of subrogation and shall not enforce any remedy that the Pledgee now have or may hereafter have against the Company, and waives the benefit of, and all rights to participate in, any security now or hereafter held by the Pledgee from the Company and(b)the Pledgor agrees not to exercise any claim, right or remedy that the Pledgor may now have or hereafter acquire against the Company that arises hereunder and/or from the performance by the Pledgor hereunder, including any claim, remedy or right of subrogation, reimbursement, exoneration, contribution, indemnification, or participation in any claim, right or remedy of the Pledgee against the Company, or any security that the Pledgee now has or hereafter acquires, whether or not such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise. Any amount paid to the Pledgor on account of any such subrogation rights prior to the Security Discharge Date shall be held in trust for the benefit of the Pledgee and shall immediately thereafter be paid to the Pledgee, for the benefit of the holders of the Bonds. Section 7.08 Application of Proceeds. Upon the occurrence and during the continuation of an Event of Default, the proceeds of any sale of or other realization upon all or any part of the Collateral shall be applied in accordance with the Indenture. The Pledgor and its Affiliates that are party to any Bond Documents shall remain liable for any deficiency in accordance with the respective Bond Documents to which each is a party. Section 7.09 Limitation on Duty of the Pledgee with Respect to the Collateral. The powers conferred on the Pledgee hereunder are solely to protect its interest and the interests of the holders of the Bonds in the Collateral and shall not impose any duty on the Pledgee or any of its designated agents to exercise any such powers. Except for (a)the safe custody of any Collateral in its possession, (b)the accounting for monies actually received by it hereunder, (c)the exercise of reasonable care in the custody and preservation of the Collateral in its possession, and (d)any duty expressly imposed on the Pledgee by applicable Law with respect to any Collateral that has not been waived hereunder,the Pledgee shall have no duty with respect to any Collateral and no implied duties or obligations shall be read into this Agreement against the Pledgee. The Pledgee shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if the Collateral is accorded treatment that 14 is substantially equivalent to that which the Pledgee accords its own property, it being expressly agreed, to the maximum extent permitted by applicable Law, that the Pledgee shall have no responsibility for (i)taking any necessary steps to preserve rights against any parties with respect to any Collateral, or (ii)taking any action to protect against any diminution in value of the Collateral but, in each case, the Pledgee may do so and all expenses reasonably incurred in connection therewith shall be part of the Obligations. Section 7.10 Termination of Security Interest. Upon the Security Discharge Date, this Agreement and the security interest and all other rights granted hereby shall terminate and all rights to the Collateral shall revert to the Pledgor. Upon any such termination, the Pledgee will, at the Pledgor's sole expense and upon its written direction, promptly return all certificates and other instruments previously delivered to the Pledgee representing the Pledged Equity Interests or any other Collateral and, execute and, subject to Section 8.10 (Reinstatement), deliver to the Pledgor such documents (including UCC-3 termination statements) as the Company or the Pledgor may reasonably request to evidence such termination,to release all security interest in the Collateral and to return such Collateral to the Pledgor. ARTICLE VIII MISCELLANEOUS Section 8.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement, and no consent to any departure by any of the Pledgor or the Company from this Agreement, shall be effective unless in writing signed by the Pledgee, and, in the case of an amendment, by the Pledgor and the Company, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Section 8.02 Applicable Law; Jurisdiction; Etc. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). (b) SUBMISSION TO JURISDICTION. EACH OF THE PLEDGOR AND THE COMPANY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER FINANCING DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT, IN ANY OTHER FINANCING DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY AGENT OR SENIOR SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS 15 AGREEMENT, OR ANY OTHER FINANCING DOCUMENT AGAINST THE PLEDGOR OR THE COMPANY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. EACH OF THE PLEDGOR AND THE COMPANY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER FINANCING DOCUMENT IN ANY COURT REFERRED TO IN THIS SECTION 8.02(b). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (d) Appointment of Process Agent and Service of Process. Each of the Pledgor and the Company hereby irrevocably appoints Dorsey&Whitney LLP,with an office on the date hereof at 50 South Sixth Street, Suite 1500, Minneapolis, Minnesota 55402, as its agent to receive on behalf of itself services of copies of the summons and complaint and any other process that may be served in any such action or proceeding in the State of New York. If for any reason the Process Agent shall cease to act as such for either of the Pledgor or the Company, the Pledgor or the Company, as the case may be, hereby agrees to designate a new agent in New York City on the terms and for the purposes of this Section 9.02 reasonably satisfactory to the Pledgee. Such service may be made by mailing or delivering a copy of such process to the Pledgor or the Company, as the case may be, in care of the Process Agent at the Process Agent's above address, and each of the Pledgor and the Company hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf. As an alternative method of service, each of the Pledgor and the Company also irrevocably consents to the service of any and all process in any such action or proceeding by the air mailing of copies of such process to the Pledgor or the Company, as the case may be, at its then effective notice addresses pursuant to Section 8.09 (Notices and Other Communications). (e) Immunity. To the extent that either the Pledgor or the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, each of the Pledgor and the Company hereby irrevocably and unconditionally waives such immunity in respect of its obligations under the Bond Documents and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 8.02(e) shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act. (f) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO(i)CERTIFIES THAT NO REPRESENTATIVE,AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii)ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, THE OTHER FINANCING DOCUMENTS 16 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.02. Section 8.03 Benefits of Agreement. Nothing in this Agreement or any other Bond Documents, express or implied, shall give to any Person, other than the parties hereto, and each of their successors and permitted assigns under this Agreement,the Indenture and the other Bond Documents,any benefit or any legal or equitable right or remedy under this Agreement. Section 8.04 Expenses. Each of the Pledgor and the Company agrees to pay on demand to the Pledgee all costs and expenses incurred by the Pledgee(including the fees,expenses and disbursements of counsel) incident to its enforcement, exercise, protection or preservation of any of its rights, remedies or claims under this Agreement. Section 8.05 Interest. Any amount required to be paid by the Pledgor or the Company pursuant to the terms hereof that is not paid when due shall bear interest at the Trustee Prime Rate (as defined in the Indenture) plus 300 basis points or the maximum rate permitted by law, whichever is less, from the date due until paid in full in cash. Section 8.06 Counterparts; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when it has been executed and delivered by the Pledgee and when the Pledgee has received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or portable document format ("pdf') shall be effective as delivery of a manually executed counterpart of this Agreement. Section 8.07 Entire Agreement. This Agreement,together with each other Bond Documents, is intended by the parties as a final expression of their agreement and is intended as a complete and exclusive statement of the terms and conditions thereof. Section 8.08 No Waiver; Cumulative Remedies. No failure by the Pledgee to exercise, and no delay by the Pledgee in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Bond Documents, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. Section 8.09 Notices and Other Communications. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 8.09(b)), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service,mailed by certified or registered mail or sent by telecopier or electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as set forth below: If to the Pledgor: Recovery Technology Solutions Holdings,LLC 17 Attention: Telephone: Facsimile: E-mail: If to the Company: Recovery Technology Solutions Shapokee,LLC 500 S. Marshall Rd, Suite 200 Shapokee,MN 55379 Attention: Tom Branhan,President and CEO Telephone: (952) 746-4184 x 102 Facsimile: E-mail: tom.branhan@recoveryts.com If to the Pledgee: UMB Bank,N.A. 2 South Broadway St.Louis,MO 63012 Attention: Sandy Battas Telephone: (314)612-8481 Facsimile: E-mail: Sandra.Battas @umb.com (b) Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). (c) Each of the parties hereto may change its address,telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Section 8.10 Reinstatement. This Agreement shall continue to be effective or be automatically reinstated, as the case may be, if at any time any payment pursuant to this Agreement is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, reorganization, liquidation of the Pledgor, the Company or any other Person party to a Bond Documents or upon the dissolution of, or appointment of any intervenor or conservator of, or trustee or similar official for, the Pledgor, the Company or any other Person party to a Bond Documents or any substantial part of the Pledgor's, the Company's or any other such Person's assets, or otherwise, all as though such payments had not been made, and the Pledgor or the Company shall pay the Pledgee on demand all reasonable costs and out-of-pocket expenses (including reasonable fees, expenses and disbursements of counsel) incurred by the Pledgee in connection with such rescission or restoration. Section 8.11 Rights of the Pledgee. The Pledgee shall be entitled to the rights, protections, immunities and indemnities set forth in the Indenture,the Accounts Agreement,the Lease Agreement and the other Bond Documents as if specifically set forth herein. With respect to the duties, obligations and 18 rights of the Pledgee, if any conflict between the terms of this Agreement and the terms of the Indenture arises,the terms of the Indenture shall govern and control. Section 8.12 Severability. If any provision of this Agreement, any other Bond Documents is held to be illegal, invalid or unenforceable, (a)the legality, validity and enforceability of the remaining provisions of this Agreement, the other Bond Documents shall not be affected or impaired thereby and (b)the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 8.13 Successions and Assignments. This Agreement shall create a continuing pledge and assignment of and security interest in the Collateral and shall (a)remain in full force and effect until the Security Discharge Date and as otherwise provided in Section 8.14(Survival); (b)be binding upon the Company, the Pledgor, and their respective successors and assigns; and(c)inure,together with the rights and remedies of the Pledgee,to the benefit of the Pledgee and its successors and assigns. The release of the security interest in any of the Collateral, the taking or acceptance of additional security, or the resort by the Pledgee to any security it may have in any order it may deem appropriate, shall not affect the liability of any Person on the indebtedness secured hereby. The Pledgor is not entitled to assign its obligations hereunder to any other Person without the written consent of the Pledgee, and any purported assignment in violation of this provision shall be void. Section 8.14 Survival. Notwithstanding anything in this Agreement to the contrary, Sections 8.04 (Expenses) shall survive any termination of this Agreement. In addition, each representation and warranty made hereunder, in any other Bond Documents or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Pledgee, regardless of any investigation made by any of the Pledgee or on its behalf and notwithstanding that the Pledgee may have had notice or knowledge of any Event of Default at the time of any extensions of credit to the Company under the Bond Documents, and shall continue in full force and effect as long as any Bonds or any other Obligation hereunder, under any other Bond Documents shall remain unpaid or unsatisfied. Section 8.15 Time. Time is of the essence of this Agreement. Section 8.16 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, neither the Pledgor nor the Company shall assert, and each of the Pledgor and the Company hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Bond Documents, or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Bonds, or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement, the other Bond Documents or the transactions contemplated hereby or thereby. Section 8.17 Waiver of Litigation Payments. To the extent that the Pledgor or the Company may, in any action, suit or proceeding brought in any of the courts referred to in Section 8.02(b) (Applicable Law;Jurisdiction; Etc.) or elsewhere arising out of or in connection with this Agreement, or any other Bond Documents to which it is a party, be entitled to the benefit of any provision of law 19 requiring the Pledgee in such action, suit or proceeding to post security for the costs of such Pledgor or Company or to post a bond or to take similar action, each of the Pledgor and the Company hereby irrevocably waives such benefit, in each case to the fullest extent now or in the future permitted under the laws of New York or,as the case may be,the jurisdiction in which such court is located. IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Pledge and Security Agreement to be duly executed and delivered as of the date first above written. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 20 SIGNATURE PAGE OF PLEDGOR TO PLEDGE AND SECURITY AGREEMENT RECOVERY TECHNOLOGY SOLUTIONS HOLDINGS,LLC, as Pledgor By: 21 SIGNATURE PAGE OF COMPANY TO PLEDGE AND SECURITY AGREEMENT RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Company By: Tom Branhan,President and CEO 22 SIGNATURE PAGE OF PLEDGEE TO PLEDGE AND SECURITY AGREEMENT UMB BANK,N.A., as Pledgee By: Gordon Gendler, Senior Vice President EXHIBIT A IRREVOCABLE PROXY The undersigned hereby appoints UMB Bank, N.A., not in its individual capacity but solely as "Pledgee" under the Pledge and Security Agreement (the "Pledgee"), as Proxy with full power of substitution, and hereby authorizes Pledgee to represent and vote all of the membership interests of Recovery Technology Solutions Shakopee, LLC, a limited liability company organized and existing under the laws of the State of Delaware, owned by the undersigned on the date of exercise hereof during the continuance of an Event of Default under, and as defined in, the Pledge and Security Agreement, dated as of , 2014, among Recovery Technology Solutions Holdings, LLC, Recovery Technology Solutions Shakopee, LLC and the Pledgee at any meeting or at any other time chosen by the Pledgee in its sole discretion. Date: RECOVERY TECHNOLOGY SOLUTIONS HOLDINGS,LLC By: Name: Title: A-1 EXHIBIT B TRANSFER DOCUMENT FOR VALUE RECEIVED, RECOVERY TECHNOLOGY SOLUTIONS HOLDINGS, LLC, a limited liability company organized and existing under the laws of the State of Delaware, hereby sells, assigns and transfers unto all of its ownership interests in recovery Technology Solutions Shakopee, LLC, a limited liability company organized and existing under the laws of the State of Delaware, standing in its name on the books of Recovery Technology Solutions Holdings, LLC, [represented by ,] and irrevocably appoints as attorney to transfer the ownership interests with full power of substitution in the premises. Date: RECOVERY TECHNOLOGY SOLUTIONS HOLDINGS,LLC By: Name: Title: In the presence of: B-1 EXHIBIT C SCHEDULE OF SECURITY FILINGS UCC-1 financing statement naming the Pledgor as debtor and the Pledgee as the secured party, against the Pledged Equity Interests of the Pledgor in the Company and the other Collateral referred to, and as defined in,this Agreement,to be filed with the Secretary of State of the State of Delaware. C-1 SCHEDULE I DESCRIPTION OF PLEDGED EQUITY INTERESTS Description: 100%of the outstanding membership interests of Recovery Technology Solutions Shakopee,LLC[, represented by 1 I-1 KD DRAFT 10-1-2014 (v1) SECURITY AGREEMENT From RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Debtor To as Secured Party Relating to and Securing: $16,000,000 CITY OF SHAKOPEE,MINNESOTA SOLID WASTE REVENUE BONDS,SERIES 2014 (RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC PROJECT) Dated as of ,2014 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS 1 1.1 Terms Defined in Accounts Agreement 1 1.2 Terms Defined in UCC 1 1.3 Definitions of Certain Terms Used Herein 1 ARTICLE II GRANT OF SECURITY INTEREST 4 ARTICLE III REPRESENTATIONS AND WARRANTIES 6 3.1 Title,Perfection and Priority 6 3.2 Type and Jurisdiction of Organization, Organizational and Identification Numbers 6 3.3 Principal Location 6 3.4 Collateral Locations 6 3.5 Deposit Accounts 6 3.6 Exact Names 6 3.7 Letter-of-Credit Rights and Chattel Paper 6 3.8 Accounts and Chattel Paper 7 3.9 Inventory 7 3.10 Intellectual Property 7 3.11 Filing Requirements 8 3.12 No Financing Statements, Security Agreements 8 3.13 Pledged Collateral 8 ARTICLE IV COVENANTS 9 4.1 General 9 4.2 Receivables 10 4.3 Inventory and Equipment 11 4.4 Delivery of Instruments, Securities, Chattel Paper and Documents 11 4.5 Uncertificated Pledged Collateral 11 4.6 Pledged Collateral 12 4.7 Intellectual Property 12 4.8 Commercial Tort Claims 13 4.9 Letter-of-Credit Rights 13 4.10 [Reserved] 13 4.11 No Interference 14 4.12 [Reserved] 14 4.13 Collateral Access Agreements 14 4.14 Deposit Account Control Agreements 14 4.15 Change of Name or Location; Change of Fiscal Year 14 4.16 Assigned Contracts 14 ARTICLE V EVENTS OF DEFAULT AND REMEDIES 15 5.1 Events of Default 15 5.2 Remedies 15 5.3 Debtor's Obligations Upon Event of Default 16 5.4 Grant of Intellectual Property License 17 ARTICLE VI ACCOUNT VERIFICATION,ATTORNEY IN FACT,PROXY 17 6.1 Account Verification 17 i 6.2 Authorization for Secured Party to Take Certain Action 17 6.3 Proxy 18 6.4 Nature of Appointment;Limitation of Duty 19 ARTICLE VII COLLECTION AND APPLICATION OF COLLATERAL PROCEEDS,DEPOSIT ACCOUNTS 19 7.1 Collection of Receivables 19 7.2 Covenant Regarding New Deposit Accounts 19 ARTICLE VIII GENERAL PROVISIONS 20 8.1 Waivers 20 8.2 Limitation on the Collateral Agent's Duty with Respect to the Collateral 20 8.3 Compromises and Collection of Collateral 21 8.4 Secured Party Performance of Debtor Obligations 21 8.5 Specific Performance of Certain Covenants 21 8.6 Dispositions Not Authorized 21 8.7 No Waiver;Amendments; Cumulative Remedies 21 8.8 Limitation by Law; Severability of Provisions 22 8.9 Reinstatement 22 8.10 Benefit of Agreement 22 8.11 Survival of Representations 22 8.12 Taxes and Expenses 22 8.13 Headings 22 8.14 Termination 23 8.15 Entire Agreement 23 8.16 CHOICE OF LAW 23 8.17 CONSENT TO JURISDICTION 23 8.18 WAIVER OF JURY TRIAL 23 8.19 Indemnity 23 8.20 Counterparts 24 ARTICLE IX NOTICES 24 9.1 Sending Notices 24 9.2 Change in Address for Notices 24 9.3 Lien Absolute 24 9.4 Release 24 ii EXHIBITS: EXHIBIT A DEBTOR'S INFORMATION AND COLLATERAL LOCATIONS A-1 EXHIBIT B DEPOSIT ACCOUNTS B-1 EXHIBIT C LETTER OF CREDIT RIGHTS C-1 EXHIBIT D INTELLECTUAL PROPERTY RIGHTS D-1 EXHIBIT E TITLE DOCUMENTS E-1 EXHIBIT F FIXTURES F-1 EXHIBIT G LIST OF PLEDGED COLLATERAL, SECURITIES AND OTHER INVESTMENT PROPERTY G-1 EXHIBIT H OFFICES IN WHICH FINANCING STATEMENTS HAVE BEEN FILED H-1 EXHIBIT I AMENDMENT I-1 EXHIBIT J ASSIGNED CONTRACTS J-1 EXHIBIT K LIST OF EQUIPMENT EXPECTED TO BE ACQUIRED K-1 iii SECURITY AGREEMENT THIS SECURITY AGREEMENT (as it may be amended or modified from time to time, this "Security Agreement")is made as of ,2014,by RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a limited liability company organized and existing under the laws of the State of Delaware (the "Debtor"), in favor of , a(n) (together with its successors in such capacity, the "Secured Party"), in its capacity as Trustee under that certain Indenture of Trust dated as of , 2014 (as supplemented and amended from time to time, the "Indenture") between the City of Shakopee, Minnesota, a municipal corporation(the"City")and the Secured Party. WITNESSETH: WHEREAS, pursuant to the Indenture, the City will issue and deliver its $16,000,000 City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project) (the "Bonds") for the purpose of fmancing the costs and expenses of the acquisition, construction, installation and equipping of a state-of-the-art facility to recycle asphalt from roof shingles located in Scott County, Minnesota (the "Project"), in accordance with the terms of such Indenture; WHEREAS, the proceeds of the Bonds will be loaned and disbursed to the Debtor under the terms of an Accounts Agreement (the "Accounts Agreement") dated , 2014, among the Debtor, the Secured Party and , and its successors and assigns, in its capacity as accounts bank and securities intermediary(the"Disbursement Agent"), pursuant to which the Disbursement Agent will disburse the proceeds of the Bonds to the Debtor as provided therein; and WHEREAS, it is a requirement under the Accounts Agreement that the Debtor execute and deliver this Security Agreement. Accordingly,the Debtor and the Secured Party,for the further benefit of the holders of the Bonds, hereby agree as follows: ARTICLE I DEFINITIONS 1.1 Terms Defined in Accounts Agreement. All capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Accounts Agreement. In the event of any conflicts between the provisions of this Security Agreement and the Accounts Agreement,the provisions of the Accounts Agreement shall control. 1.2 Terms Defined in UCC. Terms defined in the UCC which are not otherwise defined in this Security Agreement are used herein as defined in the UCC. 1.3 Definitions of Certain Terms Used Herein. As used in this Security Agreement, in addition to the terms defined in the Preliminary Statement, the following terms shall have the following meanings: "Account Debtor" shall have the meaning set forth in Article 9 of the UCC. "Accounts"shall have the meaning set forth in Article 9 of the UCC. 1 "Article" means a numbered article of this Security Agreement, unless another document is specifically referenced. "Assigned Contracts" means, collectively, all of the Debtor's rights and remedies under, and all moneys and claims for money due or to become due to the Debtor under those contracts set forth on Exhibit J — Assigned Contracts hereto, and any other material contracts, and any and all amendments, supplements, extensions, and renewals thereof including all rights and claims of the Debtor now or hereafter existing: (a) under any insurance, indemnities, warranties, and guarantees provided for or arising out of or in connection with any of the foregoing agreements; (b) for any damages arising out of or for breach or default under or in connection with any of the foregoing contracts; (c) to all other amounts from time to time paid or payable under or in connection with any of the foregoing agreements; or (d) to exercise or enforce any and all covenants, remedies, powers and privileges thereunder. "Chattel Paper"shall have the meaning set forth in Article 9 of the UCC. "Closing Date"means the date of the issuance of the Bonds. "Collateral"shall have the meaning set forth in Article II. "Collateral Access Agreement" means any landlord waiver or other agreement, in form and substance satisfactory to the Secured Party, between the Secured Party and any third party(including any bailee, consignee, customs broker, or other similar Person) in possession of any Collateral or any landlord of Debtor for any real property where any Collateral is located, as such landlord waiver or other agreement may be amended,restated, or otherwise modified from time to time. "Collateral Deposit Account" shall have the meaning set forth in Section 7.1(a). "Commercial Tort Claims" shall have the meaning set forth in Article 9 of the UCC. "Control" shall have the meaning set forth in Article 8 of the UCC or, if applicable, in Section 9- 104, 9-105, 9-106 or 9-107 of Article 9 of the UCC. "Copyrights" means, with respect to any Person, all of such Person's right, title, and interest in and to the following: (a)all copyrights, rights and interests in copyrights,works protectable by copyright, copyright registrations, and copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or future infringements for any of the foregoing; (d)the right to sue for past, present, and future infringements of any of the foregoing; and (e)all rights corresponding to any of the foregoing throughout the world. "Default" means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would,unless cured or waived, become an Event of Default. "Deposit Account Control Agreement"means an agreement, in form and substance satisfactory to the Secured Party, among Debtor, a banking institution holding Debtor's funds, and the Secured Party 2 with respect to collection and control of all deposits and balances held in a deposit account maintained by Debtor with such banking institution. "Deposit Accounts"shall have the meaning set forth in Article 9 of the UCC. "Documents"shall have the meaning set forth in Article 9 of the UCC. "Equipment"shall have the meaning set forth in Article 9 of the UCC. "Event of Default"means an event described in Section 5.1. "Exhibit" refers to a specific exhibit to this Security Agreement, unless another document is specifically referenced. "Fixtures"shall have the meaning set forth in Article 9 of the UCC. "General Intangibles"shall have the meaning set forth in Article 9 of the UCC. "Goods"shall have the meaning set forth in Article 9 of the UCC. "Instruments" shall have the meaning set forth in Article 9 of the UCC. "Inventory"shall have the meaning set forth in Article 9 of the UCC. "Investment Property"shall have the meaning set forth in Article 9 of the UCC. "Letter-of-Credit Rights"shall have the meaning set forth in Article 9 of the UCC. "Licenses" means, with respect to any Person, all of such Person's right, title, and interest in and to (a) any and all licensing agreements or similar arrangements in and to its Patents, Copyrights, or Trademarks, (b) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future breaches thereof, and(c)all rights to sue for past,present,and future breaches thereof. "Obligations"means the Obligations(as defined in and described in the Accounts Agreement) of the Debtor, and the performance by Debtor of all of Debtor's obligations thereunder and hereunder and under the other Transaction Documents and the obligations of the Debtor under any additional assignment delivered in connection with any Assigned Contracts. "Patents" means, with respect to any Person, all of such Person's right, title, and interest in and to: (a) any and all patents and patent applications; (b) all inventions and improvements described and claimed therein; (c) all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (0 all rights corresponding to any of the foregoing throughout the world. "Pledged Collateral" means all Instruments, Securities and other Investment Property of the Debtor,whether or not physically delivered to the Secured Party pursuant to this Security Agreement. "Receivables"means the: (a) Accounts; (b) Chattel Paper; 3 (c) Documents; (d) Investment Property; (e) Instruments; and (f) any other rights or claims to receive money which are General Intangibles or which are otherwise included as Collateral. "Section" means a numbered section of this Security Agreement, unless another document is specifically referenced. "Security"has the meaning set forth in Article 8 of the UCC. "Stock Rights" means all dividends, instruments or other distributions and any other right or property which the Debtor shall receive or shall become entitled to receive for any reason whatsoever with respect to, in substitution for or in exchange for any Equity Interest constituting Collateral, any right to receive an Equity Interest and any right to receive earnings, in which the Debtor now has or hereafter acquires any right, issued by an issuer of such Equity Interest. "Supporting Obligations"shall have the meaning set forth in Article 9 of the UCC. "Trademarks" means, with respect to any Person, all of such Person's right, title, and interest in and to the following: (a) all trademarks (including service marks), trade names, trade dress, and trade styles and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b) all licenses of the foregoing, whether as licensee or licensor; (c) all renewals of the foregoing; (d) all income, royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (e) all rights to sue for past, present, and future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (f)all rights corresponding to any of the foregoing throughout the world. "UCC" means the Uniform Commercial Code, as in effect from time to time, of the State of [Minnesota] or of any other state the laws of which are required as a result thereof to be applied in connection with the attachment, perfection or priority of, or remedies with respect to, Secured Party's Lien on any Collateral. The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms. ARTICLE II GRANT OF SECURITY INTEREST The Debtor hereby pledges, assigns and grants to the Secured Party, for the benefit of the holders of the Bonds, a security interest in all of its right, title and interest in, to and under all personal property and other assets, whether now owned by or owing to, or hereafter acquired by or arising in favor of the Debtor(including under any trade name or derivations thereof), and whether owned or consigned by or to, or leased from or to,the Debtor, and regardless of where located(all of which will be collectively referred to as the"Collateral"), including: (a) all Accounts; 4 (b) all Chattel Paper; (c) all Copyrights,Patents and Trademarks and all License rights of the Debtor therein; (d) all Documents; (e) all Equipment; (f) all Fixtures; (g) all General Intangibles, including without limitation, all Project Contracts; (h) all Goods; (i) all Instruments; (j) all Inventory; (k) all Investment Property; (1) all cash or cash equivalents; (m) all letters of credit,Letter-of-Credit Rights and Supporting Obligations; (n) all Deposit Accounts with any bank or other financial institution; (o) all Commercial Tort Claims; (p) all Assigned Contracts; and (q) all accessions to, substitutions for and replacements, proceeds (including Stock Rights), insurance proceeds and products of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing; to secure the prompt and complete payment and performance of the Obligations. Notwithstanding the foregoing, this Security Agreement shall not constitute a grant of a security interest in any of the following: (i) any property to the extent that a grant of a security interest in such property is prohibited by any applicable Law or requires a consent solely to the extent not obtained of any Governmental Authority;provided that immediately after such consent is obtained or is no longer required, such property shall, automatically and without any further action by any party, be subject to the grant of a security interest under this Security Agreement; (ii) any lease, license, contract, property right or agreement to which the Debtor is a party or any of its rights or interests thereunder if and for so long as the grant of such security interest shall constitute or result in (A) the abandonment, invalidation or unenforceability of any right,title or interest of the Debtor therein or(B)a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property right or agreement (other than to the extent that any such term would be rendered ineffective pursuant to Section 9-406, 9-407, 9- 408 or 9-409 of the UCC (or any successor provision)of any relevant jurisdiction or any other applicable law or principle of equity),provided that the Collateral shall include and such security interest shall attach immediately at such time as the condition causing such abandonment, invalidation or unenforceability shall be remedied and to the extent severable, shall attach immediately to any portion of such lease, 5 license, contract, property rights or agreement that does not result in any of the consequences specified in clause(A)or(B)above; and(iii)equity interests in any foreign subsidiary if such action could reasonably be expected to result in adverse tax consequences currently or in the future to the parent or any subsidiary. ARTICLE III REPRESENTATIONS AND WARRANTIES The Debtor represents and warrants to the Secured Party, for the benefit of the holders of the Bonds,that: 3.1 Title,Perfection and Priority. The Debtor has good and valid rights in or the power to transfer the Collateral and title to the Collateral with respect to which it has purported to grant a security interest hereunder, free and clear of all Liens except for Liens permitted under Section 4.1(e), and has full power and authority to grant to the Secured Party, for the benefit of the holders of the Bonds,the security interest in such Collateral pursuant hereto. When financing statements have been filed in the appropriate offices against the Debtor in the locations listed on Exhibit H, the Secured Party, for the benefit of the holders of the Bonds,will have a fully perfected first priority security interest in that Collateral in which a security interest may be perfected by filing, subject only to Liens permitted under Section 4.1(e). 3.2 Type and Jurisdiction of Organization, Organizational and Identification Numbers. The type of entity of the Debtor, its state of organization, the organizational number issued to it by its State of organization and its Federal employer identification number are set forth on Exhibit A—Debtor's Information and Collateral Locations. 3.3 Principal Location. The Debtor's mailing address and the location of its place of business (if it has only one) or its chief executive office (if it has more than one place of business), is disclosed in Exhibit A—Debtor's Information and Collateral Locations;the Debtor has no other places of business except those set forth in Exhibit A—Debtor's Information and Collateral Locations. 3.4 Collateral Locations. All of Debtor's locations where Collateral is located are listed on Exhibit A—Debtor's Information and Collateral Locations. All of said locations are owned by the Debtor as designated in Part VII(a) of Exhibit A — Debtor's Information and Collateral Locations, except for locations (i) which are leased by the Debtor as lessee and designated in Part VII(b) of Exhibit A — Debtor's Information and Collateral Locations, and (ii) at which Inventory is held in a public warehouse or is otherwise held by a bailee or on consignment as designated in Part VII(c) of Exhibit A—Debtor's Information and Collateral Locations. 3.5 Deposit Accounts. All of the Debtor's Deposit Accounts other than those described in the Accounts Agreement are listed on Exhibit B—Deposit Accounts. 3.6 Exact Names. The Debtor's name in which it has executed this Security Agreement is the exact name as it appears in the Debtor's organizational documents, as amended, as filed with the Debtor's jurisdiction of organization. The Debtor has not, during the past five years, been known by or used any other corporate or fictitious name, or been a party to any merger or consolidation, or been a party to any acquisition. 3.7 Letter-of-Credit Rights and Chattel Paper. Exhibit C—Letter of Credit Rights lists all Letter-of-Credit Rights and Chattel Paper of the Debtor. All action by the Debtor necessary or desirable to protect and perfect the Lien of the Secured Party, for the benefit of the holders of the Bonds, on each item listed on Exhibit C — Letter of Credit Rights (including the delivery of all originals and the placement of a legend on all Chattel Paper as required hereunder) has been duly taken. The Secured Party, for the benefit of the holders of the Bonds, will have a fully perfected first priority security interest 6 in the Collateral listed on Exhibit C — Letter of Credit Rights, subject only to Liens permitted under Section 4.1(e). 3.8 Accounts and Chattel Paper. (a) The names of the obligors, amounts owing, due dates and other information with respect to the Accounts and Chattel Paper are and will be correctly stated in all records of the Debtor relating thereto and in all invoices with respect thereto furnished to the Secured Party by the Debtor from time to time. As of the time when each Account or each item of Chattel Paper arises,the Debtor shall be deemed to have represented and warranted that such Account or Chattel Paper, as the case may be, and all records relating thereto,are genuine and in all respects what they purport to be. (b) With respect to Accounts, (i) all Accounts represent bona fide sales of Inventory or rendering of services to Account Debtors in the ordinary course of the Debtor's business and are not evidenced by a judgment, Instrument or Chattel Paper; (ii) there are no setoffs, claims or disputes existingn or asserted with respect thereto and the Debtor has not made any agreement with any Account Debtor for any extension of time for the payment thereof, any compromise or settlement for less than the full amount thereof, any release of any Account Debtor from liability therefor, or any deduction therefrom except a discount or allowance allowed by Debtor in the ordinary course of its business for prompt payment and disclosed to the Secured Party; (iii) to Debtor's knowledge, there are no facts, events or occurrences which in any way impair the validity or enforceability thereof or could reasonably be expected to reduce the amount payable thereunder as shown on the Debtor's books and records and any invoices and statements with respect thereto; (iv)the Debtor has not received any notice of proceedings or actions which are threatened or pending against any Account Debtor which might result in any adverse change in such Account Debtor's financial condition; and (v) the Debtor has no knowledge that any Account Debtor is unable generally to pay its debts as they become due. (c) In addition, with respect to all Accounts: (i) the amounts shown on all invoices and statements with respect thereto are actually and absolutely owing to the Debtor as indicated thereon and are not in any way contingent; (ii) no payments have been or shall be made thereon except payments immediately delivered to a Collateral Deposit Account as required pursuant to Section 7.1; and(iii)to the Debtor's knowledge, all Account Debtors have the capacity to contract. 3.9 Inventory. With respect to any Inventory carried as such on Debtor's financial statements: (a) such Inventory(other than Inventory in transit) is located at one of the Debtor's locations set forth on Exhibit A — Debtor's Information and Collateral Locations, (b) no Inventory (other than Inventory in transit) is now, or shall at any time or times hereafter be stored at any other location except as permitted by Section 4.1(g), (c) the Debtor has good, indefeasible and merchantable title to such Inventory and such Inventory is not subject to any Lien or security interest or document whatsoever except for the Lien granted to the Secured Party, for the benefit of the holders of the Bonds, and except for Liens permitted under Section 4.1(e), (d) such Inventory is of good and merchantable quality, free from any defects,(e) such Inventory is not subject to any licensing,patent,royalty,trademark,trade name or copyright agreements with any third parties which would require any consent of any third party upon sale or disposition of that Inventory or the payment of any monies to any third party upon such sale or other disposition, (f) such Inventory has been produced in accordance with the Federal Fair Labor Standards Act of 1938, as amended, and all rules, regulations and orders thereunder, and (g) the completion of manufacture, sale or other disposition of such Inventory by the Secured Party following an Event of Default shall not require the consent of any Person and shall not constitute a breach or default under any contract or agreement to which the Debtor is a party or to which such property is subject. 3.10 Intellectual Property. The Debtor has no interest in, rights to, or title to, any Patent, Trademark, Copyright,trade secret, or any other intellectual property other than as set forth in Exhibit D— 7 Intellectual Property Rights. This Security Agreement is effective to create a valid and continuing Lien and, upon filing of appropriate financing statements in the offices listed on Exhibit H—Offices in Which Financing Statements Have Been Filed and, if applicable the filing of this Security Agreement or a record thereof with the United States Copyright Office and/or the United States Patent and Trademark Office, fully perfected first priority security interests in favor of the Secured Party, for the benefit of the holders of the Bonds, on the Debtor's interest in Patents, Trademarks and Copyrights; such perfected security interests are enforceable as such as against any and all creditors of and purchasers from the Debtor; and all action necessary or desirable to protect and perfect the Lien of the Secured Party, for the benefit of the holders of the Bonds, on the Debtor's interest in any Patents, Trademarks, Copyrights, trade secrets, or any other intellectual property shall have been duly taken. 3.11 Filing Requirements. None of the Equipment is covered by any certificate of title, except for the vehicles described in Part I of Exhibit E—Title Documents. None of the existing Collateral is of a type for which security interests or liens may be perfected by filing under any Federal statute except for: (a) the vehicles described in Part II of Exhibit E — Title Documents and (b) the interests in Patents, Trademarks and Copyrights held by the Debtor, as well as Licenses, and described in Exhibit D— Intellectual Property Rights. The legal description, county and street address of each property on which any Fixtures are located is set forth in Exhibit F — Fixtures, together with the name and address of the record owner of each such property. 3.12 No Financing Statements, Security Agreements. No financing statement or security agreement describing all or any portion of the Collateral which has not lapsed or been terminated naming the Debtor as debtor has been filed or is of record in any jurisdiction except: (a)for financing statements or security agreements naming the Secured Party as the secured party, and (b) as permitted by Section 4.1(e). 3.13 Pledged Collateral. (a) Exhibit G — List of Pledged Collateral, Securities and Other Investment Property sets forth a complete and accurate list of all of the Pledged Collateral that is not pledged pursuant to the Accounts Agreement. The Debtor is the direct, sole beneficial owner and sole holder of record of the Pledged Collateral listed on Exhibit G — List of Pledged Collateral, Securities and Other Investment Property as being owned by the Debtor, free and clear of any Liens, except for the security interest granted to the Secured Party, for the benefit of the holders of the Bonds, hereunder. The Debtor further represents and warrants that: (i) all Pledged Collateral constituting an Equity Interest has been (to the extent such concepts are relevant with respect to such Pledged Collateral)duly authorized,validly issued, are fully paid and non-assessable, (ii) with respect to any certificates delivered to the Secured Party representing an Equity Interest, either such certificates are Securities as a result of actions by the issuer or otherwise, or, if such certificates are not Securities, the Debtor has so informed the Secured Party so that the Secured Party may take steps to perfect its security interest therein as a General Intangible, (iii) all Pledged Collateral held by a securities intermediary is covered by a control agreement among the Debtor, the securities intermediary and the Secured Party pursuant to which the Secured Party has Control, and (iv) all Pledged Collateral which represents Indebtedness owed to the Debtor has been duly authorized, authenticated or issued and delivered by the issuer of such Indebtedness, is the legal, valid and binding obligation of such issuer and such issuer is not in default thereunder. (b) In addition: (i)none of the Pledged Collateral has been issued or transferred in violation of the securities registration, securities disclosure or similar laws of any jurisdiction to which such issuance or transfer may be subject, (ii)there are existing no options, warrants, calls or commitments of any character whatsoever relating to the Pledged Collateral or which obligate the issuer of any Equity Interest included in the Pledged Collateral to issue additional Equity Interests, and (iii) no consent, approval, authorization, or other action by, and no giving of notice, or filing with, any Governmental 8 Authority or any other Person is required for the pledge by the Debtor of the Pledged Collateral pursuant to this Security Agreement or for the execution, delivery and performance of this Security Agreement by the Debtor, or for the exercise by the Secured Party of the voting or other rights provided for in this Security Agreement or for the remedies in respect of the Pledged Collateral pursuant to this Security Agreement, except as may be required in connection with such disposition by laws affecting the offering and sale of securities generally. (c) Except as set forth in Exhibit G — List of Pledged Collateral, Securities and Other Investment Property, the Debtor owns 100% of the issued and outstanding Equity Interests which constitute Pledged Collateral and none of the Pledged Collateral which represents Indebtedness owed to the Debtor is subordinated in right of payment to other Indebtedness or subject to the terms of a security agreement. ARTICLE IV COVENANTS From the date of this Security Agreement, and thereafter until this Security Agreement is terminated,the Debtor agrees that: 4.1 General. (a) Collateral Records. The Debtor will maintain complete and accurate books and records with respect to the Collateral, and furnish to the Secured Party, such reports relating to the Collateral as the Secured Party shall from time to time request. (b) Authorization to File Financing Statements; Ratification. The Debtor hereby authorizes the Secured Party to file, and if requested will deliver to the Secured Party, all financing statements and other documents and take such other actions as may from time to time be requested by the Secured Party in order to maintain a first perfected security interest in and, if applicable, Control of, the Collateral, subject only to Liens permitted under Section 4.1(e). Any financing statement filed by the Secured Party may be filed in any filing office in any UCC jurisdiction and may: (i) indicate the Collateral: (1) as all assets of the Debtor or words of similar effect, regardless of whether any particular asset comprising a part of the Collateral falls within the scope of Article 9 of the UCC or such jurisdiction, or (2) by any other description which reasonably approximates the description contained in this Security Agreement, and (ii) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including: (A) whether the Debtor is an organization,the type of organization and any organization identification number issued to the Debtor, and(B) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral or timber to be cut, a sufficient description of real property to which the Collateral relates. The Debtor also agrees to furnish any such information to the Secured Party promptly upon request. The Debtor also ratifies its authorization for the Secured Party to have filed in any UCC jurisdiction any initial financing statements or amendments thereto if filed prior to the date hereof. (c) Further Assurances. The Debtor will, if so requested by the Secured Party, furnish to the Secured Party, as often as the Secured Party requests, statements and schedules further identifying and describing the Collateral and such other reports and information in connection with the Collateral as the Secured Party may reasonably request, all in such detail as the Secured Party may specify. The Debtor also agrees to take any and all actions necessary to defend title to the Collateral against all persons and to defend the security interest of the Secured Party in the Collateral and the priority thereof against any Lien not expressly permitted hereunder. 9 (d) Disposition of Collateral. The Debtor will not sell, lease or otherwise dispose of the Collateral except for dispositions permitted pursuant to the terms of the Accounts Agreement. (e) Liens. The Debtor will not create, incur, or suffer to exist any Lien on the Collateral except: (i) the security interest created by this Security Agreement, and (ii) other Permitted Encumbrances. (f) Other Financing Statements. The Debtor will not authorize the filing of any fmancing statement naming it as debtor covering all or any portion of the Collateral, except as permitted by Section 4.1(e). The Debtor acknowledges that it is not authorized to file any financing statement or amendment or termination statement with respect to any financing statement without the prior written consent of the Secured Party, subject to the Debtor's rights under Section 9-509(d)(2)of the UCC. (g) Locations. The Debtor will not: (i) maintain any Collateral at any location other than those locations listed on Exhibit A — Debtor's Information and Collateral Locations, (ii) otherwise change, or add to, such locations without the Secured Party's prior written consent as required by the Servicng Agreement(and if the Secured Party gives such consent,the Debtor will concurrently therewith obtain a Collateral Access Agreement for each such location), or (iii) change its principal place of business or chief executive office from the location identified on Exhibit A — Debtor's Information and Collateral Locations, other than as permitted by the Accounts Agreement. (h) Compliance with Terms. The Debtor will perform and comply with all obligations in respect of the Collateral and all agreements to which it is a party or by which it is bound relating to the Collateral. 4.2 Receivables. (a) Certain Agreements on Receivables. The Debtor will not make or agree to make any discount, credit, rebate or other reduction in the original amount owing on a Receivable or accept in satisfaction of a Receivable less than the original amount thereof, except that, prior to the occurrence of an Event of Default,the Debtor may reduce the amount of Accounts arising from the sale of Inventory in accordance with its present policies and in the ordinary course of business. (b) Collection of Receivables. Except as otherwise provided in this Security Agreement, the Debtor will collect and enforce, at the Debtor's sole expense, all amounts due or hereafter due to the Debtor under the Receivables. (c) Delivery of Invoices. The Debtor will deliver to the Secured Party immediately upon its request after the occurrence and during the continuation of an Event of Default duplicate invoices with respect to each Account bearing such language of assignment as the Secured Party shall specify. (d) Disclosure of Counterclaims on Receivables. If: (i)any discount, credit or agreement to make a rebate or to otherwise reduce the amount owing on a Receivable exists or(ii) if,to the knowledge of the Debtor, any dispute, setoff, claim, counterclaim or defense exists or has been asserted or threatened with respect to a Receivable, the Debtor will promptly disclose such fact to the Secured Party in writing. The Debtor shall send the Secured Party a copy of each credit memorandum in excess of[Five Thousand Dollars($5,000)] as soon as issued. (e) Electronic Chattel Paper. The Debtor shall take all steps necessary to grant the Secured Party Control of all electronic chattel paper in accordance with the UCC and all "transferable records" as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act. 10 4.3 Inventory and Equipment. (a) Maintenance of Goods. The Debtor will do all things necessary to maintain, preserve, protect and keep the Inventory and the Equipment in good repair and working and saleable condition, except for damaged or defective goods arising in the ordinary course of the Debtor's business and except for ordinary wear and tear in respect of the Equipment. (b) Returned Inventory. If an Account Debtor returns any Inventory to the Debtor when no Event of Default exists, then the Debtor shall promptly determine the reason for such return and shall issue a credit memorandum to the Account Debtor in the appropriate amount. The Debtor shall immediately report to the Secured Party any return involving an amount in excess of [Five Thousand Dollars ($5,000)]. Each such report shall indicate the reasons for the returns and the locations and condition of the returned Inventory. In the event any Account Debtor returns Inventory to the Debtor when an Event of Default exists, the Debtor, upon the request of the Secured Party, shall: (i) hold the returned Inventory in trust for the Secured Party; (ii) segregate all returned Inventory from all of its other property; (iii) dispose of the returned Inventory solely according to the Secured Party's written instructions; and (iv) not issue any credits or allowances with respect thereto without the Secured Party's prior written consent. All returned Inventory shall be subject to the Liens of the Secured Party, for the benefit of the holders of the Bonds,thereon. (c) Equipment. A list of the Equipment that the Debtor expects to acquire in connection with the development, construction and completion of the Project is attached hereto as Exhibit K. The Debtor shall promptly inform the Secured Party of any additions to or deletions from the Equipment. The Debtor shall not permit any Equipment to become a fixture with respect to real property or to become an accession with respect to other personal property with respect to which real or personal property the Secured Party does not have a Lien. The Debtor will not, without the Secured Party's prior written consent, alter or remove any identifying symbol or number on any of the Debtor's Equipment constituting Collateral. (d) Titled Vehicles. The Debtor will give the Secured Party notice of its acquisition of any vehicle with a value in excess of$[50,000] covered by a certificate of title and deliver to the Secured Party, upon request, the original of any such vehicle title certificate and provide and/or file all other documents or instruments necessary to have the Lien of the Secured Party noted on any such certificate or with the appropriate state office. 4.4 Delivery of Instruments, Securities, Chattel Paper and Documents. The Debtor will: (a) deliver to the Secured Party immediately upon execution of this Security Agreement the originals of all Chattel Paper, Securities and Instruments constituting Collateral(if any then exist),(b)hold in trust for the Secured Party upon receipt and immediately thereafter deliver to the Secured Party any Chattel Paper, Securities and Instruments constituting Collateral, (c) upon the Secured Party's request, deliver to the Secured Party (and thereafter hold in trust for the Secured Party upon receipt and immediately deliver to the Secured Party) any Document evidencing or constituting Collateral, and (d) upon the Secured Party's request, deliver to the Secured Party a duly executed amendment to this Security Agreement, in the form of Exhibit I — Amendment hereto (an "Amendment"), pursuant to which the Debtor will pledge such additional Collateral. The Debtor hereby authorizes the Secured Party to attach each Amendment to this Security Agreement and agrees that all additional Collateral set forth in such Amendments shall be considered to be part of the Collateral. 4.5 Uncertificated Pledged Collateral. The Debtor will permit the Secured Party from time to time to cause the appropriate issuers (and, if held with a securities intermediary, such securities intermediary) of uncertificated securities or other types of Pledged Collateral not represented by certificates to mark their books and records with the numbers and face amounts of all such uncertificated 11 securities or other types of Pledged Collateral not represented by certificates and all rollovers and replacements therefor to reflect the Lien of the Secured Party, for the benefit of the holders of the Bonds, granted pursuant to this Security Agreement. The Debtor will take any actions necessary to cause: (a)the issuers of uncertificated securities which are Pledged Collateral, and(b)any securities intermediary which is the holder of any Pledged Collateral, to cause the Secured Party to have and retain Control over such Pledged Collateral. Without limiting the foregoing, the Debtor will, with respect to Pledged Collateral held with a securities intermediary, cause such securities intermediary to enter into a control agreement with the Secured Party, in form and substance satisfactory to the Secured Party, giving the Secured Party Control. 4.6 Pledged Collateral. (a) Changes in Capital Structure of Issuers. The Debtor will not: (i) permit or suffer any issuer of an Equity Interest constituting Pledged Collateral to dissolve, merge, liquidate, retire any of its Equity Interests or other Instruments or Securities evidencing ownership, reduce its capital, sell or encumber all or substantially all of its assets(except for Liens permitted under Section 4.1(e) and sales of assets permitted pursuant to Section 4.1(d)) or merge or consolidate with any other entity, or(ii)vote any Pledged Collateral in favor of any of the foregoing. (b) Issuance of Additional Securities. The Debtor will not permit or suffer the issuer of an Equity Interest constituting Pledged Collateral to issue additional Equity Interests, any right to receive the same or any right to receive earnings, except to the Debtor. (c) Registration of Pledged Collateral. The Debtor will permit any registerable Pledged Collateral to be registered in the name of the Secured Party, for the benefit of the holders of the Bonds, or its nominee at any time at the option of the Secured Party. (d) Exercise of Rights in Pledged Collateral. (i) Without in any way limiting the foregoing and subject to clause (ii) below, the Debtor shall have the right to exercise all voting rights or other rights relating to the Pledged Collateral for all purposes not inconsistent with this Security Agreement, the Indenture or any other Transaction Document;provided, however, that no vote or other right shall be exercised or action taken which would have the effect of impairing the rights of the Secured Party in respect of the Pledged Collateral. (ii) The Debtor will permit the Secured Party or its nominee at any time after the occurrence of an Event of Default, without notice, to exercise all voting rights or other rights relating to Pledged Collateral, including, without limitation, exchange, subscription or any other rights, privileges, or options pertaining to any Equity Interest or Investment Property constituting Pledged Collateral as if it were the absolute owner thereof. (iii) So long as no Event of Default exists, the Debtor shall be entitled to collect and receive for its own use all cash dividends and interest paid in respect of the Pledged Collateral to the extent not in violation of the Indenture or the Accounts Agreement. 4.7 Intellectual Property. (a) The Debtor will use its best efforts to secure all consents and approvals necessary or appropriate for the assignment to or benefit of the Secured Party, for the benefit of the holders of the Bonds, of any License held by the Debtor and to enforce the security interests granted hereunder. 12 (b) The Debtor shall notify the Secured Party immediately if it knows or has reason to know that any application or registration relating to any Patent, Trademark, Copyright,trade secret, or any other intellectual property (now or hereafter existing) may become abandoned, expired or dedicated, or of any adverse determination or development (including the institution of, or any such determination or development in, any proceeding in the United States Patent and Trademark Office, the United States Copyright Office or any court) regarding the Debtor's ownership of any Patent, Trademark, Copyright, trade secret, or any other intellectual property, its right to register the same, or to keep and maintain the same. (c) In no event shall the Debtor, either directly or through any agent, employee, licensee or designee, file an application for the registration of any Patent, Trademark or Copyright with the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency without giving the Secured Party prior written notice thereof, and, upon request of the Secured Party, the Debtor shall execute and deliver any and all security agreements as the Secured Party may request to evidence the first priority security interest of the Secured Party, for the benefit of the holders of the Bonds, on such Patent, Trademark or Copyright, and the General Intangibles of the Debtor relating thereto or represented thereby. (d) The Debtor shall take all actions necessary or requested by the Secured Party to maintain and pursue each application, to obtain the relevant registration and to maintain the registration of each of the Patents, Trademarks and Copyrights (now or hereafter existing), including the filing of applications for renewal, affidavits of use, affidavits of noncontestability and opposition and interference and cancellation proceedings, unless the Secured Party shall determine that such Patent, Trademark or Copyright is not material to the conduct of Debtor's business or operations. (e) The Debtor shall, unless it shall reasonably determine that such Patent, Trademark, Copyright, trade secret, or any other intellectual property is in no way material to the conduct of its business or operations, promptly sue for infringement, misappropriation or dilution and to recover any and all damages for such infringement, misappropriation or dilution, and shall take such other actions as the Secured Party shall deem appropriate under the circumstances to protect such Patent, Trademark, Copyright, trade secret or other intellectual property. In the event that the Debtor institutes suit because any of the Patents, Trademarks, Copyrights, trade secrets, or any other intellectual property constituting Collateral is infringed upon, or misappropriated or diluted by a third party, the Debtor shall comply with Section 4.8. 4.8 Commercial Tort Claims. The Debtor shall promptly, and in any event within five (5) Business Days after the same is acquired by it, notify the Secured Party of any Commercial Tort Claim acquired by it and,unless the Secured Party otherwise consents,the Debtor shall enter into an amendment to this Security Agreement, in the form of Exhibit I—Amendment hereto, granting to Secured Party, for the benefit of the holders of the Bonds, a first priority security interest in such Commercial Tort Claim. 4.9 Letter-of-Credit Rights. If the Debtor is or becomes the beneficiary of a letter of credit, the Debtor shall promptly, and in any event within five (5) Business Days after becoming a beneficiary, notify the Secured Party thereof and, to the extent there shall exist an Event of Default, cause the issuer and/or confirmation bank to: (i) consent to the assignment of any Letter-of-Credit Rights to the Secured Party, and(ii)agree to direct all payments thereunder to a Deposit Account at the Secured Party or subject to a Deposit Account Control Agreement for application to the Obligations, in accordance with the Accounts Agreement,all in form and substance reasonably satisfactory to the Secured Party. 4.10 [Reserved]. 13 4.11 No Interference. The Debtor agrees that it will not interfere with any right, power and remedy of the Secured Party provided for in this Security Agreement or now or hereafter existing at law or in equity or by statute or otherwise, or the exercise or beginning of the exercise by the Secured Party of any one or more of such rights,powers or remedies. 4.12 [Reserved]. 4.13 Collateral Access Agreements. The Debtor shall use commercially reasonable efforts to obtain a Collateral Access Agreement from the lessor of each leased property, mortgagee of owned property or bailee or consignee with respect to any warehouse, processor or converter facility or other location where Collateral is stored or located, which agreement or letter shall provide access rights, contain a waiver or subordination of all Liens or claims that the landlord, mortgagee, bailee or consignee may assert against the Collateral at that location, and shall otherwise be reasonably satisfactory in form and substance to the Secured Party. 4.14 Deposit Account Control Agreements. In addition to the Accounts Agreement, the Debtor will provide to the Secured Party upon the Secured Party's request, a Deposit Account Control Agreement duly executed on behalf of each financial institution holding a deposit account of the Debtor as set forth in this Security Agreement; provided that, the Secured Party may, in its discretion, defer delivery of any such Deposit Account Control Agreement, and require the Debtor to open and maintain a new deposit account with a financial institution subject to a Deposit Account Control Agreement. 4.15 Change of Name or Location; Change of Fiscal Year. The Debtor shall not: (a) change its name as it appears in official filings in the state of its incorporation or organization, (b)change its chief executive office, principal place of business, mailing address, corporate offices or warehouses or locations at which Collateral is held or stored, or the location of its records concerning the Collateral as set forth in the Security Agreement, (c) change the type of entity that it is, (d) change its organization identification number, if any, issued by its state of incorporation or other organization, or (e) change its state of incorporation or organization, in each case, unless the Secured Party shall have received at least thirty (30) days prior written notice of such change and the Secured Party shall have acknowledged in writing that either: (1) such change will not adversely affect the validity, perfection or priority of the Secured Party's security interest in the Collateral, or (2) any reasonable action requested by the Secured Party in connection therewith has been completed or taken (including any action to continue the perfection of any Liens in favor of the Secured Party in any Collateral);provided that any new location shall be in the continental U.S. The Debtor shall not change its fiscal year which currently ends on December 31,without the prior consent of the Secured Party. 4.16 Assigned Contracts. The Debtor will use its best efforts to secure all consents and approvals necessary or appropriate for the assignment to or for the benefit of the Secured Party of any Assigned Contract held by the Debtor and to enforce the security interests granted hereunder. The Debtor shall fully perform all of its obligations under each of the Assigned Contracts, and shall enforce all of its rights and remedies thereunder, in each case, as it deems appropriate in its business judgment;provided, however, that the Debtor shall not take any action or fail to take any action with respect to the Assigned Contracts which would cause the termination of an Assigned Contract. Without limiting the generality of the foregoing, the Debtor shall take all action necessary or appropriate to permit, and shall not take any action which would have any material adverse effect upon, the full enforcement of all indemnification rights under the Assigned Contracts. The Debtor shall notify the Secured Party in writing, promptly after the Debtor becomes aware thereof, of any event or fact which could give rise to a material claim by it for indemnification under any of the Assigned Contracts, and shall diligently pursue such right and report to the Secured Party on all further developments with respect thereto. If the Debtor shall fail after the Secured Party's demand to pursue diligently any right under the Assigned Contracts, or if an Event of Default then exists,the Secured Party may directly enforce such right in its own or the Debtor's name and may enter into such settlements or other agreements with respect thereto as the Secured Party shall 14 determine. In any suit, proceeding or action brought by the Secured Party under any Assigned Contract for any sum owing thereunder or to enforce any provision thereof, the Debtor shall indemnify and hold the Secured Party harmless from and against all expense, loss or damage suffered by reason of any defense, setoff, counterclaims, recoupment, or reduction of liability whatsoever of the obligor thereunder arising out of a breach by the Debtor of any obligation thereunder or arising out of any other agreement, indebtedness or liability at any time owing from the Debtor to or in favor of such obligor or its successors. All such obligations of the Debtor shall be and remain enforceable only against the Debtor and shall not be enforceable against the Secured Party. Notwithstanding any provision hereof to the contrary,the Debtor shall at all times remain liable to observe and perform all of its duties and obligations under the Assigned Contracts, and the Secured Party's exercise of any of their respective rights with respect to the Collateral shall not release the Debtor from any of such duties and obligations. The Secured Party shall not be obligated to perform or fulfill any of the Debtor's duties or obligations under the Assigned Contracts or to make any payment thereunder, or to make any inquiry as to the nature or sufficiency of any payment or property received by it thereunder or the sufficiency of performance by any party thereunder, or to present or file any claim, or to take any action to collect or enforce any performance, any payment of any amounts, or any delivery of any property. The Debtor agrees to additionally execute and deliver any additional assignments deemed necessary by the Secured Party to additionally confirm the assignment to the Secured Party of any Assigned Contracts. ARTICLE V EVENTS OF DEFAULT AND REMEDIES 5.1 Events of Default. The occurrence of any Event of Default under the Accounts Agreement shall constitute an Event of Default hereunder. 5.2 Remedies. (a) Upon the occurrence of an Event of Default,the Secured Party may exercise any or all of the following rights and remedies: (i) those rights and remedies provided in this Security Agreement, the Indenture or the Accounts Agreement or any other Bond Document or Transaction Document;provided that, this Section 5.2(a) shall not be understood to limit any rights or remedies available to the Secured Party prior to an Event of Default otherwise stated herein; (ii) those rights and remedies available to a secured party under the UCC(whether or not the UCC applies to the affected Collateral) or under any other applicable law (including, without limitation, any law governing the exercise of a bank's right of setoff or bankers' lien) when a debtor is in default under a security agreement; (iii) give notice of sole control or any other instruction under any Deposit Account Control Agreement or and other control agreement with any securities intermediary and take any action therein with respect to such Collateral; (iv) without notice(except as specifically provided in Section 8.1 or elsewhere herein or required by Law), demand or advertisement of any kind to Debtor or any other Person, enter the premises of the Debtor where any Collateral is located(through self-help and without judicial process) to collect, receive, assemble, process, appropriate, sell, lease, assign, grant an option or options to purchase or otherwise dispose of, deliver, or realize upon, the Collateral or any part thereof in one or more parcels at public or private sale or sales (which sales may be adjourned or continued from time to time with or without notice and may take place at the Debtor's premises 15 or elsewhere), for cash, on credit or for future delivery without assumption of any credit risk, and upon such other terms as the Secured Party may deem commercially reasonable; and (v) concurrently with written notice to the Debtor,transfer and register in its name or in the name of its nominee the whole or any part of the Pledged Collateral, to exchange certificates or instruments representing or evidencing Pledged Collateral for certificates or instruments of smaller or larger denominations, to exercise the voting and all other rights as a holder with respect thereto, to collect and receive all cash dividends, interest, principal and other distributions made thereon and to otherwise act with respect to the Pledged Collateral as though the Secured Party, for the benefit of the holders of the Bonds,was the outright owner thereof (b) The Secured Party shall comply with any applicable state or Federal law requirements in connection with a disposition of the Collateral and compliance will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. (c) The Secured Party shall have the right upon any such public sale or sales and, to the extent permitted by Law, upon any such private sale or sales, to purchase for the benefit of the Secured Party,the whole or any part of the Collateral so sold, free of any right of equity redemption, which equity redemption the Debtor hereby expressly releases. (d) Until the Secured Party is able to effect a sale, lease, or other disposition of Collateral, the Secured Party shall have the right to hold or use Collateral, or any part thereof, to the extent that it deems appropriate for the purpose of preserving Collateral or its value or for any other purpose deemed appropriated by the Secured Party, including without limitation,the payment of any royalty, maintenance or other fee related to a license or sublicense of intellectual property. The Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of Collateral and to enforce any of the Secured Party's remedies, with respect to such appointment without prior notice or hearing as to such appointment. (e) Notwithstanding the foregoing, the Secured Party shall not be required to: (i) make any demand upon, or pursue or exhaust any of their rights or remedies against, the Debtor, any other obligor, guarantor, pledgor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any of their rights or remedies with respect to any Collateral therefor or any direct or indirect guarantee thereof, (ii) marshal the Collateral or any guarantee of the Obligations or to resort to the Collateral or any such guarantee in any particular order, or(iii)effect a public sale of any Collateral. (f) The Debtor recognizes that the Secured Party may be unable to effect a public sale of any or all the Pledged Collateral and may be compelled to resort to one or more private sales thereof in accordance with clause (a) above. The Debtor also acknowledges that any private sale may result in prices and other terms less favorable to the seller than if such sale were a public sale and,notwithstanding such circumstances, agrees that any such private sale shall not be deemed to have been made in a commercially unreasonable manner solely by virtue of such sale being private. The Secured Party shall be under no obligation to delay a sale of any of the Pledged Collateral for the period of time necessary to permit the Debtor or the issuer of the Pledged Collateral to register such securities for public sale under the Securities Act of 1933, as amended, or under applicable state securities laws, even if the Debtor and such issuer would agree to do so. 5.3 Debtor's Obligations Upon Event of Default. Upon the request of the Secured Party after the occurrence of an Event of Default,the Debtor will: 16 (a) assemble and make available to the Secured Party the Collateral and all books and records relating thereto at any place or places specified by the Secured Party, whether at the Debtor's premises or elsewhere; (b) permit the Secured Party, by the Secured Party's representatives and agents, to enter, occupy and use any premises where all or any part of the Collateral, or the books and records relating thereto, or both, are located,to take possession of all or any part of the Collateral or the books and records relating thereto, or both, to remove all or any part of the Collateral or the books and records relating thereto, or both, and to conduct sales of the Collateral, without any obligation to pay the Debtor for such use and occupancy; (c) prepare and file, or cause an issuer of Pledged Collateral to prepare and file, with the Securities and Exchange Commission or any other applicable government agency, registration statements, a prospectus and such other documentation in connection with the Pledged Collateral as the Secured Party may request, all in form and substance satisfactory to the Secured Party, and furnish to the Secured Party, or cause an issuer of Pledged Collateral to furnish to the Secured Party, any information regarding the Pledged Collateral in such detail as the Secured Party may specify; and (d) take, or cause an issuer of Pledged Collateral to take, any and all actions necessary to register or qualify the Pledged Collateral to enable the Secured Party to consummate a public sale or other disposition of the Pledged Collateral. 5.4 Grant of Intellectual Property License. For the purpose of enabling the Secured Party, for the benefit of the holders of the Bonds, to exercise the rights and remedies under this Article V at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies,the Debtor hereby: (a)grants to the Secured Party an irrevocable,nonexclusive license(exercisable without payment of royalty or other compensation to the Debtor) to use, license or sublicense any intellectual property rights now owned or hereafter acquired by the Debtor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, and (b) irrevocably agrees that the Secured Party may sell any of the Debtor's Inventory directly to any Person, including without limitation Persons who have previously purchased the Debtor's Inventory from the Debtor and in connection with any such sale or other enforcement of the Secured Party's rights under this Security Agreement, may sell Inventory which bears any Trademark owned by or licensed to the Debtor and any Inventory that is covered by any Copyright owned by or licensed to the Debtor and the Secured Party may finish any work in process and affix any Trademark owned by or licensed to the Debtor and sell such Inventory as provided herein. ARTICLE VI ACCOUNT VERIFICATION,ATTORNEY IN FACT,PROXY 6.1 Account Verification. The Secured Party, for the benefit of the holders of the Bonds, may, at any time, in the Secured Party's own name, in the name of a nominee of the Secured Party, or in the name of the Debtor, communicate (by mail, telephone, facsimile or otherwise) with the Account Debtors of the Debtor, parties to contracts with the Debtor and obligors in respect of Instruments of the Debtor to verify with such Persons, to the Secured Party's satisfaction, the existence, amount, terms of, and any other matter relating to, Accounts, Instruments, Chattel Paper, payment intangibles and/or other Receivables. 6.2 Authorization for Secured Party to Take Certain Action. 17 (a) The Debtor irrevocably authorizes the Secured Party at any time and from time to time in the sole discretion of the Secured Party and appoints the Secured Party as its attorney in fact: (i) to execute on behalf of the Debtor as debtor and to file financing statements necessary or desirable in the Secured Party's sole discretion to perfect and to maintain the perfection and priority of the Secured Party's security interest in the Collateral, (ii) to endorse and collect any cash proceeds of the Collateral, (iii) to file a carbon, photographic or other reproduction of this Security Agreement or any financing statement with respect to the Collateral as a financing statement and to file any other financing statement or amendment of a financing statement in such offices as the Secured Party in its sole discretion deems necessary or desirable to perfect and to maintain the perfection and priority of the Secured Party's security interest in the Collateral, (iv)to contact and enter into one or more agreements with the issuers of uncertificated securities which are Pledged Collateral or with securities intermediaries holding Pledged Collateral as may be necessary or advisable to give the Secured Party Control over such Pledged Collateral, (v)to apply the proceeds of any Collateral received by the Secured Party to the Obligations as provided in Section 7.3 hereof, (vi) during the continuance of an Event of Default,to discharge past due taxes, assessments, charges, fees or Liens on the Collateral (except for such Liens as are specifically permitted hereunder), (vii)during the continuance of an Event of Default,to contact Account Debtors for any reason, (viii) during the continuance of an Event of Default, to demand payment or enforce payment of the Receivables in the name of the Secured Party or the Debtor and to endorse any and all checks, drafts, and other instruments for the payment of money relating to the Receivables, (ix) during the continuance of an Event of Default, to sign the Debtor's name on any invoice or bill of lading relating to the Receivables, drafts against any Account Debtor of the Debtor, assignments and verifications of Receivables, (x) during the continuance of an Event of Default, to exercise all of the Debtor's rights and remedies with respect to the collection of the Receivables and any other Collateral, (xi) during the continuance of an Event of Default, to settle, adjust, compromise, extend or renew the Receivables, (xii) during the continuance of an Event of Default, to settle, adjust or compromise any legal proceedings brought to collect Receivables, (xiii) during the continuance of an Event of Default, to prepare, file and sign the Debtor's name on a proof of claim in bankruptcy or similar document against any Account Debtor of the Debtor, (xiv) during the continuance of an Event of Default, to prepare, file and sign the Debtor's name on any notice of Lien, assignment or satisfaction of Lien or similar document in connection with the Receivables, (xv) during the continuance of an Event of Default, to change the address for delivery of mail addressed to the Debtor to such address as the Secured Party may designate and to receive, open and dispose of all mail addressed to the Debtor, and (xvi) to do all other acts and things necessary to carry out this Security Agreement; and the Debtor agrees to reimburse the Secured Party on demand for any payment made or any expense incurred by the Secured Party in connection with any of the foregoing;provided that this authorization shall not relieve the Debtor of any of its obligations under this Security Agreement, the Indenture, the Accounts Agreement or any other Transaction Document. (b) All acts of said attorney or designee are hereby ratified and approved. The powers conferred on the Secured Party, under this Section 6.2 are solely to protect the Secured Party's interests in the Collateral and shall not impose any duty upon the Secured Party to exercise any such powers. The Secured Party agrees that, except for the powers granted in Section 6.2(a)(i)-(v)and Section 6.2(a)(xvi), it shall not exercise any power or authority granted to it unless an Event of Default has occurred and is continuing and notice of such Event of Default shall have been given to the Debtor. 6.3 Proxy. THE DEBTOR HEREBY IRREVOCABLY CONSTITUTES AND APPOINTS THE SECURED PARTY AS THE PROXY AND ATTORNEY-IN-FACT (AS SET FORTH IN SECTION 6.2 ABOVE) OF THE DEBTOR WITH RESPECT TO THE PLEDGED COLLATERAL, INCLUDING THE RIGHT TO VOTE SUCH PLEDGED COLLATERAL, WITH FULL POWER OF SUBSTITUTION TO DO SO. IN ADDITION TO THE RIGHT TO VOTE ANY SUCH PLEDGED COLLATERAL, THE APPOINTMENT OF THE SECURED PARTY AS PROXY AND ATTORNEY- IN-FACT SHALL INCLUDE THE RIGHT TO EXERCISE ALL OTHER RIGHTS, POWERS, 18 PRIVILEGES AND REMEDIES TO WHICH A HOLDER OF SUCH PLEDGED COLLATERAL WOULD BE ENTITLED (INCLUDING GIVING OR WITHHOLDING WRITTEN CONSENTS OF SHAREHOLDERS, CALLING SPECIAL MEETINGS OF SHAREHOLDERS AND VOTING AT SUCH MEETINGS). SUCH PROXY SHALL BE EFFECTIVE, AUTOMATICALLY AND WITHOUT THE NECESSITY OF ANY ACTION (INCLUDING ANY TRANSFER OF ANY SUCH PLEDGED COLLATERAL ON THE RECORD BOOKS OF THE ISSUER THEREOF) BY ANY PERSON (INCLUDING THE ISSUER OF SUCH PLEDGED COLLATERAL OR ANY OFFICER OR AGENT THEREOF),UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. 6.4 Nature of Appointment; Limitation of Duty. THE APPOINTMENT OF THE SECURED PARTY AS PROXY AND ATTORNEY-IN-FACT IN THIS ARTICLE VI IS COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE UNTIL THE DATE ON WHICH THIS SECURITY AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 8.14. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, NEITHER THE SECURED PARTY NOR ANY OF ITS RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES SHALL HAVE ANY DUTY TO EXERCISE ANY RIGHT OR POWER GRANTED HEREUNDER OR OTHERWISE OR TO PRESERVE THE SAME AND SHALL NOT BE LIABLE FOR ANY FAILURE TO DO SO OR FOR ANY DELAY IN DOING SO, EXCEPT IN RESPECT OF DAMAGES ATTRIBUTABLE SOLELY TO THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AS FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION; PROVIDED THAT IN NO EVENT SHALL THEY BE LIABLE FOR ANY PUNITIVE,EXEMPLARY,INDIRECT OR CONSEQUENTIAL DAMAGES. ARTICLE VII COLLECTION AND APPLICATION OF COLLATERAL PROCEEDS,DEPOSIT ACCOUNTS 7.1 Collection of Receivables. (a) On or before the Closing Date,the Debtor shall execute and deliver to the Secured Party the Acccounts Agreement and any additional Deposit Account Control Agreements for each Deposit Account maintained by the Debtor into which all cash, checks or other similar payments relating to or constituting payments made in respect of Receivables will be deposited(a"Collateral Deposit Account"), which Collateral Deposit Accounts(other than those subject to the Accounts Agreement) are identified as such on Exhibit B—Deposit Accounts. After the Closing Date,the Debtor will comply with the terms of Section 7.2. (b) If notwithstanding the foregoing instructions, the Debtor receives any proceeds of any Receivables, the Debtor shall receive such payments as the Secured Party's trustee, and shall promptly, and in any event withing two (2) Business Days of receipt of same, deposit all cash, checks or other similar payments related to or constituting payments made in respect of Receivables received by it to the Revenue Account under the Accounts Agreement. 7.2 Covenant Regarding New Deposit Accounts. Before opening or replacing any Collateral Deposit Account, or other Deposit Account, the Debtor shall: (a) obtain the Secured Party's consent in writing to the opening of such Deposit Account, and (b) cause each bank or financial institution in which it seeks to: (i) open a Deposit Account, and (ii) to enter into a Deposit Account Control Agreement with the Secured Party in order to give the Secured Party Control of such Deposit Account. 7.3 Application of Proceeds of Collateral. Prior to the occurrence of an Event of Default and acceleration of the indebtedness evidenced by the Bonds, any proceeds of Collateral shall be 19 deposited into the Revenue Account of the Accounts Agreement and applied as set forth therein. Following the occurrence of an Event of Default and acceleration of the indebtedness evidenced by the Bonds, any proceeds of Collateral shall be applied as set forth in Section 4.01 of the Intercreditor Agreement and, if and when executed and delivered,the Lien Subordination Agreement. The Debtor shall pay to the Secured Party on demand any and all reasonable out-of-pocket expenses, including reasonable attorneys' fees, incurred or paid by the Secured Party in protecting the Collateral or the existence, perfection or priority of the Secured Party's security interest therein. ARTICLE VIII GENERAL PROVISIONS 8.1 Waivers. To the extent such notice may not be waived under applicable Law, any notice made shall be deemed reasonable if sent to the Debtor, addressed as set forth in Article IX, at least ten (10) days prior to: (i) the date of any public sale, or (ii) the time after which any private sale or other disposition may be made. To the maximum extent permitted by applicable Law, the Debtor waives all claims, damages, and demands against the Secured Party arising out of the repossession, retention or sale of the Collateral, except such as arise solely out of the gross negligence or willful misconduct of the Secured Party as finally determined by a court of competent jurisdiction. To the extent it may lawfully do so, the Debtor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Secured Party, any valuation, stay, appraisal, extension, moratorium, redemption or similar laws and any and all rights or defenses it may have as a surety now or hereafter existing which, but for this provision, might be applicable to the sale of any Collateral made under the judgment, order or decree of any court, or privately under the power of sale conferred by this Security Agreement, or otherwise. Except as otherwise specifically provided herein, the Debtor hereby waives presentment, demand, protest or any notice (to the maximum extent permitted by applicable Law) of any kind in connection with this Security Agreement or any Collateral. 8.2 Limitation on the Secured Party's Duty with Respect to the Collateral. The Secured Party shall have no obligation to clean-up or otherwise prepare the Collateral for sale. The Secured Party shall use reasonable care with respect to the Collateral in its possession or under its control. The Secured Party shall not have any other duty as to any Collateral in its possession or control or in the possession or control of any agent or nominee of the Secured Party, or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto. To the extent that applicable Law imposes duties on the Secured Party to exercise remedies in a commercially reasonable manner, the Debtor acknowledges and agrees that it is commercially reasonable for the Secured Party: (i) to fail to incur expenses deemed significant by the Secured Party to prepare Collateral for disposition or otherwise to transform raw material or work in process into finished goods or other finished products for disposition, (ii)to fail to obtain third party consents for access to Collateral to be disposed of, or to obtain or, if not required by other Law,to fail to obtain governmental or third party consents for the collection or disposition of Collateral to be collected or disposed of, (iii)to fail to exercise collection remedies against Account Debtors or other Persons obligated on Collateral or to remove Liens on or any adverse claims against Collateral, (iv) to exercise collection remedies against Account Debtors and other Persons obligated on Collateral directly or through the use of collection agencies and other collection specialists, (v)to advertise dispositions of Collateral through publications or media of general circulation, whether or not the Collateral is of a specialized nature, (vi) to contact other Persons, whether or not in the same business as the Debtor, for expressions of interest in acquiring all or any portion of such Collateral, (vii) to hire one or more professional auctioneers to assist in the disposition of Collateral, whether or not the Collateral is of a specialized nature, (viii) to dispose of Collateral by utilizing internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets, (ix)to dispose of assets in wholesale rather than retail markets, (x) to disclaim disposition warranties, such as title, possession or quiet enjoyment, (xi) to 20 purchase insurance or credit enhancements to insure the Secured Party against risks of loss, collection or disposition of Collateral or to provide to the Secured Party a guaranteed return from the collection or disposition of Collateral, or (xii) to the extent deemed appropriate by the Secured Party, to obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any of the Collateral. The Debtor acknowledges that the purpose of this Section 8.2 is to provide non-exhaustive indications of what actions or omissions by the Secured Party would be commercially reasonable in the Secured Party's exercise of remedies against the Collateral and that other actions or omissions by the Secured Party shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 8.2. Without limitation upon the foregoing, nothing contained in this Section 8.2 shall be construed to grant any rights to the Debtor or to impose any duties on the Secured Party that would not have been granted or imposed by this Security Agreement or by applicable law in the absence of this Section 8.2. 8.3 Compromises and Collection of Collateral. The Debtor and the Secured Party recognize that setoffs, counterclaims, defenses and other claims may be asserted by obligors with respect to certain of the Receivables, that certain of the Receivables may be or become uncollectible in whole or in part and that the expense and probability of success in litigating a disputed Receivable may exceed the amount that reasonably may be expected to be recovered with respect to a Receivable. In view of the foregoing,the Debtor agrees that the Secured Party may at any time and from time to time, if an Event of Default has occurred and is continuing, compromise with the obligor on any Receivable, accept in full payment of any Receivable such amount as the Secured Party in its sole discretion shall determine or abandon any Receivable, and any such action by the Secured Party shall be commercially reasonable so long as the Secured Party acts in good faith based on information known to it at the time it takes any such action. 8.4 Secured Party Performance of Debtor Obligations. Without having any obligation to do so, the Secured Party may perform or pay any obligation which the Debtor has agreed to perform or pay in this Security Agreement and the Debtor shall reimburse the Secured Party for any amounts paid by the Secured Party pursuant to this Section 8.4. The Debtor's obligation to reimburse the Secured Party pursuant to the preceding sentence shall be an Obligation payable on demand. 8.5 Specific Performance of Certain Covenants. The Debtor acknowledges and agrees that a breach of any of the covenants contained in Sections 4.1(d),4.1(e),4.4,4.5,4.6,4.7,4.8,4.9,4.10,4.12, 4.13, 4.14, 4.15, 4.16, 5.3, or 8.6 or in Article VII will cause irreparable injury to the Secured Party, for the benefit of the holders of the Bonds,that the Secured Party has no adequate remedy at law in respect of such breaches and therefore agrees, without limiting the right of the Secured Party to seek and obtain specific performance of other obligations of the Debtor contained in this Security Agreement, that the covenants of the Debtor contained in the Sections referred to in this Section 8.5 shall be specifically enforceable against the Debtor. 8.6 Dispositions Not Authorized. The Debtor is not authorized to sell or otherwise dispose of the Collateral except as set forth in Section 4.1(d) and notwithstanding any course of dealing between the Debtor and the Secured Party or other conduct of the Secured Party, no authorization to sell or otherwise dispose of the Collateral (except as set forth in Section 4.1(d)) shall be binding upon the Secured Party unless such authorization is in writing signed by the Secured Party. 8.7 No Waiver; Amendments; Cumulative Remedies. No delay or omission of the Secured Party to exercise any right or remedy granted under this Security Agreement shall impair such right or remedy or be construed to be a waiver of any Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy. No waiver, amendment or other variation of the terms, conditions or provisions of this Security Agreement whatsoever shall be valid unless in writing signed by the Secured Party and then only to the extent in such writing specifically set forth. All rights and 21 remedies contained in this Security Agreement or by law afforded shall be cumulative and all shall be available to the Secured Party until the Obligations have been paid in full. 8.8 Limitation by Law; Severability of Provisions. All rights, remedies and powers provided in this Security Agreement may be exercised only to the extent that the exercise thereof does not violate any applicable provision of Law, and all the provisions of this Security Agreement are intended to be subject to all applicable mandatory provisions of Law that may be controlling and to be limited to the extent necessary so that they shall not render this Security Agreement invalid, unenforceable or not entitled to be recorded or registered, in whole or in part. Any provision in any this Security Agreement that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Security Agreement are declared to be severable. 8.9 Reinstatement. This Security Agreement shall remain in full force and effect and continue to be effective should any petition be filed by or against the Debtor for liquidation or reorganization, should the Debtor become insolvent or make an assignment for the benefit of any creditor or creditors or should a receiver or trustee be appointed for all or any significant part of the Debtor's assets, and shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Obligations, or any part thereof, are,pursuant to applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee of the Obligations, whether as a "voidable preference,""fraudulent conveyance,"or otherwise,all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Obligations shall be reinstated and deemed reduced only by such amount paid and not so rescinded,reduced,restored or returned. 8.10 Benefit of Agreement. The terms and provisions of this Security Agreement shall be binding upon and inure to the benefit of the Debtor,the Secured Party, for the benefit of the holders of the Bonds, and their respective successors and assigns (including all persons who become bound as a debtor to this Security Agreement), except that the Debtor shall not have the right to assign its rights or delegate its obligations under this Security Agreement or any interest herein, without the prior written consent of the Secured Party. No sales of participations, assignments, transfers, or other dispositions of any agreement governing the Obligations or any portion thereof or interest therein shall in any manner impair the Lien granted to the Secured Party, for the benefit of the holders of the Bonds,hereunder. 8.11 Survival of Representations. All representations and warranties of the Debtor contained in this Security Agreement shall survive the execution and delivery of this Security Agreement. 8.12 Taxes and Expenses. Any taxes (including income taxes) payable or ruled payable by Federal or State authority in respect of this Security Agreement shall be paid by the Debtor,together with interest and penalties, if any. The Debtor shall reimburse the Secured Party for any and all out-of-pocket expenses and internal charges (including reasonable attorneys', auditors' and accountants' fees and reasonable time charges of attorneys, paralegals, auditors and accountants who may be employees of the Secured Party) paid or incurred by the Secured Party in connection with the preparation, execution, delivery, administration,collection and enforcement of this Security Agreement and in the audit, analysis, administration, collection, preservation or sale of the Collateral (including the expenses and charges associated with any periodic or special audit of the Collateral). Any and all costs and expenses incurred by the Debtor in the performance of actions required pursuant to the terms hereof shall be borne solely by the Debtor. 8.13 Headings. The title of and section headings in this Security Agreement are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Security Agreement. 22 8.14 Termination. This Security Agreement shall continue in effect(notwithstanding the fact that from time to time there may be no Obligations outstanding)until: (i)the Indenture and the Accounts Agreement have terminated pursuant to their express terms, and (ii) all of the Obligations have been indefeasibly paid and performed in full and no commitments which would give rise to any Obligations are outstanding. 8.15 Entire Agreement. This Security Agreement embodies the entire agreement and understanding between the Debtor and the Secured Party, for the benefit of the holders of the Bonds, relating to the Collateral and supersedes all prior agreements and understandings between the Debtor and the Secured Party, for the benefit of the holders of the Bonds,relating to the Collateral. 8.16 CHOICE OF LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF [MINNESOTA]. 8.17 CONSENT TO JURISDICTION. THE DEBTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR STATE COURT SITTING WHICH INCLUDES [SHAKOPEE, MINNESOTA] IN ITS JURISDICTION IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT AND THE DEBTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE SECURED PARTY TO BRING PROCEEDINGS AGAINST THE DEBTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE DEBTOR AGAINST THE SECURED PARTY OR ANY AFFILIATE OF THE SECURED PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS SECURITY AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN [MINNESOTA]. 8.18 WAIVER OF JURY TRIAL. THE DEBTOR AND THE SECURED PARTY HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS SECURITY AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER. 8.19 Indemnity. The Debtor hereby agrees to indemnify the Secured Party, and its successors, assigns, agents and employees, from and against any and all liabilities, damages, penalties, suits, costs, and expenses of any kind and nature (including, without limitation, all expenses of litigation or preparation therefor whether or not the Secured Party is a party thereto) imposed on, incurred by or asserted against the Secured Party, or its successors, assigns, agents and employees, in any way relating to or arising out of this Security Agreement, or the manufacture, purchase, acceptance, rejection, ownership, delivery, lease, possession, use, operation, condition, sale, return or other disposition of any Collateral (including, without limitation, latent and other defects, whether or not discoverable by the Secured Party or the Debtor, and any claim for infringement or misappropriation of any Patent, Trademark, Copyright, trade secret, or any other intellectual property). 23 8.20 Counterparts. This Security Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Security Agreement by signing any such counterpart. ARTICLE IX NOTICES 9.1 Sending Notices. Any notice required or permitted to be given under this Security Agreement shall be sent by United States mail, telecopier, personal delivery or nationally established overnight courier service, and shall be deemed received: (a)when received, if sent by hand or overnight courier service, or mailed by certified or registered mail notices, or (b) when sent, if sent by telecopier (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient), in each case addressed to the Debtor at the address set forth on Exhibit A — Debtor's Information and Collateral Locations as its principal place of business, and to the Secured Party at the address set forth in accordance with Section 9.01 of the Accounts Agreement. 9.2 Change in Address for Notices. Each of the Debtor and the Secured Party may change the address for service of notice upon it by a notice in writing to the other parties. 9.3 Lien Absolute. All rights of the Secured Party hereunder, and all obligations of Debtor hereunder, shall be absolute and unconditional irrespective of: (a) any lack of validity or enforceability of the Indenture, the Accounts Agreement, the Accounts Agreement, any other Transaction Document or any other agreement or instrument governing or evidencing any Obligations; (b) any change in the time, manner or place of payment of, or in any other term of, all or any part of the Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture, the Accounts Agreement, the Accounts Agreement, any other Transaction Document or any other agreement or instrument governing or evidencing any Obligations; (c) any exchange, release or non-perfection of any other Collateral, or any release or amendment or waiver of or consent to departure from any guaranty, for all or any of the Obligations; (d) the insolvency of any Person; or (e) any other circumstance which might otherwise constitute a defense available to, or a discharge of,the Debtor. 9.4 Release. The Debtor consents and agrees that the Secured Party may at any time, or from time to time, in its discretion: (a) exchange, release and/or surrender all or any of the Collateral (including the Pledged Collateral), or any part thereof, by whomsoever deposited, which is now or may hereafter be held by the Secured Party in connection with all or any of the Obligations; all in such manner and upon such terms as the Secured Party may deem proper, and without notice to or further assent from the Debtor, it being hereby agreed that the Debtor shall be and remain bound upon this Security Agreement, irrespective of the value or condition of any of the Collateral, and notwithstanding any such change, exchange, settlement, compromise, surrender, release, renewal or extension, and notwithstanding also that the Obligations may, at any time, exceed the aggregate principal amount thereof set forth in the Indenture,the Accounts Agreement,the Accounts Agreement or any other agreement governing any Obligations. 24 IN WITNESS WHEREOF,the Debtor has caused to be duly executed this Security Agreement as of the date first above written and the Secured Party has accepted such Security Agreement. [Signature page follows] KD_6675525_1.DOC 25 SIGNATURE PAGE OF DEBTOR TO SECURITY AGREEMENT DEBTOR: RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC,as Debtor By: Its: STATE OF ) ) SS: COUNTY OF ) Before me, a Notary Public in and for County, State of personally appeared , the of Recovery Technology Solutions Shakopee, LLC, a Delaware limited liability company, who acknowledged the execution of the foregoing Security Agreement as the voluntary and authorized act and deed of such limited liability company, and who,having been duly sworn, stated that any representations contained therein are true. Witness my hand and Notarial Seal this day of ,2014. [SEAL] ,Notary Public My Commission Expires: 26 EXHIBIT A DEBTOR'S INFORMATION AND COLLATERAL LOCATIONS (See Sections 3.2, 3.3, 3.4,3.9 and 9.1 of Security Agreement) I. Name of Debtor: Recovery Technology Solutions Shakopee,LLC II. State of Incorporation or Organization: Delaware III. Type of Entity: Limited Liability Company IV. Organizational Number assigned by State of Incorporation or Organization: V. Federal Identification Number: VI. Chief Executive Office(if more than one place of business)and Mailing Address: VII. Locations of Collateral: A-1 EXHIBIT B DEPOSIT ACCOUNTS OTHER THAN THOSE SUBJECT TO ACCOUNTS AGREEMENT (See Section 3.5 of Security Agreement) Description of Check here if Deposit Deposit Account if Account is a Collateral not a Collateral Name of Institution Account Number Deposit Account Deposit Account B-1 EXHIBIT C LETTER OF CREDIT RIGHTS CHATTEL PAPER (See Section 3.7 of Security Agreement) C-1 EXHIBIT D INTELLECTUAL PROPERTY RIGHTS (See Section 3.10 and 3.11 of Security Agreement) PATENTS Patent Description Patent Number Issue Date PATENT APPLICATIONS Patent Application Application Filing Date Application Serial Number TRADEMARKS Trademark Registration Date Registration Number TRADEMARK APPLICATIONS Trademark Application Application Filing Date Application Serial Number COPYRIGHTS Copyright Registration Date Registration Number COPYRIGHT APPLICATIONS Copyright Application Application Filing Date Application Serial Number D-1 INTELLECTUAL PROPERTY LICENSES Name of Agreement Date of Agreement Parties to Agreement Licensed Rights D-1 EXHIBIT E TITLE DOCUMENTS (See Section 3.11 of Security Agreement) I. Vehicles with value in excess of$[50,000] subject to certificates of title: Description Title Number State Where Issued II. Aircraft/engines/parts, ships,railcars and other vehicles governed by Federal statute: Description Registration Number None E-1 EXHIBIT F FIXTURES (See Section 3.11 of Security Agreement) F-1 EXHIBIT G LIST OF PLEDGED COLLATERAL, SECURITIES AND OTHER INVESTMENT PROPERTY (See Section 3.13 of Security Agreement and Definition of"Pledged Collateral") STOCKS Percentage of Issuer Certificate Number of Shares Class of Stock Outstanding Number(s) Shares BONDS Issuer Number Face Amount Coupon Rate Maturity GOVERNMENT SECURITIES Issuer Number Type Face Amount Coupon Rate Maturity OTHER SECURITIES OR OTHER INVESTMENT PROPERTY (CERTIFICATED AND UNCERTIFICATED) Issuer Description of Collateral Percentage Ownership Interest Add description of custody accounts or arrangements with securities intermediary,if applicable: Currently none,except under Accounts Agreement. G-1 EXHIBIT H OFFICES IN WHICH FINANCING STATEMENTS HAVE BEEN FILED (See Section 3.1 of Security Agreement) Delaware Division of Corporations County Recorder, Scott County,Minnesota H-1 EXHIBIT I AMENDMENT (See Section 4.4 and 4.8 of Security Agreement) This Amendment, dated , is delivered pursuant to Section 4.4 of the Security Agreement referred to below. All defined terms herein shall have the meanings ascribed thereto or incorporated by reference in the Security Agreement. The undersigned hereby certifies that the representations and warranties in Article III of the Security Agreement are and continue to be true and correct. The undersigned further agrees that this Amendment may be attached to that certain Security Agreement, dated , 2014, between the undersigned, as the Debtor, and , as Secured Party (the "Security Agreement") and that the Collateral listed on Schedule Ito this Amendment shall be and become a part of the Collateral referred to in said Security Agreement and shall secure all Obligations referred to in said Security Agreement. RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC By: Name: Title: I-1 SCHEDULE I TO AMENDMENT STOCKS Percentage of Issuer Certificate Number of Shares Class of Stock Outstanding Number(s) Shares BONDS Issuer Number Face Amount Coupon Rate Maturity GOVERNMENT SECURITIES Issuer Number Type Face Amount Coupon Rate Maturity OTHER SECURITIES OR OTHER INVESTMENT PROPERTY (CERTIFICATED AND UNCERTIFICATED) Issuer Description of Collateral Percentage Ownership Interest [Add description of custody accounts or arrangements with securities intermediary, if applicable] COMMERCIAL TORT CLAIMS Description of Claim Parties Case Number;Name of Court where Case was Filed I-2 EXHIBIT J ASSIGNED CONTRACTS (See"Assigned Contracts"Definition) Debtor's right, title and interest in and to all Contracts relating to construction, equipping, and operation or maintenance of the Project, now existing or hereafter entered into, including without limitation all those contracts described in Schedules 4.15, Part A, and Schedule 4.15 Part B as attached to the Accounts Agreement. J-1 EXHIBIT K EQUIPMENT EXPECTED TO BE ACQUIRED List attached K-1 BOND GUARANTY AGREEMENT From RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC To UMB BANK,N.A., as Trustee Relating to and Securing: [$16,000,0001 City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee,LLC Project), Series 2014 Dated as of , 2014 BOND GUARANTY AGREEMENT THIS BOND GUARANTY AGREEMENT dated as of , 2014 (this "Guaranty"), is made and given by RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a Delaware limited liability company (the "Guarantor") to and for the benefit of , a national banking association(the "Trustee"), as Trustee under that certain Indenture of Trust dated as of , 2014 (as supplemented and amended from time to time, the "Indenture") between the City of Shakopee, Minnesota, a municipal corporation and political subdivision organized and existing under the laws of the State of Minnesota (the "Issuer") and the Trustee (the capitalized terms not defined above or in the recitals hereto shall have the meaning set forth in Article I hereof unless the context are used clearly indicates another meaning or intent). WITNESSETH: WHEREAS, Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act"), authorize a city to issue revenue obligations to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of a "project," defined in the Act, in part, as any properties, real or personal, used or useful in the abatement or control of noise, air, or water pollution, or in the disposal of solid wastes, in connection with a revenue producing enterprise; and WHEREAS, at the request of the Guarantor and in furtherance of purposes of the Act, the Issuer has determined to issue revenue bonds designated as City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of[$16,000,000] (the "Series 2014 Bonds"), pursuant to and in accordance with the terms of this Indenture; and WHEREAS, following the adoption by the Issuer on August 7, 2013 of a resolution declaring its official intent to finance, refinance or reimburse for the Company all or a portion of the costs of acquiring, constructing, equipping, installing, and improving an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil, to be located at 6528 County Road 101 East in the City of Shakopee, Minnesota, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a) of the Act (the "Project"), the Company has acquired, constructed, equipped, installed, and improved the Project and will lease the Project to the Issuer pursuant to a [Real Estate, Improvements and Equipment Lease Agreement] dated as of , 2014 (the "Base Lease"), between the Issuer and the Company, in consideration of the Issuer issuing and selling the Series 2014 Bonds; and WHEREAS, pursuant to the Lease Agreement dated as of , 2014 (the "Lease Agreement"), the Issuer has agreed to (a)provide for the application of the proceeds of the Series 2014 Bonds for the benefit of the Company to be used: (i) for the financing, refinancing or reimbursement of all or a portion of the costs of acquiring, constructing, equipping, installing, and improving the Project (all as more specifically described in Exhibit A to the Lease Agreement); (ii)to fund a debt service reserve account for the Series 2014 Bonds; and (iii)to pay certain costs relating to the issuance of the Series 2014 Bonds, all as permitted under the Act, and (b) obtain a leasehold interest in the Project and the Project Site and lease the Project to the Company, subject to the Company's agreement to pay the rental and other obligations provided for under this Lease Agreement; and WHEREAS, in order to further secure the Company's obligations under the Lease Agreement and to provide for the disbursement of funds for the payment of Project Costs and the capture and allocation of the revenues from the Project, following the Completion Date, the Guarantor, the Securities Intermediary, the Accounts Bank and the Trustee have entered into that certain Accounts Agreement dated as of , 2014 (the "Accounts Agreement") which, together with the Indenture, the Lease Agreement and the other Bond Documents, govern the application and allocation of the proceeds of the Series 2014 Bonds and other funds to be provided by or on behalf of the Company, and the application of revenues from the Project; and WHEREAS, in consideration of the Issuer's agreement to issue the Series 2014 Bonds and the execution and delivery of the Lease Agreement and the Indenture by the Issuer in order to assist in the acquisition, construction, reconstruction, improvement and equipping of the Project, the Guarantor has agreed to guarantee repayment in full the principal of, interest on and premium, if any, on the Series 2014 Bonds; NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and agreements of the parties hereto, and in order to enhance the marketability of the Bonds, thereby achieving interest costs saving to the Guarantor, the Guarantor hereby covenants and agrees with the Trustee, for the benefit of the holders of the Bonds, as follows: ARTICLE I DEFINITIONS Section 1.1. Words and terms used herein with initial capitalization and not otherwise defined in this Guaranty shall have the meaning ascribed thereto in the Indenture. ARTICLE II GUARANTY Section 2.1. Guaranty of Obligations. The Guarantor hereby irrevocably and unconditionally guarantees to the Trustee (a) the full and prompt payment of the principal of and premium, if any, on the Series 2014 Bonds when and as the same shall become due, whether at the stated maturity thereof, by acceleration, by call for redemption or otherwise, (b) the full and prompt payment of the interest on the Series 2014 Bonds when and as the same shall become due, and (c) all other amounts due and owing under the Indenture, the Lease Agreement, the Accounts Agreement or any of the other Bond Documents (collectively, the "Obligations"). All payments by the Guarantor shall be paid in lawful money of the United States of America. Each 2 and every default in payment of the principal of, premium, if any, or interest on any Series 2014 Bond or default in payment of any amount due under the Indenture, the Lease Agreement, the Accounts Agreement or any of the Bond Documents shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. Section 2.2. Guaranty Absolute and Unconditional. The obligations of the Guarantor under this Guaranty shall be absolute and unconditional and shall remain in full force and effect until the entire principal of, premium, if any, and interest on the Series 2014 Bonds shall have been paid or funds sufficient for such payment shall have been deposited with the Trustee in trust for such purpose and all amounts payable by the Issuer in connection with the Series 2014 Bonds shall have been paid in full. The Guarantor's obligations hereunder shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to, or the consent of, the Guarantor: (a) the compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of the Issuer under the Indenture or the Lease Agreement or of the Guarantor under the Lease Agreement or the Accounts Agreement or under any of the Security Documents given as security by the Guarantor to the Issuer or the Trustee for the payment of the Series 2014 Bonds or the performance of the Guarantor's obligations under the Lease Agreement, the Accounts Agreement, any of the other Bond Documents or hereunder; or (b) the waiver of the payment, performance or observance (i) by the Issuer of any of the obligations, covenants or agreements contained in the Indenture or the Lease Agreement, (ii) by the Guarantor of any of the obligations, covenants or agreements contained in the Lease Agreement, the Accounts Agreement or any of the other Bond Documents, or (iii) by the Guarantor of any of the obligations, covenants or agreements of the Guarantor contained in this Guaranty; or (c) (i) the extension of the time for payment of any principal of, premium, if any, or interest on the Series 2014 Bonds or of any amounts due under the Indenture, the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents, or (ii) the extension of time for performance of any other obligations, covenants or agreements under or arising out of the Indenture, the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents, whether or not with notice to the Guarantor; or (d) the modification or amendment of any obligation, covenant or agreement set forth in the Indenture, the Lease Agreement, the Accounts Agreement, this Guaranty or any of the Bond Documents; or (e) the taking or the omission of any of the actions referred to in the Indenture, the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents or the performance of the Guarantor's obligations under the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents 3 or the impairment or non-perfection of any collateral or security for the Series 2014 Bonds and other amounts payable by the Guarantor; or (f) any failure, omission, delay or lack on the part of the Issuer or the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Issuer or the Trustee in the Indenture, the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents or to enforce the performance of the Guarantor's obligations under the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents, or any failure, omission or delay on the part of the Issuer or the Trustee with respect to performance under the Indenture, the Lease Agreement, the Accounts Agreement,this Guaranty or any of the other Bond Documents; or (g) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or re-adjustment of, or other similar proceedings affecting the Guarantor or the Issuer or any of the assets of the Guarantor or the Issuer or any allegation or contest of the validity of the Indenture, Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents or the performance of the Guarantor's obligations under the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents in any such proceeding; or (h) the release or discharge of the Guarantor or the Issuer from the performance or observance of any obligation, covenant or agreement contained in the Indenture, the Lease Agreement, the Accounts Agreement, this Guaranty or any of the other Bond Documents, whether by operation of law or otherwise or the invalidity, unenforceability, assignment or termination of any of the foregoing; or (i) the default or failure of the Guarantor to fully perform any of its obligations set forth in this Guaranty; or (j) the invalidity of the Indenture, the Lease Agreement, the Accounts Agreement,this Guaranty or any of the other Bond Documents; or (k) the destruction, non-use or non-availability of the Project; or (1) any invalidity or irregularity in any statutory or other proceedings relating to (i) to the formation or existence of the Issuer, (ii) the issuance of the Series 2014 Bonds or (iii) the execution and delivery of the Indenture, the Lease Agreement, the Accounts Agreement,this Guaranty or any of the other Bond Documents; or (m) any waiver, consent, extension, indulgence or other action or inaction in respect of the Series 2014 Bonds, the Indenture, the Lease Agreement, this Guaranty or any of the other Bond Documents, including any modification, amendment and/or supplement to the foregoing, the renewal or extension of the Series 2014 Bonds, the 4 release of any property subject to the lien and security interest of the Indenture, the Accounts Agreement or any of the other Bond Documents, or any other similar act; or (n) any claim whatsoever against the Issuer or the Trustee; or (o) any other similar or dissimilar matter that might be raised in avoidance of, or in defense against, an action to enforce the obligations of the Guarantor under the provisions hereof. Section 2.3. Limitation of Defenses. No set-off, counterclaim, reduction or diminution of an Obligation, or any defense of any kind or nature which the Guarantor has or may have against the Issuer or the Trustee, shall be available hereunder to the Guarantor against the Trustee. Section 2.4. Trustee's Rights With Respect to Remedies. Upon the occurrence of any Event of Default (as defined herein), the Trustee, in its sole discretion, shall have the right to proceed first directly against the Guarantor under this Guaranty without proceeding against or exhausting any other remedies which it may have against any other person, firm or corporation and without resorting to any other security held by the Trustee. Section 2.5. Waiver of Notice of Acceptance. The Guarantor hereby expressly waives notice from the Trustee or the Owners from time to time of any of the Bonds of their acceptance and reliance on this Guaranty. The Guarantor also waives presentment, demand for payment, protest, and notice of non-payment or dishonor and all other notices and demands whatsoever relating to the Series 2014 Bonds. To the extent permitted by applicable law, the Guarantor agrees to pay all costs, expenses and fees, including reasonable attorneys' fees, which may be incurred by the Trustee in enforcing or attempting to enforce this Guaranty following any default on the part of the Guarantor hereunder, whether the same shall be enforced by suit or otherwise. Section 2.6. Beneficiaries of Guaranty. This Guaranty is entered into by the Guarantor for the benefit of the Trustee and the owners from time to time of the Series 2014 Bonds, and such parties shall be entitled to enforce performance and observance of this Guaranty and protect the rights of the Trustee or the owners of the Bonds in their own name without joining the Trustee as a necessary party following any default hereunder. Section 2.7. Waiver of Subrogation. The Guarantor waives, and shall not exercise against the Issuer, the Trustee or any collateral for the Series 2014 Bonds, any rights which it may acquire by way of subrogation, and any rights to reimbursement or indemnity, arising out of any payment made under this Guaranty or otherwise, until all of the Guarantor's Obligations have been indefeasibly paid in full. 5 ARTICLE III REPRESENTATIONS AND WARRANTIES OF GUARANTOR Section 3.1. Representations and Warranties. The Guarantor represents and warrants that: (a) The Guarantor is a limited liability company duly organized and validly existing under the laws of the State of Delaware, is qualified to do business in the State of Minnesota, has full corporate power to enter into and perform this Guaranty and has duly authorized the execution and delivery of this Guaranty; this Guaranty constitutes a legal, valid and binding obligation of the Guarantor, enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors' rights and to general equitable principles. (b) Neither the execution and delivery nor the performance by the Guarantor of this Guaranty contravenes or constitutes a default under, or creates or imposes any lien, charge or encumbrance on any property of the Guarantor pursuant to the Guarantor's articles of organization or operating agreement or any material agreement or instrument to which the Guarantor is a party or by which its property is bound, or violates any other material requirement of law. (c) There are no actions, suits or proceedings pending, or to the knowledge of the Guarantor threatened, against the Guarantor in any court or before any Federal, state, municipal or other governmental department or commission, board, bureau, agency or instrumentality (nor is there any basis therefor) which if adversely determined will materially adversely affect the validity and enforceability of this Guaranty or the ability of the Guarantor to perform in accordance with this Guaranty. (d) The Guarantor is qualified to do business as a foreign corporation in any other state wherein non-qualification would have a Material Adverse Effect on the Guarantor or its operations. (e) The Guarantor possesses the requisite power to enter into this Guaranty, to execute and this Guaranty and to perform its obligations hereunder. (0 The Guarantor has taken the necessary action to authorize the execution and delivery of this Guaranty, and none of the provisions of this Guaranty violates, breaches, contravenes, conflicts with, or causes a default under any provision of the articles of organization or operating agreement of the Guarantor, or, in any material respect, violates, breaches, contravenes, conflicts with or causes a default under any provision of any existing note, bond, mortgage, debenture, indenture, trust, license, lease, instrument, decree, order,judgment or agreement to which the Guarantor is a party or by which it or its assets may be bound or affected. 