EXHIBIT 10.70

CREDIT AGREEMENT

among

CLEAN ENERGY TRANCHE A LNG PLANT, LLC,
and
CLEAN ENERGY TRANCHE B LNG PLANT, LLC,
as Borrowers,

THE VARIOUS FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,
as Lenders,

and

GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent and Collateral Agent

Dated as of November 7, 2012

Micro-LNG Liquefaction Project

TABLE OF CONTENTS

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APPENDICES

SCHEDULES:

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EXHIBITS:

ANNEXES:

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This CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), dated as of November 7, 2012, is by and among (i) Clean Energy Tranche A LNG Plant, LLC, a limited liability company organized under the laws of the State of Delaware (the “Tranche A Borrower”), (ii) Clean Energy Tranche B LNG Plant, LLC, a limited liability company organized under the laws of the State of Delaware (the “Tranche B Borrower” and, together with the Tranche A Borrower, collectively, the “Borrowers”), (iii) the financial institutions from time to time party hereto as Lenders and (iv) General Electric Capital Corporation, as Administrative Agent and Collateral Agent.  Capitalized terms used herein shall have the meanings specified in Section 1.1.

W I T N E S S E T H:

WHEREAS, the Borrowers have been organized as Delaware limited liability companies to undertake the development, construction and ownership of two (2) micro-LNG facilities, each with a capacity of approximately 250,000 LNG Gallons per day;

WHEREAS, to finance the development, construction, ownership and operation of the Projects and certain other costs and expenditures associated with the development of the Projects and the financing contemplated herein, the Borrowers have requested that the Lenders provide the credit facilities described herein; and

WHEREAS, the Lenders are willing to provide the credit facilities described herein upon the terms and conditions herein set forth;

NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter contained, the parties hereto agree as follows:

SECTION 1.                            DEFINITIONS AND RULES OF INTERPRETATION

1.1                               Defined Terms.  Except as otherwise expressly provided herein, capitalized terms used in this Agreement and its Schedules, Appendices, Annexes, Exhibits and Recitals shall have the following meanings:

“Acceptable Swap Counterparty” shall mean a bank or other financial institution whose long-term senior unsecured debt is rated at least A- by Standard & Poor’s and A3 by Moody’s or that is otherwise acceptable to the Required Lenders.

“Acceptance Tests” shall mean the equipment and systems performance testing required to determine that Facility A or Facility B, as applicable, (a) proves all warranties and performance guarantees set forth in the applicable Construction Contracts and (b) will be consistently able to satisfy the operational requirements of the applicable LNG Purchase Agreement.  The nature, procedures and testing periods of such Acceptance Tests shall be mutually agreed by the applicable Borrower and the Administrative Agent (in consultation with the Project Engineer).

“Additional Project Document” shall mean, with respect to a Project, a Material Additional Project Document or an Immaterial Project Document.

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“Adjusted Eurodollar Rate” shall mean, with respect to any Eurodollar Loans for any Interest Period, (a) an interest rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent to be equal to the Eurodollar Rate for such Eurodollar Loans in effect for such Interest Period divided by (b) 1 minus the Statutory Reserves (if any) for such Eurodollar Loans for such Interest Period; provided that the Adjusted Eurodollar Rate shall not, at any time, be less than 1.00%.

“Administrative Agent” shall mean General Electric Capital Corporation, acting in its capacity as administrative agent for the Lenders pursuant hereto, and shall include any successor Administrative Agent appointed pursuant to Section 10.9 hereof.

“Affected Property” shall mean, with respect to any Event of Loss, the Property lost, destroyed, damaged, condemned (including through a Taking) or otherwise taken as a result of such Event of Loss.

“Affiliate” shall mean, in relation to any Person, any other Person that directly or indirectly, Controls, is Controlled by, or is under common Control with such Person.

“Affiliate Project Document” shall mean a Project Document entered into with an Affiliate Project Participant.

“Affiliate Project Participant” shall mean a Project Participant that is an Affiliate of a Borrower.

“Agent-Related Persons” shall mean each Agent, and any successor Agent appointed pursuant to Section 10.9 hereof, together with their respective Affiliates and its and their officers, directors, employees, representatives, attorneys and agents.

“Agents” shall mean, collectively, the Administrative Agent, the Collateral Agent and the Depositary Agent.

“Agreement” shall have the meaning provided in the Preamble hereto.

“Anti-Terrorism Law” shall have the meaning provided in Section 4.24 hereof.

“Applicable Lending Office” shall mean, for each Lender and for each Type of Loan, the “Lending Office” of such Lender (or of an Affiliate thereof) designated for such Type of Loan in Annex II hereto or such other office of such Lender (or an Affiliate thereof) as such Lender may from time to time specify to the Administrative Agent and the Borrowers by written notice in accordance with the terms hereof as the office by which its Loans of such Type are to be made and maintained.

“Applicable Margin” shall mean (i) in respect of Eurodollar Loans, 7.00% and (ii) in respect of Base Rate Loans, 6.00%.

“Approved Gas Supplier” shall mean a supplier of natural gas reasonably acceptable to the Required Lenders.

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“Approved Power Supplier” shall mean a supplier of power reasonably acceptable to the Required Lenders.