6 ARTICLE IV INCORPORATION OF REPRESENTATION,WARRANTIES AND COVENANTS IN LEASE AGREEMENT Section 4.1. Incorporation by Reference of Representations, Warranties and Covenants in Lease Agreement. Each and every representation, warranty and covenant contained in the Lease Agreement is hereby incorporated by reference as if set forth and repeated herein. ARTICLE V EVENTS OF DEFAULT Section 5.1. Defaults. Each of the following shall constitute an Event of Default hereunder: (a) There is a failure by the Guarantor to pay any Obligation when due. (b) Any warranty or representation made by or on behalf of the Guarantor in this Guaranty or in any writing furnished in connection with or pursuant to this Guaranty, including under any of the Bond Documents, shall be false or misleading in any material respect as of the date made. (c) There shall occur an"Event of Default"under the Lease Agreement which shall remain uncured beyond any applicable cure period. ARTICLE VI SECURITY FOR GUARANTY In consideration of (i) the issuance of the Bonds by the Issuer, (ii) the execution and delivery of the Lease Agreement to enable the Guarantor to acquire, construct, reconstruct, improve and equip the Project and (iii) the assignment by the Issuer of the Lease Agreement to the Trustee pursuant to the terms of the Indenture, the Guarantor has granted a mortgage on, security interest in and assignment of rents and leases of the Project, including the Project Site, and all equipment and other real and personal improvements thereto, which are a part thereof, and all plans, permits, licenses, approvals, contracts and construction documents executed and delivered in connection therewith, to the Trustee under and pursuant to the Security Documents, all as security for the payment and performance of the Obligations by the Guarantor. The Guarantor hereby acknowledges that such Security Documents were given in exchange for valuable consideration received by the Guarantor in connection with the acquisition, construction, reconstruction, improvement and equipping of the Project and acknowledges and consents to the rights granted to the Trustee under the Security Documents to take any and all 7 such actions duly authorized in the Security Documents and other Bond Documents to secure the payment and performance of the Obligations by the Guarantor. ARTICLE VII MISCELLANEOUS Section 7.1. Expenses. The Guarantor agrees to pay all reasonable out-of-pocket expenses of the Trustee incurred in the enforcement of this Guaranty or any of the Collateral Documents securing payment in full of the Obligations. Section 7.2. Waiver of Jury Trial. Trustee and the Guarantor, after consulting or having had the opportunity to consult with counsel, knowingly, voluntarily and intentionally waive any right either of them may have to a trial by jury in any litigation based upon or arising out of this Guaranty or any related instrument or agreement, or any of the transactions contemplated by this Guaranty, or any course of conduct, dealing, statement (whether oral or written), or actions of either of them. Neither Trustee nor the Guarantor shall seek to consolidate, by counterclaim or otherwise, any such action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived. These provisions shall not be deemed to have been modified in any respect or relinquished by either the Trustee or the Guarantor except by a written instrument executed by both of them. Section 7.3. Titles or Captions. All Article, Section or Paragraph titles or captions contained in this Guaranty are for the convenience of reference only and shall not be deemed as part of the text of this Guaranty. Section 7.4. Pronouns. All pronouns and variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require. Section 7.5. Entire Understanding. This Guaranty contains the entire understanding among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Guaranty. Section 7.6. Binding Effect. The promises, covenants and conditions contained herein are given corporately and are binding upon the personal representatives, successors and assigns of the Guarantor. Section 7.7. Invalidity or Unenforceability. In case any one or more of the provisions contained in this Guaranty or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and any other applications thereof shall not in any way be affected or impaired thereby. Section 7.8. Counterparts. This Guaranty and any amendments hereto may be executed in several counterparts and when executed shall constitute one agreement binding upon 8 all of the parties hereto, notwithstanding that all are not signatories to the original or the same counterpart. Section 7.9. Applicable Law. This Guaranty and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Minnesota. [Remainder of Page Intentionally Left Blank—Signature Pages Follow] 9 SIGNATURE PAGE OF GUARANTOR TO BOND GUARANTY AGREEMENT IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered to Trustee as of the date first above written. RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, as Guarantor By: Its: 10 KD_Bond Guaranty Agreement-Recovery Technology Solutions ACCEPTANCE PAGE OF TRUSTEE TO BOND GUARANTY AGREEMENT IN WITNESS WHEREOF, the Trustee has accepted this Guaranty as of the date first above written. UMB BANK,N.A., as Trustee By: Its: 11 ACCOUNTS AGREEMENT among RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC as Company, UMB BANK,N.A., as Accounts Bank and Securities Intermediary and UMB BANK,N.A., as Trustee Dated: ,2014 TABLE OF CONTENTS [This Table of Contents shall be solely for convenience of reference and shall neither constitute a part of this agreement nor affect its meaning, construction or effect] ARTICLE I DEFINITIONS AND INTERPRETATION 3 Section 1.01 Defined Terms 3 Section 1.02 Principles of Interpretation. 8 Section 1.03 Indenture and UCC Definitions. 9 Section 1.04 Accounting and Financial Determinations 9 ARTICLE II APPOINTMENT; GRANT OF SECURITY INTEREST 10 Section 2.01 Appointment 10 Section 2.02 Project Accounts. 10 Section 2.03 Representations, Warranties and Covenants of Accounts Bank 11 Section 2.04 Project Accounts as Deposit Account. 13 Section 2.05 Grant of First Priority Security Interests 14 Section 2.06 Control and Perfection of Account Collateral 14 Section 2.07 Subordination. 15 Section 2.08 Agreement to Hold In Trust. 15 Section 2.09 Project Accounts Included in Trust Estate 16 ARTICLE III PROJECT ACCOUNTS 17 Section 3.01 Establishment of Project Accounts. 17 Section 3.02 Deposits into and Withdrawals from Project Accounts 18 ARTICLE IV CONSTRUCTION ACCOUNT 21 Section 4.01 Construction Account 21 ARTICLE V LIQUIDATED DAMAGES ACCOUNT 25 Section 5.01 Liquidated Damages Account. 25 ARTICLE VI REVENUE ACCOUNT 26 Section 6.01 Revenue Account. 26 ARTICLE VII OPERATING ACCOUNT 30 Section 7.01 Operating Account. 30 ARTICLE VIII [RESERVED] 31 ARTICLE IX OPERATING EXPENSE RESERVE ACCOUNT 32 Section 9.01 Operating Expense Reserve Account 32 ARTICLE X DEBT SERVICE RESERVE ACCOUNT 34 Section 10.01 Debt Service Reserve Account 34 Section 10.02 Excess in Debt Service Reserve Account. 35 Section 10.03 Mandatory Redemption of Tax-Exempt Bonds 35 Section 10.04 Application of Debt Service Reserve Account for Final Payment 35 ARTICLE XI COVENANT COMPLIANCE HOLDING ACCOUNT 36 Section 11.01 Covenant Compliance Holding Account 36 ARTICLE XII INSURANCE AND CONDEMNATION PROCEEDS ACCOUNT 38 Section 12.01 Insurance and Condemnation Proceeds Account. 38 ARTICLE XIII ACQUISITION ACCOUNT 39 Section 13.01 Acquisition Account 39 ARTICLE XIV [RESERVED] 41 ARTICLE XV GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS 42 Section 15.01 No Security Interests. 42 Section 15.02 Company Acknowledgment. 42 Section 15.03 Further Assurances. 42 Section 15.04 UCC Termination Statements. 43 ARTICLE XVI INTEREST AND INVESTMENTS 44 Section 16.01 Investments. 44 Section 16.02 Sale and Liquidation. 45 Section 16.03 Interest and Investment Income. 45 Section 16.04 Accounts Information 45 ARTICLE XVII DEFAULT AND ENFORCEMENT 47 Section 17.01 Notices of Suspension of Project Accounts. 47 Section 17.02 Trustee Appointed Attorney-in-Fact. 47 Section 17.03 Enforcement 48 Section 17.04 Application of Proceeds. 50 Section 17.05 Trustee's Discretionary Powers 50 Section 17.06 Regarding the Trustee. 50 ARTICLE XVIII THE ACCOUNTS BANK 51 Section 18.01 Duties of the Accounts Bank and Securities Intermediary 51 Section 18.02 Exculpatory Provisions. 52 Section 18.03 Reliance by Accounts Bank. 53 Section 18.04 Written Instructions; Notices. 53 Section 18.05 Resignation or Removal of Accounts Bank. 54 Section 18.06 No Amendment to Duties of Accounts Bank Without Consent. 55 ii ARTICLE XIX REPRESENTATIONS AND WARRANTIES 56 Section 19.01 Representations and Warranties. 56 ARTICLE XX MISCELLANEOUS 58 Section 20.01 Security Discharge Date 58 Section 20.02 Amendments, Etc. 58 Section 20.03 Applicable Law; Jurisdiction; Etc. 59 Section 20.04 Assignments. 60 Section 20.05 Benefits of Accounts Agreement. 60 Section 20.06 Costs and Expenses 61 Section 20.07 Counterparts; Effectiveness. 61 Section 20.08 Indemnification by the Company 61 Section 20.09 No Waiver; Cumulative Remedies 62 Section 20.10 Notices and Other Communications. 62 Section 20.11 Patriot Act Notice 63 Section 20.12 Severability. 64 Section 20.13 Survival. 64 Section 20.14 Waiver of Consequential Damages, Etc 64 Section 20.15 Waiver of Litigation Payments. 64 EXHIBITS EXHIBIT A [RESERVED] EXHIBIT B FORM OF REVENUE ACCOUNT WITHDRAWAL CERTIFICATE EXHIBIT C FORM OF OPERATING ACCOUNT WITHDRAWAL CERTIFICATE EXHIBIT D FORM OF LIQUIDATED DAMAGES ACCOUNT WITHDRAWAL CERTIFICATE EXHIBIT E FORM OF DEBT SERVICE RESERVE ACCOUNT WITHDRAWAL CERTIFICATE EXHIBIT F FORM OF OPERATING EXPENSE RESERVE ACCOUNT WITHDRAWAL CERTIFICATE SCHEDULES Schedule 20.10 Notice Information (End of Table of Contents) iii ACCOUNTS AGREEMENT THIS ACCOUNTS AGREEMENT, dated , 2014 (this "Accounts Agreement"), is entered into by and among RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a Delaware limited liability company (the "Company"), UMB BANK, N.A., a national banking association, in its capacity as accounts bank under this Accounts agreement (together with its successors and assigns in such capacity, the "Accounts Bank"), UMB BANK, N.A., a national banking association, in its capacity as securities intermediary under this Accounts Agreement (together with its successors and assigns in such capacity, the "Securities Intermediary") and UMB BANK, N.A., a national banking association, in its capacity as trustee under the Indenture hereinafter described (together with its successors and assigns in such capacity, the "Trustee"). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed in Article I hereof. RECITALS WHEREAS, pursuant to (a) that certain Indenture of Trust dated as of 2014 (the "Indenture") between the City of Shakopee, Minnesota(the "Issuer") and the Trustee and (b) Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act"), at the request of the Company, the Issuer has determined to issue and deliver its City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of [$16,000,000] (the "Series 2014 Bonds"), all in accordance with the terms of such Indenture; WHEREAS, following the adoption by the Issuer on August 7, 2013 of a resolution declaring its official intent to finance, refinance or reimburse for the Company all or a portion of the costs of acquiring, constructing, equipping, installing, and improving an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil, to be located at 6528 County Road 101 East in the City of Shakopee, Minnesota, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a) of the Act (the "Project"), the Company has acquired, constructed, equipped, installed, and improved the Project and will lease the Project to the Issuer pursuant to a [Real Estate, Improvements and Equipment Lease Agreement] dated as of , 2014 (the "Base Lease"), between the Issuer and the Company, in consideration of the Issuer issuing and selling the Series 2014 Bonds; and WHEREAS, pursuant to that certain Lease Agreement dated as of , 2014 (the "Lease Agreement"), between the Issuer and the Company, the Issuer has agreed to (a) provide for the application of the proceeds of the Series 2014 Bonds for the benefit of the Company to be used: (i) for the financing, refinancing or reimbursement of all or a portion of the costs of acquiring, constructing, equipping, installing, and improving the Project (all as more specifically described in Exhibit A to the Lease Agreement); (ii) to fund a debt service reserve account for the Series 2014 Bonds; and (iii) to pay certain costs relating to the issuance of the Series 2014 Bonds, all as permitted under the Act, and (b) lease the Project to the Company, subject to the Company's agreement to pay Basic Rent and Additional Rent and other obligations provided for under such Lease Agreement sufficient to pay when due (whether at stated maturity, by 1 acceleration or otherwise) the principal of and premium, if any, and interest on the Series 2014 Bonds and to pay certain other expenses in connection with the Series 2014 Bonds; and WHEREAS, the Company desires to enter into this Accounts Agreement for the purposes described herein, including, among others, (a) to provide a depository (i) from which (A) proceeds of the Series 2014 Bonds, (B) Net Proceeds, (C) proceeds from the issuance of Additional Bonds for the completion or expansion of the Project or (D) the Required Equity Contribution, if any, may be advanced for the payment of costs of the acquisition, construction, equipping, installation, improvement, maintenance and/or operation of the Project and (ii) for the capture and allocation of the revenues from the Project, from and after the date hereof, as applicable, and (b) to provide for the granting of a security interest in favor of the Trustee in all of the property of the Company described in Section 2.05 (Appointment; Grant of Security Interests Grant of First Priority Security Interests) hereof and, it is a requirement under the Indenture and the Lease Agreement that the Company execute and deliver this Accounts Agreement. NOW, THEREFORE, in consideration of the promises contained herein, and to induce the Bondholders to purchase the Series 2014 Bonds or any Additional Bonds, issued under the Indenture, to induce the Issuer to enter into the Lease Agreement and the Indenture and to make the advances of credit to the Issuer for the benefit of the Company contemplated thereby, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the Company hereby agrees with the Accounts Bank, the Securities Intermediary and the Trustee, for the further benefit of the Bondholders, as follows: (Remainder of Page Intentionally Left Blank) 2 ARTICLE I DEFINITIONS AND INTERPRETATION Section 1.01 Defined Terms. The following terms when used in this Accounts Agreement, including its preamble and recitals, shall, except where the context otherwise requires, have the following meanings: "Account Collateral" has the meaning provided in Section 2.05 (Appointment; Grant of Security Interests—Grant of First Priority Security Interests)hereof. "Accounts Bank"has the meaning provided in the preamble. "Accounts Bank Action" has the meaning provided in Section 18.04(b) (The Accounts Bank—Written Instructions;Notices)hereof "Acquisition Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article XIII hereof "Acquisition Funding Notice" means a certificate in substantially the form of Exhibit L to the Lease Agreement, duly executed by an Authorized Company Representative and the Trustee, directing the transfer or withdrawal of funds from the Acquisition Price Subaccount of Acquisition Account of the Accounts Agreement, on the Closing Date. "Additional Indebtedness" means Indebtedness issued or incurred by the Company pursuant to and in compliance with terms and conditions of Section 2.6.8 (Negative Covenants— Additional Indebtedness; Guarantees) of the Lease Agreement. ["Blocked Account Agreement" means an agreement, in form reasonably satisfactory to the Trustee with respect to a Local Account, if any, among the Company, the bank with whom such Local Account was opened and the Trustee perfecting the security interest of the Trustee in such Local Account.] "Bond Documents" means this Indenture, the Accounts Agreement, the Lease Agreement, the Base Lease, the Tax Agreement and the Security Documents, and each other document designated as a Bond Document by the Company and the Trustee. "Bond Proceeds" means (a) with respect to the Series 2014 Bonds, the proceeds of the Series 2014 Bonds which are deposited to the Acquisition Account and the Debt Service Reserve Account, and (b) with respect to any Additional Bonds, the proceeds of the Additional Bonds deposited to the Construction Account and the Debt Service Reserve Account, created under the this Accounts Agreement and made available by the Accounts Bank to the Trustee for further disbursement to or for the benefit of the Company or the Bondholders, as applicable. "Cash Flow" means, for any period, the sum (without duplication) of the following: (a) all cash paid to the Company during such period in connection with the Product Off-Take Contracts and any other sales of Products, (b) all interest and investment earnings paid to the Company on the Project Accounts during such period on amounts on deposit in the Project Accounts, (c) all cash paid to the Company during such period as Business Interruption 3 Insurance Proceeds and (d) all other cash consideration paid to the Company during such period; provided, however that Cash Flow shall not include any proceeds of the Series 2014 Bonds, Additional Indebtedness, Subordinate Indebtedness or any other Indebtedness incurred by the Company, Net Proceeds, Required Equity Contributions, amounts received, by way of a capital contribution from any holders of Equity Interests of the Company, and any non-cash income or receipt of the Company under GAAP. "Company"has the meaning provided in the preamble. "Completion" means that all portions of the Project have been fully completed in accordance with the plans and specifications therefor, as then amended, and as identified in the Notice of Completion, and each of the conditions set forth in Section 3.3 (Acquisition, Construction, Installation, Equipping, Completion and Operation of the Project—Conditions to any Funding on or after the Completion Date) of the Lease Agreement shall have been achieved, including Performance Testing, whether in connection with (a) the initial issuance of the Series 2014 Bonds, (b) the receipt of Net Proceeds and approval of a Restoration and Replacement Plan or(c) issuance of Additional Bonds to complete or expand the Project. "Construction Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article IV hereof. "Construction Advance Funding Notice" means a certificate in substantially the form of Exhibit G to the Lease Agreement, duly executed by an Authorized Company Representative and the Trustee, directing the transfer or withdrawal of funds from the Construction Account prior to the Completion Date. "Completion Date"means the Business Day upon which the Completion occurs. "Completion Date Funding Notice" means a disbursement request in the form of Exhibit H to the Lease Agreement made by an Authorized Company Representative as provided in Section 3.6 of the Lease Agreement, directing the transfer or withdrawal of funds from the Construction Account as of the Completion Date. "Covenant Compliance Holding Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article XI hereof. "Debt Service Reserve Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article X hereof. "Debt Service Reserve Withdrawal Certificate" means a certificate in substantially the form of Exhibit E hereto, duly executed by an Authorized Company Representative directing the transfer or withdrawal of funds from the Debt Service Reserve Account. "Debt Service Reserve Requirement" means (a) with respect to the Series 2014 Bonds, [$1,600,000], which is an amount equal to the least of(i) 10% of the stated principal amount of the Series 2014 Bonds, (ii) the maximum annual principal and interest on the Series 2014 Bonds and (ii) 125% of the average annual principal and interest on the Series 2014 Bonds and (b) with 4 respect to any Additional Bonds, the amount, if any, set forth in the Supplemental Indenture authorizing such Additional Bonds. "Delay Liquidated Damages" means damages, if any, payable pursuant to the Construction Contract. "Indemnitee" has the meaning provided in Section 20.08(a) (Miscellaneous— Indemnification by the Company) hereof "Indenture"has the meaning provided in the first recital. "Insurance and Condemnation Proceeds Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article XII hereof "Lease Agreement"has the meaning provided in the second recital. "Lease Interest Amount" means, with respect to Basic Rent, the amount of each such payment due on a Lease Payment Date which is an amount equal to one-sixth (1/6) (or if there are less than six calendar months remaining until the next Interest Payment Date, then a fraction, the numerator of which shall be one and the denominator of which shall be the number of months, as adjusted for the number of days in the month of Closing, until such Interest Payment Date) of the interest coming due on the Series 2014 Bonds on the next succeeding Interest Payment Date for the Series 2014 Bonds or any Additional Bonds and which is required to be paid to Bondholders on the corresponding Interest Payment Date. For purposes of illustration, the scheduled Lease Interest Amount due and payable on each Lease Payment Date is set forth in the Lease Rental Schedule attached to the Lease Agreement as Schedule 2.7. Such amounts set forth in Schedule 2.7 are subject to adjustment as described in Section 2.7 of the Lease Agreement. "Lease Payments" means the payments required to be made to the Company pursuant to Section 5.01(a) of the Lease Agreement in the amounts and at the times set forth in the Lease Rental Schedule attached to the Lease Agreement as Schedule 2.7, as such schedule may be revised from time to time. "Lease Payment Date" means, with respect to the Basic Rent due for payment of the Series 2014 Bonds, each Monthly Date, commencing [January 27, 2015] with respect to the Lease Interest Amount and the Lease Principal Amount and, with respect to any Additional Bonds, the dates specified in the Supplemental Loan Agreement and the Supplemental Indenture or other documentation executed in connection therewith. "Lease Principal Amount" means, with respect to Basic Rent, the amount of each such payment due on a Lease Payment Date which is an amount equal to one-sixth (1/6) (or if there are less than six calendar months remaining until the next Principal Payment Date, then a fraction, the numerator of which shall be one and the denominator of which shall be the number of months until such Principal Payment Date) of the principal coming due on the Series 2014 Bonds on the next succeeding Principal Payment Date for the Series 2014 Bonds or any Additional Bonds and which is required to be paid to Bondholders on the corresponding 5 Principal Payment Date. For purposes of illustration, the scheduled Lease Principal Amount due and payable on each Lease Payment Date is set forth in the Lease Rental Schedule attached to the Lease Agreement as Schedule 2.7. Such amounts set forth in Schedule 2.7 are subject to adjustment as described in Section 2.7 of the Lease Agreement. "Liquidated Damages Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article V hereof. "Liquidated Damages Withdrawal Certificate" means a certificate in substantially the form of Exhibit D hereto, duly executed by an Authorized Company Representative, directing the transfer or withdrawal of funds from the Liquidated Damages Account. ["Local Account"means any local bank account (other than the Project Accounts) in the name of the Company.] "Maintenance Capital Expenses" means all expenses of the Company for regularly scheduled (or reasonably anticipated) major maintenance of the Project and vendor and supplier requirements constituting major maintenance (including tear downs, overhauls, capital improvements, replacements and/or refurbishments of major components of the Project); provided, however, that in no event shall Project Costs or Operation and Maintenance Expenses be considered Maintenance Capital Expenses. "Monthly Date" means the third Business Day immediately preceding the last Business Day of each calendar month. "Net Proceeds" means the gross proceeds of an insurance claim, a condemnation award or a payment in lieu thereof, after payment of all expenses (including attorneys' fees and any extraordinary fees or expenses of the Trustee) incurred in its collection. "Notice of Security Discharge Date" means the date on which the Trustee has notified the Accounts Bank in writing that the Security Discharge Date has occurred. "Notice of Suspension" has the meaning provided in Section 17.01(a) (Default and Enforcement—Notices of Suspension of Project Accounts) hereof. "Obligations"means the obligation of the Company to pay all Basic Rent and Additional Rent under the Lease Agreement when due, together with the obligation of the Company to pay all fees and costs described in the Lease Agreement and in the other Bond Documents, and together with all other obligations and liabilities of any nature of the Company owed to the Trustee or to Bondholders (or any of them) under the Series 2014 Bonds or the Bond Documents, whether now or hereafter existing, or arising out of or related to the Series 2014 Bonds,the Bond Documents or the Project. "Operating Account" has the meaning provided in Section 3.01(a) (Project Accounts— Establishment of Project Accounts) and in Article VII hereof. 6 "Operating Account Withdrawal Certificate" means a certificate in substantially the form of Exhibit C hereto, duly executed by an Authorized Company Representative, directing the transfer or withdrawal of funds from the Operating Account. "Operating Expense Reserve Account" has the meaning provided in Section 3.01(a) (Project Accounts—Establishment of Project Accounts) and in Article IX hereof.] "Operating Expense Reserve Account Withdrawal Certificate" means a certificate in substantially the form of Exhibit F hereto, duly executed by an Authorized Company Representative, directing the transfer or withdrawal of funds from the Operating Expense Reserve Account. "Operating Expense Reserve Requirement" means an amount equal to One Million Four Hundred Thousand Dollars ($1,400,000). "Permitted Budgeted Operating Expenses Level" means, for any month in any Fiscal Year, and inclusive of all preceding months in such Fiscal Year (or, if the Closing Date occurred during such Fiscal Year, from the Closing Date), with respect to Operation and Maintenance Expenses, one hundred and ten percent (110%) of the amount projected for all such expenses for such month and all preceding months such Fiscal Year (or, if the Closing Date occurred during such Fiscal Year, from the Closing Date) in the then-current Operating Budget; [provided, however, that any expenses incurred by the Company for , and that are included in the Operating Budget as an Operation and Maintenance Expense shall not be subject to the 110% limitation hereof]; provided that the then current Operating Budget may be amended, changes or revised by the Company as provided in Section 2.5.19 of the Lease Agreement. "Project Accounts" means the accounts established and maintained by the Accounts Bank in the name of the Trustee as set forth Section 3.01(a)hereof. "Restoration or Replacement Plan" means a plan and time schedule, reasonably satisfactory to the Trustee and the Independent Engineer, for the application of Net Proceeds arising from any insurance claim, condemnation award or other payment in lieu thereof, respectively, and any other funds available to the Company with which to restore or replace the Project, or any portion thereof, affected by such event giving rise to Net Proceeds. "Restricted Payment Certificate" means a certificate in substantially the form of Exhibit C to the Lease Agreement, duly executed by an Authorized Company Representative, directing the transfer or withdrawal of funds for Restricted Payments. "Revenue Account" has the meaning provided in Section 3.01(a) (Project Accounts— Establishment of Project Accounts) and in Article VI hereof. "Revenue Account Withdrawal Certificate" means certificate in substantially the form of Exhibit B hereto, duly executed by an Authorized Company Representative and the Trustee, directing the transfer or withdrawal of funds from the Revenue Account. "Securities Intermediary"has the meaning provided in the preamble. 7 "Security Discharge Date" means the date on which all amounts payable in respect of the Obligations have been irrevocably and indefeasibly paid in full in cash (other than obligations under the Bond Documents that by their terms survive and with respect to which no claim has been made by the Trustee or the Bondholders, as applicable); provided, that the Obligations evidenced by the Series 2014 Bonds may only be defeased as provided in the Article VII of the Indenture. "Semi-Annual Date"means [January 1] and [July 1]. "Series 2014 Bonds"has the meaning provided in the first recital. "Trustee"has the meaning provided in the preamble. "UCC" means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of Minnesota; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security in any Account Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of Minnesota, the term "UCC" shall mean the Uniform Commercial Code as in effect, from time to time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions related to such provisions. Section 1.02 Principles of Interpretation. Unless otherwise defined or the context otherwise requires, terms for which the meanings are provided in this Accounts Agreement shall have the same meanings when used in the Lease Agreement or in the Indenture. In addition, terms used herein with initial capitalization and not otherwise defined herein shall have the meaning ascribed thereto in the Lease Agreement and in the Indenture. Unless the context requires otherwise, any reference in this Accounts Agreement to any Bond Document shall mean such Bond Document and all schedules, exhibits and attachments thereto, as amended from time to time. All the agreements, contracts or documents defined or referred to herein shall mean such agreements, contracts or documents as the same may from time to time be supplemented, amended or replaced or the terms thereof waived or modified to the extent permitted by, and in accordance with, the terms thereof and this Accounts Agreement, and shall disregard any supplement, amendment, replacement or waiver made in breach of this Accounts Agreement. Defined terms in this Accounts Agreement shall include in the singular number the plural and in the plural number the singular. The words "herein," "hereof' and "hereunder" and words of similar import when used in this Accounts Agreement shall, unless otherwise expressly specified, refer to this Accounts Agreement as a whole and not to any particular provision of this Accounts Agreement and all references to Articles, Sections, Exhibits and Schedules shall be references to Articles, Sections, Exhibits and Schedules of this Accounts Agreement, unless otherwise specified. 8 The words"include,""includes" and"including" are not limiting. The word"or" is not exclusive. Any reference to any Person shall include its permitted successors and permitted assigns in the capacity indicated, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities. Section 1.03 Indenture and UCC Definitions. Unless otherwise defined herein or unless the context otherwise requires, capitalized terms used in this Accounts Agreement, including its preamble and recitals, have the meanings provided in the Indenture or, if not defined therein, the UCC. Section 1.04 Accounting and Financial Determinations. Unless otherwise specified, all accounting terms used in any Bond Document shall be interpreted, all accounting determinations and computations hereunder or thereunder shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with GAAP. (END OF ARTICLE I) 9 ARTICLE II APPOINTMENT; GRANT OF SECURITY INTEREST Section 2.01 Appointment. (a) The Trustee, at the direction and consent of the Company, for the benefit of the Bondholders, hereby appoints and authorizes the Accounts Bank to act as its depository and as the securities intermediary or bank with respect to the Project Accounts with such powers as are expressly delegated to the Accounts Bank by the terms of this Accounts Agreement, together with such other powers as are reasonably incidental thereto. The Accounts Bank hereby accepts each such appointment and agrees to act as the depository for the Trustee and as the securities intermediary or bank with respect to the Project Accounts, for the benefit of the Bondholders in accordance with the terms of this Accounts Agreement. The Accounts Bank further agrees to accept and hold, as securities intermediary or as a bank, in its custody and in accordance with the terms of this Accounts Agreement, for the Trustee and for the benefit of the Bondholders, the Project Accounts and the Account Collateral. (b) The Trustee, at the direction and consent of the Company, also hereby appoints and authorizes the Accounts Bank to act on its behalf for the purpose of the creation and perfection of a first priority security interest in favor of the Trustee, for the benefit of the Bondholders, in the Project Accounts to the extent that they are deemed under applicable Law not to constitute securities accounts or deposit accounts and in any Account Collateral that is deemed under applicable Law not to constitute a"financial asset" (within the meaning of Section 8-102(a)(9) of the UCC). The Accounts Bank hereby accepts this appointment and agrees to act as the Accounts Bank for the Trustee, for the benefit of the Bondholders, for such purpose and to hold and maintain exclusive dominion and control over the Project Accounts and any such Account Collateral on behalf of the Trustee, acting for the benefit of the Bondholders. (c) Notwithstanding any provision to the contrary contained elsewhere in any Bond Document, the Accounts Bank shall not have any duties or responsibilities, except those expressly set forth herein, nor shall the Accounts Bank have or be deemed to have any fiduciary relationship with any of the Trustee or the Bondholders, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into any Bond Document or otherwise exist against the Accounts Bank. Without limiting the generality of the foregoing sentence, the use of the term "agent" in any Bond Document with reference to the Accounts Bank is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties. Section 2.02 Project Accounts. (a) The Company agrees that it will have no legal or equitable right, title or interest in or to any of the Project Accounts or the Account Collateral, except for those rights expressly granted to the Company in this Accounts Agreement. The Account Collateral will not constitute repayment of the Obligations until so applied as payments in accordance with the terms of this Accounts Agreement and the other Bond Documents. 10 (b) The Accounts Bank shall not have title to the funds on deposit in or credited to the Project Accounts, and shall credit the Project Accounts with all receipts of interest, dividends and other income received on the property held in the Project Accounts. The Accounts Bank shall administer and manage the Project Accounts in strict compliance with its duties with respect to the Project Accounts pursuant to this Accounts Agreement, and shall be subject to and comply with all of the obligations that the Accounts Bank owes to the Company and the Trustee, for the benefit of the Bondholders with respect to the Project Accounts, including all subordination obligations set forth in Section 2.07 (Appointment; Grant of Security Interest—Subordination) with respect to the Accounts Bank's right of set-off or recoupment or right to obtain a Lien, pursuant to the terms of this Accounts Agreement. The Accounts Bank hereby agrees to comply with any and all written instructions originated by the Trustee directing the disbursement, deposit and/or transfer of any funds and all other property held in the Project Accounts without any further consent of the Company or any other Person, and to comply with any and all written instructions originated by the Company directing the disbursement, deposit and/or transfer of any funds and all other property held in the Project Accounts subject to, and in accordance with, the terms of this Accounts Agreement. Section 2.03 Representations, Warranties and Covenants of Accounts Bank. The Accounts Bank hereby represents, warrants, covenants and agrees with the Trustee, for the benefit of the Bondholders and the Company as follows: (a) it is a securities intermediary on the date hereof and shall act as such in maintaining the Project Accounts and all of the Account Collateral (including all securities and other financial assets or security entitlements deposited in or credited to the Project Accounts) from time to time transferred, deposited in or credited to or maintained in the Project Accounts; (b) it is the bank with which each Project Account is maintained and the securities intermediary with respect to the financial assets held in the Project Accounts. In this regard, (i) if the Accounts Bank has knowledge that an issuer of any financial asset is required to make a payment or distribution in respect of such financial asset, the Accounts Bank shall have fulfilled its duty under applicable Law to take action to obtain such payment or distribution if (A) it credits such payment or distribution to the Project Accounts in accordance with this Accounts Agreement if such payment or distribution is made or (B) it notifies the Company and the Trustee that such payment or distribution has not been made, and (ii) if the Accounts Bank is required by applicable Law or this Accounts Agreement to credit to any Project Account any financial asset purported to be transferred or credited to the Accounts Bank pursuant to applicable Law, the Accounts Bank shall have fulfilled its duty to so credit any Project Account if it credits as a security entitlement to the applicable party whatever rights the Accounts Bank purportedly has in the financial asset transferred or credited to the Accounts Bank and the Accounts Bank shall have no duty to ensure that applicable Law has been complied with in respect of the transfer of the financial asset or to create a security interest in or Lien on any financial asset purported to be transferred or credited to the Accounts Bank and subsequently credited to any Project Account; 11 (c) it shall promptly perform all duties imposed upon a securities intermediary and a bank under the UCC, other applicable Law and this Accounts Agreement; (d) the Trustee, for the benefit of the Bondholders and no other Person, is the Accounts Bank's customer with respect to the Project Accounts, and the Company has consented to the Trustee, on behalf and for the benefit of the Bondholders, being deemed the customer hereunder; (e) the Securities Intermediary's jurisdiction, for purposes of this Accounts Agreement and Article 8 of the UCC, is and shall continue to be the State of[Minnesota], and the bank's jurisdiction of the Accounts Bank, for purposes of this Accounts Agreement and Section 9-304(b)(1) of the UCC, is and shall continue to be the State of Minnesota; (f) it has established and maintains the Project Accounts as set forth in Section 3.01 (Project Accounts—Establishment of Project Accounts); (g) each Project Account is and will be maintained as a securities account or, as set forth in Section 2.04 (Appointment; Grant of Security Interest Project Accounts as Deposit Account), a deposit account; (h) all financial assets acquired by or delivered to the Accounts Bank shall be held by the Accounts Bank and credited by book entry to the relevant Project Account or otherwise accepted by the Accounts Bank for credit to the relevant Project Account. Any financial asset so credited or accepted for credit to the relevant Project Account shall be registered in the name of, payable to, or to the order of, or endorsed to the Accounts Bank or in blank and in no case will any financial asset credited to any Project Account or held by the Accounts Bank for credit to any Project Account be registered in the name of, payable to, to the order of, or endorsed to, the Company, except to the extent that such financial asset has been subsequently endorsed by the Company to the Accounts Bank or in blank; (i) each item of property (including any cash, security, general intangible, document, instrument or obligation, share, participation, interest or other property whatsoever) deposited in or credited to any Project Account shall be treated as a financial asset under and for the purposes of Article 8 of the UCC, including Section 8-102(a)(9)(iii) thereof. Notwithstanding any provision herein to the contrary, any property contained in the Project Accounts that is not deemed to be a financial asset under applicable Law, to the extent permitted by applicable Law, will be deemed to be deposited in a deposit account and subject to Section 2.04 (Appointment; Grant of Security Interest—Project Accounts as Deposit Account); (j) the Trustee, for the benefit of the Bondholders, is the entitlement holder in any security entitlements with respect to any financial assets deposited in or credited to the Project Accounts, and the Trustee may issue entitlement orders with respect thereto; (k) if at any time it receives an entitlement order or any other order from the Trustee directing the transfer, redemption or liquidation of any financial asset carried in the Project Accounts or any instruction originated by the Trustee directing the disbursement, deposit and/or transfer of any funds or other property held in the Project Accounts, the Accounts Bank shall comply with such entitlement order, instruction or other order without further consent by the 12 Company or any other Person. The Company hereby agrees that the Trustee, on behalf of and for the benefit of the Bondholders, shall have control of the security entitlements carried in the Project Accounts and of the financial assets carried in the Project Accounts, and the Company hereby disclaims any entitlement to claim control of such security entitlements or financial assets; (1) all property delivered to the Accounts Bank pursuant to this Accounts Agreement or the other Bond Documents will be promptly deposited in or credited to a Project Account by an appropriate entry in its records in accordance with this Accounts Agreement; (m) the Accounts Bank shall not change the name or account number of any Project Account unless it obtains the prior written consent of the Trustee and provides prior written notice to the Company; (n) except for the claims and interest of (i) the Trustee, for the benefit of the Bondholders, and (ii)the Company in the Project Accounts, the Accounts Bank does not know of and has not received written notice of any right or claim (including any adverse claim) to or interest in the Project Accounts or any Account Collateral (including, without limitation, funds and financial assets) deposited in or credited to the Project Accounts by any Person. If any Person (other than the Trustee, for the benefit of the Bondholders) delivers a written assertion to the Accounts Bank of any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Project Account or in any financial asset or other property deposited therein or credited thereto,the Accounts Bank will promptly notify the Trustee and the Company in writing thereof; and (o) the Accounts Bank has not entered into and will not enter into any agreement with respect to the Project Accounts or any financial assets or other property deposited in or credited to any Project Account other than this Accounts Agreement, as may be amended from time to time. The Accounts Bank has not entered into and will not enter into any agreement with the Company or any other Person purporting to limit or condition the obligation of the Accounts Bank to comply with entitlement orders or any other order originated by the Trustee in accordance with this Accounts Agreement. Section 2.04 Project Accounts as Deposit Account. (a) To the extent that, notwithstanding the provisions of this Accounts Agreement, the Project Accounts are not considered securities accounts under applicable Law, the Project Accounts shall be deemed to be deposit accounts in respect of any property deposited in or credited to the Project Accounts that is not deemed to be a financial asset under applicable Law. Such deposit accounts and such property shall be maintained with the Accounts Bank acting not as a securities intermediary,but as a bank. (b) The Trustee, on behalf of the Bondholders, shall be deemed the sole customer of the Accounts Bank for purposes of the Project Accounts and, as such, shall be entitled to all of the rights that customers of banks have under applicable Law with respect to deposit accounts, including the right to withdraw funds from, or close, the Project Accounts, and the Company hereby consents to the Trustee being deemed the customer hereunder. 13 (c) The parties hereto agree that, to the extent that the Project Accounts are not considered "securities accounts" (within the meaning of Section 8-501(a) of the UCC), the Project Accounts shall be deemed to be "deposit accounts" (as defined in Section 9-102(a)(29) of the UCC) to the extent a security interest can be granted and perfected under the UCC in the Project Accounts as deposit accounts, which the Company shall maintain with the Accounts Bank acting not as Securities Intermediary but as a "bank" (within the meaning of Section 9- 102(a)(8) of the UCC). Section 2.05 Grant of First Priority Security Interests. (a) As security for the prompt and complete payment when due (whether at stated maturity, by acceleration or otherwise) of any and all of the Obligations and the due performance and compliance by the Company with all of the terms, conditions, and agreements to be performed and complied with by it under and pursuant to the terms of the Indenture, the Lease Agreement and the other Bond Documents, the Company hereby acknowledges and confirms the pledge, collateral assignment, hypothecation, and granting of a priority security interest to the Trustee, for the benefit of the Bondholders in, all of its right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by the Company, wherever located, and whether now or hereafter existing or arising(collectively,the "Account Collateral"): (i) each of the Project Accounts (and any subaccounts created therein), including all funds, Cash Equivalents, securities, financial assets or other property held in, required to be held in or credited to any of the Project Accounts or otherwise in possession or control of the Accounts Bank pursuant to this Accounts Agreement, and all interest, dividends and other income derived therefrom; (ii) All statements, certificates, instruments and investment property representing or evidencing any property described in clause (i) above held in, required to be held in or credited to any of the Project Accounts or otherwise in possession or control of the Accounts Bank pursuant to this Accounts Agreement; and (iii) To the extent not included in the foregoing, all proceeds, products and accessions of and to any and all of the foregoing, including whatever is received upon any collection, exchange, sale or other disposition of any of the foregoing and any property into which any of the foregoing is converted, whether cash or non-cash proceeds, and any and all other amounts paid or payable under or in connection with any of the foregoing and all security entitlements of the Company in any and all of the foregoing. Section 2.06 Control and Perfection of Account Collateral. (a) The Company specifically acknowledges and agrees that (i) (A) each Project Account pledged hereunder shall be maintained so that the Trustee, on behalf and for the benefit of the Bondholders, has control of such Project Account in the manner specified in Section 9-104 of the UCC, (B) all Cash Equivalents pledged hereunder shall be maintained so that the Trustee, on behalf and for the benefit of the Bondholders, has control of such Cash Equivalents in the manner specified in Section 9-106 of the UCC, and (C) all financial assets held in the Project 14 Accounts and pledged hereunder shall be maintained so that the Trustee, on behalf and for the benefit of the Lenders, has control of such financial assets in the manner specified in Section 8- 106 of the UCC. (b) The Company shall give, execute, deliver, file, record, re-record, authenticate, authorize or obtain all such UCC financing statements as may be necessary to perfect and maintain the security interest granted under this Accounts Agreement. (c) Until the Security Discharge Date, the Company shall not have any rights against or to monies held in the Project Accounts, except the right to receive or make requisitions of funds deposited in or credited to the Project Accounts as permitted by this Accounts Agreement. Section 2.07 Subordination. (a) The Accounts Bank hereby acknowledges the first-priority security interest granted hereby to the Trustee, for the benefit of the Bondholders. In the event that the Accounts Bank has or subsequently obtains by agreement, operation of Law or otherwise a right of recoupment or set-off or any Lien in any of the Project Accounts, Account Collateral or any financial asset or other property deposited therein or credited thereto or any security entitlement related thereto, the Accounts Bank hereby agrees that such right of recoupment or set-off and/or any such Lien shall (except to the extent provided in clause (c) of this Section 2.07) be subordinate to the security interest of the Trustee, on behalf and for the benefit of the Bondholders. The Accounts Bank agrees that it shall not (except to the extent provided in clause (c) of this Section 2.07) assert or enforce any such right of recoupment or set-off and/or any Lien until the Notice of Security Discharge Date. (b) Until the Notice of Security Discharge Date, the financial assets and other items deposited in or credited to the Project Accounts and all other Account Collateral will not (except to the extent provided in clause (c) of this Section 2.07) be subject to deduction, set-off, banker's lien or any other right in favor of any Person other than the Trustee, on behalf and for the benefit of the Bondholders. (c) The Project Accounts,Account Collateral or any financial asset or other property deposited therein or credited thereto shall be subject to deduction, set-off, banker's lien and recoupment to the extent of returned items and chargebacks either for uncollected checks or other items of payment and transfers previously credited to one or more Project Accounts, and each of the Trustee, on behalf of and for the benefit of the Bondholders, and the Company hereby expressly authorize the Accounts Bank to debit the relevant Project Account(s) for such amounts. Section 2.08 Agreement to Hold In Trust. All payments received directly by the Company that are required to be deposited into the Project Accounts in accordance with the terms of this Accounts Agreement, the Indenture, the Lease Agreement, or any other Bond Document (including any amount received by the Company pursuant to, or in connection with, any Project Contract or any sale of Products) shall be held by the Company in trust for the Trustee, on behalf and for the benefit of the Bondholders, shall be segregated from other funds of the Company and shall, forthwith upon receipt by the Company, be turned over to the Trustee or its designee in the same form as received by the Company (duly endorsed by the Company to the 15 Trustee or the Accounts Bank, if requested) for deposit and disbursement in accordance with this Accounts Agreement. Section 2.09 Project Accounts Included in Trust Estate. The Company acknowledges that this Accounts Agreement has been entered into by the Company and the Trustee in order to facilitate the execution of a nonrecourse financing of the Project through the issuance and sale of the Series 2014 Bonds and any Additional Bonds under the Indenture. The Trustee and the Company further acknowledge that that the pledge, collateral assignment, hypothecation, and granting of a priority security interest to the Trustee by the Company under Section 2.05 (Appointment; Grant of Security Interest Grant of First Priority Security Interest) in the Account Collateral is made as further security for the Series 2014 Bonds and any Additional Bonds authorized to be issued under the Indenture and that all such Account Collateral is hereby designated as and made a part Trust Estate created under the Indenture. (END OF ARTICLE II) 16 ARTICLE III PROJECT ACCOUNTS Section 3.01 Establishment of Project Accounts. (a) On or prior to the Closing Date, the Accounts Bank shall establish and maintain, in the name of the Trustee and on the books and records of the Accounts Bank's offices located in [ Minneapolis, Minnesota ], the accounts set forth below in clauses (iii), (iv), (v), (vii), (viii), (ix) and (x), and upon the receipt of Net Proceeds or proceeds of Additional Bonds shall, establish and maintain, in addition to the aforesaid accounts, the accounts set forth below in clauses (i) and(ii): (i) an account entitled "Construction Account" (the "Construction Account"), which consists of four (4) separate, special segregated, Dollar-denominated subaccounts entitled(A) the "General Proceeds Subaccount,"Account No. (the "General Proceeds Subaccount"), (B) the "Bond Proceeds Subaccount," Account No. (the "Bond Proceeds Subaccount"), (C) the "Capitalized Interest Subaccount,"Account No. (the "Capitalized Interest Subaccount"), and (D) the "Costs of Issuance Subaccount," Account No. (the "Costs of Issuance Subaccount"); and (ii) a special, segregated Dollar-denominated account entitled "Liquidated Damages Account,"Account No. (the "Liquidated Damages Account"); and (iii) a special, segregated, Dollar-denominated account entitled "Revenue Account,"Account No. (the "Revenue Account"); and (iv) special, segregated, Dollar-denominated account entitled "Operating Account,"Account No. (the "Operating Account"); and (v) a special, segregated, Dollar-denominated account entitled "Operating Reserve Account,"Account No. (the "Operating Reserve Account"); and (vi) [Reserved] (vii) an account entitled "Debt Service Reserve Account„ Account No. (the "Debt Service Reserve Account"); and (viii) a special, segregated, Dollar-denominated account entitled "Covenant Compliance Holding Account," Account No. (the "Covenant Compliance Holding Account"); and 17 (ix) a special, segregated, Dollar-denominated account entitled "Insurance and Condemnation Proceeds Account," Account No. (the "Insurance and Condemnation Proceeds Account"); and (x) a special, segregated, Dollar-denominated account entitled "Acquisition Account,"Account No. (the "Acquisition Account") which consists of three (3) separate, special segregated, Dollar-denominated subaccounts entitled (A) the Acquisition Price Subaccount," Account No. (the "Acquisition Price Subaccount"), (B) the "Project Cost Subaccount,"Account No. (the "Project Cost Subaccount") and (C) the "Costs of Issuance Subaccount," Account No. (the "Costs of Issuance Subaccount"). Section 3.02 Deposits into and Withdrawals from Project Accounts. (a) Amounts shall be deposited into and withdrawn from the Project Accounts in strict accordance with this Article III. (b) The Accounts Bank will only be required to transfer funds hereunder on a "same day" basis if it has received written notice of such proposed transfer, together with all certificates, notices, directions, approvals from the Trustee and/or the Company, as applicable, and other documents required under this Accounts Agreement to be delivered to the Accounts Bank relating thereto, not later than 11:00 a.m. New York City time on the Business Day of such proposed transfer and, if such notice or any such related document is received by the Accounts Bank after such time, such transfer will be undertaken on the next Business Day succeeding the date of receipt by the Accounts Bank of all such documentation. (c) If any transfer, withdrawal, deposit, investment or payment of any funds by the Accounts Bank or any other action to be taken by the Accounts Bank under this Accounts Agreement is to be made or taken on a day other than a Business Day, such transfer, withdrawal, deposit, investment, payment or other action will be made or taken on the next succeeding Business Day. (d) (i) Any instruction, direction, notice, certificate, request or requisition given to the Accounts Bank by the Company with respect to the transfer, withdrawal, deposit, investment or payment of any funds under this Accounts Agreement or with respect to any other obligations to be performed by the Accounts Bank under this Accounts Agreement (A) must be in writing and signed by an Authorized Company Representative, (B) in referencing any of the Project Accounts, must refer to the specific Project Account name and number, (C) shall constitute a representation by the Company that all conditions set forth in this Accounts Agreement for such withdrawal have been satisfied, whether or not those conditions are explicitly stated to be so satisfied and (D) shall be copied to the Trustee. (ii) Any instruction, direction, notice, certificate, request or requisition given to the Accounts Bank by the Trustee with respect to the transfer, withdrawal, deposit investment or payment of any funds under this Accounts Agreement or with respect to any other obligations to be performed by the Accounts Bank under this Accounts 18 Agreement (i) must be in writing, and (ii) in referencing any of the Project Accounts, must refer to the specific Project Account name and number. (iii) Notwithstanding anything contained in this Accounts Agreement or any other Bond Document to the contrary, the Accounts Bank may rely and shall be protected in acting or refraining from acting upon any instruction, direction, notice, certificate, request or requisition of the Company or the Trustee. (e) None of the Project Accounts shall go into overdraft, and the Accounts Bank shall not comply with any request or direction to the extent that it would cause any of the Project Accounts to do so. (f) The Company hereby acknowledges that it has irrevocably instructed each Project Party, and agrees that it shall so instruct each future Project Party and each payor in connection with any sale of Product, to make all payments due and payable to the Company under any Necessary Project Contract or Additional Project Contract and in connection with any such sale of Product directly to the Accounts Bank for deposit in, or to be credited in the manner set forth in this Article III. The Company further agrees that it shall irrevocably instruct each other Person from whom the Company is entitled to receive Cash Flow or Net Proceeds to make all payments due and payable to the Company from such Person directly to the Accounts Bank for deposit, and to be credited, in the manner set forth in this Article III. (g) The Accounts Bank shall not be charged with knowledge of any Notice of Suspension, Default or Event of Default unless the Accounts Bank has received such Notice of Suspension or other written notice of such Default or Event of Default from the Trustee or an Authorized Company Representative. The Accounts Bank shall not be charged with the knowledge that the Completion Date has occurred unless it has received written notice thereof from the Trustee or from the Company if countersigned by the Trustee. (h) The Accounts Bank shall not be charged with the knowledge that any transfer or withdrawal from any Project Account would result in the occurrence of a Default or Event of Default, unless it has received written notice thereof from the Trustee or an Authorized Company Representative. (i) Notwithstanding anything contained in this Accounts Agreement or any other Bond Document to the contrary, the Accounts Bank shall have no obligation to (i) make any payment, transfer or withdrawal from any Project Account until it has received written direction to make such payment, transfer or withdrawal from the Trustee or the Company, if this Accounts Agreement explicitly provides that any such direction may be made by the Company, or (ii) determine whether any payment, transfer or withdrawal from any Project Account made in accordance with any written direction from the Trustee or the Company, if this Accounts Agreement explicitly provides that any such direction may be made by the Company, complies with the terms of this Accounts Agreement. The Accounts Bank shall have no liability for, nor any responsibility or obligation to confirm, the use or application by the Company, the Trustee or any other recipient of amounts withdrawn or transferred from any Project Account. 19 (j) Notwithstanding any other provision of this Accounts Agreement or any other Bond Document (but without limiting Section 3.02(g), (h) and (i) (Deposits into and Withdrawals from Project Accounts), without the express prior written consent of the Trustee, no amount may be withdrawn from any Project Account if a Default or Event of Default would occur as a result of such withdrawal. (k) On the date of each withdrawal by the Accounts Bank from a Project Account, the Company shall be deemed to represent and warrant that no Notice of Suspension is in effect and that no Default or Event of Default would occur as a result of such withdrawal, unless the Trustee has previously consented in writing to such withdrawal, notwithstanding that a Notice of Suspension is in effect or that a Default or Event of Default would occur as a result of such withdrawal. (1) Upon the Security Discharge Date, and after the right, title and interest of the Trustee in and to the "trust estate" under the Indenture and all covenants, agreements and other obligations of the Company to the Trustee for the benefit of the Bondholders shall have ceased, terminated and become void and shall have been satisfied and discharged in accordance with the Indenture, as confirmed in writing to the Accounts Bank by the Trustee, and all fees, expenses and other amounts payable to the Accounts Bank, the Securities Intermediary and the Trustee shall have been paid, as confirmed in writing to the Accounts Bank by such Persons, any moneys remaining in the Project Accounts of this Accounts Agreement shall be paid to the Company upon written request of an Authorized Company Representative. (END OF ARTICLE III) 20 ARTICLE IV CONSTRUCTION ACCOUNT Section 4.01 Construction Account. (a) Payments into the Construction Account. Pursuant to Section 3.01(a)(i) (Project Accounts—Establishment of Project Accounts), the Accounts Bank will, at the time of receipt of Net Proceeds or proceeds of Additional Bonds, establish within the Construction Account four (4) separate subaccounts known as (w) the General Proceeds Subaccount, (x) the Bond Proceeds Subaccount, (y) the Capitalized Interest Subaccount and (z) the Costs of Issuance Subaccount, which shall be funded with the amounts set forth in (i) through (v) below. Upon receipt of Net Proceeds or the proceeds of Additional Bonds, as directed and set forth in an amendment to or supplement to this Accounts Agreement as provided in Section 20.02 (Amendments, Etc.), with respect to clauses (i) and (ii) below, and on any date with respect to clauses (iii) and (v) below, until and including the Completion Date (excepting in the case of a payment of Delay Liquidated Damages and Net Proceeds in clauses (iv) and (v) below which may occur on any date before or after the Completion Date),the following amounts shall be paid into the Construction Account: (i) Any Required Equity Contributions which shall be allocated and deposited into the General Proceeds Subaccount and the Costs of Issuance Subaccount, as necessary; (ii) The proceeds of the Additional Bonds which shall be deposited into the Bond Proceeds Subaccount, the Capitalized Interest Subaccount and the Costs of Issuance Subaccount, as necessary; (iii) proceeds of any performance bond or payment bond all of which shall be deposited into the General Proceeds Subaccount, unless the company providing such payment or performance bonds shall, in the opinion of Bond Counsel, shall be subrogated to the rights of the Borrower to moneys on deposit in the Bond Proceeds Subaccount as a result of such payment under such bond, in which case such proceeds shall be deposited into the Bond Proceeds Subaccount; (iv) damages payable, including Delay Liquidated Damages, if any, under the Construction Contract all of which shall be deposited into the General Proceeds Subaccount; and (v) Net Proceeds and others funds of the Company under Section 12.01(b)(iii) (Insurance and Condemnation Proceeds Account) all of which shall be deposited into the General Proceeds Subaccount. (b) Withdrawals from the Construction Account Prior to the Completion Date. (i) 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 by this Section 4.01(b)(i) Construction Account—Withdrawals from the Construction Account Prior to the Completion Date), prior to the Completion Date, on each Lease Payment Date during any period in which the Lease Interest Amount shall have been capitalized, the Trustee 21 shall direct the Accounts Bank to transfer from the Capitalized Interest Subaccount to the Revenue Account for application at priority fourth of Section 6.01(c)(v) (Revenue Account—Withdrawals from the Revenue Account) an amount sufficient to pay the Lease Interest Amount coming due on the next succeeding Lease Payment Date. (i) 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 by this Section 4.01(b)(ii) Construction Account—Withdrawals from the Construction Account Prior to the Completion Date), if, on any Lease Payment Date occurring prior to the Completion Date, the amount on deposit in the Capitalized Interest Subaccount is not sufficient to pay the Lease Interest Amount coming due in order to pay interest on the related series of Additional Bonds on such Lease Payment Date, the Trustee shall direct the Accounts Bank to first, transfer from the General Proceeds Subaccount of the Construction Account, second, if needed for any such Lease Payment Date, transfer from the Bond Proceeds Subaccount of the Construction Account, and third, if needed for any such Lease Payment Date, transfer from the Debt Service Reserve Account to the Revenue Account for application at priority fourth of Section 6.01(c)(v) (Revenue Account— Withdrawals from the Revenue Account) an amount sufficient to pay the Lease Interest Amount coming due on the next succeeding Lease Payment Date. (ii) 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 by this Section 4.01(b)(iii) Construction Account—Withdrawals from the Construction Account Prior to the Completion Date), prior to the Completion Date (excepting in the case of a payment of Delay Liquidated Damages or Net Proceeds in clauses (iv) or (v) of Section 4.01(a) (Construction Account—Payments into the Construction Account) which may occur on any date before or after the Completion Date), the Company may direct the transfer or withdrawal of funds in the Construction Account to pay Project Costs that will become due and payable during the calendar month immediately succeeding the month, in each case strictly in accordance with the Construction Budget, and the terms of the Lease Agreement, by delivering a Construction Advance Funding Notice to the Accounts Bank at least two (2) Business Days in advance of the requested withdrawal date (which shall have been previously provided to and approved by the Trustee and the Independent Engineer), but no more frequently than once per calendar month (unless otherwise consented to by the Trustee), which shall be for application strictly in accordance with the relevant Construction Advance Funding Notice. All payments from the Construction Account shall be made by the Accounts Bank pursuant to instructions set forth in the relevant Construction Advance Funding Notice directly to the Company or such other payees as are specified in the applicable Construction Advance Funding Notice or to the Revenue Account as specified in the applicable Construction Advance Funding Notice in accordance with Section 6.01(a) (Revenue Account—Payments into the Revenue Account). In the event that the Company fails to deliver such a Construction Advance Funding Notice, the Trustee is hereby authorized to direct, 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. The Company may direct the transfer and withdrawal of amounts on deposit in the Construction Account, as instructed by an Authorized Company Representative, in a Construction Advance Funding Notice. In connection with any 22 Construction Advance Funding Notice, the Company shall direct the transfer and withdrawal of amounts on deposit in the Construction Account for the payment of Project Costs in the following priority: (A) from amounts available in the General Proceeds Subaccount; and (B) from amounts available in the Bond Proceeds Subaccount, but only to the extent the Company shall certify in the Construction Advance Funding Notice that such amounts shall be used solely for payment of Qualified Project Costs. (c) Withdrawals from the Construction Account on or after the Completion Date. (i) 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 by this Section 4.01(c) (Construction Account—Withdrawals from the Construction Account on the Completion Date) on or after the Completion Date, the Company may direct the transfer or withdrawal of all amounts on deposit in or standing to the credit of the Construction Account in accordance with the Completion Date Funding Notice accompanied by all information requested therein and herein and such amounts shall be distributed in the following order of priority and amounts: (A) first, for payment by the Company of any remaining Project Costs under the Construction Budget that shall remain then due and payable; (B) second, for deposit into the Operating Account in the amount of the remaining Project Costs (such as required retainage and other amounts which in the judgment of the Independent Engineer should not yet be disbursed for Project Costs) which are expected to be payable under the Construction Budget to be held therein until due and payable; (C) third, for deposit into the Debt Service Reserve Account in an amount sufficient to bring the balance therein to the Debt Service Reserve Requirement; (D) fourth, excepting for amounts on deposit in the Construction Account constituting proceeds of the Series 2014 Bonds or investment earnings thereon, for deposit into the Operating Expense Reserve Account in an amount sufficient to bring the balance therein to the Operating Expense Reserve Requirement; (E) fifth, excepting for amounts on deposit in the Construction Account constituting proceeds of the Series 2014 Bonds or investment earnings thereon, to the Revenue Account; provided that any amounts remaining in the Construction Account constituting proceeds of the Series 2014 Bonds or investment earnings thereon after the applications thereof in priorities first through fifth of this Section 4.01(c) 23 (Construction Account—Withdrawals from the Construction Account on or after the Completion Date) shall be applied as may be approved by the Company, subject to an opinion of Bond Counsel advising that such application of proceeds of the Additional Bonds, if Tax Exempt, shall not adversely affect the Tax- Exempt status of such Additional Bonds. (d) Submission by the Company of Funding Notice to Trustee. The Company shall submit one electronic copy of such Construction Advance Funding Notice or Completion Date Funding Notice, as applicable, to the Trustee. The obligation of the Trustee to authorize a release of funds from the Construction Account of the Accounts Agreement shall be subject to the Company's satisfaction of the conditions precedent to such a release of funds contained in the Lease Agreement and in this Accounts Agreement. (END OF ARTICLE IV) 24 ARTICLE V LIQUIDATED DAMAGES ACCOUNT Section 5.01 Liquidated Damages Account. (a) Payments into the Liquidated Damages Account. Pursuant to Section 3.01(a)(ii) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Liquidated Damages Account. The Company shall cause all Delay Liquidated Damages received on or prior to the Completion Date to be paid into the Liquidated Damages Account. (b) Withdrawals from the Liquidated Damages Account; Payment of Debt Service or Fixed Costs. Until (but not including) the Completion Date, unless a Notice of Suspension is in effect or a Default or an Event of Default would occur after giving effect to any application of funds contemplated by this Section 5.01 (Liquidated Damages Account—Withdrawals from the Liquidated Damages Account), the Company may, from time to time, submit a Liquidated Damages Withdrawal Certificate to the Accounts Bank to direct the transfer or withdrawal of funds in the Liquidated Damages Account to pay directly any amounts due and payable for (i) Lease Payments by transfer of such amounts to the Bond Fund or (ii) fixed costs or other amounts that are due and owing and approved by the Trustee and the Independent Engineer, including Project Costs, such approval not to be unreasonably withheld. In the event that the Company fails to deliver such a Liquidated Damages Withdrawal Certificate, the Trustee is hereby authorized to direct, in writing, the Accounts Bank (with a copy to the Company) to transfer or withdraw the amounts necessary to pay Lease Payments, fixed costs or other amounts that are due and owing, including Project Costs. (c) Completion Date. On the Completion Date, the Accounts Bank shall, upon written direction from the Company or the Trustee, transfer any funds on deposit in or standing to the credit of the Liquidated Damages Account to the Revenue Account. (END OF ARTICLE V) 25 ARTICLE VI REVENUE ACCOUNT Section 6.01 Revenue Account. (a) Payments into the Revenue Account. Pursuant to Section 3.01(a)(iii) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Revenue Account. The Company shall cause the following amounts to be paid into the Revenue Account: (i) all Cash Flow; (ii) any other income received by or on behalf of the Company that is not required to be deposited in or credited to another Project Account, or applied directly to the Obligations, in accordance with this Accounts Agreement; (iii) damages payable, including Delay Liquidated Damages, under the Construction Contract which are received after the Completion Date; (iv) amounts transferred to the Revenue Account, (A) prior to the Completion Date, pursuant to Section 4.01(b) (Construction Account—Withdrawals from the Construction Account Prior to the Completion Date) and (B) on and after the Completion Date, pursuant to (1) Section 4.01(c) (Construction Account—Withdrawals from the Construction Account on or after the Completion Date), (2) Section 5.01(c) (Liquidated Damages Account), (3) Section 8.01(a) (Maintenance Capital Reserve Account), and (4) Section 10.03 (Debt Service Reserve Account). (b) [RESERVED] (c) Withdrawals from the Revenue Account. Commencing on (and including) the Completion Date, 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 by this Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account), upon receipt of a Revenue Account Withdrawal Certificate duly executed by an Authorized Company Representative and the Trustee (unless such a Certificate shall not be required as stated below), the Accounts Bank shall, in accordance with the directions set forth therein, cause funds held in the Revenue Account to be withdrawn or transferred to pay the following amounts on the dates and at the priorities indicated below: (i) first, on each Monthly Date, or more frequently if requested by the Company (but in no event more frequently than weekly), to the Operating Account, the amount certified by the Company in a Revenue Account Withdrawal Certificate as required to pay Operation and Maintenance Expenses that, in each such case, are or will become due and payable during the immediately succeeding monthly period; provided, that the aggregate amount of withdrawals pursuant to this priority first for all calendar months in such Fiscal Year (or, if the Closing Date occurred during such Fiscal Year, for all calendar months since the Closing Date), including amounts proposed to be drawn on such date for the immediately succeeding monthly period, does not exceed the applicable Permitted Budgeted Operating Expenses Level as of the close of the immediately 26 succeeding calendar month, as certified by the Company in such Revenue Account Withdrawal Certificate; (ii) second, on each Monthly Date, or more frequently if requested by the Company (but in no event more frequently than weekly), to the Operating Account, the amount certified by the Company in a Revenue Account Withdrawal Certificate as required to pay Maintenance Capital Expenses that, in each such case, are or will become due and payable during the immediately succeeding monthly period; provided, that the aggregate amount of withdrawals pursuant to this priority second for all calendar months in such Fiscal Year (or, if the Closing Date occurred during such Fiscal Year, for all calendar months since the Closing Date), including amounts proposed to be drawn on such date for the immediately succeeding monthly period, does not exceed Two Hundred Fifty Thousand Dollars ($250,000), as certified by the Company in such Revenue Account Withdrawal Certificate; (iii) third, on any date when due and payable, to the Trustee any Rebate Amount (as defined in the Tax Agreement) for deposit in the Rebate Fund created under the Indenture, in the amount certified by the Company in a Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the relevant party as necessary to pay any Rebate Amount and then due and payable under the Bond Documents; (iv) fourth, on any date when due and payable, to the Operating Account any Administration Expenses constituting Additional Rent, in the amount certified by the Company in a Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee to pay any Administration Expenses then due and payable under the Bond Documents; (v) fifth, on any Lease Payment Date, to the Trustee for deposit to the Bond Fund created under the Indenture in the amount certified by the Company in a Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee equivalent to (A) the Lease Interest Amount and (B) with respect to any prior Lease Payment Dates, an amount equal to the excess of (x) the Lease Interest Amount due on all such prior Lease Payment Dates over (y) the amount actually deposited on such Lease Payment Dates with the Trustee to pay such Lease Interest Amount on the next succeeding Interest Payment Date; (vi) sixth, on any Lease Payment Date, to the Trustee for deposit to the Bond Fund created under the Indenture in the amount certified by the Company in a Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee equivalent to, (A) the Lease Principal Amount and (B) with respect to any prior Lease Payment Dates, an amount equal to the excess of (x) the Lease Principal Amount due on all such prior Lease Payment Dates over (y) the amount actually deposited on such Lease Payment Dates with the Trustee to pay such Lease Principal Amount on the next succeeding Principal Payment Date; 27 (vii) seventh, on each Lease Payment Date, to the Debt Service Reserve Account in the amount certified by the Company in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee as being equal to the difference between (1) the Debt Service Reserve Requirement and (2) the funds on deposit in or standing to the credit of the Debt Service Reserve Account on such Lease Payment Date; (viii) eighth, on each Monthly Date, if then required, to the Operating Expense Reserve Account, in the amount certified by the Company in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee as being equal to 1/24th of the difference between (A) the Operating Expense Reserve Requirement and (B) the funds on deposit in or standing to the credit of the Operating Reserve Account on such Monthly Date, such that the full funding of such Account shall be made over a 24 month period in equal monthly installments; provided, that (x) once the Operating Reserve Account shall have been fully funded over such initial 24 month period or(y) in the event of a drawing on such Account during the initial 24 month funding period, any withdrawals which shall cause the balance in the Operating Expense Reserve Account to be less Operating Expense Reserve Requirement in the case of clause (x) or the accreted value of such payments during the initial 24 month funding period shall be less than the required accreted amount as of such Monthly Date in the case of cause (y), the Operating Expense Reserve Account shall be replenished in the amount certified by the Company in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee as equal to 1/4t` of difference between(A)the Operating Expense Reserve Requirement and (B)the funds on deposit in or standing to the credit of the Operating Expense Reserve Account on such Monthly Date, such that any deficiency shall be fully funded over a 4 month period in equal monthly installments; (ix) ninth, on each Lease Payment Date, to the Trustee for deposit to the Bond Fund created under the Indenture in the amount certified by the Company in such Revenue Account Withdrawal Certificate or otherwise instructed in writing to the Accounts Bank by the Trustee equivalent to any prepayment of Basic Rent necessary to pay any unscheduled voluntary, optional or mandatory prepayments of principal of the Series 2014 Bonds or any Additional Bonds; provided, that the Company shall not submit a Revenue Account Withdrawal Certificate unless sufficient funds for such unscheduled voluntary, optional mandatory prepayment are on deposit or shall have been deposited in one of the Project Accounts and such voluntary, optional or mandatory prepayment shall not, in the reasonable judgment of the Trustee, impair the ability of the Company to make timely payments of Basic Rent and/or Additional Rent coming due on the next Lease Payment Date or other date, as applicable; (x) tenth, on any date, in an amount certified by the Company in such Revenue Account Withdrawal Certificate to the Persons or accounts specified in such Revenue Account Withdrawal Certificate (including, if required to be paid directly to any taxing authority, to such taxing authority), for payment of any Permitted Tax Distribution; 28 (xi) eleventh, on each Semi-Annual Date if the Debt Service Coverage Ratio as of such Semi-Annual Date is less than 1.25:1, to the Covenant Compliance Holding Account, as certified by the Company in such Revenue Account Withdrawal Certificate or instructed in writing to the Accounts Bank by the Trustee, all amounts on deposit in or standing to the credit of the Revenue Account after the transfer required pursuant to priority tenth; and (xii) twelfth, subject to the satisfaction of the conditions set forth in Section 2.6.16 (Negative Covenants-Restricted Payments) of the Lease Agreement, on, or within sixty(60) days following, each Semi-Annual Date, to the Company, as and in the amount certified by an Authorized Company Representative in a Restricted Payment Certificate. (END OF ARTICLE VI) 29 ARTICLE VII OPERATING ACCOUNT Section 7.01 Operating Account. (a) Payments into the Operating Account. Pursuant to Section 3.01(a)(iv) (Project Accounts—Establishment of Project Accounts) hereof, the Accounts Bank has established the Operating Account. Funds shall be deposited into the Operating Account pursuant to (i) Section 4.01(c)(i)(Construction Account—Withdrawals from the Construction Account on or after the Completion Date) hereof, (ii) priority first, second and fourth of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account) and (iii) Section 9.01(b) (Operating Expense Reserve Account—Withdrawals from the Operating Expense Reserve Account)hereof. (b) Withdrawals from the Operating Account. 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, and so long as adequate funds are then available in the Operating Account, the Company: (i) may, by delivery of an Operating Account Withdrawal Certificate to the Accounts Bank (with a copy to the Trustee), request the Accounts Bank to withdraw or transfer funds from the Operating Account from time to time as may be necessary to pay directly to any vendor or other creditor any amounts owed by the Company for (A) Project Costs which are payable under the Construction Budget, up to the amount transferred to the Operating Account pursuant to Section 4.01(c)(i)(Construction Account—Withdrawals from the Construction Account on or after the Completion Date) hereof, if any, (B) priority first of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account) hereof, (C) Maintenance Capital Expenses transferred to the Operating Account pursuant to priority second of Section 6.01(c) (Revenue Account— Withdrawals from the Revenue Account) hereof, and (D) Administration Expenses transferred to the Operating Account pursuant to priority fourth of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account)hereof; and (ii) may direct the transfer of funds from time to time to the Local Accounts, with respect to which a Blocked Account Agreement has been executed and is in full force and effect, by delivery of an Operating Account Withdrawal Certificate to the Accounts Bank; [provided, that the funds on deposit in and standing to the credit of all Local Accounts do not exceed, in the aggregate at any one time, [$1,000,000], as certified by the Company in an Operating Account Withdrawal Certificate.] (END OF ARTICLE VII) 30 ARTICLE VIII [RESERVED] (END OF ARTICLE VIII) 31 ARTICLE IX OPERATING EXPENSE RESERVE ACCOUNT Section 9.01 Operating Expense Reserve Account. (a) Payments into the Operating Expense Reserve Account. Pursuant to Section 3.01(a)(v) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Operating Expense Reserve Account. Funds shall be deposited into the Operating Expense Reserve Account pursuant to priority eighth of Section 6.01(c) (Revenue Account— Withdrawals from the Revenue Account), with the initial funding being made in 24 equal monthly deposits following the Closing Date until such time as such monthly deposits to the Operating Expense Reserve Account shall be in an amount equal to the Operating Expense Reserve Requirement. (b) Withdrawals from the Operating Expense Reserve Account. Unless a Notice of Suspension is in effect or an Event of Default would occur after giving effect to any application of funds contemplated hereby, and so long as adequate funds are then available in the Operating Expense Reserve Account, the Company may, by written instruction to the Accounts Bank (with a copy to the Trustee), withdraw or transfer funds from the Operating Expense Reserve Account from time to time as may be necessary to pay unforeseen and unbudgeted expenses of the Company attributable to the operation or maintenance of the Project, but only to the extent funds available therefor at priority first or second of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account) are not adequate to make payment of any such expenses, as certified by an Authorized Company Representative in an Operating Expense Reserve Account Withdrawal Certificate and approved by the Trustee (who may rely upon the Independent Engineer as to whether the amounts requested to be withdrawal are for unforeseen and unbudgeted expenses), by written instruction to the Accounts Bank (with a copy to the Trustee), directing the Accounts Bank to withdraw or transfer funds from the Operating Expense Reserve Account to the Operating Account as may be necessary to pay any amounts owed by the Company for any such unforeseen and unbudgeted expenses. (c) Insufficient Funds in Operating Expense Reserve Account. Following the initial funding of the Operating Expense Reserve Account as provided in Section 9.01(a) (Operating Expense Reserve Account—Payments into Operating Expense Reserve Account) or, in the event of a drawing on such Account during the initial 24 month funding period, the Accounts Bank shall promptly notify the Trustee if, at any time, the amount standing to the credit of the Operating Expense Reserve Account is less than the Operating Expense Reserve Requirement as of such Monthly Date, or the accreted value of such payments during the initial 24 month funding period shall be less than the required accreted amount as of such Monthly Date, as applicable. In the event the Accounts Banks shall have provided such notice to the Trustee (x) following the full funding of the Operating Reserve Account over such initial 24 month period or (y) in the event of a drawing on such Account during the initial 24 month funding period, any withdrawals which shall cause the balance in the Operating Expense Reserve Account to be less Operating Expense Reserve Requirement in the case of clause (x) or the accreted value of such payments during the initial 24 month funding period shall be less than the required amount as of such Monthly Date in the case of cause (y), the Accounts Bank shall notify the Trustee and the Company of the amount of such shortfall and such shortfall shall be eliminated by deposits by 32 the Accounts Bank of such needed amounts from priority eighth of Section 6.01(c) (Revenue Account— Withdrawals from the Revenue Account) in equal monthly installments to be made on each Monthly Date over a period of 4 months. The Trustee or the Accounts Bank, if they so elect, may seek the enforcement of such covenant in law or in equity. (d) Excess Amount in Operating Expense Reserve Account. If, on any Semi-Annual Date, the funds on deposit in or standing to the credit of the Operating Expense Reserve Account are in excess of the Operating Expense Reserve Requirement, unless a Notice of Suspension is in effect or a Default or Event of Default would occur after giving effect to such transfer, the Company may direct, by delivery of an Operating Expense Reserve Account Withdrawal Certificate to the Accounts Bank (with a copy to the Trustee), the transfer to the Revenue Account of an amount not to exceed the difference between (x) the aggregate total amount of all funds on deposit in or standing to the credit of the Operating Expense Reserve Account and (y) the Operating Expense Reserve Requirement, as certified by the Company and confirmed in writing by the Trustee in such Operating Expense Reserve Account Withdrawal Certificate. (END OF ARTICLE IX) 33 ARTICLE X DEBT SERVICE RESERVE ACCOUNT Section 10.01 Debt Service Reserve Account. (a) Payments into the Debt Service Reserve Account. Pursuant to Section 3.01(a)(vii) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Debt Service Reserve Account. Funds shall be deposited into the Debt Service Reserve Account as follows: (i) On the Closing Date, [One Million Six Hundred Thousand Dollars ($1,600,000)] representing a portion of the proceeds of the Series 2014 Bonds, shall be deposited into the Debt Service Reserve Account; and (ii) if at any time the amount on deposit in the Debt Service Reserve Account shall be less than the Debt Service Reserve Requirement an amount equal to the difference between (A) the Debt Service Reserve Requirement and (B) the funds on deposit in or standing to the credit of the Debt Service Reserve Account on such Monthly Date shall be transferred to the Debt Service Reserve Account pursuant to priority third of Section 4.01(c)(i)(C) (Construction Account—Withdrawals from the Construction Account on and after the Completion Date) and priority seventh of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account), such that any such deficiency shall be fully funded. (b) Withdrawals from the Debt Service Reserve Account. On any date when the amounts available at priorities fifth and sixth as set forth in Section 6.01(c) (Revenue Account— Withdrawals from the Revenue Account) are insufficient to pay Basic Rent then due and owing under the Lease on any Lease Payment Date, the Accounts Bank shall (upon written notification from the Company or the Trustee, as applicable, setting forth the amount of such shortfall), withdraw funds from the Debt Service Reserve Account for transfer to the Revenue Account, the amount of such shortfall of such Basic Rent then due and payable, which funds shall be applied by the Trustee in the order of priority set forth in priorities fifth and sixth in Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account). If such written notification shall come from the Company, it shall be certified by an Authorized Company Representative in a Debt Service Reserve Withdrawal Certificate, by written instruction to the Accounts Bank (with a copy to the Trustee), directing the Accounts Bank to withdraw or transfer funds from the Debt Service Reserve Account to the Revenue Account as may be necessary to pay any amounts owed by the Company for Basic Rent as aforesaid. (c) Insufficient Funds in Debt Service Reserve Account. The Accounts Bank shall promptly notify the Trustee if, at any time, there are insufficient funds standing to the credit of the Debt Service Reserve Account. If the amount in the Debt Service Reserve Account is less than the Debt Service Reserve Requirement, the Accounts Bank shall notify the Trustee and the Company of the amount of such shortfall and such shortfall shall be eliminated by deposits by the Accounts Bank of such needed amounts from priority third of Section 4.01(c)(i)(C) (Construction Account—Withdrawals from the Construction Account on and after the Completion Date) and seventh of Section 6.01(c) (Revenue Account—Withdrawals from the 34 Revenue Account) to replenish the Debt Service Reserve Account to the Debt Service Reserve Requirement or, in the event adequate funds shall not be available and the Debt Service Reserve Account shall not be so replenished to an amount equal to the Debt Service Reserve Requirement, by the Company's making of a deposit of funds to the Debt Service Reserve Account within ten (10) days after the date of such notice given in the amount needed to cause the balance of the Debt Service Reserve Account to equal the Debt Service Reserve Requirement. The Trustee or the Accounts Bank, if they so elect, may seek the enforcement of such covenant in law or in equity. Section 10.02 Excess in Debt Service Reserve Account. If, on any Semi-Annual Date, the funds on deposit in or standing to the credit of the Debt Service Reserve Account are in excess of the Debt Service Reserve Requirement, unless a Notice of Suspension is in effect or a Default or Event of Default would occur after giving effect to such transfer, the Company may direct, by delivery of a Debt Service Reserve Account Release Certificate to the Accounts Bank (with a copy to the Trustee), the transfer to the Revenue Account of an amount equal to the difference between (x) the aggregate total amount of all funds on deposit in or standing to the credit of the Debt Service Reserve Account and (y) the Debt Service Reserve Requirement, as certified by the Company and confirmed in writing by the Trustee in such Debt Service Reserve Account Withdrawal Certificate for transfer to the Revenue Account for application at priority fifth of Section 6.01 (c) (Revenue Account—Withdrawals from the Revenue Account). Section 10.03 Mandatory Redemption of Tax-Exempt Bonds. If on any Lease Payment Date, solely in connection with the mandatory redemption in whole of the Tax-Exempt Bonds upon a Determination of Taxability pursuant to Section 3.03(b) (Redemption upon Mandatory Prepayment—Mandatory Redemption of Tax-Exempt Bonds) of the Indenture, the amount available in priority ninth of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account) shall be less than the amount of the aggregate principal amount of the Tax- Exempt Bonds to be redeemed plus accrued interest to the redemption date, after giving effect to all payments received by the Trustee in immediately available funds by 10:00 a.m. New York City time on such date, the Trustee shall direct the Accounts Bank to transfer moneys from the Debt Service Reserve Account (including any amount derived from investment earnings) to the Revenue Account for application at priority ninth of Section 6.01(c) (Revenue Account— Withdrawals from the Revenue Account). Section 10.04 Application of Debt Service Reserve Account for Final Payment. The Trustee shall direct the Accounts Bank to apply any moneys on deposit in the Debt Service Reserve Account toward the final payment of Basic Rent under the Lease Agreement, whether at maturity or redemption in full, of the Series 2014 Bonds. (END OF ARTICLE X) 35 ARTICLE XI COVENANT COMPLIANCE HOLDING ACCOUNT Section 11.01 Covenant Compliance Holding Account. (a) Payments into the Covenant Compliance Holding Account. Pursuant to Section 3.01(a)(viii) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Covenant Compliance Holding Account. Funds shall be deposited into the Covenant Compliance Holding Account pursuant priority eleventh of Section 6.01(c) (Revenue Account–Withdrawals from the Revenue Account). (b) Withdrawals from the Covenant Compliance Holding Account. The Accounts Bank shall withdraw funds from the Covenant Compliance Holding Account upon receipt of written instructions from the Company or the Trustee in accordance with the terms set forth below: (i) Excess Amounts in Covenant Compliance Holding Account. If, on any Quarterly Date, the Debt Service Coverage Ratio as of such Quarterly Date is greater than or equal to 1.25:1 then, subject to the satisfaction of the conditions set forth in Section 2.6.16 (Negative Covenants—Restricted Payments) of the Lease Agreement, the Company may submit a Restricted Payment Certificate in the form attached to the Lease Agreement as Exhibit C to the Accounts Bank directing the transfer of amounts on deposit in and standing to the credit of the Covenant Compliance Holding Account for Restricted Payments by the Company. (ii) Covenant Default. If, on any Quarterly Date, the Debt Service Coverage Ratio is less than 1.25:1, then all amounts on deposit in and standing to the credit of the Covenant Compliance Holding Account shall continue to be held in such account as collateral for the Obligations and shall not be released to the Company unless and until the provisions of Section 11.01(b)(i) (Covenant Compliance Holding Account - Excess Amounts in Covenant Compliance Holding Account) shall be satisfied; provided, that while any such amounts are being held by the Accounts Bank in the Covenant Compliance Holding Account and there exists insufficient funds in the Revenue Account with which to pay amounts due in priority first through priority eighth of Section 6.01(c) (Revenue Account—Withdrawals from the Revenue Account), the Trustee, upon the written request of the Company, shall direct the Accounts Bank to transfer to the Revenue Account amounts sufficient to provide for the payment of such priorities. (iii) Redemption of Bonds. In the event that (A) there shall be $100,000 or more on deposit in the Covenant Compliance Holding Account, (B) the Debt Service Coverage Ratio shall be less that 1.25:1 as of the most recent Quarterly Date, and (C) either (1) the Majority Bondholder directs the Trustee in writing pursuant to Section 3.03(d) (Redemption of Bonds—Redemption upon Mandatory Prepayment— Extraordinary Mandatory Redemption) of the Indenture to cause Bonds to be redeemed or(2)the Bonds are subject to optional redemption pursuant to Section 3.02 (Redemption of Bonds—Redemption upon Optional Prepayment) of the Indenture, then the Trustee 36 shall direct in writing the Accounts Bank to transfer to the Redemption Account of the Bond Fund created under the Indenture for application as provided therein. (iv) Event of Default. In the event there shall occur an Event of Default and acceleration of the Bonds, amounts on deposit in the Covenant Compliance Holding Account, upon the written instruction of the Trustee to the Accounts Bank, shall be paid to the Trustee, for application as provided in Section 8.10 of the Indenture. (END OF ARTICLE XI) 37 ARTICLE XII INSURANCE AND CONDEMNATION PROCEEDS ACCOUNT Section 12.01 Insurance and Condemnation Proceeds Account. (a) Payments into the Insurance and Condemnation Proceeds Accounts. Pursuant to Section 3.01(a)(ix) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Insurance and Condemnation Proceeds Account. Until the Security Discharge Date, the Company shall cause all Net Proceeds to be deposited in or credited to the Insurance and Condemnation Proceeds Account. (b) Withdrawals from the Insurance and Condemnation Proceeds Account. The Company shall not make, direct, or request the Accounts Bank to make, and the Trustee shall not approve, any transfer or withdrawal from the Insurance and Condemnation Proceeds Account except as permitted by this Article XII and Section 2.11 of the Lease Agreement and, as a further condition of such transfer or withdrawal, no Notice of Suspension shall have been delivered that has not been withdrawn and no Default or Event of Default would occur as a result of such transfer or withdrawal. (c) Company's Election to Repair or Replace Project. In the event the Company is in compliance with and has satisfied the requirements of Section 2.11 of the Lease Agreement for (i) rebuilding, repairing, restoring or replacing the Project, or (ii) the acquisition of substitute land and construction of a substitute Project, the Trustee shall direct the Accounts Bank to transfer all such Net Proceeds into the General Proceeds Account of the Construction Account and thereafter, the applicable provisions of the Lease Agreement shall control the disbursement to and application of funds by the Company from the Construction Account. (d) Mandatory Prepayment. If, pursuant to Section 2.11 of the Lease Agreement the Company elects not to, or is precluded from, (i) rebuilding, repairing, restoring or replacing the Project, or (ii) the acquisition of substitute land and construction of a substitute Project, the Trustee shall request in writing to the Accounts Bank that it transfer to the Trustee for deposit in the Redemption Account of the Bond Fund created under Section 5.01(a) (Funds and Accounts; Deposit and Application of Bond Proceeds—Creation of Funds and Accounts Under Indenture— Bond Fund) of the Indenture for mandatory redemption of the Bonds in accordance with Section 3.03(c) (Redemption Upon Mandatory Prepayment—Special Mandatory Redemption from Net Proceeds) of the Indenture. (END OF ARTICLE XII) 38 ARTICLE XIII ACQUISITION ACCOUNT Section 13.01 Acquisition Account. (a) Payments into the Acquisition Account. Pursuant to Section 3.01(a)(x) (Project Accounts—Establishment of Project Accounts), the Accounts Bank has established the Acquisition Account and within the Acquisition Account three (3) separate subaccounts known as (x) the Acquisition Price Subaccount, (y) the Project Costs Subaccount and (z) the Costs of Issuance Subaccount, which shall be funded with the amounts set forth in(i) and(ii)below: (i) [ Dollars ($ )] representing the Required Equity Contribution of which 1 Dollars ($ )] shall be deposited into the Costs of Issuance Subaccount; and (ii) [ Dollars ($ )] representing the proceeds of the Series 2014 Bonds of which (a) [ Dollars ($ )] shall be deposited into the Acquisition Price Subaccount, (b) 1 Dollars ($ )] shall be deposited into the Project Costs Subaccount, and (c) Dollars ($ )] shall be deposited into the Costs of Issuance Subaccount. (b) Withdrawals from the Acquisition Account. (i) On the Closing Date, subject to the Company's compliance with the requirements of Section 3.1(b) (Issuer's Agreement to Acquire Project from the Company; Company's Agreement to Convey Project to Issuer; and Payment of Acquisition Price) of the Lease Agreement, the Trustee shall direct the Accounts Bank to transfer to the Operating Account or to make payment directly to the Company from the Acquisition Price Subaccount of the Acquisition Price upon the Company delivering an Acquisition Funding Notice to the Accounts Bank. (ii) On the Closing Date or any date thereafter, subject to the Company's compliance with the requirements of Section 3.1(b) (Issuer's Agreement to Acquire Project from the Company; Company's Agreement to Convey Project to Issuer; and Payment of Acquisition Price) of the Lease Agreement, the Trustee shall direct the Accounts Bank to transfer to the Operating Account or to make payment directly to the Company of all or a portion of the funds on deposit in the Project Costs Subaccount for payment by or on behalf of the Company of any unpaid Project Costs then due and owing upon the Company delivering an Acquisition Funding Notice to the Accounts Bank. (iii) On the Closing Date and on any date thereafter for a period of six (6) months, subject to the Company's compliance with the requirements of Section 3.1(b) (Issuer's Agreement to Acquire Project from the Company; Company's Agreement to Convey Project to Issuer; and Payment of Acquisition Price) of the Lease Agreement, the Trustee shall direct the Accounts Bank to transfer to the Operating Account or to make payment directly to the Company of all or a portion of the funds on deposit in the Costs 39 of Issuance Subaccount for payment by or on behalf of the Company of any unpaid Costs of Issuance then due and owing upon the Company delivering an Acquisition Funding Notice to the Accounts Bank. Any amounts remaining in the Costs of Issuance Subaccount six (6) months after the Closing Date shall be transferred by the Accounts Bank to the Operating Account. (END OF ARTICLE XIII) 40 ARTICLE XIV [RESERVED] (END OF ARTICLE XIV) 41 ARTICLE XV GENERAL PROVISIONS RELATING TO THE PROJECT ACCOUNTS Section 15.01 No Security Interests. The Company shall not at any time until the Security Discharge Date create or permit to subsist any Lien other than (a) first-priority Liens in favor of the Trustee, for the benefit of the Bondholders, arising under this Accounts Agreement or the other Bond Documents, and (b) other Permitted Encumbrances, on all or any part of any of the Project Accounts or the Account Collateral, or assign, transfer or otherwise dispose of all or any part of its right or title to any of the Project Accounts or the Account Collateral other than in accordance with, or as permitted by, the terms of this Accounts Agreement, or the other Bond Documents. Section 15.02 Company Acknowledgment. (a) The Company acknowledges that neither any insufficiency of funds in the Project Accounts (or any of them), nor any inability to apply any funds in the Project Accounts (or any of them) against any or all amounts owing under the Bond Documents, shall at any time limit, reduce or otherwise affect the Company's Obligations under any of the Bond Documents. (b) Each party to this Accounts Agreement acknowledges that none of the Accounts Bank, the Securities Intermediary or the Trustee shall incur any obligation or liability in circumstances where there are insufficient funds deposited in or credited to any Project Account to make a payment in full that would otherwise have been made pursuant to the terms of this Accounts Agreement, except (in the case of the Accounts Bank) to the extent that the loss is found by a final non-appealable judgment of a court of competent jurisdiction to have arisen directly from the Accounts Bank's gross negligence or willful misconduct. Section 15.03 Further Assurances. (a) The Company shall, at any time and from time to time at the first demand of the Accounts Bank or the Trustee and at the sole cost and expense of the Company, promptly and duly execute and deliver, or otherwise authenticate, all further instruments and documents, and take all further action, that may be necessary or required under applicable law or that the Accounts Bank or the Trustee may reasonably request, in order to perfect and protect any pledge or security interest granted or purported to be granted hereunder or to enable each of the Accounts Bank, the Securities Intermediary and the Trustee to exercise and enforce its rights and remedies hereunder with respect to any Account Collateral. (a) Without limiting the generality of the foregoing, the Company will promptly, with respect to the Account Collateral: (i) execute or authenticate and file such UCC financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary, or as the Accounts Bank or the Trustee may reasonably request, in order to perfect and preserve the security interest granted or purported to be granted hereunder; provided, however that with respect to continuation statements, the Company shall execute or authenticate and file such statements if and when so requested by the Trustee; 42 (ii) take all action necessary to ensure that the Trustee, for the benefit of the Bondholders, has control of the Account Collateral as provided in Sections 8-106, 9-104, 9-106 and any other applicable Section of the UCC; (iii) take all action necessary to ensure that the Trustee, for the benefit of the Bondholders, has a first-priority perfected security interest in all Account Collateral described in Section 2.05 (Grant of Security Interest) under the laws of the jurisdiction in which the Company is located(within the meaning of Section 9-307 of the UCC); and (iv) deliver to the Trustee evidence that all other action that the Accounts Bank or the Trustee may deem reasonably necessary in order to perfect and protect the security interest created by the Company under this Accounts Agreement has been taken. (b) No provision in Section 15.03(b) (Further Assurances) shall be deemed to limit the provisions in Section 15.03(a) (Further Assurances). (c) The Company hereby authorizes the Trustee to file one or more UCC financing or continuation statements, and amendments thereto, relating to all or any part of the Account Collateral without the signature of the Company where permitted by applicable Law. Section 15.04 UCC Termination Statements. At the request of the