“Approved Fund” shall mean any (i) investment company, fund, trust, securitization vehicle or conduit that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business or (ii) any Person (other than a natural person) that temporarily warehouses loans for any Lender or any entity described in the preceding clause (i) and that, with respect to each of the preceding clauses (i) and (ii), is administered or managed by (A) a Lender, (B) an Affiliate of a Lender or (C) a Person (other than a natural person) or an Affiliate of a Person (other than a natural person) that administers or manages a Lender.

“Assignee” shall have the meaning provided in Section 11.11(a) hereof.

“Assignment and Acceptance” shall have the meaning provided in Section 11.11(a) hereof.

“Assumed Interest Rate” shall mean, with respect to any Obligation bearing interest at a floating rate of interest on any date of determination, the rate of interest on such Obligation as in effect on such date of determination; provided that in the event that the applicable Borrower has entered into an Interest Rate Hedging Agreement to protect itself against the risk of interest rate fluctuations, such Interest Rate Hedging Agreement shall, to the extent applicable, be taken into account in determining the rate of interest in effect on such date of determination.

“Attorney Costs” shall mean all fees and disbursements of any law firm or other legal counsel.

“Authorized Officer” shall mean (i) with respect to any Person that is a corporation or a limited liability company, the Chairman, Chief Executive Officer, Chief Financial Officer, President, Treasurer or Secretary of such Person or (ii) with respect to any Person that is a partnership, the Chief Executive Officer, Chief Financial Officer, President, Treasurer or Secretary of such Person or of a general partner or managing partner of such Person or such general partner or managing partner, in each case whose name appears on a certificate of incumbency of such Person delivered in accordance with this Agreement, as such certificate may be amended from time to time.

“Bank Parties” shall have the meaning provided in Section 11.24 hereof.

“Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy” as now and hereafter in effect, or any successor statute.

“Bankruptcy Law” shall mean the Bankruptcy Code and any other Law of any jurisdiction relating to bankruptcy, insolvency, liquidation, reorganization, moratorium, winding-up or composition or readjustment of debts or any similar Law.

“Base Case Projections” shall mean, with respect to a Project, a projection of operating results for such Project over a period ending no sooner than eight (8) years beyond the Facility A Date Certain or the Facility B Date Certain, as applicable to such Project, showing the

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Borrower’s reasonable good faith estimates, as of the applicable Initial Funding Date, of revenue, operating expenses, debt service and minimum and annual (and, for the period covered thereby, average) Debt Service Coverage Ratios, Leverage Ratios and sources and uses of revenues over the forecast period.

“Base Rate” for any day, shall mean the rate per annum equal to the highest of (a) the Federal Funds Rate for such day plus 0.50%, (b) the Prime Rate for such day and (c) the then current one-month Adjusted Eurodollar Rate plus 1%.  Any changes in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or the Adjusted Eurodollar Rate shall be effective on the effective date of such change in the Prime Rate, the Federal Funds Rate or the Adjusted Eurodollar Rate.

“Base Rate Loans” shall mean Loans that bear interest based upon the Base Rate.

“Borrowers” shall have the meaning provided in the Preamble hereto.

“Borrower Completion Certificate” shall mean, with respect to a Borrower, a certificate, substantially in the form of Exhibit D-1 hereto (such form being subject to review by the Project Engineer subsequent to the appointment thereof) or otherwise in form and substance acceptable to the Administrative Agent, dated the applicable Conversion Date, duly completed and signed by an Authorized Officer of such Borrower.

“Borrowing” shall mean the borrowing of Loans of one Type from the Lenders on a given date (or the conversion of a Loan or Loans of a Lender or Lenders from one Type to another Type on a given date).

“Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City a legal holiday or a day on which banking institutions are authorized, required or permitted by law or other government action to close and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in the London interbank eurodollar market.

“Capital Adequacy Regulation” means any guideline, request or directive of any central bank or other Governmental Authority, or any other Law, whether or not having the force of law, in each case, regarding capital adequacy of any bank or of any corporation controlling a bank.

“Capital Lease Obligations” shall mean, for any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP and, for purposes hereof, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

“Capital Stock” shall mean, with respect to any Person, any and all shares, interests, participations and/or rights in or other equivalents (however designated, whether voting or nonvoting, ordinary or preferred) in the equity or capital of such Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any thereof.

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“Cash Flow Available for Debt Service” shall mean, with respect to a Borrower, for any period, the excess (if any) of (i) Project Revenues that are deposited into the applicable Project Revenues Collection Account during such period over (b) Operation and Maintenance Expenses paid from the applicable Operating Account during such period.

“Change of Control” shall mean (i) Holdings shall cease to own, directly, all of the outstanding Capital Stock of either Borrower, (ii) the Sponsor shall cease to own, directly, at least 66 2/3% of the outstanding Capital Stock of Holdings, (iii) if the Sponsor is not the LNG Purchaser, the Sponsor shall cease to own, directly or indirectly all of the outstanding Capital Stock of the LNG Purchaser, (iv) the Sponsor shall cease to Control (a) either Borrower, (b) Holdings or (c) if the Sponsor is not the LNG Purchaser, the LNG Purchaser, (v) the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), other than an employee benefit or stock ownership plan of the Sponsor, of Capital Stock representing more than 50% of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock of the Sponsor or (vi) occupation of a majority of the seats on the board of directors of the Sponsor by Persons who were neither (x) nominated by the board of directors of the Sponsor nor (y) appointed by directors so nominated.

“Change in Law” means (a) the adoption of any law, rule, regulation or treaty (including any rules or regulations issued under or implementing any existing law) after the date of this Agreement, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.16(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that notwithstanding anything herein to the contrary: (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder, issued in connection therewith or in implementation thereof; and (ii) all requests, rules, guidelines and directives promulgated pursuant to Basel III by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or implemented.

“Change Order” shall mean any change order, amendment, supplement, work order, amendment and restatement, waiver or forbearance made with respect to any Construction Agreement.

“Charter Documents” shall mean, with respect to any Person, (i) the articles of incorporation or other similar organizational document of such Person, (ii) the by-laws, operating agreement or other similar document of such Person, (iii) any certificate of designation or instrument relating to the rights of preferred shareholders or other holders of Capital Stock of such Person, and (iv) any shareholder rights agreement or other similar agreement among the holders of Capital Stock of such Person.

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“Checking Accounts” shall mean the deposit accounts permitted to be maintained by a Borrower in accordance with Section 6.14.

“Closing Date” shall mean the date upon which the conditions precedent set forth in Section 3.1 hereof have been satisfied (or waived by the appropriate Secured Parties).

“Closing Date Project Documents” shall mean each LNG Purchase Agreement.

“Closing Date Project Participants” shall mean the LNG Purchaser.

“Code” shall mean the Internal Revenue Code of 1986.

“Collateral” shall mean all Property that, in accordance with the terms of the Security Documents, is intended to be subject to any Lien in favor of the Collateral Agent for the benefit of the Secured Parties.

“Collateral Account Agreement” shall mean a Collateral Account Agreement, substantially in the form of Exhibit J hereto, to be executed among the Borrowers, the Administrative Agent, the Collateral Agent and the Depositary Agent.

“Collateral Accounts” shall have the meaning provided in the Collateral Account Agreement.

“Commitments” shall mean with respect to any Lender, such Lender’s Construction Loan Commitments and/or Term Loan Commitments, as the context shall require.

“Commodity Hedging Agreement” shall mean any agreement (including each confirmation entered into pursuant to any master agreement) providing for swaps, caps, collars, puts, calls, floors, futures, options, spots, forwards, each with respect to or involving the hedge of any energy, generation capacity or fuel, or any other energy related commodity or service, price or price indices for any such commodities or services or any other similar derivative agreements, and any other similar agreements.

“Communications” shall have the meaning provided in Section 11.3(a) hereof.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Consent Agreement” shall mean each Acknowledgment and Consent Agreement entered into between a Project Participant or a Specified Site RE Right Grantor and the Collateral Agent and acknowledged by the Borrower, in each case substantially in the form of Exhibit E hereto or otherwise in form and substance reasonably acceptable to the Required Lenders.

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“Construction Agreements” shall mean, collectively, (i) the GE EPC Contracts and (ii) any other agreement to which any Finance Party or any Affiliate of any Finance Party is now or hereafter becomes a party providing for the design, development, construction, testing or start-up of the Projects.

“Construction Budget” shall mean, in respect of a Project, the budget for such Project delivered to each Lender on or before the Closing Date and prepared and certified as such by an Authorized Officer of the applicable Borrower of all Project Costs theretofore incurred and thereafter expected to be incurred by such Borrower in respect of such Project on or prior to the applicable Conversion Date.

“Construction Loan Commitments” shall mean the Tranche A Construction Loan Commitments and/or the Tranche B Construction Loan Commitments, as the context shall require.

“Construction Loans” shall mean Tranche A Construction Loans and/or Tranche B Construction Loans, as the context shall require.

“Construction Requisition” shall mean, in respect of a Project, a certificate, substantially in the form of Exhibit C-1 hereto (such form being subject to review by the Project Engineer subsequent to the appointment thereof) or otherwise in form and substance acceptable to the Administrative Agent, executed and delivered by an Authorized Officer of the applicable Borrower to the Administrative Agent, including all attachments referred to therein (i) pursuant to Section 3.3(a) hereof in connection with each Disbursement of Construction Loans and (ii) pursuant to Section 5.21 hereof in connection with each application of Project Revenues to the payment of Project Costs.

“Contingency” shall mean the aggregate amount specified in the “Contingency” line item in the applicable Construction Budget.

“Contingent Obligation” shall mean, as to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, dividends or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of such Person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof.  The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

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“Contractors” shall mean, collectively, the GE Contractor and each other party to a Construction Agreement (other than a Borrower).

“Control” shall mean, in relation to any Person, the ability to direct or cause the direction of the management or policies of another Person, whether by means of the ownership of stock or other securities with the right to vote, by contract or otherwise, and “Controlled” and “Controlling” shall have meanings correlative thereto.

“Conversion Date” shall mean the Facility A Conversion Date and/or the Facility B Conversion Date, as the context shall require.

“Cost” shall mean, in respect of any Change Order, all costs incurred or to be incurred by the applicable Borrower in respect thereof, any Tranche A Debt Service, Tranche B Debt Service or other costs attributable to a delay in the milestones or completion deadlines set forth in the Construction Agreements, or any other cost incurred by the applicable Borrower directly or indirectly as a result of such Change Order.

“Debt Service Coverage Statement” shall mean each statement delivered pursuant to Section 5.1(d)(i)(A) or Section 5.1(d)(ii)(A)  hereof.

“Debt Service and Related Payments Account” shall have the meaning provided in the Collateral Account Agreement.

“Debt Service Reserve Account” shall mean the Tranche A Debt Service Reserve Account and/or the Tranche B Debt Service Reserve Account, as the context may require.