Company, on or after the Security Discharge Date, the Trustee will, at the sole cost and expense of the Company, file UCC termination statements terminating the existing UCC financing statements filed by the Trustee pursuant to the Bond Documents. (END OF ARTICLE XV) 43 ARTICLE XVI INTEREST AND INVESTMENTS Section 16.01 Investments. (a) Each amount deposited in or credited to a Project Account from time to time shall, from the time it is so deposited or credited until the time it is withdrawn from that Project Account (whether for the purpose of making an investment in Cash Equivalents or otherwise applied in accordance with the terms of this Accounts Agreement), be invested as provided herein. (b) Prior to the receipt by the Accounts Bank of a Notice of Suspension, any amounts held by the Accounts Bank in the Project Accounts shall be invested by the Accounts Bank from time to time, at the risk and expense of the Company and with the written consent of the Trustee, solely in such Cash Equivalents as an Authorized Company Representative shall direct in writing (which may be in the form of a standing instruction). In the absence of such instruction from the Company, such amounts shall be invested by the Accounts Bank in the Cash Management Fund, or if such fund shall become unavailable only in another Cash Equivalent constituting a U.S. Government Money Market Fund as directed in writing by the Company and Trustee or if the Company does not so direct the Accounts Bank, as directed in writing by the Trustee. Notwithstanding anything herein to the contrary, amounts held in the Debt Service Reserve Account shall be invested solely in investments within the meaning of [clauses (a) and (e)] of the definition of Cash Equivalents or a U.S. Government Money Market Fund that invests solely in investments within the meaning of clauses [(a) and (f)] of the definition of Cash Equivalents. The Accounts Bank is authorized to implement its automated cash investment system to assure that cash on hand is invested and to charge it normal cash management fees, which may be deducted from income earned on investments. The Accounts Bank may make any and all investments through its own bond or securities department or the bond or securities department of any affiliate of the Trustee. The Company shall select Cash Equivalents having such maturities as shall cause the Project Accounts to have a cash balance as of any day sufficient to cover the transfers to be made from the Project Accounts on such day in accordance with this Accounts Agreement, the Series 2014 Bonds or the Indenture. Upon delivery by the Trustee to the Accounts Bank of a Notice of Suspension and until written revocation of such Notice of Suspension is delivered to the Accounts Bank by the Trustee, any amounts held by the Accounts Bank in the Project Accounts shall be invested by the Accounts Bank from time to time, solely in such Cash Equivalents as the Trustee, in its sole discretion, may direct; provided that the Accounts Bank's obligation to invest such amounts is conditioned upon receipt by the Accounts Bank of a valid United States Department of the Treasury Internal Revenue Service tax Form W-9 in accordance with Section 16.03(b) (Interest and Investment Income). Neither the Trustee nor the Accounts Bank shall be liable for any loss resulting from any Cash Equivalent(or any investment or reinvestment therein or liquidation or redemption thereof) from any Project Account or the sale or redemption thereof, except to the extent that such loss is determined by a court of competent jurisdiction by a final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of the Trustee or the Accounts Bank, as the case may be, it being understood and agreed that in no event shall any of the Trustee or the Accounts Bank, as the case may be, be liable for any loss resulting from any investment made, or any sale or redemption of any investment made, in accordance with instructions received from the Company, 44 or failure to receive written direction as required hereunder, or in accordance with Section 16.02 (Sale and Liquidation)hereof. Section 16.02 Sale and Liquidation. In the event that the cash balance in any of the Project Accounts is as of any day insufficient to cover the transfers to be made from such Project Account on such day (and if advised in writing by the Trustee or the Company of such circumstances), the Trustee may (but shall not be obligated to) direct the Accounts Bank, without instructions from the Company, to sell or liquidate the Cash Equivalents standing to the credit of such Project Account (without regard to maturity date) in such manner as the Trustee may direct in order to obtain cash at least sufficient to make such transfers and to pay any expenses and charges incurred in connection with effecting any such sale or liquidation, which expenses and charges the Accounts Bank shall be authorized to pay with cash on deposit in such Project Account. Neither the Accounts Bank nor the Trustee shall be liable to any Person for any loss suffered because of any such sale or liquidation. Section 16.03 Interest and Investment Income. (a) All interest and other investment income earned from investments in Cash Equivalents made from amounts in any Project Account shall remain in such Project Account until transferred from such Project Account in accordance with the terms of this Accounts Agreement. (b) It is acknowledged by the parties hereto that all investment income earned on amounts on deposit in or credited to the Project Accounts for all tax purposes shall be attributed to and be income of the Company. The Company shall be responsible for determining any requirements for paying taxes or reporting or withholding any payments for tax purposes hereunder. The Company shall prepare and file all tax information required with respect to the Project Accounts. The Company agrees to indemnify and hold each of the Trustee and the Accounts Bank harmless against all liability for tax withholding and/or reporting for any investment income earned on the Project Accounts and payments in respect thereof Such indemnities shall survive the termination or discharge of this Accounts Agreement or resignation of the Accounts Bank. None of the Trustee or the Accounts Bank, shall have any obligation with respect to the making of or the reporting of any payments for tax purposes. From time to time, and as reasonably requested by the Accounts Bank, the Company shall provide to the Accounts Bank a United States Department of the Treasury Internal Revenue Service tax Form W-9 or other appropriate form required with respect to the withholding or exemption from withholding of income tax on any investment income earned on the Project Accounts. The Accounts Bank shall be entitled to rely on an opinion of legal counsel (which may be counsel to the Company) in connection with the reporting of any earnings with respect hereto. Section 16.04 Accounts Information. (a) The Accounts Bank will: (i) within ten (10) Business Days after the end of the month in which the first deposit is made into any Project Account and within ten(10) Business Days after the end of each month thereafter, provide the Company and the Trustee a report with respect to 45 the Project Accounts, setting forth in reasonable detail all deposits to and disbursements from each of the Project Accounts during such month, including the date on which made, and the balances of and any investments in each of the Project Accounts at the end of such month, including information regarding categories, amounts, maturities and issuers of Cash Equivalents; and (ii) within ten (10) Business Days after receipt of any written request by the Company or the Trustee, provide to the Company or the Trustee, as the case may be, such other information as the Company or the Trustee, as the case may be, may reasonably specify regarding all Cash Equivalents and any other investments made by the Accounts Bank pursuant hereto and regarding amounts available in the Project Accounts. (b) The Accounts Bank will maintain all of the Project Accounts and all books and records with respect thereto as may be necessary to record properly all transactions carried out by it under this Accounts Agreement. (c) If the Accounts Bank is given written notification that any Cash Equivalent ceases to be a Cash Equivalent, the Accounts Bank will, as soon as reasonably practicable after receipt of such notification, notify the Trustee and the Company in writing of such cessation and, upon the written direction of the Company (or, if the Company fails to provide direction within three (3) Business Days of the date of the Accounts Bank's notice, upon the written direction of the Trustee), will cause the relevant investment to be replaced by a Cash Equivalent or by cash; provided that this Section 16.04(c)(Accounts Information) will not oblige the Accounts Bank to liquidate any investment earlier than its normal maturity date unless: (i) directed to do so under Section 16.02 (Sale and Liquidation); or (ii) the maturity date of the relevant investment exceeds the maturity date that would enable it to continue to qualify as a Cash Equivalent. (END OF ARTICLE XVI) 46 ARTICLE XVII DEFAULT AND ENFORCEMENT Section 17.01 Notices of Suspension of Project Accounts. (a) The Trustee may, but shall not be required to, suspend the right of the Accounts Bank and the Company to withdraw or otherwise deal with any funds deposited in or credited to the Project Accounts at any time during the occurrence and continuance of an Event of Default by delivering a notice to the Accounts Bank (with a copy to the Company and the Trustee) (a "Notice of Suspension"). (a) Notwithstanding any other provision of the Lease Agreement, the Indenture or any other Bond Document, after the issuance by the Trustee of a Notice of Suspension in accordance with Section 17.01(a)(Notice of Suspension of Project Accounts) and until such time as the Trustee advises the Accounts Bank and the Company in writing that it has withdrawn such Notice of Suspension, no amount may be withdrawn by the Accounts Bank from any Project Account, including for investment in Cash Equivalents, without the express prior written consent of the Trustee. (b) For the avoidance of doubt, the withdrawal of a Notice of Suspension by the Trustee shall not affect any other Notice of Suspension that it may have issued. Section 17.02 Trustee Appointed Attorney-in-Fact. (a) The Company hereby irrevocably constitutes and appoints the Trustee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact (which appointment as attorney-in-fact shall be coupled with an interest), with full authority, if a Notice of Suspension has been delivered to the Accounts Bank and until such Notice of Suspension has been withdrawn, to take any action and to execute any and all documents and instruments in the place and stead of the Company and in the name of the Company or otherwise, that the Trustee may deem necessary or advisable to accomplish the purposes of this Accounts Agreement in a commercially reasonable manner to the extent required by the UCC, without notice to the Company, including: (b) if an Event of Default has occurred and is continuing, to exercise the rights and remedies set forth in this Accounts Agreement and the other Bond Documents; (c) to take any action that the Trustee may, in its discretion and at the Company's expense, deem necessary or appropriate (i) to perfect, maintain and enforce any security interest or other Lien created in favor of the Trustee, for the benefit of the Bondholders, (ii) to create, perfect, maintain and enforce any security interest or other Lien granted or purported to be granted hereby or(iii)to otherwise accomplish the purposes of this Accounts Agreement; (d) to receive, endorse and collect all funds or other property in which the Company has an interest and that would constitute Account Collateral under the terms of this Accounts Agreement, in each case representing any proceeds, dividends, interest payments or other distributions constituting Account Collateral or any part thereof and to give full discharge for the same and to file any claim or to take any other action or proceeding in any court of law or equity 47 or otherwise deemed necessary or appropriate by the Trustee for the purpose of collecting any and all of such proceeds, dividends,payments or other distributions; (e) to pay or discharge taxes and Liens levied or placed on the Account Collateral; (f) (i) to direct any party liable for any payment under or with respect to any of the Account Collateral to make payment of any and all moneys due or to become due thereunder or with respect thereto directly to the Trustee or as the Trustee may direct, (ii) to ask or make, demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any of the Account Collateral, (iii) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Account Collateral or any part thereof and to enforce any other right in respect of any of the Account Collateral, (iv) to defend any suit, action or proceeding brought against the Company with respect to any of the Account Collateral and (v) to settle, compromise or adjust any suit, action or proceeding described in Section 17.02(e)(iii) and (iv)(Trustee Appointed Attorney-in-Fact) and, in connection therewith, to give such discharges or releases as the Trustee may deem appropriate; (g) to execute, in connection with any sale, lease, license or other disposition permitted to be made by the Trustee hereunder, any endorsements, assignments, transfer statements or other instruments of conveyance or transfer with respect to the Account Collateral, and to file or register the same if required by applicable Law; and (h) to communicate in its own name with any party to any agreement or instrument included in the Account Collateral, at any reasonable time, with regard to any matter relating to such agreement or instrument. Section 17.03 Enforcement. (a) Notwithstanding any other provision of the Lease Agreement, the Indenture or any other Bond Document, the Trustee or its designee may, on behalf of the Bondholders, at any time during the occurrence and continuance of an Event of Default, and following delivery of a Notice of Suspension that has not been withdrawn (provided that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 17.03(a)(Enforcement)) take enforcement action with respect to the Project Accounts and the Account Collateral, as provided in the Bond Documents. Without limitation and in addition to any and all rights with respect to the Project Accounts and the Account Collateral under the Lease Agreement, the Indenture or any other Bond Document,the Trustee may take enforcement action by: (i) personally, or by attorneys, taking possession of the Project Accounts and the Account Collateral or any part thereof, from the Accounts Bank, the Company or any other Person that then has possession of any part thereof with or without notice or process of law; (ii) instructing any obligor, guarantor or counterparty to any agreement, instrument or other obligation in respect of or relating to the Company or the Project Accounts and the Account Collateral to make any payment required by the terms of such 48 agreement, instrument or obligation directly to the Trustee, for the benefit of the Bondholders; (iii) taking possession of the Project Accounts and the Account Collateral or any part thereof by directing the Accounts Bank or the Company, as the case may be, to deliver the same to the Trustee, for the benefit of the Bondholders, at any place or places designated by the Trustee, it being understood that the Accounts Bank's and the Company's obligations to so deliver the Project Accounts and the Account Collateral are of the essence of this Accounts Agreement and that, accordingly, upon application to a court of equity having jurisdiction, the Trustee, for the benefit of the Bondholders, shall be entitled to a decree requiring specific performance by the Accounts Bank or the Company, as the case may be, of such obligations; (iv) foreclosing on the Account Collateral as herein provided or in any manner permitted by applicable Law (including through any permitted non judicial foreclosure) either concurrently or in such order as the Trustee may determine without affecting the rights or remedies to which the Trustee, for the benefit of the Bondholders may be entitled under this Accounts Agreement, the Lease Agreement, the Indenture or any other Bond Document. The Company hereby waives, to the extent permitted by applicable Law, notice and judicial hearing in connection with the Trustee's taking possession or commencing any collection, recovery, receipt, appropriation, repossession, retention, set- off, sale, leasing, licensing, conveyance, assignment, transfer, liquidation, or other disposition of or realization upon any or all of the Account Collateral, including any and all prior notice and hearing for any prejudgment remedy or remedies and any right to any such notice which the Company would otherwise have under applicable Law; (v) withdrawing any and all cash and liquidating any and all Cash Equivalents in any of the Project Accounts and applying such cash, the liquidation proceeds of Cash Equivalents and other cash, if any, then held in any Project Account or as Account Collateral in accordance with Section 17.04 (Application of Proceeds); (vi) selling, assigning or otherwise liquidating the Project Accounts or the Account Collateral, or any part thereof, at a public or private sale, for cash, upon credit or for future delivery, and at such prices as the Trustee may deem satisfactory, and taking possession of the proceeds of any such sale or liquidation. (b) Notwithstanding anything to the contrary in this Accounts Agreement, the Lease Agreement, the Indenture or any other Bond Document, the Company acknowledges that if an Event of Default has occurred and is continuing, and following delivery of a Notice of Suspension that has not been withdrawn (provided that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 17.03(b)), the Trustee, on behalf of the Bondholders, is entitled to apply amounts deposited in or credited to any Project Account as contemplated in Section 17.04 (Application of Proceeds). (c) The Accounts Bank shall promptly comply with any instruction given by the Trustee as contemplated by Section 2.01 (Appointment) (without reference to any inconsistent request or instruction from the Company or otherwise). 49 (d) The Trustee may, during the continuance of an Event of Default, and at any time following the delivery of a Notice of Suspension and until such notice has been withdrawn (provided that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 17.03(Enforcement), exercise its rights under this Section 17.03(Enforcement), as frequently, and as many times, as it considers appropriate. Section 17.04 Application of Proceeds. Upon the occurrence and during the continuation of an Event of Default, the proceeds of any sale of, or other realization upon, all or any part of the Account Collateral shall be applied in accordance with Section 8.10 (Application of Moneys) of the Indenture. The Company shall remain liable for any deficiency in accordance with the respective Bond Documents to which it is a party. Section 17.05 Trustee's Discretionary Powers. Nothing in this Article XVII shall impair the right of the Trustee in its discretion to take or omit to take any action deemed proper by the Trustee and which action or omission is consistent with any express provisions of this Accounts Agreement. Section 17.06 Regarding the Trustee. The Trustee shall be afforded all of the rights, powers, protections, immunities and indemnities set forth in the Lease Agreement, the Indenture and the other Bond Documents as if the same were specifically set forth herein. (END OF ARTICLE XVII) 50 ARTICLE XVIII THE ACCOUNTS BANK Section 18.01 Duties of the Accounts Bank and Securities Intermediary. (a) The Accounts Bank, acting as Securities Intermediary, will have the obligations of a securities intermediary under Article 8 of the UCC, and acting as a bank with respect to the Project Accounts, will have the obligations of a bank under Article 9 of the UCC. The Accounts Bank will also have those duties and responsibilities expressly set forth in this Accounts Agreement, and no additional duties, responsibilities, obligations or liabilities shall be inferred from the provisions of this Accounts Agreement or imposed on the Accounts Bank. The Accounts Bank will act at the written direction of the Trustee and, as expressly provided in this Accounts Agreement, the Company, but will not be required to take any action that is contrary to this Accounts Agreement or applicable Law or that, in its reasonable judgment, would involve it in expense or liability, unless it has been furnished with adequate indemnity and/or security against such expense or liability. The Accounts Bank will have no responsibility to ensure the performance by any other party of its duties and obligations hereunder. The Accounts Bank will use the same care with respect to the safekeeping and handling of property held in the Project Accounts as the Accounts Bank uses in respect of property held for its own sole benefit. The provisions of this Article XVIII are solely for the benefit of the Accounts Bank and the Trustee. (b) In performing its functions and duties under this Accounts Agreement, the Accounts Bank will act solely as the depository of the Trustee, for the benefit of the Bondholders, and as Securities Intermediary or as a bank, as the case may be, with respect to the Project Accounts for the benefit of the Trustee, for the benefit of the Bondholders. The Accounts Bank does not assume and will not be deemed to have assumed any obligation toward or relationship of agency or trust with or for the Company or any Person other than the Trustee. None of the Trustee or the Company will have any rights against the Accounts Bank hereunder, other than for the Accounts Bank's gross negligence or willful misconduct. Except as otherwise expressly provided in this Accounts Agreement, the Company will not have any right to direct the Accounts Bank to distribute or allocate any funds, instruments, securities, financial assets or other assets in the Project Accounts or to withdraw or transfer any funds, instruments, securities, financial assets or other assets from the Project Accounts. Except as otherwise expressly provided in this Accounts Agreement, the Trustee, on behalf of the Bondholders, will have the sole right to issue directions and instructions to the Accounts Bank, acting as Securities Intermediary or bank, as the case may be, in accordance with this Accounts Agreement, and to issue entitlement orders with respect to the Project Accounts. It is expressly understood and agreed that any investment made with funds held in the Project Accounts may be made only in accordance with the express provisions of Section 16.01 (Investments) and, when an investment is so made, it is expressly understood and agreed that such investment was made with the permission of the Trustee in the exercise of its exclusive possession of, and dominion and control over, the Project Accounts, which it maintains through the Accounts Bank. The Accounts Bank shall not in any way whatsoever be liable for any loss or depreciation in the value of any investments made pursuant to the terms of this Accounts Agreement. 51 Section 18.02 Exculpatory Provisions. (a) Neither the Accounts Bank nor any of its directors, officers, employees or agents will have any duties or obligations except those expressly set forth herein or required by applicable law. Without limiting the generality of the foregoing,the Accounts Bank shall not: (i) be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing; (ii) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Accounts Bank is required to exercise as directed in writing by the Trustee; provided that the Accounts Bank shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Accounts Bank to liability or that is contrary to any Bond Document or applicable Law; and provided further that no such direction given to the Accounts Bank that in the sole judgment of the Accounts Bank imposes, or purports to impose, or might reasonably be expected to impose upon the Accounts Bank any obligation or liability not set forth herein or arising hereunder shall be binding upon the Accounts Bank unless the Accounts Bank, in its sole discretion, accepts such direction; (iii) except as expressly set forth herein, have any duty to disclose, nor shall the Accounts Bank be liable for any failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Accounts Bank or any of its Affiliates in any capacity; or (iv) be required to institute any legal proceedings arising out of or in connection with, or otherwise take steps to enforce, this Accounts Agreement other than on the instructions of the Trustee; (b) Neither the Accounts Bank nor any of its directors, officers, employees or agents shall be liable for any action taken or not taken by it (i) with the prior written consent or at the request of the Trustee, (ii) as may be reasonably necessary, or as the Accounts Bank may believe in good faith to be necessary, under the circumstances as provided in Section 2.01 (Appointment)) or(iii) in the absence of its own gross negligence or willful misconduct. (c) Neither the Accounts Bank nor any of its directors, officers, employees or agents shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Accounts Agreement, the Lease Agreement, the Indenture or any other Bond Document, (ii) the contents of any certificate, report, opinion or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein (including the use of proceeds) or the occurrence or continuance of any Default or Event of Default, (iv) the validity, enforceability, effectiveness, genuineness or admissibility in evidence of this Accounts Agreement, the Lease Agreement, the Indenture, any other Bond Document, or any other agreement, instrument or document, or the perfection or priority of any Lien or security interest created or purported to be created by any Bond 52 Document (or title to or rights in any collateral under any Security Document), or (v) the satisfaction of any condition set forth in Section 2.04 (Conditions to Issuance of Series 2014 Bonds; Execution of Bonds) of the Indenture or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Accounts Bank. (d) The Accounts Bank may, unless and until it shall have received written directions from the Trustee, take such action or refrain from taking such action in respect of a Default or Event of Default of which the Accounts Bank has been advised in writing by the Trustee as it shall reasonably deem advisable in the best interests of the Lenders (but shall not be obligated to do so). Section 18.03 Reliance by Accounts Bank. The Accounts Bank shall be entitled to rely upon, and shall not (nor shall any of its directors, officers, employees or agents) incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) believed in good faith by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Accounts Bank also may rely upon any statement made to it orally or by telephone and believed by it in good faith to have been made by the proper Person, and shall not incur any liability for relying thereon. The Accounts Bank may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts reasonably selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Accounts Bank may at any time and from time to time solicit written instructions in the form of directions from the Trustee or an order of a court of competent jurisdiction, as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Accounts Agreement. Section 18.04 Written Instructions; Notices. (a) Notwithstanding anything in this Accounts Agreement, the Lease Agreement, the Indenture or any other Bond Document to the contrary, the Accounts Bank shall have no obligation to (i) make any payment, transfer or withdrawal from any Project Account until it has received written direction to make such payment, transfer or withdrawal from the Trustee or the Company or (ii) determine whether any payment, transfer or withdrawal from any Project Account made in accordance with any written direction from the Trustee or the Company complies with the terms of this Accounts Agreement. The Accounts Bank shall have no liability for, nor any responsibility or obligation to confirm, the use or application by the Company, the Trustee or any other recipient of amounts withdrawn or transferred from any Project Account. (b) Except as otherwise provided in this Accounts Agreement, the Accounts Bank shall take action under this Accounts Agreement only as it shall be directed in writing by the Trustee. In each case that the Accounts Bank may or is required under the other Bond Documents to take any action (an "Accounts Bank Action"), including without limitation to make any determination or judgment, to give consents, to exercise rights, powers or remedies or otherwise to act hereunder, under any other Bond Document, the Accounts Bank may seek direction from the Trustee and shall be entitled to refrain from such Accounts Bank Action unless 53 and until it has received such direction and shall not incur any liability to any Person by reason of so refraining. Section 18.05 Resignation or Removal of Accounts Bank. (a) The Accounts Bank may resign from the performance of all its functions and duties hereunder at any time by giving thirty (30) days' prior notice to the Company and the Trustee. The Accounts Bank may be removed (i) at any time by the Trustee, or (ii) in the event of a material breach by the Accounts Bank of its duties hereunder, (A) by the Company in consultation with the Trustee or(B) the Majority Bondholder; provided, however, that in the case of either (i) or(ii), the prior written consent to such removal shall be obtained from the Majority Bondholder. Such resignation or removal shall take effect upon the appointment of a successor Accounts Bank, in accordance with this Section 18.05 (Resignation or Removal of Accounts Bank). (b) Upon the notice of resignation by the Accounts Bank or upon the removal of the Accounts Bank pursuant to Section 18.05(a) (Resignation or Removal of Accounts Bank), the Trustee, with the prior written approval of the Majority Bondholder, shall appoint a successor Accounts Bank hereunder who shall be a commercial bank having a combined capital and surplus of at least Two Hundred Fifty Million Dollars ($250,000,000). (c) If no successor Accounts Bank has been appointed by the Trustee within thirty (30) days after the date such notice of resignation was given by the Accounts Bank or the date on which the Trustee and the Company or the Majority Bondholder elected to remove the Accounts Bank, pursuant to Section 18.05(a) (Resignation or Removal of Accounts Bank), the Company may, unless the Majority Bondholder shall advise the Company in writing of its intent to do so, petition any court of competent jurisdiction for the appointment of a successor Accounts Bank. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor Accounts Bank who shall serve as Accounts Bank hereunder until such time, if any, as the Trustee appoints a successor Accounts Bank, as provided above. (d) Upon the acceptance of a successor's appointment as Accounts Bank hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed)Accounts Bank, and the retiring (or removed)Accounts Bank shall be discharged from all of its duties and obligations hereunder. After the retirement or removal of the Accounts Bank hereunder, the provisions of this Article XVIII shall continue in effect for the benefit of the retiring (or removed)Accounts Bank in respect of any actions taken or omitted to be taken by it while the retiring or removed Accounts Bank was acting as Accounts Bank. (e) The retiring or removed Accounts Bank will promptly transfer all of the Project Accounts and the Account Collateral to the possession or control of the successor Accounts Bank and will, at the sole cost and expense of the Company, execute and deliver such notices, instructions and assignments as may be reasonably necessary or desirable to transfer the rights of the Accounts Bank, together with all records and reports, with respect to the Project Accounts and the Account Collateral to the successor Accounts Bank. 54 Section 18.06 No Amendment to Duties of Accounts Bank Without Consent. (a) The Accounts Bank shall not be bound by any waiver, amendment, supplement or modification of this Accounts Agreement that affects its rights or duties hereunder or thereunder unless the Accounts Bank shall have given its prior written consent, in its capacity as Accounts Bank,thereto. (END OF ARTICLE XVIII) 55 ARTICLE XIX REPRESENTATIONS AND WARRANTIES Section 19.01 Representations and Warranties. The Company represents and warrants as of the date of this Accounts Agreement, as of the date of each Funding Notice, on each Funding Date and on the Completion Date that: (a) it is the legal and beneficial owner of the Account Collateral free and clear of any Lien, claim, encumbrance, option or right of others, except for the first-priority security interest and other rights created under or provided for in this Accounts Agreement and the other Bond Documents, and has the power and authority to pledge the Account Collateral pledged by it hereunder. It has not authorized the filing of any effective financing statement or other instrument similar in effect covering all or any part of the Account Collateral, except (i) as filed in favor of the Trustee, for the benefit of the Bondholders, pursuant to this Accounts Agreement or the other Bond Documents, and (ii) as filed or to be filed, subsequent to such filing, in respect of the Liens in favor of the Trustee. To the best of its knowledge, no effective financing statement or other instrument similar in effect covering all or any part of the Account Collateral or listing the Company or any trade name of the Company as debtor is on file in the applicable recording office, except as filed in favor of the Trustee, for the benefit of the Bondholders, relating to the Bond Documents, and it has not entered into, and shall not enter into, any security control agreement or other agreement similar in effect, in each case covering all or any part of the Account Collateral, except as may have been entered into in favor of the Trustee, for the benefit of the Bondholders, relating to this Accounts Agreement or the other Bond Documents, subject to Section 2.6.10 (Negative Covenants—Liens) of the Lease Agreement ; (b) on or prior to the date of the first Funding Notice all filings, registrations, notifications and recordings, if any, necessary or appropriate to create, preserve, protect and perfect the first-priority security interest granted by the Company to the Trustee, for the benefit of the Bondholders, hereby in respect of the Project Accounts and the Account Collateral will have been made, and such first-priority security interest granted to the Trustee, for the benefit of the Bondholders, pursuant to this Accounts Agreement in and to the Project Accounts and the Account Collateral will constitute a valid and enforceable security interest therein that, to the extent such security interest may be perfected under the UCC, will be perfected and that will be subject to no prior security interest that can be perfected under the UCC; (c) until the Security Discharge Date, the Company will not execute or authorize to be filed in any public office any UCC financing statement (or similar statement or instrument of registration under the law of any jurisdiction) or statements relating to the Project Accounts or the Account Collateral, except for (i) the filings or registrations made in respect of the Bond Documents and (ii) the filings or registrations made or to be made, subsequent to such filings, in respect of the Liens in favor of the Trustee. (d) except for the filings, registrations, notifications and recordings referred to in Section 19.01(b) (Representations and Warranties), no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or any other third party is required for (i) the grant by the Company of the pledge and security interest granted hereunder or for the execution, delivery or performance of this Accounts Agreement by the Company, (ii) the 56 perfection or maintenance of the pledge and security interest created hereunder (including the first-priority nature of such pledge or security interest), or (iii) the exercise by the Trustee, on behalf of the Bondholders, and the Accounts Bank of their respective rights provided for in this Accounts Agreement or the remedies in respect of the Account Collateral pursuant to this Accounts Agreement; (e) except for the rights of the Trustee, for the benefit of the Bondholders, granted hereunder or pursuant hereto, it does not know of and has not received written notice of any right or claim to or interest in (including any adverse claim) any Account Collateral by any Person other than the Company; and (f) its exact legal name is Recovery Technology Solutions Shakopee, LLC, it is duly organized and validly existing as a corporation under the laws of the State of Delaware, and its chief executive office is located at the address provided for the Company in Section 20.10 (Notices and Other Communications). (END OF ARTICLE XIX) 57 ARTICLE XX MISCELLANEOUS Section 20.01 Security Discharge Date. Upon the Notice of Security Discharge Date: (a) all references to withdrawals from the Project Accounts relating to payments to the Trustee or the Bondholders shall have no force and effect; and (b) the Trustee and the Bondholders shall cease to have any rights hereunder, except for their respective rights under Article XVIII (The Accounts Bank) and this Article XX (Miscellaneous), and shall cease to have any obligations hereunder. Section 20.02 Amendments,Etc. (a) Except as provided in Section 20.02(b) (Amendments, Etc.), no amendment or waiver of any provision of this Accounts Agreement and no consent to any departure by the Company to any material provision hereof shall be effective unless in writing signed by the Trustee and, in the case of an amendment, the Company, the Trustee, the Securities Intermediary and the Accounts Bank, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, that no amendment, waiver or consent shall unless in writing and signed by the Accounts Bank in addition to the Trustee, affect the rights or duties of, or any fees or other amounts payable to, the Accounts Bank under this Accounts Agreement. (b) The parties hereto acknowledge that the provisions of Section 2.6.8 (Negative Covenants—Additional Indebtedness; Guarantees) of the Lease Agreement and Section 2.12 (Authorization of Additional Bonds ) of the Indenture make provision for the issuance of Additional Bonds (as defined in the Indenture ) and the provisions of Section 2.6.8 (Negative Covenants—Additional Indebtedness; Guarantees) of the Lease Agreement make provision for Subordinate Indebtedness. Subject to satisfaction of such conditions precedent to the issuance of Additional Bonds or Subordinate Indebtedness, as applicable, the parties hereto agree to cooperate in the preparation of an amendment or supplement to this Accounts Agreement in order to accommodate necessary amendments, modifications and revisions to allow for the issuance of Additional Bonds, as applicable, on a parity with respect to payments of principal, redemption premium, if any, and interest on the Series 2014 Bonds, and in the case of Subordinate Indebtedness, on a subordinate basis to the Series 2014 Bonds and any Additional Bonds. Such amendment or supplement to this Accounts Agreement may be approved without the consent of the holders of any Series 2014 Bonds, subject, however, to the satisfaction of the conditions precedent to issuance of Additional Bonds under the Indenture. (c) Subject to the provisions of Section 20.02 (Amendments, Etc.), amendments to this Accounts Agreement shall be subject to and made only in accordance with the same conditions as are applicable to amendments to the Indenture under the provisions of Sections 11.01 and 11.02 thereof, excepting that any such amendment shall also require the consent of the Company. 58 Section 20.03 Applicable Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MINNESOTA, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS. (b) SUBMISSION TO JURISDICTION. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MINNESOTA SITTING IN HENNEPIN COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA,AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS ACCOUNTS AGREEMENT, OR ANY OTHER BOND DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH MINNESOTA STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS ACCOUNTS AGREEMENT OR IN ANY OTHER BOND DOCUMENT SHALL AFFECT ANY RIGHT THAT ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS ACCOUNTS AGREEMENT,ANY OTHER BOND DOCUMENT AGAINST THE COMPANY, THE ACCOUNTS BANK OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. (c) WAIVER OF VENUE. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS ACCOUNTS AGREEMENT OR ANY OTHER BOND DOCUMENT IN ANY COURT REFERRED TO IN SECTION 20.03(b) (MISCELLANEOUS —APPLICABLE LAW; JURISDICTION; ETC — SUBMISSION TO JURISDICTION). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT. (d) Appointment of Process Agent and Service of Process. The Company hereby irrevocably appoints [Dorsey & Whitney LLP] with an office on the date hereof at [50 South Sixth Street, Suite 1500, Minneapolis, Minnesota 55402], as its agent to receive on behalf of itself and its property services of copies of the summons and complaint and any other process that may be served in any such action or proceeding in the State of Minnesota. If for any reason the Process Agent shall cease to act as such for the Company, the Company hereby agrees to designate a new agent in Minnesota on the terms and for the purposes of this Section 20.03 (Applicable Law; Jurisdiction; Etc.) reasonably satisfactory to the Trustee, on behalf of the Bondholders. Such service may be made by mailing or delivering a copy of such process to the 59 Company in care of the Process Agent at the Process Agent's above address, and the Company hereby irrevocably authorizes and directs the Process Agent to accept such service on its behalf As an alternative method of service, the Company also irrevocably consents to the service of any and all process in any such action or proceeding by the air mailing of copies of such process to the Company at its then effective notice addresses pursuant to Section 20.10 (Notices and Other Communications). (e) Immunity. To the extent that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Company hereby irrevocably and unconditionally waives such immunity in respect of its obligations under this Accounts Agreement, the other Bond Documents and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 20.03(e) (Miscellaneous —Application Law; Jurisdiction; Etc. — Immunity) shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act. (f) WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS ACCOUNTS AGREEMENT, ANY OTHER BOND DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS ACCOUNTS AGREEMENT, THE OTHER BOND DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 20.03 (APPLICABLE LAW; JURISDICTION; ETC.). Section 20.04 Assignments. The provisions of this Accounts Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Trustee and the Accounts Bank may not assign or delegate any of its rights or obligations under this Accounts Agreement except pursuant to Section 18.05 (Resignation or Removal of Accounts Bank). Section 20.05 Benefits of Accounts Agreement. Nothing in this Accounts Agreement or any other Bond Document, express or implied, shall give to any Person, other than the parties hereto, and their respective successors and assigns permitted under this Accounts Agreement or any other Bond Document, any benefit or any legal or equitable right or remedy under or by reason of this Accounts Agreement. 60 Section 20.06 Costs and Expenses. The Company shall pay (i) all reasonable and documented out of pocket expenses incurred by the Accounts Bank, the Securities Intermediary and the Trustee (including all reasonable legal fees, costs and expenses of counsel for the Accounts Bank, the Securities Intermediary and the Trustee), in connection with the preparation, negotiation, execution and delivery of this Accounts Agreement and the administration and maintenance of the Project Accounts (whether or not the transactions contemplated hereby are consummated); (ii) all reasonable and documented out of pocket expenses incurred by the Accounts Bank, the Securities Intermediary and the Trustee (including all reasonable legal fees, costs and expenses of counsel for Accounts Bank,the Securities Intermediary and the Trustee), in connection with any amendments, modifications or waivers of the provisions of this Accounts Agreement (whether or not the transactions contemplated hereby are consummated); (iii) all reasonable and documented out-of-pocket expenses incurred by the Accounts Bank, the Securities Intermediary and the Trustee (including all reasonable legal fees, costs and expenses of counsel for Accounts Bank, the Securities Intermediary and the Trustee), in connection with the administration of this Accounts Agreement (whether or not the transactions contemplated hereby are consummated); and (iv) all out-of-pocket expenses incurred by the Accounts Bank, the Securities Intermediary and the Trustee (including all legal fees, costs and expenses of counsel for any of the Accounts Bank, the Securities Intermediary and the Trustee), in connection with the enforcement or protection of their rights in connection with this Accounts Agreement, including their rights under this Section 20.06 (Costs and Expenses), including in connection with any workout, restructuring or negotiations in respect of the Obligations. Section 20.07 Counterparts; Effectiveness. This Accounts Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Accounts Agreement shall become effective when it has been executed by the Trustee and when the Trustee has received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Accounts Agreement by telecopy or portable document format ("pdf') shall be effective as delivery of a manually executed counterpart of this Accounts Agreement. Section 20.08 Indemnification by the Company. In addition to the indemnity by Company set forth in Section 20.10(f) (Notices and Other Communications), the Company hereby agrees to indemnify and defend the Accounts Bank (and any sub-agent thereof), the Securities Intermediary (and any sub-agent thereof), the Trustee (and any agent thereof) and each Affiliate to any of the foregoing Persons (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including all reasonable fees, costs and expenses of counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee by any third party or by the Company arising out of, in connection with, or as a result of: (a) the performance by the parties hereto or thereto of their respective obligations hereunder or the consummation of the transactions contemplated hereby, provided that the Indemnitee is acting in accordance with the terms of this Accounts Agreement; 61 (b) any funds deposited in or credited to any Project Account or the use or proposed use of the proceeds therefrom; provided that the Indemnitee is acting in accordance with the terms of this Accounts Agreement and (c) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any of the Company's members, managers or creditors, regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the negligence or willful misconduct of such Indemnitee. Section 20.09 No Waiver; Cumulative Remedies. No failure by the Accounts Bank, the Securities Intermediary or the Trustee to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder, or under any other Bond Document, shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Bond Document, are cumulative and not exclusive of any rights, remedies,powers and privileges provided by law. Section 20.10 Notices and Other Communications. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 20.10(b) (Notices and Other Communications), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or e-mail to the address, telecopier number or e-mail address specified for such Person on Schedule 20.10: (a) Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient); and notices delivered through e-mail to the extent provided in Section 20.10(b) (Notices and Other Communications) shall be effective as provided in Section 20.10(b) (Notices and Other Communications). (b) To the extent a written notice specifying a designated e-mail address is provided by any party hereto to the other parties hereto for purposes of providing notices hereunder, notices and other communications to the Company, the Accounts Bank, the Securities Intermediary and the Trustee hereunder may be delivered or furnished by e-mail. Each of the Company, the Accounts Bank, the Securities Intermediary and the Trustee may, in its sole discretion, agree to limit the acceptance of notices and other communications to it hereunder by e-mail pursuant to procedures approved by it; provided that such limitations are provided in writing to the other parties hereto in advance of the effectiveness of such limitations. Notice of an e-mail address hereunder must be made by a separate writing from the party authorizing the 62 use of a designated e-mail address for purposes of notice; provided, that a listing of such notice on Schedule 20.10 shall be deemed such a written notice. [Notices to the Trustee must be delivered in accordance with this Section 20.10, but must be a written notice sent other than by e-mail; provided, however, that all certificates and notices required to be delivered to the Accounts Bank hereunder in connection with any transfers or disbursements of funds held in the Project Accounts may be provided to the Accounts Bank in a pdf file transmitted electronically via e-mail to the Accounts Bank subject to (1) the requirement that the sender acknowledge in such e-mail transmission that it will provide to the Accounts Bank by hand delivery, overnight courier service or mail the originals of such certificates or notices and (2) confirmation by the Accounts Bank to the Trustee that they approved by telephone that the sender was the author of such certificate or notice.] (c) Unless otherwise prescribed, notices and other communications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement); provided that if such notice or other communication is not received during the normal business hours of the recipient, such notice or communication shall be deemed to have been received at the opening of business on the next Business Day for the recipient. (d) All notices and documents received by the Company, the Accounts Bank, the Securities Intermediary and the Trustee under the provisions of this Agreement, or photographic copies thereof, shall be retained in their possession until this Agreement shall be released in accordance with the provisions hereof. (e) The Company, the Accounts Bank, the Securities Intermediary and the Trustee may, by notice given hereunder, designate any further or different addresses, telecopier or e-mail addresses to which subsequent notices, certificates or other communications shall be sent. (1) The Accounts Bank, the Securities Intermediary and the Trustee shall be entitled to rely and act upon any written notices purportedly given by or on behalf of the Company even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify the Accounts Bank, the Securities Intermediary and the Trustee and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Company. All telephonic notices to and other telephonic communications with the Accounts Bank, the Securities Intermediary and the Trustee may be recorded by the Accounts Bank, the Securities Intermediary and the Trustee, and each of the parties hereto hereby consents to such recording. Section 20.11 Patriot Act Notice. The Accounts Bank hereby notifies the Company that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow the Accounts Bank to identify the Company in accordance with the Patriot Act. 63 Section 20.12 Severability. If any provision of this Accounts Agreement or any other Bond Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Accounts Agreement, the other Bond Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Section 20.13 Survival. Notwithstanding anything in this Accounts Agreement to the contrary, Article XIX (Representations and Warranties) and Section 20.06 (Costs and Expenses) and Section 20.08 (Indemnification by the Company) shall survive any termination of this Accounts Agreement. In addition, each representation and warranty made hereunder, in any other Bond Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Accounts Bank, the Securities Intermediary and the Trustee, regardless of any investigation made by the Accounts Bank, the Securities Intermediary and the Trustee or on their behalf and notwithstanding that the Accounts Bank, the Securities Intermediary and the Trustee may have had notice or knowledge of any Default or Event of Default at the time of the Funding, and shall continue in full force and effect as long as any Obligation hereunder or under any other Bond Document shall remain unpaid or unsatisfied. Section 20.14 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Law, the Company shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Accounts Agreement, any other Bond Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby or the use of any Bond Proceeds or NMTC Loan Proceeds. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Accounts Agreement, the other Bond Documents or the transactions contemplated hereby or thereby. Section 20.15 Waiver of Litigation Payments. To the extent that the Company may, in any action, suit or proceeding brought in any of the courts referred to in Section 20.03(b) (Applicable Law; Jurisdiction; Etc.) or elsewhere arising out of or in connection with this Accounts Agreement or any other Bond Document to which it is a party, be entitled to the benefit of any provision of law requiring the Trustee in such action, suit or proceeding to post security for the costs of the Company or to post a bond or to take similar action, the Company hereby irrevocably waives such benefit, in each case to the fullest extent now or in the future permitted under the laws of Minnesota or, as the case may be, the jurisdiction in which such court is located. (END OF ARTICLE XX) 64 IN WITNESS WHEREOF, the parties hereto have caused this Accounts Agreement to be executed by their respective officers as of the day and year first above written. (Signature Pages to Follow) KD_5890637_3.doc 65 SIGNATURE PAGE OF BORROWER TO ACCOUNTS AGREEMENT RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Company By: Its: Attest: By: Its: 66 SIGNATURE PAGE OF ACCOUNTS BANK TO ACCOUNTS AGREEMENT UMB BANK,N.A., as Accounts Bank By: Its: 67 SIGNATURE PAGE OF SECURITIES INTERMEDIARY TO ACCOUNTS AGREEMENT UMB BANK,N.A., as Securities Intermediary By: Its: 68 SIGNATURE PAGE OF TRUSTEE TO ACCOUNTS AGREEMENT UMB BANK,N.A., as Trustee By: Its: 69 BOND PLACEMENT AGREEMENT $[16,000,000] CITY OF SHAKOPEE,MINNESOTA Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee,LLC Project), Series 2014 City of Shakopee,Minnesota, [•],2014 as Issuer 129 South Holmes Shakopee,Minnesota 55379 Recovery Technology Solutions Shakopee,LLC, as Company 500 S.Marshall Rd, Suite 200 Shapokee,MN 55379 Ladies and Gentlemen: The undersigned, Stern Brothers & Co. (the "Agent"), offers to enter into the following agreement (the "Placement Agreement") with you, the City of Shakopee, Minnesota (the "Issuer") and Recovery Technology Solutions Shakopee, LLC (the "Company") which, upon your acceptance of this offer, shall be binding upon you and the Agent. Terms utilized herein and with initial capitalization and not defined herein shall have the meaning ascribed thereto in the Limited Offering Memorandum (as defined in Section 4 hereof). This offer is made subject to your acceptance of this Placement Agreement on or before 11:59 p.m. CST time on the date hereof. 1. Placement and Sale. (a) Upon the terms and conditions and upon the basis of the respective representations, warranties and covenants hereinafter set forth, the Issuer hereby agrees to sell all, but not less than all, of its $[16,000,000] Solid Waste Revenue Bonds, Series 2014 (the "Series 2014 Bonds"), and the Agent agrees to use its best efforts, on an all or none basis, to privately place the Series 2014 Bonds with Qualified Investors or Institutional Accredited Investors (each, as defined herein). Upon receipt by the Agent of orders for the Series 2014 Bonds, the Issuer, the Company and the Agent shall execute this Placement Agreement, with the amounts, interest rates and maturities of the Series 2014 Bonds being as described on Exhibit A hereto. (b) The Series 2014 Bonds have been authorized by the Issuer pursuant to(i)the Constitution and laws of the State of Minnesota, particularly Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act"); (ii) the Indenture of Trust, dated as of[9], 2014 (the "Indenture"), between the Issuer and UMB Bank, N.A., as the trustee (the "Trustee") for the Series 2014 Bonds; and (iii) a Resolution adopted by the Issuer on [October 21,2014]. (c) The net proceeds from the sale of the Series 2014 Bonds will be utilized by the Company and the Issuer pursuant to the terms of the Lease Agreement, dated as of[E.], 2014 (the"Lease"), between the Issuer, as lessor, and the Company, as lessee, (i)to finance, refmance or reimburse all or a portion of the costs of acquiring, constructing, equipping, installing, and improving an asphalt shingle recovery facility to be located at 6528 County Road 101 East in the City of Shakopee, Minnesota (the "Project") (as more specifically described in the hereinafter defined Limited Offering Memorandum), (ii) to fund one or more reserve accounts for the Series 2014 Bonds, and (iii) to pay certain costs relating to the issuance of the Series 2014 Bonds, all as permitted under the Act. (d) The Series 2014 Bonds will be special, limited obligations of the Issuer payable from the Trust Estate pledged under the Indenture and a pledge and assignment of the right,title and interest of the Issuer in the Lease(except for the Unassigned Rights(as defined in the Indenture)). Payment of principal, interest, and any premium on the Series 2014 Bonds will be further secured by the Bond Guaranty Agreement, dated as of[6],2014 (the"Guaranty")from Recovery Technology Solutions Shakopee,LLC, as guarantor(the "Guarantor") to the Trustee for the benefit of the Holders of the Series 2014 Bonds, as well as the other Security Documents. 2. Private Placement. The Company and the Agent acknowledge that the Agent will restrict the placement of the Series 2014 Bonds to persons who represent that they are (a) "qualified institutional buyers" within the meaning of Rule 144A(a)(1) ("Qualified Institutional Buyers"), as promulgated and adopted by the Securities and Exchange Commission("SEC")under the Securities Act of 1933, as amended (the "1933 Act"), or (b) institutional "accredited investors" as defined in Rule 501(a)(1), (2), (3) or (7) under the 1933 Act ("Institutional Accredited Investors"). Qualified Institutional Buyers and Institutional Accredit Investors are hereinafter referred to collectively as a "Qualified Investor" or "Qualified Investors." Qualified Investors shall be required to sign an"Investment Letter"in substantially the form attached hereto as Exhibit B. 3. Exemption from SEC Rule 15c2-12. The Agent represents that the Series 2014 Bonds are being offered solely to Qualified Investors in minimum denominations of $100,000 pursuant to a limited offering of not more than 35 purchasers, each of whom the Agent reasonably believes(a)has such knowledge and experience in financial and business matters that such person is capable of evaluating the merits and risks of the prospective investment in the Series 2014 Bonds and (b)is not purchasing for more than one account with a view to distributing the Series 2014 Bonds. Based upon such representations, pursuant to Rule 15c2-12 (the "Rule") promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the "1934 Act"), in reliance on paragraph(d) of the Rule, the offer and sale of the Series 2014 Bonds is exempt from the Rule; however, the parties have voluntarily agreed to abide by the provisions of the Rule. 4. Limited Offering Memorandum. (a) The Series 2014 Bonds have been offered for sale by the Agent to Qualified Investors pursuant to a Preliminary Limited Offering Memorandum (as defined herein). With the consent of the Company and the Issuer,the Agent has distributed the Preliminary Limited Offering Memorandum, dated [•], 2014, relating to the Series 2014 Bonds (which together with the cover page and all appendices, reports and statements included therein or attached thereto are herein referred to as the "Preliminary Limited Offering Memorandum") in connection with the marketing of the Series 2014 Bonds. The Issuer and the Company represent that the Preliminary Limited Offering Memorandum constitutes, and hereby deem the same to be, a "final official statement" as of its date within the meaning of paragraph (b)(1) of the Rule The Issuer makes the representations in this paragraph only with respect to the information 2 contained under the captions "THE ISSUER" and "LITIGATION — The Issuer" in the Preliminary Limited Offering Memorandum and the Limited Offering Memorandum. The Preliminary Limited Offering Memorandum, as revised to reflect the offering prices in such final form, is hereinafter referred to as the "Limited Offering Memorandum" and has been deemed to be final as of the date hereof within the meaning of the Rule. The Company hereby agrees to provide to the Agent,promptly and in no event later than seven (7) business days from the date hereof, a sufficient quantity of the Limited Offering Memorandum, with such additions, deletions or modifications as are mutually agreed to by the Issuer, the Company and the Agent and executed on behalf of the Company by a duly authorized officer, so as to enable the Agent to comply with requirements of paragraph (b)(4) of the Rule. The Company shall also deliver, or cause the Agent to deliver to the Issuer, copies of the Preliminary Limited Offering Memorandum and the Limited Offering Memorandum in form and quantity, sufficient to comply with the requirements of the Issuer. (b) If, between the date of this Placement Agreement and the date which is 120 days following the Closing Date (as defined herein), any event shall occur which might or would cause the Limited Offering Memorandum to contain an untrue statement of a material fact or to omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company shall notify the Agent and if, in the opinion of the Agent or the Issuer, such event requires the preparation and publication of a supplement or amendment to the Limited Offering Memorandum, the Company will supplement or amend the Limited Offering Memorandum in a form in any manner approved by the Agent and the Issuer. If the Limited Offering Memorandum is so supplemented or amended prior to the Closing Date, such approval by the Agent and the Issuer of a supplement or amendment to the Limited Offering Memorandum shall not preclude the Agent from thereafter terminating this Placement Agreement if, in the reasonable judgment of the Agent, such amendment or supplement has or will have a material adverse effect on the marketability of the Series 2014 Bonds. (c) The Issuer and the Company each hereby authorize and approve the distribution of the Limited Offering Memorandum and consent to the use of the Limited Offering Memorandum by the Agent. The Issuer and the Company each further consent to and ratify and confirm the distribution and use by the Agent, prior to the date upon which the Limited Offering Memorandum is executed and available for distribution, of the Preliminary Limited Offering Memorandum. It is understood, however, that the Issuer has neither prepared, nor made any investigation of, the information in either the Preliminary Limited Offering Memorandum or the Limited Offering Memorandum other than that pertaining to the Issuer. (d) In the event that the Limited Offering Memorandum, as required, is not delivered to the Agent within seven (7) business days after the date hereof, the Agent shall have the absolute right to cancel its obligations under this Placement Agreement at any time upon notice to the Company and the Issuer by the Agent,unless the deadline for delivery of the Limited Offering Memorandum is extended by mutual agreement of the Issuer,the Company and the Agent. 5. Representations, Warranties and Covenants of the Issuer. The Issuer hereby represents and warrants to,and covenants with,the Agent and the Company that: (a) The Issuer is statutory city and political subdivision duly organized and existing under the Constitution and laws of the State of Minnesota("State"). (b) The Issuer is authorized under the Constitution and laws of the State, including particularly the Act,to(i)issue the Series 2014 Bonds for the purposes for which they are to be issued, as set forth herein and in the Limited Offering Memorandum; (ii)use the proceeds of the Series 2014 Bonds 3 for the purposes set forth in the Lease; (iii)enter into this Placement Agreement,the Indenture, the Lease and the Tax Agreement (as defined in the Indenture); and (iv)pledge and assign to the Trustee the Issuer's rights under the Lease (other than the Unassigned Rights) as security for the payment of the principal of and interest on the Series 2014 Bonds. (c) The Issuer has full power and authority to consummate the transactions contemplated to be consummated by it in this Placement Agreement, the Indenture, Lease, the Tax Agreement and the Limited Offering Memorandum, and the Issuer has duly authorized and approved the execution and delivery of the same as well as any and all such other agreements and documents as may be required to be executed, delivered or received by the Issuer in order to carry out, give effect to and consummate the transactions contemplated herein and in the Limited Offering Memorandum. (d) The Series 2014 Bonds,when issued, delivered and paid for as provided herein and in the Indenture will have been duly authorized and issued and will constitute valid and binding limited obligations of the Issuer enforceable in accordance with their terms and entitled to the benefits and security of the Indenture and the Lease(subject in each instance to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws or laws affecting the enforcement of creditors' rights generally or relating to a public body such as the Issuer, as from time to time in effect, and further subject to the availability of applicable equitable principals). (e) The execution and delivery by the Issuer of this Placement Agreement, the Series 2014 Bonds, the Indenture, the Lease, the Tax Agreement and other documents contemplated herein or in the Limited Offering Memorandum to be executed and delivered by the Issuer, and compliance by the Issuer with their provisions, and the pledge and the assignment of the right, title and interest of the Issuer in the Lease (other than Unassigned Rights)to the Trustee, do not and will not, in any material respect, conflict with or constitute on the part of the Issuer a breach of or a default under any existing law, court or administrative regulation, decree, order, agreement, indenture, mortgage or lease by which the Issuer is or may be bound; provided, no representation is made with respect to Federal or state securities laws, rules or regulations. (f) The information relating to the Issuer under the headings "THE ISSUER" and "LITIGATION—The Issuer" contained in the Limited Offering Memorandum as of its date will not, and as of the Closing Date will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements made therein, in light of the circumstances under which they were made,not misleading. (g) Except as may be set forth in the Limited Offering Memorandum, there is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the knowledge of the Issuer, threatened against or affecting the Issuer (as to which the Issuer has received service of process) or, to the actual knowledge of the Issuer, threatened against or affecting the Issuer (or to the actual knowledge of the Issuer, any meritorious basis therefor) wherein an unfavorable decision, ruling or finding (i)would adversely affect the transactions contemplated herein or in the Limited Offering Memorandum, or(ii)the validity or enforceability against the Issuer of the Series 2014 Bonds, the Indenture, the Lease, the Tax Agreement, this Placement Agreement or any other agreement or instrument to which the Issuer is a party and which is used or contemplated for use in the consummation by the Issuer of the transactions contemplated herein or in the Limited Offering Memorandum. (h) Neither the corporate existence of the Issuer nor the right of the members of the Issuer to their offices nor the title of the officers of the Issuer to their respective offices are being contested and no 4 grant of authority or outcome of proceeding of the Issuer for the issuance of the Series 2014 Bonds has been repealed,revoked or rescinded. (i) The Issuer agrees to cooperate reasonably with the Agent and its counsel in any endeavor to qualify the Series 2014 Bonds for offering and sale under the securities or "Blue Sky" laws of such jurisdictions of the United States as the Agent may request;provided,however,that the Issuer shall not be required with respect to the offer or sale of the Series 2014 Bonds to consent to suit or to consent to service of process in any jurisdiction or take any action which it deems unreasonably burdensome and shall not be deemed to have made any representations with regard to securities or"blue sky" laws of any state or the securities laws of the United States. The Issuer shall not be obligated to pay any expenses or costs(including legal fees)incurred in connection with such qualification. (j) Any certificate signed by an authorized officer of the Issuer and delivered to the Agent, the Company or Bond Counsel shall be deemed a representation and warranty by the Issuer to the Agent, the Company or Bond Counsel,as the case may be,as to the statements made therein. 6. Representations and Warranties of the Company. In order to induce the Agent to enter into this Placement Agreement and to induce the Issuer to enter into the Indenture, the Lease, the Tax Agreement and this Placement Agreement and to issue the Series 2014 Bonds for the purposes stated above, and in consideration of the foregoing and of the execution and delivery of this Placement Agreement by the parties hereto, the Company represents and warrants to, and covenants with, the Issuer and the Agent that: (a) The Company is a limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware and has all necessary material licenses and permits required to date to carry on its business and to operate the Project. The Company has not received any notice of an alleged violation and, to the best of its knowledge, the Company is not in violation of any zoning, land use or other similar law or regulation applicable to the Project which would materially adversely affect the operations or financial condition of the Company. The Company has the full right, power and authority to enter into and deliver (i) the Limited Offering Memorandum, (ii) the Lease, (iii) the Base Lease Agreement, (iv) the Accounts Agreement, (v) the Guaranty, (vi) the Pledge and Security Agreement, (vii)the Mortgage, (viii)the Collateral Assignment of Contracts, (ix)the Tax Agreement, (x) the Security Agreement (xi)this Placement Agreement and such other documents as deemed necessary in connection the issuance of the Series 2014 Bonds (collectively, the "Company Documents") and to perform other acts and things as provided for in each of the foregoing. (b) The execution and delivery by the Company of the Company Documents and the other documents contemplated herein and therein and the compliance with the provisions of any and all of the foregoing documents and the application of the proceeds of the Series 2014 Bonds, together with certain other moneys, for the purposes described in the Limited Offering Memorandum, do not and will not conflict with or result in the breach of any of the terms, conditions or provisions of, or constitute a material default under, the Certificate of Formation or the Limited Liability Company Agreement of the Company or any other material agreement, indenture, mortgage, lease or instrument by which the Company or any of its respective property is bound or any existing law or court or administrative regulation,decree or order which is applicable to the Company or its property. (c) To the best of its knowledge, no default, event of default or event which, with notice or lapse of time, or both, would constitute a material default or event of default under the Company Documents or any other material agreement or material instrument to which the Company is a party or by which it is or may be bound or to which any of its respective property is or may be subject has occurred and is continuing. 5 (d) The Company has duly authorized all necessary action required to be taken by it for (i)the issuance and sale of the Series 2014 Bonds by the Issuer upon the terms and conditions set forth herein, in the Limited Offering Memorandum and in the Indenture, (ii)the approval of the Series 2014 Bonds and the Indenture, (iii)the approval and execution of the Limited Offering Memorandum and (iv)the execution, delivery and performance of the Company Documents and any and all such other agreements and documents as may be required to be executed, delivered and performed by the Company in order to carry out, effectuate and consummate the transactions contemplated on the Company's part by the Company Documents and by the Limited Offering Memorandum. (e) At the Closing (as defined herein), no liens, encumbrances, covenants, conditions and restrictions, if any,will be then-existing(not otherwise previously disclosed to the Agent or created on the date thereof pursuant to the Company Documents)which would interfere with or impair the operation, or materially adversely affect the value, of the Project or the Company's other assets, given the purposes for which the same are being used. (f) The Preliminary Limited Offering Memorandum did not, as of its date, and the Limited Offering Memorandum did not, as of its date, and will not as of the Closing Date, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which they are made, not misleading; provided, however, that the Company makes no representation or warranty as to the statements and information contained in the Limited Offering Memorandum under the captions "THE ISSUER," "LITIGATION— The Issuer," "TAX MATTERS" and "PLACEMENT OF BONDS" and the statements and information contained in Appendices [_, _, _, and _] of the Limited Offering Memorandum, except to the extent that information under such captions was based upon information supplied by, or solely within the knowledge of, the Company. The Company hereby consents to the use of the Limited Offering Memorandum in connection with the private placement of the Series 2014 Bonds by the Agent with Qualified Investors and confirms that it has consented to the use of the Preliminary Limited Offering Memorandum for such purpose prior to the availability of the Limited Offering Memorandum. (g) The Company will not take or omit to take any action which will in any way cause or result in the proceeds of the Series 2014 Bonds being applied in a manner other than as provided in the Indenture,the Lease,the Tax Agreement or as described in the Limited Offering Memorandum. (h) Except as may be described in the Limited Offering Memorandum, there is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any public board or body pending or, to the knowledge of the Company, threatened against or affecting the Company, or to the knowledge of the Company any meritorious basis therefor, wherein an unfavorable decision, ruling or finding would have a material adverse effect on the financial condition of the Company,the operation by the Company of its facilities and the transactions contemplated by the Company Documents and the Limited Offering Memorandum or would have an adverse effect on the validity or enforceability of the Company Documents or any other agreement or instrument by which the Company is or may be bound or would in any way contest the existence or powers of the Company. (i) This Placement Agreement is, and upon their execution and delivery the other Company Documents will be, the legal, valid and binding obligations of the Company enforceable in accordance with their respective terms (subject to any applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors' rights generally from time to time in effect and to 6 applicable legal principles and procedural requirements if equitable and other specific remedies are sought and subject to the qualification that enforcement of the indemnification provisions of this Placement Agreement may be limited by Federal or State securities laws as the same may have been interpreted by judicial decisions). (j) Any certificate signed by an authorized officer of the Company and which has been delivered to the Issuer or the Agent shall be deemed a representation and warranty by the Company to the Issuer and Agent as to the statements made therein. (k) The Company agrees to cooperate reasonably with the Agent and its counsel in any endeavor to qualify the Series 2014 Bonds for offering and sale under the securities or"blue sky" laws of such jurisdictions of the United States as the Agent may reasonably request, provided that the Company shall not be required to qualify to do business in any jurisdiction where it is not now so qualified, or to take any action which would subject it to general service of process in any jurisdiction where it is not now so qualified, or to take any action which would subject it to general service of process in any jurisdiction where it is not now so subject. The Company ratifies and consents to the use of drafts of the Preliminary Limited Offering Memorandum and drafts of the Limited Offering Memorandum, prior to the availability of the Limited Offering Memorandum in final form, in obtaining such qualification. The Company shall pay all reasonable expenses and costs (including legal fees) incurred in connection with such qualification. (1) To the best knowledge of the Company, after due inquiry, (i)other than those Hazardous Substances (as hereinafter defined) used in the course of operation of the facility in accordance with Federal, State and local laws and regulations, no dangerous, toxic or hazardous pollutants, contaminants, chemicals, waste, materials or substances, as defined in or governed by the provisions of any Federal, State or local law, statute, code, ordinance, regulation, requirement or rule relating thereto (collectively, "Environmental Regulations"), including ureaformaldehyde, polychlorinated biphenyls, nuclear fuel or waste, radioactive materials, explosives, carcinogens and petroleum products, or any other waste, material, substance, pollutant or contaminant which would subject the Company to any damages, penalties or liabilities under any applicable Environmental Regulation (collectively, "Hazardous Substances") are now or have been stored, located, generated, produced, processed, treated, transported, incorporated, discharged, emitted, released, deposited or disposed of in, upon, under, over or from the Project, including real estate which is a part thereof; (ii)the Project has not been used as or for a mine, a landfill, a dump or other disposal facility or a gasoline service station; (iii)no person, party, or private or governmental agency or entity has given any notice of or asserted any claim, cause of action,penalty, cost or demand for payment or compensation, whether or not involving any injury or threatened injury to human health, the environment or natural resources, resulting or allegedly resulting from any activity or event described in (i) above; (iv)there are not now any actions, suits, proceedings or damage settlements relating in any way to Hazardous Substances in, upon,under, over or from the Project; and(v)the Project is not subject to any lien or claim for lien or threat of a lien in favor of any governmental entity or agency as a result of any release or threatened release of any Hazardous Substance. (m) With respect to any pension plan (a "Plan") in which the Company participates and with regard to compliance by the Company with ERISA (i)neither any Plan nor the trusts created thereunder, nor any trustee or administrator thereof, has engaged in a"prohibited transaction,"as such term is deemed in Section 4975 of the Code, which could subject the Plan, any such trust, or any trustee or administrator thereof, or any party dealing with the Plan or any such trust to the tax or penalty on prohibited transactions imposed by Section 4975 of the Code; (ii)the performance of the transactions contemplated by the Limited Offering Memorandum will not involve any prohibited transaction (other than an exempt prohibited transaction); (iii)neither any Plan nor any such trusts have been terminated, nor have there been any "reportable events," as such term is defined in Section 4043 of ERISA, since the effective date 7 of ERISA except for the reportable events heretofore disclosed to the Agent in writing which had no material adverse effect on the financial conditions or results of operation of the Company; and(iv)neither any Plan nor any such trusts have incurred any"accumulated funding deficiency,"as such term is defined in Section 302 of ERISA (whether or not waived), since the effective date of ERISA. In addition, the Company and any subsidiary, member of a controlled corporation or affiliated service group in which the Company is a member or has an interest, (i)has fulfilled in all material respects its obligations under the minimum funding standards of ERISA and the Code with respect to each of its pension plans; (ii)is in compliance in all material respects with the presently applicable provisions of ERISA, the Code and any Plan; and (iii)has not incurred any material and past due liability to the Pension Benefit Guaranty Corporation. Neither the Company nor any subsidiary, member of a controlled group or affiliated service group in which it is a member or has an interest, is required to make or accrue, nor has ever made or accrued, an obligation to make a material contribution to a "multiemployer plan" as defined in Section 3(37)(A)of ERISA or Section 414 of the Code. (n) Subsequent to [insert date of most recent financial statements provided], there have been no material adverse changes in the assets, liabilities or condition of the Company, financial or otherwise, and neither the operations nor the properties of the Company have been adversely affected in any substantial way as the result of any fire, explosion, accident, strike, riot, flood, windstorm, earthquake, embargo,war or act of God. (o) All approvals, consents, authorizations, certifications and other orders of any government authority, board, agency or commission having jurisdiction, and all filings with such entities, which would constitute a condition precedent to or would adversely affect the performance by the Company of its obligations under the Company Documents have been or will be(when needed)obtained. (p) The Company has complied with all previous continuing disclosure undertakings, if any, executed by it pursuant to the Rule. 7. Representations, Covenants and Warranties of the Agent. The Agent represents, warrants and covenants to the Issuer and the Company that the Series 2014 Bonds will be offered in accordance with all applicable State and Federal laws. The Agent further represents, warrants and covenants that it has been duly authorized to execute this Placement Agreement, and that when executed by the Agent and the other parties hereto, this Placement Agreement will be a valid and binding obligation of the Agent. 8. Closing;Agent's Compensation. (a) At___.m., at the place of Closing, on [0], 2014, or at such other time or such other date as shall have been mutually agreed upon by the Issuer, the Company and the Agent (the "Closing Date"),the Issuer will deliver or cause to be delivered,the Series 2014 Bonds to the Agent for the account of the Agent,by delivery to the DTC as set forth below, in defmitive form duly executed by the Issuer and authenticated by the Trustee together with the other documents hereinafter mentioned; the Agent shall accept such delivery and pay the purchase price of the Series 2014 Bonds by wire transfer or other means of payment which result in the Trustee having immediately available funds. (b) Payment and delivery of the Series 2014 Bonds as aforesaid shall be made at the offices of or such other place as mutually agreed upon by the Issuer, the Company and the Agent. Such payment and delivery is herein called the "Closing." The Series 2014 Bonds shall be delivered as one fully registered Bond for each maturity to the Trustee to be held in its custody pursuant to a FAST delivery arrangement with and on behalf of the DTC on or before the Closing Date. It is anticipated that CUSIP identification numbers will be printed on the 8 Series 2014 Bonds,but neither the failure to print such numbers on any Bond nor any error in the printing of such numbers shall constitute cause for a failure or refusal by the Agent to accept delivery of and pay for any Bond. (c) In consideration of the Agent placing all, but not less than all, of the Series 2014 Bonds in the amounts, price(s), at the interest rates, principal payment dates and maturity dates, including dates for optional and mandatory redemption, as set forth in the Limited Offering Memorandum and in the Indenture, the Company agrees to pay to the Agent at the Closing, in immediately available funds, the sum of$[3%of Series 2014 Bond amount]. 9. Right to Cancel. The Agent shall have the right to cancel the Agent's obligations to purchase the Series 2014 Bonds (and such cancellation shall not constitute a default under this Placement Agreement) by the Agent notifying the Issuer and the Company of its election to do so on or prior to the Closing, if after the execution hereof and at any time on or prior to the Closing the following events shall occur or become known to the Agent: (a) legislation shall hereafter be enacted or actively considered for enactment or introduced, with an effective date prior to the date of the delivery of the Series 2014 Bonds or a decision by a court of the United States shall hereafter be rendered or a ruling or regulation by the SEC or other governmental agency having jurisdiction of the subject matter shall hereafter be made, the effect of which is that the Series 2014 Bonds are not exempt from the registration, qualification or other requirements of the 1933 Act as then in effect, of the 1934 Act as then in effect, or of the Trust Indenture Act of 1939, as amended(the"1 939 Act")and as then in effect; or (b) a stop order, ruling or regulation by the SEC shall hereafter be issued or made the effect of which is that the issuance, offering or sale of the Series 2014 Bonds, as contemplated hereby or by the final Limited Offering Memorandum, is in violation of any provision of the 1933 Act as then in effect, of the 1934 Act, as then in effect, or of the 1939 Act,as then in effect;or (c) there shall exist any event or information shall have become known which, in the reasonable judgment of the Agent, either: (i) makes untrue or incorrect in any material respect any statement or information contained in the Limited Offering Memorandum as originally circulated or(ii) is not reflected in the Limited Offering Memorandum as originally circulated but should be reflected therein in order to make the statements and information contained therein not misleading in any material respect and, in either such event,the Issuer or the Company refuses to permit the Limited Offering Memorandum as originally circulated to be supplemented to correct any such statement or to supply such statement or information which should be reflected therein, or the Limited Offering Memorandum as supplemented would, in the reasonable judgment of the Agent,materially adversely affect the market for the Series 2014 Bonds or the sale,at the contemplated offering prices,by the Agent; or (d) there shall have occurred any outbreak of hostilities or any national or international calamity or crisis, including financial crisis the effect of which on the financial markets of the United States would, in the reasonable judgment of the Agent, materially adversely affect the market for the Series 2014 Bonds or the sale of the Series 2014 Bonds, at the contemplated offering prices, by the Agent; or (e) there shall be in force a general suspension of trading on the New York Stock Exchange, the NYSE MKT or the NASDAQ Global Market, the effect of which on the financial markets of the United States would, in the reasonable judgment of the Agent, materially adversely affect the market for the Series 2014 Bonds or the sale of the Series 2014 Bonds, at the contemplated offering prices, by the Agent; or 9 (f) a general banking moratorium shall have been declared by federal, City or New York authorities, the effect of which on the financial markets of the United States would, in the reasonable judgment of the Agent, materially adversely affect the market for the Series 2014 Bonds or the sale of the Series 2014 Bonds, at the contemplated offering prices,by the Agent; or (g) any legislation, ordinance, resolution, rule or regulation shall be introduced in or enacted by any governmental department, body or agency in any state, or a decision by any court of competent jurisdiction within such state shall be rendered or reported which, in the reasonable judgment of the Agent, would materially adversely affect the market for the Series 2014 Bonds or the sale of the Series 2014 Bonds,at the contemplated offering prices,by the Agent; or (h) the Comptroller of the Currency, the Financial Industry Regulatory Authority, the New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose, as to the Series 2014 Bonds or obligations of the general character of the Series 2014 Bonds, any material restrictions not now in force,with respect to the extension of credit by, the net capital requirements of, or financial responsibility requirements of,the Agent; or (i) a default by the Company or the Issuer shall occur under any of the terms, conditions or requirements of this Placement Agreement. 10. Conditions to Closing. The obligations of the Agent hereunder shall be subject to the performance by the Issuer and the Company of their obligations to be performed hereunder at and prior to the Closing, to the accuracy in all material respects, in the reasonable judgment of the Agent, of the representations and warranties of the Issuer and the Company herein as of the date hereof and as of the time of the Closing and, in the reasonable discretion of the Agent, to the following conditions, including the delivery to the Agent of such documents as are enumerated herein in form and substance reasonably satisfactory to Krieg DeVault LLP, Indianapolis,Indiana,counsel to the Agent: (a) At the time of Closing: (i)the Company Documents, the Indenture, and the Series 2014 Bonds shall be in full force and effect and shall not have been amended, modified or supplemented by the parties thereto, except as may have been approved in writing by the Agent, (ii)the proceeds of the sale of the Series 2014 Bonds shall be deposited and applied as described in the Lease, the Indenture and the Accounts Agreement, and(iii)the Issuer shall have duly adopted and there shall be in full force and effect such resolutions as, in the opinion of Kennedy & Graven Chartered ("Bond Counsel") and Krieg DeVault LLP, Indianapolis, Indiana ("Agent's Counsel"), shall be necessary in connection with the transactions contemplated hereby. (b) At or prior to the Closing, the Series 2014 Bonds, the Indenture, this Placement Agreement and the other Company Documents shall have been executed(and authenticated, in the case of the Series 2014 Bonds)and delivered by the parties thereto. (c) At the Closing, the proceeds of the Series 2014 Bonds and all other funds required to be delivered as contemplated in the Limited Offering Memorandum, the Lease, the Indenture and the Accounts Agreement shall be delivered to the Trustee in its capacity as Trustee under the Indenture. (d) At the Closing, the Issuer shall execute and deliver or cause to be delivered the Series 2014 Bonds in fully authenticated form,to DTC or the Trustee to hold on behalf of DTC, as applicable. (e) At or prior to the Closing, the Agent shall receive the following documents, certificates and opinions in such number of originally executed counterparts as shall be mutually agreeable to the Agent, the Issuer and the Company, each of which shall be dated as of the date of Closing, unless 10 otherwise specified: (i) The opinion of Bond Counsel, in form and substance acceptable to the Agent, together with a supplemental opinion of Bond Counsel, addressed to the Issuer, the Agent and the Trustee,each dated the date of Closing. (ii) The opinion of Dorsey& Whitney LLP, Minneapolis, Minnesota, counsel for the Company, dated the date of Closing,addressed to the Issuer,the Agent and the Company. (iii) The opinion of Kennedy & Graven Chartered, counsel for the Issuer, dated the date of Closing, addressed to the Issuer,the Agent,the Trustee and the Company. (iv) A certificate of the Issuer, dated the date of Closing, signed by an official of the Issuer,to the effect that(1)all of the representations and warranties of the Issuer contained herein are true and correct as of the date of the Closing, (2)the Issuer has complied in all material respects with all of the agreements and conditions of this Placement Agreement to be performed or satisfied by it at or prior to the Closing, and (3)the information contained in the Limited Offering Memorandum under the headings "THE ISSUER" and "LITIGATION—The Issuer" did not as of the respective dates thereof and does not as of the Closing contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made,not misleading. (v) A certificate of the Company, dated the date of the Closing, signed by an Authorized Company Representative (as defined in the Indenture), to the effect that (1)all of the representations of the Company contained herein are true and correct as of the date of the Closing, (2)the Company has complied in all material respects with all agreements and conditions of this Placement Agreement to be performed or satisfied by it at or prior to the Closing, and (3)the Limited Offering Memorandum did not as of the date thereof and does not as of the Closing Date contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made,not misleading. (vi) Certificate of the Trustee, dated the date of the Closing, signed by an authorized officer of the Trustee. (vii) The Limited Offering Memorandum authorized by the Issuer and authorized and executed by the Company. (viii) The Indenture,the Accounts Agreement,this Placement Agreement and the other Company Documents and any and all other related agreements securing the performance by the Company under the Lease and as contemplated by the Lease or the Limited Offering Memorandum, duly executed by the parties thereto. (ix) Specimen Series 2014 Bonds of each maturity. (x) A Tax Agreement, which may be based upon representations of the Company, in form and substance satisfactory to Bond Counsel: (a)setting forth the facts, estimates and circumstances in existence on the Closing Date, which establish that it is not expected that the proceeds of the Series 2014 Bonds will be used in a manner that would cause the Series 2014 Bonds to be "arbitrage bonds" within the meaning of the Code and any existing, temporary or proposed Treasury Regulations issued or to be issued pursuant to the Code, and (b)certifying that there are no other facts, estimates or circumstances that would materially change the conclusions, representations and expectations contained in such certificate. 11 (xi) All other certificates and opinions required by the Lease and the Indenture for the issuance thereunder of the Series 2014 Bonds not specifically heretofore set forth. (xii) A certified copy of the resolutions adopted by the sole member of the Company authorizing and approving the Company to execute and deliver this Placement Agreement and the other Company Documents, otherwise carry out the transaction contemplated by the Limited Offering Memorandum and approving the form of the Series 2014 Bonds. (xiii) A copy of the Company's Certificate of Formation and Limited Liability Company Agreement, as amended to date, certified as true and correct by an Authorized Company Representative,as applicable. (xiv) Evidence that such Company Documents as may be subject to recordation have been recorded in the proper office in form and substance acceptable to the Agent. (xv) Receipts or other evidence that financing statements have been filed for record with the governmental authority of the State and the State of Delaware, as applicable, with respect to the security interests granted by the Security Agreement, the Mortgage, the Guaranty, the Collateral Assignment of Contracts and the Pledge Agreement. (xvi) Information Return for Tax-Exempt Private Activity Bond Issues, Treasury Form 8038,executed by the Issuer. (xvii) Certified copies of all proceedings of the Issuer authorizing the issuance of the Series 2014 Bonds. (xviii) Evidence satisfactory to the Agent that the Company has in force insurance of the types and amounts required by the Lease. (xix) Copies of the licenses and permits issued to the Company to construct and operate the Project to the extent issued on the Closing Date. (xx) The opinion letter of Agent's Counsel, dated the Closing Date, addressed solely to the Agent, in form and substance acceptable to the Agent, as to such matters as the Agent shall reasonably request. (xxi) Such additional legal opinions, certificates, proceedings, instruments and other documents as Agent's Counsel,the Issuer's counsel or Bond Counsel may reasonably request to evidence compliance by the Issuer or the Company with legal requirements, the truth and accuracy, as of the time of Closing, of the respective representations of or with respect to the Issuer or the Company herein contained and the due performance or satisfaction by the Issuer or the Company at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by the Issuer or the Company. 11. [Reserved]. 12. Provisions Survive Closing. All representations, warranties and agreements of the Issuer, the Company, or the Agent shall remain operative and in full force and effect, regardless of any investigations made by or on behalf of the Agent, the Company, or the Issuer and shall survive the Closing. The obligations of the Company and the Agent under Sections 13 and 14 hereof shall survive the Closing or any termination of this Placement Agreement by the Company and the Agent pursuant to the terms hereof. 12 13. Indemnification. (a) The Company agrees to indemnify and hold harmless the Issuer, each director, official, trustee, member, officer, employee or agent of the Issuer and each person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the Issuer pursuant to the Act or the Issuer's rules and regulations or by-laws (collectively, the"Issuer Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses, including reasonable attorneys' fees and expenses,whatsoever arising from or in any manner directly or indirectly growing out of or connected with any of the matters set forth in (i) Section 6 hereof, (ii) Section 12.31 of the Lease or (iii) any untrue statement or alleged untrue statement of a material fact made by the Company and contained in the Preliminary Limited Offering Memorandum, the Limited Offering Memorandum or any supplement or amendment thereto (other than statements contained under the " THE ISSUER" and "LITIGATION — The Issuer," "TAX MATTERS," and "PLACEMENT OF BONDS," and Appendices and ) or which arise out of or are based upon any omission or alleged omission from the Preliminary Limited Offering Memorandum, the Limited Offering Memorandum or any supplement or amendment thereto (other than statements contained under the " THE ISSUER" and "LITIGATION — The Issuer," "TAX MATTERS" of any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, unless resulting from the gross negligence or willful misconduct of the Issuer Indemnified Party. (b) The Company agrees to indemnify and hold harmless the Agent, each director, official, trustee, member, officer or employee of the Agent and each person, if any, who has the power, directly or indirectly, to direct or cause the direction of the management and policies of the Agent or the Agent's articles of incorporation or by-laws (collectively, the "Agent Indemnified Parties"), against any and all losses, claims, damages, liabilities or expenses, including reasonable attorneys' fees and expenses, whatsoever arising from or in any manner directly or indirectly growing out of or connected with any of the matters set forth in Section 13(a) hereof, unless resulting from the gross negligence or willful misconduct of the Agent Indemnified Party. (c) In case any claim shall be made or any action shall be brought against one or more of the Issuer Indemnified Parties and the Agent Indemnified Parties (collectively, the "Indemnified Parties") in respect of which indemnity can be sought against the Company pursuant to either of the preceding paragraphs (a) and (b), the Indemnified Party seeking indemnity shall promptly notify the Company, in writing, and the Company shall promptly assume the defense thereof, including the employment of counsel chosen by the Company and approved by the Agent or Issuer, or both (provided, that such approval by the Agent or Issuer shall not be unreasonably withheld),the payment of all expenses and the right to negotiate and consent to settlement. If any Indemnified Party is advised in a written opinion of counsel that there may be legal defenses available to such Indemnified Party which are adverse to or in conflict with those available to the Company or that the defense of such Indemnified Party should be handled by separate counsel, the Company shall not have the right to assume the defense of such Indemnified Party, but the Company shall be responsible for the reasonable fees and expenses of counsel retained by such Indemnified Party in assuming its own defense, and provided also that, if the Company shall have failed to assume the defense of such action or to retain counsel reasonably satisfactory to the Agent or Issuer within a reasonable time after notice of the commencement of such action, the reasonable fees and expenses of counsel retained by the Indemnified Party shall be paid by the Company. Notwithstanding the foregoing, any one or more of the Indemnified Parties shall have the right to employ separate counsel with respect to any such claim or in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be paid by such Indemnified Party unless the employment of such counsel has been specifically authorized by the Company or unless the provisions of the immediately preceding sentence are applicable. The Company shall not be liable for any settlement of any such action affected without the consent of the Company, but if settled with the consent of the 13 Company or if there be a final judgment for the plaintiff in any such action with or without consent, the Company agrees to indemnify and hold harmless the Indemnified Party from and against any loss, liability or expense by reason of such settlement or judgment. (d) The Agent agrees, at its expense, to indemnify, defend and hold harmless the Issuer Indemnified Parties and the Company, each director, official,trustee, member, officer or employee of the Company and each person, if any, who has the power, directly or indirectly, to direct or cause the direction of the Company(collectively,the"Company Indemnified Parties")from and against any and all losses, claims, damages, liabilities, costs or expenses (for purposes of this paragraph(d), collectively, "Claims"), including reasonable attorneys' fees and expenses, if such Claims are a result of, arise out of or are materially increased, strengthened or enhanced by or would not exist but for a breach by the Agent of its duties under,or failure to abide by any of its covenants in this Placement Agreement. (e) In case any claim shall be made or any action shall be brought against one or more of the Issuer Indemnified Parties or the Company Indemnified Parties (collectively, the "Indemnified Person") in respect of which indemnity can be sought against the Agent pursuant to the preceding paragraph(d), the Indemnified Person seeking indemnity shall promptly notify the Agent in writing,and the Agent shall promptly assume the defense thereof, including the employment of counsel chosen by the Agent and approved by the Company or Issuer, or both(provided,that such approval by the Company or Issuer shall not be unreasonably withheld), the payment of all expenses and the right to negotiate and consent to settlement. If any Indemnified Person is advised in a written opinion of counsel that there may be legal defenses available to such Indemnified Person which are adverse to or in conflict with those available to the Agent, or that the defense of such Indemnified Person should be handled by separate counsel, the Agent shall not have the right to assume the defense of such Indemnified Person, but shall be responsible for the fees and expenses of counsel retained by such Indemnified Person in assuming its own defense, and provided also that, if the Agent shall have failed to assume the defense of such action or to retain counsel reasonably satisfactory to the Issuer or Company within a reasonable time after notice of the commencement of such action, the reasonable fees and expenses of counsel retained by the Indemnified Person shall be paid by the Company. Notwithstanding the foregoing, any one or more of the Indemnified Persons shall have the right to employ separate counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless the employment of such counsel has been specifically authorized, in writing, by the Agent or unless the provisions of the immediately preceding sentence are applicable. The Agent shall not be liable for any settlement of any such action affected without its written consent, but if settled with the written consent of the Agent or if there be a final judgment for the plaintiff in any such action with or without consent, the Agent agrees to indemnify and hold harmless the Indemnified Person from and against any loss, liability or expense by reason of such settlement or judgment. (f) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section 13 is for any reason held to be unavailable to the Agent, Issuer or Company other than in accordance with its terms,the Agent and Company,jointly and severally, shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Agent, Issuer and Company in such proportions that the Agent is responsible for that portion represented by the percentage that the placement fee bears to the initial public offering price appearing on the cover page of the Limited Offering Memorandum and the Company is responsible for the balance; provided, however, that no person guilty of fraudulent misrepresentation shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 13, each person, if any, who controls the Agent shall have the same rights to contribution as the Agent. 14 (g) The covenants and agreements of the Company and Agent herein contained shall survive the delivery of the Series 2014 Bonds. 14. Payment of Expenses. The Company shall pay all reasonable costs and expenses incident to the execution and performance of this Placement Agreement and to the sale and delivery of the Series 2014 Bonds to the Agent, as placement agent, including but not limited to the fees and expenses of the Issuer, the Trustee, Bond Counsel and Agent's Counsel, the costs and expenses of preparing, printing and distributing the Preliminary Limited Offering Memorandum, the Limited Offering Memorandum,the Series 2014 Bonds, this Placement Agreement, the Lease, the Indenture, the Accounts Agreement, the Tax Agreement, and the other Company Documents, the costs of title insurance, recording security documents and consultant reports, all fees and expenses in connection with the registration of the Series 2014 Bonds under the "Blue Sky" laws of any state, and all filing and recording fees and expenses, all whether or not the Series 2014 Bonds are sold by the Issuer to the Agent. If the Agent fails (other than for a reason permitted hereunder) to accept and pay for the Series 2014 Bonds upon tender thereof by the Issuer at the Closing as herein provided and upon performance of all other duties and obligations of the Issuer and the Company hereunder and delivery of all documents required hereunder, the Agent shall pay its own out-of-pocket expenses incurred in connection with the offering and distribution of the Series 2014 Bonds. 15. Notices. Any notice or other communication to be given under this Placement Agreement may be given by delivering the same in writing if to the Issuer or the Company at its address as set forth above, if to the Agent to Stern Brothers &Co.,Attention: Donna LoCascio, 6 Colonial Drive, Huntington,New York 11743. Delivery of notices pursuant to this Section 15 may be made by personal hand delivery, first class prepaid mail, or reliable overnight courier service and such notices shall be effective upon delivery to and receipt by the party to whom such notice is given. 16. Sole Benefit. This Placement Agreement is made solely for the benefit of the Company, the Issuer and the Agent (including the successors or assigns), and no other person, including any purchaser of the Series 2014 Bonds, shall acquire or have any right hereunder or by virtue hereof except as provided in Sections 13 and 14 hereof. 17. Law Governing. This Placement Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 18. Effective Date. This Placement Agreement shall become effective upon your mutual acceptance hereof. 19. Headings. All headings are for convenience of reference only and do not constitute a part of this Agreement. 20. Time. Time shall be of the essence of this Placement Agreement. 21. Counterparts. This Placement Agreement may be executed in any number of counterparts each of which shall be regarded as an original and all of which shall constitute one and the same document. [SIGNATURE PAGES TO FOLLOW] KD_6718114_1.DOC 15 Signature Page to Bond Placement Agreement of Stern Brothers& Co. Very truly yours, STERN BROTHERS& CO. By: Its: 16 Signature Page to Bond Placement Agreement of the City of Shakopee,Minnesota Accepted and agreed to as of the date first above written: CITY OF SHAKOPEE,MINNESOTA By: Its: 17 Signature Page to Bond Placement Agreement of Recovery Technology Solutions Shakopee, LLC Accepted and agreed to as of the date first above written: RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC By: Its: 18 EXHIBIT A AMOUNTS,INTEREST RATES AND MATURITIES OF SERIES 2014 BONDS [to be inserted] EXHIBIT B INVESTMENT LETTER [To be inserted.] KD DRAFT 10-1-14 (vl) Mortgage registration tax of$ Treasurer's Receipt No. Conservation Fee Paid NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ENFORCEMENT OF THIS MORTGAGE IS LIMITED TO A DEBT AMOUNT OF $16,000,000.00 UNDER CHAPTER 287 OF MINNESOTA STATUTES, PLUS PROTECTIVE ADVANCES AND OTHER INDETERMINATE AMOUNTS. FEE AND LEASEHOLD MORTGAGE,ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Mortgagor and , as Trustee, as Mortgagee Dated as of ,2014 Drafted by and after recording, deliver to: Krieg DeVault LLP 12800 N. Meridian Street, Suite 300 Indianapolis,Indiana 46032 Attn: Julia A. Carpenter,Esq. FEE AND LEASEHOLD MORTGAGE,ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING THIS FEE AND LEASEHOLD MORTGAGE, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING (this "Mortgage") dated effective as of the day of , 2014, is executed and delivered by RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a Delaware limited liability company (the "Mortgagor"), for the benefit of , a(n) (the "Mortgagee"), as Trustee under that certain Indenture of Trust dated as of , 2014 (as supplemented and amended from time to time, the "Indenture") between the City of Shakopee, Minnesota, a municipal corporation (the "City") and the Mortgagee. The addresses of Mortgagor and Mortgagee appear in Section 5.02 of this Mortgage. RECITALS WHEREAS, the Mortgagor was formed to develop, construct, own and operate a facility (the "Facility") to recycle asphalt from roof shingles and certain related facilities in Shakopee, Minnesota(collectively, the "Project"), and engage in any other activities related or incidental thereto or in anticipation thereof; WHEREAS, the Mortgagor and the Mortgagee have entered into that certain Bond Guaranty Agreement dated as of ,2014 (the"Guaranty"), pursuant to which the Mortgagor has agreed to guarantee repayment in full of certain solid waste revenue bonds to be issued by the City to finance the costs of the Facility; WHEREAS, at the request of the Mortgagor, the City has determined to issue revenue bonds designated as City of Shakopee,Minnesota Solid Waste Revenue Bonds(Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of$16,000,000 (the "Series 2014 Bonds"),pursuant to and in accordance with the terms of the Indenture; WHEREAS, in order to facilitate the issuance of the Series 2014 Bonds, the City and the Mortgagor expect to enter into the following agreements, each of which are expressly subordinate to the lien of this Mortgage: (a) that certain Lease Agreement dated as of , 2014, pursuant to which the Mortgagor will lease the Property to the City; and (b) that certain Real Estate, Improvements and Equipment Lease Agreement dated as of , 2014 (the "Lease Agreement"), pursuant to which the City will lease the Property to the Mortgagor; WHEREAS, it is a requirement under the Guaranty that the Mortgagor execute and deliver this Mortgage to the Mortgagee; and WHEREAS, the Mortgagor wishes and intends, by the execution and delivery of this Mortgage, to secure the full and punctual performance of the Obligations(as defined below). NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ENFORCEMENT OF THIS MORTGAGE IS LIMITED TO A DEBT AMOUNT OF $16,000,000.00 UNDER CHAPTER 287 OF MINNESOTA STATUTES, PLUS PROTECTIVE ADVANCES AND OTHER INDETERMINATE AMOUNTS. GRANT NOW, THEREFORE, in consideration of the Mortgagee's entering into the Guaranty, and of other good and valuable consideration, the receipt and legal sufficiency of which the Mortgagor hereby acknowledges, and to secure the performance of the Obligations, the Mortgagor does hereby mortgage, warrant, grant, convey and assign, with power of sale, unto the Mortgagee and its successors and assigns, a lien on and security interest (to the extent permitted under the Uniform Commercial Code in effect in the State of Minnesota ("UCC")) in Mortgagor's fee and leasehold interests, both now owned and hereafter acquired, in the following(the"Property"): (a) Real Property. All that real property located in County of Scott, State of Minnesota, consisting of the tract of land more particularly described in Exhibit A attached hereto and made a part hereof (such property consisting generally of the site on which the Facility is located) (the "Land") together with (i) all right, title and interest of the Mortgagor, including any after-acquired title or reversion in and to the beds of the ways, streets, avenues and alleys adjoining the Land, and (ii) all and singular the tenements, hereditaments, easements, appurtenances, passages, waters, water rights, water courses, riparian rights, other rights, liberties and privileges thereof or in any way now or thereafter appertaining to the Land or any part thereof, including,but not limited to, any homestead or other claim at law or in equity, as well as any after-acquired title, franchise or license and reversion and reversions and remainder and remainders thereof and also all the estate, property, claim, right, title or interest now- owned or hereafter acquired by the Mortgagor in or to the Land or any part thereof. (b) Improvements. All buildings and improvements of every kind and description now or hereafter erected and placed on the Land, including, without limitation, the Facility (collectively, the "Improvements"). (c) Equipment Collateral. All building materials, fixtures, machinery, equipment and tangible personal property of every kind and nature whatsoever, now or hereafter located or contained in or upon or attached to the Land or the Improvements or any part thereof, and used or usable in connection with any present or future use or operations of the Land or the Improvements or any part thereof,whether now owned or hereafter acquired by the Mortgagor, together with all Additions thereto (all of the foregoing being hereinafter sometimes referred to collectively as the "Equipment Collateral"). All of the Equipment Collateral, so far as permitted by law, shall be deemed to be fixtures and part of the Land and of the Improvements, and as to any part of the Equipment Collateral not deemed or permitted by law to be fixtures, this Mortgage shall also constitute a security agreement under the Minnesota Uniform Commercial Code, and pursuant thereto, and in order to secure the performance of the Obligations, the Mortgagor hereby grants to the Mortgagee, and its assigns, a continuing security interest under the UCC in and to such part of the Equipment Collateral not deemed or permitted by law to be fixtures, and the proceeds thereof, including the proceeds of any and all insurance policies in connection therewith. With respect to such Equipment Collateral, the Mortgagee, and its assigns, shall have all the rights and remedies of a secured party under the UCC. (d) Leases and Rents. All existing and future leases, subleases, subtenancies, licenses, occupancy agreements and concessions ("Leases") relating to the use and enjoyment of all or any part of the Land and Improvements, and any and all guaranties and other agreements relating to or made in connection with any of such Leases and all rents, income, revenues, prepayments, security deposits, tax, insurance and replacement reserve deposits, receipts, termination, cancellation, and option payments, royalties, profits, issues, service reimbursements, fees, accounts receivables, and revenues from the Land and/or Improvements from time to time accruing under the Leases(the"Rents"). 