“Default” shall mean any event or circumstance which with notice or lapse of time or both would become an Event of Default.

“Default Rate” shall have the meaning provided in Section 2.11(c) hereof.

“Defaulting Lender” shall mean, subject to Section 2.21(b), any Lender that (a) has refused or failed to (i) fund all or any portion of its Loans within three Business Days after the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent or any Lender any other amount required to be paid by it hereunder within three Business Days after the date when due, unless such payment is being contested in good faith by such Lender, (b) has notified the Borrowers or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding

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obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any bankruptcy, insolvency, reorganization, liquidation or similar law or proceeding, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided, however, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.21(b)) upon delivery of written notice of such determination to the Borrowers and each Lender.

“Depositary Agent” shall mean a commercial bank or trust company selected by the Administrative Agent (and reasonably satisfactory to the Borrowers), to act in the capacity of depositary agent in accordance with the Collateral Account Agreement, and shall include any successor Depositary Agent appointed pursuant to Section 5.4 of the Collateral Account Agreement.

“Disbursement” shall mean any disbursement of a Loan pursuant to this Agreement.

“Disbursement Date” shall mean the date, including the Initial Funding Date, specified in a Construction Requisition as the date on which Disbursement of a Construction Loan is requested by a Borrower.

“Disposition” shall mean any sale, transfer or other disposition by the Borrowers to any Person of any Property, and “Dispose” shall have the meaning correlative thereto.

“Distribution” shall have the meaning provided in Section 6.5 hereof.

“Dollars” and the sign “$” shall each mean freely transferable, lawful money of the United States.

“Drawdown Schedule” shall mean, in respect of a Project, the schedule of expected Disbursements of the Construction Loans to be made during each month prior to the Conversion Date of such Project prepared by the applicable Borrower and delivered to the Administrative Agent on the applicable Initial Funding Date pursuant to Section 3.2(b) hereof.

“EBITDA” shall mean, in respect of a Borrower, for any period, such Borrower’s net income for such period plus, without duplication and to the extent deducted in determining net income for such period, the sum of (a) total income tax expense, (b) interest expense, amortization or write-off of debt discount and debt issuance costs and commissions, discounts

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and other fees and charges associated with Indebtedness, (c) depreciation and amortization expense, (d) any extraordinary expense or loss, and (e) any other non-cash charges, and minus, to the extent included in the Borrower’s net income for such period, the sum of (a) interest income, (b) any extraordinary income or gains, and (c) any other non-cash income, all as determined in accordance with GAAP.  For purposes of the foregoing, interest expense shall be determined after giving effect to any net payments made or received by a Borrower with respect to Required Hedging Agreements.

“Eligible Assignee” shall mean (i) a Lender (other than a Defaulting Lender), (ii) an Affiliate of a Lender (other than a Defaulting Lender), (iii) an Approved Fund, and (iv) any other Person (other than a natural person or a Defaulting Lender) approved by the Administrative Agent (such approval not to be unreasonably withheld); provided that, notwithstanding the foregoing, “Eligible Assignee” shall not include the Borrowers or any of the Borrowers’ Affiliates or Subsidiaries.

“Enforcement Action” shall mean any action or proceeding against the Borrowers, Holdings, the Sponsor, the Project or all or any part of the Collateral taken for the purpose of (i) enforcing the rights of any Secured Party in respect of the Collateral or otherwise under the Security Documents, including the initiation of action in any court or before any administrative agency or governmental tribunal to enforce such rights, and any action to exercise any rights provided in Section 9.3 hereof and (ii) adjudicating or seeking a judgment on a claim.

“Environmental Claim” shall mean, with respect to any Person, (i) any notice, claim, administrative, regulatory or judicial or equitable action, suit, Lien, judgment or demand by any other Person or (ii) any other written communication by any Governmental Authority or third party, in either case alleging or asserting such Person’s liability for investigatory costs, cleanup costs, consultants’ fees, governmental response costs, damages to natural resources (including, without limitation, wetlands, wildlife, aquatic and terrestrial species and vegetation) or other Property, property damages, personal injuries, fines or penalties arising out of, based on or resulting from, in the case of either (i) or (ii), (x) the presence, or Release into the environment, of or exposure of any person or Property to any Hazardous Material at any location, whether or not owned by such Person or (y) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law, or Governmental Approval issued under any Environmental Law.

“Environmental Laws” shall mean any and all Laws relating to the environment (including natural resources), occupational health and safety, remediation of contamination, restoration of environmental quality, or to Releases or threatened Releases of Hazardous Materials into the environment including ambient air, surface water, groundwater, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Hazardous Materials.

“Equity Contribution” shall mean one or more cash contributions by the Sponsor to the Borrower, in Dollars, that would be treated as a cash equity contribution under GAAP, and not as Indebtedness of the Borrower.  For the avoidance of doubt, no Project Revenue shall be credited to or otherwise be considered to be an Equity Contribution.

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“Equity Contribution Agreement” shall mean that certain Equity Contribution Agreement, dated as of November 7, 2012, among the Sponsor, the Borrowers, the Administrative Agent and the Collateral Agent.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder.  Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

“ERISA Affiliate” shall mean each Person (as identified in Section 3(9) of ERISA) that together with a Borrower or a Subsidiary of a Borrower would be deemed to be a “single employer” within the meaning of Section 4001 of ERISA or Section 414(b), (c), (m), or (o) of the Code.