2 (e) Condemnation Awards. Any and all judgments, awards of damages (including but not limited to severance and consequential damages), payments, proceeds, settlements or other compensation heretofore or hereafter made, including interest thereon, and the right to receive the same,as a result of, in connection with,or in lieu of(i)any taking of the Property or any part thereof under the power of eminent domain,either temporarily or permanently, (ii)any change or alteration of the grade of any street,and(iii) any other injury or damage to, or decrease in value of, the Property or any part thereof (all of the foregoing being hereinafter sometimes referred to, collectively, as the "Condemnation Awards", or singularly"Condemnation Award"), and of the reasonable counsel fees,costs and disbursements, if any, incurred by the Mortgagee in connection with the collection of such Condemnation Award. (f) Insurance Proceeds. Any and all payments, proceeds, settlements or other compensation heretofore made (but not yet received by the Mortgagor) or hereafter made, including any interest thereon, and the right to receive the same, from any and all insurance policies covering the Property or any part thereof. (g) Other Contracts. All of the Mortgagor's rights, options, powers and privileges in and to (but not the Mortgagor's obligations and burdens under) all architectural, engineering and similar plans, specifications, drawings, reports, surveys, plats, permits and the like, contracts for construction, operation and maintenance of, or provision of services to, the Property(including, without limitation, any construction contract relating to the Property, and all sewer taps and allocations, agreements for utilities, bonds and the like, all relating to the Property). (h) Receipts. All insurance proceeds, Condemnation Awards and other moneys received by or on behalf of the Mortgagor, including (without limitation) revenues derived from leasing of any portion of the Facility and/or the Land and all rights to receive the same,whether in the form of accounts, general intangibles or other rights, and the proceeds of such accounts,general intangibles and other rights, whether now existing or hereafter coming into existence or whether now owned or held or hereafter acquired (i) Permits and Other Contracts. All of the Mortgagor's rights, title and interests in and to any and all rights that the Mortgagor may own, possess, use, enforce, and have a license to use, or from which it shall otherwise benefit, with respect to the Property, including without limitation any and all permits, approvals, licenses, title insurance binders or policies, insurance policies, easements, restrictive covenants, utility connection agreements, surveys, site plans, plans and specifications, environmental reports and studies and appraisals, and including all amendments, modifications, supplements, or addenda now or hereafter made. (j) Proceeds. All cash and non-cash proceeds of the collateral identified in subparts (a), (b), (c),(d), (e),(f),(g), (h)and(i)identified above. THE FOREGOING MORTGAGE AND GRANT OF SECURITY INTEREST is intended to secure to the Mortgagee the prompt performance of the Obligations, which include (without limitation) (a) the prompt payment of all sums of money secured hereby (collectively, the "Mortgage Indebtedness"), which Mortgage Indebtedness shall include, but not be limited to, (i) all moneys and all payments due or to become due from the Mortgagor to the Mortgagee, (ii) all other moneys now or hereinafter advanced or expended by the Mortgagee on behalf of the Mortgagor as provided for herein or by applicable law and (iii) all costs, expenses, charges, liabilities, commissions, half-commissions and attorneys' fees now or hereafter chargeable to the Mortgagor, or incurred by, or disbursed by, the Mortgagee on behalf of the Mortgagor as provided for herein, including by applicable law and (b) the prompt performance of, observance of and compliance with, by the Mortgagor, all of the terms, covenants, conditions, stipulations and agreements, express or implied, contained herein, or in the 3 Guaranty or the Lease Agreement. [The Obligations secured hereby mature no later than the Maturity Date.] PROVIDED HOWEVER, that until the occurrence and during the continuance of an Event of Default hereunder, and subject to any provisions of this Mortgage to the contrary, the Mortgagor shall have the right to remain in quiet and peaceful possession of the Property. PROVIDED FURTHER, that if the Mortgagor performs the Obligations and pays, causes to be paid or provides for the payment of the Mortgage Indebtedness to the Mortgagee in full at the time and in the manner stated in the Guaranty and this Mortgage and the Mortgagor well and truly performs, complies with, and observes each and all of its Obligations under the Guaranty and under this Mortgage and upon the expiration or termination of the Guaranty in accordance with its terms,then these presents and the lien granted hereby shall cease, determine and become void, and upon proof given to the satisfaction of the Mortgagee that (a) the Mortgage Indebtedness has been so paid, satisfied or provided for in full, (b) the Obligations have been so paid, satisfied, performed or provided for in full, and (c) the Guaranty has expired, the Mortgagee shall (upon the receipt of the written request of, and at the expense of the Mortgagor)release and discharge the lien and security interest of this Mortgage. AGREEMENTS The Mortgagor hereby represents,warrants, covenants and agrees as follows, and stipulates that a breach of any of the following representations, warranties, covenants and agreements shall be deemed a breach of a material condition of this Mortgage and of the Guaranty. ARTICLE I DEFINITIONS AND CONSTRUCTION Section 1.01 Definitions The terms defined in this Section shall have the meanings stated in this Section for all purposes of this Mortgage, except as otherwise expressly provided or unless the context otherwise requires. "Additions" means any and all alterations, additions, accessions, extensions, betterments and improvements to the Property(or any part thereof), substitutions therefor, and renewals and replacements thereof. "Bankruptcy Code" means Title 11 of the United States Code, as in effect from time to time, or any successor thereto affecting the rights of creditors generally. "Business Day"means any day other than a Saturday, Sunday or other day on which commercial banks in [ , 1 are authorized or required by law to close. "City"means the City of Shakopee, Minnesota, a municipal corporation. "Condemnation"has the meaning given to that term in Section 3.05 of this Mortgage. "Condemnation Award" has the meaning given to that term in the granting clauses of this Mortgage. 4 "Encumbrance"means any mortgage,pledge, lien, security interest, lease,right-of-way charge or other encumbrance. "Environmental Laws" means all federal, state or commonwealth and local laws, regulations, statutes, codes, rules, resolutions, directives, orders, executive orders, consent orders, guidance from regulatory agencies, policy statements,judicial decrees, standards, permits, licenses and ordinances, or any judicial or administrative interpretation of any of the foregoing, pertaining to the protection of land, water, air,health, safety or the environment,whether now or in the future enacted,promulgated or issued, including the laws of the state where the Property is located. "Equipment Collateral" has the meaning given to that term in the granting clauses of this Mortgage. "ESA"has the meaning given to that term in Section 2.04 of this Mortgage. "Event of Bankruptcy"means,with respect to any Person,the occurrence of any of the following events: (i) the commencement by such Person of a voluntary case concerning itself under the Bankruptcy Code or similar applicable law; (ii) an involuntary case is commenced against such Person and the petition is not controverted within ten (10) days, or is not dismissed within sixty(60) days, after commencement of the case; (iii) a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of such Person or such Person commences any other proceedings under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar applicable law of any jurisdiction whether now or hereafter in effect relating to such Person or there is commenced against such Person any such proceeding which remains undismissed for a period of sixty(60)days; (iv) the entrance of any order of relief or other order approving any such case or proceeding involving such Person; (v) such Person is adjudicated insolvent or bankrupt; (vi) such Person makes a general assignment for the benefit of creditors; (vii) such Person shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become due; (viii) such Person shall by any act or failure to act, consent to, approve of or acquiesce in any of the foregoing; or (ix) any partnership or corporate action, as the case may be, is taken by such Person for the purpose of effectuating any of the foregoing. "Event of Default"has the meaning given to that term in Section 4.01 of this Mortgage. "Facility"has the meaning given to that term in the Recitals of this Mortgage. 5 "Governmental Approvals" means, with respect to any Person, any approval, consent, authorization, license, permit, order, certificate, qualification, waiver, exemption, or variance, or any other action of a similar nature, of or by a Governmental Authority(as defined in the Indenture), whether granted directly to such Person or to a third party, necessary or advisable for (i) the execution, delivery and performance by Mortgagor of this Mortgage, the Guaranty and the Lease Agreement and any other document with respect thereto to which it is a party, or(ii)carrying out the business of Mortgagor and the Project, including any of the foregoing that are or may be deemed given or withheld by failure to act within a specified time period. "Guaranty"has the meaning given to that term in the Recitals of this Mortgage. "Hazardous Materials" means substances, chemicals, materials or elements in any physical state (liquid, solid, gaseous/vapor, etc.)that are prohibited, limited or regulated by the Environmental Laws, or any other substances, chemicals, materials, or elements that are defined as "hazardous" or "toxic," or otherwise regulated, under the Environmental Laws, or that are known or considered to be harmful, hazardous or injurious to the health or safety of occupants or users of the Property. The term"Hazardous Materials" shall also include any substance, chemical, material or element in any physical state (liquid, solid, gaseous/vapor, etc.): (i) defined as a "hazardous substance" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") (42 U.S.C. §§ 9601, et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986, and as further amended from time to time, and regulations promulgated thereunder; (ii) defined as a "regulated substance" within the meaning of Subtitle I of the Resource Conservation and Recovery Act (42 U.S.C. §§ 6991-6991i), as amended from time to time, and regulations promulgated thereunder; (iii)designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1321), as amended from time to time, and the regulations promulgated thereunder, or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317), as amended from time to time, and the regulations promulgated thereunder; (iv)defined as "hazardous", "toxic" or otherwise regulated, under any Environmental Laws adopted by the state in which the Property is located, or its agencies or political subdivisions; (v)which is petroleum, petroleum products, ethanol, methyl tertiary butyl ether or derivatives or constituents of or vapors from any of the foregoing; (vi) which is asbestos or asbestos- containing materials; (vii)the presence of which requires notification,investigation or remediation under any Environmental Laws or common law; (viii)the presence of which on the Property causes or threatens to cause a nuisance upon the Property or to adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Property; (ix)the presence of which on adjacent properties would constitute a trespass by the Mortgagor; (x) which is urea formaldehyde foam insulation or urea formaldehyde foam insulation-containing materials; (xi) which is lead base paint or lead base paint- containing materials; (xii) which are polychlorinated biphenyls or polychlorinated biphenyl-containing materials; (xiii) which is radon or radon-containing or producing materials; (xiv) which is or contains excessive moisture, mildew, mold, microbial contamination, microbial growth or other fungi, or biological agents that can or are known to produce mycotoxins or other bioaerosols, such as antigens, bacteria, amoebae and microbial organic compounds or other similar matter, in each case that poses a risk to human health or the environment, or negatively impacts the value of the Property; (xv) which is a vapor from volatile chemicals or any other toxic or hazardous materials, including petroleum hydrocarbons, from a subsurface soil, groundwater or other source, or (xvi) which by any laws of any Governmental Authority (as defined in the Indenture) requires special handling in its collection, storage, treatment or disposal. "Hazardous Materials Contamination" means the contamination in violation of any applicable federal, state, or local laws, statutes, ordinances and regulations (whether presently existing or occurring after the date of this Mortgage) of the Improvements, facilities, soil, ground water, air or other elements 6 on, or of, the Land by Hazardous Materials, or the contamination in violation of any applicable federal, state, or local laws, statutes, ordinances and regulations of the buildings, facilities, soil, ground water, air or other elements on, or of, any other property as a result of Hazardous Materials at any time (whether before or after the date of this Mortgage)emanating from the Land. "Improvements"has the meaning given to that term in the granting clauses of this Mortgage. "Indenture" means that certain Indenture of Trust dated as of , 2014 (as supplemented and amended from time to time)between the City and the Mortgagee. "Knowledge" means the actual knowledge of the Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Vice President or Controller of Mortgagor or any knowledge which should have been obtained by any of such Persons upon reasonable investigation and inquiry, but "reasonable investigation and inquiry" will not be deemed to require Mortgagor or any of its employees, officers, or directors to conduct, have conducted, obtain or have obtained any freedom-to-operate opinions or similar opinions of counsel or any patent, trademark, or other intellectual property clearance searches, and Mortgagor will not be imputed to have knowledge of any third party patents, trademarks or other intellectual property that were not actually known but that would have been revealed by such inquiries, opinions or searches. "Land" has the meaning given to that term in the granting clauses of this Mortgage. "Lease Agreement"has the meaning given to that term in the Recitals of this Mortgage. "Leases" has the meaning given to that term in the granting clauses of this Mortgage. ["Maturity Date"means , . ] "Mortgage" means this Fee Simple and Leasehold Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing and any other mortgage amendatory hereof or supplemental hereto intending to secure the Obligations, including (without limitation) any Supplement or amendment hereto and any separate or additional instrument executed and delivered by the Mortgagor and the Mortgagee in order to effect,record or perfect the interest of the Mortgagee in any portion of the Property. "Mortgagee" means , a(n) , as Trustee, and includes its successors and permitted assigns. "Mortgage Indebtedness" has the meaning given such term in the granting clauses of this Mortgage. "Mortgagor"means Recovery Technology Solutions Shakopee, LLC, a Delaware limited liability company, and includes its successors and permitted assigns. "Obligations" means all of the obligations to be performed by Mortgagor under or pursuant to (i) the Guaranty, (ii)the Lease Agreement, and(iii)this Mortgage. "Permitted Encumbrance"means: (a) this Mortgage; 7 (b) any of the Permitted Encumbrances in effect on the date hereof as described in Exhibit B; and (c) any"Permitted Encumbrances"as such term is defined in the Indenture. "Person" or "person" means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, unincorporated organization, association, corporation, institution, entity, party or Governmental Authority(as defined in the Indenture). "Property"has the meaning given to that term in the granting clauses of this Mortgage. "Project"has the meaning given to that term in the Recitals of this Mortgage. "Rents" has the meaning given to that term in the granting clauses of this Mortgage. "Series 2014 Bonds"has the meaning given to that term in the Recitals of this Mortgage. "State"means the State of Minnesota. "Supplement" or "Supplements" means any and all extensions, renewals, modifications, amendments, supplements, and substitutions. "Taxes" means all taxes, water rents, sewer rents, assessments and other governmental or municipal or public or private dues, charges and levies and any prior liens(including federal tax liens)for the Taxes which are or may be levied, imposed or assessed upon the Property or any part thereof, or any leases pertaining thereto, or upon the rents, issues, income or profits thereof, whether any or all of the aforementioned be levied directly or indirectly or as excise taxes or as income taxes. "Transfer Date" has the meaning given to that term in Section 3.17 of this Mortgage. ACCOUNTING TERMS Unless specifically provided otherwise, all accounting terms have the definitions given them in accordance with generally accepted accounting principles as applied to the applicable person on a consistent basis by its accountants in the preparation of its previous annual financial statements. Section 1.01 Rules of Construction. The words "hereof," "herein," "hereunder," "hereto," and other words of similar import refer to this Mortgage in its entirety. The terms "agree" and "agreements" contained herein are intended to include and mean "covenant"and"covenants." References to Articles, Sections, and other subdivisions of this Mortgage are to the designated Articles, Sections,and other subdivision of this Mortgage. The headings of this Mortgage are for convenience only and shall not define or limit the provisions hereof. 8 All references made(a) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (b) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. ARTICLE H REPRESENTATIONS AND WARRANTIES Section 2.01 General. The Mortgagor reaffirms the representations and warranties made by the Mortgagor in the Guaranty at the time of the execution and delivery of this Mortgage. Section 2.02 Warranty of Title The Mortgagor warrants that at the time of the execution and delivery of this Mortgage, the Mortgagor is owner of all the fee simple legal title to, and is lawfully seized and possessed of, the Land and the Improvements. The Mortgagor has the right and authority to convey the Land and does hereby warrant, and agree to defend, the Land and the title thereto, whether now owned or hereafter acquired, against all lawful claims and demands by any person claiming by, through or under the Mortgagor, subject to Permitted Encumbrances. There are no recorded leases, liens, easements or other rights or Encumbrances other than the Permitted Encumbrances in Exhibit B and to the Mortgagor's Knowledge, there are no unrecorded leases, liens, easements and other rights or Encumbrances other than the Permitted Encumbrances. The Property is not homestead property nor is it agricultural property or in agricultural use nor is it owner-occupied residential property containing four(4)or fewer dwelling units. Section 2.03 Tax Assessments. The Land and the Improvements covered by this Mortgage are assessed for purposes of Taxes as a separate tax parcel with their own separate tax identification number. Section 2.04 Hazardous Materials. To the Mortgagor's Knowledge and except as may otherwise be disclosed in that certain Phase I Environmental Site Assessment, dated May 16, 2013, prepared by Braun Intertec Corporation as Project BL-13-02309A and that certain Phase II Environmental Site Assessment, dated June 17, 2013, prepared by Braun Intertec Corporation as Project BL-02309B and that certain Geotechnical Evaluation Report, dated June 19, 2013, prepared by Braun Intertec Corporation, as Project BL-13-02309 (collectively, the "ESA"), no Hazardous Materials are located on the Land, or if so located thereon, are stored and used in accordance with all applicable federal, state, and local laws. Except as may otherwise be disclosed in the ESA, the Mortgagor has never, and to the Mortgagor's Knowledge, no other Person has ever, used the Land or Improvements as a manufacturing, storage or dump site for Hazardous Materials nor, to the Mortgagor's Knowledge is the Land or Improvements affected by any Hazardous Materials Contamination. Except as may otherwise be disclosed in the ESA, and to the Mortgagor's Knowledge and without duty of inquiry, no property adjoining the Land has ever been used as a manufacturing, storage or dump site for Hazardous Materials, nor to the Mortgagor's Knowledge and without duty of inquiry and except as may be disclosed in the ESA, is any such adjacent property affected by any Hazardous Materials Contamination. Section 2.05 Permits,Licenses and Governmental Approvals. 9 The Mortgagor hereby represents and warrants that as of the date hereof, to the Mortgagor's Knowledge, (a) it has all Governmental Approvals required by it in order to perform its obligations under the Guaranty and the Lease Agreement excepting only such Governmental Approvals that are not required to be issued at this time and with respect thereto, (b) it is not in violation, breach or default of any Governmental Approvals and (c) there are no, nor are there any alleged or asserted, violations of law, regulations, ordinances, codes, permits, licenses, declarations, covenants, conditions or restrictions of record, or other agreements relating to the Project, or the contemplated Improvements, or any part thereof ARTICLE III COVENANTS AND AGREEMENTS Section 3.01 Payment and Performance of Obligations. The Mortgagor will punctually pay,keep and perform each and all of the Obligations. Section 3.02 Further Assurances. At any time, and from time to time, upon request by the Mortgagee, the Mortgagor, at the sole expense of the Mortgagor, will make, execute, deliver and record or cause to be made, executed, delivered and recorded, any and all further instruments, certificates, and other documents as may, in the reasonable opinion of the Mortgagee, be necessary or desirable in order to effectuate, complete, perfect or continue and preserve the Obligations and the lien of this Mortgage, and all modifications, extensions and other amendments of the same. The Mortgagee may, at its option, advance the expenses incurred in making, executing and recording any and all such instruments, certificates and documents, and such sums advanced will be repaid to the Mortgagee by the Mortgagor as provided in Section 3.11 hereof Section 3.03 Insurance. At all times the Mortgagor shall keep the Land, Improvements and Equipment Collateral insured for the benefit of the Mortgagor as required by Section 2.5.4 of the Lease Agreement. Section 3.04 Taxes The Mortgagor will promptly pay, or cause to be paid, prior to the accrual of any penalties thereon, all Taxes and any other governmental impositions and assessments lawfully levied or assessed upon or in respect of the Property (or any part thereof). If the Mortgagor fails to pay, or cause to be paid, the Taxes at the time or in the manner provided in this Section,then the Mortgagee may, at its option(but without being under any obligation to do so), pay such Taxes, and the Mortgagor shall pay to the Mortgagee the amount of any Taxes so paid. Notwithstanding anything to the contrary contained in this Section,the Mortgagor shall not be required to pay or discharge any Taxes so long as the Mortgagor shall in good faith and at its sole cost and expense, and after giving written notice to the Mortgagee, contest the same by appropriate legal proceedings; provided, however, that in connection with such contest, if the contested amount exceeds $10,000, the Mortgagor shall deposit with the Mortgagee a sum sufficient to pay and discharge such obligation and the Mortgagee's reasonable estimate of all interest and penalties related thereto; provided, that in the event that the Mortgagee reasonably believes that the sale or forfeiture of any part of the Property is imminent, the Mortgagor shall, notwithstanding the provisions of this paragraph, promptly deposit with the Mortgagee an amount sufficient (in the Mortgagee's reasonable judgment)to prevent such sale or forfeiture. Section 3.05 Condemnation. 10 Should any of the Property be taken or damaged by reason of any public use or improvement or condemnation proceeding, or in any other manner ("Condemnation") or should the Mortgagor receive any written notice or information regarding such Condemnation, the Mortgagor shall give prompt written notice thereof to Mortgagee. Section 3.06 Damage and Destruction of Property. (a) After the happening of any casualty to any of the Property, in the amount, individually or in the aggregate, of$[150,000] or more, the Mortgagor shall give prompt written notice thereof to the Mortgagee and in the event of damage to or destruction of any of the Property, Mortgagor shall apply the insurance proceeds received to the restoration of such Property. (b) Nothing herein shall relieve the Mortgagor from making the payments required by the Guaranty or the Lease Agreement or the timely performance of any of the other Obligations. Section 3.07 Additions to Security. All right, title and interest of the Mortgagor in and to all Additions to the Property, hereafter acquired by or released to the Mortgagor, or constructed, assembled or placed by the Mortgagor on the Property, and all conversions of the security constituted thereby, immediately upon such acquisition, release, construction, assembling, placement or conversion, as the case may be, and in each such case, without any further mortgage, conveyance, assignment or other act by the Mortgagor, shall become subject to the lien and security interest of this Mortgage as fully and completely,and with the same effect, as though now owned by the Mortgagor and specifically described in the granting clauses hereof, but at any and all times the Mortgagor will execute and deliver to the Mortgagee any and all such further assurances,mortgages, conveyances or assignments thereof as the Mortgagee may require for the purpose of expressly and specifically subjecting the same to the lien and security interest of this Mortgage. Section 3.08 Subrogation of Mortgagee. To the extent permitted by law, the Mortgagee shall be subrogated, notwithstanding its release of record, to any Encumbrances heretofore or hereafter existing on the Property to the extent that the same are paid or discharged by the Mortgagee; provided, however, that this Section shall not be deemed or construed to obligate the Mortgagee to pay or discharge the same. Section 3.09 Security Agreement;Filing;Fixture Filing. This Mortgage constitutes a security agreement from the Mortgagor to the Mortgagee under the UCC. The Mortgagor hereby authorizes the Mortgagee to execute, deliver and, if appropriate,to file with the appropriate filing office or offices, such financing statements or other instruments as may be requested or required in order to perfect the security interest granted hereby or continue the effectiveness of the same. With respect to the Equipment Collateral, the Mortgagee shall have all of the rights and remedies of a secured party under the UCC. The Mortgagee shall not be liable for any loss to any Equipment Collateral in the Mortgagee's possession, nor shall such loss diminish the amount of the Mortgage Indebtedness. The Mortgagor intends that the security interest created hereby shall be perfected in such manner as is permitted or required pursuant to the UCC. The parties agree that all necessary continuation 11 statements shall be filed by the Mortgagee within the time prescribed by the UCC, in order to continue the security interest created by this Mortgage. This Mortgage shall be recorded among the land records of Scott County, Minnesota, to the end that the rights of the Mortgagee shall be fully preserved as against creditors of, or purchasers for value from,the Mortgagee or the Mortgagor. If, at any time, any of the information contained in any financing statement filed in connection with the security interests created by this Mortgage, including without limitation, the description of the collateral, shall change in such manner as to cause such financing statement to become misleading in any material respect or as may impair the perfection of the security interests intended to be created by this Mortgage, then the Mortgagor shall promptly prepare an amendment to such financing statement as may be necessary to continue the perfection of the security interest intended to be created by this Mortgage, as applicable, and file the same in any office where such amendment is required to be filed to continue the perfection of the security interest intended to be created thereby. The Mortgagor shall pay all costs and expenses incurred in connection with the performance of its obligations set forth in this Section. This Mortgage shall be deemed to be a Fixture Filing within the meaning of the UCC, and for such purpose,the following information is given: Name and address of debtor(the Mortgagor): RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC 7700 Equitable Dr. #205 Eden Prairie,MN 55344 Type of Organization: Limited liability company Jurisdiction of Organization: Delaware Name and address of secured party(the Mortgagee): Attn: Description of the types of property covered by this See definition of Property set forth above. financing statement: Legal description of Land to which the collateral is See Exhibit A attached hereto. attached or upon which it is or will be fixtures: [This Mortgage secured an obligation insured for the construction of an improvement on land and is a"construction mortgage"as that term is used in Minnesota Statutes Section 336.9-334(h).] Section 3.10 Right to Perform. If the Mortgagor fails to make any payment or perform, observe, or comply with any of the conditions and covenants contained herein, the Mortgagee, without notice to or demand upon the 12 Mortgagor, and without waiving or releasing any obligation or default, and without in any way assuming any of the Mortgagee's obligations under the Guaranty or the Lease Agreement or the Mortgagor's obligation under this Mortgage may(but shall be under no obligation to)at any time thereafter make such payment or perform such act for the account and at the expense of the Mortgagor, and may enter upon the Property or any part thereof for that purpose and take all such action thereon as the Mortgagee may consider necessary or appropriate for such purpose. All such sums so paid or advanced by the Mortgagee and all costs and expenses (including, without limitation, attorneys' fees and expenses) so incurred shall be repaid by the Mortgagor to the Mortgagee as provided in Section 3.11 hereof. Section 3.11 Expenses. If the Mortgagee incurs or expends any sums, including(without limitation)reasonable attorneys' fees and expenses, whether or not in connection with any action or proceeding, to sustain the lien and/or protect or enforce any of its rights hereunder, or to recover any of the Mortgage Indebtedness hereby secured, or for any title examination or title insurance policy relating to the title to the Land or any part thereof, or as contemplated by Sections 3.02, 3.04, 3.10 of this Mortgage or for any other purposes set forth in any Section of this Mortgage, the Guaranty or the Lease Agreement, all such sums shall on written notice and demand be paid by the Mortgagor within fifteen(15)Business Days of such notice,and shall be a part of the Mortgage Indebtedness secured by this Mortgage; provided, however, that in any action or proceeding to foreclose this Mortgage or to recover or collect the Mortgage Indebtedness secured hereby, the provisions of law respecting the recovery of costs, disbursements and allowances shall prevail unaffected by this covenant. Section 3.12 Other Liens. Except for Permitted Encumbrances, the Mortgagor will not permit any lien, mortgage, security interest, Encumbrance or claim to accrue or remain on such party's interest in the Property or any part thereof which may be superior to or on a parity with the lien or security interest of this Mortgage or which may be inferior or junior to the lien or security interest of this Mortgage. Section 3.13 Inspection of Property. The Mortgagee shall have inspection rights as set forth in Section 2.5.14 of the Lease Agreement. Section 3.14 Transfer of Property. Except for Permitted Encumbrances, and except as otherwise permitted under the Lease Agreement and in Section 3.22 of this Mortgage, the Mortgagor will not encumber, transfer, sell, assign, lease, dispose of, or contract to transfer all or any part of its interest in the Property, without the Mortgagee's prior written consent, provided that the Mortgagor shall be entitled to substitute Equipment Collateral that is of equal or greater value and that is used for substantially the same general purpose as the substituted Equipment Collateral,without the Mortgagee's consent. Section 3.15 Easements,Restrictive Covenants,Zoning. The Mortgagor will promptly perform and observe, or cause to be performed and observed, all of the terms, covenants and conditions of all instruments of record affecting its or the Mortgagee's interest in the Property, non-compliance with which may adversely affect the security of this Mortgage, and the Mortgagor take commercially reasonable actions to preserve intact and unimpaired any and all easements, appurtenances and other interests and rights in favor of, or benefiting any portion of,the Property. 13 Except for the Permitted Encumbrances, the Mortgagor shall not initiate, grant,join in, release or consent to any change in any restrictive covenant, easement, license, right-of- way (including the dedication of public highways) or any other public or private restriction limiting or defining the uses which may be made of the Property or any part thereof(other than Permitted Encumbrances) provided such restrictive covenant, easement, license, right-of-way or any other public or private restriction (i)will not destroy or materially impair the means of ingress to or egress from the Land, (ii) will not materially impair the use of the Property for its intended purposes, (iii) will not materially impair the value of the Property, and (iv) will not materially interfere with or impair the efficiency of operations then being conducted on and with the Property by the Mortgagee or any occupant of the Land and/or the Improvements and (b) the Mortgagee shall have consented to such grant, consent, release or change, in writing, such consent not to be unreasonably withheld,conditioned or delayed. Upon written consent, the Mortgagee shall promptly execute and deliver any and all instruments necessary or appropriate in connection with the foregoing and as may be necessary to release the same from the lien of this Mortgage. All expenses in connection therewith shall be borne solely by the Mortgagor. Section 3.16 [Intentionally Omittedj. Section 3.17 Hazardous Materials;Contamination. The Mortgagor agrees to (a) give notice to the Mortgagee promptly upon the Mortgagor's acquiring knowledge of the presence of any Hazardous Materials on the Property in material violation of law or of any Hazardous Materials Contamination with a full description thereof; (b) promptly comply with any laws requiring the removal, treatment or disposal of such Hazardous Materials or Hazardous Materials Contamination and provide the Mortgagee with satisfactory evidence of such compliance; (c) provide the Mortgagee, within thirty(30) days after a demand by the Mortgagee, with a bond, letter of credit or similar financial assurance evidencing to the Mortgagee's satisfaction that the necessary funds are available to pay the cost of removing, treating and disposing of such Hazardous Materials or Hazardous Materials Contamination and discharging any Encumbrance which may be imposed on the Property as a result thereof; and(d) indemnify and hold harmless the Mortgagee from any and all claims, damages, suits, liability, orders for cleanup or other matters, and all expenses, fees and other costs incurred in connection therewith,to the extent the same may now or in the future(whether before or after the release of this Mortgage) be asserted as a result of the presence of any Hazardous Materials on the Property or any Hazardous Materials Contamination, provided that: (i) the Mortgagor shall not be required to indemnify the Mortgagee for claims arising from the gross negligence or intentional or willful misconduct of the Mortgagee; and (ii) the foregoing indemnity shall not relate to the condition or use of the Property or the undertaking and completion of the Improvements if and to the extent that such condition, use, undertaking and completion are introduced or performed with respect to the Property after the date the Mortgagee or any third-party purchaser acquires title to the Property as a result of foreclosure or deed in lieu of foreclosure(any such date being hereinafter referred to as the"Transfer Date"), except that the Mortgagor shall bear the burden of proof that such introduction or performance: (x) occurred subsequent to the Transfer Date; (y) did not occur as a result of any action or inaction of the Mortgagor, and (z) with respect to any Hazardous Materials, did not occur as a result of continuing migration or release of any Hazardous Materials introduced prior to the Transfer Date, in, on, under or near the Property. The provisions of this Section 3.17 shall survive the release of this Mortgage. Section 3.18 Prohibition on Hazardous Materials. The Mortgagor shall not produce, create or dispose of, or permit to be produced, created or disposed of, on the Property, any Hazardous Materials other than Hazardous Materials produced, created 14 or disposed of by the Mortgagor in accordance with law in the ordinary course of operation of the Facility. The Mortgagor may place, store, use or create Hazardous Materials on the Property in the ordinary course of operation of the Facility only if such Hazardous Materials are placed, stored, used or created in accordance with all applicable federal, state,and local laws. Section 3.19 Business Operations. The Mortgagor covenants that it is and shall not engage in any business or activity the nature of which would differ in any material respect from that currently conducted by the Mortgagor as of the date of this Mortgage without the prior written consent of the Mortgagee. Section 3.20 Compliance With Laws. The Mortgagor shall comply with all laws to the extent a breach of which would adversely affect (a)the financial condition of the Mortgagor, (b)the ability to use the Improvements for the purposes for which they were designed or intended, (c)the value or status of the Property, or(d)the value or status of the Mortgagor's title to the Property. Section 3.21 Certifications,Licenses, Permits,Etc. The Mortgagor will obtain or cause to be obtained all certifications, licenses, permits and Governmental Approvals as may be necessary or required to continue using the Property as currently used by the Mortgagor as of the date of this Mortgage. Section 3.22 Sale of Assets. Consolidation. Merger,Etc. The Mortgagor shall not enter into an arrangement, directly or indirectly, with any person whereby it shall sell or transfer the Property, in either case, in violation of Section 2.6.5 of the Lease Agreement. Section 3.23 Financial Statements; Books and Records. The Mortgagor agrees to make its books and records relating to the Property or any part thereof (including financial and operating statements and copies of all federal, state and local tax returns and filings) available for inspection by the Mortgagee, upon request at any reasonable time, at the Mortgagor's principal place of business or at such other location in the State of Minnesota as the Mortgagee may reasonably request. Section 3.24 Alterations and Improvements. All alterations, Additions, and improvements to the Property or any part thereof shall automatically be a part of the Property and shall be subject to this Mortgage. ARTICLE IV EVENTS OF DEFAULT; RIGHTS AND REMEDIES Section 4.01 Events of Default. Any of the following events shall be an"Event of Default"under this Mortgage: 15 (a) Guaranty or Lease Agreement Default.An Event of Default occurs under the Guaranty or the Lease Agreement or under any of the other documents executed and delivered in connection therewith. (b) Performance Default. The Mortgagor fails to fully and promptly perform, comply with or observe any of the terms, covenants or agreements contained in Sections 3.12 or 3.14 hereof. (c) Other Defaults. The Mortgagor fails to fully and promptly perform, comply with or observe any other term, covenant or agreement herein contained, and such failure remains unremedied for thirty (30) days after written notice thereof shall have been given to the Mortgagor by the Mortgagee; provided, however, that if such failure is such that it cannot be corrected within thirty (30) days, it shall not be an Event of Default hereunder if the Mortgagor is taking appropriate corrective action to cure such failure and if such failure will not impair the security for the Obligations. (d) Bankruptcy. If any Event of Bankruptcy shall occur with respect to Mortgagor. Section 4.02 Remedies. Upon the occurrence of an Event of Default, the Mortgagee, may at any time thereafter exercise any of the following powers, privileges, discretions, rights and remedies, in addition to the powers, privileges, discretions,rights and remedies available to the Mortgagee: (a) Foreclosure. The Mortgagee may recover judgment against the Mortgagor for the entire unpaid principal balance, accrued interest, and all other sums secured by this Mortgage; and neither recovery or judgment nor the levy of execution thereof on any property, including the Property, shall affect the Mortgagee's rights hereunder or the lien hereof. The Mortgagee may take possession of and sell the Property, or any part thereof requested by the Mortgagee to be sold, and proceed to sell the same at a foreclosure sale. In connection with any sale under this Mortgage, the Mortgagee may procure such title reports, surveys, tax histories and appraisals as it deems necessary, and all costs and expenses incurred in connection therewith shall be payable by the Mortgagor or from the proceeds of sale. In case of any sale under this Mortgage,the Property may be sold as an entirety or in parcels, by one sale or by several sales, as may be deemed by the Mortgagee to be appropriate and without regard to any right of the part thereof is advertised for sale as herein provided, but not sold pursuant to such advertisement,the Mortgagee shall be paid by the Mortgagor its actual expenses incurred. If, prior to or at the time of the sale,the Mortgagee shall deem it proper for any reason to postpone or continue the sale, it may do so from time to time, in which event advertisement of the postponed sale shall be in the manner as required by law. Upon the terms of such sale being complied with, the Mortgagee shall convey to the purchaser or purchasers (at their expense) the interest of the Mortgagor in the Property so sold, free and discharged of and from all estate, title or interest of the Mortgagor, at law or in equity, such purchaser or purchasers being hereby discharged from all liability to see to the application of the purchase money. The proceeds of such sale or sales under this Mortgage, whether under the assent to a decree, the power of sale, or by equitable foreclosure, shall be held by the Mortgagee and applied as follows: (i) First, to pay all costs, charges and expenses attending the execution of this trust or any sale made as aforesaid; (ii) Second,to payment of accrued interest on the Series 2014 Bonds; (iii) Third,to payment of principal outstanding on the Series 2014 Bonds; (iv) Fourth,pro rata to any other Obligations; 16 (v) Fifth, to discharge all taxes, levies, and assessments on the Property, with costs and interest if they have priority over the lien of this Mortgage, including the pro-rata amount thereof due for the current year; and (vi) Last, to pay over to the Mortgagor or its assigns any residue of said proceeds provided, however, that the Mortgagee as to such residue shall not be bound by any inheritance, devise, conveyance, assignment or lien of or upon the Mortgagor's equity, without actual notice thereof prior to distribution. Notwithstanding anything contained in this Section 4.02(a)to the contrary, any foreclosure shall be held in accordance with Minnesota law, and to the extent anything in this Section 4.02 conflicts or is inconsistent with Minnesota law,then Minnesota law shall control. (b) Receiver. As a matter of right and to the extent permitted by law, without notice to the Mortgagor, and without regard to the adequacy of the security, and upon application to a court of competent jurisdiction, the Mortgagee shall be entitled to the immediate appointment of a receiver for all or any part of the Property, and of the rents, income, profits, issues and proceeds thereof and therefrom, whether such receivership be incidental to a proposed sale of the Property or otherwise, and the Mortgagor hereby consents to the appointment of such a receiver. All rents, income, profits, issues and proceeds collected by Mortgagee, or by a receiver, shall be held and applied in accordance with Minnesota Statutes Section 576.25, Subd. 5(d), as the same may be amended or replaced. Any such amounts that are not applied to the items described in clauses (3) or (4) of Minnesota Statutes Section 576.25, Subd. 5(d), as the same may be amended or replaced, shall be applied as follows: (i) if received prior to any foreclosure sale of the Property to the payment of Mortgagee shall elect, but no such payment made after acceleration of the Mortgage Indebtedness shall affect such acceleration; and (ii) if received during or with respect to a period after a foreclosure sale of the Property: (A) if the purchaser at the foreclosure sale is not the Mortgagee, first to the Mortgagee to the extent of any deficiency of the sale proceeds to repay the Mortgage Indebtedness secured by this Mortgage, second to the purchaser as a credit to the redemption price, but if the Property is not redeemed, then to the purchaser of the Property; (B) if the purchaser at the foreclosure sale is the Mortgagee, first to Mortgagee to the extent of any deficiency of the sale proceeds to repay the Mortgage Indebtedness secured by this Mortgage and the balance to be retained by the Mortgagee as a credit to the redemption price, but if the Property is not redeemed, then to the Mortgagee,whether or not such deficiency exists. The Mortgagor will pay to the Mortgagee, upon demand, all expenses, including receiver's fees, attorneys' fees, court costs, agent's compensation, management fees and costs incurred in the repair, maintenance and operation of, or taking possession of, or selling, the Property, advanced by the Mortgagee and incurred pursuant to the provisions contained in this Section; and all such expenses shall be (I) a lien against the Property, (II) added to the Mortgage Indebtedness secured by this Mortgage, and (III)payable on demand. 17 (c) Entry and Operation. To the extent permitted by law, and with or without the appointment of a receiver, or an application therefor,the Mortgagee, may enter upon, and take possession of(and the Mortgagor shall surrender actual possession of), the Property or any part thereof, without being deemed a mortgagee in possession and without notice to the Mortgagor and without bringing any legal action or proceeding, or, if necessary by force, legal proceedings, ejectment or otherwise, and may remove and exclude the Mortgagor and their agents and employees and all other persons therefrom, and having and holding the same may make all necessary or proper repairs, replacements and useful or required alterations, additions, betterments or improvements to or upon the same, and operate, maintain, control, make secure, and preserve the same and receive all earnings, income, rents (including rents accrued and unpaid), and proceeds accruing with respect thereto or any part thereof, such earnings, income, profits, rents and proceeds being hereby assigned to the Mortgagee as additional security for the performance of the Obligations. In so doing, the Mortgagee shall have the right to manage the Property, and to carry on the business of the Mortgagor and may exercise all of the rights and powers of the Mortgagor, either in the name of the Mortgagor or otherwise, including, but without limiting the generality of the foregoing, the right to lease the Property or any part thereof,to cancel, modify, renew or extend any Lease of the Property or any part thereof and to complete the construction of any unfinished improvements. The Mortgagee shall not be liable for or by reason of any such taking of possession, entry, holding, removal, maintaining, operation, making secure or management, except for willful misconduct. Any amounts so received by the Mortgagee shall be applied (i) first, to pay all costs and expenses of so entering upon, taking possession of, holding, operating, maintaining, preserving and managing the Property or any part thereof including, but not in limitation of the foregoing, reasonable compensation to the attorneys, employees or agents of the receiver engaged or employed with regard thereto, (ii) second, to pay the cost and expense of all repairs, renewals, replacements, alterations, additions, betterments and improvements to or upon the Property or any part thereof, (iii)third, to pay all of the Mortgage Indebtedness and the Mortgagee's obligations under the Guaranty, the Lease Agreement and this Mortgage, and(iv) last,to pay the surplus, if any,to the Mortgagor or any person entitled thereto upon surrender and delivery to the purchaser or purchasers of the Property, and less the costs, if any, of obtaining possession. The Mortgagor shall pay on demand to the Mortgagee the amount of any deficiency between(A)the amounts so received by the Mortgagee and(B) all moneys paid or advanced and all costs and expenses incurred (including without limitation, attorneys, fees and expenses) by the Mortgagee in exercising the rights provided in this paragraph, and shall be a part of the Mortgage Indebtedness secured hereby. The exercise of the remedies provided in this subsection shall not cure or waive any Event of Default or notice of an Event of Default hereunder or invalidate any act done pursuant to such notice, and the enforcement of such remedies, once commenced, shall continue for as long as the Mortgagee shall elect, notwithstanding the fact that the exercise of such remedies may have, for a time, cured the original Event of Default. (d) Uniform Commercial Code. The Mortgagee may proceed under the UCC as to all or any part of the Equipment Collateral and any other security granted hereunder and in conjunction therewith,to exercise all of the rights, remedies and powers of a secured party under the UCC including, without limitation, taking possession of the Equipment Collateral and other security without judicial process pursuant to Section 9-609 of the UCC to the extent permitted by the UCC. Upon the occurrence and continuance of any Event of Default hereunder, the Mortgagor shall assemble all of the Equipment Collateral and such other security and make the same available within the Improvements or on the Land or at any other location designated by the Mortgagee and reasonably convenient to the Mortgagee and the Mortgagor. Any notification required by Section 9-611 of the UCC shall be deemed reasonable and properly given if mailed certified mail, return receipt requested, postage prepaid, by the Mortgagee to the Mortgagor at the address specified in Section 5.2 hereof at least ten (10) days before any sale or other disposition of the Equipment Collateral (or any of the other security granted hereunder), or any portion thereof. Disposition of the Equipment Collateral (or any of the other security granted hereunder), or any 18 portion thereof, shall be deemed commercially reasonable if made pursuant to a public offering advertised at least twice in a newspaper generally circulating in the community where the Land is located. (e) Other Remedies. The Mortgagee shall have the right from time to time to enforce any legal or equitable remedy against the Mortgagor and to sue the Mortgagor for any sums (whether interest, damages for failure to pay principal or any installments thereof, Taxes, or any other sums required to be paid under the terms of this Mortgage, as the same become due), without regard to whether or not the Mortgage Indebtedness or any other of the Mortgagor's obligations secured by this Mortgage shall be due, and without prejudice to the right of the Mortgagee thereafter to enforce any appropriate remedy against the Mortgagor, including any action of foreclosure, or any other action, including an action for specific performance, for a default or defaults by the Mortgagor existing at the time such earlier action was commenced. Nothing contained in this Mortgage shall preclude the Mortgagee from exercising or enforcing or any other document, instrument or agreement, or against any collateral or other property then held by the Mortgagee as security for the Mortgagor's obligations under the Guaranty, the Lease Agreement or this Mortgage. No action taken pursuant to this Section shall relieve the Mortgagor from the Mortgage Indebtedness or any of the Mortgagor's obligations under the Guaranty, the Lease Agreement or this Mortgage, all of which shall survive any such action, and the Mortgagee may take whatever action at law or in equity as may appear necessary and desirable to collect the payments and other amounts then due and thereafter to become due or to enforce the performance and observance of the Mortgagor's obligations under the Guaranty,the Lease Agreement or this Mortgage. Any amounts collected pursuant to action taken under this Section shall be paid over to the Mortgagee and applied to the Mortgage Indebtedness and the Mortgagor's obligations under the Guaranty,the Lease Agreement and this Mortgage. Section 4.03 Remedies,etc.,Cumulative Each right,power and remedy of the Mortgagee as provided for in this Mortgage,the Guaranty or the Lease Agreement, shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Mortgage,the Guaranty or the Lease Agreement, and the exercise or beginning of the exercise by the Mortgagee of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by the Mortgagee of any or all such other rights,powers or remedies. Section 4.04 Credit Bid At any foreclosure sale, any person, including Mortgagee on behalf of itself, may bid for and acquire the Property or any part of it to the extent permitted by then applicable law. Instead of paying cash for such Property, Mortgagee may settle for the purchase price by crediting the sales price of the Property against the obligations secured hereby in the order of priority set forth in Section 4.02(a). Section 4.05 No Waiver,etc. No failure or delay by the Mortgagee to insist upon the strict performance of any term, condition, covenant or agreement of this Mortgage, the Guaranty or the Lease Agreement, or to exercise any right, power or remedy consequent upon a breach thereof or hereof, shall constitute a waiver of any such term, condition, covenant or agreement or of any such breach, or preclude the Mortgagee from exercising any such right, power or remedy at any later time or times. By accepting payment after the due date of any amount payable under this Mortgage, the Guaranty or the Lease Agreement, the Mortgagee shall not be 19 deemed to waive the right either to require prompt payment when due of all other amounts payable under this Mortgage, the Guaranty or the Lease Agreement, or to declare a default for failure to effect such prompt payment of any such other amount. Neither the Mortgagor nor any other person now or hereafter obligated for the payment of the whole or any part of the Mortgage Indebtedness now or hereafter secured by this Mortgage shall be relieved of such obligation by reason of the failure of the Mortgagee to comply with any request of the Mortgagor or of any other person so obligated to take action to foreclose this Mortgage or otherwise enforce any of the provisions of this Mortgage or of any Mortgage Indebtedness secured by this Mortgage, or by reason of any agreement or stipulation between any subsequent owner or owners of the Property or any part thereof, or by the Mortgagee extending the time of payment or modifying the terms of this Mortgage,the Guaranty or the Lease Agreement without first having obtained the consent of the Mortgagor or such other person, and in the latter event, the Mortgagor and all such other persons shall continue to be liable to make such payments according to the terms of any such agreement of extension or modification unless expressly released and discharged in writing by the Mortgagee. Regardless of consideration, and without the necessity for any notice to or consent by the holder of any subordinate lien on the Property,the Mortgagee may release the obligation of any person at any time liable for any of the Mortgage Indebtedness secured by this Mortgage or any part of the security held for the Mortgage Indebtedness and may extend the time of payment or otherwise modify the terms of this Mortgage, the Guaranty and the Lease Agreement (upon compliance with any terms and conditions pertaining to such modifications which may be contained in any of such documents) without, as to the security or the remainder thereof, in anyway impairing or affecting the lien or security interest of this Mortgage or the priority of such lien or security interest, as security for the payment of the Mortgage Indebtedness as it may be so extended or modified, over any subordinate lien. The holder of any subordinate lien shall have no right to terminate any Lease affecting the Property whether or not such Lease is subordinate to this Mortgage. The Mortgagee may resort for the payment of the Mortgage Indebtedness secured hereby to the Property or to any other security or collateral therefor held by the Mortgagee in such order and manner as the Mortgagee may elect. ARTICLE V MISCELLANEOUS Section 5.01 Payment by Others. Any payment of the Mortgage Indebtedness secured by this Mortgage or any part thereof made in accordance with the terms of this Mortgage, the Guaranty or the Lease Agreement, by any subsequent owner of the Property or by any other person whose interest in the Property might be prejudiced in the event of a failure to make such payment, or by any stockholder, officer or director of a corporation which at any time may be liable for such payment or may own or have such an interest in the Property, shall be deemed as between the Mortgagee and all persons who at any time may be liable as aforesaid or may own or have an interest in the Property, to have been made on behalf of such persons. Nothing herein contained shall be construed to give any such person any right of subrogation in and to this Mortgage,the Guaranty or the Lease Agreement or all or any part of the Mortgagee's interest herein or therein, until all of the Mortgage Indebtedness secured by this Mortgage shall have been paid in full. Section 5.02 Notices. All notices,demands,requests, consents, approvals, certificates or other communications required or permitted to be given pursuant to this Mortgage shall be in writing and shall be considered properly given if mailed by first-class United States mail, postage prepaid, registered or certified with return receipt requested, use of an overnight delivery service, facsimile, electronic mail or by delivering same in person to the intended addressee, addressed as follows: 20 Mortgagee: Attn: Phone: Facsimile: Email: With a copy to: Attn: Phone: Facsimile: Email: Mortgagor: Recovery Technology Solutions Shakopee,LLC 7700 Equitable Drive#205 Eden Prairie,MN 55344 Attention: Thomas Branhan Phone: 952-746-4184 Facsimile: 952-746-0022 Email: Thomas.Branhan @recoveryts.com With a copy to: Dorsey&Whitney LLP 50 South Sixth Street, Suite 1500 Minneapolis,Minnesota 55402 Attention: Robert G. Hensley Phone: (612)340-2655 Facsimile: (612)677-3769 Email: hensley.robert@dorsey.com Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, demands, requests, consents, approvals, certificates or other communications shall be sent hereunder. Section 5.03 Successors and Assigns. All of the grants, covenants, terms, provisions and conditions herein shall run with the Land and shall apply to, bind and inure to the benefit of,the Mortgagor(including any permitted subsequent owner of the Property, or any part thereof), and inure to the benefit of the Mortgagee, its successors and assigns, and to the successors in trust of the Mortgagee. Section 5.04 Amendments. This Mortgage may be amended to the same extent and upon the same conditions that the Guaranty may be amended. Section 5.05 Illegality. 21 If fulfillment of any provision hereof or any transaction related hereto or to the Guaranty or the Lease Agreement, at the time performance of such provisions shall be due, shall involve transcending the limit of validity prescribed by law, then the obligation to be fulfilled shall be reduced to the limit of such validity; and if any clause or provisions herein contained operates or would prospectively operate to invalidate this Mortgage in whole or in part, then such clause or provision only shall be void, as though not herein contained, and the remainder of this Mortgage shall remain operative and in full force and effect. Section 5.06 Governing Law. The priority, creation, perfection and enforcement of the lien of this Mortgage shall be governed by the law of the State of Minnesota. Section 5.07 The Mortgagor. The Mortgagor executes this Mortgage solely to convey its right,title and interest in the Property. Notwithstanding the above, the Mortgagor, as set forth in this Mortgage, shall be liable for various costs, expenses and responsibilities under this Mortgage. Section 5.08 Waiver of Jury Trial. THE MORTGAGOR AND THE MORTGAGEE BY ACCEPTANCE HEREOF HEREBY VOLUNTARILY AND INTENTIONALLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR OTHERWISE RELATING TO THIS MORTGAGE, WHETHER SUCH ACTION OR PROCEEDING IS INSTITUTED BY THE MORTGAGOR,THE MORTGAGEE OR ANY OTHER PARTY. Section 5.09 Mortgage Registration Tax. [It is acknowledged and agreed that the Obligations secured by this Mortgage include indeterminate amounts and that, in accordance with Minnesota Statutes Section 287.05, subdivision 5, no mortgage registration tax is being paid with respect to such indeterminate amounts at the time of recording of this Mortgage. The delivery of and acceptance of this Mortgage by the Mortgagee and the Mortgagor constitute an acknowledgement that the Mortgagor and the Mortgagee are aware of the provisions of Minnesota Statutes Section 287.05, Subd. 5, and intend to comply with the requirements contained therein. At the time of recording the affidavit(s) required by Minnesota Statutes Section 287.05, Subd. 5 specifying the amount(s) and time(s) of advances by the Mortgagor, the Mortgagor will pay to the Mortgagee the amount of any and all mortgage registration tax required to be paid in connection with such affidavit(s), and, in the event that the Mortgagee pays such mortgage registration tax on the Mortgagor's behalf, in its sole and absolute discretion, such amounts paid shall be immediately due and payable from the Mortgagor to Mortgagee, and shall be considered part of the Mortgage Indebtedness.] ARTICLE VI LEASE AGREEMENT PROVISIONS Section 6.01 The Lease Agreement. The Mortgagor shall diligently pay, perform and observe all of the terms, covenants and conditions of the Mortgagor as lessee under the Lease Agreement. The Mortgagor shall promptly notify the Mortgagee of the giving of any default notice to the Mortgagor, as lessee under the Lease Agreement 22 and shall deliver to the Mortgagee a true copy of the notice. The Mortgagor shall not, without the prior consent of the Mortgagee, surrender the leasehold estate created by the Lease Agreement or terminate the Lease Agreement or amend or supplement the lease Agreement. If the City shall deliver to the Mortgagee a copy of a notice of default under the Lease Agreement, the notice shall be full protection to the Mortgagee for any action taken or omitted to be taken by the Mortgagee, in good faith, in reliance thereon. Section 6.02 No Merger. Fee title to the Land and the leasehold estate created by the Lease Agreement shall not, without the prior written consent of the Mortgagee, merge but shall always be kept distinct, notwithstanding the union of the estates in the Mortgagor, the City or in any other person by purchase, operation of law or otherwise. Section 6.03 Release by Mortgagee. The Mortgagee reserves the right, at any time, to release portions of the Property, including, but not limited to, the leasehold estate created by the Lease Agreement, with or without consideration, at the Mortgagee's election, without waiving or affecting any of its rights under the Guaranty and any such release shall not affect the Mortgagee's rights in connection with any portion of the Property not released. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 23 IN WITNESS WHEREOF,the Mortgagor has executed, sealed and delivered this Mortgage as of the date of the payment of the as of the date first written above. Recovery Technology Solutions Shakopee,LLC By: Name: Thomas E.Branhan Title: CEO&President STATE OF MINNESOTA ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2014, by Thomas E. Branhan the CEO&President of Recovery Technology Solutions Shakopee,LLC, a Delaware limited liability company, on behalf of said limited liability company. Signature 24 EXHIBIT A Property Description All that part of the Southwest Quarter (SW 1/4) of Section Two (2), Township One Hundred Fifteen (115), Range Twenty-Two (22), lying South of the center line of State Highway No. 101 as now established over said lands, and North of the North line of the Chicago, St. Paul,Minneapolis and Omaha Railroad right-of-way, Scott County, Minnesota, EXCEPTING therefrom the following three described parcels of land; Parcel No. 1 The East 100 feet thereof; Parcel No. 2 The West 900 feet thereof; Parcel No. 3 All that part of the Southwest Quarter of Section 2,Township 115. Range 22,described as follows: Commencing at the point of intersection of the Southerly right-of-way line of State Highway No. 101 and a line drawn parallel to and 100 feet West of the East line of said Southwest Quarter (SW 1/4); thence West along said Southerly right-of-way line of State Highway No. 101 for a distance of 749.0 feet;thence South parallel with the East line of said Southwest Quarter 1055.0 feet more or less to the Northeasterly right-of-way line of the Minneapolis, St. Paul & Omaha Railroad; thence Southeasterly along said Northeasterly right-of-way line 776.8 feet more or less to the point of intersection with a line drawn parallel to and 100 feet West of the East line of said Southwest Quarter(SW 1/4);thence North along said parallel line 1264.8 feet more or less to the point of beginning. Lying south of the southerly line of said State Highway No. 101 and East of the east line of the West 485.38 feet thereof 25 EXHIBIT B Permitted Encumbrances 1. Special assessments and taxes a lien not yet due and payable. 2. Real estate taxes for the second half 2014 and subsequent years, a lien not yet due and payable. 3. Sanitary Sewer Easement as acquired in Final Certificate dated October 11, 1974, field October 16, 1974,as Document No. 142852. 4. Right of State of Minnesota to erect Temporary Snow Fences on lands adjacent to Highway 101 as acquired in Condemnation Proceedings as disclosed by Final Certificate dated November 24, 1936,filed December 5, 1936, in Book 85 of Deeds on pages 179-182. 5. Limitation of right of access to Highway 101 as evidenced by Quit Claim Deed dated July 8, 1981, filed April 29, 1982,as Document No. 186598. 6. Drainage and utility easement in favor of the City of Shakopee as evidenced by Easement dated August 29, 2013,filed September 6, 2013, as Document No. A944961. 7. The following items as disclosed by survey dated August 5, 2013, last revised August 23, 2013 by Loucks Associates Project No. 13-367: a. Lack of recorded easement for the watermain running east-west on the north side of the property. b. Existing fence encroaches onto adjacent property along easterly boundary and on the northeast, southeast and southwest corners of property. 8. Terms and conditions of Resolution No. PC13-047 from the City of Shakopee filed February 11, 2014 as Document No.A953737. 9. Terms and conditions of Resolution No. PC14-013 from the City of Shakopee filed April 22, 2014 as Document No.A956967. 10. [ .] KD_6596430_1.DOCX 26 INDENTURE OF TRUST Between CITY OF SHAKOPEE,MINNESOTA, as Issuer And UMB BANK,N.A., as Trustee Relating to: [$16,000,000] City of Shakopee,Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 Dated as of ,2014 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION 5 Section 1.01 General Definitions 5 Section 1.02 Rules of Construction 30 Section 1.03 Content of Certificates and Opinions 30 ARTICLE II THE BONDS 32 Section 2.01 Authorization of Bonds 32 Section 2.02 Date, Denomination, Interest Rate, and Maturity. 32 Section 2.03 Form of Series 2014 Bonds 33 Section 2.04 Conditions to Issuance of Series 2014 Bonds; Execution of Bonds. 33 Section 2.05 Transfer and Exchange of Bonds. 39 Section 2.06 Bond Register 40 Section 2.07 Bonds Mutilated, Lost, Destroyed or Stolen 40 Section 2.08 Bonds; Limited Obligations. 41 Section 2.09 Disposal of Bonds 42 Section 2.10 Book-Entry System. 42 Section 2.11 CUSIP Numbers 43 Section 2.12 Authorization of Additional Bonds 44 ARTICLE III REDEMPTION OF BONDS 47 Section 3.01 Redemption of Bonds Generally 47 Section 3.02 Redemption upon Optional Prepayment 47 Section 3.03 Redemption upon Mandatory Prepayment. 47 Section 3.04 Selection of Bonds for Redemption. 49 Section 3.05 Notice of Redemption. 50 Section 3.06 Partial Redemption of Bonds 50 Section 3.07 No Partial Redemption after Default 51 Section 3.08 Payment of Redemption Price 51 Section 3.09 Effect of Redemption. 51 ARTICLE IV GENERAL COVENANTS 52 Section 4.01 Payment of Bonds. 52 Section 4.02 Performance of Covenants by Issuer; Due Execution; Acknowledgement of Accounts Agreement. 53 Section 4.03 Defense of Issuer's Rights 54 Section 4.04 Recording and Filing; Further instruments. 54 Section 4.05 Rights under Lease Agreement 54 Section 4.06 Arbitrage and Tax Covenants 54 Section 4.07 No Disposition of Trust Estate 55 Section 4.08 Access to Books 55 Section 4.09 Source of Payment of Bonds 55 i 15334552v.3 ARTICLE V FUNDS AND ACCOUNTS; DEPOSIT AND APPLICATION OF BOND PROCEEDS 56 Section 5.01 Creation of Funds and Accounts Under Indenture. 56 Section 5.02 Application of Series 2014 Bond Proceeds and Other Amounts. 57 Section 5.03 Deposits into the Funds; Use of Moneys in the Funds. 57 Section 5.04 Bonds Not Presented for Payment of Principal. 60 Section 5.05 Payment to the Company 60 ARTICLE VI INVESTMENTS 61 Section 6.01 Investment of Moneys in Funds 61 Section 6.02 Conversion of Investment to Cash 61 Section 6.03 Credit for Gains and Charge for Losses 61 Section 6.04 Payments into Rebate Fund; Application of Rebate Fund 61 ARTICLE VII DEFEASANCE 63 Section 7.01 Defeasance. 63 ARTICLE VIII DEFAULTS AND REMEDIES 65 Section 8.01 Events of Default 65 Section 8.02 Acceleration; Other Remedies. 65 Section 8.03 Restoration to Former Position 67 Section 8.04 Owners' Right to Direct Proceedings 67 Section 8.05 Limitation on Owners' Right to Institute Proceedings 67 Section 8.06 No Impairment of Right to Enforce Payment 68 Section 8.07 Proceedings by Trustee Without Possession of Bonds 68 Section 8.08 No Remedy Exclusive 68 Section 8.09 No Waiver of Remedies 68 Section 8.10 Application of Moneys. 68 Section 8.11 Severability of Remedies 70 ARTICLE IX TRUSTEE; REGISTRAR 71 Section 9.01 Acceptance of Trusts; Representations, Warranties and Covenants of the Trustee. 71 Section 9.02 No Responsibilities for Recitals 71 Section 9.03 Limitations on Liability. 71 Section 9.04 Compensation, Expenses and Advances 73 Section 9.05 Notice of Events of Default and Determination of Taxability 74 Section 9.06 Action by Trustee 75 Section 9.07 Good-Faith Reliance. 75 Section 9.08 Dealings in Bonds; Allowance of Interest. 76 Section 9.09 Several Capacities 76 Section 9.10 Resignation of Trustee 76 Section 9.11 Removal of Trustee 77 Section 9.12 Appointment of Successor Trustee. 77 Section 9.13 Qualifications of Successor Trustee 78 Section 9.14 Judicial Appointment of Successor Trustee 78 ii Section 9.15 Acceptance of Trusts by Successor Trustee 78 Section 9.16 Successor by Merger or Consolidation 78 Section 9.17 Standard of Care 78 Section 9.18 Intervention in Litigation of the Issuer 79 Section 9.19 Registrar; Resignation, Removal. 79 Section 9.20 Qualifications of Registrar 79 Section 9.21 Additional Duties of Trustee 80 Section 9.22 Records of Investments 80 Section 9.23 Notice to Rating Agency 81 ARTICLE X EXECUTION OF INSTRUMENTS BY OWNERS AND PROOF OF OWNERSHIP OF BONDS 82 Section 10.01 Execution of Instruments; Proof of Ownership. 82 ARTICLE XI MODIFICATION OF THIS INDENTURE, THE LEASE AGREEMENT AND THE SECURITY DOCUMENTS 83 Section 11.01 Supplemental Indentures Without Owner Consent 83 Section 11.02 Supplemental Indentures Requiring Owner Consent 84 Section 11.03 Effect of Supplemental Indenture 85 Section 11.04 Consent of the Company and Other Parties. 85 Section 11.05 Amendment of Lease Agreement Without Owner Consent 85 Section 11.06 Amendment of Lease Agreement Requiring Owner Consent. 87 Section 11.07 Amendment of Security Documents Without Owner Consent 87 Section 11.08 Amendment of Security Documents Requiring Owner Consent 88 ARTICLE XII MISCELLANEOUS 89 Section 12.01 Successors of the Issuer 89 Section 12.02 Parties in Interest 89 Section 12.03 Severability 89 Section 12.04 No Personal Liability of Issuer Officials 89 Section 12.05 Bonds Owned by the Issuer or the Company 89 Section 12.06 Counterparts 90 Section 12.07 Governing Law 90 Section 12.08 Notices 90 Section 12.09 Holidays 91 Section 12.10 Date for Identification Purposes Only; Effective Date 91 EXHIBIT A FORM OF SERIES 2014 BOND EXHIBIT B FORM OF INVESTOR LETTER iii INDENTURE OF TRUST THIS INDENTURE OF TRUST is made and entered into as of , 2014 (this "Indenture"), between the CITY OF SHAKOPEE, MINNESOTA (the "Issuer"), a municipal corporation and political subdivision organized and existing under the laws of the State of Minnesota (the "State") and UMB BANK, N.A., a national banking association duly organized and existing under the laws of the United States of America and authorized to accept and execute trusts of the character herein set out, with a designated corporate trust office in Minneapolis, Minnesota, and being qualified to accept and administer the trusts hereby created, as trustee (the "Trustee"). Capitalized terms used herein and not otherwise defined shall have the meaning ascribed in Article I hereof WITNESSETH: WHEREAS, Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act"), authorize a city to issue revenue obligations to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of a "project," defined in the Act, in part, as any properties, real or personal, used or useful in the abatement or control of noise, air, or water pollution, or in the disposal of solid wastes, in connection with a revenue producing enterprise; and WHEREAS, at the request of Recovery Technology Solutions Shakopee, LLC (the "Company") and in furtherance of purposes of the Act, the Issuer has determined to issue revenue bonds designated as City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of [$16,000,000] (the "Series 2014 Bonds"), pursuant to and in accordance with the terms of this Indenture; and WHEREAS, following the adoption by the Issuer on August 7, 2013 of a resolution declaring its official intent to finance, refinance or reimburse for the Company all or a portion of the costs of acquiring, constructing, equipping, installing, and improving an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil, to be located at 6528 County Road 101 East in the City of Shakopee, Minnesota, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a) of the Act (the "Project"), the Company has acquired, constructed, equipped, installed, and improved the Project and will lease the Project to the Issuer pursuant to a [Real Estate, Improvements and Equipment Lease Agreement] dated as of , 2014 (the "Base Lease"), between the Issuer and the Company, in consideration of the Issuer issuing and selling the Series 2014 Bonds; and WHEREAS,pursuant to that certain Lease Agreement dated as of , 2014 (the "Lease Agreement"), between the Issuer and the Company, the Issuer has agreed to (a) provide for the application of the proceeds of the Series 2014 Bonds for the benefit of the Company to be used: (i) for the financing, refinancing or reimbursement of all or a portion of the costs of acquiring, constructing, equipping, installing, and improving the Project (all as more specifically described in Exhibit A to the Lease Agreement); (ii) to fund a debt service reserve account for the Series 2014 Bonds; and (iii) to pay certain costs relating to the issuance of the Series 2014 Bonds, all as permitted under the Act, and (b) lease the Project to the Company, subject to the Company's agreement to pay the rental and other obligations provided for under such Lease Agreement; and WHEREAS, pursuant to this Indenture, the Issuer will assign all of its right, title and interest in the Lease Agreement (except for certain Unassigned Rights as defined herein) to the Trustee to secure the payment of the Series 2014 Bonds and, the Series 2014 Bonds, together with interest thereon, will be payable by the Issuer solely from the Lease Payments to be made by the Company consisting of Basic Rent, from other amounts payable under the Lease Agreement, the Accounts Agreement and the Security Documents, from certain funds and accounts pledged to the Trustee under the Indenture and as otherwise provided in the Indenture and the Accounts Agreement; and WHEREAS, in order to further secure the Company's obligations under the Lease Agreement and to provide for the disbursement of funds for the payment of Project Costs and the capture and allocation of the revenues from the Project following the Completion Date, the Company, the Securities Intermediary, the Accounts Bank and the Trustee have entered into that certain Accounts Agreement dated as of , 2014 (the "Accounts Agreement") which, together with the Indenture, the Lease Agreement and the other Bond Documents, govern the application and allocation of the proceeds of the Series 2014 Bonds and other funds to be provided by or on behalf of the Company, and the application of revenues from the Project; and WHEREAS, the Series 2014 Bonds, the provisions for registration to be endorsed thereon, and the certificate of authentication by the Trustee to be inscribed thereon shall be in substantially the form set forth in Exhibit A hereto, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture; and WHEREAS, in order to provide for the authentication and delivery of the Series 2014 Bonds, to establish and declare the terms and conditions upon which the Series 2014 Bonds are to be issued and secured and to secure the payment of the principal thereof and the premium, if any, and interest thereon, the Issuer has authorized the execution and delivery of this Indenture; and WHEREAS, all things necessary to make the Series 2014 Bonds, when issued as provided in this Indenture,the valid, binding and legal limited obligations of the Issuer according to the import thereof, and to constitute this Indenture a valid assignment of the amounts pledged to the payment of the principal of, premium, if any, and interest on the Series 2014 Bonds and a valid assignment of the rights of the Issuer under the Lease Agreement have been done and performed, and the creation, execution and delivery of this Indenture and the execution and issuance of the Series 2014 Bonds, subject to the terms hereof, in all respects have been duly authorized; and WHEREAS, the Trustee has agreed to accept the trusts herein created upon the terms herein set forth. NOW,THEREFORE,the Issuer, in consideration of the premises and the acceptance by the Trustee of the trusts hereby created, and for other good and valuable consideration, the 2 receipt and sufficiency of which are hereby acknowledged, and in order to secure the payment of the principal of, premium, if any, and interest on the Series 2014 Bonds according to their tenor and effect, and to secure the performance and observance by the Issuer of all of the covenants and obligations expressed or implied herein and in the Series 2014 Bonds, does hereby irrevocably grant, alienate, bargain, sell, convey, transfer, assign and pledge unto the Trustee (to the extent of its legal capacity to hold the same for the purposes hereof), and the successors in trust and assigns of the Trustee: GRANTING CLAUSES GRANTING CLAUSE I All right, title and interest of the Issuer (a) in, to and under the Base Lease and the Lease Agreement (except its Unassigned Rights); (b) in the amounts payable to the Issuer under the Lease Agreement (excluding amounts which the Issuer is permitted to retain under its Unassigned Rights); and (c) to do any and all other things which the Issuer is or may become entitled to do under the Base Lease and the Lease Agreement (except its Unassigned Rights); provided, however, that the assignment made pursuant to this clause shall not impair or diminish any obligation of the Issuer under the Lease Agreement or alter the rights, duties and obligations of the Trustee under the remaining terms of this Indenture; and GRANTING CLAUSE II All right, title and interest of the Issuer in and to the Account Collateral (as defined in the Accounts Agreement) held by the Accounts Bank under the Accounts Agreement and pledged by the Company to the Trustee, for the benefit of the Bondholders; and GRANTING CLAUSE III All right, title and interest of the Issuer in and to all moneys and other obligations which are, from time to time, deposited or required to be deposited with or held or required to be held by or on behalf of the Trustee in trust under any of the provisions of this Indenture (except moneys or obligations deposited with or paid to the Trustee for payment or redemption of the Series 2014 Bonds and any Additional Bonds as may be issued pursuant to this Indenture (collectively,the `Bonds")that are deemed no longer Outstanding hereunder); and GRANTING CLAUSE IV All right,title and interest, if any, in and to the Security Documents; and GRANTING CLAUSE V All Net Proceeds payable with respect to the Project; GRANTING CLAUSE VI Any and all property, rights and interests of every kind or description which, from time to time hereafter, may be sold, transferred, conveyed, assigned, pledged, mortgaged or delivered to 3 the Trustee as additional security hereunder; the Trustee is hereby authorized to receive all such property at any time and to hold and apply it subject to the terms hereof; and EXCEPTED PROPERTY There is, however, expressly excepted and excluded from the lien and operation of this Indenture amounts held by the Trustee in the Rebate Fund established hereunder; TO HAVE AND TO HOLD all and singular the Trust Estate (as hereinafter defined), whether now owned or hereafter acquired, irrevocably unto the Trustee and its successors in trust and assigns forever; IN TRUST, NEVERTHELESS, upon the terms and trusts herein set forth, to secure the payment of the Bonds to be issued hereunder, and premium, if any, payable upon redemption or prepayment thereof, and the interest payable thereon, and to secure also the observance and performance of all the terms, provisions, covenants and conditions of this Indenture, and for the equal and ratable benefit and security of all and singular the Owners of all Bonds issued hereunder, without preference, priority or distinction as to lien or otherwise, except as otherwise hereinafter provided, of any one Bond over any other Bond or as between principal and interest, and it is hereby mutually covenanted and agreed that the terms and conditions upon which the Bonds are to be issued, authenticated, delivered, secured and accepted by all Persons who shall from time to time be or become the Owners thereof, and the trusts and conditions upon which the pledged moneys and revenues are to be held and disbursed, are as follows; PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of the Bonds and the interest and premium, if any, due or to become due thereon at the times and in the manner mentioned in the Bonds according to the true intent and meaning thereof, and shall cause the payments to be made into the Bond Fund as required under Article V hereof, or shall provide, as permitted by Article VII hereof, for the payment thereof, and for the payment of certain excess investment earnings to the United States of America as required under Article V hereof, and shall well and truly keep, perform and observe all of the covenants and conditions pursuant to the terms of this Indenture to be kept, performed and observed by it, and shall pay or cause to be paid to the Trustee all sums of money due or to become due in accordance with the terms and provisions hereof, and the rights hereby granted shall cease and terminate; otherwise this Indenture is to be and remain in full force and effect. THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all Bonds issued and secured hereunder are to be issued, authenticated and delivered, and all said property, rights and interests, including, without limitation, the amounts hereby assigned, are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes hereinafter expressed, and that the Issuer has agreed and covenanted, and hereby does agree and covenant, with the Trustee and the Owners, from time to time, of the Bonds, or any part thereof, as follows: 4 ARTICLE I DEFINITIONS AND RULES OF CONSTRUCTION Section 1.01 General Definitions. The terms defined in this Section 1.01 shall have the meanings provided herein for all purposes of this Indenture, the Lease Agreement and the Accounts Agreement, unless the context clearly requires otherwise. Certain terms used herein but not otherwise defined herein shall have the meanings provided for in the Accounts Agreement. "Account" means any of the accounts established under this Indenture or, as the context may indicate, any of the Project Accounts established under the Accounts Agreement. "Accounts Agreement" means the Accounts Agreement, dated as of , 2014, among the Company, the Accounts Bank, the Securities Intermediary and the Trustee, as amended and supplemented from time to time as permitted therein. "Acquisition Funding Notice" means a disbursement request in the form of Exhibit L to the Lease Agreement made by an Authorized Company Representative as provided in Section 3.1(b) of the Lease Agreement. "Acquisition Price" means $ representing the amount of proceeds of the Series 2014 Bonds use to reimburse the Company pursuant to the Lease Agreement and Accounts Agreement for the acquisition, construction, equipping, installation, and improvement of the Project. "Act" means the provisions of Minnesota Statutes, Sections 469.152 through 469.1655, as amended. "Additional Bonds" means any Additional Bonds of the Issuer authorized to be issued pursuant to Section 2.12 hereof. "Additional Rent" means the amounts required to be paid by the Company pursuant to the provisions of Sections 5.1(b) of the Lease Agreement. "Additional Project Contracts" means each contract, agreement, letter agreement or other instrument to which the Company becomes a party after the date hereof, other than (a) any document under which the Company could not reasonably be expected to have obligations or liabilities in the aggregate in excess of $250,000, or be entitled to receive revenues in the aggregate in excess of $250,000, in either case in value in any twelve (12)month period and (b) a termination of which could not reasonably be expected to result in a Material Adverse Effect; provided, that for the purposes of this definition, any series of related transactions (other than transactions, including hedging transactions, relating to the sale of Products) shall be considered as one transaction, and all contracts, agreements, letter agreements or other instruments in respect of such transactions shall be considered as one contract, agreement, letter agreement or other instrument, as applicable. 5 "Adjusted Book Value" means, with respect to Property of the Company as of any date, the value of such Property as reflected on the most recent books and records of the Company, adjusted to reflect the value of such Property prior to any accounting for depreciation. "Administration Expenses" means reasonable compensation and reimbursement of reasonable expenses and advances (including, without limitation, reasonable attorneys' fees and expenses) payable to the Issuer, the Trustee, the Registrar, the Independent Engineer, the Majority Bondholder, any Rating Agency and the Securities Depository, including, without limitation,the fees and expenses described in Section 2.13 of the Lease Agreement. "Ancillary Contracts" means, with respect to each Necessary Project Contract, Deferred Contract and Additional Project Contract, the following, each of which shall be in form and substance reasonably satisfactory to the Trustee: (a) each security instrument and agreement necessary or desirable to grant to the Trustee a first priority perfected Lien (subject only to Permitted Encumbrances) in such Additional Project Contract and all property interests received by the Company in connection therewith; (b) all recorded UCC financing statements and other filings required to perfect such Lien; (c) if reasonably requested by the Trustee, opinions of counsel for the Company addressing such matters relating to such document, each applicable Security Document and Lien as the Trustee may reasonably request; (d) if reasonably requested by the Trustee, the Company (i) shall use its commercially reasonable efforts to obtain a Consent Agreement with respect to such Additional Project Contract from each Project Party thereto, and (ii) shall use its commercially reasonable efforts to obtain an opinion of counsel to such Project Party addressing matters relating to such Additional Project Contract and such Consent Agreement as the Trustee may reasonably request; and (e) certified evidence of the authorization of such Additional Project Contract by the Company. "Authorized Issuer Representative" means the City Administrator, the Finance Director or other duly authorized officer of the Issuer. "Authorized Company Representative" means each person at the time designated to act on behalf of the Company by written certificate furnished to the Issuer and the Trustee containing the specimen signature of such person and signed on behalf of the Company by its Manager, its President, any Vice President, its Secretary, any Assistant Secretary, its Treasurer or any Assistant Treasurer or other official of the Company. Such certificate may designate an alternate or alternates. "Authorized Denomination" means $100,000 or any integral multiples of $5,000 in excess thereof. 6 "Base Lease" means the [Real Estate, Improvements and Equipment Lease Agreement] between the Company and the Issuer wherein the Company has leased the Project and the Project Site, including all improvements thereto and all equipment financed with proceeds of the Series 2014 Bonds, to the Issuer in connection with the financing of the Project. "Basic Rent" means the rent required to be made by the Company pursuant to Section 5.1(a) of the Lease Agreement. "Beneficial Owner" when the Bonds are held in book-entry form, has the meaning ascribed to such term in Section 2.10(a) hereof "Bond" or "Bonds" means the Series 2014 Bonds and any Additional Bonds authenticated and delivered pursuant to this Indenture with such distinctions as may be contained in a Supplemental Indenture authorized in connection with such Additional Bonds. "Bondholder," "Bondholders," "Bondowner," "Bondowners," "Holder," Holders," "Owner"or"Owners"means the registered owner of he Bonds "Bond Counsel" means Kennedy & Graven, Chartered, Minneapolis, Minnesota or any other firm of nationally recognized bond counsel familiar with the type of transactions contemplated under this Indenture selected by the Company and acceptable to the Trustee and the Issuer. "Bond Documents" means this Indenture, the Accounts Agreement, the Lease Agreement, the Base Lease, the Tax Agreement and the Security Documents, and each other document designated as a Bond Document by the Company and the Trustee. "Bond Fund" means the trust fund by that name created pursuant to Section 5.01(a) hereof "Bond Guaranty Agreement" means the Bond Guaranty Agreement, dated 2014 from the Guarantor to the Trustee guaranteeing the prompt and full payment of the principal of, interest on and premium, if any, on the Series 2014 Bonds, for the ratable benefit of the Owners of the Bonds Outstanding. "Bond Payment Date" means any Interest Payment Date, any Principal Payment Date and any other date on which the principal of, and premium, if any, and interest on, the Bonds is to be paid to the Owners thereof, whether upon redemption, at maturity or upon acceleration of maturity of the Bonds. "Bond Purchase Agreement"means the Bond Purchase Agreement, dated 2014, among the Issuer, the Company and the Placement Agent. "Bond Resolution"means the resolution or ordinance adopted by the City Council of the Issuer on October 21, 2014, authorizing the issuance, delivery and sale of the Series 2014 Bonds. "Business Day" means any day on which interbank wire transfers can be made on the Fedwire System, except a Saturday, Sunday or other day (a) on which commercial banks located 7 in the cities in which the office of the Trustee administering this Indenture, the designated office of the Trustee originating payments on the Bonds, or the Principal Office of the Company are located are required or authorized by law, executive order or regulation to remain closed or are closed, or(b) on which The New York Stock Exchange is closed. "Business Interruption Proceeds" means all proceeds of any insurance policies required pursuant to the Lease Agreement or other Bond Documents, or otherwise obtained with respect to the Issuer, the Company or the Project relating to business interruption or delayed start-up. "Capital Expenditures" means, without duplication, any expenditure for any purchase or other acquisition of any asset which would be classified as a fixed or capital asset on a balance sheet of the Company prepared in accordance with GAAP. "Capital Lease" means any lease which in accordance with GAAP would be required to be capitalized on the balance sheet of the Company. "Capitalized Interest Subaccount" means the subaccount by that name created within the Construction Account pursuant to Section 3.01(a)(i) of the Accounts Agreement and administered pursuant to Section 4.01 thereof. "Cash Equivalents"means: (a) readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations unconditionally guaranteed by the full faith and credit of the government of the United States, in each case maturing within one (1) year from the date of acquisition thereof; (b) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one (1) year from the date of acquisition thereof and, at the time of acquisition, having a rating of AA- or higher from S&P or Aa3 or higher from Moody's (or, if at any time neither S&P nor Moody's shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (c) investments in commercial paper maturing within 180 days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-1 or P-1 from either S&P or Moody's (or, if at any time neither S&P nor Moody's shall be rating such obligations, an equivalent rating from another nationally recognized rating service); (d) investments in certificates of deposit, banker's acceptances and time deposits maturing within 270 days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Trustee or any domestic office of any commercial bank organized under the laws of the United States of America, any State thereof, any country that is a member of the Organization for Economic Co-Operation and Development or any political subdivision thereof, that has a combined capital and surplus and 8 undivided profits of not less than $500,000,000 and whose short-term bank deposits have an A prefix by S&P or an equivalent rating by Moody's; (e) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria of clause (d) of this definition; (f) investments in "money market funds" within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (a)through(e) of this definition; and (g) any other obligations or securities approved in writing by the Trustee, so long as such security or obligation is rated by S&P or Moody's in one of their three (3) highest rating categories (or, if at any time neither S&P nor Moody's shall be rating such obligations, an equivalent rating from another nationally recognized rating service); and in the absence of written direction from the Company,the Trustee shall invest moneys in any Fund or Account created pursuant to this Indenture or the Accounts Agreement in the . Ratings of Cash Equivalents referred to herein shall be determined at the time of purchase of such Cash Equivalents and without regard to ratings subcategories. "Change of Control" means any transaction or series of related transactions (including any merger or consolidation) the result of which is that the Pledgor fails to maintain, directly, legally or beneficially, at least 100%of the Equity Interests of the Company. "Change Order" means each "Change Order" (if any) as described in the Construction Contract or any item not contemplated by or listed in the then current Construction Budget. "Claim" means any claim, suit, demand, proceeding, complaint, assessment, lien, injunction, order,judgment, notice of non-compliance or violation, investigation or other action by or before any Governmental Authority or any other Person. "Closing" means delivery of fully executed and authenticated Series 2014 Bonds to the initial purchasers thereof in exchange for the purchase price thereof or in the case of an issue of Additional Bonds, the delivery of fully executed and authenticated Additional Bonds to the initial purchasers thereof in exchange for the purchase price thereof. "Closing Date"means the date of the Closing. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to a section of the Code herein shall be deemed to include the United States Treasury Regulations, including temporary and proposed regulations, relating to such section which is applicable to the Bonds or the use of the proceeds thereof. "Collateral" means all property and rights granted or pledged to the Trustee by the Company and the Pledgor, as applicable, under the Security Documents, as more fully described in Section 2.3.17 of the Lease Agreement. 9 "Collateral Assignment of Contracts" means the Collateral Assignment of Plans, Permits, Licenses, Approvals, Contracts and Construction Documents, dated as of 2014, which is granted by the Company in favor of the Trustee for the ratable benefit of the Owners of the Bonds Outstanding. "Commodity Hedging Arrangements" means any arrangement to hedge the price of feedstock purchases, natural gas or other commodities used by the Company from time to time. "Company" means Recovery Technology Solutions Shakopee, LLC, a limited liability company organized and existing under the laws of the State of Delaware. "Company Agreements" has the meaning set forth in Section 2.3.1 of the Lease Agreement. "Company's Certificate" means a certificate signed on behalf of the Company by an Authorized Company Representative. "Completion" means that all portions of the Project have been fully completed in accordance with the plans and specifications therefor, as then amended, and as identified in the Notice of Completion, and each of the conditions set forth in Section 3.3 of the Lease Agreement shall have been achieved, including Performance Testing, whether in connection with (a) the initial issuance of the Series 2014 Bonds, (b) the receipt of Net Proceeds and approval of a Restoration and Replacement Plan or(c) issuance of Additional Bonds to complete or expand the Project. "Completion Certificate" means (a) a certificate of the Independent Engineer, in substantially the form of Exhibit F-1 to the Lease Agreement, and (b) a certificate of the Company in substantially the form of Exhibit F-2 to the Lease Agreement, in each case confirming that Completion has occurred. "Completion Date"means the Business Day upon which the Completion occurs. "Completion Date Funding Notice" means a disbursement request in the form of Exhibit H to the Lease Agreement made by an Authorized Company Representative as provided in Section 3.6 of the Lease Agreement, directing the transfer or withdrawal of funds from the Construction Account of the Accounts Agreement as of the Completion Date. "Consent Agreements" means, collectively, the notice of assignment to, and the related consent and acknowledgement from, each entity with which the Company has entered into a Necessary Project Contract that is the subject of the related Collateral Assignment. "Construction Budget" means the detailed construction budget to be provided by the Company to the Trustee prior to the approval of any Restoration or Replacement Plan or any completion or expansion of the Project financed with the proceeds of Additional Bonds, which sets forth all categories of Project Costs required in connection with the restoration or replacement of the Project, or the completion or expansion of the Project utilizing the proceeds of Additional Bonds, including all construction costs, all interest, taxes and other carrying costs related to the any financing in connection with the restoration or replacement of the Project or 10 completion or expansion of the Project financed with the proceeds of Additional Bonds, and costs related to the construction of the facilities described under the Necessary Project Contracts, as updated from time to time, including but not limited to, the cost of all real and personal property to be included in the Project. "Construction Contract" means the Agreement for Engineering, Procurement and Construction Services dated as of , 2014, between the Company and the General Contractor, or in the case of a Restoration or Replacement Plan or the completion or expansion of the Project using the proceeds of Additional Bonds, the contractor identified in the construction contract entered into by the Company and such construction contracting firm approved in writing by the Majority Bondholder. "Construction Advance Funding Notice" means a disbursement request in the form of Exhibit G to the Lease Agreement made by an Authorized Company Representative as provided in Section 3.4.1(a) of the Lease Agreement. "Contest" or "Contesting" means, with respect to any matter or Claim involving any Person, that such Person is contesting such matter or Claim in good faith and by appropriate proceedings timely instituted; provided, that the following conditions are satisfied: (a) such Person has established adequate reserves, posted a bond or cash collateral for the full amount of such Claim or other security acceptable to the Trustee; (b) during the period of such contest, the enforcement of any contested item is effectively stayed; (c)none of such Person or any of its officers, directors or employees, or the Trustee, or their respective officers, directors or employees, is or would reasonably be expected to become subject to any criminal liability or sanction in connection with such contested items; and (d) such contest and any resultant failure to pay or discharge the claimed or assessed amount during the pendency of such contest does not, and could not reasonably be expected to (i) result in a Material Adverse Effect or(ii) involve a material risk of the sale, forfeiture or loss of, or the creation, existence or imposition of any Lien on, any of the collateral securing the Bonds or the other obligations of the Company under the Bond Documents. "Contingent Liabilities" means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise to assure a creditor against loss) the Indebtedness, obligation or any other liability of any other Person(other than by endorsements of instruments in the course of collection), or guarantees the payment of dividends or other distributions upon the shares of any other Person. The amount of any Person's obligation under any contingent liabilities shall (subject to any limitation set forth therein)be deemed for purposes of this Indenture to be the outstanding principal amount of the debt, obligation or other liability guaranteed thereby; provided, that if the maximum amount of the debt, obligation or other liability guaranteed thereby has not been established, the amount of such contingent liability shall be the maximum reasonably anticipated amount of the debt, obligation or other liability; provided, further, that any agreement to limit the maximum amount of such Person's obligation under such contingent liability shall not, of and by itself, be deemed to establish the maximum reasonably anticipated amount of such debt, obligation or other liability. 11 "Continuing Disclosure Agreement" means the Continuing Disclosure Undertaking Agreement, dated as of , 2014, executed and delivered by the Company for the benefit of the Bondholders, as amended and supplemented from time to time as permitted therein. "Costs of Issuance" means (a) payment of all reasonable costs incurred by the Company in connection with the issuance of the Series 2014 Bonds including, but not limited to, legal and accounting fees and expenses, printing expenses, financial consultants' fees, financing charges (including underwriting or Placement Agent fees and discounts), printing and engraving costs, the fees and expenses of the Rating Agency, preparation of the financing statements, preparation of any disclosure document and any other documents necessary for the issuance of the Series 2014 Bonds, (b) payment of the fees and reasonable expenses of the Trustee, the Issuer and the Registrar and the reasonable expenses of their Counsel properly incurred under or in connection with the issuance of the Series 2014 Bonds, and(c) certain other transaction costs and expenses. "Costs of Issuance Subaccount" means, (a) with respect to the Series 2014 Bonds, the subaccount by that name created within the Acquisition Account pursuant to Section 3.01(ix) and administered pursuant to Section 13.01(a) of the Accounts Agreement and (b)with respect to any Additional Bonds, the subaccount by that name created within the Construction Account pursuant to Section 3.01(a) and administered pursuant to Section 4.01(b) of the Accounts Agreement. "Counsel" means an attorney or firm whose members are attorneys duly admitted to practice law before the highest court of any state and, without limitation, may include legal counsel for the Company,the Trustee or the Issuer. "Dated Date" means the date of initial issuance of the Series 2014 Bonds and any Additional Bonds that may, from time to time, be issued hereunder. "Debt Service Coverage Ratio" means all revenues (other than extraordinary revenues) net of Operation and Maintenance Expenses and all applicable taxes, such as income, property, franchise, excise or otherwise payable by the Company, in the immediately preceding twelve (12) month period (and to be annualized for the Company's first year of operations) divided by the Maximum Annual Debt Service on the Bonds, all calculated for such fiscal period on a consolidated basis in accordance with GAAP. "Debt Service Reserve Account Withdrawal Certificate" means a disbursement request in the form of Exhibit F to the Accounts Agreement made by an Authorized Company Representative as provided in Section 10.01 of the Accounts Agreement. "Debt Service Reserve Account" means the Project Account by that name created pursuant to Section 3.01(a)(vii) and administered pursuant to Article X of the Accounts Agreement. "Debt Service Reserve Requirement" means (a) with respect to the Series 2014 Bonds, [$1,600,000], which is an amount equal to the least of(i) 10% of the stated principal amount of the Series 2014 Bonds, (ii) the maximum annual principal and interest on the Series 2014 Bonds 12 and (ii) 125% of the average annual principal and interest on the Series 2014 Bonds and (b) with respect to any Additional Bonds, the amount, if any, set forth in the Supplemental Indenture authorizing such Additional Bonds. "Default" means any condition, occurrence or event that, after notice or passage of time or both, would be an Event of Default. "Deferred Contracts" has the meaning set forth in Section 2.3.16 of the Lease Agreement. "Determination of Taxability" shall have the meaning set forth in Section 8.2(b) of the Lease Agreement. The Trustee shall give notice of a Determination of Taxability as provided in Section 9.05 hereof. "Drawdown Schedule" means the detailed schedule of construction disbursements and related schedule of Fundings which schedule must be delivered to and approved by the Trustee in reliance upon the advice of the Independent Engineer prior to the approval of any Restoration or Replacement Plan or any completion or expansion of the Project using the proceeds of Additional Bonds. "DTC"means The Depository Trust Company and its successors and assigns. "DTC Participants" means those brokers, securities dealers, banks, trust companies, clearing corporations and certain other organizations from time to time for which DTC holds Bonds as securities depository. "DTC Representation Letter" has the meaning assigned thereto in Section 2.10(c) hereof. "EBITDA"means earnings before interest expense, taxes, depreciation and amortization, less any proceeds or gains from insurance (excluding proceeds from business interruption insurance), gains from fixed asset dispositions and extraordinary income as defined by GAAP. "Encumbered Property" means all right, title and interest of the Company in and to the real property that is subject to the Mortgage in favor of the Trustee. "Environmental Affiliate" means any Person, only to the extent of, and only with respect to matters or actions of such Person for which, the Company could reasonably be expected to have liability as a result of the Company retaining, assuming, accepting or otherwise being subject to liability for Environmental Claims relating to such Person, whether the source of the Company's obligation is by contract or operation of Law. "Environmental Approvals" means any Governmental Approvals required under applicable Environmental Laws. "Environmental Claim" means any written notice, Claim, demand or similar written communication by any Person alleging potential liability or requiring or demanding remedial or responsive measures (including potential liability for investigatory costs, cleanup, remediation 13 and mitigation costs, governmental response costs, natural resources damages,property damages, personal injuries, fines or penalties) in each such case (x) either (i)with respect to environmental contamination-related liabilities or obligations with respect to which the Company could reasonably be expected to be responsible that are, or could reasonably be expected to be, in excess of$200,000 in the aggregate, or(ii)that has or could reasonably be expected to result in a Material Adverse Effect and (y) arising out of, based on or resulting from (i)the presence, release or threatened release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by such Person; (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Laws or Environmental Approvals; or (iii) exposure to Materials of Environmental Concern. "Environmental Consultant" means Braun Intertec Corporation, or any replacement environmental consultant retained by the Company. "Environmental Laws" means all Laws applicable to the Project relating to pollution or protection of human health, safety or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including Laws relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise applicable to the Project relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, management, remediation or handling of Materials of Environmental Concern. "Equity Interests"means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of(or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of(or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination, in each such case including all voting rights and economic rights related thereto. "ERISA"has the meaning set forth in Section 2.3.10 of the Lease Agreement. "Event of Default" means (a) with respect to this Indenture, any occurrence or event specified in Section 8.01 hereof and (b) with respect to the Lease Agreement, any occurrence or event specified in Section 7.1 of the Lease Agreement. "Exchange Act"means the Securities Exchange Act of 1934, as amended. "Exempt Facilities" means facilities which qualify as "solid waste disposal facilities" as defined in Section 142(a)(6) of the Code and which qualify as a"project"under the Act. "Favorable Opinion of Counsel" means an opinion or opinions of Bond Counsel addressed to the Issuer and the Trustee to the effect that the proposed action is not prohibited by the Act, this Indenture or the Lease Agreement, as applicable, and will not adversely affect the 14 Tax-Exempt status of the Tax-Exempt Bonds. Bond Counsel, with the consent of the Company, may take such actions as it deems necessary in order to enable it to deliver a Favorable Opinion of Counsel, including, but not limited to, the filing with the Internal Revenue Service of a Form 8038 relating to the issue of a series of Tax-Exempt Bonds. See Section 9.03(q)herein. "Feedstock" means scrap shingles and related waste products which the Company uses to produce Products. "Feedstock Supply Contract" means the various agreements for the purchase or delivery to the Company of Feedstock required for the Company to produce the Products, each of which shall be deemed a Necessary Project Contract for all purposes of the Bond Documents. "Fiscal Quarter" means each of the following three-month periods: (a) January 1 through March 31; (b) April 1 through June 30; (c) July 1 through September 30; and (d) October 1 through December 31. "Fiscal Year" means any 12 month period beginning on January 1 of any calendar year and ending on December 31 of that calendar year. "Fitch" means Fitch, Inc., doing business as Fitch Ratings, its successors and their assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, "Fitch" shall be deemed to refer to any other nationally recognized securities rating agency designated by the Company by notice to the Issuer and the Trustee. "Fund"means of any of the funds created under this Indenture. "Funding" or "Fundings" means the act of making a disbursement of proceeds of the Series 2014 Bonds, any Required Equity Contribution or any Net Proceeds, and investment earnings thereon, which amounts shall be on deposit in the Acquisition Account or the Construction Account of the Accounts Agreement, as applicable, on the Closing Date,the date of approval of any Restoration or Replacement Plan or any completion or expansion of the Project using proceeds of Additional Bonds, as applicable. "Funding Date" means, with respect to each Funding, the date on which funds are disbursed to the Company in accordance with Article III of the Lease Agreement, Article IV of the Accounts Agreement or Article XIII of the Accounts Agreement. "Future Advance Endorsement" means an endorsement in substantially the form of Exhibit E to the Lease Agreement. "GAAP"means generally accepted accounting principles. "General Contractor" means Nelson Engineering Construction, Inc., a Nebraska corporation, and its lawful successors and assigns or, in the case of a Restoration or Replacement Plan or completion or expansion of the Project utilizing the proceeds of Additional Bonds, the contractor identified in the construction contract entered into by the Company and a construction contracting firm approved in writing by the Majority Bondholder; provided that if such 15 contractor shall be Nelson Engineering Construction, Inc., approval of the Majority Bondholder shall not be required. "Government Obligations" means direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed as to full and timely payment by, the United States of America, which are not subject to redemption or prepayment prior to stated maturity, except at the option of the holder thereof and includes the principal or interest of any such stripped obligation. "Governmental Approval" means any authorization, consent, approval, license, lease, ruling, permit, certification, exemption, filing for registration by or with any Governmental Authority. "Governmental Authority" shall mean any federal, state, municipal, national, local or other governmental department, court, commission, board, bureau, agency or instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative or judicial, regulatory or administrative functions of or pertaining to any government or any court, whether of the United States or a state, territory or possession thereof, a foreign sovereign entity or country or jurisdiction or the State of Minnesota. "Guarantee"means, as to any Person(a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the "Primary Obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the Primary Obligor so as to enable the Primary Obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof(in whole or in part), or (b) any lien on any asset of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such lien). "Guarantor" means Recovery Technology Solutions Shakopee, LLC, a Delaware limited liability company, in its capacity as guarantor under the Bond Guaranty Agreement. "Indebtedness" means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP: (a) all obligations of such Person for or in respect of moneys borrowed or raised, whether or not for cash by whatever means (including acceptances, deposits, discounting, letters of credit, factoring, and any other form of financing which is 16 recognized in accordance with GAAP in such Person's financial statements as being in the nature of a borrowing or is treated as "off-balance sheet"financing); (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments; (c) all obligations of such Person for the deferred purchase price of property or services (other than trade payables and accrued obligations incurred in the ordinary course of business); (d) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property or are otherwise limited in recourse); (e) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments; (f) all Capital Lease liabilities; (g) net obligations of such Person under any Swap Contract; (h) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in cash in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of redeemable preferred interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and (i) all Guarantees of such Person in respect of any of the foregoing. For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be the Swap Termination Value thereof. "Indenture" means this Indenture of Trust between the Issuer and the Trustee relating to issuance of the Bonds, as amended or supplemented from time to time as permitted herein. "Independent Engineer" means Harris Group, Inc., a Colorado corporation, or any replacement independent engineer appointed by the Trustee, or such other recognized firm acceptable to the Company and approved in writing by the Majority Bondholder. "Independent Engineer's Certificate" means the Independent Engineer's Initial Funding Certificate in the form attached to the Lease Agreement as Exhibit D-1 or the 17 Independent Engineer's Funding Certificate in the form attached to the Lease Agreement as Exhibit D-2 , as applicable. "Informational Report" means a project progress schedule issued by the General Contractor to the Company pursuant the Construction Contract. "Issuer" means the City of Shakopee, Minnesota, a municipal corporation and political of the State, and its successors and assigns. "Interest Account" means the trust account by that name established within the Bond Fund pursuant to Section 5.01(a)hereof. "Interest Payment Date" means each of the dates specified in Section 2.02(c) hereof on which interest is due and payable with respect to the Series 2014 Bonds. "Investor Letter"means an Investor Letter in the form attached hereto as Exhibit B to be delivered on or before the Closing Date by each initial Beneficial Owner of the Series 2014 Bonds. "Jurisdiction" means the geographical area within which the Issuer has power and authority under the Act to issue bonds to finance "projects" (within the meaning of the Act). "Law" means, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree,judgment, decision, common law, holding, injunction, Governmental Approval or requirement of such Governmental Authority. Unless the context clearly requires otherwise, the term "Law" shall include each of the foregoing (and each provision thereof) as in effect at the time in question, including any amendments, supplements, replacements, or other modifications thereto or thereof, and whether or not in effect as of the date of this Indenture. "Lease Agreement" means the Lease Agreement, dated as of , 2014, between the Issuer and the Company, as amended and supplemented from time to time as permitted therein. "Lease Payments" means the payments of Basic Rent required to be made by Section 5.01(a) of the Lease Agreement. "Lease Payment Date" means, with respect to the Basic Rent due for payment of the Series 2014 Bonds, each Monthly Date, commencing [January 27, 2015] in accordance with the Lease Rental Schedule attached to the Lease Agreement as Schedule 2.7 and, with respect to any Additional Bonds, the date(s) specified in the Supplemental Indenture or other documentation executed in connection therewith for payment of principal thereon. "Lien"means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, bailment, conditional sales or title retention agreement, lien (statutory or otherwise), charge against or interest in property, in each case of any kind, to secure payment of a debt or performance of an obligation. 