“Eurodollar Loans” shall mean Loans which bear interest based on the Adjusted Eurodollar Rate.

“Eurodollar Rate” shall mean, with respect to any Eurodollar Loans for any Interest Period, the rate per annum determined by the Administrative Agent to be the arithmetic mean of the offered rates for deposits in Dollars with a term comparable to such Interest Period that appears on the Reference Page (as defined below) at approximately 11:00 a.m., London, England time, on the Interest Determination Date; provided, however, that (i) if no comparable term for an Interest Period is available, the Eurodollar Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and (ii) if there shall at any time no longer exist a Reference Page, “Eurodollar Rate” shall mean, with respect to each day during each Interest Period pertaining to Eurodollar Loans, the rate per annum equal to the rate at which a major financial institution reasonably selected by the Administrative Agent is offered deposits in Dollars at approximately 11:00 a.m., London, England time on the Interest Determination Date in the London interbank market for delivery on the first day of such Interest Period for the number of days comprised therein and in an amount comparable to their respective portions of the amount of such Eurodollar Loan to be outstanding during such Interest Period.  “Reference Page” shall mean the Reuters Screen LIBOR01 Page (or such other page as may replace such page on such service for the purpose of displaying the rates at which Dollar deposits are offered by leading banks in the London interbank deposit market).

“Event of Default” shall have the meaning provided in Section 9.1 hereof.

“Event of Loss” shall mean, with respect to any Property of the Borrowers, any loss of, destruction of, or damage to, or any condemnation (including a Taking) or other taking of, such Property.

“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed by the jurisdiction (or any political subdivision thereof)

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under the laws of which such Recipient is organized, or in which its principal office or, in the case of any Lender, its applicable lending office is located or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 2.20) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.14, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.14(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Expropriation Event” shall mean (a) any condemnation, nationalization, seizure or expropriation by a Governmental Authority of all or a substantial portion of the Project or the Property of a Borrower or of its share capital, (b) any assumption by a Governmental Authority of control of a material portion of the Property or business operations of a Borrower or of its share capital, (c) any taking of any action by a Governmental Authority for the dissolution or disestablishment of a Borrower or (d) any taking of any action by a Governmental Authority that would prevent a Borrower from carrying on its business or operations or a substantial part thereof.

“Extraordinary Receipt” shall mean any cash in excess of $250,000 received by or paid to or for the account of either Borrower not in the ordinary course of business, including, without limitation, purchase price adjustments, tax refunds, judgments and litigation settlements, pension plan reversions and indemnity payments.

“Facilities” shall mean the collective reference to Facility A and Facility B.

“Facility A” shall mean a micro-LNG facility with a capacity of approximately 250,000 LNG Gallons per day, to be located on Site A and owned by the Tranche A Borrower, all as more fully described in the Facility A Plans and Specifications, together with all other amenities and improvements related thereto owned by the Tranche A Borrower.

“Facility A Conversion Date” shall mean the date on which the conditions precedent set forth in Section 3.4 hereof are satisfied with respect to Facility A.

“Facility A Date Certain” shall mean the earlier of (a) the date thirty (30) months after the Initial Funding Date for Tranche A Construction Loans and (b) December 31, 2016.

“Facility A Plans and Specifications” shall mean all engineering plans and project specifications prepared in connection with the Projects and relating to Facility A, together with any approved amendments, changes or addenda thereto, in each case approved by the Tranche A Borrower, the Administrative Agent and the Project Engineer.

“Facility A Project Completion Date” shall mean the date upon which all of the following events shall have occurred with respect to Facility A:

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(a)                                 the Commercial Operations Date (as defined in the applicable LNG Purchase Agreement) shall have occurred;

(b)                                 the total production capacity of Facility A is at least 250,000 LNG Gallons per day (taking into account reasonable measurement tolerances), as verified by the Project Engineer using data generally accepted in the natural gas liquefaction industry;

(c)                                  all portions of the Work (except for punch list items the total cost of which to complete shall not exceed $500,000) shall have been completed in accordance with the Construction Agreements and in compliance with all applicable Laws and Governmental Approvals, and all clearing, landscaping, lighting and paving of Site A, and all ancillary construction, upgrades and improvements necessary for the operation of the Project as contemplated by the Transaction Documents, shall have been completed;

(d)                                 the Acceptance Tests shall have been successfully completed to the satisfaction of the Project Engineer;

(e)                                  the Tranche A Borrower shall have delivered the Borrower Completion Certificate to the Administrative Agent; and

(f)                                   the Administrative Agent shall have received an executed counterpart of the Project Engineer Completion Certificate with respect to Facility A.

“Facility A Project Costs” shall mean (i) all costs and expenses reasonably and necessarily incurred or to be incurred by the Tranche A Borrower to finance and complete Facility A and achieve the Facility A Project Completion Date (and complete all punch list items) in the manner contemplated by the Transaction Documents, including all reasonable and necessary costs and expenses incurred in connection with the negotiation and preparation of the Transaction Documents, all fees payable in respect of the Tranche A Construction Loans, and all other reasonable and necessary expenses required for the financing, development, design, construction, equipment procurement, installation, start-up and initial operation of Facility A, (ii) all Tranche A Interest Expense and Operation and Maintenance Expenses incurred during the construction, installation and start-up of Facility A, and (iii) the deposit into the Tranche A Debt Service Reserve Account contemplated by Section 3.4(m) hereof.  “Facility A Project Costs” shall not include (a) payments of principal of any Indebtedness or (b) any payments of any kind to the Sponsor or any Affiliate thereof (other than payments pursuant to an Affiliate Project Document relating to Facility A).

“Facility A Project Schedule” shall mean the Project Schedule for Facility A.

“Facility B” shall mean a micro-LNG facility with a capacity of approximately 250,000 LNG Gallons per day, to be located on Site B and owned by the Tranche B Borrower, all as more fully described in the Facility B Plans and Specifications, together with all other amenities and improvements related thereto owned by the Tranche B Borrower.

“Facility B Conversion Date” shall mean the date on which the conditions precedent set forth in Section 3.4 hereof are satisfied with respect to Facility B.

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“Facility B Date Certain” shall mean the earlier of (a) the date thirty (30) months after the Initial Funding Date for Tranche B Construction Loans and (b) December 31, 2016.

“Facility B Plans and Specifications” shall mean all engineering plans and project specifications prepared in connection with the Projects and relating to Facility B, together with any approved amendments, changes or addenda thereto, in each case approved by the Tranche B Borrower, the Administrative Agent and the Project Engineer.

“Facility B Project Completion Date” shall mean the date upon which all of the following events shall have occurred with respect to Facility B:

(a)                                 the Commercial Operations Date (as defined in the applicable LNG Purchase Agreement) shall have occurred;

(b)                                 the total production capacity of Facility B is at least 250,000 LNG Gallons per day (taking into account reasonable measurement tolerances), as verified by the Project Engineer using data generally accepted in the natural gas liquefaction industry;

(c)                                  all portions of the Work (except for punch list items the total cost of which to complete shall not exceed $500,000) shall have been completed in accordance with the Construction Agreements and in compliance with all applicable Laws and Governmental Approvals, and all clearing, landscaping, lighting and paving of Site B, and all ancillary construction, upgrades and improvements necessary for the operation of the Project as contemplated by the Transaction Documents, shall have been completed;

(d)                                 the Acceptance Tests shall have been successfully completed to the satisfaction of the Project Engineer;

(e)                                  the Tranche B Borrower shall have delivered the Borrower Completion Certificate to the Administrative Agent; and

(f)                                   the Administrative Agent shall have received an executed counterpart of the Project Engineer Completion Certificate with respect to Facility B.

“Facility B Project Costs” shall mean (i) all costs and expenses reasonably and necessarily incurred or to be incurred by the Tranche B Borrower to finance and complete Facility B and achieve the Facility B Project Completion Date (and complete all punch list items) in the manner contemplated by the Transaction Documents, including all reasonable and necessary costs and expenses incurred in connection with the negotiation and preparation of the Transaction Documents, all fees payable in respect of the Tranche B Construction Loans, and all other reasonable and necessary expenses required for the financing, development, design, construction, equipment procurement, installation, start-up and initial operation of Facility B, (ii) all Tranche B Interest Expense and Operation and Maintenance Expenses incurred during the construction, installation and start-up of Facility B, and (iii) the deposit into the Tranche B Debt Service Reserve Account contemplated by Section 3.4(m) hereof.  “Facility B Project Costs” shall not include (a) payments of principal of any Indebtedness or (b) any payments of any kind to the Sponsor or any Affiliate thereof (other than payments pursuant to an Affiliate Project Document relating to Facility B).

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“Facility B Project Schedule” shall mean the Project Schedule for Facility B.

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent (in its individual capacity) on such day on such transactions as determined by the Administrative Agent.

“Fees” shall mean all amounts payable pursuant to or referred to in Section 8.6 hereof.

“Finance Documents” shall mean, collectively, this Agreement, the Notes (if any), the Sponsor Guaranty, the Security Documents, the Equity Contribution Agreement and the Required Hedging Agreements entered into by any Secured Swap Counterparty.

“Finance Party” shall mean, collectively, the Borrowers, the Sponsor and Holdings.

“Foreign Lender” shall mean any Lender that is not a U.S. Person.

“GAAP” shall mean generally accepted accounting principles and practices as in effect from time to time in the United States.

“Gas Supply Agreements” shall mean, collectively, (i) a gas supply agreement for the supply of natural gas to Facility A, to be entered into after the Closing Date and before the Initial Funding Date for Tranche A Construction Loans, between an Approved Gas Supplier and the Tranche A Borrower and (ii) a gas supply agreement for the supply of natural gas to Facility B, to be entered into after the Closing Date and before the Initial Funding Date for Tranche B Construction Loans, between an Approved Gas Supplier and the Tranche B Borrower.

“GE Capital” shall mean General Electric Capital Corporation, a Delaware corporation.

“GE Contractor” shall mean GE Oil & Gas, Inc., a Delaware corporation.

“GE EPC Contracts” shall mean, collectively, (i) the EPC Contract for Facility A to be entered into by and among the GE Contractor and the Tranche A Borrower and (ii) the EPC Contract for Facility B to be entered into by and among the GE Contractor and the Tranche B Borrower.

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“Governmental Approval” shall mean any authorization, consent, approval, license, ruling, permit, tariff, rate, certification, exemption, filing, variance, claim, order, judgment, decree, publication, notice to, declaration of or with, or registration by or with, any Governmental Authority.

“Governmental Authority” shall mean any government, governmental department, commission, board, bureau, agency, regulatory authority, instrumentality, judicial or administrative body, central bank, domestic or foreign, federal, state or local having jurisdiction over the matter or matters in question.