18 "Limited Offering Memorandum" means the disclosure document prepared by the Company, with the assistance of the Placement Agent, in connection with the private offering and sale of the Series 2014 Bonds and includes the "Preliminary"form of such document, as the same may be amended or supplemented form time to time as required by the Bond Placement Agreement. "Mail"means by first-class mail postage prepaid. "Maintenance Capital Expenses" means all expenses of the Company for regularly scheduled (or reasonably anticipated) major maintenance of the Project and vendor and supplier requirements constituting major maintenance (including tear downs, overhauls, capital improvements, replacements and/or refurbishments of major components of the Project); provided, however, that in no event shall Project Costs or Operation and Maintenance Expenses be considered Maintenance Capital Expenses. "Majority Bondholder" means Registered Owner(s) or Beneficial Owner(s) of not less than 51% of aggregate principal amount of Bonds Outstanding. "Management Fee" means the fee paid to Recovery Technology Solutions, Inc., a Delaware corporation, pursuant to the [Management Agreement], dated , 2014 between Recovery Technology Solutions, Inc. and the Company. "Material Adverse Effect" means any event, development or circumstance that has had or could reasonably be expected to have a material adverse effect on (i)the business, assets, property, condition (financial or otherwise), prospects, or operations of the Company or the Project, taken as a whole, (ii)the ability of any Person to perform its material obligations under any Bond Document to which it is a party, (iii) creation, perfection or priority of the Liens granted, or purported to be granted, in favor, or for the benefit, of the Trustee pursuant to the Security Documents or (iv)the rights or remedies of any secured party under any Bond Documents. "Maximum Annual Debt Service" means an amount equal to the maximum principal and interest due on the Series 2014 Bonds during any annual period of January 1 to December 31. "Materials of Environmental Concern" means chemicals, pollutants, contaminants, wastes, toxic substances and hazardous substances, any toxic mold, radon gas or other naturally occurring toxic or hazardous substance or organism and any material that is regulated in any way, or for which liability is imposed,pursuant to an Environmental Law. "Misuse of Bond Proceeds" means the implementation or operation of the Project in a manner which would cause the Project to not be a "project" as defined in the Act, or the use of the proceeds of the Bonds for any purpose materially different from the Project as described to and approved by the Issuer, or the use contrary to the requirements and provisions of the the Code and Treasury Regulations promulgated thereunder. "Monthly Construction Progress Report" means a report, substantially in the form of Exhibit B to the Lease Agreement, prepared by the Company in good faith and with due care 19 with respect to (a) the repair or replacement of the Project pursuant to a Restoration or Replacement Plan with Net Proceeds and (b) the completion or expansion of the Project with the proceeds of Additional Bonds which (i) reports and describes any delay,projected delay or event of force maj eure, and(ii) sets forth such other information as may be reasonably requested by the Trustee. "Monthly Date" means the third Business Day immediately preceding the first Business Day of each calendar month. "Mortgage" means, collectively, (a) the Fee and Leasehold Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated the Closing Date, which is granted by the Company in favor of the Trustee, and consented to by the Issuer, for the ratable benefit of the Owners of the Bonds Outstanding and (b) the Leasehold Mortgage, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated the Closing Date, which is granted by the Issuer in favor of the Trustee, for the ratable benefit of the Owners of the Bonds Outstanding. "Moody's" means Moody's Investors Service, a corporation organized and existing under the laws of the State of Delaware, its successors and assigns, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, "Moody's" shall be deemed to refer to any other nationally recognized securities rating agency designated by the Company by notice to the Issuer and the Trustee. "Necessary Project Approvals"has the meaning set forth in Section 2.3.20 of the Lease Agreement. "Necessary Project Contracts" has the meaning set forth in Section 2.3.16 of the Lease Agreement. "Net Proceeds"means the gross proceeds of an insurance claim, condemnation award or other payment in lieu thereof, after payment of all expenses (including attorneys' fees and any extraordinary fees or expenses of the Trustee) incurred in its collection relating to all or a portion of the Project. "Notice of Completion" means the Completion Certificate of Independent Engineer attached to the Lease Agreement as Exhibit F-1 and the Completion Certificate of the Company attached to the Lease Agreement as Exhibit F-2. "Operating Account" means the Project Account by that name created pursuant to Section 3.01(a)(iv) and administered pursuant Article VII of the Accounts Agreement. "Operating Account Withdrawal Certificate" means a certificate in substantially the form of Exhibit C to the Accounts Agreement, duly executed by an Authorized Company Representative, directing the transfer or withdrawal of funds from the Operating Account. "Operating Budget"has the meaning set forth in Section 2.5.19 of the Lease Agreement. 20 "Operating Budget Category" means, at any time with respect to each Operating Budget, each line item set forth in such Operating Budget as in effect at such time. "Operating Expense Reserve Account Withdrawal Certificate" means a certificate in substantially the form of Exhibit F to the Accounts Agreement, duly executed by an Authorized Company Representative, directing the transfer or withdrawal of funds from the Operating Expense Reserve Account. "Operating Expense Reserve Requirement"means an amount equal to $1,400,000. "Operating Statement" means an operating statement required by the provisions of Section 2.4.14 of the Lease Agreement with respect to the Project. "Operation and Maintenance Expenses" means, for any period, the sum without duplication of all (a)reasonable and necessary expenses of administering, managing and operating, and generating Products for sale from, the Project and maintaining it in good repair and operating condition, (b) costs associated with the supply and transportation of all Feedstock, natural gas, electricity and other supplies and raw materials to the Project and distribution and sale of Products from the Project that the Company is obligated to pay, (c) all reasonable and necessary insurance costs (other than insurance premiums that are paid as Project Costs), (d)property, sales and franchise taxes to the extent that the Company is liable to pay such taxes to the taxing authority (other than taxes imposed on or measured by income or receipts)to which the Project, may be subject (or payment in lieu of such taxes to which the Project may be subject), (e) reasonable and necessary costs and fees incurred in connection with obtaining and maintaining in effect Necessary Project Approvals for the Project, (f)reasonable and arm's- length legal, accounting and other professional fees attendant to any of the foregoing items during such period, (g)the reasonable costs of administration and enforcement of the Bond Documents, (h) Commodity Hedging Arrangements which are identified in the Operating Budget or are otherwise approved by the Trustee, (ix) amounts payable by the Company under Project Contracts in the ordinary course of business and not as a result of a breach or default by the Company thereunder, and (i) all other costs and expenses included in the then-current Operating Budget, including the Management Fee; provided, however, that in no event shall Project Costs or Maintenance Capital Expenses be considered Operation and Maintenance Expenses. "Outstanding" or "Bonds Outstanding" or "Outstanding Bonds" means, as of any given date, all Bonds which have been signed by the Issuer and authenticated and delivered by the Registrar under this Indenture, except: (a) Bonds canceled or purchased by or delivered to the Trustee for cancellation; (b) Bonds that have become due (at maturity or upon redemption, acceleration or otherwise) and for the payment, including premium, if any, and interest accrued to the due date, of which sufficient moneys are held by the Trustee; (c) Bonds deemed paid in accordance with Article VII hereof; 21 (d) Bonds in lieu of which others have been authenticated under Section 2.05 hereof (relating to transfer and exchange of Bonds) or Section 2.07 hereof (relating to mutilated, lost, stolen or destroyed Bonds) or Bonds paid in part pursuant to this Indenture; and (e) for purposes of any direction, consent or waiver under this Indenture, Bonds owned as described in Section 12.05 hereof. "Owner's Scope"means, with respect to the Project, all work relating to the construction of the Project that is the responsibility of the Owner or any of the Owner's contractors "Performance Tests" means, in connection with the initial funding of proceeds of the Series 2014 Bonds on the Closing Date, the performance criteria and performance tests set forth on Exhibit C to the Procurement Contract dated August 13, 2013, between the Company and Crown Iron Works Company, or in the case of a Restoration or Replacement Plan or the completion or expansion of the Project utilizing the proceeds of Additional Bonds, such performance tests as shall be reasonably agreed to by the Company and the Trustee (in reliance upon the written advice of the Independent Engineer). "Permitted Encumbrances" means (a) Liens for current taxes not delinquent or taxes being contested in good faith and by appropriate proceedings and as to which such reserves or other appropriate provisions as may be required by generally accepted accounting principles are being maintained, (b) carriers', warehousemen's, mechanics, materialmen's and other like statutory Liens arising in connection with the Project or in the ordinary course of business securing obligations which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings and as to which such reserves or bonds or other appropriate provisions as may be required by generally accepted accounting principles or, to preserve the first priority lien of the Mortgage, by the Title Insurance Company, are being maintained, (c) pledges or deposits in connection with workers' compensation, unemployment insurance and other social security legislation, (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, and other obligations of a like nature incurred in the ordinary course of business, (e) utility, access and other easements and rights-of-way, restrictions, encumbrances and exceptions which do not materially interfere with or materially impair the operation by the Company of the property affected thereby, (f) Liens on or in property given, granted, bequeathed or devised by the owner thereof which are existing at the time of such gift, grant, bequest or devise; provided, however, that (i) such Liens consist solely of restrictions on the use thereof or the income therefrom or (ii) such Liens secure Indebtedness which is not assumed by the Company and such Liens attach solely to the property (including the income therefrom) which is the subject of such gift, grant, bequest or devise, and do not impact the contemplated operation of the Project or ability to pay the Bonds or Project Costs, (g) Liens shown on the Title Policy delivered pursuant to Section 3.2.3 of the Lease Agreement, which the Trustee does not require to be released, discharged or otherwise terminated on or before the Closing Date, (h) Liens granted hereunder or under the Mortgage or any of the other Bond Documents, (i) zoning laws and similar restrictions which are not violated by the property affected thereby, (j) Liens due to rights of third party payors for recoupment of excess reimbursements paid to the Company, (k) Liens of no more than $250,000 in the aggregate securing judgments for the payment of money not constituting an Event of Default, provided that 22 each such Lien is subject to a Contest and any appropriate legal proceedings which may have been initiated for the review of such judgment shall not have been terminated or the period within which such proceedings may have been initiated shall not have expired; (1) Liens securing Additional Bonds; and (m) Liens securing any Subordinate Indebtedness. "Permitted Tax Distribution" means, with respect to any distributee that is required to pay tax as a result of its direct or indirect ownership of the Company, an amount equal to (a) the Effective Tax Rate at such time multiplied by (b) such distributee's estimated share of the taxable income of the Company (after netting or otherwise taking account of a distributee's shares of the income, loss, deduction and credit associated with the distributee's interest in the Company) that the distributee is reasonably expected to have to report for income tax purposes for the Fiscal Quarter distributed to the extent necessary to fund a distributee's timely payment to a Governmental Authority of tax liability (including estimated payments thereof) and subject to correction as described below. "Effective Tax Rate" means, as of any date of calculation, a percentage equal to the sum of(x) the maximum then-current federal marginal income tax rate plus [ ] percent [( %)]. Permitted Tax Distributions as estimated for purposes of a Quarterly Date shall be subject to later correction to reflect amounts as actually reported on an income tax return by a distributee for federal and state income tax purposes. Thus, on any Quarterly Date, the Permitted Tax Distribution means the amount calculated as the product of(a) and (b), above, adjusted by the difference, if any, between the Permitted Tax Distribution for the preceding Quarterly Date as estimated for such date and the Permitted Tax Distribution for that preceding Quarterly Date as finally determined. "Person" means one or more individuals, estates, joint ventures, joint-stock companies, partnerships, associations, corporations, limited liability companies, trusts or unincorporated organizations, and one or more governments or agencies or political subdivisions thereof. "Placement Agent" means Stern Brothers & Co., a registered broker-dealer under the Securities Exchange Act of 1934, as amended. "Plans"has the meaning set forth in Section 3.7 of the Lease Agreement. "Pledge Agreement" means the Pledge and Security Agreement, dated as of 2014, which is granted by the Pledgor to the Trustee for the ratable benefit of the Owners of the Bonds Outstanding. "Pledgor" means Recovery Technology Solutions Holdings, LLC, a Delaware limited liability company, in its capacity as such under the Pledge Agreement. "Principal Account" means the trust account by that name established within the Bond Fund pursuant to Section 5.01(a)hereof. "Principal Payment Date" means, with respect to the Series 2014 Bonds, each of the dates specified in Section 2.02(b) hereof on which principal is due and payable, and with respect to a series of Additional Bonds, any such corresponding schedule set forth in a Supplemental Indenture with respect thereto, including the maturity date of the Bonds and each of the dates on which principal, including a Sinking Fund Installment, is due and payable with respect to the Bonds. 23 "Principal Office of the Company" means the office of the Company designated from time to time as such by the Company in writing to the Trustee and the Issuer. "Principal Office of the Registrar"means the office or offices designated as such by the Registrar in writing to the Trustee,the Company and the Issuer. "Products" means asphalt and asphalt oil and any other co-product or by-product produced in connection with the manufacturing and production activities at the Project. "Product Off-Take Contracts" means the various contracts entered into by the Company with third Persons for the sale of the Company's Products, each of which shall be deemed a Necessary Project Contract for all purposes of the Bond Documents. "Project" means an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil, to be located at 6528 County Road 101 in the City, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a), of the Act, to be constructed on the Project Site and financed, in part, with the proceeds of the Series 2014 Bonds and more particularly described in Exhibit A to the Lease Agreement, as such Exhibit A may be amended or modified in accordance with Section 3.7 of the Lease Agreement from time to time. "Project Contracts" means all contracts, agreements, instruments and documents to which the Company is a party or by which its properties are bound (other than the Bond Documents) relating to the Project, including, but not limited to Necessary Project Contracts and Deferred Contracts. "Project Costs" means all costs properly chargeable to with respect to (a) the financing, refinancing or reimbursement of all or a portion of the costs the acquisition, construction, installation or equipping of the Project with the proceeds of the Series 2014 Bonds, (b) the repair or replacement of the Project pursuant to a Restoration or Replacement Plan utilizing Net Proceeds, and (c) the completion or expansion of the Project using the proceeds of Additional Bonds, including, without limitation,the following: (a) the Costs of Issuance of the Bonds; (b) the cost of construction and acquisition of all lands, structures, real or personal property, rights, rights-of-way, franchises, easements and interests acquired or used for the Project; (c) the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which such buildings or structures may be moved; (d) the cost of all machinery and equipment; (e) construction period interest; 24 (f) reserves for extensions, enlargements, additions, replacements, renovations and improvements; (g) the cost of architectural, engineering, financial and legal services, plans, specifications, studies, surveys, estimates, administrative expenses and other expenses necessary or incident to determining the feasibility of constructing the Project or incident to its construction, acquisition or financing; and (h) costs for commissioning, Performance Testing and related start-up costs incurred prior to the Completion Date to the extent such costs are to be capitalized for federal income tax purposes under the Code. "Project Party" means each Person (other than the Company) who is a party to a Necessary Project Contract. "Project Site" has the meaning set forth in Section 2.5.20 of the Lease Agreement and is as more specifically set forth in Exhibit A to the Lease Agreement. "Property" means any and all rights, titles and interests in and to any and all property, whether real or personal, tangible (including cash) or intangible, wherever situated and whether now owned or hereafter acquired. "Qualified Newspaper" means The Wall Street Journal or The Bond Buyer or any other newspaper or journal containing financial news, printed in the English language and customarily published on each Business Day, of general circulation in New York, New York, and selected by the Trustee, whose decision shall be final and conclusive. "Qualified Project Costs" means Project Costs, but only to the extent that such costs (a) are incurred not more than 60 days prior to August 7, 2013, being the date on which the Issuer first declared its "official intent" (within the meaning of Treasury Regulations Section 1.150-2) with respect to the Project (other than preliminary expenditures with respect to the Project in an amount not exceeding twenty percent (20%) of the aggregate principal amount of the Series 2014 Bonds), (b) are (i) chargeable to the Project's capital account or would be so chargeable either with a proper election by the Company or but for a proper election by the Company to deduct such costs, within in the meaning of Treasury Regulations Section 1.103- 8(a)(1), and if charged or chargeable to the Project's capital account are or would have been deducted only through an allowance for depreciation or (ii) made for the acquisition of land, to the extent allowed in Section 147(c) of the Code and (c) are made exclusively with respect to a "solid waste disposal facility" within the meaning of Section 142(a)(6) of the Code and Treasury Regulations Section 1.142(a)(6)-1, and as more fully described in the Tax Agreement; provided, however, that for purposes of this definition (w) Costs of Issuance shall not be deemed to be Qualified Project Costs, (x) fees, charges or profits payable to the Company or a "related person (within the meaning of Section 144(a)(3) of the Code) shall not be deemed to be Qualified Project Costs, (y) interest during the construction of the Project shall be allocated between Qualified Project Costs and other costs and expenses of the Project and (z) interest following one-year after the Completion Date shall not constitute Qualified Project Costs. As used herein, the term "preliminary expenditures" includes architectural, engineering, surveying, soil testing 25 and similar costs that were incurred prior to commencement of acquisition, construction or rehabilitation of the Project, but does not include land acquisition, site preparation or similar costs incident to commencement of construction or rehabilitation of the Project. "Quarterly Date"means each of January 1, April 1, July 1 and October 1. "Rating Agency" means each of Fitch, Moody's or S&P, which is, at the time of determination, rating the Series 2014 Bonds. "Rebate Fund" means the trust fund by that name created pursuant to Section 5.01(d) hereof. "Record Date"means the fifteenth day of the month immediately preceding each Interest Payment Date. "Redemption Account" means the trust account of that name established within the Bond Fund pursuant to Section 5.01(a)hereof. "Registered Owner" or"Bondholder" or "Owner" or"Holder" when used in reference to the Bonds means the Person or Persons in whose name or names a Bond shall be registered in the books of Issuer maintained by the Registrar in accordance with the terms of this Indenture. "Registrar" means the Trustee or any successor Registrar appointed in accordance with Section 9.20 hereof. "Required Equity Contribution" means the equity contributions required to be made to the Company in the form of cash in connection with (a) the issuance of the Series 2014 Bonds or (b) any Restoration or Replacement Plan or issuance of Additional Bonds for payment of Project Costs, as determined by the Trustee, in reliance upon the Independent Engineer, to be sufficient for such purposes. "Restoration or Replacement Plan" means a plan and time schedule, reasonably satisfactory to the Trustee and the Independent Engineer, for the application of Net Proceeds arising from any insurance claim, condemnation award or other payment in lieu thereof, respectively, and any other funds available to the Company with which to restore or replace the Project, or any portion thereof, affected by such event giving rise to Net Proceeds. "Restricted Payment" means, subject to the provisions of Section 2.6.16 of the Lease Agreement, any (a) dividend or other distribution (whether in cash, securities or other property), or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any Equity Interests of the Company, or on account of any return of capital to any holder of any such Equity Interest in, or any other Affiliate of, the Company, or any option, warrant or other right to acquire any such dividend or other distribution or payment, or any distribution to the Company of moneys on deposit in the Covenant Compliance Holding Account, (b) any payment of any management, consultancy, administrative, services, or other similar payments, to any Person who owns, directly or indirectly, any Equity Interest in the Company, or any Affiliate of any such Person; provided, that(i) payments made by the 26 Company of developer fees and management fees that are provided for in the Construction Budget or the Operating Budget shall not constitute Restricted Payments and (ii) any Permitted Tax Distributions shall not constitute Restricted Payments. "S&P" means Standard & Poor's Ratings Services, a unit of The McGraw-Hill Companies, Inc., a corporation organized and existing under the laws of the State of New York, its successors and assigns, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, "S&P" shall be deemed to refer to any other nationally recognized securities rating agency designated by the Company by notice to the Issuer and the Trustee. "Securities Depositories" means The Depository Trust Company, Call Notification Department, 711 Stewart Avenue, Garden City, New York 11530, Telephone: (516) 227-4070, Fax: (516) 227-4190, or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories, or no such depositories, as the Company may designate in a certificate delivered to the Trustee. "Security Agreement" means the Security Agreement, dated as of 2014, which is granted by Company in favor of the Trustee for the ratable benefit of the Owners of the Bonds Outstanding. "Security Documents"means the Bond Guaranty Agreement, the Mortgage,the Security Agreement, the Collateral Assignment of Contracts, the Consent Agreements, the Pledge Agreement and related agreements from the Company or the Pledgor in favor of the Trustee for the ratable benefit of the Owners of the Bonds Outstanding. "Semi-Annual Date"means each January land July 1. "Series 2014 Bonds" means City of Shakopee, Minnesota Solid Waste Revenue Bonds, Series 2014 (Recovery Technology Solutions Shakopee, LLC Project) issued pursuant to this Indenture in the aggregate principal amount of[$16,000,000]. "Sinking Fund Installment" means the amount designated pursuant to Section 3.03(a) hereof for mandatory redemption on the date specified therein, as this amount may be reduced pursuant to Sections 5.03(d) and(e)hereof "Solvent" means, with respect to any Person, that as of the date of determination both (a) (i)the then fair saleable value of the property of such Person is (A) greater than the total amount of liabilities (including Contingent Liabilities but excluding amounts payable under intercompany loans or promissory notes) of such Person and (B)not less than the amount that will be required to pay the probable liabilities on such Person's then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person; (ii) such Person's capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (iii) such Person does not intend to incur, or reasonably believe that it will incur, debts beyond its ability to pay such debts as they become due; and (b) such Person is "solvent" within the meaning given that term and similar terms under applicable Laws relating to fraudulent transfers and conveyances. For purposes of this definition,the amount of any Contingent Liability at any time shall be computed 27 as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. "State"means the State of Minnesota. "Subaccount" means any of the subaccounts established under this Indenture or, as the context may indicate, any of the subaccounts established under the Accounts Agreement. "Subordinate Indebtedness"means indebtedness that is subordinate in both security and payment to the Series 2014 Bonds or any Additional Bonds, and evidences loans to the Company for business activities directly related to the existing business of the Company and which are subject to the terms and conditions of a to-be-agreed upon subordination and intercreditor agreement,the terms of which are reasonably satisfactory to the Majority Bondholder. "Subsidiary" of any Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other Equity Interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both,by such Person. "Supplemental Indenture" means any indenture supplemental to this Indenture entered into between the Issuer and the Trustee pursuant to the provisions of Section 11.01 or Section 11.02 hereof. "Swap Contract" means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, Commodity Hedging Arrangements, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement, including any such obligations or liabilities under any such master agreement. "Swap Termination Value" means, in respect of any one or more Swap Contracts after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to- market value(s) for such Swap Contracts, in accordance with the terms of the applicable Swap 28 Contract, or, if no provision is made therein, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts. "Tangible Net Worth" means total assets less the sum of intangible assets and total liabilities, excluding however the positive or negative value of other comprehensive income attributable to interest rate swaps or derivatives or currency exchange rate translations. Intangible assets include such items as goodwill, patents, copyrights, other intellectual property rights, mailing lists, catalogs, trademarks, bond discount and underwriting expenses, organization expenses, and all other intangibles. "Tax Agreement" means the Tax Compliance Certificate and Agreement relating to the Series 2014 Bonds, dated the Closing Date, and attachments signed by the Company and the Issuer, as amended and supplemented from time to time as permitted therein. "Tax-Exempt" and "tax-exempt" means, with respect to interest on any obligations of a state or local government, including any series of Tax-Exempt Bonds, that such interest thereon is not includible in gross income of the owners of such obligations for federal income tax purposes, except for interest on any such obligation for any period during which such obligation is owned by a person who is a "substantial user" of any facilities financed with such obligations or a "related person" within the meaning of Section 147(a) of the Code, whether or not such interest is includible as an item of tax preference or otherwise includible directly or indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax under the Code. the Trustee and the Issuer. "Tax-Exempt Bonds" means the Series 2014 Bonds and any series of Additional Bonds, the interest on which is intended to be excluded from gross income pursuant to Section 103 of the Code. "Title Continuation" means a written notice issued by the Title Insurance Company (including their local title insurance abstractors) confirming the status of title as set forth in the Title Policy, which indicates that, since the last preceding Funding Date (or, if the current Funding is on the Closing Date, since the date hereof),there has been no change in the title to the Encumbered Property and no Liens or survey exceptions (in the case of any updated or"as-built" survey that has been issued) not theretofore approved by the Trustee, which written notice shall contain no recorded mechanic's liens except as approved by the Trustee or as otherwise subject to a Contest. "Title Insurance Company" means Old Republic National Title Insurance Company, or such other title insurance company or companies reasonably satisfactory to the Trustee. "Title Policy" means that certain ALTA Lender's Policy insuring the first priority lien of the Mortgage on the entirety of the real estate upon which the Project is to be constructed, in an amount at the Closing Date equal to $ (subject to limitations imposed by the Title Insurance Company which correspond to disbursements from the Project Fund), subject to Permitted Encumbrances and other exceptions approved by the Trustee in its sole discretion with endorsements thereto reasonably requested by the Trustee or its counsel. 29 "Transaction Documents" mean the Bond Documents and the Necessary Project Contracts. "Treasury Regulations" means the United States Treasury Regulations dealing with the tax-exempt bond provisions of the Code. "Trust Estate" means the property conveyed to the Trustee pursuant to the Granting Clauses of this Indenture. "Trustee" means UMB Bank, N.A., a national banking association, as trustee, registrar and paying agent under this Indenture, and any successor Trustee appointed hereunder. "Trustee Prime Rate" means that rate of interest per year announced from time to time by the Trustee (or its affiliates) as its "prime rate" or its "corporate base rate," changing when and as such prime rate or corporate base rate changes, which rate may or may not be the lowest rate of interest that the Trustee charges its customers. "Unassigned Rights" means the rights of the Issuer under Section 2.10 (relating to the right to indemnification), Section 2.13(b) (relating to fees and expenses), Section 2.16(b) (relating to exemption from personal liability of officers, members or employees of the Issuer), Section 2.18 (relating to no recourse to the Issuer), and Section 7.5 (relating to expenses of collection) of the Lease Agreement, and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and other communications or to give its consent under the Lease Agreement. Section 1.02 Rules of Construction. Unless the context otherwise requires: (a) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (b) references to Articles and Sections are to the Articles and Sections of this Indenture or the Lease Agreement, as the case may be; (c) words importing the singular number shall include the plural number and vice versa and words importing the masculine shall include the feminine and vice versa; and (d) the headings and Table of Contents herein are solely for convenience of reference and shall not constitute a part of this Indenture nor shall they affect its meanings, construction or effect. Section 1.03 Content of Certificates and Opinions. Any certificate or opinion made or given by an officer of the Issuer or an officer or duly authorized representative of the Company may be based, insofar as it relates to legal, accounting or business matters of either of them, upon a certificate or opinion of or representation by counsel, an accountant or a management consultant, unless such officer knows, or in the exercise of reasonable care should have known, that the certificate, opinion or representation with respect to the matters upon which such certificate or statement may be based, as aforesaid, is erroneous. Any certificate or opinion made or given by counsel, an accountant or a management consultant may be based, insofar as it relates to factual matters (with respect to which information is in the possession of the Issuer or the Company, as the case may be) upon a certificate or opinion of or representation by an officer 30 of the Issuer or the Company, unless such counsel, accountant or management consultant knows, or in the exercise of reasonable care should have known, that the certificate or opinion or representation with respect to the matters upon which such Person's certificate or opinion or representation may be based, as aforesaid, is erroneous. The same officer of the Issuer or the Company, or the same counsel or accountant or management consultant, as the case may be, need not certify to all of the matters required to be certified to or opined upon under any provision of this Indenture, but different officers, counsel, Accountants or management consultants may certify to or opine upon different matters, respectively. All reasonable costs and expenses of the Issuer incurred in connection with any such required certifications, including, but not limited to, reasonable costs and expenses of counsel, shall be borne by the Company, and the Issuer shall have no liability therefor. (END OF ARTICLE I) 31 ARTICLE II THE BONDS Section 2.01 Authorization of Bonds. There is hereby authorized and created under this Indenture an issue of bonds in multiple series designated as City of Shakopee, Minnesota Solid Waste Revenue Bonds, Series 2014 (Recovery Technology Solutions Project Shakopee, LLC Project) in the aggregate principal amount of [$16,000,000] (the "Series 2014 Bonds"). The total aggregate principal amount of Series 2014 Bonds that may be issued and Outstanding under this Indenture is expressly limited to [$16,000,000], exclusive of Bonds executed and authenticated as provided in Section 2.07 hereof and Additional Bonds authorized to be issued under Section 2.12 hereof pursuant to a Supplemental Indenture; provided, however, that no Bonds shall be delivered hereunder until the Registrar receives a request and authorization of the Issuer signed by the Authorized Issuer Representative to authenticate and deliver the principal amount of the Bonds therein specified to the purchaser or purchasers therein identified upon payment to the Trustee, for the account of the Issuer, of the sum specified in such request and authorization. Section 2.02 Date, Denomination, Interest Rate, and Maturity. (a) The Series 2014 Bonds shall be dated as of the Dated Date. The Series 2014 Bonds shall be issued as registered bonds without coupons. The Series 2014 Bonds shall be issued only in Authorized Denominations. The Series 2014 Bonds shall be numbered consecutively from R-1 upwards and may be issued in one or more series of serial bonds or term bonds. (b) The Series 2014 Bonds shall mature (subject to redemption as described herein) on the January 1 and July 1 in the years and amounts and shall bear interest at the rates per annum as follows: Year Principal Amount Interest Rate 20_ $ 20_ 20 20 (c) Interest on the Series 2014 Bonds shall be payable semiannually on each January 1 and July 1 of each year, commencing July 1, 2015 (each, an "Interest Payment Date"). The Series 2014 Bonds shall bear interest from the Dated Date or from and including the most recent Interest Payment Date with respect to which interest has been paid or duly provided for. Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. (d) Each Bond shall bear interest from the Interest Payment Date next preceding the date of registration and authentication thereof unless it is registered and authenticated on or prior to the first Interest Payment Date, in which event it shall bear interest from the Dated Date; provided, however, that if, as shown by the records of the Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for registration of transfer or exchange shall bear interest from the last date to which interest has been paid in full or duly 32 provided for on the Bonds, or, if no interest has been paid or duly provided for on the Bonds, from the Dated Date. Payment of the interest on any Bond shall be made to the Person appearing on the bond registration books of the Registrar as the registered Owner thereof on the Record Date (except that, if and to the extent that there shall be a default in the payment of the interest due on an Interest Payment Date, such defaulted interest shall be paid to the Owners in whose name any such Bonds are registered as of a special record date to be fixed by the Trustee, notice of which shall be given to such Owners not less than 10 days prior thereto), such interest to be paid by the Trustee to such registered Owner, as follows: (i) in respect of any Bond which is registered in the book-entry system pursuant to Section 2.10 hereof, in immediately available funds by no later than 2:30 p.m.,New York City time, and (ii) in respect of any Bond which is not registered in the book-entry system pursuant to Section 2.10 hereof, (i) by bank check mailed by first-class mail on the Interest Payment Date, to such Owner's address as it appears on the registration books of the Registrar or at such other address as has been furnished to the Registrar in writing by such Owner, or(ii) by wire transfer on the Interest Payment Date to any owner of at least $1,000,000 in aggregate principal amount of Bonds (or such lesser amount if such Bonds constitute all of the Bonds then outstanding) to a bank in the United States in accordance with written instructions provided to the Trustee not less than three Business Days prior to each such payment. (e) Both the principal of and premium, if any, on the Bonds shall be payable upon surrender thereof in lawful money of the United Stated of America at the designated office of the Trustee. Section 2.03 Form of Series 2014 Bonds. The Series 2014 Bonds and the certificate of authentication to be executed thereon shall be in substantially the forms attached hereto as Exhibit A, with such appropriate variations, omissions and insertions as are permitted or required by this Indenture. Section 2.04 Conditions to Issuance of Series 2014 Bonds; Execution of Bonds. (a) As a condition to the issuance and sale of the Series 2014 Bonds, the Issuer, the Trustee and the Company shall comply with the following, each of which must be performed or complied with on or before the Closing Date: (i) the delivery of the fully executed Bond Documents and Company Agreements to the Trustee; (ii) the Trustee shall have been granted a first priority perfected security interest in all Collateral securing the Bonds and the other obligations of the Company under the Bond Documents, and the Trustee shall have received satisfactory copies or evidence, as the case may be, of the following actions in connection with the perfection of such security interests: (A) completed requests for information or lien search reports, dated no more than five days (or such other time period reasonably acceptable to the Trustee) 33 before the Closing Date, listing all effective UCC financing statements, fixture filings or other filings evidencing a security interest filed in the State of Minnesota and any other jurisdictions reasonably requested by the Trustee, who may rely upon its Counsel in making such request, that name the Company as a debtor, together with copies of each such UCC financing statement, fixture filing or other filings, which shall show no Liens other than Permitted Encumbrances; (B) UCC financing statements and other filings and recordations (including fixture filings), in proper form for filing in all jurisdictions that the Trustee, in reliance upon its Counsel, may deem necessary or desirable in order to perfect and protect the first priority Liens and security interests created under the Bond Documents covering the Collateral securing the Bonds and the other obligations of the Bond Documents, and each such UCC financing statement and other filing or recordation shall be duly filed on or prior to the Closing Date; (C) UCC termination statements, in proper form for filing in all jurisdictions that the Trustee, in reliance upon its Counsel, may deem necessary or desirable, terminating all existing UCC financing statements and fixture filings covering the Company's or any of the 's Collateral, and each such UCC termination statement shall be duly filed on the Closing Date; (D) the original certificates representing all Equity Interests in the Company shall have been delivered to the Trustee, in each case together with a duly executed irrevocable proxy and a duly executed transfer power in the forms attached to the Pledge Agreements relating to such Equity Interests; and (E) with respect to the Company and the Project, evidence of the making (which may be on the Closing Date) of all other actions, recordings and filings of or with respect to the Bond Documents that the Trustee, in reliance upon its Counsel, may deem necessary or desirable in order to perfect and protect the first- priority Liens created thereunder; (iii) evidence of funding from the proceeds of the Series 2014 Bonds all of the Accounts and Subaccounts referenced in Section 3.01(a)(vii) and (x) of the Accounts Agreement that are required by the terms thereof to be funded on the Closing Date; (iv) delivery of environmental reports and other certifications for all Encumbered Property acceptable to the Majority Bondholder, including a Phase I Environmental Site Assessment Report with respect to the Encumbered Property, and which report and/or certifications confirm that the Company and the Project are not subject to any federal or state action, suit, investigation or proceeding involving any potential or threatened Environmental Claim; (v) the delivery of the final "as built"Plans and Specifications to the Trustee; (vi) evidence of the payment of all fees and costs due and payable on the Closing Date by the Company pursuant to the terms and conditions of the Bond Documents and the Bond Purchase Agreement; 34 (vii) the retaining by the Company, for the benefit of the Trustee and the Owners of the Bonds, of an Independent Engineer, together with the delivery of an Independent Engineer's report and a duly executed Independent Engineer's Completion Certificate in the form of Exhibit F-1 to the Lease Agreement, each in form and substance reasonably satisfactory to the Trustee, who may rely upon its Counsel in making such determination, discussing: (A) the technical viability of the Project (including the Project's capability to conform with all environmental permits limits), including without limitation projected Project availability, net capacity degradation, if any, the Project's ability to produce quantities of Product based upon its design specifications and maintenance plan and schedule (to be in the Independent Engineer's report); (B) the appropriateness of the various Performance Tests and completion undertakings and confirmation of the completion and satisfaction of such tests and undertakings (to be in the Independent Engineer's report); (C) conforms to standard industry practices and addresses whether there were any significant findings in the report;the Independent Engineer's report); and (D) confirmation that all permits and environmental approvals necessary to construct and operate the Project have been obtained; (viii) the delivery by an Authorized Company Representative of a duly executed Completion Certificate of Company in the form of Exhibit F-2 to the Lease Agreement, each in form and substance reasonably satisfactory to the Trustee, who may rely upon its Counsel in making such determination; (ix) the delivery of all Necessary Project Contracts, along with the accompanying Ancillary Contracts, to the Trustee listed on Schedule 2.3.16 of the Lease Agreement, including without limitation a certificate of an Authorized Company Representative certifying as true, correct and complete such schedule; (x) delivery of certain certificates to the Trustee including without limitation: (A) a duly executed certificate of an Authorized Company Representative certifying that (1) all conditions set forth in this Section 2.04(a) have been satisfied on and as of the Closing Date and (2) all representations and warranties made by the Company in the Lease Agreement and each other Bond Document to which the Company is a party are true and correct on and as of the Closing Date (except with respect to representations and warranties that expressly refer to an earlier date); (B) a duly executed certificate of an Authorized Company Representative certifying that (1) the copies of each Necessary Project Contract or other document delivered pursuant to Section 2.04(a)(viii) are true, correct and complete copies of such documents, (2) each such Necessary Project Contract or other document is in full force and effect and no term or condition of any such 35 Necessary Project Contract or other document has been amended from the form thereof delivered to the Trustee, (3) each of the conditions precedent set forth in each Necessary Project Contract or other document delivered pursuant to Section 2.04(a)(viii) that is required to be satisfied on or before the Closing Date has been satisfied or waived by the parties thereto (with the prior written consent of the Trustee), and (4) no material breach, material default or material violation by the Company, or to the knowledge of the Company, by any Project Party under any such Necessary Project Contract or other document has occurred and is continuing; and (C) a duly executed certificate of an authorized representative of the Pledgor certifying that all representations and warranties made by the Pledgor in the Pledge Agreement are true and correct on and as of the Closing Date; (xi) the Trustee shall have received from the Company and the Pledgor a certificate of an authorized representative thereof dated as of the Closing Date, upon which the Trustee and the Placement Agent each may conclusively rely, as to: (A) satisfactory resolutions of its members, managers, officers or directors, as the case may be, then in full force and effect authorizing the execution, delivery and performance of each Bond Document and Necessary Project Contract to which it is party and the consummation of the transactions contemplated therein; (B) the incumbency and signatures of those of its members, managers, officers or directors duly authorized to execute and otherwise act with respect to the Bond Documents and the Necessary Project Contracts to which it is party; and (C) such Person's organizational documents, which shall be in form and substance reasonably satisfactory to the Trustee, for which it may rely upon its Counsel for such determination, and in every case certifying that (1) such documents are in full force and effect and no term or condition thereof has been amended from the form thereof delivered to the Trustee and (2) no material breach, material default or material violation thereunder has occurred and is continuing; (xii) the Trustee shall have received satisfactory evidence, including certificates of good standing, authorization or existence, as applicable, from the Secretaries of State of each relevant jurisdiction, dated no more than 15 days (or such other time period reasonably acceptable to the Trustee) prior to the Closing Date, that the Company is duly authorized to carry on its business, and is duly formed, validly existing and in good standing in each jurisdiction in which it is required to be so authorized; (xiii) the Trustee shall have received accurate and complete copies of the unaudited balance sheet of the Company as of the most recently ended Fiscal Quarter; (xiv) the Company shall have obtained all Necessary Project Approvals listed on Schedule 2.3.20 of the Lease Agreement and the Trustee shall have received a duly executed certificate of an Authorized Company Representative certifying that (A) 36 attached to such certificate are true, correct and complete copies of each such Necessary Project Approval, (B) each such Necessary Project Approval was duly obtained, is in full force and effect, is final and non-appealable, (C) all Necessary Project Approvals required for the Project at a later date will be obtained in due course prior to the time when needed and without conditions that would impose material expense on the Project, and (D) Schedule 2.3.20 accurately identifies all Necessary Project Approvals necessary for the Project; (xv) the Trustee shall have received reasonably satisfactory documentation of any approval by any Person required in connection with any transaction contemplated by the Lease Agreement or any other Bond Document that the Trustee has reasonably requested in connection herewith; (xvi) the Trustee shall have received the Operating Budget for the Project for the first 12 months of operation in form and substance satisfactory to the Trustee (in reliance on the Independent Engineer) and the Majority Bondholder, as well as a certificate of an Authorized Company Representative certifying as to the underlying assumptions and the conclusions on which such budget is based; (xvii) the Trustee shall have received: (A) satisfactory evidence that the insurance requirements set forth on Schedule 2.5.4 to the Lease Agreement with respect to the Company and the Project have been satisfied, including binders or certificates evidencing the commitment of insurers to provide each insurance policy required by Schedule 2.5.4, evidence of the payment of all premiums then due and owing in respect of such insurance policies and a certificate of the Insurance Consultant and the Company's insurance broker (or insurance carrier) certifying that all such insurance policies are in full force and effect; and (B) a report of the Insurance Consultant in form and substance reasonably satisfactory to the Trustee discussing, among other matters that the Trustee may require, the adequacy of the insurance coverage for the Project, together with a duly executed Certificate of Insurance Consultant in the form of Exhibit I to the Lease Agreement, appropriately completed to the satisfaction of the Trustee, which determination it may make in reliance upon advice of its Counsel; (xviii) the Trustee shall have received a current ALTA minimum standard detail survey of the Project site with the signature and seal of a registered engineer or surveyor affixed showing all easements and other matters affecting the Project or apparent thereon, the access of the Project to public thoroughfares, the actual location of all improvements and such other matters as the Trustee, in reliance upon the advice of its Counsel, and the Placement Agent may reasonably request. Such survey shall further certify that the Project is not located within a flood hazard area as defined by the Flood Disaster Protection Act of 1973 and certified to the title Company and the Trustee; 37 (xix) the Trustee shall have received a Title Policy issued by the Title Insurance Company acceptable to the Trustee, who may rely upon its Counsel for such determination, insuring the lien created by the Mortgage in the amount specified by the Trustee, but in any event not less than $ . The Mortgage shall constitute a first lien upon the Company's fee simple title and leasehold interest in the real estate constituting the Project site without exception for filed or unified mechanic's liens or Claims or matters of survey and subject only to such exceptions as may be approved in writing by the Trustee. Such Title Policy shall be further endorsed to provide a 3.0 zoning endorsement and affirmative lien coverage and such other endorsements as may be required by the Trustee. The Title Policy shall confirm that the Company has good, marketable title to the real estate constituting the Project site subject to no Liens (other than Liens in favor of the Trustee or other Permitted Encumbrances); (xx) the Trustee shall have received a reasonably satisfactory letter or similar documentation evidencing the appointment of a nationally recognized independent auditor selected by the Company and approved by the Placement Agent; (xxi) the Trustee shall have received an executed Investor Letter from each of the initial Beneficial Owners of the Series 2014 Bonds; (xxii) to the extent not already required by this Section 2.04, each of the matters contained in Section 3.3 of the Lease Agreement shall have been completed or satisfied to the satisfaction of the Trustee; and (xxiii) the Trustee shall have received legal opinions from counsel to the Company, Bond Counsel, and such other parties as may be reasonably required by the Trustee and the Placement Agent, each in form and substance reasonably satisfactory to the Trustee and the Placement Agent (and their respective counsel), addressing those matters relating to the Project, the Bond Documents and the transactions contemplated therein, and the collateral securing the Bonds and the other obligations of the Company under the Bond Documents, as the Trustee and the Placement Agent may reasonably request, which opinions are as follows: (A) the opinion of Dorsey & Whitney, LLP, Counsel to the Company and the Pledgor; (B) the opinion of Kennedy & Craven, Chartered, as Bond Counsel and the supplemental opinion of Bond Counsel; and (C) the opinion of Krieg DeVault LLP, Placement Agent's Counsel. (b) The Bonds shall be executed in the name of and on behalf of the Issuer with the official manual or facsimile signature of the Mayor and the City Administrator of the Issuer and attested by the manual or facsimile signature of the Finance Director/City Clerk of the Issuer. The Bonds shall then be delivered to the Trustee for authentication by it. All authorized facsimile signatures shall have the same force and effect as if manually signed. In case any of the officers who shall have signed or attested any of the Bonds shall cease to be such officer or officers of the Issuer before the Bonds so signed or attested shall have been authenticated or 38 delivered by the Trustee or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the Issuer as though those who signed and attested the same had continued to be such officers of the Issuer. The Bonds may be signed on behalf of the Issuer by such persons who, at the time of execution of such Bonds, are duly authorized to hold appropriate offices of the Issuer, although on the date of the Bonds such persons were not so authorized or did not hold such offices. (c) Only such of the Bonds as shall bear thereon a certificate of authentication substantially in the forms set forth in Exhibit A hereto, manually executed by an authorized signatory of the Registrar, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Registrar shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Upon authentication of any Bond, the Registrar shall set forth on such Bond the date of such authentication. Section 2.05 Transfer and Exchange of Bonds. (a) Registration of any Bond may, in accordance with the terms of this Indenture, be transferred at the Principal Office of the Registrar, upon the books of the Registrar required to be kept pursuant to the provisions of Section 2.06 hereof, by the Person in whose name it is registered, in person or by its attorney duly authorized in writing, upon surrender of such Bond for cancellation, accompanied by a written instrument of transfer in a form approved by the Registrar, duly executed. The Registrar shall require the payment by the Owner of the Bond requesting such transfer of any tax or other governmental charge required to be paid and there shall be no other charge to any Owners for any such transfer. Whenever any Bond shall be surrendered for registration of transfer, the Issuer shall execute and the Registrar shall authenticate and deliver a new Bond or Bonds of the same tenor and of Authorized Denominations. No registration of transfer of Bonds shall be required to be made for a period of 15 days next preceding the date on which the Trustee sends by Mail any notice of redemption, nor shall any registration of transfer of Bonds called for redemption be required, except the unredeemed portion of any Bond being redeemed in part. (b) In the event any Owner fails to provide a correct taxpayer identification number to the Trustee, the Trustee may make a charge against the Owner sufficient to pay any government charge required to be paid as a result of such failure. In compliance with Section 3406 of the Code, this amount may be deducted by the Trustee from amounts payable to the Owner under this Indenture or the Bonds. (c) Bonds may be exchanged at the Principal Office of the Registrar for a like aggregate principal amount of Bonds of the same series, tenor and of Authorized Denominations. The Registrar shall require the payment by the Owner of the Bond requesting such exchange of any tax or other governmental charge required to be paid with respect to such exchange, and there shall be no other charge to any Owners for any such exchange. No exchange of Bonds shall be required to be made for a period of 15 days next preceding the date on which the Trustee Mails notice of redemption, nor shall any exchange of Bonds called for redemption be required, except the unredeemed portion of any Bond being redeemed in part. 39 (d) The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the Trustee may treat the Person in whose name the Bond is registered as the owner thereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not the Bond be overdue, and neither the Issuer, the Registrar, the Trustee, nor any such agent shall be affected by notice to the contrary. (e) Notwithstanding any other provision of this Indenture to the contrary, no Series 2014 Bonds may be transferred, sold, assigned or pledged by an Owner or Beneficial Owner thereof unless (i) the Series 2014 Bonds have been registered pursuant to the Securities Act of 1933, as amended, or (ii) such transfer, sale, assignment or pledge is exempt from registration or is an eligible transfer without registration under Rule 144A of the Securities Act of 1933, as amended; provided, however, that only the initial sale of the Series 2014 Bonds shall be required to be accompanied by an Investor Letter in the form attached hereto as Exhibit B from each initial Beneficial Owner. Neither the Trustee, the Issuer nor the Company shall be responsible for confirmation that a prospective Owner or Beneficial Owner of the Series 2014 Bonds is an eligible purchaser of such Bonds for purposes of this Section 2.05(e). Section 2.06 Bond Register (a) The Registrar will keep or cause to be kept at its Principal Office sufficient books for the registration and the registration of transfer of the Bonds of each series, which shall at all times, during regular business hours, be open to inspection by the Issuer, the Trustee and the Company; and, upon presentation for such purpose, the Registrar shall under such reasonable regulations as it may prescribe, register the transfer or cause to be registered the transfer, on said books, Bonds as hereinbefore provided. (b) The Trustee shall also maintain a register of each Beneficial Owner of the [Bonds upon receipt of written certification of such Beneficial Owner as to its beneficial ownership, accompanied by evidence thereof reasonably satisfactory to the Trustee and setting forth its address. Upon the transfer of a Bond, the new Holder shall become the Beneficial Owner until another Beneficial Owner is designated. A copy of any notice or report sent hereunder to Holders shall also be sent to Beneficial Owners of the Bonds so registered and any consent, request, direction, approval, objection or other instrument or action required or permitted by this Indenture to be executed or taken by any Holder of the Bonds (other than the transfer of a Bond) shall be fully effective if executed or taken by the Beneficial Owner thereof so registered provided that, in the event of conflicting instruments executed by the Holder and the Beneficial Owner,the action of the Holder shall govern. 40 Section 2.07 Bonds Mutilated,Lost,Destroyed or Stolen. (a) If any Bond shall become mutilated,the Issuer, upon the written request and at the expense of the Owner of said Bond, shall execute, and the Registrar shall thereupon authenticate and deliver, a new Bond or Bonds of like series, tenor and aggregate principal amount in exchange and substitution for the Bond so mutilated, but only upon surrender to the Registrar of the Bond so mutilated. Every mutilated Bond so surrendered to the Registrar shall be canceled by it and delivered to the Company. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Issuer, the Company and the Registrar, and if such evidence shall be satisfactory to them and indemnity satisfactory to them shall be given, the Issuer, at the expense of the Owner, shall execute, and the Registrar shall thereupon authenticate and deliver, a new Bond or Bonds of like series, tenor and aggregate principal amount in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a substitute Bond the Registrar may pay the same without surrender thereof). The Issuer may require payment of a reasonable fee for each new Bond issued under this Section and payment of the expenses which may be incurred by the Issuer and the Registrar. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the Issuer whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with all other Bonds secured by this Indenture. (b) To the extent permitted by law, the provisions of this Section are exclusive and shall preclude all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or stolen Bonds. Section 2.08 Bonds; Limited Obligations. (a) The Bonds, together with all principal and interest thereon, and premium, if any, with respect thereto are special, limited obligations of the Issuer secured by the Trust Estate, including the Lease Agreement, the Security Documents, and shall always be payable solely from the revenues and income derived from the Lease Agreement and the security therefor, including the Security Documents, and from certain funds and accounts pledged to the Trustee under this Indenture (except to the extent paid out of money attributable to proceeds of the Bonds or the income from the temporary investment thereof), are and shall be a valid claim of the respective Owners thereof only against the revenues and income derived from the Lease Agreement and such other instruments assigned to or held by the Trustee, which revenues and income shall be used for no other purpose than to pay the principal of, premium, if any, and interest on the Bonds, except as may be otherwise expressly authorized in this Indenture, the Bond Resolution and in the Lease Agreement. (b) The Bonds shall not be a debt, liability or obligation of the State or any political subdivision or municipality of the State and shall not create or constitute any indebtedness, liability or obligation of the State or any political subdivision or municipality of the State. The Bonds are special, limited obligations of the Issuer, and the Issuer shall not be obligated to pay the principal of or premium, if any, or interest on the Bonds or other costs incident thereto except from the revenues, receipts or funds pledged therefore under this Indenture as authorized in the 41 Act. Neither the State nor any political subdivision or municipality of the State is obligated to pay the principal or interest on the Bonds, and neither the faith and credit nor the taxing power of the State nor of any political subdivision or municipality of the State is pledged to the payment of the principal or the interest on the Bonds. Section 2.09 Disposal of Bonds. Upon payment of the principal of premium, if any, and interest represented thereby or transfer or exchange pursuant to Section 2.05 hereof or replacement pursuant to Section 2.07 hereof, any Bond shall be canceled and such Bond shall be disposed of by the Registrar in accordance with its customary procedures and the Registrar shall provide evidence satisfactory to the Company of such cancellation and disposition. Section 2.10 Book-Entry System. (a) Unless otherwise determined by the Issuer, each maturity for each series of the Bonds shall be issued in the form of a single certificated fully-registered Bond, registered in the name of Cede & Co., as nominee of DTC, or any successor nominee (the "Nominee"). The actual owners of the Bonds of such series (the `Beneficial Owners") will not receive physical delivery of Bond certificates except as provided herein. Except as provided in paragraph (d) below, all of the outstanding Bonds of each series shall be so registered in the registration books kept by the Registrar for the Bonds of such series, and the provisions of this Section shall apply thereto. (b) With respect to Bonds of any series registered on the registration books for such series kept by the Registrar in the name of the Nominee, the Issuer, the Company, the Registrar and the Trustee shall have no responsibility or obligation to any DTC Participant or the Beneficial Owners. Without limiting the immediately preceding sentence, the Issuer, the Company, the Registrar and the Trustee shall have no responsibility or obligation to DTC, any DTC Participant or any Beneficial Owner with respect to (i) the accuracy of the records of DTC, the Nominee or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery by DTC or any DTC Participant of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any DTC Participant or Beneficial Owner of any amount with respect to principal of, or premium, if any, or interest on, the Bonds of such series. The Issuer, the Company, the Registrar and the Trustee may treat and consider the Person in whose name each Bond of a series is registered in the registration books kept by the Registrar for the Bonds of such series as the absolute owner of such Bond for the purpose of payment of principal, premium and interest with respect to such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Trustee shall pay all principal of and premium if any, and interest on, the Bonds of each series only to or upon the order of the respective Owners, as shown in the registration books kept by the Registrar, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer's obligations with respect to payment of principal of, and premium, if any, and interest on, those Bonds to the extent of the sum or sums so paid. No Person other than an Owner, as shown in the registration books kept by the Registrar for any series of Bonds, shall receive a certificated Bond of such series evidencing the obligation of the Issuer to make payments of principal, premium, if any, and interest pursuant to this Indenture. 42 (c) The Issuer has executed and delivered to DTC a letter of representations in customary form with respect to the Bonds in book-entry form (the "DTC Representation Letter"). (d) DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving reasonable notice to the Issuer or the Trustee and discharging its responsibilities with respect thereto under applicable law. The Issuer, with the consent of the Company, may terminate the services of DTC with respect to the Bonds. Upon the discontinuance or termination of the services of DTC with respect to the Bonds, unless a substitute securities depository is appointed to undertake the functions of DTC hereunder, the Issuer, at the expense of the Company, is obligated to deliver Bond certificates to the Beneficial Owners of such Bonds, as described in this Indenture, and such Bonds shall no longer be restricted to being registered in the registration books kept by the Registrar in the name of the Nominee, but may be registered in whatever name or names Owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Indenture. The Trustee, the Registrar and the Issuer may conclusively rely on information provided by DTC and DTC Participants as to the identity, address of record and taxpayer identification numbers of the Owners and the amount owed. (e) Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal of, or premium, if any, and interest on, such Bond and all notices with respect to such Bond shall be made and given,respectively, in the manner provided in the DTC Representation Letter. Owners shall have no lien or security interest in any rebate or refund paid by DTC to the Trustee which arises from the payment by the Trustee of principal of, or premium, if any, or interest on, the Bonds in immediately available funds to DTC. Section 2.11 CUSIP Numbers. (a) The Issuer in issuing the Bonds may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Owners; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Bonds or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Bonds, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer or the Company will promptly notify the Trustee and the Registrar in writing of any change in any CUSIP number(s). (b) None of the Issuer, the Registrar nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on any Bond, check, advice of payment or redemption notice, and any such document may contain a statement to the effect that CUSIP numbers have been assigned by an independent service for convenience of reference and that none of the Issuer, the Registrar nor the Trustee shall be liable for any inaccuracy in such matters. 43 Section 2.12 Authorization of Additional Bonds. (a) Additional Bonds may be issued under and equally and ratably secured by this Indenture on parity with the Series 2014 Bonds and any other Additional Bonds Outstanding at any time and from time to time, upon compliance with the conditions hereinafter provided in this Section, for any of the following purposes: (i) To provide funds to pay the costs of completing the Project or expanding the Project, the total of such costs to be evidenced by a certificate signed by the Authorized Company Representative; (ii) To provide funds to pay all or any part of the costs of repairing, replacing or restoring the Project in the event of damage, destruction or condemnation thereto or thereof as provided in Section 2.11 of the Lease Agreement; or (iii) To provide funds for refunding all or any part of the Bonds of any series then Outstanding, including the payment of any premium thereon and interest to accrue to the designated redemption date and any expenses in connection with such refunding. (b) The Issuer's governing body shall adopt a resolution (i) authorizing the issuance of such Additional Bonds, fixing the amount and terms thereof and describing the purpose or purposes for which such Additional Bonds are being issued or describing the Bonds to be refunded, and (ii) authorizing the Company to enter into a Supplemental Indenture for the purpose of providing for the issuance of and securing such Additional Bonds, and for such other matters as are appropriate because of the issuance of the Additional Bonds proposed to be issued which, in the judgment of the Issuer, is not to the prejudice of the Issuer or the Owners of the Bonds previously issued. (c) Except in the case of issuance of Additional Bonds to refund Outstanding Bonds after their initial call date, any issuance of Additional Bonds requires the consent of the Majority Bondholder. (d) Such Additional Bonds issued as refunding bonds shall have the same designation as the Bonds, except for an identifying series letter or date and the addition of the word "Refunding" when applicable, shall be dated, shall be stated to mature in such year or years, shall bear interest at such rate or rates not exceeding the maximum rate then permitted by law, and shall be redeemable at such times and prices (subject to the provisions of Article III of this Indenture), all as may be provided by the Supplemental Indenture authorizing the issuance of such Additional Bonds. Except as to any difference in the date, the maturity or maturities, the rate or rates of interest or the provisions for redemption, such Additional Bonds shall be on a parity with and shall be entitled to the same benefit and security of this Indenture as the Bonds and any other Additional Bonds Outstanding at the time of the issuance of such Additional Bonds. (e) Such Additional Bonds shall be substantially in the form and executed in the manner set forth in this Article and Article III hereof and certificates representing such Bonds shall be deposited with the Trustee for authentication, but prior to or simultaneously with the authentication and delivery of such Bond certificates by the Trustee, there shall be filed with the Trustee the following: 44 (i) An original or certified copy of the resolution adopted by the Company's board of directors, managers or members, as applicable, and an original or certified copy of the resolution adopted by the Issuer's Board of Directors authorizing the issuance of such Additional Bonds and the execution of such Supplemental Indenture and the appropriate amendments or supplements to the other Bond Documents, together with an order of the Issuer to authenticate and deliver the Additional Bonds; (ii) An original executed counterpart of the Supplemental Indenture and Supplemental Lease Agreement providing for the issuance of the Additional Bonds; (iii) An original executed counterpart of the amendment or supplement to the other Bond Documents or Company Agreements, if required; (iv) An opinion of Counsel to the Company to the effect that the Supplemental Lease Agreement and any related documents to be executed and delivered by the Company, as may be required by Bond Counsel, have been duly authorized, executed and delivered by the Company, and are the legal, valid and binding obligations of the Company, enforceable in accordance with their terms; (v) An opinion of Bond Counsel to the effect that the Additional Bonds are legal, valid and binding obligations of the Issuer, enforceable in accordance with their terms and, to the extent that the interest on the Additional Bonds is intended to be excludable from the gross income of the holders thereof for purposes of federal income taxation, and opinion of Bond Counsel to that effect. If any series of Additional Bonds is to be a series of Tax-Exempt Bonds, the Supplemental Indenture therefor shall contain appropriate tax covenants and an appropriate Tax Agreement shall be executed and filed with the Trustee; (vi) In the case of Additional Bonds being issued to refund Outstanding Bonds, such additional documents as shall be reasonably required by the Trustee to establish that provision has been duly made for the payment of all of the Bonds to be refunded in accordance with the provisions of Article V of this Indenture; and (vii) Such other instructions, certificates, statements, receipts and documents as the Trustee or the Trustee's Counsel shall reasonably require for the delivery of such Additional Bonds. (f) When the documents mentioned in subsection (e) of this Section shall have been filed with the Trustee, and when such Additional Bonds shall have been executed and authenticated as required by this Indenture, the Trustee shall deliver such Additional Bonds to or upon the order of the purchasers thereof, but only upon payment to the Trustee of the purchase price of such Additional Bonds. The proceeds of the sale of such Additional Bonds (except Additional Bonds issued to refund Outstanding Bonds), including accrued interest and premium thereon, if any, shall be immediately paid over to the Trustee and shall be deposited and applied by the Trustee as provided in the Supplemental Indenture authorizing the issuance of such Additional Bonds. The proceeds, which shall be deposited in the Bond Fund, of all Additional Bonds issued to refund Outstanding Bonds shall be deposited by the Trustee, after payment or making provision for payment of all expenses incident to such financing, to the credit of a special trust fund, appropriately designated, to be held in trust for the sole and exclusive purpose of paying the principal of, premium, if any, and interest on the Bonds to be refunded, as provided 45 in Article V hereof and in the Supplemental Indenture authorizing the issuance of such refunding Bonds. (g) Except as provided in this Section and in the Lease Agreement, the Issuer will not otherwise issue any obligations ratably secured and on parity with the Bonds. (END OF ARTICLE II) 46 ARTICLE III REDEMPTION OF BONDS Section 3.01 Redemption of Bonds Generally. (a) The Bonds are subject to redemption as provided in this Article III and the Company is entitled or required to make a prepayment pursuant to Article VIII of the Lease Agreement in order to effect such redemption. Except as specifically provided in Section 3.03 hereof and Section 11.01(b)(iii)(C)(2) of the Accounts Agreement, the Trustee shall not give notice of any redemption under Section 3.05 hereof unless the Company has so directed in accordance with Section 8.1 of the Lease Agreement; provided that the Trustee may require prepayment of Basic Rent under Section 5.1(a) of the Lease Agreement in the case of mandatory redemption. (b) If any Bond is to be redeemed in part, it shall only be redeemed in an Authorized Denomination and in such manner that the unredeemed portion shall also be in an Authorized Denomination. (c) The redemption of Bonds under this Article III is subject to the availability of funds for such purpose being on deposit in one or more of the Project Accounts of the Accounts Agreement and available for transfer to the Bond Fund in accordance with the terms and conditions of the Accounts Agreement. Section 3.02 Redemption upon Optional Prepayment. The Series 2014 Bonds maturing on and after , 20_, are subject to redemption and payment prior to maturity, in whole or in part, on any Business Day on or after , 20_, at a redemption price equal to one hundred (100%) of the principal amount thereof, together with accrued interest to the date of redemption, without premium, following receipt by the Issuer and the Trustee of a written notice from the Company pursuant to Section 8.1 of the Lease Agreement and upon prepayment of the Basic Rent needed for such redemption. Section 3.03 Redemption upon Mandatory Prepayment. (a) Mandatory Sinking Fund Redemption. The Series 2014 Bonds maturing on 1, 20_ shall be subject to mandatory sinking fund redemption by the Issuer prior to maturity, in part at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption on each 1 and 1, as follows (the 1, 20_amount to be paid rather than redeemed): Date Principal Amount Maturing 1, 20_ $ 1, 20_ 1, 20 1, 20 * * Final Maturity 47 The Series 2014 Bonds maturing on 1, 20_ shall be subject to mandatory sinking fund redemption by the Issuer prior to maturity, in part at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption on each 1 and 1, as follows (the 1, 20 amount to be paid rather than redeemed): Date Principal Amount Maturing 1, 20 $ 1, 20 1, 20 1, 20 * Final Maturity (b) Mandatory Redemption of Tax-Exempt Bonds. The Series 2014 Bonds and any other Tax-Exempt Bonds shall be subject to mandatory redemption in whole on any date from amounts which are to be prepaid by the Company under Section 8.2(b) of the Lease Agreement, at a redemption price equal to [103%] of the principal amount thereof plus interest accrued, if any, to the redemption date within 180 days following a Determination of Taxability. In addition, if in the opinion of Bond Counsel delivered to the Trustee, the redemption of a specified portion of the Series 2014 Bonds or other Tax-Exempt Bonds outstanding would have the result that interest payable on such Tax-Exempt Bonds remaining outstanding after such redemption would remain Tax-Exempt, then the Series 2014 Bonds or other Tax-Exempt Bonds shall be redeemed in part (in such amount as Bond Counsel in such opinion shall have determined is necessary to accomplish that result) at a redemption price equal to [103%] of the principal amount thereof being redeemed plus interest accrued, if any, by such method as the Trustee may deem fair and appropriate. (c) Special Mandatory Redemption from Net Proceeds. Following an occurrence in which the Project shall have been damaged or destroyed, in whole or in part, by fire or other casualty, or if title to, or the temporary use of, all or a part of the Project shall have been condemned by any authority exercising the power of eminent domain to such extent that (i) in the determination of the Company the Project cannot be reasonably rebuilt, repaired, restored or replaced or, substitute land and a substitute Project cannot be acquired or constructed, within a period of six months from the date of notice to the Issuer and the Trustee as required by the Loan Agreement, to the condition thereof immediately preceding such damage, destruction or condemnation, or (ii) in the determination of the Company, the Company is thereby prevented from carrying on its normal operations at such Project for a period of six months from the date of notice to the Issuer and the Trustee as required by the Loan Agreement, or (iii) in the determination of the Company, the cost of rebuilding, repairing, restoring or replacing or, the cost of substitute land and a substitute Project would exceed the Net Proceeds received, plus the amounts for which the Company is self-insured with respect to the deductible amounts of any such insurance, or (iv) if any required consent of the Trustee or Bondholders as required by the Lease Agreement is not obtained within 60 days of the receipt of the Net Proceeds, or (v) the Company fails to deliver the Restoration or Replacement Plan, the Bonds shall be subject to special mandatory redemption, in whole or in part, on the earliest practicable date thereafter 48 (which date shall be not less than 45 days from the date the Trustee deposits in the Redemption Account of the Bond Fund the Net Proceeds transferred from the Insurance and Condemnation Proceeds Account of the Accounts Agreement as a consequence of such damage, destruction or condemnation), at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption, from the Net Proceeds received and deposited into the Redemption Account. Any Bonds redeemed in part (and not in whole) pursuant to this paragraph shall only be redeemed only if the Trustee receives a certificate of an Authorized Company Representative to the effect (x) that the property damaged or destroyed or the property condemned or taken by eminent domain, was not essential in the Company's operation of the Project and the failure to replace such property will not adversely affect the Company's operations, and (y) the remainder of the Company's property is structurally sound and useable by the Company. (d) Extraordinary Mandatory Redemption. In the event that (i) there shall be at least $100,000 on deposit in the Covenant Compliance Holding Account created under the Accounts Agreement, (ii) the Debt Service Coverage Ratio shall be less that 1.25:1, and (iii) the Majority Bondholder directs the Trustee in writing pursuant to this Section 3.03(d) of the Indenture to cause Bonds to be redeemed, the Bonds shall be subject to extraordinary mandatory redemption at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption and the Trustee shall direct in writing the Accounts Bank to transfer to the Redemption Account amounts only in Authorized Denominations to effect such redemption. [(e) Mandatory Redemption Upon Covenant Failure. In the event that the Company shall fail to satisfy the requirements of Section of the Lease Agreement, then an amount of the Series 2014 Bonds then Outstanding as specified in the Lease Agreement shall be subject to mandatory redemption at a redemption price equal to 100% of the principal amount thereof,together with accrued interest to the date of redemption.] Section 3.04 Selection of Bonds for Redemption. (a) Bonds shall be redeemed only in Authorized Denominations. When less than all of the Outstanding Bonds are to be redeemed and paid prior to maturity pursuant to Section 3.02 hereof, such Bonds shall be redeemed in such order of maturity as selected by the Company, and Bonds of less than a full maturity shall be selected by the Trustee in such other equitable manner as it may determine in Authorized Denominations. For all other redemptions, including if the Company shall fail to select the Bonds to be called for redemption under Section 3.02 hereof, then the Trustee shall select the Bonds or any given portion thereof to be redeemed, from the Outstanding Bonds or such given portion thereof not previously called for redemption, by lot. The Trustee shall promptly notify the Company in writing of the numbers of the Bonds or portions thereof so selected for redemption. (b) Partial Redemption of Bonds. In the case of a partial redemption of Bonds when fully registered Bonds of denominations greater than $100,000 are then Outstanding, then for all purposes in connection with such redemption each $100,000 unit of face value shall be treated as though it was a separate Bond of the denomination of$100,000. If it is determined that one or more, but not all, of the $100,000 units of principal amount represented by any fully registered 49 Bond is to be selected for redemption, then upon notice of intention to redeem such $100,000 unit or units, the Owner of such fully registered Bond or his attorney or legal representative shall forthwith present and surrender such Bond to the Trustee (1) for payment of the redemption price (including the premium, if any, and interest to the date fixed for redemption) of the $100,000 unit or units of principal amount called for redemption, and (2) for exchange, without charge to the Owner thereof, for a new Bond or Bonds of the aggregate principal amount of the unredeemed portion of the principal amount of such fully registered Bond. If the Owner of any such fully registered Bond of a denomination greater than $100,000 shall fail to present such Bond to the Trustee for payment and exchange as aforesaid, said Bond shall, nevertheless, become due and payable on the redemption date to the extent of the $100,000 unit or units of principal amount called for redemption(and to that extent only). Section 3.05 Notice of Redemption. (a) The Trustee, for and on behalf of the Issuer, shall give notice of the redemption of any Bond by Mail, postage prepaid, not less than 30 days nor more than 60 days prior to the redemption date, to the Owner of such Bond at the address shown on the registration books of the Registrar on the date such notice is mailed. Notice of redemption shall also be given to DTC in accordance with the DTC Representation Letter. The Trustee shall deliver the notice of redemption at the written direction of the Company. Such written direction is to be received by the Trustee not less than 45 days prior to the redemption date (or a lesser period acceptable to the Trustee). Each notice of redemption shall state the date of such notice, the date of issue of the Bonds to be redeemed, the redemption date, the redemption price, the place of redemption (including the name and appropriate address or addresses of the Trustee), series designation, the principal amount, the CUSIP number (if any) of the maturity and, if less than all, the distinctive certificate numbers of the Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the respective portions of the principal amount thereof to be redeemed. Each such notice shall also state that the interest on the Bonds designated for redemption shall cease to accrue from and after such redemption date and that on said date there will become due and payable on each of said Bonds the principal amount thereof to be redeemed, interest accrued thereon, if any, to the redemption date and the premium, if any, thereon (such premium to be specified) and shall require that such Bonds be then surrendered at the address or addresses of the Trustee specified in the redemption notice. Failure to give any required notice of redemption as to any particular Bond shall not affect the validity of the call for redemption of any Bonds in respect of which no such failure has occurred. (b) With respect to any notice of optional redemption of Bonds in accordance with Section 3.02 hereof, unless, upon the giving of such notice, such Bonds shall be deemed to have been paid within the meaning of Article VII hereof, such notice may state that such redemption is conditioned upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of moneys sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed. In the event such moneys are not so received, the redemption shall not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner in which the notice of redemption was given, that such redemption will not take place. Section 3.06 Partial Redemption of Bonds. Upon surrender of any Bond redeemed in part only, the Registrar shall exchange the Bond redeemed for a new Bond of like series, 50 maturity, tenor and in an Authorized Denomination without charge to the Owner in the principal amount of the portion of the Bond not redeemed. In the event of any partial redemption of a Bond which is registered in the name of Cede & Co, DTC may elect to make a notation on the Bond certificate which reflects the date and amount of the reduction in the principal amount of said Bond in lieu of surrendering the Bond certificate to the Registrar for exchange. The Issuer, the Company and the Trustee shall be fully released and discharged from all liability to the extent of payment of the redemption price for such partial redemption. Section 3.07 No Partial Redemption after Default. Anything in this Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default of which an authorized officer of the corporate trust department of the Trustee has actual knowledge, there shall be no redemption of less than all of the Bonds at the time Outstanding. Section 3.08 Payment of Redemption Price. For the redemption of any of the Bonds, the Trustee shall deposit in the Principal Account or the Redemption Account of the Bond Fund, as the case may be, solely out of the revenues and income derived pursuant to the Lease Agreement and the security therefor, including the Security Documents, and any other moneys constituting the Trust Estate, an amount sufficient to pay the principal of, and premium, if any, and interest to become due on, the Bonds called for redemption on the date fixed for such redemption. Such deposit shall be reduced by the amount of moneys in the Principal Account or the Redemption Account of the Bond Fund, as the case may be, that is available for use on such redemption date for payment of the principal of, and premium, if any, and accrued interest on, the Bonds to be redeemed. Section 3.09 Effect of Redemption. (a) Notice of redemption having been duly given as aforesaid, and moneys for payment of the redemption price being held by the Trustee if such redemption was conditioned thereon, the Bonds so called for redemption shall, on the redemption date designated in such notice, become due and payable at the redemption price specified in such notice, so long as money is held by the Trustee for such redemption, interest on the Bonds so called for redemption shall cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and the Owners of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof, without interest accrued on any funds held to pay such redemption price accruing after the date of redemption. (b) All Bonds fully redeemed pursuant to the provisions of this Article III shall be canceled upon surrender thereof to the Trustee, which shall upon the written request of the Company, deliver to the Company a certificate evidencing such cancellation. (END OF ARTICLE III) 51 ARTICLE IV GENERAL COVENANTS Section 4.01 Payment of Bonds. (a) The Issuer covenants that it will promptly pay or cause to be paid the principal of, and premium, if any, and interest on, every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in the Bonds, provided that the principal, premium if any, and interest are payable by the Issuer solely from amounts payable under the Lease Agreement and certain funds and accounts pledged to the Trustee under this Indenture and nothing in the Bonds or this Indenture shall be considered as assigning or pledging any other funds or assets of the Issuer other than the Trust Estate. (b) Each and every covenant made herein by the Issuer is predicated upon the condition that the Issuer shall not in any event be liable for the payment of the principal of, or premium, if any, or interest on the Bonds, or the performance of any pledge, mortgage, obligation or agreement created by or arising under this Indenture or the Bonds from any property other than the Trust Estate; and, further, that neither the Bonds nor any such obligation or agreement of the Issuer shall be construed to constitute an indebtedness or a lending of credit of the Issuer within the meaning of any constitutional or statutory provision whatsoever, or constitute or give rise to a pecuniary liability of the Issuer or a charge against its general credit. (c) For the payment of interest on the Bonds, the Trustee shall deposit in the Interest Account on or prior to each Interest Payment Date, all moneys, designated as payments for interest on the Bonds and paid on behalf of the Company pursuant to the Lease Agreement, an amount sufficient to pay the interest to become due on such Interest Payment Date. Such deposit shall be reduced by the amount of moneys in the Interest Account available on the Interest Payment Date for the payment of the interest on the Bonds. (d) For payment of the principal of the Bonds upon redemption, maturity or acceleration of maturity, the Trustee shall deposit in the Principal Account, on or prior to the redemption date, the Principal Payment Date or the maturity date (whether accelerated or not) of the Bonds, all moneys designated as payments of principal, including Sinking Fund Installments, of the Bonds and paid on behalf of the Company pursuant to the Lease Agreement. Such deposit shall be reduced by the amount of moneys in the Principal Account available on the redemption date, the Principal Payment Date or the maturity date (whether accelerated or not) for the payment of the principal of the Bonds. (e) Pursuant to the requirements of the Accounts Agreement and the Lease Agreement, the Company shall make payments of Basic Rent from amounts on deposit in the Revenue Account at the times and in the amounts due in order to make payments of interest on, principal and premium, if any, on the Bonds, for transfer and deposit by the Trustee into the Bond Fund in order to permit the Issuer to make timely payments thereof on the Bonds on the respective Interest Payment Dates, Principal Payment Dates, Redemption Dates or Maturity Date. The Issuer does hereby agree and promise to make such payments in the amounts and at the time set forth in the Servicing Agreement and in the Accounts Agreement. 52 Section 4.02 Performance of Covenants by Issuer; Due Execution; Acknowledgement of Accounts Agreement. (a) The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all of its proceedings pertaining thereto. The Issuer represents that it is duly authorized under the Constitution and laws of the State to issue the Bonds and to execute this Indenture, to execute and deliver the Lease Agreement, to assign the Lease Agreement and amounts payable thereunder, and to pledge the amounts hereby pledged in the manner and to the extent herein set forth. The Issuer further represents that all action on its part for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and effectively taken, and that the Bonds in the hands of the Owners thereof are and will be valid and binding limited obligations of the Issuer. (b) The Issuer shall fully cooperate with the Trustee and with the Owners of the Bonds to the end of fully protecting the rights and security of the Owners of any Bonds. (c) Except to the extent otherwise provided in this Indenture,the Issuer shall not enter into any contract or take any action by which the rights of the Trustee or the Owners of the Bonds may be impaired and shall, from time to time, execute and deliver such further instruments and take such further action as may be reasonably required to carry out the purposes of this Indenture. (d) Anything contained in this Indenture to the contrary notwithstanding, it is hereby understood and agreed that all of the representations and warranties or covenants of the Issuer contained in this Indenture are subject to the limitations set forth in Section 2.08 hereof and are not intended to and do not create a general obligation of the Issuer. The Bonds are issued pursuant to the Act and do not and shall never become general obligations of the Issuer, but are limited obligations payable solely and only from the Trust Estate, and as authorized by the Act and provided herein. No covenant or agreement contained in the Bonds, in this Indenture or in any other agreement referred to in this Indenture shall be deemed to be the covenant or agreement of any trustee, officer, member, agent or employee of the Issuer in his or her individual capacity, and neither such persons nor any official executing the Bonds shall be liable personally on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof. (e) The Issuer hereby acknowledges the Accounts Agreement and the provisions thereof, including the deposit of the proceeds of the Bonds in the various Project Accounts established thereunder which are to be held in trust for the benefit of the Bondholders unless and until transferred to one or more of the Funds or Accounts created hereunder. The Issuer further acknowledges that the Account Collateral held in the various Project Accounts constitutes a portion of the Trust Estate and will be held by the Trustee under such Accounts Agreement for the equal and ratable benefit of the Bondholders. 53 Section 4.03 Defense of Issuer's Rights. The Issuer agrees that the Trustee may defend the Issuer's rights to the payments and other amounts due under the Lease Agreement, for the benefit of the Owners of the Bonds, against the claims and demands of all Persons whomsoever. The Issuer covenants that it will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, pledging, assigning and confirming to the Trustee all and singular the rights assigned hereby and the amounts pledged hereby to the payment of the principal of, and premium, if any, and interest on, the Bonds. The Issuer covenants and agrees that, except as herein and in the Lease Agreement provided, it will not sell, convey, assign, pledge, encumber or otherwise dispose of any part of the Trust Estate. Section 4.04 Recording and Filing; Further instruments. (a) The Issuer and the Trustee shall cooperate with the Company in causing to be filed and recorded all documents, notices and financing statements related to this Indenture and to the Lease Agreement which are necessary, as required by law, in order to perfect the lien of this Indenture in the Trust Estate. (b) The Issuer shall upon the reasonable request of the Trustee, from time to time execute and deliver such further instruments and take such further action as may be reasonable (and consistent with the Bond Documents) and as may be required to effectuate the purposes of this Indenture or any provisions hereof, provided, however, that no such instruments or actions shall pledge the general credit or the full faith of the Issuer. Section 4.05 Rights under Lease Agreement. The Lease Agreement, a duly executed counterpart of which has been filed with the Trustee, sets forth the covenants and obligations of the Issuer and the Company, including provisions that, subsequent to the issuance of the Bonds and prior to the payment in full or provision for payment thereof in accordance with the provisions hereof, the Lease Agreement (except as expressly provided therein) may not be effectively amended, changed, modified, altered or terminated without the concurring written consent of the Trustee, as provided in Article XI hereof, and reference is hereby made to the Lease Agreement for a detailed statement of such covenants and obligations of the Company, and the Issuer agrees that the Trustee in its name or(to the extent required by law) in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Lease Agreement, whether or not the Issuer is in default hereunder. The Issuer shall cooperate with the Trustee in enforcing the obligations of the Company to pay or cause to be paid all amounts payable by the Company under the Lease Agreement. Section 4.06 Arbitrage and Tax Covenants. Subject to the Company's direction of the investment of moneys on deposit in certain funds pursuant to Section 6.01 hereof, the Issuer covenants that it will not take or fail to take any action within the reasonable control of the Issuer that would impair the exclusion of interest on the Tax-Exempt Bonds from gross income for federal income tax purposes. Subject to the appropriate direction by the Company of the investment of moneys on deposit in certain funds pursuant to Section 6.01 hereof, the Issuer further will not knowingly act or fail to act so as to cause the proceeds of the Tax-Exempt Bonds, any moneys derived, directly or indirectly, from the use or investment thereof and any other 54 moneys on deposit in any fund or account maintained in respect of the Tax-Exempt Bonds (whether such moneys were derived from the proceeds of the sale of such Bonds or from other sources) to be used in a manner which would cause the Tax-Exempt Bonds to be treated as "arbitrage bonds" within the meaning of Section 148 of the Code, or which would otherwise adversely affect the Tax-Exempt status of the Tax-Exempt Bonds. The Issuer shall be deemed to have complied with the requirements of this Section 4.06, so long as the Issuer acts on the written direction of the Company, and the Issuer shall be required to take action only based upon the written direction of the Company. Section 4.07 No Disposition of Trust Estate. Except as permitted by this Indenture, the Issuer shall not sell lease, pledge, assign or otherwise encumber or dispose of its interest in the Trust Estate and will promptly pay (but only from the revenues and income derived pursuant to the Lease Agreement and the security therefor, including the Security Documents, and any other moneys constituting the Trust Estate) or cause to be discharged, or make adequate provision to discharge, any lien or charge on any part thereof not permitted hereby. Section 4.08 Access to Books. All books and documents in the possession of the Issuer relating to the revenues and income derived pursuant to the Lease Agreement and the security therefor, including the Security Documents, and any other moneys constituting the Trust Estate shall at all reasonable times be open to inspection by such accountants or other agencies as the Trustee may from time to time designate. Section 4.09 Source of Payment of Bonds. The Bonds are not general obligations of the Issuer, nor are they payable in any manner from revenues raised by taxation, but are limited obligations payable solely from the revenues and income derived pursuant to the Lease Agreement and the security therefor, including the Security Documents, and any other moneys constituting the Trust Estate. The revenues and income derived pursuant to the Lease Agreement and the security therefor, including the Security Documents, and any other moneys constituting the Trust Estate have been pledged and assigned as security for the equal and ratable payment of the Bonds and shall be used for no other purpose than to pay the principal of, and premium, if any, and interest on, the Bonds, except as may be otherwise expressly authorized in this Indenture, the Lease Agreement or the Security Documents. (END OF ARTICLE IV) 55 ARTICLE V FUNDS AND ACCOUNTS; DEPOSIT AND APPLICATION OF BOND PROCEEDS Section 5.01 Creation of Funds and Accounts Under Indenture. (a) Bond Fund. Under this Indenture, there is hereby created by the Issuer and ordered established a separate Fund, to be held by the Trustee and to be designated "Recovery Technology Solutions Shakopee, LLC, Series 2014 Bond Fund" and therein created separate Accounts to be designated as (i) a Principal Account, (ii) an Interest Account, and (iii) a Redemption Account. (b) Construction Account. Under the Accounts Agreement, there is created and established a Construction Account, to be held by the Accounts Bank under the control of the Trustee, and therein created separate Subaccounts designated as (i) the General Proceeds Subaccount, (ii) the Bond Proceeds Subaccount, (iii) the Capitalized Interest Subaccount, and (iii) the Cost of Issuance Subaccount. Amounts on deposit in the Construction Account shall be applied and disbursed as provided for in the Lease Agreement, the Accounts Agreement, this Indenture and the other Bond Documents for payment of Project Costs and other purposes as specified therein and herein. (c) Acquisition Account. Under the Accounts Agreement, there is created and established an Acquisition Account, to be held by the Accounts Bank under the control of the Trustee, and therein created separate Subaccounts designated as (i) the Acquisition Price Subaccount, and (ii) the Cost of Issuance Subaccount. Amounts on deposit in the Acquisition Account shall be applied and disbursed as provided for in the Lease Agreement, the Accounts Agreement, this Indenture and the other Bond Documents for payment of the Acquisition Price and other purposes as specified therein and herein. (d) Debt Service Reserve Account. Under the Accounts Agreement, there is created and established a Debt Service Reserve Account, to be held by the Accounts Bank under the control of the Trustee. Amounts on deposit in the Debt Service Reserve Account, to the extent provided in the Accounts Agreement, shall be funded into the Revenue Account of the Accounts Agreement and applied for purposes of satisfying (i) any deficiency in the Interest Account or the Principal Account of the Bond Fund, and (ii) a deficiency in the Redemption Account of the Bond Fund solely in connection with the mandatory redemption in whole of the Series 2014 Bonds upon a Determination of Taxability. The applicable terms and provisions of the Accounts Agreement shall govern the funding and use of the Debt Service Reserve Account. (e) Rebate Fund. Under this Indenture, there is hereby created by the Issuer and ordered maintained a separate Fund, to be held by the Trustee and to be designated "Recovery Technology Solutions Shakopee, LLC, Series 2014 Rebate Fund," for purposes of complying with the requirements of Section 148 of the Code and to make arbitrage rebate payments, if any shall be due, with respect to the Series 2014 Bonds as contemplated by the Tax Agreement. The Company shall provide moneys to the Trustee at the times and in the amounts needed to pay rebate on the Series 2014 Bonds and the Trustee shall pay such amounts from the Rebate Fund as it shall be directed by an Authorized Company Representative, in accordance with the Tax 56 Agreement and Section 6.04 hereof. To the extent the amount in the Rebate Fund exceeds the Rebate Amount (as defined in the Tax Agreement), the Trustee shall withdraw such excess in accordance with Section 6.04(c) herein and apply such excess as provided therein. Unless hired by the Company to do so, the Trustee shall have no responsibility for calculating the amount of arbitrage rebate with respect to the Series 2014 Bonds. The Company shall pay all costs relating to compliance with the arbitrage provisions of the Code. (f) Additional Accounts and Subaccounts. Upon the issuance of Additional Bonds, in the Supplemental Indenture relating to such additional series of Bonds, the Trustee may establish such other Accounts and Subaccounts for each series of Bonds with each of the Funds and Accounts, as applicable, as it considers advisable to identify the source or nature of the amounts in such Funds and Accounts. Section 5.02 Application of Series 2014 Bond Proceeds and Other Amounts. (a) The Issuer shall cause the proceeds of the initial sale of the Series 2014 Bonds to be deposited with the Accounts Bank as provided in Section 13.01(a) and Section 10.01(a) of the Accounts Agreement. The Accounts Bank will hold those proceeds in trust for the Trustee, for the benefit of the Company and the Bondholders, as provided in this Indenture, the Accounts Agreement and the Lease Agreement and will apply the proceeds in accordance therewith. (b) The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that(i) the Company, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, (ii) such originally executed instructions or directions shall be signed by an Authorized Company Representative, and (iii) the Company shall provide to the Trustee an incumbency certificate listing such designated persons, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing. (c) If the Company elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee's understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee's reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties. Section 5.03 Deposits into the Funds; Use of Moneys in the Funds. (a) The Trustee shall, promptly upon receipt of funds paid by the Company or from funds transferred by the Accounts Bank on behalf of the Company from one or more Project Accounts of the Accounts Agreement, deposit such amounts into the Funds and Accounts contained in this Indenture in accordance with the directions contained in the applicable withdrawal certificate under the Accounts Agreement. 