“Hazardous Material” shall mean any substance, material, or waste that is regulated as a hazardous waste, hazardous material, hazardous substance, hazardous chemical, toxic substance, contaminant or pollutant under any applicable Environmental Law or which could give rise to liability under any Environmental Law, including, but not limited to, any petroleum or petroleum product, friable asbestos, mercury, transformers or other equipment that contain dielectric fluid containing polychlorinated biphenyls (PCB’s).

“Hedging Agreement” shall mean (i) any Interest Rate Hedging Agreement, (ii) any Commodity Hedging Agreement and (iii) any other agreement in respect of a basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions entered into by the Borrower.

“Hedging Claims” shall mean any settlement amounts or other breakage or termination fees in connection with any unwinding, breach or termination of any Required Hedging Agreement.

“Holdings” shall mean Clean Energy LNG Holdings, LLC, a Delaware limited liability company.

“Immaterial Additional Project Document” shall mean, with respect to a Project, any contract or agreement relating to the development, construction, testing, operation, maintenance, repair, insurance, financing or use of such Project entered into by the applicable Borrower with any other Person subsequent to the date of this Agreement (including any contract(s) or agreement(s) entered into in substitution for any Project Document that has been terminated in accordance with its terms or otherwise) other than a Material Additional Project Document.

“Immaterial Project Participants” shall mean each party (other than the Borrowers) to an Immaterial Additional Project Document.

“Indebtedness” of any Person shall mean (i) all indebtedness of such Person for borrowed money, (ii) the deferred purchase price of assets or services which in accordance with GAAP would be shown on the liability side of the balance sheet of such Person, (iii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any Property owned by such first Person, whether or not such Indebtedness has been assumed, (v) all

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Capital Lease Obligations of such Person, (vi) all obligations of such Person to pay a specified purchase price for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vii) all net obligations of such Person under Hedging Agreements, and (viii) all Contingent Obligations of such Person; provided that Indebtedness shall not include trade payables arising in the ordinary course of business so long as such trade payables are payable within ninety (90) days of the date the respective goods are delivered or the respective services are rendered and are not overdue.

“Indemnified Liabilities” shall have the meaning provided in Section 11.2(a) hereof.

“Indemnified Person” shall have the meaning provided in Section 11.2(a) hereof.

“Indemnified Taxes” shall mean (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Finance Party under any Finance Document and (b) to the extent not otherwise described in (a), Other Taxes.

“Initial Funding Date” shall mean, in respect of a Tranche, the date upon which the conditions precedent set forth in Section 3.2 hereof have been satisfied (or waived by the appropriate Secured Parties) with respect to such Tranche.

“Insurance Advisor” shall mean any Person from time to time appointed by the Required Lenders to act as Insurance Advisor for the purposes of this Agreement.

“Insurance Proceeds” shall mean all amounts payable to a Borrower or any Secured Party in respect of any insurance required to be maintained (or caused to be maintained) by such Borrower pursuant to Section 5.9 hereof (other than general liability insurance, delayed completion insurance and business interruption insurance), regardless of whether such payments are received from any insurer or from the Contractor or any other party pursuant to any Construction Agreement or otherwise.

“Interest Determination Date” shall mean, with respect to any Eurodollar Loan, the second Business Day prior to the commencement of any Interest Period relating to such Eurodollar Loan.

“Interest Period” shall have the meaning provided in Section 2.12 hereof.

“Interest Rate Hedging Agreement” shall mean any agreement in respect of any interest rate swap transaction, cap or collar agreement or similar transaction.

“Investment” in any Person shall mean, without duplication: (i) the acquisition (whether for cash, securities, other Property, services or otherwise) or holding of Capital Stock, bonds, notes, debentures, partnership or other ownership interests or other securities of such Person, or any agreement to make any such acquisition or to make any capital contribution to such Person; or (ii) the making of any deposit with (excluding deposits with financial institutions available for withdrawal on demand), or advance, loan or other extension of credit to, such Person.

“IRS” means the United States Internal Revenue Service.

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“Law” shall mean, with respect to any Person (i) any statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, treaty, franchise, license, agreement or other governmental restriction or any interpretation or administration of any of the foregoing by any Governmental Authority (including Governmental Approvals) and (ii) any directive, guideline, policy, requirement or any similar form of decision of or determination by any Governmental Authority which is applicable to or binding on such Person or its Property, in each case, whether now or hereafter in effect (including, in each case, any Environmental Law).

“Lender Affiliate Project Document” shall mean any Project Document to which any Lender Affiliate Project Participant is a party.

“Lender Affiliate Project Participant” shall mean any Project Participant that is an Affiliate of General Electric Capital Corporation.

“Lenders” shall mean the lenders listed on Annex I hereto, and any other Person that shall have become a party hereto as a lender pursuant to an Assignment and Acceptance, other than such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance or any other documentation, in each case, in accordance with Section 11.11.

“Leverage Ratio Statement” shall mean each statement delivered pursuant to Section 5.1(d)(i)(C) or Section 5.1(d)(ii)(C) hereof.

“Lien” shall mean, with respect to any Property of any Person, any mortgage, lien, deed of trust, hypothecation, fiduciary transfer of title, assignment by way of security, lien, pledge, charge, lease, sale and lease-back arrangement, easement, servitude, trust arrangement (including any statutory trust), or security interest or encumbrance of any kind in respect of such Property, or any preferential arrangement having the practical effect of constituting a security interest with respect to the payment of any obligation with, or from the proceeds of, any Property of any kind (and any Property acquired or held subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease Obligation or other title retention agreement relating to such Property shall be deemed subject to a Lien).