57 (b) Investment income on all Accounts and Funds created under the Indenture for the Bonds of each series held by the Trustee shall be credited to the Interest Account of the Bond Fund for such series and used to pay interest on the Bonds of such series. (c) The Trustee shall apply moneys in the Bond Fund as follows: (i) The Trustee shall on each Interest Payment Date for the Bonds of any series pay or cause to be paid out of the subaccount for such series of the Interest Account, the interest due on the Bonds of such series, and further pay out of such subaccount of the Interest Account any amounts required for the payment of accrued interest upon any purchase or redemption (including any mandatory sinking fund redemption) of the Bonds of such series. (ii) The Trustee shall on each Principal Payment Date for the Bonds of any series pay out of the subaccount for such series of the Principal Account, the principal amount, if any, due on the Bonds of such series, upon the presentation and surrender of the requisite Bonds. On each Sinking Fund Installment payment date, the Trustee shall pay in immediately available funds the amounts required for the Sinking Fund Installment due and payable with respect to Bonds which are to be redeemed from Sinking Fund Installments on such date (accrued interest on such Bonds being payable from the Interest Account). The Trustee shall call for redemption Bonds of any series in a principal amount equal to the Sinking Fund Installment then due. Such call for redemption shall be made even though at the time of mailing of the notice of such redemption sufficient moneys therefor shall not have been deposited in subaccount of the Principal Account of the Bond Fund relating to such Bonds. (iii) Amounts in a subaccount for a series of Bonds in the Redemption Account of the Bond Fund shall be applied, at the written direction of the Company, as promptly as practicable, to the purchase of such Bonds of such series (which are scheduled for mandatory redemption at the next sinking fund redemption date pursuant to Section 3.03(a)) at prices not exceeding the redemption price thereof applicable on the earliest date upon which such Bonds are next subject to redemption, plus accrued interest to the date of redemption. Any amount in such subaccount of such Redemption Account not so applied to the purchase of such Bonds of such series by 45 days prior to the next date on which the Bonds of such series are so redeemable shall be applied to the redemption of Bonds of such series on such redemption date. Any amounts deposited in the subaccount of such series in Redemption Account and not applied within 12 months of their date of deposit to the purchase or redemption of Bonds of such series shall be transferred to the subaccount for such series of the Interest Account. Upon the purchase of any Bonds out of prepayments under the Lease Agreement, or upon the redemption of any Bonds, an amount equal to the principal of such Bonds so purchased or redeemed shall be credited against the Sinking Fund Installments for such Bonds in such order as an Authorized Company Representative shall direct the Trustee in writing (or, in the absence of any such written direction, in inverse order of the due dates of such Sinking Fund Installments) until the full principal amount of such Bonds so purchased or redeemed shall have been so credited. The portion of any such Sinking Fund Installment remaining after the deduction of such amounts so credited shall continue to be deemed to be the 58 amount of such Sinking Fund Installment for the purposes of any calculation thereof under this Indenture. (iv) In connection with purchases of Bonds out of the Bond Fund as provided in this Section, the Company shall arrange and the Trustee shall execute such purchases (through brokers or otherwise, and with or without receiving tenders) at the written direction of the Company; provided, however, that the Trustee may not effect such purchases through a broker unless the Company shall have previously approved in writing the use of such broker and the amount of such broker's fees. The payment of the purchase price shall be made out of the moneys deposited in the Redemption Account, the payment of accrued interest shall be made out of moneys deposited in the Interest Account and payment of fees shall be made by the Company. (d) The Issuer shall receive a credit in respect of Sinking Fund Installments for any Bonds which are subject to mandatory Sinking Fund Installment redemption and which are delivered by the Issuer or the Company to the Trustee on or before the 45th day next preceding any Sinking Fund Installment payment date and for any Bonds which prior to said date have been purchased or redeemed (otherwise than through mandatory sinking fund redemption) and cancelled by the Trustee upon the written direction of the Issuer or the Company and not theretofore applied as a credit against any Sinking Fund Installment. Each Bond so delivered, cancelled or previously purchased or redeemed shall be credited by the Trustee at 100% of the principal amount thereof against the obligation of the Issuer to pay such Sinking Fund Installments in such order of the due dates of such Sinking Fund Installments and maturity as an Authorized Company Representative shall direct the Trustee in writing (or, in the absence of such written direction, in the inverse order of the due dates of such Sinking Fund Installments), and the principal amount of Bonds to be redeemed by application of Sinking Fund Installment payments shall be accordingly reduced. (e) In order to receive a credit in respect of Sinking Fund Installments as provided in this Section, the Company must, on or before the 45th day next preceding each Sinking Fund Installment payment date, furnish the Trustee with the Company's Certificate, stating, in the case of the credit provided for, that such credit has not theretofore been applied against any Sinking Fund Installment and confirming that immediately available cash funds for the balance of the next succeeding prescribed Sinking Fund Installment payment will be paid on or prior to the next succeeding Sinking Fund Installment payment date. (f) Moneys in the Redemption Account which are not set aside or deposited for the redemption or purchase of Bonds shall be transferred by the Trustee to the Interest Account or to the Principal Account as directed in writing by the Company. (g) In the event that a deficiency shall exist in any Account of the Bond Fund on any Interest Payment Date after giving effect to any deposits or transfers made pursuant to the Accounts Agreement or the terms of this Indenture, the Trustee or the Company shall cause to be transferred from the Revenue Account of the Accounts Agreement, to the extent funds are available therefor, or from the Debt Service Reserve Account of the Accounts Agreement and, if there shall still remain a deficiency, shall make demand on the Company for such deficiency and 59 the Company shall immediately pay or cause to be paid the amount of such deficiency to the Trustee by wire transfer of immediately available funds. Section 5.04 Bonds Not Presented for Payment of Principal. (a) In the event any Bonds shall not be presented for payment when the principal thereof becomes due, either at maturity or at the date fixed for redemption thereof or the acceleration of maturity, or in the event that any interest thereon is unclaimed, if moneys sufficient to pay such Bonds or interest are held by the Trustee, the Trustee shall segregate and hold such moneys in trust (but shall not invest such moneys), without liability for interest thereon, for the benefit of Owners of such Bonds who shall, except as provided in the following paragraph, thereafter be restricted exclusively to such fund or funds for the satisfaction of any claim of whatever nature on their part under this Indenture or relating to said Bonds or interest. Such Bonds which shall not have been so presented for payment shall be deemed paid for any purposes of this Indenture. (b) Notwithstanding any provisions of this Indenture, any moneys deposited with the Trustee in trust for the payment of the principal of, or interest or premium on, any Bonds remaining unclaimed for years after the principal of any Bond has become due and payable (whether at maturity or upon call for redemption or by declaration as provided in this Indenture), shall be disposed of as provided by law and the Holders of such Bonds shall thereafter be entitled to look only to the transferee of such moneys for payment thereof, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, that before the disposition of such moneys as aforesaid, the Trustee may (at the cost of the Company) first publish at least once in a Qualified Newspaper a notice, in such form as may be deemed appropriate by the Trustee, in respect of the Bonds so payable and not presented and in respect of the provisions relating to the disposition of the moneys held for the payment thereof. (c) Neither the Company nor the Issuer shall have any right, title or interest in or to any moneys held by the Trustee pursuant to this Section. The Trustee shall not be liable to the Issuer or any Owner for interest on funds held by it for the payment and discharge of the principal, interest, or premium on any of the Bonds to any Owner. Section 5.05 Payment to the Company. After the right, title and interest of the Trustee in and to the Trust Estate and all covenants, agreements and other obligations of the Issuer to the Owners shall have ceased,terminated and become void and shall have been satisfied and discharged in accordance with Section 5.04 and Article VII hereof, and all rebate and all fees, expenses and other amounts payable to the Registrar, the Trustee and the Issuer pursuant to any provision of this Indenture shall have been paid, any moneys remaining in the Bond Fund, the Debt Service Reserve Fund and the Rebate Fund shall be paid to the Company upon written request of an Authorized Company Representative, other than any unclaimed moneys held pursuant to Section 5.04. (END OF ARTICLE V) 60 ARTICLE VI INVESTMENTS Section 6.01 Investment of Moneys in Funds. Subject to Section 4.06 hereof and the provisions of the Tax Agreement, moneys in the Bond Fund and the Rebate Fund may be invested and reinvested in Cash Equivalents. Such investments shall be made by the Trustee, as specifically directed in writing by an Authorized Company Representative. Each such written direction shall contain a statement that each investment so designated by the Company constitutes a Cash Equivalent and can be made without violation of any provision hereof or of the Lease Agreement, the Tax Agreement or applicable law. The Trustee shall be entitled to rely on each such certificate or advice and shall incur no liability for making any such investment so designated or for any loss, fee, tax or other charge incurred in selling such investment or for any action taken pursuant to this Section that causes the Tax-Exempt Bonds to be treated as "arbitrage bonds" within the meaning of Section 148 of the Code. No investment instructions shall be given by the Company if the investments to be made pursuant thereto would violate any covenant set forth in Section 4.06 hereof or the provisions of the Lease Agreement or the Tax Agreement. The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section 6.01, to deal with itself(in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or dealing as principal for its own account. The Trustee shall not be responsible for any loss on any investment made in accordance herewith. Section 6.02 Conversion of Investment to Cash. As and when any amounts so invested may be needed for disbursements from the Bond Fund or the Rebate Fund, or any Account or Subaccount therein, as applicable, the Trustee shall cause a sufficient amount of such investments to be sold or otherwise converted into cash to the credit of such fund. As long as no Event of Default shall have occurred and be continuing, the Company shall have the right to designate the investments to be sold and to otherwise direct the Trustee in writing in the sale or conversion to cash of such investments; provided that the Trustee shall be entitled to conclusively assume the absence of any Event of Default unless it has notice thereof within the meaning of Section 9.05 hereof. Section 6.03 Credit for Gains and Charge for Losses. Gains from investments shall be credited to and held in, and losses shall be charged to, the Fund, Account or Subaccount from which the investment is made. Section 6.04 Payments into Rebate Fund; Application of Rebate Fund. (a) The Rebate Fund and the amounts deposited therein shall not be subject to a security interest, pledge, assignment, lien or charge in favor of the Trustee or any Bondholder or any other Person. (b) The Trustee, on the thirty-first day following each Computation Period (as defined in the Tax Agreement), upon the receipt of a Company's Certificate pursuant to Section of the Tax Agreement, shall direct the Company to pay to the Trustee for deposit in the Rebate Fund that amount, as shall be so specified in such certificate of written direction. In determining the amount to be paid to the Trustee by the Company, the Trustee and the Company 61 shall take into account any investment income on Funds and Accounts held by the Trustee in accordance with Article V hereof and in the Project Accounts under the Accounts Agreement to the extent provided for in the Tax Agreement or otherwise advised by Bond Counsel. If there has been delivered to the Trustee a certification of the Rebate Amount (as defined in the Tax Agreement) in conjunction with the completion of the Project or the restoration of the Project pursuant to the Lease Agreement, the Trustee shall at the written direction of an Authorized Company Representative deposit in the Rebate Fund such amount so specified in such certification as required in order that the amount held in the Rebate Fund after such deposit is equal to the Rebate Amount calculated at the completion of the Project or the restoration of the Project. (c) In the event that the amount on deposit in the Rebate Fund exceeds the Rebate Amount as determined in accordance with the Tax Agreement, the Trustee, upon the receipt of written instructions from an Authorized Company Representative, shall withdraw such excess amount and deposit it in the Interest Account. (d) The Trustee, upon the receipt of written instructions from an Authorized Company Representative, including the calculation required below, shall pay to the United States of America, out of amounts in the Rebate Fund, (i) not later than 60 days after the end of each five year period after the date of original issuance of the Series 2014 Bonds, an amount such that, together with prior amounts paid to the United States of America, the total paid to the United States of America is equal to 90% of the Rebate Amount with respect to the Series 2014 Bonds calculated as of the end of the most recent Computation Period, and (ii) not later than 60 days after the date on which all of the Series 2014 Bonds have been redeemed or paid in full, 100% of the Rebate Amount as of the end of the final Computation Period. (e) The Company has agreed in the Tax Agreement to retain an arbitrage rebate consultant to calculate the Rebate Amount at least each Computation Period, and annually at its discretion or as may be required for the preparation of its annual financial statements. In the event that the amounts available in the Rebate Fund are insufficient to pay the required rebate payment, the Company shall pay or cause to be paid all amounts required to the Trustee for payment to the United States of America promptly upon receipt of an insufficiency notice from the Trustee. (END OF ARTICLE VI) 62 ARTICLE VII DEFEASANCE Section 7.01 Defeasance. (a) If the Issuer shall pay or cause to be paid to the Owner of any Bond secured hereby the principal of, and premium, if any, and interest due and payable, and thereafter to become due and payable, upon such Bond or any portion of such Bond in an Authorized Denomination thereof, such Bond or portion thereof shall cease to be entitled to any lien, benefit or security under this Indenture. (b) If the Issuer shall pay or cause to be paid the principal of, and premium if any, and interest due and payable on, all Outstanding Bonds, and thereafter to become due and payable thereon, and shall pay or cause to be paid all other sums payable hereunder by the Issuer, including any necessary and proper fees, compensation and expenses of the Trustee and the Registrar, then, and in that case, the right, title and interest of the Trustee in and to the Trust Estate shall thereupon cease, terminate and become void. In such event,the Trustee shall assign, transfer and turn over the Trust Estate to the Company and any surplus in the Bond Fund and any balance remaining in any other fund created under this Indenture shall be paid to the Company upon the written request of an Authorized Company Representative, other than any unclaimed moneys held pursuant to Section 5.04. The Trustee may conclusively rely on certificates of the Registrar as to the amount of any fees, expenses and other amounts owing to it. (c) All or any portion of Bonds (in Authorized Denominations) shall, prior to the maturity or redemption date thereof, be deemed to have been paid within the meaning of this Article VII and for all purposes of this Indenture when: (i) in the event said Bonds or portions thereof have been selected for redemption in accordance with Section 3.04 hereof, the Trustee shall have given, or the Company shall have given to the Trustee in form satisfactory to it irrevocable instructions to give, on a date in accordance with the provisions of Section 3.05 hereof, notice of redemption of such Bonds or portions thereof; (ii) there shall have been deposited with the Trustee moneys in an amount sufficient (without relying on any investment income), in the opinion of a firm of nationally recognized certified public accountants, to pay when due the principal of, and premium, if any, and interest due and to become due (which amount of interest to become due shall be calculated at the actual rate borne by such Bonds) on said Bonds or portions thereof on and prior to the redemption date or maturity date thereof, as the case may be; (iii) in the event said Bonds or portions thereof do not mature and are not to be redeemed within the next succeeding 60 days, the Company on behalf of the Issuer shall have given the Trustee in form satisfactory to it (A) irrevocable instructions to give, as soon as practicable in the same manner as a notice of redemption is given pursuant to Section 3.05 hereof, such notice of redemption, (B) a notice of defeasance to the Owners of said Bonds or portions thereof that the deposit required by clause (ii) above has been 63 made with, and the opinion required by clause (ii) above has been delivered to, the Trustee and that said Bonds or portions thereof are deemed to have been paid in accordance with this Article VII and stating the maturity date or redemption date upon which moneys are to be available for the payment of the principal of, and premium, if any, and interest on, said Bonds or portions thereof, and (C) a report from a Rating Agency to the effect that the Bonds,upon making the deposit require by clause (ii) above, shall be rated not less than"AAA"; and (iv) the Trustee shall have received a Favorable Opinion of Counsel with respect to such deposit. (d) Moneys deposited with the Trustee pursuant to this Article VII shall not be withdrawn or used for any purpose other than, and shall be held in trust for, the payment of the principal of, premium, if any, and interest on said Bonds or portions thereof; provided that such moneys, if not then needed for such purpose, shall to the extent practicable, be invested and reinvested in Government Obligations maturing on or prior to the Interest Payment Date next succeeding the date of investment or reinvestment, and interest earned from such investments shall be paid over to the Company, as received by the Trustee, free and clear of any trust, lien or pledge. If payment of less than all the Bonds is to be provided for in the manner and with the effect provided in this Article VII, the Trustee shall select such Bonds or portion of such Bonds in the manner specified by Section 3.04 hereof for selection for redemption of less than all Bonds in the principal amount permitted by Section 3.01(b) hereof. (e) Notwithstanding that all or any portion of the Bonds are deemed to be paid within the meaning of this Article VII, the provisions of this Indenture relating to (i)the registration and exchange of Bonds, (ii) replacement of mutilated, lost, destroyed or stolen Bonds, (iii) payment of the Bonds from the moneys deposited as described in this Article and (iv) payment, compensation, reimbursement and indemnification of the Trustee and the Registrar shall remain in full force and effect with respect to all Bonds until the maturity date thereof or the last date fixed for redemption of all Bonds prior to maturity and, in the ease of clause (iv), until payment, compensation, reimbursement or indemnification, as the case may be, of the Trustee and the Registrar. (END OF ARTICLE VII) 64 ARTICLE VIII DEFAULTS AND REMEDIES Section 8.01 Events of Default. Each of the following events shall constitute and is referred to in this Indenture as an"Event of Default": (a) a failure to pay the principal of or premium, if any, on any of the Bonds when the same shall become due and payable at maturity, upon redemption or otherwise; (b) a failure to pay an installment of interest on any of the Bonds when the same shall become due and payable; (c) a failure by the Issuer to observe and perform any covenant, condition, agreement or provision (other than as specified in Section 8.01(a) and Section 8.01(b) hereof) contained in the Bonds or in this Indenture on the part of the Issuer to be observed or performed, which failure shall continue for a period of 30 days after written notice, specifying such failure and requesting that it be remedied, shall have been given to the Issuer and the Company by the Trustee by registered or certified mail or delivery by overnight courier; provided that the Trustee may give such notice in its discretion and shall give such notice at the written request of the Majority Bondholder, unless the Trustee or the Majority Bondholder, who requested such notice, as the case may be, shall agree in writing to an extension of such period prior to its expiration; provided, further, that if such failure is other than for the payment of money and is of such nature that it cannot be corrected within the applicable period, such failure shall not constitute an "Event of Default" for a period not to exceed 120 days so long as the Company institutes corrective action within the applicable period and such action is being diligently pursued; or (d) an"Event of Default"under the Lease Agreement has occurred and is continuing. The Issuer shall not be required to take notice, or be deemed to have notice, of any Event of Default, other than an Event of Default of which it shall have actual knowledge. If on the date on which payment of principal of, interest on or other amount in any respect of the Bonds of any series is due, sufficient moneys are not available to make such payment after taking into account any funds available for said purpose in the account for such series in the Operating Expense Reserve Account or the Debt Service Reserve Account, the Trustee shall promptly give telephonic notice of such insufficiency to the Company by notice to the Company at the telephone number provided for in Section 12.08 hereof. Section 8.02 Acceleration; Other Remedies. (a) If an Event of Default described in Section 8.01(a) or Section 8.01(b) hereof, or an Event of Default described in Section 8.01(d) hereof resulting from an "Event of Default" under Section 7.1(a), Section 7.1(c) or Section 7.01(e) of the Lease Agreement (of which the Trustee shall have received notice or be deemed to have notice pursuant to the provisions of Section 9.05 hereof), has occurred and has not been cured or waived, then the Trustee may, or upon the written request of the Majority Bondholder, the Trustee shall, by written notice by registered or certified mail or delivery by overnight courier to the Issuer and the Company, 65 declare the Bonds to be immediately due and payable, whereupon the Bonds shall without further action, become and be immediately due and payable, anything in this Indenture or in the Bonds to the contrary notwithstanding, and the Trustee shall give notice thereof by Mail to all Owners of Outstanding Bonds. Upon any declaration of acceleration, the Trustee shall promptly exercise such rights as it may have under the Lease Agreement. (b) The provisions of Section 8.02(a) hereof are subject further to the condition that if, after the principal of the Bonds shall have been so declared to be due and payable and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall cause to be deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all Bonds, the principal of any and all Bonds which shall have become due otherwise than by reason of such declaration (with interest upon such principal and, to the extent permissible by law, on overdue installments of interest, at the rate per annum then borne by the Bonds) and such amount as shall be sufficient to cover reasonable compensation and reimbursement of expenses, as well as all other Administration Expenses, payable to the Trustee, the Majority Bondholder and the Issuer, if any, and all Events of Default (other than nonpayment of the principal of Bonds which shall have become due by said declaration) shall have been remedied, then, in every such case, such Event of Default shall be deemed waived and such declaration and its consequences rescinded and annulled; provided, however, that no such waiver, rescission and annulment shall extend to or affect any other Event of Default or subsequent Event of Default or impair any right, power or remedy consequent thereon. The Trustee shall send notice of any rescission to the Company. (c) Upon the occurrence and continuance of any Event of Default, then and in every such case the Trustee in its discretion may, and upon the written request of the Majority Bondholder and receipt of indemnity to its satisfaction (except against its own negligence or willful misconduct) shall, in its own name and as the Trustee of an express trust: (i) by mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Owners under, and require the Issuer or the Company to carry out any agreements with or for the benefit of the Owners of Bonds and to perform its or their duties under, the Act, the Lease Agreement, this Indenture and the Security Documents, provided that any such remedy may be taken only to the extent permitted under the applicable provisions of the Lease Agreement or this Indenture, as the case may be; (ii) bring suit upon the Bonds; (iii) by action or suit in equity require the Issuer to account as if it were the trustee of an express trust for the Owners of Bonds; or (iv) by action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Owners of Bonds. In exercising such rights and the rights given the Trustee under this Article VIII, the Trustee will take such action as, in the judgment of the Trustee applying the standards described in Section 9.17 hereof, would best serve the interests of the Bondholders, taking into account the provisions of the Security Documents. 66 (d) The Trustee shall waive any Event of Default hereunder and its consequences and rescind any declaration of acceleration of principal upon the written request of the Majority Bondholder(i) in respect of which default in the payment of principal of or interest on the Bonds exists or (ii) in the case of any other Event of Default; provided, however, that (x)there shall not be waived any Event of Default specified in Section 8.01(a) or Section 8.01(b) hereof unless prior to such waiver or rescission the Company shall have caused to be deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all Bonds and the principal of any and all Bonds which shall have become due otherwise than by reason of such declaration of acceleration (with interest upon such principal and, to the extent permissible by law, on overdue installments of interest, at the rate per annum then borne by the Bonds) and (y) no Event of Default shall be waived unless (in addition to the applicable conditions as aforesaid) there shall have been deposited with the Trustee such amount as shall be sufficient to cover reasonable compensation and reimbursement of expenses payable to the Trustee and the Majority Bondholder, as well as all Administration Expenses. In case of any waiver or rescission described above, or in case any proceeding taken by the Trustee on account of any such Event of Default shall have been discontinued or concluded or determined adversely, then and in every such case the Issuer, the Trustee and the Owners of Bonds shall be restored to their former positions and rights hereunder, respectively; provided, further that no such waiver or rescission shall extend to any subsequent or other Event of Default, or impair any right consequent thereon. Section 8.03 Restoration to Former Position. In the event that any proceeding taken by the Trustee to enforce any right under this Indenture shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then the Issuer, the Trustee and the Owners of Bonds shall be restored to their former positions and rights hereunder, respectively, and all rights, remedies and powers of the Trustee shall continue as though no such proceeding had been taken. Section 8.04 Owners' Right to Direct Proceedings. Anything in this Indenture or the Lease Agreement to the contrary notwithstanding, upon the occurrence and continuance of an Event of Default, Owners of 25% in aggregate principal amount of the Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Trustee, to direct the method of conducting all remedial proceedings taken by the Trustee hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture, and that the Trustee shall have the right to decline to follow any such direction which in the opinion of the Trustee would be unjustly prejudicial to Bondholders not parties to such direction or for which it has not been provided indemnity reasonably satisfactory to it. Section 8.05 Limitation on Owners' Right to Institute Proceedings. No Owner shall have any right to institute any suit, action or proceeding in equity or at law for the execution of any trust or power hereunder, or any other remedy hereunder or in the Bonds, unless such Owner previously shall have given to the Trustee written notice of an Event of Default as herein above provided and unless the Majority Bondholder shall have made written request of the Trustee so to do after the right to institute said suit, action or proceeding under Section 8.02 hereof shall have accrued, and shall have afforded the Trustee a reasonable opportunity to proceed to institute the same in either its or their name, and unless there also shall have been offered to the Trustee security and indemnity satisfactory to it against the costs, expenses and liabilities to be incurred 67 therein or thereby (except against its own negligence or willful misconduct), and the Trustee shall not have complied with such request within a reasonable time; and such notification, request and offer of indemnity are hereby declared in every such case, at the option of the Trustee, to be conditions precedent to the institution of said suit, action or proceeding, it being understood and intended that no one or more of the Owners shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Indenture, or to enforce any right hereunder or under the Bonds, except in the manner herein provided, and that all suits, actions and proceedings at law or in equity shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners. Section 8.06 No Impairment of Right to Enforce Payment. Notwithstanding any other provision in this Indenture, the right of any Owner to receive payment of the principal of, and premium, if any, and interest on, its Bond, on or after the respective due dates expressed therein, or to institute suit for the enforcement of any such payment on or after the respective due dates expressed therein, or to institute suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Owner. Section 8.07 Proceedings by Trustee Without Possession of Bonds. All rights of action under this Indenture or under any of the Bonds secured hereby which are enforceable by the Trustee may be enforced by it without the possession of any of the Bonds, or the production thereof at the trial or other proceedings relative thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in its name for the equal and ratable benefit of the Owners, subject to the provisions of this Indenture. Section 8.08 No Remedy Exclusive. No remedy herein conferred upon or reserved to the Trustee or to the Owners is intended to be exclusive of any other remedy or remedies, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder or under the Lease Agreement, or now or hereafter existing at law or in equity or by statute; provided, however, that any conditions set forth herein to the taking of any remedy to enforce the provisions of this Indenture, the Bonds or the Lease Agreement shall also be conditions to seeking any remedies at law or in equity or by statute pursuant to this Section 8.08. Section 8.09 No Waiver of Remedies. No delay or omission of the Trustee or of any Owner to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default, or an acquiescence therein; and every power and remedy given by this Article VIII to the Trustee and to the Owners, respectively, may be exercised from time to time and as often as may be deemed expedient. Section 8.10 Application of Moneys. (a) Any moneys received by the Trustee, by any receiver or by any Owner pursuant to any right given or action taken under the provisions of this Article VIII, after payment of the fees, costs and expenses, liabilities and advances incurred or made by the Trustee or its agents or Counsel, including Administration Expenses (provided that moneys held for Bonds not presented for payment or deemed paid pursuant to Section 5.04 or Article VII hereof shall not be used for purposes other than payment of such Bonds), shall be deposited to the Redemption Account of 68 the Bond Fund and all moneys so deposited in the Bond Fund during the continuance of an Event of Default (other than moneys for the payment of Bonds which had matured or otherwise become payable prior to such Event of Default or for the payment of interest due prior to such Event of Default) shall be applied, except as otherwise directed by the Majority Bondholder, as follows: (b) Unless the principal of all the Bonds shall have been declared due and payable, all such moneys shall be applied (i) first, to the payment to the Persons entitled thereto of all installments of interest then due on each Bond, with interest on overdue installments of interest, if lawful at the rate per annum then borne by such Bond, in the order of maturity of the installments of such interest and, if the amount available shall not be sufficient to pay in full any particular installment of interest, then to the payment ratably, according to the amounts due on such installment, and (ii) second, to the payment to the Persons entitled thereto of the unpaid principal of any of the Bonds which shall have become due (other than Bonds called for redemption for the payment of which money is held pursuant to the provisions of this Indenture) with interest on each Bond at its rate from the respective dates upon which it became due and, if the amount available shall not be sufficient to pay in full Bonds due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal and interest due on such date, in each case to the Persons entitled thereto, without any discrimination or privilege. (c) If the principal of all the Bonds shall have been declared due and payable, all such moneys shall be applied to the payment of the principal and interest then due and unpaid upon the Bonds, with interest on overdue interest and principal as aforesaid, without preference or priority of principal over interest or interest over principal or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or privilege. (d) If the principal of all the Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article VIII then, subject to the provisions of subparagraph (b) of this Section 8.10 which shall be applicable in the event that the principal of all the Bonds shall later become due and payable, the moneys shall be applied in accordance with the provisions of subparagraph(a) of this Section 8.10. (e) Whenever moneys are to be applied pursuant to the provisions of this Section 8.10, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard to the amount of such moneys available for application. Whenever the Trustee shall apply such funds, it shall fix the Bond Payment Date upon which such application is to commence and upon such Bond Payment Date interest on the amounts of principal and interest to be paid on such Bond Payment Date shall cease to accrue. The Trustee shall give notice of the deposit with it of any such moneys and of the fixing of any such Bond Payment Date by Mail to the Provider and all Owners of Outstanding Bonds and shall not be required to make payment to any Owner until such Bond shall be presented to the Registrar for appropriate endorsement or cancellation if fully paid. 69 Section 8.11 Severability of Remedies. It is the purpose and intention of this Article VIII to provide rights and remedies to the Trustee and the Owners which may be lawfully granted under the provisions of the Act, but should any right or remedy herein granted be held to be unlawful the Trustee and the Owners shall be entitled, as above set forth, to every other right and remedy provided in this Indenture and by law. (END OF ARTICLE VIII) 70 ARTICLE IX TRUSTEE; REGISTRAR Section 9.01 Acceptance of Trusts; Representations, Warranties and Covenants of the Trustee. (a) UMB Bank, N.A., as national banking association, has appointed, as trustee, registrar and paying agent for the Bonds. The Trustee hereby accepts and agrees to execute the trusts hereby created, but only upon the additional terms set forth in this Article IX, to all of which the Issuer agrees and the respective Owners agree by their acceptance of delivery of any of the Bonds. The Trustee, prior to the occurrence of an Event of Default and after the curing of all Events of Default, undertakes to perform such duties and only such duties as are specifically set forth herein, and no implied covenant or duties shall be read into this Indenture against the Trustee. (b) All federal, State and local governmental, public, and regulatory authority approvals, consents, notices, authorizations, registrations, licenses, exemptions, and filings that are required to have been obtained or made by the Trustee with respect to the authorization, execution, delivery, and performance by, or the enforcement against or by, the Trustee of this Indenture have been obtained and are in full force and effect and all conditions of such approvals, consents, notices, authorizations, registrations, licenses, exemptions and filings have been fully complied with. (c) The Trustee has a combined capital and surplus of at least $50,000,000 or, alternatively, a liability policy having the type of coverage and in an amount acceptable to the Issuer and the Company. Section 9.02 No Responsibilities for Recitals. The recitals, statements and representations contained in this Indenture or in the Bonds shall not be taken and construed as made by or on the part of the Trustee, and the Trustee does not assume, and shall not have, any responsibility or obligation for the correctness of any thereof or for the validity, sufficiency or priority of this Indenture or the Lease Agreement, or the perfection or the maintenance of the perfection of any security interest granted hereby or by the Security Documents or with regard to the Tax-Exempt status of interest on the Bonds. Section 9.03 Limitations on Liability. (a) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, receivers or employees, and shall be entitled to and may conclusively rely upon advice of counsel concerning all matters of trust and its duties hereunder and shall not be answerable for the conduct of any such attorney, agent, receiver or employee if appointed by the Trustee with reasonable care, and the advice of any such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted hereunder in good faith and reliance thereon, and may in all cases pay such reasonable compensation to such attorneys, agents, receivers or employees as may be reasonably employed in connection with the trusts hereof The Trustee shall not be answerable for the exercise of any discretion or power under this Indenture or for anything whatsoever in 71 connection with the trusts created hereby, except only for its own negligence or willful misconduct. (b) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Majority Bondholder relating to the time, method and place of conducting any proceeding or any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture. (c) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. The Trustee shall not be required to give any bond or surety in respect to the execution of its trusts and powers hereunder. (d) The permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty. (e) The Trustee shall not be liable for any error of judgment made in good faith by an officer, director or employee unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Owners pursuant to the provisions of this Indenture unless there shall have been provided to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby. (g) The Trustee shall not be responsible or liable for any loss suffered in connection with the investment of moneys made by it in accordance with Article VI hereof. (h) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, direction, consent, order, or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled, upon reasonable notice and during regular business hours to examine the books and records of the Issuer and the Company. (i) Except as otherwise expressly provided hereunder, the Trustee shall not be required to give or furnish any notice, demand, report, reply, statement advice or opinion to any Owner or the Company or any other Person, and the Trustee shaft not incur any liability for its failure or refusal to give or furnish the same unless obligated or required to do so by express provisions hereof. (j) The Trustee shall not be liable with respect to any taken or omitted to be taken at the direction of the Majority Bondholder permitted to be given by them under this Indenture. (k) The Trustee shall have no responsibility with respect to any information in any official statement, offering memorandum or other disclosure material distributed with respect to 72 the Bonds or for compliance with securities laws in connection with the issuance and sale of the Bonds. (1) The Trustee shall have no responsibility with respect to compliance by the Issuer or the Company with Section 148 of the Code or any covenant in this Indenture or in the Tax Agreement regarding yields on investments. (m) The Trustee shall not be accountable for the application by the Company of the proceeds of the Bonds authenticated and delivered hereunder. (n) The Trustee shall have no duty or responsibility to insure the Project or to monitor the insuring of the Project by the Company. (o) The Trustee shall have no duty or obligation to record or file any mortgage, financing statement, continuation statement similar document relating to this Indenture, the Lease Agreement, or the Project. (p) The Trustee shall not be responsible for (i) the validity, priority, recording, rerecording, filing, or refiling of this Indenture, any supplemental indenture or any Security Document; (ii) any instrument or document of further assurance or collateral assignment; (iii) any financing statements, amendments or modifications thereto, or continuation statements; (iv) the validity of the execution by the Issuer of this Indenture or any supplemental indenture or documents of further assurance; (v) the sufficiency of the security for the Bonds issued hereunder; and(vi)the value of or title to the Property or the Encumbered Property. (q) In situations where a Favorable Opinion of Counsel is required or requested to be delivered under this Indenture, the Lease Agreement or the Tax Agreement after the date of delivery of the Bonds, the Trustee shall accept (unless otherwise directed by the Company) an opinion in such form and with such disclosures as may be required so that such opinion will not be treated as a "covered opinion" for purposes of the United States Treasury Department regulations governing practice before the Internal Revenue Service (Circular 230), 31 CFR Part 10. (r) Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of the Trustee shall be subject to the provisions of this Article IX and shall extend to the Registrar and employees and agents of the Trustee and the Registrar. Section 9.04 Compensation,Expenses and Advances. (a) The Trustee and the Registrar shall be entitled to such compensation as shall be agreed in writing with the Company for their services rendered hereunder (not limited by any provision of law in regard to the compensation of the trustee of an express trust) and to reimbursement for their out-of-pocket expenses (including reasonable counsel fees and expenses) reasonably incurred in connection therewith except as a result of their negligence or willful misconduct. If the Issuer shall fail to perform any of the covenants or agreements contained in this Indenture, the Trustee may, in its uncontrolled discretion and without notice to the Owners, at any time and from time to time, make advances to effect performance of the same on behalf of 73 the Issuer, but the Trustee shall be under no obligation so to do; and any and all such advances shall bear interest at the Trustee's Prime Rate; but no such advance shall operate to relieve the Issuer from any Event of Default. In no event shall the Trustee be liable for any claims resulting from any decision on its part not to advance funds as permitted in the immediately preceding sentence. In the Lease Agreement, the Company has agreed that it will pay to the Trustee and the Registrar compensation and reimbursement of expenses and advances and certain indemnities, but the Company may, without creating an Event of Default, contest in good faith the reasonableness of any such expenses and advances. If the Company shall have failed to make any payment to the Trustee or the Registrar under the Lease Agreement, then each of the Trustee and the Registrar shall have, in addition to any other rights hereunder, a claim, prior to the claim of the Owners, for the payment of their compensation and indemnities and the reimbursement of their expenses and any advances made by them, as provided in this Section 9.04, upon the moneys and obligations in the Bond Fund, except for moneys or obligations deposited with or paid to the Trustee for the redemption or payment of Bonds which are deemed to have been paid in accordance with Article VII hereof, or funds held pursuant to Section 5.04 hereof. (b) Notwithstanding any other provision of this Indenture, in each instance in which this Indenture shall provide for compensation, reimbursement or indemnification of the Trustee, such provision shall be deemed to provide for, whether or not expressly so stated, the payment of all related fees, costs, charges, advances and reasonable expenses of the Trustee (including, without limitation, reasonable attorneys' fees and expenses), unless the context clearly indicates otherwise. (c) The Trustee provides to the Company periodic statements of transactions and investments with respect to the various Funds and Accounts created pursuant to this Indenture. Such statements are provided as part of the ordinary services contemplated herein. In the event that the Company requests the Trustee to provide copies of statements to a rebate consultant or other person for the purpose of performing analysis or calculations relating to arbitrage rebate as required under this Indenture (or other financing agreement) or for any other reason, then the Trustee shall be entitled to additional compensation for its services with respect to providing such additional statements. (d) Without prejudice to any other rights available to the Trustee under applicable law,when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 7.1(c) of the Lease Agreement, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. (e) The provisions of this Section 9.04 shall survive the termination of this Indenture. Section 9.05 Notice of Events of Default and Determination of Taxability. Notwithstanding anything otherwise provided herein, the Trustee shall not be required to take notice, or be deemed to have notice of any default or Event of Default, other than an Event of Default under Section 8.01(a) or Section 8.01(b) hereof, unless the Trustee shall have actual knowledge thereof or shall have been specifically notified in writing at the designated office of 74 the Trustee, Attention: Trust and Agency Services, of such Event of Default by the Owners of at least 25% in principal amount of the Bonds then Outstanding, the Issuer or the Company. The Trustee may, however, at any time, in its discretion, require of the Issuer full information and cooperation as to the performance of any of the covenants, conditions and agreements contained herein. Such inquiry shall not for the purposes of this Section 9.05 constitute notice of any Event of Default. If an Event of Default occurs after the Trustee has notice of the same as provided in this Section 9.05, or if a Determination of Taxability occurs of which the Trustee has received notice as provided in Section 8.2 of the Lease Agreement, then the Trustee shall give notice thereof by Mail to the Company and the Owners of Outstanding Bonds. Section 9.06 Action by Trustee. Except as provided in Section 8.02 and Section 8.04 hereof and except for the payment of principal of, and premium, if any, and interest on, the Bonds when due from moneys held by the Trustee as part of the Trust Estate,the Trustee shall be under no obligation to take any action in respect of any Event of Default or toward the execution or enforcement of any of the trusts hereby created, or to institute, appear in or defend any suit or other proceeding in connection therewith, unless requested in writing so to do by the Majority Bondholder and, if in its opinion such action may tend to involve it in expense or liability, unless furnished, from time to time as often as it may require, with security and indemnity satisfactory to it (except against its own negligence or willful misconduct); but the foregoing provisions are intended only for the protection of the Trustee, and shall not affect any discretion or power given by any provisions of this Indenture to the Trustee to take action in respect of any Event of Default without such notice or request from the Owners, or without such security or indemnity. Section 9.07 Good-Faith Reliance. (a) The Trustee and the Registrar shall be protected and shall incur no liability in acting or proceeding in good faith upon any resolution, notice, telegram, telex or facsimile transmission, request, consent, waiver, certificate, statement, affidavit, voucher, bond, requisition or other paper or document which it shall in good faith believe to be genuine and to have been passed or signed by the proper board, body or person or to have been prepared and furnished pursuant to any of the provisions of this Indenture or the Lease Agreement, or upon the written opinion of any attorney, engineer, accountant or other expert believed, without independent investigation, by the Trustee or the Registrar, as the case may be, to be qualified in relation to the subject matter. The Trustee and the Registrar shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy of such statements; provided, however, that the Trustee may, in its discretion, make, but shall in no case be required to make, such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation it shall be entitled to examine the books, records and premises of the Company personally or by agent or attorney. Neither the Trustee nor the Registrar shall be bound to recognize any person as an Owner or to take any action at such person's request unless satisfactory evidence of the ownership of such Bond shall be furnished to such entity. (b) Whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the 75 absence of negligence or bad faith on its part, request and conclusively rely upon a certificate of an Authorized Company Representative or an Issuer Representative, and, prior to the occurrence of a default of which the Trustee has been notified as provided in Section 9.05 hereof or of which by said section it is deemed to have notice, the Trustee shall also be at liberty to accept a similar certificate to the effect that any particular dealing, transaction or action is necessary or advisable, but shall in no case be bound to secure the same. (c) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. (d) Notwithstanding anything elsewhere in this indenture contained, the Trustee or the Registrar, as the case may be, shall have the right, but shall not be required, to demand, in respect of the authentication of any Bonds or the taking of any other action whatsoever within the purview of this Indenture or the Lease Agreement, any showings, certificates, opinions or other information, or corporate action or evidence thereof, in addition to those by the terms hereof or thereof required as a condition of such action which are reasonably deemed desirable by the Trustee or the Registrar, as the case may be, for the purpose of establishing the right of the Issuer or the Company to request the taking of such action by the Trustee or the Registrar. Section 9.08 Dealings in Bonds; Allowance of Interest. (a) The Trustee and the Registrar, in its individual capacity, may in good faith buy, sell, own, hold and deal in any of the Bonds issued hereunder and may join in any action which any Owner may be entitled to take with like effect as if it did not act in any capacity hereunder. The Trustee or the Registrar, in its individual capacity, either as principal or agent, may also engage in or be interested in any financial or other transaction with the Issuer or the Company, and may act as depositary, trustee or agent for any committee or body of Owners secured hereby or other obligations of the Issuer or the Company as freely as if it did not act in any capacity hereunder. (b) All moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any moneys received hereunder except for accounting for income from Cash Equivalents. Section 9.09 Several Capacities. Anything in this Indenture to the contrary notwithstanding, with the consent of the Company, the same entity may serve hereunder as the Trustee and the Registrar and in any other combination of such capacities, to the extent permitted by Law. Section 9.10 Resignation of Trustee. The Trustee may resign and be discharged of the trusts created by this Indenture by executing any instrument in writing resigning such trust and specifying the date when such resignation shall take effect, and filing the same with the Issuer, the Company and the Registrar not less than 45 days before the date specified in such instrument when such resignation shall take effect, and by giving notice of such resignation by Mail not less 76 than three weeks prior to such resignation date, to all Owners of Bonds. Such resignation shall take effect on the day specified in such instrument and notice, unless previously a successor Trustee shall have been appointed as hereinafter provided, in which event such resignation shall take effect immediately upon the appointment of such successor Trustee, but in no event shall a resignation take effect earlier than the date on which a successor Trustee, acceptable to the Issuer and the Company,has been appointed and has accepted its appointment. Section 9.11 Removal of Trustee. (a) The Trustee may be removed at any time by filing with the Trustee so removed and with the Issuer, the Company and the Registrar, an instrument or instruments in writing executed by (i) the Company, if no default or Event of Default or condition which with the giving of notice or the passage of time, or both, would constitute a default or an Event of Default, shall have occurred and be continuing, or (ii) during the occurrence and continuation of a default or an Event of Default or condition which with the giving of notice or the passage of time, or both, would constitute a default or an Event of Default,the Majority Bondholder. (b) The Issuer may, and, so long as no default or Event of Default is then existing under Section 7.1(a) of the Lease Agreement or Section 8.01(a) or (b) of this Indenture, at the request of the Company will, remove the Trustee (i) if the Trustee fails to comply with Section 9.13(a), (b) or (c) hereof, (ii) if the Trustee is adjudged a bankrupt or an insolvent, (iii) if a receiver or other public officer takes charge of the Trustee or its property or (iv) if the Trustee otherwise becomes incapable of acting. (c) In no event shall a removal take effect earlier than the date on which a successor Trustee has been appointed and has accepted its appointment. Section 9.12 Appointment of Successor Trustee. (a) In case at any time the Trustee shall be removed, or be dissolved, or if its property or affairs shall be taken under the control of any state or federal court or administrative body because of insolvency or bankruptcy, or for any other reason, then a vacancy shall forthwith and ipso facto exist in the office of Trustee and a successor may be appointed, and in case at any time the Trustee shall resign, then a successor may be appointed by the Majority Bondholder. Notice of the appointment of a successor Trustee shall be promptly delivered by the Majority Bondholder to the Issuer, the Company, the predecessor Trustee and to the Trustee so appointed. Any successor Trustee appointed upon the removal of the original Trustee hereunder shall assume the obligations of the original Trustee through an instrument of acceptance. (b) Until a successor Trustee shall be appointed by the Company or the Owners as herein authorized, the Issuer, by an instrument authorized by the governing body of the Issuer, shall appoint a successor Trustee acceptable to the Company. After any appointment by the Issuer, it shall cause notice of such appointment to be given to the Registrar and to be given by Mail to all Owners of Bonds. Any new Trustee so appointed by the Issuer shall immediately and without further act be superseded by a Trustee appointed by the Company or the Owners in the manner above provided. 77 Section 9.13 Qualifications of Successor Trustee. Every successor Trustee (a) shall be a national or state bank or trust company that is authorized by law to perform all the duties imposed upon it by this Indenture and to exercise corporate trust powers in the State, (b) shall have (or, in the case of a corporation included in a bank holding company system, the related bank holding company shall have) a combined capital and surplus of at least $50,000,000 as set forth in its (or its related bank holding company's) most recent published annual report of condition, and (c) shall be permitted under the Act and the Issuer's rules to perform the duties of Trustee, if there can be located, with reasonable effort, such an institution willing and able to accept the trust on reasonable and customary terms. Section 9.14 Judicial Appointment of Successor Trustee. In case at any time the Trustee shall resign and no appointment of a successor Trustee shall be made pursuant to the foregoing provisions of this Article IX prior to the date specified in the notice of resignation as the date when such resignation is to take effect, the resigning Trustee may forthwith apply to a court of competent jurisdiction for the appointment of a successor Trustee. If no appointment of a successor Trustee shall be made pursuant to the foregoing provisions of this Article IX within six months after a vacancy shall have occurred in the office of Trustee, any Owner may apply to any court of competent jurisdiction to appoint a successor Trustee. Such court may thereupon, after such notice, if any, as it may deem proper, appoint a successor Trustee. Section 9.15 Acceptance of Trusts by Successor Trustee. Any successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become duly vested with all the estates, property rights, powers, trusts, duties and obligations of its predecessor in the trust hereunder, with like effect as if originally named Trustee herein, and the duties and obligations of the predecessor Trustee hereunder shall thereupon cease and terminate. Upon request of such Trustee, such predecessor Trustee and the Issuer shall execute and deliver an instrument transferring to such successor Trustee all the estates, property, rights, powers and trusts hereunder of such predecessor Trustee and, subject to the provisions of Section 9.04 hereof, such predecessor Trustee shall pay over to the successor Trustee all moneys and other assets at the time held by it hereunder. Section 9.16 Successor by Merger or Consolidation. Any corporation or association into which any Trustee hereunder may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger or consolidation to which any Trustee hereunder shall be a party, or to which all or substantially all of its corporate trust business shall be transferred, shall be the successor Trustee under this Indenture, without the execution or filing of any paper or any further act on the part of the parties hereto, anything in this Indenture to the contrary notwithstanding, provided, however, if such successor corporation is not a trust company or state or national bank that has trust powers, the Trustee shall resign from the trusts hereby created prior to such merger, transfer or consolidation or the successor corporation shall resign from such trusts as soon as practicable after such merger, transfer or consolidation. Section 9.17 Standard of Care. Notwithstanding any other provisions of this Article IX, the Trustee shall, during the existence and prior to the curing of an Event of Default of which the Trustee has notice as provided in Section 9.05 hereof, exercise such of the rights and powers 78 vested in it by this Indenture and use the same degree of skill and care in their exercise as a prudent person would use and exercise under the circumstances in the conduct of its own affairs. Section 9.18 Intervention in Litigation of the Issuer. In any judicial proceeding to which the Issuer is a party and which in the opinion of the Trustee and its Counsel has a substantial bearing on the interests of the Owners of the Bonds, the Trustee may and shall upon receipt of indemnity satisfactory to it(except against its own negligence or willful misconduct) at the written request of the Owners of at least 25% in principal amount of the Bonds then Outstanding and if permitted by the court having jurisdiction in the premises, intervene in such judicial proceeding. Section 9.19 Registrar; Resignation,Removal. (a) The Trustee shall be the initial Registrar for the Bonds. The Registrar may resign and be discharged of the duties and obligations created by this Indenture by giving at least 45 days' written notice to the Issuer, the Trustee and the Company. The Registrar may be removed at any time by an instrument signed by the Authorized Company Representative and filed with the Issuer, the Registrar and the Trustee. Upon the resignation or removal of the Registrar, the Company shall appoint a new Registrar. (b) In the event that the Registrar shall resign or be removed, or be dissolved, or if the property or affairs of the Registrar shall be taken under the control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, and if the Company shall not have appointed a successor Registrar, the Trustee shall ipso facto be deemed to be the Registrar for all purposes of this Indenture until the appointment by the Company of the successor Registrar. In the event of the resignation or removal of the Registrar, the Registrar shall deliver any Bonds held by it in such capacity to its successor or, if there be no successor, to the Trustee. (c) Any Registrar shall designate to the Issuer, the Company and the Trustee its office where the registration books shall be kept and signify its acceptance of the duties imposed upon it hereunder by a written instrument of acceptance delivered to the Issuer and the Trustee under which such Registrar will agree, particularly, to keep such books and records for the Bonds as shall be consistent with prudent industry practice and to make such books and records available for inspection by the Issuer,the Trustee and the Company at all reasonable times. (d) The Issuer shall cooperate with the Trustee and the Company to cause the necessary arrangements to be made and to be thereafter continued whereby Bonds, executed by the Issuer and authenticated by the Registrar, shall be made available for exchange, registration and registration of transfer at the designated office of the Registrar. The Issuer shall cooperate with the Trustee, the Registrar and the Company to cause the necessary arrangements to be made and thereafter continued whereby the Trustee shall be furnished such records and other information, at such times, as shall be required to enable the Trustee to perform the duties and obligations imposed upon them hereunder. Section 9.20 Qualifications of Registrar. The Registrar shall be a corporation duly organized under the laws of the United States of America or any state or territory thereof, having 79 a combined capital surplus and retained earnings of at least $50,000,000 and authorized by law to perform all the duties imposed upon it by this Indenture. Section 9.21 Additional Duties of Trustee. (a) The Trustee shall keep such books and records with respect to the Bonds as shall be consistent with its usual practice and to make such books and records available for inspection by the Issuer and the Company at all reasonable times upon prior written notice. (b) The Trustee shall provide each Owner or Beneficial Owner of the Bonds who requests the same in writing, and provided it has received the same from the Company, the following: (i) the annual audit report of the Company for the most recent Fiscal Year certified by independent certified public accountants or firm of independent public accountants of recognized standing selected by the Company, as provided to the Trustee by the Company in accordance with Section 2.4.2 of the Lease Agreement; (ii) the unaudited financial statements of the Company for the immediately preceding Fiscal Quarter, as provided to the Trustee by the Company in accordance with Section 2.4.1 of the Lease Agreement; (iii) the information required to be provided by the Company to the Trustee in accordance with Section 2.8 of the Lease Agreement; and (iv) any other information which the Company is required to provide to the Trustee under any of the Bond Documents. (c) The Trustee shall, as long as a book-entry system is in effect for the Bonds, comply with the DTC Representation Letter and perform all duties required of it thereunder. (d) The Trustee shall keep, or cause to be kept, proper books of records and accounts in which complete and accurate entries shall be made of all funds and accounts established by or pursuant to this Indenture, which shall be at all reasonable times upon prior written notice be subject to the inspection by the Issuer or Owners (or a designated representative thereof) of not less than ten percent(10%) in aggregate principal amount of the Bonds then Outstanding. Section 9.22 Records of Investments. The Trustee will keep and retain until three years after the Bonds are paid in full adequate records with respect to the investment of all amounts held under this Indenture. Such records shall include: (a) purchase price; (b) purchase date; (c) type of investment; (d) accrued interest paid; (e) interest rate; (1) principal amount; 80 (g) maturity date; (h) interest payment date; (i) date of liquidation; and (j) receipt upon liquidation. (k) If any investment is retained after the date the last Bond is retired, the records required to be kept shall include the fair market value of such investment on the date the last Bond is retired, Amounts or investments will be segregated whenever necessary to maintain these records. Section 9.23 Notice to Rating Agency. The Trustee shall promptly notify the Rating Agency, if the Series 2014 Bonds are then rated by Fitch, Moody's or S&P, of(i) any change in the Trustee, (ii) the payment in full of all of the Series 2014 Bonds, or (iii) any change in this Indenture or the Lease Agreement. (END OF ARTICLE IX) 81 ARTICLE X EXECUTION OF INSTRUMENTS BY OWNERS AND PROOF OF OWNERSHIP OF BONDS Section 10.01 Execution of Instruments; Proof of Ownership. (a) Any request, direction, consent or other instrument in writing required or permitted by this Indenture to be signed or executed by the Owners or on their behalf by an attorney-in-fact may be in any number of concurrent instruments of similar tenor and may be signed or executed by the Owners in person or by an agent or attorney-in-fact appointed by an instrument in writing or as provided in the Bonds. Proof of the execution of any such instrument and of the ownership of Bonds shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee with regard to any action taken by it under such instrument if made in the following manner: (b) The fact and date of the execution by any person of any such instrument may be proved by the certificate of any officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments within such jurisdiction, to the effect that the person signing such instrument acknowledged before him the execution thereof, or by an affidavit of a witness to such execution. (c) The ownership of Bonds shall be proved by the registration books kept under the provisions of Section 2.06 hereof. Nothing contained in this Article X shall be construed as limiting the Trustee to such proof, it being intended that the Trustee may accept any other evidence of matters herein stated which it may deem sufficient. Any request by or consent of any Owner shall bind every future Owner of the same Bond or any Bond or Bonds issued in lieu thereof or upon registration of transfer thereof in respect of anything done by the Trustee or the Issuer in pursuance of such request or consent. (END OF ARTICLE X) 82 ARTICLE XI MODIFICATION OF THIS INDENTURE, THE LEASE AGREEMENT AND THE SECURITY DOCUMENTS Section 11.01 Supplemental Indentures Without Owner Consent. The Issuer and the Trustee may, from time to time and at any time, without the consent of the Owners, enter into a Supplemental Indenture as follows:to cure any formal defect, omission, inconsistency or ambiguity in this Indenture; (b) to add to the covenants and agreements of the Issuer contained in this Indenture or of the Company contained in any document, other covenants or agreements thereafter to be observed, or to assign or pledge additional security for any of the Bonds, or to surrender any right or power reserved or conferred upon the Issuer or the Company, which in the judgment of the Trustee is not materially adverse to the Owners of the Bonds (in making such determination, the Trustee may, but is not required to,rely conclusively upon an opinion of counsel); (c) to confirm, as further assurance, any pledge of or lien on the Trust Estate or any other moneys, securities or funds subject or to be subjected to the lien of this Indenture; (d) to comply with the requirements of the Trust Indenture Act of 1939, as from time to time amended, if applicable to this Indenture; (e) to modify, alter, amend or supplement this Indenture or any Supplemental Indenture in any other respect which in the judgment of the Trustee is not materially adverse to the Owners of the Bonds (in making such determination, the Trustee may, but is not required to, rely conclusively upon an opinion of counsel); (f) to modify, alter, amend or supplement or restate this Indenture or any Supplemental Indenture in any and all respects necessary, desirable or appropriate in connection with the delivery to the Trustee of bond insurance or other security arrangements obtained or provided by the Company; (g) to provide for a depository to accept Bonds in lieu of DTC; (h) to modify or eliminate the book-entry registration system for any of the Bonds; (i) to provide for uncertificated Bonds or for the issuance of coupons and bearer Bonds or Bonds registered only as to principal but only to the extent that such would not adversely affect the Tax-Exempt status of the Bonds; (j) to secure or maintain ratings on the Bonds from Fitch, Moody's and/or S&P; (k) to provide demand purchase obligations to cause the Bonds to be authorized purchases for investment companies; (1) to provide for the appointment of a successor Trustee and Registrar; 83 (m) to provide the procedures required to permit any Owner to separate the right to receive interest on the Bonds from the right to receive principal thereof and to sell or dispose of such right as contemplated by Section 1286 of the Code (or similar successor provision); (n) to make any change necessary (i) to establish or maintain the Tax-Exempt status of the Bonds as a result of any modifications or amendments to Section 148 of the Code (or any successor provision of law) or interpretations thereof by the Internal Revenue Service, or (ii) to comply with the provisions of Section 148(f) of the Code (or any successor provision of law), including provisions for the payment of all or a portion of the investment earnings of any of the funds established hereunder to the United States of America; and (o) to provide for the issuance of Additional Bonds in accordance with Section 4.2 of the Lease Agreement and Section 2.12 hereof. Before the Issuer and the Trustee shall enter into any Supplemental Indenture pursuant to this Section 11.01, in all cases,there shall have been delivered to the Trustee and the Company, a Favorable Opinion of Counsel with respect to such Supplemental Indenture and further stating that such Supplemental Indenture is authorized or permitted by this Indenture and will, upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee will be obligated to enter into any such Supplemental Indenture that would materially alter their respective rights, duties or immunities under this Indenture,the Lease Agreement or otherwise. The Trustee shall provide written notice of any Supplemental Indenture described in this Section 11.01 to Fitch, Moody's and S&P (but only if such corporations are then providing a rating for the Bonds) and to the Owners of all Bonds then Outstanding at least 15 days prior to the effective date of such Supplemental Indenture. Such notice shall state the effective date of such Supplemental Indenture and shall briefly describe the nature of such Supplemental Indenture and shall state that a copy thereof is on file at the designated office of the Trustee for inspection by the parties mentioned in the preceding sentence. Section 11.02 Supplemental Indentures Requiring Owner Consent. (a) Except for any Supplemental Indenture entered into pursuant to Section 11.01 hereof, subject to the terms and provisions contained in this Section 11.02 and not otherwise, the Majority Bondholder shall have the right from time to time to consent to and approve the execution and delivery by the Issuer and the Trustee of any Supplemental Indenture deemed necessary or desirable by the Issuer for the purposes of modifying, altering, amending, supplementing or rescinding, any of the terms or provisions contained in this Indenture; provided, however, that, unless approved in writing by the Owners of all the Bonds then Outstanding, nothing herein contained shall permit, or be construed as permitting (i) an extension of the maturity of the principal of, or the time for payment of any redemption premium or interest on, any Bond or a reduction in the principal amount of any Bond, or the rate of interest or redemption premium thereon, or a reduction in the amount of, or extension of the time of any payment required by, any Bond, (ii) a privilege or priority of any Bond over any other Bond (except as herein provided), (iii) a reduction in the aggregate principal amount of the Bonds required for consent to such a Supplemental Indenture, (iv) the deprivation of the owner of any 84 Bond then Outstanding of the lien created by this Indenture, or(v)the amendment of this Section 11.02. (b) If at any time the Issuer shall request the Trustee to enter into any Supplemental Indenture for any of the purposes of this Section 11.02, the Trustee, upon being satisfactorily indemnified for its expenses, shall cause notice of the proposed Supplemental Indenture to be given by Mail to Fitch, Moody's and S&P (but only if such corporations are then providing a rating for the Bonds) and to all Owners of Outstanding Bonds. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture and shall state that a copy thereof is on file at the designated office of the Trustee for inspection by the Owners, Fitch, Moody's and S&P. (c) Within two years after the date of the mailing of such notice, the Issuer and the Trustee may enter into such Supplemental Indenture in substantially the form described in such notice, but only if there shall have first been delivered to the Trustee (i) the required consents, in writing of the Owners and (ii) a Favorable Opinion of Counsel with respect to such Supplemental Indenture and further stating that such Supplemental Indenture is authorized or permitted by this Indenture and will, upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with its terms. Neither the Issuer nor the Trustee will be obligated to enter into any such Supplemental Indenture that would materially alter their respective rights, duties or immunities under this Indenture, under the Lease Agreement or otherwise. (d) If Owners of not less than the percentage of Bonds required by this Section 11.02 shall have consented to and approved the execution and delivery of a Supplemental Indenture as herein provided, no Owner shall have any right to object to the execution and delivery of such Supplemental Indenture, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the execution and delivery thereof, or to enjoin or restrain the Issuer or the Trustee from executing and delivering the same or from taking any action pursuant to the provisions thereof. Section 11.03 Effect of Supplemental Indenture. Upon the execution and delivery of any Supplemental Indenture pursuant to the provisions of this Article XI, this Indenture shall be, and be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture shall thereafter be determined, exercised and enforced under this Indenture subject in all respects to such modifications and amendments. Section 11.04 Consent of the Company and Other Parties. (a) No Supplemental Indenture under this Article XI and no amendment of the Lease Agreement shall become effective unless the Company shall have consented thereto in writing. (b) Any provision of this Indenture expressly recognizing or granting rights in or to the Registrar may not be amended in any manner which affects the rights of such party hereunder without the prior written consent of such party. Section 11.05 Amendment of Lease Agreement Without Owner Consent. Without the consent of or notice to the Owners, the Issuer and the Company may modify, alter, amend or supplement the Lease Agreement, and the Trustee may consent thereto, as may be required: 85 (a) by the provisions of the Lease Agreement and this Indenture; (b) for the purpose of curing any formal defect, omission, inconsistency or ambiguity therein; (c) in connection with any other change therein which in the judgment of the Trustee is not materially adverse to the Owners (in making such determination, the Trustee may, but is not required to, rely conclusively upon an opinion of counsel); (d) to secure or maintain ratings on the Bonds from Fitch, Moody's and/or S&P; (e) to add to the covenants and agreements of the Issuer contained in the Lease Agreement or of the Company contained in any document, other covenants or agreements thereafter to be observed, or to assign or pledge additional security for any of the Bonds, or to surrender any right or power reserved or conferred upon the Issuer or the Company, which shall not materially adversely affect the interest of the Owners of the Bonds (in making such determination, the Trustee may, but is not required to, rely conclusively upon an opinion of counsel); (f) to provide demand purchase obligations to cause the Bonds to be authorized purchases for investment companies; (g) to provide the procedures required to permit any Owner to separate the right to receive interest on the Bonds from the right to receive principal thereof and to sell or dispose of such right as contemplated by Section 1286 of the Code (or similar successor provision); (h) to make any change necessary (i) to establish or maintain the Tax-Exempt status of the Tax-Exempt Bonds as a result of any modifications or amendments to Section 148 of the Code (or any successor provision of law) or interpretations thereof by the Internal Revenue Service, or (ii) to comply with the provisions of Section 148 of the Code (or any successor provision of law), including provisions for the payment of all or a portion of the investment earnings of any of the Funds established hereunder to the United States of America; (i) to modify, alter, amend or supplement or restate the Lease Agreement in any and all respects necessary, desirable or appropriate in connection with the delivery to the Trustee of bond insurance or other security arrangements obtained or provided by the Company; and (j) to provide for the issuance of Additional Bonds in accordance with Section 4.2 of the Lease Agreement and Section 2.12 hereof. (k) A revision of Exhibit A to the Lease Agreement in accordance with Section 3.7 of the Lease Agreement shall not be deemed a modification, alteration, amendment or supplement to the Lease Agreement, or to this Indenture, for any purpose of this Indenture. (1) Before the Issuer shall enter into, and the Trustee shall consent to, any modification, alteration, amendment or supplement to the Lease Agreement pursuant to this Section 11.05, there shall have been delivered to the Issuer and the Trustee a Favorable Opinion of Counsel with respect to such modification, alteration, amendment or supplement and further 86 stating that such modification, alteration, amendment or supplement is authorized or permitted by the Lease Agreement or this Indenture and will, upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with its terms and an opinion of counsel to the Company to the effect that such modification, alteration, amendment or supplement will, upon execution and delivery thereof, be valid and binding upon the Company in accordance with its terms. Neither the Issuer nor the Trustee will be obligated to enter into or consent to any such modifications, alterations, amendments or supplements to the Lease Agreement that would materially alter their respective rights, duties or immunities under this Indenture, under the Lease Agreement or otherwise. Section 11.06 Amendment of Lease Agreement Requiring Owner Consent. (a) Except in the case of modifications, alterations, amendments or supplements referred to in Section 11.05 hereof, the Issuer shall not enter into, and the Trustee shall not consent to, any amendment, alteration, supplement or modification of the Lease Agreement without the written approval or consent of the Majority Bondholder given and procured as provided in Section 11.02 hereof; provided, however, that, unless approved in writing by the Owners of all Bonds affected thereby, nothing herein contained shall permit, or be construed as permitting, a change in the obligations of the Company under Section 5.1 or Section 5.2 of the Lease Agreement. If at any time the Issuer or the Company shall request the consent of the Trustee to any such proposed modification, alteration, amendment or supplement permitted under this Section 11.06,the Trustee shall cause notice thereof to be given in the same manner as provided by Section 11.02 hereof with respect to Supplemental Indentures. Such notice shall briefly set forth the nature of such proposed modification, alteration, amendment or supplement and shall state that copies of the instrument embodying the same are on file at the designated office of the Trustee for inspection by all Owners. The Issuer may enter into, and the Trustee may consent to, any such proposed modification, alteration, amendment or supplement subject to the same conditions and with the same effect as provided in Section 11.02 hereof with respect to Supplemental Indentures. (b) Before the Issuer shall enter into, and the Trustee shall consent to, any modification, alteration, amendment or supplement to the Lease Agreement pursuant to this Section 11.06, there shall have been delivered to the Issuer and the Trustee a Favorable Opinion of Counsel with respect to such modification, alteration, amendment or supplement and further stating that such modification, alteration, amendment or supplement is authorized or permitted by the Lease Agreement or this Indenture and will, upon the execution and delivery thereof, be valid and binding upon the Issuer in accordance with its terms and an opinion of counsel to the Company to the effect that such modification, alteration, amendment or supplement will, upon execution and delivery thereof, be valid and binding upon the Company in accordance with its terms. Neither the Issuer nor the Trustee will be obligated to enter into any such modification, alteration, amendment or supplement to the Lease Agreement that would materially after their respective rights, duties or immunities under this Indenture, under the Lease Agreement or otherwise. Section 11.07 Amendment of Security Documents Without Owner Consent. Without the consent of or notice to the Owners, the Company (and the Issuer with respect to the Mortgage) may modify, alter, amend or supplement the Security Documents, and the Trustee 87 may consent thereto, as may be required: (a) by the provisions of the Security Documents and this Indenture; (b) for the purpose of curing any formal defect, omission, inconsistency or ambiguity therein; (c) in connection with any other change therein which in the judgment of the Trustee is not materially adverse to the Owners; (d) to secure or maintain ratings for the Bonds from Fitch, Moody's and/or S&P; (e) to add to the covenants and agreements of the Company contained in the Security Documents or of the Company contained in any document, other covenants or agreements thereafter to be observed, or to assign or pledge additional security for any of the Bonds, or to surrender any right or power reserved or conferred upon the Company, which will not materially adversely affect the interest of the Owners of the Bonds (with respect to which the Trustee may conclusively rely upon an opinion of Counsel); (f) to modify, alter, amend or supplement or restate the Security Documents in any and all respects necessary, desirable or appropriate in connection with the delivery to the Trustee of bond insurance or other security arrangements obtained or provided by the Company; and (g) to provide for the issuance of Additional Bonds in accordance with the Lease Agreement and this Indenture. Section 11.08 Amendment of Security Documents Requiring Owner Consent. Except in the case of modifications, alterations, amendments or supplements described in the preceding paragraph, the Company (and the Issuer with respect to the Mortgage) will not enter into, and the Trustee will not consent to, any other amendment, alteration, supplement or modification of the Security Documents without the written approval or consent of the Majority Bondholder. (END OF ARTICLE XI) 88 ARTICLE XII MISCELLANEOUS Section 12.01 Successors of the Issuer. In the event of the dissolution of the Issuer, all the covenants, stipulations, promises and agreements in this Indenture contained, by or on behalf of, or for the benefit of the Issuer, shall bind or inure to the benefit of the successors of the Issuer from time to time and any entity, officer, board, commission, agency or instrumentality to whom or to which any power or duty of the Issuer shall be transferred. Section 12.02 Parties in Interest. Except as herein otherwise specifically provided, nothing in this Indenture expressed or implied is intended or shall be construed to confer upon any person, firm, corporation or entity other than the Issuer, the Registrar, the Company, the Trustee and the Owners of Bonds any right, remedy or claim under or by reason of this Indenture, this Indenture being intended to be for the sole and exclusive benefit of the Issuer, the Registrar, the Company, the Trustee and the Owners of Bonds. The Trustee shall have no fiduciary duty to any entity other than the Owner of any Bond as such and only in accordance with, and to the extent of,the terms and provisions hereunder. Section 12.03 Severability. In case any one or more of the provisions of this Indenture or of the Lease Agreement or of the Bonds shall for any reason be held to be illegal or invalid, such illegality or invalidity shall not affect any other provisions of this Indenture, the Lease Agreement or the Bonds, and this Indenture, the Lease Agreement and the Bonds shall be construed and enforced as if such illegal or invalid provisions had not been contained herein or therein. Section 12.04 No Personal Liability of Issuer Officials. No representation, warranty, covenant or agreement contained in the Bonds or in this Indenture or in any of the documents or certificates related thereto shall be deemed to be the representation, warranty, covenant or agreement of any director,member, official, officer, agent or employee of the Issuer in his or her individual capacity. No director, member, official, officer, agent or employee of the Issuer, and no officer, official agent or employee of the State or any department, board, agency or political subdivision of the State shall be individually or personally liable for the payment of the principal of or premium or interest on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such director, member, official, officer, agent or employee from the performance of any official duty provided by law or by this Indenture. Section 12.05 Bonds Owned by the Issuer or the Company. In determining whether the Owners of the requisite aggregate principal amount of the Bonds have concurred in any direction, consent or waiver under this Indenture, Bonds which are owned by the Issuer or the Company or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company (unless the Issuer, the Company or such person owns all Bonds which are then Outstanding, determined without regard to this Section 12.05) shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that, for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Bonds with respect to which the Trustee 89 has received written notice of such ownership shall be so disregarded. Bonds so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Bonds and that the pledgee is not the Issuer or the Company or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of Counsel shall be full protection to the Trustee. Section 12.06 Counterparts. This Indenture may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Indenture. Section 12.07 Governing Law. This Indenture shall be governed by and construed in accordance with the laws of the State. Section 12.08 Notices. Except as otherwise provided in this Indenture, all notices, certificates, requests, requisitions, directions or other communications by the Issuer, the Company, the Trustee or the Registrar, pursuant to this Indenture shall be in writing and shall be sufficiently given and shall be deemed given when mailed by Mail, or by overnight delivery service, addressed as follows (and, if by overnight delivery service and required by the chosen delivery service, with then-current telephone numbers of the addressees): if to the Issuer,to: City of Shakopee, Minnesota 129 South Holmes Street Shakopee, Minnesota 55379 Attention: Finance Director Telephone: 952-233-9311 Facsimile: 952-233-3801 with a copy to: Kennedy& Graven, Chartered 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, Minnesota 55402 Attention: Julie Eddington, Esq. Telephone: 612-337-9213 Facsimile: 612-337-9301 if to the Trustee or the Registrar, to: UMB Bank,N.A. 2 South Broadway Saint Louis, Missouri 63013 Attention: Sandy Battas Telephone: 314-612-8481 Facsimile: 90 if to the Company,to: Recovery Technology Solutions Shakopee, LLC 500 South Marshall Road Suite 200 Shakopee, Minnesota 55379 Attention: Tom Branhan, CEO Telephone: 952-746-4184 Facsimile: with a copy to: Dorsey& Whitney LLP 50 South Sixth Street Suite 1500 Minneapolis, Minnesota Attention: Lynnette Slater Crandall, Esq Telephone: 612-343-8288 Facsimile: 612-545-1201 Any of the foregoing may, by notice given hereunder to each of the others, designate any further or different addresses to which subsequent notices, certificates, requests or other communications shall be sent hereunder. Any communications required to be given hereunder by the Company shall be given by an Authorized Company Representative. A copy of any notice given to Bondholders shall be sent to the Company. Section 12.09 Holidays. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Indenture, shall not be a Business Day, such payment may, unless otherwise provided in this Indenture or the Lease Agreement, be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Indenture, and no interest shall accrue for the period after such nominal date. Section 12.10 Date for Identification Purposes Only; Effective Date. The date on this Indenture shall be for identification purposes only and shall not be construed to imply that this Indenture was executed on such date. This Indenture shall become effective upon the Closing Date. (END OF ARTICLE XII) KD_5906742_3.docx 91 IN WITNESS WHEREOF, the Issuer has caused these presents to be signed in its name and on its behalf by its Mayor and City Administrator and its corporate seal to be hereunto affixed and attested by its Finance Director/City Clerk, and to evidence its acceptance of the trusts hereby created, the Trustee has caused these presents to be signed and attested in its name and on its behalf by its duly authorized officers all as of the day and year first above written. THE CITY OF SHAKOPEE, MINNESOTA By: Its: Mayor By: Its: City Administrator ATTEST: By: Its: Finance Director/City Clerk [SIGNATURES CONTINUE ON FOLLOWING PAGE] UMB BANK, N.A., as Trustee By: Title: ATTEST: By: Title: EXHIBIT A [FORM OF SERIES 2014 BOND] UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,HAS AN INTEREST HEREIN. THIS BOND, INCLUDING BENEFICIAL OWNERSHIP THEREOF, ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED, SOLD, ASSIGNED OR PLEDGED UNLESS (I) THE BONDS HAVE BEEN REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (II) SUCH TRANSFER, SALE, ASSIGNMENT OR PLEDGE IS EXEMPT FROM REGISTRATION OR IS AN ELIGIBLE TRANSFER WITHOUT REGISTRATION UNDER RULE 144A OF THE SECURITIES ACT OF 1933, AS AMENDED. THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS (AS DEFINED HEREIN) ARE PAYABLE SOLELY OUT OF THE PAYMENTS MADE PURSUANT TO THE LEASE AGREEMENT AND THE SECURITY THEREFOR, INCLUDING THE SECURITY DOCUMENTS AND AS OTHERWISE PROVIDED IN THE INDENTURE AND THE LEASE AGREEMENT (AS SUCH TERMS ARE HEREINAFTER DEFINED). NEITHER THE STATE OF MINNESOTA, NOR ANY POLITICAL SUBDIVISION, NOR ANY MUNICIPALITY THEREOF, NOR THE ISSUER SHALL BE OBLIGATED TO PAY THE PRINCIPAL OF, PREMIUM, IF ANY, OR INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO, EXCEPT FROM THE REVENUES AND MONEYS PLEDGED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER OF THE STATE OF MINNESOTA, OR ANY POLITICAL SUBDIVISION OR MUNICIPALITY THEREOF, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF, PREMIUM, IF ANY, OR THE INTEREST ON THE BONDS OR OTHER COSTS INCIDENT THERETO. THE ISSUER HAS NO TAXING POWER. A-1 No. RA- $ UNITED STATES OF AMERICA STATE OF MINNESOTA CITY OF SHAKOPEE, MINNESOTA SOLID WASTE REVENUE BONDS (RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC PROJECT), SERIES 2014 INTEREST RATE MATURITY DATE DATED DATE CUSIP No. , 20 , 20 Registered Owner: CEDE&CO. Principal Amount: [Sixteen Million DOLLARS] THE CITY OF SHAKOPEE, MINNESOTA (the "Issuer"), a municipal corporation and political subdivision organized and existing under the laws of the State of Minnesota (the "State"), for value received, hereby promises to pay (but only out of the sources hereinafter provided)to the registered owner identified above, or registered assigns, on the Maturity Date set forth above (or if this Bond is called for earlier redemption as described herein on the redemption date), the Principal Amount set forth above (the "Principal Amount") and to pay (but only out of the sources hereinafter provided) interest on the balance of said Principal Amount from time to time remaining unpaid from the Interest Payment Date next preceding the date of registration and authentication hereof unless this Bond is registered and authenticated on or prior to the first Interest Payment Date, in which event this Bond shall bear interest from the Dated Date set forth above; provided, however, that if, as shown by the records of the Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for registration of transfer or exchange shall bear interest from the last date to which interest has been paid in full or duly provided for on the Bonds, or, if no interest has been paid or duly provided for on the Bonds, from the Dated Date, until payment of said Principal Amount has been made or duly provided for, at the interest rate specified above, computed on the basis of a 360-day year consisting of twelve 30-day months, payable on 1, 20_, and semi-annually thereafter on each 1 and 1 (each, an "Interest Payment Date") and to pay (but only out of the sources hereinafter provided) interest on overdue principal and, to the extent permitted by law, on overdue interest at the rate then borne by this Bond, except as the provisions hereinafter set forth with respect to redemption or acceleration prior to maturity may become applicable hereto. The principal of and premium, if any, on this Bond are payable upon surrender thereof in lawful money of the United States of America at the payment office in of [ ], or its successors and assigns, as Trustee. Interest payments on this Bond shall be made by the Trustee to the Person who was the registered owner hereof as of the close of business on the Record Date (as hereinafter defined) with respect to each Interest Payment Date (except that, if and to the extent that there shall be a default in the A-2 payment of the interest due hereon on an Interest Payment Date, such defaulted interest shall be paid to the Person in whose name this Bond (or a Bond issued in replacement of this Bond) is registered as of a special record date to be fixed by the Trustee, notice of which shall be given to the Owners of the Bonds of this series not less than 10 days prior thereto) and shall be paid: (a) if this Bond is registered in the book-entry system pursuant to the Indenture, in immediately available funds by no later than 2:30 p.m., New York City time, and (b) if this Bond is not registered in the book-entry system, (i) by bank check mailed by first-class mail on the Interest Payment Date to the registered owner hereof at its address as it appears on the registration books of 1, , , as Registrar or at such other address as is furnished in writing by such registered owner to the Registrar, or (ii) by wire transfer on the Interest Payment Date to any owner of at least $1,000,000 in aggregate principal amount of Bonds of this series (or such lesser amount if such Bonds constitute all of the Bonds of this series then outstanding). This Bond is one of the duly authorized City of Shakopee, Minnesota (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of $ (the "Bonds"). The Bonds are being issued by the Issuer under Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act") pursuant to an Indenture of Trust, dated as of , 2014 (the "Indenture"), between the Issuer and 1, as trustee (the "Trustee," which term shall include any successor trustee). The Bonds are issued in order to (a) provide for the (i) financing or reimbursement of all or a portion of the costs of acquiring, constructing, equipping, installing, and improving an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil,to be located at 6528 County Road 101 East in the City, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a), of the Act (the "Project"), (ii) fund a debt service reserve account for the Bonds and (iii) pay certain costs relating to the issuance of the Bonds, all as permitted under the Act, and (b) to lease the Project to the Company, subject to the Company's agreement to pay the rental and other obligations provided for hereunder. Any term used herein as a defined term but not defined herein shall be defined as in the Indenture. The Bonds are issued pursuant to and in full compliance with the Constitution and laws of the State of Minnesota, particularly the Act, and pursuant to a bond resolution adopted by the Issuer on October 21, 2014, which resolution authorizes the execution and delivery of the Indenture and the Lease Agreement. The Bonds and the obligation to pay interest thereon and premium with respect thereto are special, limited obligations of the Issuer payable solely from the Trust Estate consisting of(i) all right, title and interest of the Issuer (a) in, to and under the Lease Agreement (except its Unassigned Rights), (b) in the amounts payable to the Issuer under the Lease Agreement (excluding amounts which the Issuer is permitted to retain under its Unassigned Rights), and (c) to do any and all other things which the Issuer is or may become entitled to do under the Lease Agreement (excluding its Unassigned Rights); (ii) all right, title and interest of the Issuer in and to all moneys and other obligations which are, from time to time, A-3 deposited or required to be deposited with or held or required to be held by or on behalf of the Trustee in trust under any of the provisions of the Indenture (except moneys or obligations deposited with or paid to the Trustee for payment or redemption of Bonds that are deemed no longer Outstanding hereunder); (iii) all right, title and interest in and to the Security Documents; (iv) all Net Proceeds payable with respect to the Project; and (v) any and all property, rights and interests of every kind or description which, from time to time hereafter, may be sold, transferred, conveyed, assigned, pledged, mortgaged or delivered to the Trustee as additional security under the Indenture (the Trustee is authorized by the Indenture to receive all such property at any time and to hold and apply it subject to the terms of the Indenture), provided, however, there is expressly excepted and excluded from the lien and operation of the Indenture amounts held by the Trustee in the Rebate Fund established under the Indenture. The Bonds are also secured by a Debt Service Reserve Account and other amounts held under the Accounts Agreement. The Bonds shall not be deemed a debt, liability or obligation of the State or any political subdivision or municipality of the State and shall not create or constitute any indebtedness, liability or obligation of the State or any political subdivision or municipality of the State. Neither the State nor any political subdivision or municipality of the State is obligated to pay the principal or interest on the Bonds, and neither the faith and credit nor the taxing power of the State or of any political subdivision or municipality of the State is pledged to the payment of the principal or the interest on the Bonds. The Bonds do not now or shall never constitute a char against the general credit of the Issuer. THIS BOND HAS BEEN ISSUED BY THE ISSUER TO AID IN THE FINANCING OF THE PROJECT TO ACCOMPLISH THE PUBLIC PURPOSES OF THE ACT. The Bonds shall be deliverable in the form of registered Bonds without coupons in the denominations of $100,000 or any dollar and cents denominations in excess thereof (the "Authorized Denomination"). "Record Date"means the fifteenth day of the month immediately preceding each Interest Payment Date. Redemption upon Optional Prepayment. The Bonds maturing on and after 20 , are subject to redemption and payment prior to maturity, in whole or in part, on [any Business Day] [any Interest Payment Date] on or after , 20_, at a redemption price equal to one hundred (100%) of the principal amount thereof, together with accrued interest to the date of redemption, without premium, following receipt by the Issuer and the Trustee of a written notice from the Company pursuant to Section 8.1 of the Lease Agreement and upon prepayment of the Basic Rent needed for such redemption. Redemption upon Mandatory Prepayment. (a) Mandatory Sinking Fund Redemption. The Bonds maturing on 1, 20_ shall be subject to mandatory sinking fund redemption by the Issuer prior to maturity, in part at a redemption price equal to 100%of the principal amount thereof, together with accrued A-4 interest to the date of redemption on each 1 and 1, as follows (the 1, 20 amount to be paid rather than redeemed): Date Principal Amount Maturing 1, 20_ $ 1, 20_ 1, 20 1, 20 * * Final Maturity The Bonds maturing on 1, 20_ shall be subject to mandatory sinking fund redemption by the Issuer prior to maturity, in part at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption on each 1 and 1, as follows (the 1, 20_ amount to be paid rather than redeemed): Date Principal Amount Maturing 1, 20 $ 1, 20_ 1, 20_ 1, 20 * Final Maturity (b) Mandatory Redemption of Tax-Exempt Bonds. The Bonds shall be subject to mandatory redemption in whole on any date from amounts which are to be prepaid by the Company under Section 8.2(b) of the Lease Agreement, at a redemption price equal to [103%] of the principal amount thereof plus interest accrued, if any, to the redemption date within 180 days following a Determination of Taxability. In addition, if in the opinion of Bond Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds outstanding would have the result that interest payable on such Bonds remaining outstanding after such redemption would remain Tax-Exempt, then the Bonds shall be redeemed in part (in such amount as Bond Counsel in such opinion shall have determined is necessary to accomplish that result) at a redemption price equal to [103%] of the principal amount thereof being redeemed plus interest accrued, if any, by such method as the Trustee may deem fair and appropriate. (c) Special Mandatory Redemption from Net Proceeds. Following an occurrence in which the Project shall have been damaged or destroyed, in whole or in part, by fire or other casualty, or if title to, or the temporary use of, all or a part of the Project shall have been condemned by any authority exercising the power of eminent domain to such extent that (i) in the determination of the Company the Project cannot be reasonably rebuilt, repaired, restored or replaced or, substitute land and a substitute Project cannot be acquired or constructed, within a period of six months from the date of notice to the Issuer and the Trustee as required by the Loan Agreement, to the condition thereof immediately preceding such damage, destruction or A-5 condemnation, or (ii) in the determination of the Company, the Company is thereby prevented from carrying on its normal operations at such Project for a period of six months from the date of notice to the Issuer and the Trustee as required by the Lease Agreement, or (iii) in the determination of the Company, the cost of rebuilding, repairing, restoring or replacing or, the cost of substitute land and a substitute Project would exceed the Net Proceeds received, plus the amounts for which the Company is self-insured with respect to the deductible amounts of any such insurance, or (iv) if any required consent of the Trustee or Bondholders as required by the Lease Agreement is not obtained within 60 days of the receipt of the Net Proceeds, or (v) the Company fails to deliver the Restoration or Replacement Plan, the Bonds shall be subject to special mandatory redemption, in whole or in part, on the earliest practicable date thereafter (which date shall be not less than 45 days from the date the Trustee deposits in the Redemption Account of the Bond Fund the Net Proceeds transferred from the Insurance and Condemnation Proceeds Account of the Accounts Agreement as a consequence of such damage, destruction or condemnation), at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption, from the Net Proceeds received and deposited into the Redemption Account. Any Bonds redeemed in part (and not in whole) pursuant to this paragraph shall only be redeemed only if the Trustee receives a certificate of an Authorized Company Representative to the effect (x) that the property damaged or destroyed or the property condemned or taken by eminent domain, was not essential in the Company's operation of the Project and the failure to replace such property will not adversely affect the Company's operations, and (y) the remainder of the Company's property is structurally sound and useable by the Company. (d) Extraordinary Mandatory Redemption. In the event that (i) there shall be at least $100,000 on deposit in the Covenant Compliance Holding Account created under the Accounts Agreement, (ii) the Debt Service Coverage Ratio shall be less that 1.25:1, and (iii) the Majority Bondholder (as defined in the Indenture) directs the Trustee in writing pursuant to Section 3.03(d) of the Indenture to cause Bonds to be redeemed, the Bonds shall be subject to extraordinary mandatory redemption at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption, and the Trustee shall direct in writing the Accounts Bank to transfer to the Redemption Account amounts only in Authorized Denominations to effect such redemption. [(e) Mandatory Redemption Upon Covenant Failure. In the event that the Company shall fail to satisfy the requirements of Section of the Lease Agreement, then an amount of the Bonds then Outstanding as specified in the Lease Agreement shall be subject to mandatory redemption at a redemption price equal to 100% of the principal amount thereof, together with accrued interest to the date of redemption.] Notice of any optional or mandatory redemption shall be given by first-class mail not less than 30 days (except as provided in the Indenture) nor more than 60 days prior to the date fixed for redemption to the Owners of the Bonds that are to be redeemed at the address shown on the registration books of the Registrar on the date such notice is mailed. If less than all of the Bonds of a series are called for redemption, the Trustee shall select the Bonds to be redeemed by such method as the Trustee may deem fair and appropriate. For the purpose of any such selection the Trustee shall assign a separate number for each $100,000 minimum Authorized Denomination of each Bond of a denomination of more than such minimum; provided that, following any such A-6 selection, the portion of each Bond remaining Outstanding shall be in an Authorized Denomination. Any notice of optional redemption of Bonds may state that such redemption is conditioned upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of moneys sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed. In the event such moneys are not so received, the redemption shall not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner in which the notice of redemption was given, that such redemption will not take place. Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, Bonds may be exchanged at the Principal Office of the Registrar for a like aggregate principal amount of Bonds of the same series,tenor and of Authorized Denominations. This Bond is transferable by the person in whose name it is registered, in person, or by its attorney duly authorized in writing, at the Principal Office of the Registrar, but only in the manner, subject to the limitations and upon payment of the charges, if any, provided in the Indenture, and upon surrender and cancellation of this Bond accompanied by a written instrument of transfer in a form approved by the Registrar, duly executed. Upon such transfer a new fully registered Bond or Bonds in Authorized Denominations, for the same aggregate principal amount, will be issued to the transferee in exchange therefor. The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the Trustee may treat the person in whose name this Bond is registered as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Bond be overdue, and neither the Issuer, the Registrar, the Trustee nor any such agent shall be affected by notice to the contrary. The Bonds are equally and ratably secured, to the extent provided in the Indenture, by the pledge thereunder of the Trust Estate. The Issuer has also pledged and assigned to the Trustee as security for the Bonds all other rights and interests of the Issuer under the Lease Agreement (other than the Unassigned Rights). The Owner of this Bond shall have no right to enforce the provisions of the Indenture, or to institute action to enforce the covenants therein, or to take any action with respect to any Event of Default under the Indenture, or to institute, appear in or defend any suit or other proceeding with respect thereto, except as provided in the Indenture. With certain exceptions as provided therein, the Indenture and the Lease Agreement may be modified or amended by the Majority Bondholder. Reference is hereby made to the Indenture, the Lease Agreement, the Security Documents relating to the Bonds, and the Tax Agreement relating to the Series 2014 Bonds, copies of which are on file with the Trustee, for the provisions, among others, with respect to the nature and extent of the rights, duties and obligations of the Issuer, the Company, the Trustee, the Registrar and the Owners of the Bonds. The Owner of this Bond, by the acceptance hereof, is deemed to have agreed and consented to and to be bound by the terms and provisions of the Indenture,the Lease Agreement,the Security Documents, and the Tax Agreement. A-7 The Indenture prescribes the manner in which it may be discharged, including (a) a provision that the Bonds shall be deemed to be paid if moneys sufficient to pay the principal of, premium, if any, and interest on the Bonds and all necessary and proper fees, compensation and expenses of the Trustee and the Registrar, shall have been deposited with the Trustee, after which the Bonds shall no longer be secured by or entitled to the benefits of the Indenture, except for the purposes of registration and exchange of Bonds and of delivery of the Bonds to the Trustee for purchase, and (b) a provision that, if the Bonds mature or are called for redemption pursuant to the Indenture, the Bonds shall be deemed to be paid if Government Obligations, as defined in the Indenture, maturing as to principal and interest in such amounts and at such times as to insure the availability of sufficient moneys to pay the principal of, premium, if any, and interest on the Bonds on and prior to the redemption date or maturity date thereof, and all necessary and proper fees, compensation and expenses of the Issuer, the Trustee and the Registrar, shall have been deposited with the Trustee, after which the Bonds shall no longer be secured by or entitled to the benefits of the Indenture, except for the purposes of registration and exchange of Bonds and of such payment. IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and things required to exist, happen and be performed precedent to and in the execution and delivery of the Indenture and the issuance of this Bond do exist, have happened and have been performed in due time, form and manner as required by law, and that the issuance of this Bond and the issue of which it forms a part, together with all other obligations of the Issuer, does not exceed or violate any constitutional or statutory limitation of indebtedness. This Bond shall not be entitled to any security or benefit under the Indenture, or be valid or become obligatory for any purpose, until this Bond shall have been authenticated by the execution by the Registrar of the certificate of authentication inscribed hereon. [Remainder of Page Intentionally Left Blank] A-8 IN WITNESS WHEREOF, as provided by the Act, the Issuer has caused this Bond to be executed in its name and on its behalf by the manual or duly authorized facsimile signature of its Mayor and City Administrator, the seal of the Issuer having been intentionally omitted as permitted by law, and attested to by the manual or duly authorized facsimile signature of its Finance Director/City Clerk. THE CITY OF SHAKOPEE, MINNESOTA By: Its: Mayor By: Its: City Administrator ATTEST: By: Its: Finance Director/City Clerk A-9 CERTIFICATE OF AUTHENTICATION This is to certify that this Bond is one of the Series 2014 Bonds described in the within- mentioned Indenture. f 1, as Registrar By: Authorized Signatory Date of registration and authentication: A-10 [FORM OF ASSIGNMENT] The following abbreviations, when used in the inscription on the face of the within Bond shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM as tenants in common UNIF GIFT MIN ACT-- TEN ENT as tenants by the entirety Custodian JT TEN as joint tenants with right (Cust) (Minor) - of survivorship and not as under Uniform Gifts to Minors Act of tenants in common (State) Additional abbreviations may also be used though not in the list above. For value received hereby sells, assigns and transfers unto: INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (Please Print or Typewrite Name and Address of Assignee) the within Bond of the CITY OF SHAKOPEE, MINNESOTA and hereby irrevocably constitutes and appoints attorney to register the transfer of said Bond on the books kept for registration thereof with full power of substitution in the premises. Dated: Signature: SIGNATURE GUARANTEED: NOTICE: Signature(s) must be guaranteed by an "eligible guarantor institution" that is a member of or a participant in a "signature guarantee program" (e.g., the Securities Transfer Agents Medallion Program, the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program). A-11 NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. [End of Form of Series 2014 Bond] A-12 EXHIBIT B [FORM OF INVESTOR LETTER] B-1 LEASE AGREEMENT Between CITY OF SHAKOPEE, MINNESOTA as Issuer and Lessor And RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Company and Lessee Relating to: [$16,000,0001 City of Shakopee,Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee,LLC Project), Series 2014 Dated as of ,2014 The rights of the City of Shakopee,Minnesota hereunder(other than Unassigned Rights) have been pledged and assigned to UMB Bank, N.A., as trustee under the Indenture of Trust, dated as of ,2014,between the Issuer and said trustee. TABLE OF CONTENTS Pace ARTICLE I DEFINITIONS 3 Section 1.1. Terms Defined 3 Section 1.2. Rules of Interpretation 3 Section 1.3. Exhibits and Schedules 3 ARTICLE II PARTICULAR COVENANTS, REPRESENTATIONS, WARRANTIES AND AGREEMENTS 5 Section 2.1. Consent to Assignment to the Trustee 5 Section 2.2. Representations and Warranties of the Issuer 5 Section 2.3. Representations and Warranties of the Company 7 Section 2.4. Reporting Requirements 19 Section 2.5. Affirmative Covenants 24 Section 2.6. Negative Covenants 31 Section 2.7. Payment of Basic Rent for Lease Payments. 39 Section 2.8. Continuing Disclosure 40 Section 2.9. Trustee's Right to Perform Company's Covenants; Advances 41 Section 2.10. Indemnification of the Issuer and the Trustee 41 Section 2.11. Damage; Destruction or Condemnation; and Effect of Company's Defaults. 42 Section 2.12. Proceeds of Series 2014 Bonds; Funding of Indenture Funds; Investments; Tax Agreements 46 Section 2.13. Other Amounts Payable by the Company 47 Section 2.14. Assignment and Pledge of Issuer's Rights; Unconditional Obligation. 47 Section 2.15. Indenture Provisions 48 Section 2.16. Exemption from Personal Liability 48 Section 2.17. Notice to Issuer and Trustee of Certain Events 49 Section 2.18. No Recourse to Issuer 49 Section 2.19. Misuse of Bond Proceeds; Litigation Notice 49 ARTICLE III ACQUISITION OF PROJECT BY ISSUER; LEASING OF PROJECT TO COMPANY; ACTIVATION OF CONSTRUCTION ACCOUNT UPON RECEIPT OF NET PROCEEDS OR PROCEEDS OF ADDITIONAL BONDS 51 Section 3.1. Issuer's Agreement to Acquire Project from Company; Company's Agreement to Convey Project to Issuer; and Payment of Acquisition Price. 51 Section 3.2. Conditions to All Construction Fundings Upon Deposit of Net Proceeds or Proceeds of Additional Bonds in Construction Account 52 Section 3.3. Conditions to any Funding From the Acquisition Account or the Construction Account on or after the Completion Date 55 i TABLE OF CONTENTS (Cont.) Page Section 3.4. Disbursements of Proceeds for Construction Resulting From Net Proceeds or Proceeds of Additional Bonds for Payment of Project Costs 56 Section 3.5. Monthly Reports on Construction Progress: Approval of Material Changes in Construction 58 Section 3.6. Disbursements on and after Completion Date 59 Section 3.7. Plans and Specifications; Change Orders Resulting in Changes or Amendments to the Plans 59 Section 3.8. Records 60 Section 3.9. Operation of Project 60 Section 3.10. Right of Access to the Project and Inspection of Records 60 Section 3.11. Authorized Company Representative. 61 Section 3.12. Disbursements from Operating Expense Reserve Account 61 ARTICLE IV ISSUANCE OF Series 2014 BONDS; LEASE OF THE PROJECT 62 Section 4.1. Issuance of Series 2014 Bonds 62 Section 4.2. Lease of the Project to the Company Term of Lease Agreement; Operation and Use of Project 62 Section 4.3. Warranties and Covenants of Issuer as to Title 63 Section 4.4. Warranties and Covenants of Company as to Title 64 ARTICLE V RENTAL PAYMENTS 65 Section 5.1. Basic Rent; Additional Rent. 65 Section 5.2. Basic Rent Payments Assigned; Obligation Absolute 66 Section 5.3. Payment of Administration Expenses and Other Expenses 66 ARTICLE VI ASSIGNMENT 67 Section 6.1. Conditions 67 Section 6.2. Documents Furnished to Issuer and Trustee 67 Section 6.3. Limitation 67 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES 68 Section 7.1. Events of Default 68 Section 7.2. Force Majeure 69 Section 7.3. Remedies 69 Section 7.4. No Remedy Exclusive 70 Section 7.5. Reimbursement of Attorneys' Fees 70 Section 7.6. Waiver of Breach 70 ARTICLE VIII REDEMPTION OF BONDS 71 Section 8.1. Redemption of Bonds 71 Section 8.2. Obligation to Prepay; Prepayment Option. 71 Section 8.3. Compliance with Indenture 72 ii TABLE OF CONTENTS (Cont.) Page ARTICLE IX DEFEASANCE 73 Section 9.1. Defeasance 73 ARTICLE X MISCELLANEOUS 74 Section 10.1. Term of Lease Agreement 74 Section 10.2. Notices 74 Section 10.3. Parties in Interest 74 Section 10.4. Amendments 74 Section 10.5. Counterparts 74 Section 10.6. Severability 74 Section 10.7. Governing Law 74 Section 10.8. Date for identification Purposes Only; Effective Date 74 EXHIBIT A DESCRIPTION OF PROJECT AND PROJECT SITE EXHIBIT B FORM OF MONTHLY CONSTRUCTION PROGRESS REPORT EXHIBIT C FORM OF RESTRICTED PAYMENT CERTIFICATE EXHIBIT D FORM OF INDEPENDENT ENGINEER'S FUNDING CERTIFICATE EXHIBIT E FORM OF FUTURE ADVANCEMENT ENDORSEMENT EXHIBIT F-1 FORM OF COMPLETION CERTIFICATE OF INDEPENDENT ENGINEER EXHIBIT F-2 FORM OF COMPLETION CERTIFICATE OF COMPANY EXHIBIT G FORM OF CONSTRUCTION ADVANCE FUNDING NOTICE EXHIBIT H FORM OF COMPLETION DATE FUNDING NOTICE EXHIBIT I FORM OF CERTIFICATE OF INSURANCE CONSULTANT EXHIBIT J [RESERVED] EXHIBIT K CONSTRUCTION BUDGET EXHIBIT L FORM OF ACQUISITION FUNDING NOTICE SCHEDULE 2.3.16—Contracts Part A—Necessary Project Contracts Part B—Deferred Contracts SCHEDULE 2.3.17—Necessary Security Filings SCHEDULE 2.3.20—Governmental Approvals Part A—Necessary Project Approvals Part B—Deferred Approvals SCHEDULE 2.5A—Insurance Requirements SCHEDULE 2.7—Lease Rental Schedule SCHEDULE 3.2.1—Drawdown Schedule SCHEDULE 3.3.11—Additional Project Contracts iii LEASE AGREEMENT THIS LEASE AGREEMENT, dated as of , 2014 (this "Lease Agreement"), between the CITY OF SHAKOPEE,MINNESOTA (the "Issuer" or"Lessor"), a municipal corporation and political subdivision organized and existing under the laws of the State of Minnesota (the "State") and RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC (the "Company" or the "Lessee"), a limited liability company organized and existing under and by virtue of the laws of the State of Delaware. Capitalized terms used herein and not otherwise defined shall have the meaning ascribed to them in the Indenture (as hereinafter defined). PRELIMINARY STATEMENT: WHEREAS, Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act"), authorize a city to issue revenue obligations to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of a "project," defined in the Act, in part, as any properties, real or personal, used or useful in the abatement or control of noise, air, or water pollution, or in the disposal of solid wastes, in connection with a revenue producing enterprise; and WHEREAS, at the request of the Company and in furtherance of purposes of the Act, the Issuer has determined to issue its revenue bonds designated as City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of[$16,000,000] (the "Series 2014 Bonds"), pursuant to and in accordance with the terms of an Indenture of Trust dated as of , 2014 (the "Indenture") between the Issuer and UMB Bank, N.A., a national banking association, as trustee (the"Trustee"); and WHEREAS, following the adoption by the Issuer on August 7, 2013 of a resolution declaring its official intent to finance, refinance or reimburse for the Company all or a portion of the costs of acquiring, constructing, equipping, installing, and improving an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil, to be located at 6528 County Road 101 East in the City of Shakopee, Minnesota, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a) of the Act (the "Project"), the Company has acquired, constructed, equipped, installed, and improved the Project and will lease the Project to the Issuer pursuant to a [Real Estate, Improvements and Equipment Lease Agreement] dated as of , 2014 (the "Base Lease"), between the Issuer and the Company, in consideration of the Issuer issuing and selling the Series 2014 Bonds; and WHEREAS, pursuant to this Lease Agreement, the Issuer has agreed to (a) provide for the application of the proceeds of the Series 2014 Bonds for the benefit of the Company to be used: (i) for the financing, refinancing or reimbursement of all or a portion of the costs of acquiring, constructing, equipping, installing, and improving the Project (all as more specifically described in Exhibit A to the Lease Agreement); (ii) to fund a debt service reserve account for the Series 2014 Bonds; and (iii) to pay certain costs relating to the issuance of the Series 2014 Bonds, all as 1 permitted under the Act, and (b) lease the Project to the Company, subject to the Company's agreement to pay the rental and other obligations provided for under this Lease Agreement; and WHEREAS, in order to further secure the Company's obligations under this Lease Agreement and to provide for the disbursement of funds for the payment of Project Costs and the capture and allocation of the revenues from the Project following the Completion Date, the Company, the Securities Intermediary, the Accounts Bank and the Trustee have entered into that certain Accounts Agreement dated as of , 2014 (the "Accounts Agreement") which, together with the Indenture, this Lease Agreement and the other Bond Documents, govern the application and allocation of the proceeds of the Series 2014 Bonds and other funds to be provided by or on behalf of the Company, and the application of revenues from the Project; and WHEREAS, pursuant to the Indenture, the Issuer will assign all of its right, title and interest in this Lease Agreement (except for certain Unassigned Rights)to the Trustee as security for the payment of the Series 2014 Bonds; and the Series 2014 Bonds, together with interest thereon, will be payable by the Issuer solely from the payments to be made by the Company under this Lease Agreement, the Accounts Agreement and the Security Documents, from certain funds and accounts pledged to the Trustee under the Indenture and as otherwise provided in the Indenture and the Accounts Agreement. NOW, THEREFORE, IN CONSIDERATION of the premises, the respective representations and agreements contained herein, and for other good and valuable consideration, the receipt whereof is hereby acknowledged, and in order to secure the payment of the principal of, premium, if any, and interest payable on the Series 2014 Bonds and under this Lease Agreement and the performance of all the covenants of the Company contained herein, intending to be legally bound, the Company and the Issuer hereby covenant and agree as follows: (Remainder of Page Intentionally Left Blank) 2 ARTICLE I DEFINITIONS Section 1.1. Terms Defined. The capitalized terms used in this Lease Agreement, unless the context requires otherwise or unless otherwise defined herein, shall have the same meanings as set forth in the Indenture. Section 1.2. Rules of Interpretation. For all purposes of this Lease Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) "This Lease Agreement" means this instrument as originally executed and as it may from time to time be supplemented or amended pursuant to the applicable provisions hereof. (b) The words "herein" "hereof' and "hereunder" and other words of similar import refer to this Lease Agreement as a whole and not to any particular Article, Section or other subdivision. (c) References in this instrument to masculine shall include the feminine and neuter and vice versa, and references herein to the singular shall include the plural and vice versa unless the context or use indicates otherwise. (d) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles from time to time in effect in the United States. (e) Any capitalized terms defined elsewhere in this Lease Agreement shall have the meanings therein prescribed for them. (f) This Lease Agreement shall be interpreted and construed in accordance with the laws of the State. Section 1.3. Exhibits and Schedules. The following Exhibits and Schedules are attached to and by reference made a part of this Lease Agreement: EXHIBIT A: DESCRIPTION OF PROJECT AND PROJECT SITE EXHIBIT B: FORM OF MONTHLY CONSTRUCTION PROGRESS REPORT EXHIBIT C: FORM OF RESTRICTED PAYMENT CERTIFICATE EXHIBIT D: FORM OF INDEPENDENT ENGINEER'S FUNDING CERTIFICATE EXHIBIT E: FUTURE ADVANCEMENT ENDORSEMENT EXHIBIT F-1: FORM OF COMPLETION CERTIFICATE OF INDEPENDENT ENGINEER EXHIBIT F-2 FORM OF COMPLETION CERTIFICATE OF COMPANY EXHIBIT G: FORM OF CONSTRUCTION ADVANCE FUNDING NOTICE EXHIBIT H FORM OF COMPLETION DATE FUNDING NOTICE EXHIBIT I: FORM OF CERTIFICATE OF INSURANCE CONSULTANT EXHIBIT J: [RESERVED] EXHIBIT K: CONSTRUCTION BUDGET 3 EXHIBIT L FORM OF ACQUISITION FUNDING NOTICE SCHEDULE 2.3.16—Contracts Part A—Necessary Project Contracts Part B—Deferred Contracts SCHEDULE 2.3.17 Necessary Security Filings SCHEDULE 2.3.20—Governmental Approvals Part A—Necessary Project Approvals, Part B—Deferred Approvals SCHEDULE 2.5.4—Insurance Requirements SCHEDULE 2.7—Lease Rental Schedule SCHEDULE 3.2.1—Drawdown Schedule (END OF ARTICLE I) 4 ARTICLE II PARTICULAR COVENANTS, REPRESENTATIONS, WARRANTIES AND AGREEMENTS Section 2.1. Consent to Assignment to the Trustee. The Company acknowledges and consents to the pledge and assignment of the Issuer's rights hereunder, other than Unassigned Rights, to the Trustee pursuant to the Indenture, and the Company and the Issuer agree that only the Trustee may enforce the rights, remedies and privileges granted to the Issuer hereunder, other than the Unassigned Rights. Section 2.2. Representations and Warranties of the Issuer. The Issuer makes the following representations and warranties as the basis for its undertaking herein contained: Section 2.2.1. Organization and Authority. The Issuer (a) is a municipal corporation and political subdivision organized and existing under the laws of the State, and (b) has lawful power and authority pursuant to the Act to (i) issue the Series 2014 Bonds for the purposes set forth in this Lease Agreement and in the Indenture, (ii) to enter into, execute and deliver this Lease Agreement and the other Bond Documents to which it is a party and (iii) to carry out its obligations hereunder and thereunder, and (c) by all necessary corporate action has been duly authorized to execute and deliver this Lease Agreement and any other Bond Documents required to be executed and delivered by it in connection with the issuance of the Series 2014 Bonds, acting by and through its Authorized Issuer Representatives. Section 2.2.2. Compliance with Open Meeting Laws. Based upon the advice of Bond Counsel, all actions of the Issuer with respect to the issuance of the Series 2014 Bonds occurred at meetings held after notice given in accordance with the Issuer's procedures and applicable law, which were open to the public and at which quorums were present and acting throughout, and said actions appear of public record in the minute books of the Issuer. Section 2.2.3. Findings and Determinations. Based upon information presented by the Company and upon the advice of Bond Counsel, the Issuer hereby finds and determines that the Project constitutes a "project," within the meaning of Section 469.153, subdivision 2(a), of the Act; the Project will assist in the disposal of solid wastes in connection with a revenue producing enterprise and that the Project and the issuance of the Series 2014 Bonds to finance the Project will be in the public interest of the citizens of the City and of the State, and will be in furtherance of the public purposes for which the Issuer was created and is existing, as provided in the Act. Based upon information presented by the Company and upon the advice of Bond Counsel, the Issuer has found and determined and hereby finds and determines that all requirements of the Act with respect to the issuance of the Series 2014 Bonds and the execution of this Lease Agreement and the Base Lease have been complied with and that issuing the Series 2014 Bonds and entering into this Lease Agreement and the Base Lease will be in furtherance of the purposes of the Act. 5 Section 2.2.4. Absence of Conflict of Interest. No director, member, officer or other official of the Issuer is employed by the Company or has any interest in the transactions contemplated by this Lease Agreement. Section 2.2.5. No Representation of Suitability. The Issuer makes no representation or warranty concerning the suitability of the Project for the purpose for which it is being undertaken by the Company. The Issuer has not made any independent investigation as to the creditworthiness of the Company. Any bond purchaser, assignee of this Lease Agreement or any other party with any interest in this transaction, should make its own independent investigation as to the creditworthiness and feasibility of the Project, independent of any representation or warranties of the Issuer. Section 2.2.6. No Default. There is no default of the Issuer in the payment of the principal of or interest on any of its indebtedness for borrowed money or under any instrument or instruments or agreements under and subject to which any indebtedness for borrowed money has been incurred which does or could affect the validity and enforceability of the Bond Documents to which the Issuer is a party (the "Issuer Documents") or the ability of the Issuer to perform its obligations thereunder or hereunder, and no event has occurred and is continuing under the provisions of any such instrument or agreement which constitutes or, with the lapse of time or the giving of notice, or both, would constitute such a default. Section 2.2.7. Common Plan of Finance. With respect to the Series 2014 Bonds, there are no other federally tax-exempt obligations of the Issuer that have been, are being or will be (i) sold at substantially the same time, (ii) sold pursuant to the same plan of financing, and (iii) reasonably expected to be paid from substantially the same source of funds. Section 2.2.8. Absence of Litigation. To the best of its knowledge, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending or threatened against the Issuer with respect to (i)the organization and existence of the Issuer, (ii) its Issuer to execute or deliver the Issuer Documents or to perform its obligations thereunder or hereunder or to assign the same, (iii) the validity or enforceability of any of such instruments or the transactions contemplated thereby, (iv) the title of any officer of the Issuer who executed such instruments, or (v) any Issuer or proceedings related to the execution and delivery of such instruments on behalf of the Issuer. No such Issuer or proceedings have been repealed, revoked, rescinded or amended and all are in full force and effect. Section 2.2.9. No Violation of Act, Laws, Rules or Regulations. To the best of its knowledge, the Issuer is not in violation of the Act or, to its knowledge, any existing law, rule or regulation applicable to it which would affect its existence or the validity hereof Concurrently with the Closing Date, the Issuer shall execute and deliver a certificate reaffirming the foregoing representations and warranties as of the Closing Date. 6 Section 2.3. Representations and Warranties of the Company. The Company makes the following representations and warranties as the basis for its undertaking herein contained: Section 2.3.1. Organization and Authority. The Company is a limited liability company organized and existing under the laws of the State of Delaware and is duly authorized to transact business in the State and in such other states where authorization to do business shall be required by Law. The Company has all requisite power and authority under the laws of the State, its Articles of Organization and Operating Agreement to enter into, perform its obligations under and to exercise its rights under this Lease Agreement, the Base Lease, the Bond Guaranty, the Mortgage, the Collateral Assignment of Contracts (and each of the contracts or agreements that are the subjects of such Collateral Agreements), the other Security Documents to which the Company is a party, the Continuing Disclosure Agreement and the Bond Purchase Agreement (collectively, the "Company Agreements"). Section 2.3.2. Due Authorization. The Company has duly authorized all necessary action to be taken by it for (i) the execution and delivery of the Company Agreements and the Limited Offering Memorandum, (ii) the approval of the Company Agreements and the Limited Offering Memorandum, and (iii)the execution, delivery and performance of the Company Agreements, and any and all other such agreements, documents and certificates as may be required to be executed, delivered and performed by the Company in order to carry out, effectuate and consummate the transactions contemplated on the Company's part by the Company Agreements and the Limited Offering Memorandum. Section 2.3.3. Binding Effect. The Company Agreements are valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject any bankruptcy, reorganization, insolvency, moratorium or laws affecting the enforceability of creditors' rights generally, and subject to the availability of general equity principles. Section 2.3.4. No Conflicting Agreements. The execution and delivery by the Company of the Company Agreements and the Limited Offering Memorandum, compliance with the provisions of any and all of the foregoing documents, and the application of the proceeds of the Series 2014 Bonds by the Company as represented in the Tax Agreement, do not and will not conflict with or result in the breach of any of the terms, conditions or provisions of, or constitute a default under, (i) the Articles of Organization, as amended, or the Operating Agreement, as amended, of the Company, or (ii) any agreement, indenture, mortgage, lease, or instrument by which the Company or any of its property is bound or, to its knowledge, any existing law or court or administrative regulation, decree or order as presently construed which is applicable to the Company or any of its property and, in the case of clause (ii), any such breach could not reasonably be expected to result in a Material Adverse Effect. Neither the Company's consummation of the transactions contemplated on its part thereby, nor the Company's fulfillment of or compliance with the terms and conditions of the Company Agreements, conflicts with or results in a material breach of the Articles of Organization 7 or the Operating Agreement, or any material agreement or instrument to which the Company is now a party or by which the Company is bound (except for any such breaches for which the Company has obtained a waiver or a required consent), or constitutes a material default (or would constitute a material default with due notice or the passage of time or both)under any of the foregoing. Section 2.3.5. Approval of Indenture. The Company has received an executed counterpart of the Indenture and hereby consents to and approves of and understands the provisions thereof, and the rights of the Trustee thereunder and hereunder, as a result of the Issuer's assignment, excepting for Unassigned Rights, of this Lease Agreement to the Trustee pursuant to the terms of the Indenture. Section 2.3.6. Certain Representations to Bond Counsel. The information relating to the Project and the use of the proceeds of the Bonds as contained in the Company Agreements may be relied upon by Kennedy & Graven, Chartered, as Bond Counsel, and such information is true and correct in all material respects. Section 2.3.7. Tax-Exempt Status. (a) The Company does not, as of the date of issuance of the Series 2014 Bonds, reasonably expect any use of moneys derived from the proceeds of the Series 2014 Bonds or any investment or reinvestment thereof or from the sale of any portion of the Project financed thereby which would cause the Series 2014 Bonds to be classified as "arbitrage bonds" within the meaning of Section 148 of the Code. The Company represents to the Issuer that it will allocate the proceeds of the Series 2014 Bonds to the acquisition, construction, equipping, installing and improving of the Project substantially as described in the Tax Agreement. (b) The Company covenants with the Issuer and for and on behalf of the Owners of the Series 2014 Bonds from time to time outstanding that so long as any of the Series 2014 Bonds remain outstanding, moneys on deposit in any Fund or Account in connection with such Bonds, whether or not such moneys were derived from the proceeds of the sale of the Series 2014 Bonds or from any other sources, will not be used in a manner which will cause the Series 2014 Bonds to be "arbitrage bonds," within the meaning of Section 148 of the Code, and any Treasury Regulations promulgated thereunder, as the same exist on this date, or may from time to time hereafter be amended, supplemented or revised. The Company also covenants for the benefit of the Beneficial Owners of the Series 2014 Bonds to comply with all of the provisions of the Tax Agreement. The Company reserves the right, however, to make any investment of such moneys permitted by the laws of the State, if, when and to the extent that said Section 148 or the Treasury Regulations promulgated thereunder shall be repealed or relaxed or shall be held void by final judgment of a court of competent jurisdiction, but only upon receipt of an opinion of Bond Counsel with respect to such investment that such investment will not affect the exclusion of the interest on the Series 2014 Bonds from gross income of the owners thereof for federal income tax purposes. 8 (c) The Company agrees that it will take such actions as are necessary or appropriate and within its control to take to comply with the provisions of the Code and the Treasury Regulations promulgated thereunder in order to avoid any loss of any the exclusion of interest on the Series 2014 Bonds from gross income of the owners thereof for federal income tax purposes, and will not act or fail to act in any other manner which would adversely affect such exclusion. In connection with the foregoing, the Company acknowledges and agrees to comply with the provisions of the Tax Agreement. (d) The Company acknowledges that in the event of an examination by the Internal Revenue Service of the exclusion of interest on the Series 2014 Bonds from gross income of the owners thereof for federal income tax purposes, the Issuer may be treated as a "taxpayer" in such examination, and the Company agrees that it will respond, and will direct the Issuer to respond, in a commercially reasonable manner to any inquiries from the Internal Revenue Service in connection with such an examination. The Issuer covenants that it will cooperate with the Company, at the Company's expense and at its direction, in connection with such examination. (e) The Company further covenants, with respect to the Series 2014 Bonds, that no later than 45 days following each fifth anniversary (but in any event, as specified in the Tax Agreement) of the issuance of the Series 2014 Bonds and within 45 days following the retirement of the last of the Series 2014 Bonds to be retired, the Company shall provide to the Trustee a written certificate of an Authorized Company Representative stating that either (a) no rebate payments are then required to be made to the United States because of the existence of one or more exceptions from the rebate provisions contained in Section 148(f) of the Code and the Treasury Regulations relating to the Tax- Exempt bond provisions of the Code (the "Rebate Provisions"), or (b) the Company has made (or caused to be made) a calculation of the amount of rebate owed pursuant to the Rebate Provisions and either (i) no rebate was then due and owing with respect to the Series 2014 Bonds, or (ii) rebate (the amount of which shall be specified) has been calculated and will be timely paid to the United States with respect to the Series 2014 Bonds. The Company acknowledges that its obligations under this Section 2.3.7 are supplemental to, and not in lieu of, the Rebate Provisions set forth in the Tax Agreement. If any payment is required by the Rebate Provisions, the Company shall prepare or cause to be prepared a Form 8038-T or other appropriate form and shall provide the funds to pay the same (taking into account any funds on hand in the Rebate Fund). An Authorized Issuer Representative shall sign such form and the Company shall cause it to be properly and timely filed along with such payment with the Internal Revenue Service. (f) The portion of Project that is financed with federally tax-exempt bonds constitutes and will constitute Exempt Facilities and consist of those facilities described in the Tax Agreement and, in part, Exhibit A hereto (as such Exhibit A is from time to time amended or supplemented in accordance with 9 Section 3.7 hereof), and the Company shall not consent to any changes in the Project which would adversely affect the Tax-Exempt status of the Series 2014 Bonds or affect the qualification of the Project as a "project" under the Act. The Company covenants that at all times when any Series 2014 Bonds are outstanding,the Project will be geographically located within the Jurisdiction. (g) The portion of the Project that is financed by the Series 2014 Bonds constitutes, and will constitute at all times during the term of this Lease Agreement, either land or property of a character subject to the allowance for depreciation under the Code; at least 95% of the net proceeds of the Series 2014 Bonds are being allocated for federal income tax purposes to financing Qualified Project Costs; and all expenditures for and all Qualified Project Costs will be charged to a capital account for federal income tax purposes, or would be so chargeable either with a proper election or but for a proper election to deduct. In estimating such Qualified Project Costs, no amount has been included which, under the federal income tax laws, was or will be deductible by the Company in the year in which it was paid or incurred other than through an allowance for depreciation. No portion of the proceeds from the sale of the Series 2014 Bonds will be used to provide working capital or to finance inventory, within the meaning of the Code. (h) Except for (1) preliminary expenditures incurred prior to the commencement of acquisition, construction, or rehabilitation of the Project that do not exceed twenty percent (20%) of the aggregate issue price of the Series 2014 Bonds, (2) costs of issuance and (3) other amounts that do not exceed $100,000, no net proceeds of the Series 2014 Bonds will be allocated to any expenditure for costs of the Project paid prior to the date 60 days before August 7, 2013, which is the date on which the Issuer adopted its declaration of official intent, as supplemented, with respect to the Project. (i) The information furnished by the Company and used by the Issuer in preparing the IRS Form 8038, Information Return for Tax-Exempt Private Activity Bond Issues, which has been filed by or on behalf of the Issuer with the Internal Revenue Service Center in Ogden, Utah, pursuant to Section 149(e) of the Code, was true and complete as of the date of filing of said Form 8038. Section 2.3.8. Pending Litigation. No litigation, proceedings or investigations are pending, or to the knowledge of the Company, threatened against the Company seeking to restrain, enjoin or in any way limit the approval or the execution and delivery of the Company Agreements and the Limited Offering Memorandum, or which would in any manner challenge or adversely affect the power and authority of the Company to enter into and carry out the transactions described in or contemplated by, or the execution, delivery, validity or performance by the Company of the Company Agreements and the Limited Offering Memorandum. In addition, except as described in the Limited Offering Memorandum, no litigation, proceedings or investigations are pending or, to the knowledge of the Company, threatened in writing against the Company, except litigation, proceedings or investigations involving claims for which the 10 probable ultimate recoveries and the estimated costs and expenses of defense, in the opinion of the Company, (i) will be entirely within the applicable insurance policy limits (subject to applicable deductibles) or are not in excess of the total of the available assets held under applicable self-insurance programs or (ii) will not have a material adverse effect on the operations or condition, financial or otherwise, of the Company. Section 2.3.9. Truthfulness of Information; Disclosure. (a) The information provided by the Company in writing and used in the preparation of or contained in (i) the Bond Documents to which it is a party, (ii) the Tax Agreement, (iii) any other Transaction Document to which it is a party, and (iii) any certificate, document, written statement or other instrument furnished to the Trustee or any Bondholder by or on behalf of the Company, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein or herein not misleading. There is no fact which the Company has not disclosed to the Issuer or the Trustee in writing which materially adversely affects or, so far as the Company can now foresee, will materially adversely affect the financial condition of the Company, the ability of the Company to operate and maintain the Project or the Company's ability to make payments under this Lease Agreement when and as the same become due and payable. (b) The information provided by the Company in writing and used in the preparation of or contained in the Limited Offering Memorandum, does not contain any untrue statement of a material fact relating to the Company or the Project and does not omit to state a material fact relating to the Company or the Project necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. (c) Nothing has come to the attention of the Company which would materially and adversely affect or in the future may (so far as the Company can now reasonably foresee) materially and adversely affect the ownership or operation of the Project by the Company or any other transactions contemplated by the Transaction Documents which has not been disclosed in writing to the Trustee or in the certificates, documents, and instruments furnished to the Issuer or the Trustee by or on behalf of the Company prior to the date of execution of this Lease Agreement in connection with the transactions contemplated hereby. Section 2.3.10. Compliance with ERISA. Compliance by the Company with the provisions of the Company Agreements will not involve, to the extent applicable, any prohibited transaction within the meaning of the Employee Retirement Income Security Act of 1974, as amended (herein sometimes referred to as "ERISA"), or Section 4975 of the Code. No "employee pension benefit plans", that are subject to Title IV of ERISA (herein sometimes referred to as "Plans"), maintained by the Company, nor any trust created thereunder, have incurred any "accumulated funding deficiency" as defined in Section 302 of ERISA, to the extent applicable and the present value of all benefits 11 vested under all Plans, if any, did not exceed, as of the last annual valuation date, the value of the assets of the Plans allocable to such vested benefits. Section 2.3.11. No Defaults. To the knowledge of the Company, after making due inquiry with respect thereto, no event has occurred and no condition exists which would constitute an Event of Default under this Lease Agreement or any of the other Bond Documents or which, with the lapse of time or with the giving of notice or both, would become an "Event of Default" under this Lease Agreement or any of the other Bond Documents. To the knowledge of the Company, after making due inquiry with respect thereto, the Company is not in default or violation in any material respect under any charter instrument, operating agreement, bylaw, or other agreement or instrument to which it is a party or by which it may be bound. Section 2.3.12. Compliance with Laws. To the best of the Company's knowledge, after due inquiry, the Company is in compliance in all material respects with all Laws applicable to it or to any of its property, business operations, employees or transactions. Section 2.3.13. Environmental Warranties. (a) (i) The Company and its Environmental Affiliates are in compliance in all material respects with all applicable Environmental Laws, (ii)the Company and its Environmental Affiliates have all Environmental Approvals required to operate their businesses as presently conducted or as reasonably anticipated to be conducted and are in compliance in all material respects with the terms and conditions thereof, (iii) neither the Company nor any of its Environmental Affiliates has received any written communication (other than any such communication that the Trustee has agreed in writing is not materially adverse) from a Governmental Authority that alleges that the Company or any Environmental Affiliate is not in compliance in all material respects with all Environmental Laws and Environmental Approvals, and (iv) there are no circumstances that may prevent or interfere in the future with the Company's compliance in all material respects with all applicable Environmental Laws and Environmental Approvals. (b) There is no Environmental Claim pending or, to the knowledge of the Company, threatened against the Company or the Project. To the knowledge of the Company, there is no Environmental Claim pending or threatened against any Environmental Affiliate. (c) There are no present or past actions, activities, circumstances, conditions, events or incidents, including the release, emission, discharge, presence or disposal of any Material of Environmental Concern, that could reasonably be expected to form the basis of any Environmental Claim against the Company or any Environmental Affiliate or could otherwise reasonably be expected to interfere with the construction or operation of the Project. 12 (d) Without in any way limiting the generality of the foregoing, (i) there are no on-site or off-site locations in which the Company or, to the knowledge of Company, any Environmental Affiliate has stored, disposed or arranged for the disposal of Materials of Environmental Concern that could reasonably be expected to form the basis of an Environmental Claim, (ii)there are no underground storage tanks located or to be located on property owned or leased by the Company, (iii) there is no asbestos or lead paint contained in or forming part of any building, building component, structure or office space owned or leased by the Company, and (iv) no polychlorinated biphenyls (PCBs) are or will be used or stored at any property owned or leased by the Company, except in such form, condition and quantity as could not reasonably be expected to result in an Environmental Claim. (e) The Company has not received any letter or request for information under Section 104 of the CERCLA, or comparable state laws, and to the knowledge of the Company, none of the operations of the Company is the subject of any investigation by a Governmental Authority evaluating whether any remedial action is needed to respond to a release or threatened release of any Material of Environmental Concern at the Project or at any other location, including any location to which the Company has transported, or arranged for the transportation of, any Material of Environmental Concern with respect to the Project. Section 2.3.14. Accurate Financial and other Information. (a) Each of the financial statements of the Company delivered pursuant hereto has been prepared in accordance with GAAP, and fairly presents in all material respects the financial condition of the Company as at the dates thereof and the results of their respective operations for the period then ended (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnotes). (b) The assumptions constituting the basis on which the Company prepared the Construction Budget (in connection with any Restoration or Replacement Plan or the completion or expansion of the Project with the proceeds of any Additional Bonds) and the Financial Pro Forma that are in effect on each date this representation is made or deemed repeated, and the numbers set forth therein, were developed and consistently utilized in good faith and are reasonable and represent the Company's best estimate as of the date prepared as to the matters contained therein, based on all information known to the Company. (c) The Company represents and warrants that the Completion Date occurred on , 2014 and that the Performance Tests were satisfied on , 2014 as evidenced the execution and delivery of the Completion Certificate of the Independent Engineer and the Completion Certificate of the Company. 13 (d) The Company believes in good faith that the development, engineering, construction, testing and start-up of the Project have been achieved in a sound and workmanlike manner in accordance with the Construction Budget and all Transaction Documents and that the use, ownership, operation and maintenance of the Project are economically feasible and technically feasible as contemplated by the Transaction Documents. (e) The information provided by the Company in the Limited Offering Memorandum prepared in connection with the offering of the Bonds, taken as a whole over the life of the Project, is, to the best knowledge of the Company, true, complete, and accurate in all material respects, as of the date thereof, and the financial projections contained therein are based on assumptions that the Company believed to be reasonable at the time. Section 2.3.15. Solvency. (a) The Company is Solvent; (b) the incurring of the obligations under this Lease Agreement, together with all other obligations to construct the Project, does not and will not render the Company not Solvent; (c) the Company has made adequate provision for the timely payment of all debts and account payables to its creditors in addition to the obligations of the Company under Bond Documents; and (d)the Company has not entered into this transaction to provide preferential treatment to the Bondholders or to any other creditor in anticipation of seeking relief under federal or state bankruptcy or insolvency laws. Section 2.3.16. Contracts. As of the Closing Date: (a) All Project Contracts to which the Company is a party or by which any of its properties is bound, including those that are required to be obtained by the Company in connection with the construction and operation of the Project, other than the Bond Documents and other than any such contracts that would not be deemed an Additional Project Contract within the meaning of such term, are listed in Part A of Schedule 2.3.16 (collectively, the "Necessary Project Contracts") and shall include all Feedstock Supply Contracts and Product Off- take Contracts whether or not such contracts would be deemed an Additional Project Contract; (b) The Necessary Project Contracts listed in Part A of Schedule 2.3.16 have been obtained and are in full force and effect; (c) The Necessary Project Contracts listed in Part B of Schedule 2.3.16 are not required to be obtained prior to the Closing Date (collectively, the "Deferred Contracts") and have not yet been obtained; and (d) Part B of Schedule 2.3.16 specifies the approximate date by which, or stage of construction or operation for which, each Deferred Contract included therein is required to be obtained. (e) As of each date this representation and warranty is made or deemed repeated (being the Closing Date with respect to those Necessary Project 14 Contracts listed on Part A of Schedule 2.3.16 and being the date of execution and delivery of each Deferred Contract listed on Part B of Schedule 2.3.16): (i) to the knowledge of the Company, it is not aware of any misrepresentations or false statements made by a Project Party in any Necessary Project Contract to which such Project Party is a party as of the date(s)made or deemed repeated; (ii) there are no material contracts, agreements, instruments or documents between the Company and any other Person relating to the Company or the Project other than (A) the Bond Documents, (B) the agreements listed in Schedule 2.3.16 and (C) any other agreements permitted by this Lease Agreement; (iii) solely with respect the application of Net Proceeds or the proceeds of Additional Bonds issued to expand or complete the Project, there have been no Change Orders under the Construction Contract, other than in accordance with Section 2.6.14 hereof; and (iv) to the knowledge of the Company, it is not aware of any conditions precedent to the obligations of the respective parties under the Necessary Project Contracts which have been executed as of the date this representation is made or deemed repeated that have not been satisfied or not waived by the parties thereto, except for such conditions precedent that do not and cannot be satisfied until a later stage of development of the Project. (f) On each Funding Date, all Necessary Project Contracts (including all Deferred Contracts) which as of such Funding Date are required to be in place, have been duly executed and delivered and are in full force and effect. Section 2.3.17. Collateral. "Collateral" means all of the real property, personal property and rights granted, pledged or assigned to the Trustee by the Company or the Pledgor to secure the Bonds and all of the other obligations of the Company or the Pledgor under the Bond Documents: (a) The Collateral includes all of the Equity Interests in, and all of the tangible and intangible assets of, the Company, including all moneys held in the Funds and Accounts created under the Indenture as well as investment earnings thereon, excepting for amounts on deposit in the Rebate Fund. (b) The Liens and security interests granted to the Trustee pursuant to the Security Documents in effect on each date this representation is made or deemed repeated (i) constitute, as to personal property included in the Collateral, a valid first-priority security interest in such Collateral and(ii) constitute, as to the Encumbered Property included in the Collateral, a valid first-priority Lien of record in the Encumbered Property, in each case subject only to Permitted Encumbrances. 15 (c) The security interest granted to the Trustee pursuant to the Security Documents in the Collateral consisting of personal property will be perfected (i) with respect to any property that can be perfected by filing, upon the filing of UCC financing statements, (ii) with respect to any Funds or Accounts that can be perfected solely by control, upon execution of the Indenture, and (iii) with respect to any property (if any) that can be perfected solely by possession, upon the Trustee receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or otherwise as aforesaid, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of mortgage, lien, security interest, encumbrance, assignment or otherwise, in each case subject only to Permitted Encumbrances. After giving effect to the filings, registrations and giving of notice referred to in this sentence, all such action as is necessary has been taken to establish and perfect the Trustee's rights in and to the Collateral covered by the Security Documents in effect on the date this representation is made or deemed repeated to the extent the Trustee's security interest can be perfected by filing, including any recordation, filing, registration, giving of notice or other similar action. No filing, recordation, re- filing or re-recording other than those listed on Schedule 2.3.17 (as the same may be updated at the written request of the Company, with the written agreement of the Trustee, following any change in applicable Law) is necessary to perfect (or maintain the perfection of) the interest, title or Liens of the Security Documents (to the extent the Trustee's security interest can be perfected by filing or recording), and on and as of each relevant date on which this representation and warranty is made or deemed repeated, all such filings or recordings have been made. The Company and the Pledgor have properly delivered or caused to be delivered to the Trustee, or provided the Trustee control of, all collateral relating to assets of or equity in the Company that requires perfection of the Liens and security interests described above by possession or control. All or substantially all of the Collateral relating to assets of or equity in the Company, including the Encumbered Property, is or will (when acquired)be located on the Project Site. Section 2.3.18. Property Rights,Utilities, Supplies,Etc. (a) To the knowledge of the Company, all material property interests, utility services, means of transportation, facilities and other materials necessary for the development, engineering, construction,testing, start-up, use and operation of the Project (including, as necessary, gas, roads, rail transport, electrical, water and sewage services and facilities) are, or will be when needed, available to the Project, and arrangements in respect thereof have been made on commercially reasonable terms. The Company shall pay the cost thereof to the extent not paid by proceeds of the Bonds. (b) To the knowledge of the Company, there are no material supplies, materials or equipment necessary for operation or maintenance of the Project that are not available on commercially reasonable terms consistent with the Operating Budget, as applicable. 16 Section 2.3.19. Insurance. All insurance required to be obtained and maintained pursuant to the Bond Documents by the Company is in full force and effect as of each date this representation is made or deemed repeated and complies with the insurance requirements set forth in Section 2.5.4 hereof All premiums then due and payable on all such insurance have been paid. To the knowledge of the Company, all insurance required to be obtained and maintained by any other Person with respect to the Project to protect, directly or indirectly, against loss or liability to the Company, the Project or any secured party (including in connection with construction obligations of other Persons), as of the date this representation is made or deemed repeated, pursuant to any Necessary Project Contract has been obtained, is in full force and effect and complies with the insurance requirements set forth herein and is otherwise in all material respects in accordance with such Necessary Project Contract. Section 2.3.20. Governmental Approvals. As of the Closing Date: (a) All Governmental Approvals that are required to be obtained by the Company in connection with (i) the due execution, delivery and performance by it of the Bond Documents to which it is a party, (ii) the ownership, use, construction and operation of the Project as contemplated by the Bond Documents, and (iii) the grant by the Company and the Pledgor of the Liens granted under the Security Documents and the validity, perfection and enforceability thereof (the "Necessary Project Approvals") are listed in Schedule 2.3.20; (b) The Necessary Project Approvals listed in Part A of Schedule 2.3.20 have been obtained, are in full force and effect, are properly in the name of the appropriate Person, are final and non-appealable; (c) the Necessary Project Approvals listed in Part B of Schedule 2.3.20 are not required under applicable Laws to be obtained prior to the Closing Date (collectively,the "Deferred Approvals") and are ministerial in nature or are of a type that can be obtained, as required, in the normal course of development and construction of the Project; and (d) Part B of Schedule 2.3.20 specifies the date by which, or stage of construction or operation for which, each Deferred Approval included therein is required to be obtained. (e) On each Funding Date, all Necessary Project Approvals (including all Deferred Approvals) which as of such Funding Date are required to be obtained have been obtained, are in full force and effect, are properly in the name of the appropriate Person, and are final and non-appealable. (f) The Company may update and correct, with approval of the Trustee, any reference to a Necessary Project Approval on Schedule 2.3.20 that has been replaced in accordance with applicable Law. 17 (g) The information set forth in each application (including any updates or supplements thereto) submitted by or on behalf of the Company in connection with each Necessary Project Approval that has been submitted as of the date this representation is made or deemed repeated, was accurate and complete in all material respects at the time of submission and continues to be accurate and complete in all material respects, in each case to the extent required for the issuance or continued effectiveness of such Necessary Project Approval (except, with respect to continued effectiveness, for Necessary Project Approvals that are subject to a supplemental filing shown on Part B of Schedule 2.3.20 that has not yet been filed), and the Company does not have any knowledge of any event, act, condition or state of facts inconsistent with such information. (h) The Company reasonably believes that each Necessary Project Approval that remains to be obtained will be obtained in a final and non- appealable form in the ordinary course without undue delay or material expense and without unanticipated expensive or burdensome conditions prior to the time it is required to be obtained under applicable Law. There is no action, suit, investigation or proceeding pending or, to the knowledge of the Company, threatened in writing that would reasonably be expected to result in the material modification, rescission, termination, or suspension of any Governmental Approval referred to in Schedule 2.3.20 obtained prior to the date this representation is made or deemed made. Section 2.3.21. No Prior Pledge. Except for Permitted Encumbrances, neither the Project, nor any of the payments or amounts to be received by the Company thereunder have been or will be mortgaged, pledged, or hypothecated by the Company in any manner or for any purpose or have been or will be the subject of a grant of a security interest by the Company other than as security for the payment of the Bonds, as provided in the Indenture, the Mortgage and the other Security Documents. Section 2.3.22. Intellectual Property. (a) There are no assertions, claims, actions, suits, proceedings, inquiries, or investigations made, threatened or pending against Company or any Affiliate of Company with respect to any Intellectual Property relating to the Project or Products to the knowledge of Company, after making due inquiry with respect thereto. (b) The Company has been granted a license or sublicense to all Intellectual Property owned or licensed by the Company's Affiliate(s) or any third party involved in the Project or Products, that in any way applies to, covers, or protects the Project or Products or which the Project or Products might otherwise infringe. (c) Construction and operation of the Project and production and sale of Products will not infringe, misappropriate, or give rise to any other cause of 18 action with respect to any Intellectual Property, to the knowledge of the Company, after making due inquiry with respect thereto. Section 2.3.23. Access to Project. The Company agrees that during the term of this Lease Agreement the Issuer, the Trustee, the Majority Bondholder and their duly authorized agents shall have the right, but shall be under no duty or obligation to exercise this right, during regular business hours, with reasonable notice, to enter upon the premises and examine and inspect the Project, subject to such limitations, restrictions and requirements as the Company may reasonably prescribe. Section 2.3.24. Maintenance of Feedstock Supply and Product Off-Take Contracts. The Company will at all times maintain Feedstock Supply Contacts and Product Off-Take Contracts of sufficient volume and quantity so as to permit the Company to remain Solvent. Section 2.4. Reporting Requirements. The Company will furnish or cause to be furnished to the Trustee, and in the case of Section 2.4.11, the Trustee and the Issuer, the following: Section 2.4.1. Quarterly Financial Statements. As soon as available and in any event within 45 days after the end of the first Fiscal Quarter following the Closing Date and within 45 days after the end of each succeeding Fiscal Quarter, balance sheets of the Company and statements of income and cash flows of the Company for such Fiscal Quarter (or such balance sheets, statements of income and cash flows on a consolidated basis, if so prepared),prepared in accordance with GAAP. Section 2.4.2. Annual Financial Statements. As soon as available and in any event within 120 days after the end of each Fiscal Year, a copy of the annual audit report for such Fiscal Year for the Company including therein balance sheets as of the end of such Fiscal Year and statements of income and cash flows of each of the Company for such Fiscal Year, and accompanied by an unqualified opinion of independent certified public accountants stating that such financial statements present fairly in all material respects the financial position of the Company for the periods indicated in conformity with GAAP applied on a basis consistent with prior periods, which report and opinion shall not be subject to any "going concern" or like qualification or exception or any qualification or exception as to the scope of such audit. Section 2.4.3. Certificate of Financial Officer. Concurrently with the delivery of the financial statements referred to in Sections 2.4.1 and 2.4.2 hereof, a certificate executed by an Authorized Company Representative stating that: (a) such financial statements fairly present in all material respects the financial condition and results of operations of the Company on the dates and for the periods indicated in accordance with GAAP subject, in the case of interim financial statements, to the absence of notes and normally recurring year-end adjustments; 19 (b) such Authorized Company Representative has reviewed the terms of the Bond Documents and has made, or caused to be made under his or her supervision, a review in reasonable detail of the business and financial condition of the Company during the accounting period covered by such financial statements; and (c) as a result of such review, such Authorized Company Representative has concluded that no Default or Event of Default has occurred during the period covered by such financial statements through and including the date of such certificate or, if any Default or Event of Default has occurred, specifying the nature and extent thereof and, if continuing, the action that such Person has taken and proposes to take in respect thereof. Section 2.4.4. Auditor's Letters. Promptly upon receipt, copies of any detailed audit reports, management letters or recommendations submitted to the Company (or the audit or finance committee of the Company) by the independent certified public accountants in connection with the accounts or books of the Company, or any audit of the Company. Section 2.4.5. Notice of Default or Event of Default. As soon as possible and in any event within five days after the occurrence of any Default or Event of Default, a statement of an Authorized Company Representative setting forth details of such Default or Event of Default and the action that the Company has taken and proposes to take with respect thereto. Section 2.4.6. Notice of Other Events. Within ten days after the Company obtains knowledge thereof, a statement of an Authorized Company Representative setting forth details of: (a) any litigation or governmental proceeding pending or threatened in writing against the Company; (b) any litigation or governmental proceeding pending or threatened in writing against any Project Party that has or could reasonably be expected to have a Material Adverse Effect; (c) any other event, act or condition that has or could reasonably be expected to have a Material Adverse Effect, including the occurrence of any event described in Section 2.11 hereof; (d) notification of any event of force majeure or similar event under a Necessary Project Contract; or (e) any of the events required to be provided pursuant to the Continuing Disclosure Agreement as described in Section 2.8 hereof. Section 2.4.7. Necessary Project Contract or Additional Project Contract Notice. Promptly after delivery or receipt thereof, copies of all material notices or 20 documents given or received by the Company, pursuant to any of the Necessary Project Contracts or any Additional Project Contract including: (a) any Change Orders or any written notices or communications related thereto; (b) any written notice alleging any breach or default thereunder; and (c) any written notice regarding, or request for consent to, any assignment, termination, modification, waiver or variation thereof. Section 2.4.8. Construction Progress Under Restoration or Replacement Plan or Upon Issuance of Additional Bonds for Payment of Project Costs; Construction Contract Notice. (a) In the event the Construction Account under the Accounts Agreement shall be activated as a result of the deposit of Net Proceeds or proceeds of Additional Bonds therein, within 15 days after the last day of each calendar month prior to the Completion Date, a Monthly Construction Progress Report in the form of Exhibit B, with a copy thereof to the Independent Engineer; and (b) In the event the Company shall submit to the Trustee a Restoration or Replacement Plan or shall have issued a series of Additional Bonds to expand or complete the Project, the Company shall deliver to the Trustee within 3 Business Days following receipt thereof, any monthly or other periodic report provided to the Company under the Construction Contract, which shall be subject to review by the Independent Engineer. Section 2.4.9. ERISA Event. As soon as possible and in any event within ten days after the Company knows, or has reason to know, that any of the events described below has occurred, a duly executed certificate of an Authorized Company Representative setting forth the details of each such event and the action that the Company proposes to take with respect thereto, together with a copy of any notice or filing from the Public Benefit Guaranty Corporation (the "PBGC"), the Internal Revenue Service or the Department of Labor or that may be required by the PBGC or other Governmental Authority with respect to each such event: (a) any Termination Event with respect to an ERISA Plan or a Multiemployer Plan has occurred or will occur that could reasonably be expected to result in any liability to the Company; (b) any condition exists with respect to a Plan that presents a material risk of termination of a Plan (other than a standard termination under Section 4041(b) of ERISA) or imposition of an excise tax or other material liability on the Company; 21 (c) an application has been filed for a waiver of the minimum funding standard under Section 412 of the Code or Section 302 of ERISA under any Plan; (d) the Company or any Plan fiduciary has engaged in a "prohibited transaction," as defined in Section 4975 of the Code or as described in Section 406 of ERISA, that is not exempt under Section 4975 of the Code and Section 408 of ERISA that could reasonably be expected to result in liability to the Company; (e) there exists any Unfunded Benefit Liabilities under any ERISA Plan; (f) any condition exists with respect to a Multiemployer Plan that presents a risk of a partial or complete withdrawal (as described in Section 4203 or 4205 of ERISA) from a Multiemployer Plan that could reasonably be expected to result in any liability to the Company; (g) a "default" (as defined in Section 4219(c)(5) of ERISA) occurs with respect to payments to a Multiemployer Plan and such default could reasonably be expected to result in any liability to the Company; (h) a Multiemployer Plan is in "reorganization" (as defined in Section 418 of the Code or Section 4241 of ERISA) or is "insolvent" (as defined in Section 4245 of ERISA); (i) the Company and/or any ERISA Affiliate has incurred any potential withdrawal liability (as defined in accordance with Title IV of ERISA); or (j) there is an action brought against the Company or any ERISA Affiliate under Section 502 of ERISA with respect to its failure to comply with Section 515 of ERISA. Section 2.4.10. Notice of PBGC Demand Letter. As soon as possible and in any event within five days after the receipt by the Company of a demand letter from the PBGC notifying the Company of its final decision finding liability and the date by which such liability must be paid, a copy of such letter, together with a duly executed certificate of an Authorized Company Representative setting forth the action the Company proposes to take with respect thereto. Section 2.4.11. Notice of Environmental Event. Promptly and in any event within ten days after the existence of any of the following conditions, a duly executed certificate of an Authorized Company Representative specifying in detail the nature of such condition and, if applicable,the Company's proposed response thereto: (a) receipt by the Company of any written communication from a Governmental Authority or any written communication from any other Person (other than a privileged communication from legal counsel to the Company) or other source of written information, including reports prepared by the Company, 22 that alleges or indicates that the Company or an Environmental Affiliate is not in compliance in all material respects with applicable Environmental Laws or Environmental Approvals; (b) the Company obtains knowledge that there exists any Environmental Claim pending or threatened in writing against the Company or an Environmental Affiliate; (c) the Company obtains knowledge of any release, threatened release, emission, discharge or disposal of any Materials of Environmental Concern or obtains knowledge of any material non-compliance with any Environmental Law that, in either case, could reasonably be expected to form the basis of an Environmental Claim against the Company or any Environmental Affiliate; or (d) any removal, remedial or response action taken, or required to be taken, by the Company or any other Person in response to any Materials of Environmental Concern in, at, on or under, a part of or about the Company's properties or any other property or any notice, Claim or other information that the Company might be subject to an Environmental Claim. Section 2.4.12. Materials of Environmental Concern. The Company will maintain and make available for inspection by the Trustee, the Environmental Consultant and, if an Event of Default has occurred and is continuing, the Bondholders, and each of their respective agents and employees, on reasonable notice during regular business hours, accurate and complete records of all non-privileged correspondence, investigations, studies, sampling and testing conducted, and any and all remedial actions taken, by the Company or, to the best of the Company's knowledge and to the extent obtained by the Company, by any Governmental Authority or other Person in respect of Materials of Environmental Concern that could reasonably be expected to form the basis of an Environmental Claim on or affecting the Project. Section 2.4.13. Deferred Approvals. Promptly after receipt thereof, copies of each Deferred Approval obtained by the Company, certified as true, complete and correct by an Authorized Company Representative. Section 2.4.14. Operating Statements. Within 45 days after the end of each Fiscal Quarter and concurrently with the delivery of the annual financial statements referred to in Section 2.4.2, the Company will furnish to the Trustee an Operating Statement regarding the operation and performance of the Project for each monthly, quarterly and, in the case of the last quarterly Operating Statement for each year, annual period. Such Operating Statements shall contain (i) line items corresponding to each Operating Budget Category of the then current Operating Budget showing in reasonable detail by Operating Budget Category all actual Operation and Maintenance Expenses of the Project compared to the budgeted expenses for each such Operating Budget Category for such period, (ii) information showing the amount of Feedstock purchased under the Feedstock Supply Contracts, (iii) information showing the amount of other Products produced by the Project during such period and (iv) information showing (A) the amount 23 of Products sold by the Company from the Project to pursuant to the Product Supply Contracts, and (B) the amount, if any, of other Products sold by the Company from the Project, together with an explanation of any such sale and identification of the purchaser. The Operating Statements shall be certified as complete and correct by an Authorized Company Representative, who also shall certify that, the expenses reflected therein for the year to date and for each month or quarter therein did not exceed the provision for such period contained in the Operating Budget then in effect by more than ten percent (10%) or, if any of such certifications cannot be given, stating in reasonable detail the necessary qualifications to such certifications. Section 2.4.15. Other Information. Other information concerning the Company or the Project reasonably requested by the Trustee. Section 2.5. Affirmative Covenants. During the term of this Lease Agreement and until the Bonds and all other obligations of the Company under the Bond Documents are paid in full, and in addition to all other covenants and warranties herein and in the other Bond Documents, the Company covenants to do the following: Section 2.5.1. Compliance with Laws. The Company shall comply in all material respects with all Laws applicable to it or to its business or property. Section 2.5.2. Financial Statements. The Company will timely provide all financial statements required to be provided by Sections 2.4.1 and 2.4.2 hereof prepared in accordance with GAAP. Such financial statements shall be delivered to the Trustee at the times required herein. Financial statements are to include, at a minimum, a balance sheet, statement of cash flow and profit and loss statement. Section 2.5.3. Tax Returns. The Company will file all federal, state and local tax returns and reports when and as required under applicable Law. Copies of such returns shall be made available to the Trustee upon its written request. Section 2.5.4. Insurance. The Company will maintain, with financially sound and reputable insurance companies, insurance for the Project of the kinds, covering the risks, and in the amounts listed on Schedule 2.5.4 and shall include, but not be limited to, builder's risk, business interruption, liability, workers compensation, fidelity coverage on all employees that may have access to revenues or funds (in amounts assuming peak flow or revenues) and comprehensive hazard/casualty insurance on the Project and its other buildings and contents of the types and in amounts satisfactory to the Trustee (who may rely exclusively upon the Insurance Consultant in making such determination), but in no event less than the full replacement cost value thereof. Evidence of all insurance maintained by the Company pursuant to Schedule 2.5.4, and including a certificate of the Insurance Consultant in substantially the form attached hereto as Exhibit I, shall be delivered to the Issuer and the Trustee at Closing, on each anniversary thereof and at the time of any renewal, modification or replacement of coverage. All insurance policies provided hereunder shall be in an amount sufficient to avoid the application of any co- insurance provisions and must include provisions for a minimum thirty (30) day advance written notice to the Issuer and the Trustee of any intended policy cancellation or non- 24 renewal. Each policy shall list the Issuer and the Trustee as an additional insured and loss-payee. Section 2.5.5. Environmental Matters. (a) The Company shall (i) comply in all material respects with all Environmental Laws, (ii) keep the Project free of any Lien imposed pursuant to any Environmental Law, (iii)pay or cause to be paid when due and payable by the Company any and all costs required in connection with any Environmental Laws, including the cost of identifying the nature and extent of the presence of any Materials of Environmental Concern in, on or about the Project or on any real property owned or leased by the Company or on the Encumbered Property, and the cost of delineation, management, remediation, removal, treatment and disposal of any such Materials of Environmental Concern, and (iv) use its commercially reasonable efforts to ensure that no Environmental Affiliate takes any action or violates any Environmental Law that could reasonably be expected to result in an Environmental Claim; and (b) The Company shall not use or allow the Project to generate, manufacture, refine, produce, treat, store, handle, dispose of, transfer, process or transport Materials of Environmental Concern other than in compliance in all material respects with Environmental Laws. Section 2.5.6. Materials of Environmental Concern. The Company will maintain and make available for inspection by the Issuer and the Trustee on reasonable notice during regular business hours, accurate and complete records of all non-privileged correspondence, investigations, studies, sampling and testing conducted, in any and all remedial actions taken, by the Company or, to the best of the Company's knowledge and to the extent obtained by the Company, by any Governmental Authority or other Person in respect of Materials of Environmental Concern that could reasonably be expected to form the basis of an Environmental Claim upon or affecting the Project. Section 2.5.7. Environmental Indemnity. To the fullest extent allowed by applicable Law, the Company shall indemnify and hold harmless the Trustee and the Issuer and their respective officials, directors, officers, members, employees and agents from and against any and all liability directly or indirectly arising out of the use, generation, storage, release, or disposal of Materials of Environmental Concern on, under or about the Project and from any violation of any Environmental Law. Such indemnification shall include, without limitation, the cost of any inspection of the impacted property, the cost of audit, clean-up, remediation or detoxification of the impacted property and the preparation of any closure or other required plans, consent orders, license applications or the like, and whether such action is required or necessary. The Company agrees that the indemnity obligations in this paragraph shall include indemnifying the Trustee and the Issuer and their respective officials, directors, officers, members, employees and agents for all attorneys' fees and expenses incurred by any of them to enforce the terms of this provision. The indemnification obligations under this paragraph are exclusive of, and in addition to, any other indemnification or insurance 25 obligations of the Company under this Lease Agreement, the Indenture, the Bonds or any of the other Bond Documents, and shall survive termination of this Lease Agreement and payment in full of the Bonds. All indemnifications hereunder shall include any and all consequential damages of any nature or kind, whether foreseeable and unforeseeable. This Section 2.5.7 shall survive the payment in full of Bonds and other obligations under the Bond Documents. Section 2.5.8. Organizational Existence. The Company shall remain in good standing and existence as a limited liability company, and shall remain qualified to transact business in the State and in each other state in which it conducts business as required by applicable Law. Section 2.5.9. Licenses. The Company will obtain and keep in full force and effect all licenses necessary to operate the Project in accordance with its primary intended purpose, unless the failure to maintain any such licenses would not reasonably be expected to result in a Material Adverse Effect. Section 2.5.10. Operations and Maintenance. The Company shall construct, operate and maintain (or cause to be operated and maintained) the Project in all material respects in accordance with (a) the terms and provisions of the Bond Documents and the Necessary Project Contracts and(b) all applicable Governmental Approvals and Laws. Section 2.5.11. Construction and Completion of Project; Completion Date; Maintenance of Properties. (a) The Company shall apply, or cause the Issuer to apply, as applicable, the proceeds of the Series 2014 Bonds to the purposes specified in this Lease Agreement, the Tax Agreement and, in the case of any disbursement of Net Proceeds or proceeds of Additional Bonds issued for payment of Project Costs, each Construction Advance Funding Notice, and shall duly construct and complete, or cause the construction and completion of, the Project and shall cause the Completion Date with respect thereto to occur, substantially in accordance with (i) the scope of work and other specifications set forth in the Construction Contract (including any Change Orders permitted under this Lease Agreement) and(ii)the Construction Budget; (b) The Company shall cause the Completion Date to occur and the Performance Tests to be achieved no later than the Closing Date; (c) The Company shall keep, or cause to be kept, in good working order and condition, ordinary wear and tear excepted, all of its properties and equipment related to the Project that are necessary or useful in the proper conduct of its business; (d) Except as required in connection with the construction of the Project, the Company shall not permit the Project or any material portion thereof to be removed, demolished or materially altered, unless such material portion that 26 has been removed, demolished or materially altered has been replaced or repaired as permitted under this Lease Agreement; (e) The Company shall continue to engage in business of the same type as now conducted by it, unless otherwise approved in writing by the Issuer and the Trustee, and do or cause to be done all things necessary to preserve and keep in full force and effect (i) its existence in the State and its organization to do business in the State and (ii) its material patents, trademarks, trade names, copyrights, franchises and similar rights; (f) If the Independent Engineer is unable to substantiate any amount that the General Contractor claims is due and owing by the Company to the General Contractor under the Construction Contract, the Company agrees that it will (i) promptly dispute such amount pursuant to the Construction Contract and (ii) notify the General Contractor pursuant the Construction Contract promptly that the General Contractor is not entitled to such disputed amount; (g) If the Company determines not to use proceeds of the Series 2014 Bonds (or investment earnings thereon) to pay any costs of any portion of the Project for which proceeds of the Series 2014 Bonds (or investment earnings thereon) are budgeted and available, such Series 2014 Bond proceeds (or investment earnings thereon) shall be applied as provided in Section 3.6 hereof; and (h) The Company covenants and agrees to pay all Costs of Issuance incurred in connection with the issuance of the Series 2014 Bonds. Such Costs of Issuance may be reimbursed or paid from moneys on deposit in the Costs of Issuance Account of the Construction Account of the Accounts Agreement, and the Issuer shall have no obligation with respect to such costs. Section 2.5.12. Payment of Obligations. The Company shall pay and discharge as the same shall become due and payable all of its obligations and liabilities, including (a) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same (i) are subject to a Contest or (ii) are immaterial taxes in an aggregate amount not in excess of $25,000 at any one time outstanding (taking into account any interest and penalties that could accrue or be applicable to such past-due taxes), provided, that such taxes are no more than 45 days past due, (b) all of its obligations and liabilities under its contractual obligations, (c) all lawful Claims that, if unpaid, would by Law become a Lien upon its properties (other than Permitted Encumbrances), unless the same are subject to Contest, and (d) all Indebtedness. Section 2.5.13. Governmental Approvals. The Company shall maintain in full force and effect, in the name of the Company, all Necessary Project Approvals and obtain all Deferred Approvals (all of which shall be reasonably satisfactory to the Trustee) prior to the time it is required to be obtained hereunder, including as set forth on Part B of Schedule 2.3.20, but in any event no later than the date required to be obtained under 27 applicable Law (other than any such failure to maintain or obtain that could not reasonably be expected to have a Material Adverse Effect on the Company). Section 2.5.14. Books and Records; Inspections. The Company shall keep proper books of record and account in which complete, true and accurate entries in conformity with GAAP and all requirements of Law shall be made of all financial transactions and matters involving the assets and business of the Company, and shall maintain such books of record and account in material conformity with applicable requirements of any Governmental Authority having regulatory jurisdiction over the Company. The Company shall keep books and records separate from the books and records of any other Person (including any Affiliates of the Company) that accurately reflect in all material respects all of its business affairs, transactions and the documents and other instruments that underlie or authorize all of its corporate actions. The Company shall permit officers and designated representatives of, the Issuer, the Trustee and the Independent Engineer to visit and inspect any of the properties of the Company (including the Project), to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers and independent public accountants, all at the expense of the Company (provided, that so long as no Default or Event of Default has occurred and is continuing, such visits or inspections shall be at the expense of the Company, but only to the extent reasonably required to perform their respective duties under the Bond Documents; otherwise such visits or inspections may occur as frequently as is desired by the Issuer, the Trustee or the Independent Engineer, but at their expense) and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Company; provided, that if a Default or Event of Default has occurred and is continuing, the Issuer, the Trustee or the Independent Engineer (or any of their respective officers or designated representatives) may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice. Section 2.5.15. SEC and other Governmental Filings. The Company shall supply to Trustee complete copies of all filings with the U.S. Securities and Exchange Commission or other Governmental Authorities having jurisdiction over the equity securities of the Company or the Pledgor. Section 2.5.16. Maintaining Funds in Reserve Accounts. The Company shall cause the Debt Service Reserve Account and the Operating Expense Reserve Account created under the Accounts Agreement to be funded as set forth in the Accounts Agreement, the Indenture and this Lease Agreement. Section 2.5.17. Compliance with Bond Documents. The Company shall comply in all material respects with all its obligations under the Bond Documents as and when due. Section 2.5.18. Financial Covenants. The Company shall comply with the following financial covenants, each of which shall be determined under generally accepted accounting principles (GAAP): 28 (a) Working Capital Threshold. [TBD]; (b) Debt Service Coverage Ratio. The Company shall have a Debt Service Coverage Ratio of at least 1.10:1.00 for Fiscal Year ending 20 and for each Fiscal Year thereafter. This covenant will be measured using the audited financial statements of the Company; and (c) Indebtedness to Tangible Net Worth. The Company shall maintain a ratio of(1) Indebtedness to (2) Tangible Net Worth of less than This covenant will be tested on each Quarterly Date, beginning 20 Section 2.5.19. Operating Budgets. (a) The Company shall,not later than 30 days before the Closing Date, adopt an operating plan and a budget setting forth in reasonable detail the projected requirements for Operation and Maintenance Expenses for the Project for the period from such date to the conclusion of the then-current Fiscal Year and provide a copy of such operating plan and budget at such time to the Trustee. No less than 30 days in advance of the beginning of each Fiscal Year thereafter, the Company shall similarly adopt an operating plan and a budget for the Project setting forth in reasonable detail the projected requirements for Operation and Maintenance Expenses for the ensuing calendar year and provide a copy of such operating plan and budget at such time to the Trustee. Each such operating plan and budget is herein called an "Operating Budget." Each Operating Budget shall be prepared in accordance the form of initial Operating Budget (as approved with such amendments, changes or revisions as may be approved by the Trustee (in consultation with the Independent Engineer) and shall be subject to approval by the Trustee (in consultation with and reliance upon the advice of the Independent Engineer). An Operating Budget may be amended, changed or revised by the Company subsequent to its approval with the written consent of the Trustee (in reliance upon the Independent Engineer) and the Majority Bondholder. If the Company shall not have adopted an annual Operating Budget for the Project before the beginning of any calendar year or any Operating Budget for the Project adopted by the Company shall not have been accepted by the Trustee before the beginning of any upcoming calendar year, the Operating Budget for the preceding calendar year shall, until the adoption of an annual Operating Budget for the Project by the Company and acceptance of such Operating Budget for the Project by the Trustee, be deemed to be in force and effective as the annual Operating Budget for the Project for such upcoming calendar year; provided, that if the second and any subsequent Operating Budget for the Project is not approved by the Trustee, the Company may use a budget that is consistent with the initial Operating Budget, annualized, until an Operating Budget for the Project is approved and the Company shall work diligently to prepare a second or subsequent Operating Budget for the Project that is acceptable to the Trustee (in consultation with and reliance upon the advice of the Independent Engineer); and 29 (b) Each Operating Budget for the Project delivered to the Trustee pursuant to this Section 2.5.19 shall be accompanied by a memorandum detailing all material assumptions used in the preparation of such Operating Budget, shall contain a line item for each Operating Budget Category, shall specify for each month and for each such Operating Budget Category the amount budgeted for such category for such month, and shall clearly distinguish Operation and Maintenance Expenses. Section 2.5.20. Preservation of Title; Acquisition of Additional Property. (a) The Company shall preserve and maintain (i) its fee simple and leasehold interest and insurable fee simple and leasehold estate in the real estate upon which the Project is situated (as more specifically described in Exhibit A hereto) (the "Project Site") and valid ingress and egress to such Project Site and (ii) good, legal and valid fee simple and leasehold interest to all of its other respective material properties and assets financed hereunder, in each case free and clear of all Liens other than Permitted Encumbrances. If the Company at any time acquires any real property or leasehold or other interest in real property (including, to the extent reasonably requested by the Trustee, with respect to any material easement or right-of-way not covered by the Mortgage), the Company shall,promptly upon such acquisition, execute, deliver and record a supplement to the Mortgage or execute a new fee simple title mortgage, as applicable, reasonably satisfactory in form and substance to the Trustee, subjecting such real property or leasehold or other interest to the Lien and security interest created by the Mortgage. If reasonably requested by the Trustee, the Company shall obtain an appropriate endorsement or supplement to the Title Insurance Policy insuring the Lien of the Mortgage in such additional property, subject only to Permitted Encumbrances; and (b) Prior to the acquisition or lease of any such additional real property interests,the Company shall deliver to the Trustee a Phase One environmental site assessment report with respect to such real property (if, in the reasonable determination of the Trustee, acting in consultation with the Independent Engineer, such environmental site assessment report with respect to such real property interests is warranted), in each case along with a corresponding reliance letter from the consultant issuing such report (to the extent such report does not permit reliance thereon by the Trustee). Each such environmental site assessment report shall be in form and substance reasonably satisfactory to the Trustee and shall not identify any material liability associated with the condition of such real property. Section 2.5.21. Maintenance of Liens; Creation of Liens on Newly Acquired Additional Project Contracts. (a) The Company shall take or cause to be taken all action necessary or desirable to maintain and preserve the Lien of the Security Documents and the 30 first ranking priority thereof in accordance with the Security Documents, subject to any Permitted Encumbrances; and (b) The Company shall take all actions required to cause each Additional Project Contract to be or become subject to the Lien of the Security Documents (whether by amendment to any Security Agreement or otherwise) and shall deliver or cause to be delivered to the Trustee all Ancillary Contracts related thereto. Section 2.5.22. Maintenance of Certain Project Contracts. The Company shall maintain in full force and effect all Necessary Project Contracts, as well as all Deferred Contracts and Additional Project Contracts following their execution and delivery, and shall provide the Trustee with prior written notice of any actions by the Company to seek to replace any such contracts with a new contract. Other than as a result of an involuntary termination of any such contract by a counterparty thereto, the Company shall not voluntarily terminate or permit the termination of any such contract unless it is able to demonstrate to the Trustee in writing that such contract is no longer necessary for the continued operation of the Project and its termination will not have a Material Adverse Effect. Section 2.6. Negative Covenants. During the term of this Lease Agreement, unless the prior written consent of the Trustee (which consent may be based upon Majority Bondholder consent, the advice of the Independent Engineer, the advice of Counsel to the Trustee, or the advice of other consultants engaged by the Trustee hereunder) is obtained,the Company: Section 2.6.1. Merger or Dissolution. Shall not dissolve or otherwise dispose of (in a single transaction or in a series of related transactions) all or a substantial part of its Property (excluding for purposes of this Section 2.6.1 dispositions of inventory in the ordinary course of business, securities or other Property held solely for investment purposes) and will not permit one or more other entities to consolidate with or merge with it unless: (a) the entity surviving such consolidation or merger or to whom such Property is conveyed (the "Surviving Company") expressly assumes in writing all of the Bond Documents to which the Company is a party; (b) the Surviving Company has unrestricted net assets equal to or greater than that of the Company immediately prior to such merger, consolidation or transfer of Property; (c) no Event of Default under any Bond Document shall have occurred and be continuing and, to the knowledge of the Surviving Company no event shall have occurred and be continuing which with the lapse of time or giving of notice or both would constitute such an Event of Default; (d) no Event of Default under any Bond Document will be caused by the dissolution, liquidation, disposition, consolidation or merger; 31 (e) such merger, consolidation or conveyance will not adversely affect the exclusion of interest on the Series 2014 Bonds from gross income of the owners thereof for federal income tax purposes; (f) the provisions of the Act and Bond Documents are complied with; (g) no litigation is pending against the other party to such proposed merger, consolidation or transfer of Property, except litigation in which the probable recovery, and the estimated costs and expenses of defense, either (A)will be within the coverage of existing insurance policies or (B) will not have a Material Adverse Effect on the operations or financial position of the Surviving Company; (h) the Company or the entity surviving the dissolution, liquidation, disposition, consolidation or merger, within 10 days after execution thereof, furnishes to the Issuer and the Trustee a true and complete copy of the instrument of dissolution, liquidation, disposition, consolidation or merger; (i) neither the validity nor the enforceability of the Bonds, the Indenture or any agreements to which the Company is a party is adversely affected by the dissolution, liquidation, disposition, consolidation or merger; (j) the Project continues to be substantially as described herein; (k) any successor to the Company shall be qualified to do business in the State and shall continue to be qualified to do business in the State throughout the term hereof; (1) the Issuer has consented to such dissolution or disposal (which consent shall not be unreasonably withheld by the Issuer) and has executed a certificate acknowledging receipt of all documents, information and materials required by this Section 2.6.1; (m) the Trustee and the Issuer shall receive such certifications and documentation as they may reasonably request; and (n) the Trustee, at the request and direction of the Company, shall have solicited the consent to such transaction from and received the consent of the Majority Bondholder. Prior to such merger, consolidation or transfer of Property, the Company shall deliver to the Issuer and the Trustee a certificate signed by an Authorized Company Representative stating that all of the foregoing conditions have been satisfied and that such merger, consolidation or transfer of Property does not violate, and is not inconsistent with, any of the terms, covenants and provisions of the Tax Agreement, which certificate shall be supported: as to paragraph (b) above, by a report or opinion signed by its independent certified public accountants; as to paragraphs (a) and (f) above, by an opinion of Counsel; and as to paragraphs (e) and(i) above, by an opinion of Bond Counsel. 32 Section 2.6.2. Change in Organizational Documents; Change in State of Organization. Shall not affect any material amendment to its Articles of Organization or Operating Agreement or change its state of organization without giving written notice thereof to the Issuer and the Trustee at least 30 days prior thereto and obtaining the Trustee's consent thereto. Section 2.6.3. Name Change or Change in Nature of Business. Shall not, and shall not permit any of its Subsidiaries to, change (a) its or their name or move any of its or their principal places of business or chief executive offices without giving at least 30 days prior written notice thereof to the Issuer and the Trustee and (b) its or their general nature or types of business. Section 2.6.4. Sale of Assets. Subject to the provisions of Section 2.6.5 hereof, the Company shall not, and shall not permit any of its Subsidiaries to, sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its Property, except: (a) transactions involving the sale of inventory in the ordinary course of business; (b) any sale, transfer or lease of assets in the ordinary course of business which are no longer necessary or required in the conduct of the Company's or such Subsidiary's business and so long as such sale, transfer or lease of assets complies with the terms and conditions for sale, transfer or leases of assets set forth in this Lease Agreement; (c) any sale, transfer or lease of assets in the ordinary course of business at fair market value which are replaced by substitute assets acquired or leased within the parameters of Section 2.6.6 hereof, provided such substitute assets are subject to a security interest in favor of the Trustee; and (d) any sale, transfer or lease of assets at fair market value, other than those specifically accepted pursuant to clauses (a) through (c) above, which is approved by the Trustee. Notwithstanding the foregoing, in no event shall the Company sell all or substantially all of its assets or take any action that would make it impossible for it to carry out its business as now conducted. Section 2.6.5. Sale of Collateral. Except as may otherwise be authorized herein, shall not sell, convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily, any of its Property constituting Collateral for the Series 2014 Bonds unless (a) such disposition is for fair market value, as determined by the managers, directors or members of the Company, (b) the proceeds of such disposition are invested by the Company within six months thereafter, or within a reasonable period of time under the circumstances, in other assets which will be used in connection with the operations of the Company and be subjected to the Lien of the Security Documents or be immediately deposited with the Accounts Bank under the Accounts Agreement to be redeem Bonds 33 outstanding, (c) such disposition does not have a Material Adverse Effect on the ability of the Company to meet its obligations hereunder and (d) such disposition does not violate, and is not inconsistent with, any of the terms, covenants and provisions of the Tax Agreement. As used herein, "more than a de minimis part" of the Property of the Company shall mean two percent (2%) or more of the total value of all Property of the Company in any Fiscal Year, whether or not reflected as assets on the books and records of the Company. As used herein, "total value" means, with respect to any Property constituting Collateral at any time, the Adjusted Book Value of such Property reflected as an asset on the books and records of the Company. For purposes of determining the value of Property sold or otherwise disposed of by the Company in any Fiscal Year, Property reflected as an asset on the books and records of the Company shall be valued at the Adjusted Book Value thereof. Notwithstanding the foregoing, the Company shall be permitted to sell, transfer, assign or otherwise dispose of or remove all or any portion of the Project which is obsolete, retired or replaced in the ordinary course of business, but only to the extent the Company shall have first obtained an opinion of Bond Counsel to the effect that such sale, transfer, assignment or other disposition is authorized or permitted under the Act and will not adversely affect the exclusion from gross income of interest on the Series 2014 Bonds for federal income tax purposes. Section 2.6.6. Judgments, etc. Shall not allow any number of judgments for the payment of money in excess of the aggregate sum of$250,000 excluding amounts with respect to which an insurance carrier admits full coverage (except for applicable deductibles), to remain unsatisfied against the Company for a period of beyond 30 days, unless execution thereof is stayed and adequate reserves have been set aside in an amount equal to or exceeding any potential liability. Section 2.6.7. Adverse Change Involving Project Manager. Shall not terminate any management agreement for the Project or any material portion thereof, or terminate the services of any manager, to the extent such termination would have a Material Adverse Effect, without the prior consultation with and approval of, the Trustee, for which the Trustee is entitled to rely exclusively upon the advice of the Independent Engineer in making any such determination. Section 2.6.8. Additional Indebtedness; Guarantees. (a) Shall not, nor permit any of its Subsidiaries to, create, incur, assume or permit to exist any Indebtedness except (i) the Bonds or the other obligations of the Company under the Bond Documents, including this Lease Agreement; (ii) accounts payable to trade creditors incurred in the ordinary course of business and not more than 60 days past due; (iii) Indebtedness of Borrower in respect of Capital Leases and purchase money obligations for fixed or capital assets (other than real property) used in the operation, management or maintenance of the Project; provided, however, that the nominal value of such Capital Leases shall not exceed (a) [$500,000] with respect to the Rotor Chopper/define] and(b) [$500,000] in the aggregate for all other Capital Leases; 34 (b) Shall not create, incur, assume or permit to exist any other Indebtedness except with the prior written consent of the Majority Bondholder. Section 2.6.9. Capital Expenditures. Shall not pay in any Fiscal Year Maintenance Capital Expenses of more than $250,000 unless such payments are made by the Company after funds have first been provided for the amounts required in clauses (i) to (xi) of Section 6.01(c) of the Accounts Agreement or unless approved in writing by the Majority Bondholder. Section 2.6.10. Liens. Shall not create, incur, assume or suffer to exist any Lien upon any of its property, revenues or assets (including its Equity Interests), whether now owned or hereafter acquired, except Permitted Encumbrances and: (a) Liens in favor, or for the benefit, of the Trustee pursuant to the Security Documents; (b) Liens for taxes, assessments and other governmental charges that are not yet due or the payment of which is the subject of a Contest; (c) Liens of carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due or the payment of which is the subject of a Contest; (d) Liens of no more than $100,000 in the aggregate securing judgments for the payment of money not constituting an Event of Default, provided that each such Lien is subject to a Contest and any appropriate legal proceedings which may have been initiated for the review of such judgment shall not have been terminated or the period within which such proceedings may have been initiated shall not have expired; and (e) any Liens reflected on the Title Policy. Section 2.6.11. Permitted Investments. Shall not make any investments, loans or advances (whether by purchase of stocks, bonds, notes or other securities, loans, extensions of credit, advances or otherwise) except for (a) investments in Cash Equivalents, (b) Restricted Payments made as loans or advances, (c) readily marketable securities received by the Company in lieu of defaulted payments owed to it, and (d)prepaid insurance premiums and other related expenses in the ordinary course. Section 2.6.12. Equity Issuances. Shall not issue any new Equity Interests to any Person unless (a) such Equity Interests are immediately pledged to the Trustee on a first-priority perfected basis pursuant to the Pledge Agreement or, if necessary, a supplement thereto or a Pledge Agreement in substantially the form of the Pledge Agreement and (b)no Change of Control would occur as a result of such issuance. Section 2.6.13. Transaction with Affiliates. Shall not, and shall not permit any of its Subsidiaries to, enter into or cause, suffer or permit to exist any arrangement or contract with any of its Affiliates or any other Person that owns, directly or indirectly, 35 any Equity Interest in the Company unless such arrangement or contract (a) is a Necessary Project Contract or other Bond Document and (b) is an arrangement or contract that is on an arm's-length basis and contains terms no less favorable than those that would be entered into by a prudent person in the position of the Company with a person that is not one of its Affiliates. All transactions with Affiliates must be disclosed t the Trustee and evidence of compliance with this Section 2.6.13 provided to the Trustee. Section 2.6.14. Project Contracts; Change Orders. (a) Subject to Section 2.6.14(c) below, shall not direct or consent or agree to any amendment, modification, supplement, waiver or consent in respect of or suspension of work under any provision of any Necessary Project Contract (other than any immaterial amendment, modification or suspension of work, in which case a true, correct and complete copy shall be delivered to the Trustee) if, in the judgment of the Trustee, in reliance upon the advice of the Independent Engineer, such amendment, modification, supplement, waiver or consent would have a Material Adverse Effect. (b) Except for collateral assignments under the Security Documents, shall not assign any of its rights under any Necessary Project Contract to which it is a party to any Person, or consent to the assignment of any obligations under any such Necessary Project Contract by any other party thereto, without the prior written approval of the Trustee. (c) In the event the Company shall receive Net Proceeds and shall have approved a Restoration or Replacement Plan or shall cause to be issued Additional Bonds to expand or complete the Project, shall not enter into or approve any Change Orders under the Construction Contract without the approval of the Trustee (acting in consultation with the Independent Engineer), unless each of the following conditions is satisfied: (i) The amount of such Change Order does not exceed (1) $250,000 individually, or (2) $2,000,000 together with all prior Change Orders that have not been approved by the Trustee; (ii) Such Change Order could not reasonably be expected to delay the Completion Date beyond the anticipated Completion Date; (iii) Such Change Order could not reasonably be expected to permit or result in any adverse modification or impair the enforceability of any warranty under the Construction Contract; (iv) Such Change Order could not reasonably be expected to impair or reduce the value of the Project or the value of the Collateral or decrease EBITDA, in each case, in any material respect; 36 (v) Such Change Order could not reasonably be expected to present a material risk of revocation or material modification of any Governmental Approval; (vi) Such Change Order could not reasonably be expected to cause the Company or the Project not to comply or lessen in any material respect the ability of the Company or the Project to comply with any applicable Law; and (vii) Such Change Order will not have a Material Adverse Effect upon the business or operations of the Project; (viii) Such Changer Oder shall be accompanied by an updated Construction Budget to the extent there shall be an increase the Project Costs and satisfactory evidence that there exists sufficient funds in the Construction Account created under the Accounts Agreement to complete the Project or evidence that the Company has provided additional funds to the Trustee for the completion of the Project; and (ix) The Trustee has received a certificate, duly executed by an Authorized Company Representative, confirming that the proposed Change Order will comply with each of the conditions set forth above and setting forth (A) the amount of such proposed Change Order and (B) the amount of all prior Change Orders that have not been approved by the Trustee. Section 2.6.15. Additional Project Contracts. Shall not enter into any Additional Project Contract without contemporaneously complying with Section 2.5.21(b)hereof. Section 2.6.16. Restricted Payments. Except as expressly authorized hereby, shall not make any Restricted Payments unless each of the conditions set forth below has been satisfied: (a) the Completion Date shall have occurred; (b) the Restricted Payment Certificate has been submitted to the Accounts Bank, with a copy to the Trustee, not later than 11:00 a.m. New York City time on a Business Day on, or within sixty (60) days following, a Quarterly Date; (c) no Default or Event of Default has occurred and is continuing or would occur as a result of such Restricted Payment; (d) the Debt Service Reserve Account is fully funded in the amount of the Debt Account Reserve Requirement and the Operating Expense Reserve Account is fully funded in the amount required by the Accounts Agreement; 37 (e) the Debt Service Coverage Ratio, calculated as of such Quarterly Date, is greater than or equal to 1.25:1 and a detailed calculation of such Debt Service Coverage Ratio is set forth in Schedule C-2 to such Restricted Payment Certificate; (f) all of the transfers and payments set forth in priorities first through twelfth of Section 6.01(c) of the Accounts Agreement have been made, or will be made, before the consummation of the withdrawals requested hereby; (g) the Trustee shall have received a Restricted Payment Certificate in the form attached hereto as Exhibit C and made a part hereof duly executed by an Authorized Company Representative, confirming that each of the conditions set forth in clauses (a) through (f) of this Section 2.6.16 have been satisfied on and as of the date such Restricted Payment is requested to be made; and (h) in the case of dividend or other distribution, such payments will be limited to an amount that when taken, will not adversely affect the repayment ability of the Company with respect to the Bonds and the other obligations secured by the Bond Documents; and no dividend payments will be made unless (i) the Company is or will remain in compliance with covenants of this Lease Agreement and(ii) all Indebtedness of the Company is paid to a current status. Section 2.6.17. Construction Budget. In the event the Company shall receive Net Proceeds and shall have approved a Restoration or Replacement Plan or shall cause to be issued Additional Bonds to expand or complete the Project, may not, without the prior written approval of the Trustee (in reliance upon the advice of the Independent Engineer), reallocate any portion of any line item in the Construction Budget except to, on a monthly basis, (i) reallocate the contingency line item to pay for Change Orders permitted under this Lease Agreement or to pay for fees and expenses of advisors and consultants (including legal counsel) incurred in connection with the transactions contemplated by the Bond Documents or to pay for any other Project Costs in excess of the amounts then budgeted, for any single reallocation up to a maximum of $250,000, and for all reallocations up to a cumulative total of$1,000,000, (ii) apply cost-savings from any line item(which cost savings have been confirmed by the Independent Engineer after giving consideration to the anticipated cost of the entire line item and the potential for any cost overruns for the balance of the line item yet to be funded) to one or more other line items, including contingency, (iii) in consultation with the Independent Engineer, reallocate cost savings from a fixed price line item (based upon an executed contract for that fixed price item)to one or more other line items, or (iv) in addition to the reallocation permitted pursuant to items (i), (ii) and (iii) above, reallocate amounts from the contingency line item to other line items. Section 2.6.18. Limitation on Loans and Investments. The Company nor any Subsidiary, shall not at any time, make or suffer to remain outstanding any loan or advance to, purchase, acquire or own any stock, bonds, notes or securities of, or any partnership interest or limited liability interest in, or any investment or interest in, or 38 make any capital contribution to, any other Person (other than to the Company or its Subsidiaries), or agree, become or remain liable to do any of the foregoing, except: (a) Trade credit on usual and customary terms in the ordinary course of business; (b) Advances to employees to meet expenses incurred by such employees in the ordinary course of business; and (c) Investments permitted under Section 2.6.11 hereof. Section 2.6.19. Management Fees. Shall not pay a Management Fee to Recovery Technology Solutions, Inc., or any successor or assign, in excess of$100,000 per Fiscal Quarter for the operation and management of the Project. Section 2.6.20. Terrorism Sanction Regulations. The Borrower will not and will not permit any Subsidiary to (a) become a Person described or designated in the Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism Order or (b) knowingly engage in any dealings or transactions with any such Person Section 2.7. Payment of Basic Rent for Lease Payments. (a) The Company will duly and punctually make payment of Basic Rent constituting Lease Payments at the dates and the places and in the manner required in this Lease Agreement. The Company will make or cause to be made such Lease Payments to the Trustee for deposit in accordance with the terms of the Indenture and the Accounts Agreement. In order to make provisions for the timely payment of the principal of, premium, if any, and interest on the Bonds, the Company shall pay Basic Rent to the Trustee on each Lease Payment Date as follows: (i) commencing [January 27, 2015], an amount equal to one-sixth (1/6) (or if there are less than six calendar months remaining until the next Interest Payment Date, then a fraction, the numerator of which shall be one and the denominator of which shall be the number of months, as adjusted for the number of days in the month of Closing, until such Interest Payment Date between such Interest Payment Date) of the interest coming due on the Series 2014 Bonds on the next succeeding Interest Payment Date and (ii) commencing [January 27, 2015], an amount equal to one-sixth (1/6) (or if there are less than twelve calendar months remaining until the next Principal Payment Date, then a fraction, the numerator of which shall be one and the denominator of which shall be the number of months, as adjusted for the number of days in the month of Closing, until such Principal Payment Date) of the principal coming due on the Series 2014 Bonds on the next succeeding Principal Payment Date, which moneys, upon receipt, shall be deposited by the Trustee into the applicable Account of the Bond Fund to be held therein and applied as provided in the Indenture. For purposes of illustration, Lease Payments shall be made at the times and in the amounts set forth on Schedule 2.7 hereof. Such amounts set forth in Schedule 2.7 are subject to adjustment as described in this Section 2.7 and, upon any such adjustment, the Trustee shall provide to the Company a revised Schedule 2.7 setting forth the new schedule of Lease Payments. 39 Such revised schedule of Lease Payments shall be approved in writing by the Majority Bondholder prior to it being deemed a final schedule of adjusted Lease Payments. (b) Notwithstanding any provision contained in this Lease Agreement or in the Indenture or the Accounts Agreement to the contrary, the principal amount of and interest on Bonds of any series purchased by the Company and delivered to the Trustee for cancellation and canceled, or purchased by the Trustee and canceled at the direction of the Company, shall be credited respectively against the corresponding obligation of the Company to pay Basic Rent related to the principal of and interest on any such Bonds. (c) Notwithstanding any schedule of Lease Payments to be made as set forth herein, the Company agrees to make payments of Basic Rent and to be liable therefor at times and in amounts sufficient to pay when due all principal (whether at maturity, by mandatory redemption or acceleration), premium, if any and interest on all Series 2014 Bonds from time to time outstanding under the Indenture. Thus, whenever any Series 2014 Bonds shall have been called for redemption under any provision of the Indenture, the Company shall pay as Basic Rent the amounts as required to redeem such Bonds, including the principal, redemption premium, if any, and accrued interest thereon to the redemption date. The Company further agrees that in the event the payment of principal of and interest on the Series 2014 Bonds is accelerated upon the occurrence of an Event of Default under the Indenture, the Company shall pay Basic Rent to the Trustee as provided above in a sum equal to all principal of, redemption premium, if any, and interest on the Bonds then outstanding under the Indenture. Any such payments shall be deposited in the Bond Fund and applied by the Trustee in accordance with the provisions of the Indenture. (d) The foregoing provisions of this Section 2.7 notwithstanding, the Company agrees that the moneys and securities, if any, on deposit or to be deposited in the Rebate Fund are not part of the Trust Estate and are not available to make payments of the principal,premium, if any, and interest on the Bonds. Section 2.8. Continuing Disclosure. Whether or not the Bonds are sold in a transaction that is exempt from the continuing disclosure requirements of Rule 15c2-12 promulgated by the Securities and Exchange Commission under the provisions of the Securities Exchange Act of 1934, as amended (the "SEC Rule"), the Company covenants to comply with the continuing disclosure requirements set forth in the SEC Rule by entering into the Continuing Disclosure Agreement and providing the annual audited financial statements and other annual information required therein and notice of any of the following events in relation to the Bonds or the security therefor as prescribed by the SEC Rule: (a) principal and interest payment delinquencies; (b) non-payment related defaults, if material; (c) unscheduled draws on debt service reserves reflecting financial difficulties; (d) unscheduled draws on credit enhancements reflecting financial difficulties; 40 (e) substitution of credit or liquidity providers, or their failure to perform; (f) adverse tax opinions, the issuance by the Internal Revenue Service of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form 5701-TEB) or other material notices or determinations with respect to the tax status of the Bonds, or other material events effecting the tax status of the Bonds; (g) modifications to the rights of Bondholders, if material; (h) bond calls, if material, and tender offers; (i) defeasances; (j) release, substitution, or sale of property securing repayment of the Bonds, if material; (k) rating changes; (1) bankruptcy, insolvency,receivership or other similar event of the Company; (m) the consummation of a merger, consolidation, or acquisition involving the Company or the sale of all or substantially all of the assets of the Company, other than in the ordinary course of business, the entry into a definitive agreement to undertake such an action or the termination of a definitive agreement relating to any such actions, other than pursuant to its terms, if material; and (n) appointment of successor or additional trustee or the change of name of a trustee, if material. Section 2.9. Trustee's Right to Perform Company's Covenants; Advances. In the event the Company shall fail to (a) perform any covenant contained in Section 2.8 hereof, (b)maintain its properties in good repair as required by Section 2.5.11 hereof, (c) procure the insurance required by Section 2.5.4 hereof, or (d) make any other payment or perform any other act required to be performed hereunder, then and in each such case (unless the same is under Contest) the Trustee, upon not less than 15 days prior written notice to the Company and the Majority Bondholder, may (but shall not be obligated to) remedy such default for the account of the Company and make advances for that purpose. No such performance or advance shall operate to release the Company from any such default, and any sums so advanced by the Trustee shall be repayable by the Company on demand and shall bear interest at the Trustee Prime Rate plus 300 basis points from the date of the advance until repaid. Section 2.10. Indemnification of the Issuer and the Trustee. The Company releases the Issuer and the Trustee from, and covenants and agrees that neither the Issuer nor the Trustee shall be liable for, and covenants and agrees, to the extent permitted by law, to indemnify and hold harmless the Issuer and the Trustee and their respective officials, directors, officers, members, employees and agents from and against, any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from or in any way connected with: (a) the Project, or the conditions, occupancy, use, 41 possession, conduct or management of, or work done in or about, or from the planning, design, acquisition, installation or construction of the Project or any part thereof; (b) the issuance of the Bonds or any certifications, covenants or representations made by the Company in connection therewith and the carrying out of any of the transactions contemplated by the Bonds and this Lease Agreement; (c) following any instruction or other direction upon which the Trustee is authorized to rely pursuant to the terms of the Indenture, this Lease Agreement or any Security Document; (d)the Trustee's acceptance or administration of the trusts under the Indenture, or the exercise or performance of any of its powers or duties under the Indenture and the Security Documents; or (e) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, in any Limited Offering Memorandum or other offering circular utilized by the Issuer or any Placement Agent or placement agent in connection with the sale of the Bonds, provided that the Company shall have no liability to the Issuer under this clause (e) in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based solely upon any untrue statement or omission pertaining only to the Issuer made in the Limited Offering Memorandum under the headings "THE ISSUER" and "LITIGATION - The Issuer"; provided further that the foregoing release and indemnity in this Section 2.10 shall not be required for damages that result from negligence or willful misconduct on the part of the party seeking such release or indemnity. The Company further covenants and agrees, to the extent permitted by law, to pay or to reimburse the Issuer and the Trustee and their respective officials, directors, officers, members, employees and agents for any and all costs, reasonable attorneys' fees and expenses, liabilities or expenses incurred in connection with investigating, defending against or otherwise in connection with any such losses, claims (whether asserted by the Issuer, the Company, a Holder, or any other Person), damages, liabilities, expenses or actions, except to the extent that the same arise out of the gross negligence or willful misconduct of the party claiming such payment or reimbursement or relate to provisions of this indemnity that by their terms the Company shall have no liability therefor. The provisions of this Section 2.10 shall survive the discharge of the Indenture and the retirement of the Bonds, any assignment or termination of this Lease Agreement in accordance with Section 6.1 and Section 9.1 hereof and the resignation or removal of the Trustee for any reason. Section 2.11. Damage; Destruction or Condemnation; and Effect of Company's Defaults. (a) Damage, Destruction or Condemnation. (i) If, during the term of this Lease Agreement, the Project is damaged or destroyed, in whole or in part, by fire or other casualty, or if title to, or the temporary use of, all or any part of the Project shall be condemned by any authority exercising the power of eminent domain, the Company shall, within 30 days after such damage or destruction or the date of entry of a final order in any eminent domain proceedings granting condemnation, promptly notify the Issuer and the Trustee in writing as to the nature and extent of such damage, destruction or condemnation. In addition, the Company shall, with respect to such damage or destruction, notify the Issuer and Trustee in writing whether it is practicable and desirable to rebuild, repair, restore or replace such damage or destruction to the 42 Project or, with respect to such condemnation, the nature and extent of such condemnation and whether it is practicable and desirable to acquire substitute land or construct substitute Project. Any Net Proceeds received by the Company shall be promptly deposited into the Insurance and Condemnation Proceeds Account of the Account Agreement. (ii) If the Company shall determine that such (A) rebuilding, repairing, restoring or replacing the Project, or (B) the acquisition of substitute land and construction of a substitute Project, is practicable and desirable, and within 60 days (or such later date as may be acceptable to the Trustee), the Company delivers a Restoration or Replacement Plan to the Trustee and the Independent Engineer that is based upon, and accompanied by, each of the following: (1) a bona fide assessment (from a contractor chosen by the Company and reasonably acceptable to the Independent Engineer) of the estimated cost and time needed to rebuild, repair, restore or replace such damage or destruction to the Project or to acquire substitute land or construct a substitute Project to substantially the same value and general performance capability as prior to such event or occurrence; (2) reasonably satisfactory evidence that such Net Proceeds, together with other funds to be provided by or on behalf of the Company, are sufficient to rebuild, repair, restore or replace such damage or destruction the Project or, to acquire substitute land or construct a substitute Project, of substantially the same value and general performance capability as prior to such event or occurrence; (3) a certificate of an Authorized Company Representative certifying that (i) all work contemplated to be done under the Restoration or Replacement Plan is reasonably expected to be done within the time periods, if any, required under any Project Contracts; (ii) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (iii) the Project once repaired/restored or substituted will continue to perform at the annual levels set forth in the then-current Operating Budget with respect to production volume, yield and utility consumption (or other levels approved by the written report and analysis of the Independent Engineer); (4) evidence that the event giving rise to the Net Proceeds (including the non-operation of the Project during any period of rebuilding, repair, restoration or replacement, or substitution) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals or Necessary Project Contracts (or, in the case of a default giving rise to a termination of a Necessary Project Contract, an agreement replacing such Necessary Project Contract, in form 43 and substance, and with a counterparty, reasonably satisfactory to the Trustee, is entered into (together with all applicable Ancillary Contracts) within forty-five (45) days thereof (or, if such termination could not reasonably be expected to result in a Material Adverse Effect, within sixty (60) days thereof)); (5) evidence that after taking into consideration the availability of such Net Proceeds, Business Interruption Insurance Proceeds and any additional Required Equity Contribution for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Basic Rent and any anticipated Additional Rent during the period of rebuilding, repair, restoration, replacement or substitution; (6) evidence that construction contractors and vendors of recognized skill, reputation and creditworthiness and reasonably acceptable to the Trustee and the Independent Engineer have executed or will execute reconstruction contracts, purchase orders or similar arrangements for the rebuilding, repairing, restoring or replacing, or substitution, on terms and conditions reasonably acceptable to the Trustee and the Independent Engineer; and (7) a confirmation by the Independent Engineer of its agreement with the matters set forth in clauses (1) to (6) above and its approval of such Restoration or Replacement Plan, which approval will not be unreasonably withheld, conditioned or delayed; then, in such event, the Company shall forthwith proceed with and complete with reasonable dispatch such rebuilding, repairing, restoring or replacing, or substitution. Notwithstanding the foregoing, if the amount of Net Proceeds payable with respect to such damage, destruction or condemnation is [$10,000,000] or greater, the Company may proceed with such rebuilding, repairing, restoring or replacing, or substitution only if it obtains the written consent of the Majority Bondholder, which consent will not be unreasonably withheld. In such case, any Net Proceeds shall be transferred from the Insurance and Condemnation Proceeds Account of the Accounts Agreement to the Construction Account and shall be used and applied for the purpose of paying the cost of such rebuilding, repairing, restoring or replacing, or substitution, of such damage, destruction or condemnation in accordance construction disbursement provisions of Article III hereof and Section 4.01(b) of the Accounts Agreement. Any amount remaining in the Construction Account after such rebuilding, repairing, restoring or replacing, or substitution, shall be applied as set forth in Section 3.6 hereof. (iii) If(A) in the determination of the Company the Project cannot be reasonably rebuilt, repaired, restored or replaced or, substitute land and a substitute Project cannot be acquired or constructed, within a period of six months from the date of notice to the Issuer and the Trustee in clause (i) above to the 44 condition thereof immediately preceding such damage, destruction or condemnation, or (B) in the determination of the Company, the Company is thereby prevented from carrying on its normal operations at such Project for a period of six months from the date of notice to the Issuer and the Trustee in clause (i) above, or (C) in the determination of the Company, the cost of rebuilding, repairing, restoring or replacing or, the cost of substitute land and a substitute Project would exceed the Net Proceeds received, plus the amounts for which the Company is self-insured with respect to the deductible amounts of any such insurance, or (D) if any required consent of the Trustee or Bondholders in clause (ii) above is not obtained within 60 days of the receipt of the Net Proceeds, or(E) the Company fails to deliver the Restoration or Replacement Plan, any Net Proceeds on deposit in the Insurance and Condemnation Proceeds Account of the Accounts Agreement shall be used to redeem Bonds pursuant to Section 3.03(c) of the Indenture pursuant to Special Mandatory Redemption from Net Proceeds; provided, however, that, notwithstanding the foregoing to the contrary, if the Project shall only be damaged in part, Bonds shall only be redeemed if the Trustee receives a certificate of an Authorized Company Representative to the effect that (x) the property damaged or destroyed or the property condemned or taken by eminent domain, was not essential in the Company's operation of the Project and the failure to replace such property will not adversely affect the Company's operations, and (y) the remainder of the Project is structurally sound and useable by the Company and the Independent Engineer shall have issued a report to the Trustee and the Majority Bondholder confirming (x) and(y) above. (iv) The Company shall not, by reason of its inability to use all or any part of the Project during any period in which the Project is damaged, destroyed or condemned, or is being repaired, rebuilt, restored or replaced, or substitute land and a substitute Project are being acquired or constructed, be entitled to any reimbursement or any abatement or diminution of the Basic Rent or Additional Rent payable by the Company under this Lease Agreement nor of any other obligations of the Company under this Lease Agreement except as may be expressly provided in this Section. (b) Cooperation of Issuer. The Issuer shall cooperate fully with the Company in the handling and conduct of any prospective or pending proceedings relating to the damage, destruction or condemnation of the Project or any part thereof, unless, in the case of a condemnation, the Issuer is the condemning authority. In no event will the Issuer voluntarily settle or consent to the settlement of any prospective or pending damage, destruction or condemnation proceedings with respect to the Project or any part thereof without the written consent of the Company and the Trustee. (c) Effect of Company's Defaults. Anything in this Section to the contrary notwithstanding, the Issuer and Trustee shall have the right at any time and from time to time to withhold payment of all or any part of the Net Proceeds from the Insurance and Condemnation Proceeds Account or the Construction Account to Company or any third party if an Event of Default has occurred and is continuing, or the Issuer or the Trustee has given notice to Company of any Default which, with the passage of time, will 45 become an Event of Default. In the event Company shall cure any Defaults specified herein, the Trustee shall make payments from the Net Proceeds to Company in accordance with the provisions of this Lease Agreement and the Accounts Agreement. However, if this Lease Agreement is terminated or the Issuer or the Trustee otherwise re- enters and takes possession of the Project without terminating this Lease Agreement, the Trustee shall pay all the Net Proceeds held by it into the Redemption Account of the Bond Fund and all rights of the Company in and to such Net Proceeds shall cease. Such moneys shall be used to redeem Bonds pursuant to Section 3.03(c) of the Indenture pursuant to Special Mandatory Redemption from Net Proceeds. Section 2.12. Proceeds of Series 2014 Bonds; Funding of Indenture Funds; Investments; Tax Agreements. (a) The Company hereby directs the Issuer and the Trustee to dispose of the net proceeds from the sale of the Series 2014 Bonds in the manner specified in Article V of the Indenture and Articles IV and X of the Accounts Agreement. (b) The Company and the Issuer agree that, so long as no Default or Event of Default hereunder has occurred and is continuing, all moneys in any Fund or Account established by the Indenture or the Accounts Agreement evidencing the net proceeds from the sale of the Series 2014 Bonds or otherwise shall, at the written direction of the Company, but subject to the limitations set forth in Section 4.06 of the Indenture, be invested only in Cash Equivalents in the manner and to the extent provided in the Indenture and the Accounts Agreement and, in the case of gross proceeds of the Series 2014 Bonds,the Tax Agreement. (c) The Trustee is hereby authorized to trade with itself and its affiliates in the purchase and sale of securities for such investments, and may invest moneys in its own certificates of deposit or time deposits (and those of its affiliates) so long as the same constitute Cash Equivalents. The Trustee shall not be liable or responsible for any loss resulting from any such investment so long as investment was made in accordance with the duties imposed on the Trustee pursuant to the Indenture. Except as otherwise provided by the Indenture and, in the case of gross proceeds of the Series 2014 Bonds, the Tax Agreement, all such investments shall be held by or under the control of the Trustee and any income resulting therefrom shall be held or deposited in the respective Fund or Account as described in Article V and Section 6.01 of the Indenture or as described in the Accounts Agreements with respect to investments in the Project Accounts. (d) The foregoing notwithstanding, the Company will take all actions necessary, including without limitation providing the Trustee with all necessary directions, to assure that such moneys are continuously invested in accordance with the provisions of the Indenture and, in the case of gross proceeds of the Series 2014 Bonds, the Tax Agreement. 46 Section 2.13. Other Amounts Payable by the Company. (a) The Company agrees to pay or cause to be paid directly to the Trustee (i) an amount equal to its and all other Administration Expenses, including, but not limited to the annual fee of the Trustee for the ordinary services rendered by the Trustee, as trustee, and its ordinary expenses and all advances, Counsel fees and other expenses necessarily made or incurred under the Indenture, as and when the same become due, (ii) an amount equal to the reasonable fees, charges and expenses (including advances and Counsel fees) of the Majority Bondholder, (iii) the reasonable fees, charges and expenses (including advances and Counsel fees) of the Trustee, as Bond Registrar and paying agent, and any other paying agent on the Bonds acting as paying agent as provided in the Indenture, as well as the reasonable fees and expenses of the Independent Engineer or other consultants or Counsel engaged to assist the Trustee in carrying out its duties and responsibilities hereunder, as and when the same become due, (iv) the reasonable fees, charges and expenses (including advances and Counsel fees) of the Trustee for the necessary extraordinary services rendered by it and extraordinary expenses incurred by it under the Indenture, including, without limitation, its fees and expenses in connection with any duties to be performed during the occurrence and continuation of an Event of Default, as and when the same become due, including the costs of any exchange or transfer of Bonds described in Section 2.05 of the Indenture or which is expressed to be at the sole cost and expense of the Company, and (v) all other amounts payable to the Trustee under this Lease Agreement forthwith upon the giving of notice by the Trustee. (b) The Company further covenants to pay or cause to be paid directly to the Issuer (i) the issuance fee of the Issuer, and the fee of its Counsel and its Bond Counsel, prior to or contemporaneously with the issuance of the Series 2014 Bonds or as otherwise agreed by the Company and the Issuer and (ii) within 30 days after receipt of a bill therefor, the reasonable fees and expenses of the Issuer, including reasonable fees and expenses of its Counsel and its Bond Counsel, in connection with and as provided in this Lease Agreement and the Series 2014 Bonds, such fees and expenses to be paid directly to the Issuer or as otherwise directed in writing by the Issuer. (c) In addition to the covenant of the Company set forth in Section 2.3.7(d) hereof, the Company agrees to pay any costs incurred by the Issuer as a result of the Issuer's compliance with an audit(random or otherwise), investigation, or compliance check by the Internal Revenue Service, the Minnesota Department of Revenue,the Minnesota Office of the State Auditor, or any other governmental agency with respect to the Bonds or the Project. Section 2.14. Assignment and Pledge of Issuer's Rights; Unconditional Obligation. (a) As security for the payment of the Bonds,the Issuer will assign and pledge to the Trustee all right, title and interest of the Issuer in and to this Lease Agreement, including the right to receive payments hereunder and thereon (except its Unassigned Rights, including without limitation, the right to receive payment of expenses, fees, indemnification and the rights to make determinations and receive notices as herein provided) and hereby directs the Company to make such payments directly to the Trustee. 47 The Company herewith assents to such assignment and pledge and will make payments directly to the Trustee. The obligations of the Company to make payments or cause the same to be made under this Lease Agreement shall be complete and unconditional and the amount, manner and time of making such payments shall not be decreased, abated, postponed or delayed for any cause or by reason of the happening or non-happening of any event, irrespective of any defense or any right of set-off, recoupment or counterclaim which the Company may otherwise have against the Issuer, the Trustee or any Bondholder for any cause whatsoever including, without limiting the generality of the foregoing, any declaration or finding that the Bonds or the Indenture are invalid or unenforceable or any other failure or default by the Issuer or the Trustee. Notwithstanding the foregoing, neither the Issuer nor the Trustee shall have any obligation to advance or expend funds under this Lease Agreement beyond the extent of moneys in the Funds established under the Indenture available therefor. (b) This Lease Agreement and the obligations of the Company to make payments hereunder and thereunder are general obligations of the Company payable from any available funds of the Company. Section 2.15. Indenture Provisions. The Indenture provisions concerning the Bonds and the other matters therein are an integral part of the terms and conditions for the financing of the Project that is being leased by the Issuer to the Company pursuant to this Lease Agreement, and the execution of this Lease Agreement shall constitute conclusive evidence of approval of the Indenture by the Company to the extent it relates to the Company. Additionally, the Company agrees that, whenever the Indenture by its terms imposes a duty or obligation on the Company, such duty or obligation shall be binding upon the Company to the same extent as if the Company were an express party to the Indenture, and the Company hereby agrees to carry out and perform all of its obligations under the Indenture as fully as if the Company were a party to the Indenture. Section 2.16. Exemption from Personal Liability. (a) No recourse under or upon any obligation, covenant or agreement created by this Lease Agreement, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, organizer, stockholder, member, manager, director, officer or employee, as such, past, present or future, of the Company or of any predecessor or successor limited liability company or corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Lease Agreement is solely a Company obligation, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, organizers, stockholders, members, managers, directors, officers or employees, as such, of the Company or any predecessor or successor limited liability company or corporation, or any of them, under or by reason of the obligations, covenants or agreements contained in this Lease Agreement or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, organizer, stockholder, director, officer, member, manager or employee, as such, under or by reason of the 48 obligations, covenants or agreements contained in this Lease Agreement, or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Lease Agreement. (b) No recourse shall be had for the payment of the principal of or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained herein or in the Indenture or in any other document executed by the Issuer in connection with the transaction contemplated by this Lease Agreement, against any past, present or future officer, member, employee or agent of the Issuer, or through the Issuer, or any successor corporation, governmental body or authority under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such officer, employee, member or agent as such is hereby expressly waived and released as a condition of and in consideration for the execution of this Lease Agreement, the Indenture and the issuance of any of the Bonds. Section 2.17. Notice to Issuer and Trustee of Certain Events. If, at any time during the term of this Lease Agreement, the Company changes its state of organization, changes its form of organization, changes its name, or takes any other action which could affect the proper location for filing of Uniform Commercial Code financing statements or continuation statements or which could render existing filings seriously misleading or invalid, the Company shall immediately provide written notice of such change to the Issuer and the Trustee and thereafter promptly deliver to the Issuer or the Trustee such additional information or documentation regarding such change as the Issuer or the Trustee respectively may reasonably request for the purpose of amendment and/or refiling, at the expense of the Company, as may be reasonably determined to be necessary by the Issuer or the Trustee or their respective Counsel. Section 2.18. No Recourse to Issuer. The Issuer will not be obligated to pay the Bonds except from Basic Rent payments made by the Company under this Lease Agreement. Anything contained in this Lease Agreement to the contrary notwithstanding, any obligation the Issuer may incur in connection with the undertaking of the Project for the payment of money shall not be deemed to constitute a debt or general obligation of the Issuer, the State or any political subdivision or municipality thereof, but shall be payable solely from the payments to be made by the Company under this Lease Agreement and from amounts payable under the Security Documents, from certain funds and accounts pledged to the Trustee under the Indenture and as otherwise provided in the Indenture. No provision in this Lease Agreement or any obligation herein imposed upon the Issuer, or the breach thereof, shall constitute or give rise to or impose upon the Issuer, the State or any political subdivision thereof a pecuniary liability or a charge upon its faith and credit or taxing powers. No officer, director, employee, member or agent of the Issuer shall be personally liable on this Lease Agreement. 49 Section 2.19. Misuse of Bond Proceeds; Litigation Notice. The Company shall give the Issuer and the Trustee prompt written notice of any Misuse of Bond Proceeds or action, suit or proceeding pending or threatened against it at law or in equity, or before any governmental instrumentality or agency, which, if adversely determined, would materially impair the right of the Company to carry on the business which is contemplated in connection with the Project or would materially and adversely affect its business, operations,properties, assets or condition. (END OF ARTICLE II) 50 ARTICLE III ACQUISITION OF PROJECT BY ISSUER; ACTIVATION OF CONSTRUCTION ACCOUNT UPON RECEIPT OF NET PROCEEDS OR PROCEEDS OF ADDITIONAL BONDS Section 3.1. Issuer's Agreement to Acquire Project from Company; Company's Agreement to Convey Project to Issuer; and Payment of Acquisition Price. (a) Pursuant to the Base Lease and simultaneously with the issuance and sale of the Bonds, the Company shall convey to the Issuer, free and clear of all liens and encumbrances, a leasehold interest in the Project and Project Site as described in Exhibit A hereto, including all improvements thereto and all equipment financed with the proceeds of the Series 2014 Bonds, subject only to Permitted Encumbrances. (b) In consideration of the Company's execution and delivery of the Transaction Documents, the conveyances recited above and other good and valuable consideration, the Issuer shall, upon satisfaction of the conditions set forth in Section 2.04 of the Indenture and Section 3.3 of the Lease Agreement, pay or caused to be paid to the Company the Acquisition Price, any unpaid Project Costs and Costs of Issuance from moneys on deposit in the Acquisition Account of the Accounts Agreement upon presentation of an Acquisition Funding Notice in the form attached hereto as Exhibit L. The Company shall submit one electronic copy of such Acquisition Funding Notice to the Trustee and one electronic copy to the Independent Engineer. (c) The Company will allocate the proceeds of the Series 2014 Bonds, including investment income thereon, solely in accordance with the provisions of the Indenture,this Lease Agreement and the Tax Agreement. (d) The Company has heretofore acquired, constructed, equipped, install and improved the Project and will operate and maintain or cause to be operated and maintained the Project in such manner as to comply with the Act and to comply in all material respects with all applicable requirements of federal, state and local laws and the regulations, rules and orders of any federal, state or local agency, board, commission or court having jurisdiction over the Project or the operation thereof, including without limitation applicable zoning, planning, building and environmental laws, regulations, rules and orders; provided that the Company shall be deemed in compliance with this Section 3.1 so long as it is Contesting in good faith any such requirement by appropriate legal proceedings. (e) Subject to the Security Documents, and the submission by the Company, and the approval by the Trustee, of plans and specification therefor, which shall include detailed written cost estimates and drawings, the Company may at its own expense cause a portion of the Project to be remodeled or cause such remodeling, substitutions, modifications and improvements to be made to a portion of the Project from time to time as the Company, in its discretion, may deem to be desirable for its uses and purposes, which remodeling, substitutions, modifications and improvements shall be included under the terms of this Lease Agreement as part of the Project and subject to the lien and 51 security interest of the Security Documents; provided that the Company receives a Favorable Opinion of Counsel with respect to such remodeling, substitution, modification or improvement. The Trustee's approval of any such plans and specifications may be subject to the judgment of the Independent Engineer that any such remodeling, substitutions, modifications and improvements to be made to a portion of the Project shall not have a Material Adverse Effect. Section 3.2. Conditions to All Construction Fundings Upon Deposit of Net Proceeds or Proceeds of Additional Bonds in Construction Account. The obligation of the Trustee to make available amounts on deposit in the Construction Account under the Accounts Agreement resulting from Net Proceeds and any proceeds of Additional Bonds issued for payment of Project Costs, as well as any Required Equity Contribution, shall be subject to the fulfillment of the following conditions precedent to the satisfaction of the Trustee: Section 3.2.1. Construction Advance Funding Notice. Not more frequently than monthly, unless agreed to by the Trustee, the Company shall submit to the Trustee, with a copy to the Independent Engineer, a Construction Advance Funding Notice in the form attached hereto as Exhibit G, duly executed by the Company, as required by and in accordance with Section 3.4 hereof, which shall include: (a) all information and materials required by Section 3.4.1 with respect to which such Funding is requested, together with the corresponding Informational Report(s) covering the period since the preceding Funding (or, in the case of the initial Funding, since the date of the Construction Contract), each of which shall be certified as true and complete by the Company and the General Contractor and substantiated by the Independent Engineer; (b) all invoices or other appropriate documentation supporting the payments or reimbursements requested; (c) absolute and unconditional sworn Lien waiver statements in the forms attached to the Construction Contract evidencing receipt of payment by the General Contractor, all subcontractors, all contractors performing the Owner's Scope and all other Persons who were paid from the proceeds of the then last preceding Funding; provided, that in the case of the initial Funding, such Lien waiver statements shall evidence receipt of all payments paid or due and payable by the Company to the General Contractor, all subcontractors and all other Persons since the date of the Construction Contract. Such Lien waiver statements shall (i) be dated on or about the date of the Construction Advance Funding Notice and (ii) cover all work done and all sums received through the date of the then last preceding Funding (or, in the case of the initial Funding, the date of the Construction Contract). Each such Lien waiver statement shall be certified as true and correct and complete by the Company and the General Contractor and shall be verified by the Independent Engineer; (d) a list of all Change Orders not theretofore submitted to the Trustee, together with a statement by the Company that copies of the same have been 52 submitted to the Independent Engineer prior to the date of such Construction Advance Funding Notice and a list of all Change Orders to the date of such Construction Advance Funding Notice and a list of all contemplated Change Orders, together with confirmation that each such Change Order is in compliance with Section 2.6.14 hereof; (e) evidence (which shall include the waiver of Liens required under Section 3.2.1(c) hereof and a detailed receipt for payment itemized by line item in the Construction Budget) reasonably satisfactory to the Independent Engineer that the full amount of the proceeds of the then last preceding Funding has been paid out by the Company or the General Contractor to the Persons with respect to whom such Funding proceeds were disbursed and otherwise in accordance with this Lease Agreement;provided,that if there has been no such preceding Funding, such evidence shall confirm receipt of all payments due and payable by the Company to the General Contractor, all subcontractors and all other Persons since the date of the Construction Contract; (f) a certification of an Authorized Company Representative confirming that the requested Funding, when considered on its own and when considered on an aggregate basis with all prior Fundings, is in compliance with the Drawdown Schedule attached hereto as Schedule 3.2.1 (or, if such Funding would be in excess of the Drawdown Schedule, such deviation from the Drawdown Schedule has been approved by the Trustee (in consultation with the Independent Engineer), specifying the stage and percentage of completion which has been achieved by each of the various trades engaged in the construction of the Project and that the aggregate amount of the disbursement request is not greater than the actual value of the work and labor performed on the Project and the materials incorporated into the Project (or suitably stored on the Project Site) up to the date of such certificate (in the case of the first such certificate) or to the date of such certificate from the date of the previous certificate (in the case of any subsequent certificate); (g) a certification of an Authorized Company Representative confirming that the Company is in compliance with all conditions set forth in this Section 3.2.1, and, on and as of the proposed Funding Date, before and after giving effect to such Funding and to the application of the proceeds therefrom; (b) a certification of an Authorized Company Representative confirming that all representations and warranties made by the Company in this Lease Agreement and each of the other Bond Documents to which it is a party are true and correct in all material respects on and as of such Funding Date (except with respect to representations and warranties that expressly refer to an earlier date), before and after giving effect to such Funding and to the application of the proceeds therefrom; 53 (j) a certification of an Authorized Company Representative confirming that as of the date of such Construction Advance Funding Notice, no Material Adverse Effect has occurred and is continuing; and (k) a certification of an Authorized Company Representative confirming that no Event of Default has occurred and is continuing under this Lease Agreement. Section 3.2.2. Independent Engineer's Funding Certification. The Trustee shall have received an Independent Engineer's Funding Certificate in respect of such Construction Advance Funding Notice duly executed by the Independent Engineer and in the form attached hereto as Exhibit D. Section 3.2.3. Title Insurance. The Trustee shall have received lien waivers in the form attached to the Construction Contract from the General Contractor and all other contractors, subcontractors and materialmen that have performed work in connection with the Project, and the Trustee shall have received a Title Continuation and a Future Advance Endorsement (or Future Advance Endorsements) to the Title Policy in the form attached hereto as Exhibit E, which Future Advance Endorsement (or Future Advance Endorsements) shall have the effect of(a) updating the date of the Title Policy to the date of the requested Funding and(b)providing full mechanics' lien coverage. Section 3.2.4. Updated Survey. If the Company acquires any land (leasehold, fee or easement) not shown on the then-current Survey, the Trustee shall have received an updated Survey of the Project Site including such new leasehold, fee or easement areas. Section 3.2.5. Mechanic's Liens. There are no mechanic's, workmen's, materialmen's, construction or other like Liens encumbering the Project (other than Permitted Encumbrances), regardless of whether such Liens appear as an exception to the Title Policy or the Title Continuation. Section 3.2.6. Additional Project Contracts and Deferred Contracts. An Authorized Company Representative shall have certified that the Company has provided to the Trustee copies of any Additional Project Contract or Deferred Contracts entered into by the Company since the date of this Lease Agreement (including any Necessary Project Contracts required to be executed on or before the date of such Construction Advance Funding Notice in accordance with Schedule 2.3.16, together with all amendments, supplements, schedules and exhibits thereto and the Ancillary Contracts relating thereto, each of which (a) shall have been duly authorized, executed and delivered by each Person party thereto, and(b) shall be in full force and effect. Section 3.2.7. Required Equity Contribution. The Trustee shall have received reasonably satisfactory evidence that the Required Equity Contribution, as may be supplemented by the provisions of Section 3.4.1(vii), hereof has been funded and is on deposit in the Construction Account of the Accounts Agreement and is available to be 54 applied to pay Project Costs in the amount specified to be funded as of the relevant date of any construction-related Funding. Section 3.3. Conditions to any Funding From the Acquisition Account or the Construction Account on or after the Completion Date. The obligation of Trustee to make available amounts on deposit in the Acquisition Account of the Accounts Agreement for payment of the Acquisition Price or, in the Construction Account of the Accounts Agreement for payment of the Project Costs on or after the Completion Date (as a result of the receipt of Net Proceeds or the proceeds of a series of Additional Bonds), shall be subject to the fulfillment of the following conditions precedent to the satisfaction of the Trustee: Section 3.3.1. Completion. (a) Completion shall have occurred and (b) the Performance Tests shall have been achieved. Section 3.3.2. Completion Certificate of Independent Engineer and Company. The Trustee shall have received the Completion Certificate of Independent Engineer in the form of Exhibit F-1, duly executed by the Independent Engineer, and the Completion Certificate of Company in the form of Exhibit F-2, duly executed by the Company. Section 3.3.3. Insurance. The Trustee shall have received binders or certificates evidencing the commitment of insurers to provide the insurance policies required by Section 2.5.4 hereof, together with evidence of the payment of all premiums then due and payable in respect of such insurance policies and a certificate of the Company's insurance broker (or insurance carrier) certifying that all such insurance policies are in full force and effect, and the Trustee shall have received a certificate of the Insurance Consultant in substantially the form of Exhibit I with respect thereto. Section 3.3.4. Security. The Trustee shall have received evidence that (a) the Trustee continues to have a perfected first priority security interest in all right, title and interest of the Company and the Pledgor in and to the collateral securing the Bonds prior to all other Liens thereon and subject only to Permitted Encumbrances, and (b) all Governmental Approvals that are necessary or desirable in order to establish, protect, preserve and perfect the Trustee's Liens have been duly made or taken and are in full force and effect. Section 3.3.5. Updated Operating Budget and Plan. The Trustee shall have received a copy of the approved Operating Budget in accordance with Section 2.5.19 hereof. Section 3.3.6. Funds and Accounts. The Funds and Accounts shall continue to be maintained in accordance with the Indenture and shall contain all amounts, if any, required to be deposited therein as of the Completion Date and shall have all amounts, if any, required to be disbursed therefrom as of the Completion Date. Section 3.3.7. Legal Opinions. The Trustee shall have received legal opinions from Counsel to the Company and the Pledgor, each in form and substance reasonably satisfactory to the Trustee, addressing those matters relating to the Project, the Bond 55 Documents and the transactions contemplated therein, and the collateral for Bonds, as well as any Additional Project Contracts, as the Trustee may reasonably request. For example, such opinions may include, but are not limited to, opinions of counsel addressing corporate matters with respect to any Additional Project Contracts entered into on or prior to the Completion Date, if any, or opinions addressing permitting matters with respect to new Governmental Approvals for the Project, if any. Section 3.3.8. Liens Waivers; Title Insurance. The Trustee shall have received lien waivers in the form attached to the Construction Contract from the General Contractor and all other contractors, subcontractors and materialmen that have performed work in connection with the Project, and the Trustee shall have received a Title Continuation and a Future Advance Endorsement (or Future Advance Endorsements) to the Title Policy, which Future Advance Endorsement (or Future Advance Endorsements) shall have the effect of(i)updating the date of the Title Policy to the date of the requested Funding and(ii)providing full mechanics' lien coverage. Section 3.3.9. Final Survey. The Trustee shall have received a satisfactory final as-built Survey of the Project demonstrating that the Project has all real property interests required by the Bond Documents and showing no Liens other than Permitted Encumbrances. Section 3.3.10. Mechanic's Liens. There are no mechanic's, workmen's, materialmen's, construction or other like Liens encumbering the collateral securing the Bonds (other than Permitted Encumbrances), regardless of whether such Liens appear as an exception to the Title Policy or the Title Continuation. Section 3.3.11. Additional Project Contracts. An Authorized Company Representative shall have certified that the Company has provided to the Trustee copies of any Additional Project Contracts entered into by the Company since the date of this Lease Agreement (including any Necessary Project Contracts which are Deferred Contracts, required to be executed on or before the date of such Construction Advance Funding Notice in accordance with Schedule 2.3.16), together with all amendments, supplements, schedules and exhibits thereto and the Ancillary Contracts relating thereto, each of which(a) shall have been duly authorized, executed and delivered by each Person party thereto, and(b) shall be in full force and effect. Section 3.4. Disbursements of Proceeds for Construction Resulting From Net Proceeds or Proceeds of Additional Bonds for Payment of Project Costs. Amounts deposited into the Construction Account of the Accounts Agreement from Net Proceeds or from proceeds of Additional Bonds issued for payment of Project Costs in accordance with the provisions of this Lease Agreement. Advances will be as follows: Section 3.4.1. Method of Disbursement: (a) Disbursement Requests. All disbursements of amounts on deposit in the Construction Account of the Accounts Agreement (each a "Funding") shall be made by the Trustee in accordance with the terms and 56 provisions of this Lease Agreement and the Accounts Agreement. All such disbursements shall be used solely for Project Costs; provided, however, notwithstanding anything in this Lease Agreement to the contrary, any disbursements of Net Proceeds or proceeds of Additional Bonds issued for the payment of Project Costs from the Bond Proceeds Subaccount of the Construction Account of the Accounts Agreement shall be used solely to pay Qualified Project Costs. Any disbursements from the Construction Account for the payment of Project Costs shall be for items set forth on the Construction Budget and shall be made by the Trustee only upon its prior written approval of a disbursement request submitted by the Company not more frequently than monthly or more frequently as agreed to by the Trustee. Each such disbursement request (a "Construction Advance Funding Notice") shall be in substantially the form of the disbursement request attached hereto as Exhibit G and shall be consecutively numbered and accompanied by all information requested therein and herein, including, that each draw request for hard costs shall be set forth on AIA Forms G702 and G703 (or another form approved by the Trustee, in consultation with the Independent Engineer). The Company shall submit one electronic copy of such Construction Advance Funding Notice to the Trustee and one electronic copy to the Independent Engineer. The obligation of the Trustee to authorize a release of funds from the Construction Account shall be subject to the Company's satisfaction of the conditions precedent to such a release of funds contained in this Lease Agreement and the requirements of the Accounts Agreement. (b) Review. Within five Business Days of receipt of a complete Construction Advance Funding Notice (each, a"Construction Advance Funding Notice Review Period"), during which time the Trustee (in consultation with and in reliance on the Independent Engineer) shall,to the extent required by this Lease Agreement, determine if the Company shall have satisfied the conditions precedent to a release of a Funding, the Trustee shall provide written approval or disapproval of such draw request. (c) Item Not Described in Construction Budget. Subject to, and except as provided in Sections 2.6.14(c) and 2.6.17 hereof, any disbursement for any item not described in, or the cost for which item is other than as described in, the Construction Budget shall be accompanied by evidence satisfactory to the Trustee and the Independent Engineer that such cost is qualified as a Project Cost included in the Construction Budget. (d) Subcontracts, Plans and Permits. The Trustee shall have no obligation to grant disbursement requests for a particular trade item (or portion of the work of such trade item) unless and until, in the Trustee's discretion, they shall have received and approved (which approval shall not be unreasonably withheld) the subcontract for such trade (or such portion thereof) (and, if surety bonds for such subcontract are required, shall have received such surety bonds), final Plans for such trade (or such portion thereof) and all permits and approvals necessary for the completion of the work of such trade (or such portion thereof). 57 (e) Borrowing Limitations. Except as provided in Sections 2.6.14(e) and 2.6.17 hereof, disbursement requests shall be granted only to defray Project Costs attributable to the Project and described in the Construction Budget and actually incurred by the Company. (f) Deficiency in Cost Category Amounts. Except as provided in Section 2.6.17 hereof, if any amount allocated for Project Costs in any category in the Construction Budget is at any time not sufficient in the reasonable judgment of the Trustee (in consultation with and in reliance on the Independent Engineer) to pay in full such Project Costs in such category, the Trustee shall not be obligated to grant further disbursement requests and the Company shall promptly furnish satisfactory evidence to the Trustee that the Company has invested in the Project an amount for such category that is sufficient to pay such Project Costs in full. Such satisfactory evidence may be in the form of cash deposited into the Construction Account of the Accounts Agreement or evidence of payment of the Project Costs evidenced by paid invoices, canceled checks or receipts and accompanied by appropriate lien waivers. Except as provided in Section 2.6.17 hereof, the Trustee shall not be required to grant disbursement requests out of contingency categories of the Construction Budget to cover any such deficiencies, unless in the Trustee's reasonable judgment the Trustee determines that the balance remaining in the Construction Account of the Accounts Agreement available for payment of any contingency after such disbursement request provides adequate contingency reserves. (g) Deficiency in Total Cost Amounts. At all times the sum of the unadvanced portion of the Construction Account of the Accounts Agreement shall be sufficient in the reasonable judgment of the Trustee or the Independent Engineer to pay all Project Costs remaining unpaid. If at any time such sum is not sufficient (taking into account the proviso in (a), above), in the reasonable judgment of the Trustee or the Independent Engineer to pay all unpaid Project Costs, the Company shall immediately upon request by the Trustee deposit with the Trustee cash in an amount equal to such deficiency. (h) Furnishing Documents to the Trustee. The Company shall direct such applications, documents and certificates to the Trustee as the Trustee shall reasonably request and as shall be necessary to effect disbursements in accordance with this Lease Agreement. Each disbursement will be subject to the verification by the Trustee that all requirements of Sections 3.2 and 3.3 hereof and this Section 3.4 have been achieved to the Trustee's satisfaction. Section 3.5. Monthly Reports on Construction Progress: Approval of Material Changes in Construction. The Company will provide to the Trustees and the Independent Engineer, the monthly reports required by Section 2.4.8 hereof. Any changes in the design or construction of the Project will require the approval of the Trustee (in reliance upon the Independent Engineer) if such changes constitute more than a ten percent (10%) change in the 58 overall cost of the Project. In addition, all such changes must comply with must comply with the other applicable provisions of this Lease Agreement, including, but not limited to Section 2.3.7, Section 3.4.1(c ), (d), (e ), (f) and (g) and Section 3.7. Section 3.6. Disbursements on and after Completion Date. On or after the Completion Date, the Trustee shall, in accordance with the Completion Date Funding Notice, disburse as a Funding any undisbursed amounts in the Construction Account in accordance with the provisions Section 4.01(c) of the Accounts Agreement. Each such disbursement request shall be in substantially the form of the disbursement request attached hereto as Exhibit H, Form of Completion Date Funding Notice, and accompanied by all information requested therein and herein. The Company shall submit one electronic copy of such Completion Date Funding Notice to each of the Trustee and the Independent Engineer. The obligation of each of the Trustee and the Independent Engineer to authorize a release of funds from the Construction Account under this Section of the Lease Agreement shall be subject to the lack of existence of a Default or Event of Default. Section 3.7. Plans and Specifications; Change Orders Resulting in Changes or Amendments to the Plans. (a) With respect to Net Proceeds or proceeds of Additional Bonds, prior to the initial Funding, the Company shall provide to the Trustee and the Independent Engineer the final Plans for the Project and, as a condition to the initial Funding, the Independent Engineer shall provide its Funding Certificate in the form of Exhibit D to this Lease Agreement, advising the Trustee, among other things, that in its judgment the Plans, the Construction Budget, the Drawdown Schedule and the Construction Contract are of sufficient detail and specificity for the Independent Engineer to conclude that the proceeds of the Bonds and Required Equity Contribution, as well as any additional cash contributions of the Company or any permitted Additional Indebtedness, are reasonably sufficient to fully fund the Project Costs and achieve Completion of the Project. (b) Subject to the provisions of the next paragraph and Section 2.6.14 hereof, the Company may make, authorize or permit changes or amendments to the Plans or may determine not to complete any portion of the Project for which Bond proceeds and Required Equity Contributions (and investment income thereon) are available, or may finance such portion of the Project from any other source; provided, however, that Bond proceeds (and investment income thereon) otherwise allocable to such portion of the Project must be allocated by the Company for federal income tax purposes to either (i) to pay costs of the remaining parts of the Project, (ii) to pay the cost of other solid waste disposal facilities qualifying under the Act and the Code, subject to the provisions of this Section 3.7 and with the approval of the Issuer, or (iii) to pay or redeem principal on the Bonds in accordance with the provisions of this Lease Agreement and the Indenture, provided that in the case of(ii) or (iii) above, the Company will have received a Favorable Opinion of Counsel with respect to such application. (c) If the Company and the Trustee (in reliance on the advice of the Independent Engineer) consider it necessary or desirable to supplement or amend Exhibit A to this Lease Agreement to reflect changes in the Plans, such supplement or amendment will not be considered as an amendment to this Lease Agreement requiring the consent of any Bondholder for the 59 purposes of Article XI of the Indenture. No change or amendment in the Plans pursuant to the terms of this Section 3.7 or Section 2.6.14 will be made if such change or amendment causes the weighted average economic life of the Project to be reduced unless the Company will have delivered to the Trustee a Favorable Opinion of Counsel with respect to such change or amendment. A copy of each such change in or amendment to Exhibit A hereof shall be filed promptly with the Issuer and the Trustee. In addition, the Company shall deliver to the Issuer a certificate of an Authorized Company Representative detailing the proposed changes to the Plans necessary to satisfy the requirements of this Section and Section 2.6.14. Section 3.8. Records. The Company will maintain such records in connection with the acquisition, construction, installation and equipping of the Project as are required to permit ready identification of the Project and the items of Project Costs and the allocation of proceeds (and investment proceeds) of each series of Bonds to Project Costs. Section 3.9. Operation of Project. So long as the Company leases the Project pursuant to this Lease Agreement and the Bonds are outstanding, the Project will be operated as a"project" within the meaning of Section 469.153, subdivision 2(a) of the Act and the portion of the Project financed by Tax-Exempt Bonds will be operated as a "solid waste disposal facility" as contemplated by Section 142(a)(6) of the Code and applicable Treasury Regulations. To the extent that such definitions are amended after the date of this Lease Agreement and such amended definition is applicable to the Bonds, the Company will use its commercially reasonable best efforts to operate the Project in accordance with such amendments or changes; provided, however, that the Company's failure to operate the Project in such manner will not, in and of itself, constitute a default under this Lease Agreement and further provided, that in the event of a conflict between the provisions of this Section 3.9 and the provisions of Section 2.3.7 hereof, Section 2.3.7 shall control. Section 3.10. Right of Access to the Project and Inspection of Records. The Company agrees that during the term of this Lease Agreement, the Issuer, the Trustee, the Independent Engineer and the duly authorized agents of either of them shall have the right (but not any duty or obligation) at all reasonable times during normal business hours to (a) inspect the records maintained by the Company pursuant to Section 3.8 hereof and, (b) subject to compliance with reasonable security and safety regulations for "visitors or invitees" published from time to time by the Company and, upon reasonable advance written notice, to enter upon the site of the Project to examine and inspect the Project; provided, however, that this right is subject to federal and state laws and regulations applicable to the site of the Project. The rights of inspection and access hereby reserved to the Issuer, the Trustee and the Independent Engineer may be exercised only after the Issuer, the Trustee, the Independent Engineer or such agent shall have executed a secrecy agreement (which agreement must be reasonably acceptable to the Issuer, the Trustee and the Independent Engineer) if requested by the Company in the form then currently used by Company, and nothing contained in this Section 3.10 or in any other provision of this Lease Agreement shall be construed to entitle the Issuer, the Trustee or the Independent Engineer to any information or inspection involving the confidential know-how of the Company. 60 Section 3.11. Authorized Company Representative. (a) The Company shall appoint an Authorized Company Representative for the purpose of acting on behalf of the Company and taking all actions and making all certifications required to be taken and made by an Authorized Company Representative under the provisions of this Lease Agreement and the Indenture, and shall appoint alternate Authorized Company Representatives to take any such action or make any such certification if the same is not taken or made by the Authorized Company Representative. In the event any of said persons, or any successor appointed pursuant to the provisions of this Section 3.11, should resign or become unavailable or unable to take any action or make any certificate provided for in this Lease Agreement or the Indenture, another Authorized Company Representative or alternate Authorized Company Representative shall thereupon be appointed by the Company. If the Company fails to make such designation within 10 days following the date when the then incumbent resigns or becomes unavailable or unable to take any of the said actions, the [Treasurer] of the Company shall serve as the Authorized Company Representative. (b) Whenever under the provisions of this Lease Agreement or the Indenture the approval of the Company is required or the Issuer is required to take some action at the request of the Company, such approval or such request shall be made by the Authorized Company Representative or alternate Authorized Company Representative unless otherwise specified in this Lease Agreement or the Indenture, and the Issuer or the Trustee shall be authorized to act on any such approval or request. Section 3.12. Disbursements from Operating Expense Reserve Account . Amounts deposited into the Operating Expense Reserve Account shall be disbursed by the Accounts Bank at the request of the Company for the payment of unforeseen and unbudgeted expenses of the Company attributable to the operation or maintenance of the Project in accordance with the provisions of the Accounts Agreement. The obligation of the Accounts Bank to authorize a release of funds from the Operating Expense Reserve Account shall be subject to the Company's satisfaction of the conditions precedent to such a release of funds contained in the Accounts Agreement, as evidenced by the Trustee's execution of the Operating Expense Reserve Account Withdrawal Certificate. (END OF ARTICLE III) 61 ARTICLE IV ISSUANCE OF SERIES 2014 BONDS; LEASE OF THE PROJECT Section 4.1. Issuance of Series 2014 Bonds. In order to finance a portion of the Project Costs, the Issuer will issue, sell and deliver the Series 2014 Bonds to the initial purchasers thereof and cause the deposit of the proceeds of the Series 2014 Bonds with the Trustee as provided in Articles X and XIII of the Accounts Agreement. The obligations of the Company under this Lease Agreement, including specifically the obligation to make Lease Payments as provided in Section 5.1(a) hereof, are absolute and unconditional and shall be secured by the Security Documents. The Issuer authorizes the Trustee to disburse the proceeds of the Series 2014 Bonds in accordance with Articles X and XIII of the Accounts Agreement. The Company hereby approves the Indenture and the issuance by the Issuer of the Series 2014 Bonds and all of the terms and conditions thereof. In consideration of the issuance of the Series 2014 Bonds, the Company agrees to execute and deliver the Accounts Agreement. Section 4.2. Lease of the Project to the Company Term of Lease Agreement; Operation and Use of Project. The term, use, operation and enjoyment of the Project under the Lease Agreement shall be as follows: Section 4.2.1. Term of Lease Agreement. The Issuer, as landlord, hereby leases and rents its leasehold interest in the Project and the Project Site (including all machinery, equipment and related personal property used in connection therewith, whether financed with the proceeds of the Bonds or otherwise) to the Company, as tenant, and the Company hereby leases and rents the Project from the Issuer at the rental set forth in Section 5.1 hereof for a term commencing on the date of delivery of the Series 2014 Bonds and continuing in force and effect, subject to earlier termination as provided herein, until the principal of,premium, if any, and interest on the Series 2014 Bonds shall have been fully paid (or provision for payment shall have been made in accordance with Article VII of the Indenture), together with all sums to which the Issuer and the Trustee are entitled from the Company under this Lease Agreement; provided, however that the provisions of Section 2.10 related to the indemnification of the Issuer and the Trustee shall remain in full force and effect notwithstanding the termination of this Lease Agreement. This Lease Agreement shall be effective upon its delivery. Section 4.2.2. Quiet Enjoyment and Possession. (a) The Issuer covenants that the Company shall and may peaceably and quietly have, hold and enjoy the Project, and that the Issuer will either defend the Company's enjoyment and possession thereof against all parties (but only if the Company pays the Issuer in advance for all costs related to such defense) or, to the extent such an action is lawful, allow the Company to prosecute such defense. (b) The Issuer and the Company acknowledge and agree that as a part of a plan of finance for the Project and Project Site and in furtherance of the purposes and provisions of the Act (i) pursuant to the Base Lease, the Company has leased the Project and the Project Site to the Issuer and (ii) pursuant to this Lease, the Issuer has leased the Project and the Project Site back to the Company. Each such party acknowledges receipt of good 62 and valuable consideration for such plan of finance. To that end, the Issuer and the Company agree that neither party will assert against the other in any proceedings involving the Base Lease or this Lease the doctrine of merger or consolidation and that each will defend and affirm to the other or to any Person or Persons who may assert a claim of merger or consolidation of the fee and leasehold estates of such parties,that the Base Lease and the Lease constitute their respective legal, valid and binding obligations enforceable in accordance with their respective terms. (c) The Issuer and the Company each covenant and agree that if for any reason either shall voluntarily, involuntarily by operation of Law or otherwise transfer its leasehold interest in the Project and the Project Site created under the Base Lease or this Lease,that they shall do so on the condition that their respective successors in interest shall attorn to and agree not to disturb the leasehold estate created by the Base Lease and this Lease. Section 4.2.3. Operation and Use of the Project. (a) The Company shall have the exclusive use and possession of the Project during the term of this Lease Agreement without hindrance by the Issuer and shall have the exclusive right and responsibility for the management, direction, control and operation of the Project. (b) The Company shall comply with all statutes, laws, ordinances, orders, judgments, decrees, regulations, directions and requirements of all federal, state, local and other governments or governmental authorities, now or hereafter applicable to the Project, or the manner of use or condition of the project, or otherwise. The Company shall pay all costs, expenses, claims, fines,penalties and damages that may in any manner arise out of, or be imposed as a result of, the failure of the Company or any other user to comply with this Section. Notwithstanding any provision contained in this Section, however, the Company shall have the right, at its own cost and expense, to Contest by legal or other appropriate procedures the validity or legality of any such governmental statute, law, ordinance, order,judgment, decree, regulation, direction or requirement, and during such Contest the Company may refrain from complying therewith. Section 4.3. Warranties and Covenants of Issuer as to Title. The Issuer has agreed to obtain a leasehold interest in the Project and the Project Site for financing purposes only. The Issuer disclaims any interest in any items of equipment and related personal property that are neither acquired with proceeds of the Bonds nor additions or alterations, replacements or substitutions therefor. The Issuer warrants and covenants that, except for this Lease Agreement and the Security Documents, the Issuer shall not otherwise encumber the Project or any part thereof without the prior written consent of the Company and the Trustee. The Issuer covenants to take all acts necessary to defend its title to the Project and will do no act to impair such title, except as may be expressly permitted by the Indenture, this Lease Agreement and the other Bond Documents; provided that the cost of such action is paid for in advance by the Company, or the Issuer is indemnified for such costs by the Company to the Issuer's satisfaction. The Issuer makes no warranty as to the design, suitability, condition or fitness for purpose of the Project. 63 Section 4.4. Warranties and Covenants of Company as to Title. The Company shall take such actions as are necessary to cause title to the Project to vest in the Issuer subject to this Lease Agreement, the Base Lease and the Permitted Encumbrances. The Company further covenants to pay all costs and expenses which are necessary to defend the title of the Issuer to the Project, and will do no act that will impair such title, except as may be expressly permitted by the Indenture, this Lease Agreement and the other Bond Documents. (END OF ARTICLE IV) 64 ARTICLE V RENTAL PAYMENTS Section 5.1. Basic Rent; Additional Rent. (a) In consideration of the lease of the Project, the Company shall, under all circumstances, make or cause to be made, as Lease Payments, to the Trustee for the account of the Issuer, in immediately available funds which are sufficient to pay when due the principal of, premium, if any, and interest due on the Bonds. The Company agrees to make or cause to be made Lease Payments to the Trustee in the amounts and at the times provided in Section 2.7(a)(i) and (ii) hereof so as to enable the Trustee to make the deposits required by Sections 5.03(c)(i) and 5.03(c)(ii) of the Indenture. All Lease Payments received by the Trustee shall be held and disbursed in accordance with the provisions of the Accounts Agreement, the Indenture and this Lease Agreement for the application to the payment of principal of and interest on the Bonds. The Company shall be entitled to a credit against the Lease Payments required to be made to the extent provided in Section 2.7(b) hereof and in the Indenture, including as set forth in Sections 5.03(d) and(e) of the Indenture. (b) The Company shall pay or cause to be paid to the Trustee, as Additional Rent hereunder, the Administration Expenses within 30 days after receipt of a bill therefor, for application as provided in this Lease Agreement and the Indenture. (c) The Company may, without creating a Default hereunder, Contest in good faith the reasonableness of any such Administration Expense claimed to be due to the Issuer, the Trustee, the Registrar, the Independent Engineer, any Rating Agency or any Securities Depository. (d) In the event the Company should fail to pay or cause to be paid any Administration Expenses as provided herein when due, the payment in Default shall continue as an obligation of the Company until the amount in Default shall have been paid together with interest thereon during the Default period at the interest rate for any Trustee advances pursuant to the Indenture. (e) In the event the Company shall fail to make, or cause to be made, any payment of Basic Rent or Additional Rent,the payment so in Default shall continue as an obligation of the Company under this Lease Agreement until the amount in Default shall have been fully paid, and the Company will pay interest on any overdue amount with respect to principal of the Bonds and, to the extent permitted by law, on any overdue amount with respect to premium, if any, and interest on the Bonds, at the interest rate then borne by the Bonds until paid. (f) If the Company has deposited moneys and/or Government Obligations pursuant to Section 7.01 of the Indenture, and thereafter the Series 2014 Bonds become subject to mandatory redemption upon a Determination of Taxability (as defined in Section 8.2(b) herein) or become subject to mandatory redemption to remediate a change in use under the Code and there are insufficient moneys available under the Indenture to 65 effect such redemption, the Company covenants and agrees to pay to the Trustee under the Indenture any such deficiency amount as is necessary to redeem such Series 2014 Bonds on the date fixed for redemption. Section 5.2. Basic Rent Payments Assigned; Obligation Absolute. It is understood and agreed that the Basic Rent payments hereunder are pledged and assigned by the Issuer to the Trustee pursuant to the Indenture, and that all right, title and interest of the Issuer hereunder (except for Unassigned Rights) are pledged and assigned to the Trustee pursuant to the Indenture. The Company assents to such pledge and assignment and agrees that the obligation of the Company to make the Basic Rent payments shall be absolute, irrevocable and unconditional and shall not be subject to cancellation, termination or abatement, or to any defense other than payment, or to any right of setoff, counterclaim or recoupment arising out of any breach under this Lease Agreement or the Indenture or otherwise by the Company, the Trustee, the Registrar or any other party, and, further, that the Basic Rent payments and the other payments due hereunder shall continue to be payable at the times and in the amounts herein and therein specified whether or not the Project, or any portion thereof, shall have been destroyed by fire or other casualty, or title thereto, or the use thereof, shall have been taken by the exercise of the power of eminent domain, and that there shall be no abatement of or diminution in any such payments by reason thereof, whether or not the Project shall be used or useful and whether or not any applicable laws, regulations or standards shall prevent or prohibit the use of the Project or for any other reason. The Issuer shall, by the Indenture, grant a security interest to the Trustee, its successors in trust and its and their assigns forever, in all of its rights to and interest in the Trust Estate including, without limitation, all Basic Rent payments. The Company hereby agrees and consents to that grant of a security interest. The Company shall furnish the Mortgage and certain other Security Documents to the Trustee. Section 5.3. Payment of Administration Expenses and Other Expenses. The Company shall pay, within 30 days after receipt of a bill therefor, all of the Administration Expenses of the Issuer, the Trustee, the Registrar, the/ Majority Bondholder and the Securities Depository under the Indenture directly to each such entity; provided that an Authorized Company Representative shall have approved such expenses in writing prior to their occurrence. The Company shall also pay or cause to be paid all other reasonable fees and expenses incurred in connection with the issuance of the Series 2014 Bonds, including, but not limited to, all costs associated with any discontinuance of the book-entry system described in Section 2.10 of the Indenture. The obligations of the Company under this Section 5.3 shall survive the termination of this Lease Agreement. (END OF ARTICLE V) 66 ARTICLE VI ASSIGNMENT Section 6.1. Conditions. The Company's interest in this Lease Agreement may be assigned in whole or in part (which shall include a subletting of the Project) by the Company to another entity, subject, however, (a) to the conditions that such assignment shall not relieve (other than as described in Section 2.6.1 hereof) the Company from primary liability for its obligations to make the Basic Rent payments or for any other of its obligations hereunder, and (b) the prior written consent of the Issuer and the Trustee, which consent shall be given if the following conditions are fulfilled: (i) the assignee assumes in writing all of the obligations of the Company under this Lease Agreement; (ii) the assignee provides the Issuer and the Trustee with an opinion of Counsel satisfactory to the Issuer and the Trustee to the effect that neither the validity nor the enforceability of this Lease Agreement shall be adversely affected by such assignment; (iii) the Project shall continue in the opinion of Bond Counsel to be a "project" as such term is defined in the Act after such assignment; (iv) such assignment shall not, in the opinion of Bond Counsel, have an adverse effect on the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds; and (v)the Trustee, at the request and direction of the Company, shall have solicited the consent to such transaction from and received the consent of the Holders of a majority in principal amount of the Bonds Outstanding pursuant to Section 11.06 of the Indenture. Subject to the foregoing, the terms "Issuer," "Company" and "Trustee" shall, where the context requires, include the respective successors and assigns of such Persons. Section 6.2. Documents Furnished to Issuer and Trustee. The Company shall, within 30 days after the delivery of the agreements or other documents effectuating any assignment pursuant to Section 6.1 hereof, furnish to the Issuer and the Trustee a true and complete copy thereof. Section 6.3. Limitation. This Lease Agreement shall not be assigned in whole or in part, except as provided in this Article VI or in Section 2.6.1 or Section 5.2 herein. (END OF ARTICLE VI) 67 ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1. Events of Default. Each of the following events shall constitute and is referred to in this Lease Agreement as an"Event of Default": (a) a failure by the Company to pay when due any Basic Rent, which failure shall have resulted in an "Event of Default" under Section 8.01(a) or Section 8.01(b) of the Indenture; (b) a failure by the Company to pay when due any other amount required to be paid under this Lease Agreement or to observe and perform any covenant, condition or agreement, including its representations and warranties contained herein on its part to be observed or performed under this Lease Agreement (other than a failure described in Section 7.1(a) above), which failure shall continue for a period of 30 days (or such longer period as the Issuer and the Trustee may agree to in writing) after written notice, specifying such failure and requesting that it be remedied, shall have been given to the Company by the Trustee or to the Company and the Trustee by the Issuer; provided, however, that if such failure is other than for the payment of money and is of such nature that it cannot be corrected within the applicable period, such failure shall not constitute an "Event of Default" for a period not to exceed 120 days so long as the Company institutes corrective action within the applicable period and such action is being diligently pursued; (c) the dissolution or liquidation of the Company; or the filing by the Company of a voluntary petition in bankruptcy; or failure by the Company promptly to lift or bond any execution, garnishment or attachment of such consequence as will impair its ability to make any payments under this Lease Agreement; or the filing of a petition or answer proposing the entry of an order for relief by a court of competent jurisdiction against the Company under Title 11 of the United States Code, as the same may from time to time be hereafter amended, or proposing the reorganization, arrangement or debt readjustment of the Company under the provisions of any bankruptcy act or under any similar act which may be hereafter enacted and the failure of said petition or answer to be discharged or denied within 60 days after the filing thereof or the entry of an order for relief by a court of competent jurisdiction in any proceeding for its liquidation or reorganization under the provisions of any bankruptcy act or under any similar act which may be hereafter enacted; or an assignment by the Company for the benefit of its creditors; or, the entry by the Company into an agreement of composition with its creditors (the term"dissolution or liquidation of the Company," as used in this subsection (c), shall not be construed to include the cessation of the corporate existence of the Company resulting either from a merger or consolidation of the Company into or with another corporation or a dissolution or liquidation of the Company following a transfer of all or substantially all of its assets as an entirety, under the conditions permitting such actions contained in Section 2.6.1 hereto); (d) a failure by the Company to observe or perform any of the covenants, agreements or conditions of the Company contained in the other Bond Documents and 68 such failure shall continue for 60 days after written notice specifying such failure and requesting that it be remedied shall have been provided to the Company; or (e) any Governmental Authority shall seize or otherwise appropriate, or take custody or control of all or any substantial portion of the property of the Company or the Pledgor. Section 7.2. Force Majeure. The provisions of Section 7.1(b) hereof are subject to the following limitations: if by reason of acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders of any kind of the government of the United States or the State, or any department, agency, political subdivision, court or official of any of such State or any other state which asserts regulatory jurisdiction over the Company; orders of any kind of civil or military authority; insurrections; riots; epidemics; landslides; lightning; earthquakes; volcanoes; fires; hurricanes; tornadoes; storms; ice; floods; washouts; droughts; arrests; restraint of government and people; civil disturbances; explosions; breakage or accident to machinery; partial or entire failure of utilities; or any cause or event not reasonably within the control of the Company, the Company is unable in whole or in part to carry out any one or more of its agreements or obligations contained herein, other than its obligations under Article V hereof, the Company shall not be deemed in default by reason of not carrying out said agreement or agreements or performing said obligation or obligations during the continuance of such inability. The Company shall make reasonable effort to remedy with all reasonable dispatch the cause or causes preventing it from carrying out its agreements, provided that the settlement of strikes, lockouts and other industrial disturbances shall be entirely within the discretion of the Company, and the Company shall not be required to make settlement of strikes, lockouts and other industrial disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment of the Company unfavorable to the Company. Section 7.3. Remedies. (a) Upon the occurrence and continuance of any Event of Default described in Section 7.1(a), Section 7.1(c) or Section 7.1(e) hereof, or if, in accordance with the terms of the Indenture, the Bonds shall have been declared to be immediately due and payable pursuant to any provision of the Indenture, all unpaid amounts payable under this Lease Agreement, together with interest then due thereon, shall without further action, become and be immediately due and payable and the Trustee may, or upon the written request of the Majority Bondholder, the Trustee shall, take whatever action may appear necessary or desirable to collect the payment then due and to become due. (b) Any waiver of any"Event of Default" under the Indenture and a rescission and annulment of its consequences shall constitute a waiver of the corresponding Event or Events of Default under this Lease Agreement and a rescission and annulment of the consequences thereof. (c) Upon the occurrence and continuance of any Event of Default, the Trustee (or the Issuer, but only with respect to the enforcement of Unassigned Rights) may take any action at law or in equity to collect any payments then due and thereafter to become 69 due hereunder or to seek injunctive relief or specific performance of any obligation, agreement or covenant of the Company hereunder. (d) Any amounts collected from the Company pursuant to this Section 7.3 shall be applied in accordance with the Indenture. No action taken pursuant to this Section 7.3 shall relieve the Company from the Company's obligations pursuant to Section 5.1 hereof Section 7.4. No Remedy Exclusive. No remedy conferred upon or reserved to the Issuer hereby is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Issuer to exercise any remedy reserved to it in this Article VII, it shall not be necessary to give any notice, other than such notice as may be herein expressly required. Section 7.5. Reimbursement of Attorneys' Fees. If the Company shall default under any of the provisions hereof and the Issuer, the Trustee or the Majority Bondholder shall employ attorneys or incur other reasonable and proper expenses for the collection of payments due hereunder or for the enforcement of performance or observance of any obligation or agreement on the part of the Company contained herein, the Company will on demand therefor reimburse the Issuer or the Trustee, as the case may be, for the reasonable and proper fees and expenses of such attorneys and such other reasonable and proper expenses so incurred. Section 7.6. Waiver of Breach. In the event any obligation created hereby shall be breached by either of the parties hereto and such breach shall thereafter be waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. In view of the assignment of certain of the Issuer's rights and interest hereunder to the Trustee, the Issuer shall have no power to waive any Event of Default hereunder by the Company in respect of such rights and interest without the consent of the Trustee, and the Trustee may exercise any of the rights of the Issuer hereunder. (END OF ARTICLE VII) 70 ARTICLE VIII REDEMPTION OF BONDS Section 8.1. Redemption of Bonds. The Issuer shall take or cause to be taken the actions required by the Indenture (other than the payment of money)to discharge the lien thereof through the redemption, or provision for payment or redemption, of all Bonds then Outstanding, or to effect the redemption, or provision for payment or redemption, of less than all the Bonds then Outstanding upon receipt by the Issuer and the Trustee from an Authorized Company Representative of a written notice designating the principal amount of Basic Rent to be prepaid and the corresponding amount of Bonds to be redeemed and specifying the date of redemption (which, unless waived by the Trustee, shall not be less than 45 days from the date such notice is given, or such shorter period as the Trustee and the Company may agree from time to time) and the applicable redemption provision of the Indenture. Unless otherwise stated therein and except with respect to a redemption under Section 3.03(b) of the Indenture, such notice shall be revocable by the Company at any time prior to the time at which the Bonds to be redeemed, or for the payment or redemption of which provision is to be made, are first deemed to be paid in accordance with Article VII of the Indenture. The Company shall furnish any moneys required by the Indenture to be deposited with the Trustee or otherwise paid by the Issuer in connection with any of the foregoing purposes. Section 8.2. Obligation to Prepay; Prepayment Option. (a) The Company shall be obligated to prepay in whole or in part the Basic Rent payable hereunder upon the occurrence of the events giving rise to a mandatory redemption of the related series of Bonds pursuant to Section 3.03 of the Indenture, by paying an amount equal to, when added to other funds on deposit in the Redemption Account for such Bonds, the aggregate principal amount of and premium, if any, on the Bonds to be redeemed pursuant to the Indenture plus accrued interest to the redemption date. (b) The Company shall cause a mandatory redemption of all Tax-Exempt Bonds to occur within 180 days after a Determination of Taxability (as defined below) shall have occurred pursuant to Section 3.03(b) of the Indenture. A "Determination of Taxability" shall be deemed to have occurred if, as a result of the failure of the Company to observe any covenant, agreement or representation in this Lease Agreement or the Tax Agreement, a final decree or judgment of any federal court or a final action of the Internal Revenue Service determines that interest paid or payable on any Tax-Exempt Bond is or was includible in the gross income of a Beneficial Owner or Owner of such Bond for federal income tax purposes under the Code (other than a Beneficial Owner or Owner who is a "substantial user" or "related person" within the meaning of Section 147(a) of the Code). However, no such decree or action will be considered final for this purpose unless the Company has been given written notice of the same, either directly or in the name of any Beneficial Owner or Owner of a Bond, and, if it so desires and is legally allowed, has been afforded the opportunity to contest the same, either directly or in the name of any Beneficial Owner or Owner of a Bond, and until conclusion of any appellate review, if sought. If the Trustee receives written notice from any Beneficial Owner or Owner of a Tax-Exempt Bond stating (a) that the Beneficial Owner or Owner 71 has been notified in writing by the Internal Revenue Service that it proposes to include the interest on any such Bond in the gross income of such Beneficial Owner or Owner for the reasons described therein or any other proceeding has been instituted against such Beneficial Owner or Owner which may lead to a final decree or action as described herein, and (b) that such Beneficial Owner or Owner will afford the Company the opportunity to contest the same, either directly or in the name of the Beneficial Owner or Owner, until a conclusion of any appellate review, if sought, then the Trustee shall promptly give notice thereof to the Company, the Issuer and the Beneficial Owner or Owner of each such Bond then Outstanding. If a final decree or action as described above thereafter occurs and the Trustee has received written notice thereof as provided in Section 8.1 hereof at least 45 days (or such shorter period as the Trustee and the Company may agree) prior to the redemption date, the Trustee shall request prepayment from the Company of the amounts payable hereunder and give notice of the redemption of the Bonds of such series at the earliest practical date, but not later than the date specified in this Article VIII, and in the manner provided by Section 3.05 of the Indenture. (c) The Company shall have the option to prepay in whole or in part the Basic Rent payable hereunder upon the occurrence of an optional redemption of the related series of Bonds pursuant to Section 3.02 of the Indenture, by paying an amount equal to, when added to other funds on deposit in the Redemption Account for such Bonds, the aggregate principal amount of and premium, if any, on the Bonds to be redeemed pursuant to the Indenture plus accrued interest to the redemption date. (d) At the time of any such prepayment of the Basic Rent payable hereunder pursuant to this Section 8.2, the prepayment amount shall be applied, together with other available moneys in the Redemption Account to the redemption of the related series of Bonds on the date specified in the notice as provided in the Indenture, whether or not such date is an Interest Payment Date, to the Trustee's fees and expenses under the Indenture accrued to such redemption of the Bonds of such series, and to all sums due to the Issuer hereunder (e) Whenever the Company shall have given any notice of prepayment of the amounts payable hereunder pursuant to this Article VIII, which includes a notice for redemption of the Bonds of such series pursuant to the Indenture, all amounts payable under the provisions of Section 8.2 hereof shall become due and payable on the date fixed for redemption of the Bonds of such series unless, pursuant to the terms of this Indenture, such amounts shall be due and payable on an earlier date. Section 8.3. Compliance with Indenture. Anything in this Lease Agreement to the contrary notwithstanding, the Issuer and the Company shall take all actions required by this Lease Agreement and the Indenture in order to comply with the provisions of Article III of the Indenture. (END OF ARTICLE VIII) 72 ARTICLE IX DEFEASANCE Section 9.1. Defeasance. Bonds may be defeased as provided in the Indenture. (END OF ARTICLE IX) 73 ARTICLE X MISCELLANEOUS Section 10.1. Term of Lease Agreement. This Lease Agreement shall remain in full force and effect from the date of delivery hereof until the right, title and interest of the Trustee in and to the Trust Estate shall have ceased, terminated and become void in accordance with Article VII of the Indenture and until all payments required under this Lease Agreement shall have been made. Section 10.2. Notices. Except as otherwise provided in this Lease Agreement, all notices, certificates, requests, requisitions and other communications hereunder shall be in writing and shall be sufficiently given and shall be deemed given when delivered or mailed as provided in the Indenture. Section 10.3. Parties in Interest. This Lease Agreement shall inure to the benefit of and shall be binding upon the Issuer, the Company and their respective successors and assigns, and no other person, firm or corporation shall have any right,remedy or claim under or by reason of this Lease Agreement except for rights of payment and indemnification hereunder of the Trustee and the Registrar. Section 10.4. Amendments. This Lease Agreement may be amended only by written agreement of the Company and the Issuer and with the written consent of the Trustee in accordance with the provisions of Section 11.05 or Section 11.06 of the Indenture, as applicable; provided, however, that Exhibit A to this Lease Agreement may be amended upon compliance only with the requirements of Section 3.7 hereof. Section 10.5. Counterparts. This Lease Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original, and such counterparts shall together constitute but one and the same Lease Agreement. Section 10.6. Severability. If any clause, provision or Section of this Lease Agreement shall, for any reason, be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 10.7. Governing Law. This Lease Agreement shall be governed exclusively by and construed in accordance with the laws of the State. Section 10.8. Date for identification Purposes Only; Effective Date. The date on this Lease Agreement shall be for identification purposes only and shall not be construed to imply that this Lease Agreement was executed on such date. This Lease Agreement shall become effective upon the Closing Date. (END OF ARTICLE X) (SIGNATURE PAGES FOLLOW) 74 IN WITNESS WHEREOF, the Issuer and the Company have caused this Lease Agreement to be duly executed in their respective names by their respective duly authorized officers, all as of the date first above written. CITY OF SHAKOPEE, MINNESOTA By: Mayor By: City Administrator ATTEST: By: Finance Director/City Clerk [SIGNATURE PAGE OF CITY OF SHAKOPEE,MINNESOTA TO LEASE AGREEMENT] 75 RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC By: Name: Title: [SIGNATURE PAGE OF RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC TO LEASE AGREEMENT] KD_5890622_3.docx 76 REAL ESTATE,IMPROVEMENTS AND EQUIPMENT LEASE AGREEMENT Between RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC, as Landlord and CITY OF SHAKOPEE, MINNESOTA, as Tenant Dated as of November 1, 2014 Related to: $16,000,000 City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project) Series 2014 This instrument was drafted by Kennedy& Graven, Chartered(JAE) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 Error!Bookmark not defined. BASE LEASE AGREEMENT TABLE OF CONTENTS Page 1. Premises. 2 2. Term 2 3. Termination 2 4. Rent 3 5. Condition and Use of Premises 3 6. Covenants of Landlord 3 6.1. Right to Lease 3 6.2. Title 3 6.3. Quiet Enjoyment 3 7. Maintenance of Building and Equipment 3 8. Insurance 3 9. Real Estate Taxes and Special Assessments 3 10. Alterations 3 11. Permits and Licenses 3 12. Environmental Matters 4 12.1. Defined Terms 4 12.2. Current Compliance with Environmental Laws 5 12.3. Landlord's Obligations with Respect to Environmental Matters 5 13. Environmental Indemnification 5 14. General Indemnification 6 15. Subordination to Mortgages 6 16. Mortgages Free From Defaults 7 17. Events of Default 7 18. Remedies 7 19. Non-Waiver 7 20. Lease Agreement Incorporated 8 21. Purpose of Base Lease Agreement 8 22. Estoppel Certificate 8 23. Notices 8 24. Binding Clause 8 25. Amendment or Modifications 9 26. Complete Agreement 9 27. Governing Law 9 28. Memorandum of Base Lease Agreement 9 29. Miscellaneous 7 SIGNATURES S-1 EXHIBIT A Legal Description EXHIBIT B Memorandum of Base Lease Agreement Error!Bookmark not defined. REAL ESTATE,IMPROVEMENTS AND EQUIPMENT LEASE AGREEMENT THIS REAL ESTATE, IMPROVEMENTS AND EQUIPMENT LEASE AGREEMENT ("Base Lease Agreement") is entered into and effective as of November 1, 2014 ("Effective Date") by and between Recovery Technology Solutions Shakopee, LLC, a limited liability company organized and existing under the laws of the State of Delaware ("Landlord" or the "Company") and the City of Shakopee, Minnesota, a municipal corporation and political subdivision of the State of Minnesota("Tenant" or the"City"). RECITALS WHEREAS, Landlord and Tenant wish to provide for a lease of certain real property located at 6528 County Road 101 East in the City of Shakopee, Minnesota and legally described on the attached Exhibit A, and all facilities, equipment and property of every kind located thereon(collectively,the "Project"); WHEREAS, Minnesota Statutes, Sections 469.152 through 469.1655, as amended (the "Act"), authorizes a city to issue revenue obligations to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of a "project," defined in the Act, in part, as any properties, real or personal, used or useful in the abatement or control of noise, air, or water pollution, or in the disposal of solid wastes, in connection with a revenue producing enterprise, or any combination of two or more such enterprises engaged or to be engaged in any business or industry(as defined in the Act); and WHEREAS, at the request of Landlord and in furtherance of purposes of the Act, the City has determined to issue revenue bonds designated as City of Shakopee, Minnesota Solid Waste Revenue Bonds (Recovery Technology Solutions Shakopee, LLC Project), Series 2014 in the aggregate principal amount of $16,000,000 (the "Series 2014 Bonds"), pursuant to and in accordance with the terms of an Indenture of Trust, dated as of November 1, 2014 (the "Indenture") between the City and UMB Bank, N.A. a national banking association (the "Trustee"); and WHEREAS, pursuant to Minnesota Statutes, Chapter 474A, as amended (the "Bond Allocation Act"), in order to issue the Bonds, the City and the Company have cooperated to obtain bonding allocation from the public facilities allocation pool; and WHEREAS, solely for financing purposes, the City has agreed to acquire a leasehold interest in the Project pursuant to this Base Lease Agreement; and WHEREAS, pursuant to a Lease Agreement, dated as of November, 2014 (the "Lease Agreement"), between the City and the Company, the City has agreed to (a) lease the Project to the Company, subject to the Company's agreement to pay the rental and other obligations provided for under such Lease Agreement, and (b) provide for the application of the proceeds of the Series 2014 Bonds for the benefit of the Company to be used: (i) for the financing, refinancing or reimbursement of all or a portion of the costs of acquiring, constructing, 1 449997v3 JAE SH155-303 equipping, installing, and improving the Project, which consists of an asphalt shingle recovery facility, with a production capacity to recycle approximately 70,000 tons per year of asphalt shingles and recover approximately 20,000 tons per year of asphalt oil, to be located at 6528 County Road 101 East in the City of Shakopee, Minnesota, and constituting a "project" within the meaning of Section 469.153, subdivision 2(a), of the Act, all as more particularly described in Exhibit A thereto; (ii) to fund a debt service reserve account for the Series 2014 Bonds; and (iii)to pay certain costs relating to the issuance of the Series 2014 Bonds, all as permitted under the Act; and WHEREAS, pursuant to the Indenture, the City will assign all of its right, title and interest in the Lease Agreement (except for certain Unassigned Rights as defined herein) to the Trustee to secure the payment of the Series 2014 Bonds and, the Series 2014 Bonds, together with interest thereon, will be payable by the Issuer solely from the Lease Payments to be made by the Company consisting of Basic Rent, from other amounts payable under the Lease Agreement, the Accounts Agreement and the Security Documents, from certain funds and accounts pledged to the Trustee under the Indenture and as otherwise provided in the Indenture and the Accounts Agreement; and WHEREAS, in order to further secure the Company's obligations under the Lease Agreement and to provide for the disbursement of funds for the payment of Project Costs and the capture and allocation of the revenues from the Project, both prior to and following the Completion Date, the Company, the Securities Intermediary, the Accounts Bank and the Trustee have entered into that certain Accounts Agreement dated as of November 1, 2014 (the "Accounts Agreement") which, together with the Indenture, the Lease Agreement and the other Bond Documents, govern the application and allocation of the proceeds of the Series 2014 Bonds and other funds to be provided by or on behalf of the Company, and the application of revenues from the Project. NOW, THEREFORE, in consideration of the mutual terms and conditions contained herein, the parties agree as follows: 1. Premises. Landlord is the fee owner of that real property located at 6528 County Road 101 East in the City of Shakopee, which is legally described on the attached Exhibit A ("Premises"). Landlord is the Fee Owner of all buildings, fixtures, improvements, and equipment located thereon. Subject to and upon the terms, provisions and conditions hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, which shall include all buildings, fixtures, improvements, and equipment located thereon. 2. Term. The term of this Base Lease Agreement ("Term") shall be years until (the maturity date of the Bonds), commencing on the Effective Date unless earlier terminated. 3. Termination. This Base Lease Agreement shall be terminated upon maturity of the Bonds, or earlier by mutual agreement of Landlord and Tenant. Upon expiration or earlier termination of this Base Lease Agreement or of Tenant's right of possession of the Premises, Tenant 2 449997v3 JAE 5H155-303 will immediately quit and surrender possession of the Premises to Landlord in good order and condition. In such event, all right,title and interest of Tenant in the Premises will automatically vest in Landlord without the necessity of confirmation by any other document. However, upon the request of Landlord, such vesting will be confirmed in separate recordable instruments in form and substance reasonably acceptable by Landlord. 4. Rent. Rent during the Term is in the annual amount $1.00 per year, payable annually in advance. 5. Condition and Use of Premises. Tenant will use the Premises solely for lawful purposes. Tenant will further comply with such legal requirements of the State of Minnesota and any municipal or public authorities which relate to Tenant's use and occupancy of the Premises. 6. Covenants of Landlord. Landlord covenants to Tenant that: 6.1 Right to Lease. Landlord has the legal power and authority to lease the Premises on the terms set forth in this Base Lease Agreement. 6.2 Title. Landlord has good and marketable title to the Premises, free and clear of all tenants and occupants and the rights of either. 6.3 Quiet Enjoyment. Tenant, upon paying the rent and performing all of the covenants of this Base Lease Agreement, may quietly have, hold and enjoy the Premises during the Term. 7. Maintenance of Building and Equipment. Landlord shall keep the buildings, fixtures, improvements, and equipment located on the Premises in good order, safe condition and repair, at Landlord's expense. 8. Insurance. Pursuant to the provisions of Sections 2.3.19 and 2.5.4 of the Lease, Landlord shall maintain with insurers of recognized responsibility licensed to do business in the State of Minnesota adequate insurance on the Premises during the term of this lease and list Tenant as an additional insured on such insurance. 9. Real Estate Taxes and Special Assessments. Pursuant to Section 2.5.12 of the Lease, Landlord will pay all real property taxes, if any, and installments of special assessments, if any,payable during the Term with regard to the Premises. 10. Alterations. Tenant agrees to make no alterations or changes to the Premises during the Term. Any alterations required to be performed during the term of this Base Lease Agreement shall be the responsibility of Landlord. 11. Permits and Licenses. Landlord shall obtain and maintain all necessary permits and licensing required by the operation of the Project. 3 449997v3 JAE SH155-303 12. Environmental Matters. 12.1. Defined Terms. "Claim" means any claim, suit, demand, proceeding, complaint, assessment, lien, injunction, order, judgment, notice of non-compliance or violation, investigation or other action by or before any Governmental Authority or any other person. "Environmental Approvals" means any Governmental Approvals required under applicable Environmental Laws. "Environmental Claim" means any written notice, Claim, demand or similar written communication by any Person alleging potential liability or requiring or demanding remedial or responsive measures (including potential liability for investigatory costs, cleanup, remediation and mitigation costs, governmental response costs, natural resources damages, property damages, personal injuries, fines or penalties) in each such case (x) either (i)with respect to environmental contamination-related liabilities or obligations with respect to which Landlord could reasonably be expected to be responsible that are, or could reasonably be expected to be, in excess of$200,000 in the aggregate, or (ii)that has or could reasonably be expected to result in a Material Adverse Effect and (y) arising out of, based on or resulting from (i)the presence, release or threatened release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by such person; (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Laws or Environmental Approvals; or (iii) exposure to Materials of Environmental Concern. "Environmental Consultant" means Braun Intertec Corporation, or any replacement environmental consultant retained by the Company. "Environmental Laws" means all Laws applicable to the Project relating to pollution or protection of human health, safety or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including Laws relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise applicable to the Project relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, management, remediation or handling of Materials of Environmental Concern. "Governmental Approval" means any authorization, consent, approval, license, lease, ruling, permit, certification, exemption, filing for registration by or with any Governmental Authority. "Governmental Authority" shall mean any federal, state, municipal, national, local or other governmental department, court, commission, board, bureau, agency or instrumentality or political subdivision thereof, or any entity or officer exercising executive, legislative or judicial, regulatory or administrative functions of or pertaining to any government or any court, whether of the United States or a state, territory or 4 449997v3 JAE 5H155-303 possession thereof, a foreign sovereign entity or country or jurisdiction or the State of Minnesota. "Law" means, with respect to any governmental authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, common law, holding, injunction, Governmental Approval or requirement of such governmental authority. Unless the context clearly requires otherwise, the term "Law" shall include each of the foregoing (and each provision thereof) as in effect at the time in question, including any amendments, supplements, replacements, or other modifications thereto or thereof, and whether or not in effect as of the date of this Indenture. "Material Adverse Effect" means any event, development or circumstance that has had or could reasonably be expected to have a material adverse effect on (i)the business, assets, property, condition (financial or otherwise), prospects, or operations of Landlord or the Project, taken as a whole, (ii)the ability of any Person to perform its material obligations under any document related to the Bonds to which it is a party, (iii) creation, perfection or priority of the liens granted, or purported to be granted, in favor, or for the benefit, of the Trustee pursuant to the documents granting security for the Bonds or (iv)the rights or remedies of any secured party under any document related to the Bonds. "Materials of Environmental Concern" means chemicals, pollutants, contaminants, wastes, toxic substances and hazardous substances, any toxic mold, radon gas or other naturally occurring toxic or hazardous substance or organism and any material that is regulated in any way, or for which liability is imposed, pursuant to an Environmental Law. 12.2. Current Compliance with Environmental Laws. Landlord represents that it is currently in compliance in all material respects with all applicable Environmental Laws and there are no Environmental Claims pending, or to the knowledge of Landlord, threatened. 12.3. Landlord's Obligations with Respect to Environment Matters. Pursuant to Sections 2.3.13, 2.4.11, 2.5.5. and 2.5.6 of the Lease, Landlord shall comply in all material respects with all Environmental Laws during the term of this Base Lease Agreement and provide notice to Tenant of any material noncompliance with Environmental Laws. Landlord will remain liable for its own compliance with all Environmental laws and for any claims that arise with regard to the Premises. 13. Environmental Indemnity. To the fullest extent allowed by applicable Law, Landlord shall indemnify and hold harmless Tenant and its respective officials, directors, officers, members, employees and agents from and against any and all liability directly or indirectly arising out of the use, generation, storage, release, or disposal of Materials of Environmental Concern on, under or about the Project and from any violation of any Environmental Law. Such indemnification shall include, without limitation, the cost of any inspection of the impacted property, the cost of audit, clean-up, remediation or detoxification of the impacted property and the preparation of any closure or other required plans, consent orders, license applications or the like, and whether such action is required or necessary. Landlord 5 449997v3 JAE SH155-303 agrees that the indemnity obligations in this paragraph shall include indemnifying the Issuer and its respective officials, directors, officers, members, employees and agents for all attorneys' fees and expenses incurred by any of them to enforce the terms of this provision. The indemnification obligations under this paragraph are exclusive of, and in addition to, any other indemnification or insurance obligations of Landlord under the Lease Agreement, the Indenture, the Bonds or any of the other documents related to the Bonds, and shall survive termination of this Base Lease Agreement and payment in full of the Bonds. All indemnifications hereunder shall include any and all consequential damages of any nature or kind, whether foreseeable and unforeseeable. This Section 13 shall survive the payment in full of Bonds and other obligations under the documents related to the Bonds. 14. General Indemnification. Landlord covenants and agrees, at its expense, to pay and to indemnify and save Tenant and its council members, officials, directors, officers, employees, advisors, and agents harmless from and against all loss, liability, damage or expense arising out of any and all claims, demands, expenses, penalties, fines, taxes of any character or nature whatsoever regardless of by whom imposed, and losses of every conceivable kind, character and nature, whatsoever, arising from the Project, the issuance of the Bonds and the execution of this Base Lease Agreement and the other Bond Documents, including, but not limited to claims for loss or damage to any property or injury to or death of any person, asserted by or on behalf of any person, firm, corporation or governmental authority arising out of or in any way connected with the Premises, or the conditions, occupancy, use, possession, conduct or management of, or any work done in or about the Premises. Landlord also covenants and agrees at its expense to pay, and to indemnify and save Tenant and its council members, officials, directors, officers, employees, advisors, and agents harmless of, from and against, all costs, reasonable counsel fees, expenses and liabilities incurred by them or by Landlord in any action or proceeding brought by reason of any such claim, demand, expense,penalty, fine or tax. In the event that any action or proceeding is brought against Tenant or its council members, officials, directors, officers, employees, advisors, or agents by reason of any such claim or demand, the Landlord, upon notice from Tenant, covenants to resist and defend such action or proceeding on demand of Tenant or its council members, officials, directors, officers, employees, advisors, or agents. Notwithstanding the foregoing, neither Tenants nor its council members, officials, directors, officers, employees, advisors, and agents shall be indemnified against liability for damage arising out of bodily injury to persons or damage to property caused by their own willful and malicious acts or omissions or willful and malicious acts or omissions of its own council members, directors, officers, advisors, agents or employees. This Section 14 shall survive the payment in full of Bonds and other obligations under the documents related to the Bonds. 15. Subordination to Mortgages. This Lease and all rights of Tenant are and shall be subject and subordinate to any mortgage or deed of trust constituting a lien on the Premises, or any part thereof, whether such mortgage or deed of trust has heretofore been or may hereafter be placed upon the Premises to secure an indebtedness to any bank or other institutional lender, private or public, and to any renewal, modification, consolidation, replacement, or extension of any such mortgage or deed of trust. Tenant agrees to execute and deliver, at any time and from time to time upon demand by Landlord such commercially reasonable documents as may be required to effectuate such subordination within twenty(20)days after receipt of written notice to do so. 6 449997v3 JAE SH155-303 16. Mortgages Free From Default. Landlord will keep current and free from default any mortgage placed by it upon the Premises. 17. Event of Default. Each of the following events shall be a default under this Base Lease Agreement: (a) If any rent or other sums payable by Tenant or Landlord under this Base Lease Agreement remain unpaid for more than 30 days after notice that the same is past due. (b) If either Tenant or Landlord shall be adjudicated insolvent or bankrupt pursuant to the provisions of any state or federal insolvency or bankruptcy act, or if a receiver or trustee of the property of Tenant or Landlord shall be appointed by reason of insolvency or inability to pay debts, unless such appointment is vacated within 60 days after such appointment, or if Tenant or Landlord shall file a general assignment for the benefit of creditors, or if Tenant or Landlord shall file a voluntary bankruptcy or reorganization action. (c) If Landlord or Tenant shall violate or default in the performance of any of the other covenants, agreements, stipulations or conditions contained in this Base Lease Agreement, and such violation or default continues for a period of 60 days after written notice by Landlord to Tenant of such violation or default, which 60-day period shall be extended during any time Tenant is diligently proceeding to cure a default which cannot with reasonable diligence be cured in 60 days. (d) If a foreclosure action is commenced with respect to a mortgage related to the Premises. (e) If there is a default under the Indenture or the Lease Agreement. 18. Remedies. If a Tenant default occurs, Landlord is entitled to terminate this Base Lease Agreement and reenter and take possession of the Premises upon ten days' advance written notice to Tenant following an event of default and expiration of any applicable cure period. Landlord's right to re-enter and take possession of the Premises includes an obligation on Tenant's part, upon notice of intention to re-enter, peacefully to surrender the Premises to Landlord, and Landlord's right to re-enter and take possession also includes the right of Landlord, upon the expiration of the 10 days notice period, to repossess the Premises by force if necessary, or by summary proceedings or otherwise, and to dispossess Tenant and remove Tenant and all other persons and property from the Premises and to have, hold, and enjoy the Premises and the right to receive all rents and income therefrom. If a Landlord default occurs, Tenant may terminate this Base Lease Agreement. In addition, Tenant may seek specific performance or other equitable relief or exercise any other right or remedy available at law or in equity with respect to the indemnifications from Landlord described in Sections 13 and 14. 19. Non-Waiver. The failure of Landlord to insist at any time upon Tenant's strict performance of any of the covenants or agreements contained in this Base Lease Agreement is 7 449997v3 ME 5H155-303 not be construed as a waiver or relinquishment of such covenants or agreements for the future. No waiver by any party of any provision of this Base Lease Agreement is to be deemed to have been made unless expressed in writing and signed by the party waiving same. 20. Lease Agreement Incorporated. The terms and conditions of the Lease Agreement are incorporated herein by reference. 21. Purpose of Base Lease Agreement. Landlord and Tenant agree and acknowledge that the purpose of this Base Lease Agreement is to provide Tenant with a leasehold interest in the Premises in order for Tenant to issue the Bonds pursuant to the Act and the Bond Allocation Act. The proceeds of the Bonds will be used in part to reimburse Landlord for the acquisition, construction and equipping of the Project. Landlord will enter into the Lease Agreement with Tenant whereby Landlord will sublease the Premises from Tenant, and Landlord will promise to pay all debt service related to the Bonds and indemnify Tenant for all Tenant's duties and responsibilities under this Base Lease Agreement. . 22. Estoppel Certificate. Tenant agrees, within ten days after written request by Landlord,to execute, acknowledge and deliver an estoppel certificate stating among other things: (a) whether this Base Lease Agreement is in full force and effect; (b) whether this Base Lease Agreement has been modified or amended, and if so, identifying and describing any such modification or amendment; (c) the date to which rent and any other charges have been paid; and (d) whether Tenant knows of any default on the part of Landlord or has any claim against Landlord and if so, specifying the nature of such default or claim. 23. Notices. Any notice or other communication or payment herein required or permitted to be given is to be deemed given if and when personally delivered in writing or if and when mailed in a sealed wrapper by United States registered or certified mail, postage prepaid, properly addressed to the addresses below: City of Shakopee, Minnesota 129 South Holmes Street Shakopee,Minnesota 55379 Attention: City Administrator Telephone: 952-233-9300 Facsimile: 952-233-3801 Recovery Technology Solutions Shakopee,LLC 500 South Marshall Road Suite 200 Shakopee, Minnesota 55379 Attention: Tom Branhan, CEO Telephone: 952-746-4184 Facsimile: 24. Binding Clause. The covenants, conditions and agreements contained herein bind, and inure to the benefit of, Landlord and Tenant and their respective legal representatives, successors and assigns. 8 449997v3 JAE SH155-303 25. Amendment or Modifications. No modification,release, discharge, amendment or waiver of any provisions hereof shall be of any force, effect or value, unless in writing signed by Landlord, Tenant and Lender or their duly authorized agents or attorneys. 26. Complete Agreement. There are no oral agreements between Landlord and Tenant affecting this Lease, and this Lease supersedes and cancels any and all previous negotiations, agreements and understandings between Landlord and Tenant with respect to the subject matter of this Lease or the Premises. 27. Governing Law. Interpretation of this Base Lease Agreement shall be governed by the laws of the State of Minnesota. 28. Memorandum of Base Lease Agreement. This Base Lease Agreement is not to be recorded unless Tenant agrees to record the Base Lease Agreement. Landlord and Tenant will sign a Memorandum of Base Lease Agreement in a form attached as Exhibit B which may be recorded. 29. Miscellaneous. 29.1. The specific remedies to which Landlord or Tenant may resort under the terms of this Lease are cumulative and are not intended to be exclusive of any other remedies or means in regard to which they may be lawfully entitled in case of any breach or threatened breach by any of them of any provisions of this Lease. 29.2. If any term or provision of this Lease or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable,the remainder of this Lease, or the application of such terms or provisions to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term or provision of this Lease shall be valid and enforced to the fullest extent permitted by law. 29.3. The heading or captions of Articles or paragraphs in this Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Lease or the provisions of such Article or paragraph. 29.4. This Lease may be executed in any number of original counterparts, all of which evidence only one agreement, binding on all parties, even though all parties are not signatory to the same counterpart. Facsimile signatures transmitted via the internet or facsimile may be used in place of original signatures for this Lease and related documents. (The remainder of this page is intentionally left blank.) 9 449997v3 JAE SH155-303 IN WITNESS WHEREOF, Landlord has caused this Base Lease Agreement to be executed on its behalf by its as of the Effective Date. RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE,LLC By: Its: (Signature page of Landlord to the Base Lease Agreement) S-1 449997v3 JAE SH155-303 IN WITNESS WHEREOF, Tenant has caused this Real Estate, Improvements and Equipment Lease Agreement to be executed on its behalf by its Mayor and City Administrator, as of the Effective Date. CITY OF SHAKOPEE, MINNESOTA By: Its: Mayor By: Its: City Administrator (Signature page of Tenant to the Base Lease Agreement) S-2 449997v3 JAE SH155-303 EXHIBIT A LEGAL DESCRIPTION A-1 449997v3 JAE SH155-303 EXHIBIT B MEMORANDUM OF BASE LEASE AGREEMENT THIS MEMORANDUM OF BASE LEASE AGREEMENT ("Memorandum") is made as of November 1, 2014, between RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a limited liability company organized and existing under the laws of the State of Delaware ("Landlord" or the "Company") and the CITY OF SHAKOPEE, MINNESOTA, a municipal corporation and political subdivision of the State of Minnesota("Tenant"or the "City"). RECITALS: Landlord is the owner of that certain real property located in the City of Pine Island, Olmsted County, Minnesota, which real property is legally described as Lot 4, Block 1, Pine Haven Community, according to the recorded plat thereof(the "Premises"). Landlord and Tenant have entered into that certain Base Lease Agreement dated as of the date of this Memorandum (the "Base Lease Agreement")pursuant to which Tenant is leasing the Premises from Landlord. The term of the Base Lease Agreement commences 1, 2014 and expires on 1, 2113. AGREEMENT: NOW, THEREFORE, Landlord and Tenant make this Memorandum to set forth certain provisions of the Base Lease Agreement. Reference is made to the Base Lease Agreement for a full statement of the terms and conditions of the Base Lease Agreement, all of which are hereby incorporated by reference. (Remainder of page intentionally left blank.) B-1 449997v3 JAE SH155-303 IN AGREEMENT, Landlord and Tenant have executed this Memorandum as of the date first above written. LANDLORD: RECOVERY TECHNOLOGY SOLUTIONS SHAKOPEE, LLC, a limited liability company organized and existing under the laws of the State of Delaware By: Its STATE OF MINNESOTA ) ) ss.: COUNTY OF ) The foregoing Memorandum was acknowledged before me this day of , 2014, by , the of Recovery Technology Solutions Shakopee, LLC, a limited liability company organized and existing under the laws of the State of Delaware, on behalf of said company. Notary Public B-2 449997v3 JAE 5H155-303 TENANT: CITY OF SHAKOPEE, MINNESOTA, a municipal corporation and political subdivision of the State of Minnesota By: Its Mayor By: Its City Administrator STATE OF MINNESOTA ) ) ss.: COUNTY OF SCOTT ) The foregoing Memorandum was acknowledged before me this day of 2014, by and , the Mayor and City Administrator of the City of Shakopee, a municipal corporation and political subdivision of the State of Minnesota, on behalf of said municipal corporation. Notary Public THIS DOCUMENT DRAFTED BY: Kennedy & Graven, Chartered (JAE) 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 (612) 337-9300 B-3 449997v3 JAE SH155-303 TENTATIVE AGENDA Shakopee Economic Development Authority Regular Session 7:00 p.m. October 21,2014 LOCATION Council Chambers City Hall 129 Holmes Street South 1) Roll Call 2) Approval of the Agenda 3) Consent Business 3)A) EDA Minutes 3)B) EDA Bill List 4) General Business 5) Adjourn to Tuesday,November 18,2014 at 7:00 p.m. Note to EDA Members: If you have any questions or need additional information on any of the above items,please call Samantha DiMaggio prior to the meeting at(952)233-9317.