“LNG” shall mean liquefied natural gas, natural gas that has been cooled at normal pressure to achieve a liquid state suitable for transport.

“LNG Gallon” shall have the meaning provided in the LNG Purchase Agreements.

“LNG Purchase Agreements” shall mean (i) that certain LNG Sale and Purchase Agreement, dated as of November 7, 2012, by and between the Tranche A Borrower and the LNG Purchaser and (ii) (i) that certain LNG Sale and Purchase Agreement, dated as of November 7, 2012, by and between the Tranche B Borrower and the LNG Purchaser.

“LNG Purchaser” shall mean Clean Energy, a California corporation.

“Loans” shall mean Construction Loans and/or Term Loans, as the context shall require.

“Loss Proceeds” shall mean, with respect to any Event of Loss, any Insurance Proceeds, condemnation awards or other compensation, awards, damages and other payments or relief

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(including any compensation payable in connection with a Taking) with respect to such Event of Loss (excluding, in each case, the proceeds of general liability insurance, delayed completion insurance, and business interruption insurance).

“Loss Proceeds Account” shall have the meaning provided in the Collateral Account Agreement.

“Margin Stock” shall mean margin stock within the meaning of Regulation U and Regulation X.

“Material Additional Project Document” shall mean, with respect to a Project, any contract or agreement relating to the development, construction, testing, operation, maintenance, repair, insurance, financing or use of such Project entered into by the applicable Borrower with any other Person subsequent to the date of this Agreement (including any contract(s) or agreement(s) entered into in substitution for any Project Document that has been terminated in accordance with its terms or otherwise) other than any such contract or agreement or series of related contracts or agreements (other than any Gas Supply Agreement or any Power Purchase Agreement) which (i) provides for the payment by Borrowers of less than $500,000 per annum, or the provision to Borrowers of less than $500,000 per annum in value of goods or services, and (ii) is not reasonably necessary or critical to a Project or does not cover goods or services that cannot be replaced on commercially reasonable terms.

“Material Adverse Effect” shall mean a material adverse effect on (i) a Project, (ii) the business, liabilities (actual and contingent), operations, condition (financial or otherwise) or a material portion of the Property of a Borrower, Holdings or the Sponsor, (iii) the legality, validity or enforceability of any provision of any Transaction Document (other than any Immaterial Additional Project Document), (iv) the ability of a Borrower, any other Finance Party or any other Project Participant (other than any Immaterial Project Participant) to timely perform any of its obligations under any of the Transaction Documents to which it is a party, (v) the rights and remedies of the Secured Parties under any of the Finance Documents (other than as a result of the gross negligence or willful misconduct of the Collateral Agent) or (vi) the Security Interests provided under the Security Documents (other than as a result of the gross negligence or willful misconduct of the Collateral Agent).

“Modified Unutilized Tranche A Construction Loan Commitment Amount” shall mean, for each Lender, at any time, the product of (i) the Unutilized Tranche A Construction Loan Commitment of such Lender at such time and (ii) Unutilized Commitment Coefficient.

“Modified Unutilized Tranche B Construction Loan Commitment Amount” shall mean, for each Lender, at any time, the product of (i) the Unutilized Tranche B Construction Loan Commitment of such Lender at such time and (ii) Unutilized Commitment Coefficient.

“Monthly Transfer Date” shall mean the last Business Day of each month commencing on the first such day occurring on or after (i) in respect of the Tranche A Borrower, the Facility A Conversion Date and (ii) in respect of the Tranche B Borrower, the Facility B Conversion Date.

“Moody’s” shall mean Moody’s Investors Services, Inc. or its successor.

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“Mortgage” shall mean any mortgage or deed of trust (including a leasehold mortgage or leasehold deed of trust) with respect to a Site granted by a Borrower to the Collateral Agent for the benefit of the Secured Parties which shall be in form and substance reasonably satisfactory to the Administrative Agent.

“Multiemployer Plan” shall mean a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or accruing an obligation to make contributions or has within any of the preceding five plan years made or accrued an obligation to make contributions.

“Necessary Governmental Approval” shall have the meaning provided in Section 4.6(a) hereof.

“Net Available Amount” shall mean, with respect to any Event of Loss or any Project Document Claim, the aggregate amount of Loss Proceeds (in the case of an Event of Loss) or gross proceeds (in the case of a Project Document Claim) received by the applicable Borrower or any Secured Party in respect of such Event of Loss or Project Document Claim, as the case may be, net of reasonable expenses incurred in connection with the collection thereof.

“Net Disposition Proceeds” shall mean, with respect to any Disposition, the gross cash proceeds received from such Disposition (including any cash received by way of deferred payment pursuant to a promissory note, receivable or otherwise, but only as and when received), net of (i) the reasonable out-of-pocket costs of such Disposition, including fees, expenses and commissions with respect to legal, accounting, financial advisory, brokerage and other professional services provided in connection with such Disposition and (ii) the incremental taxes paid or payable by the applicable Borrower as a result of such Disposition.

“Net Issuance Proceeds” shall mean, with respect to any incurrence of Indebtedness or issuance of Capital Stock, the gross cash proceeds received from such incurrence or issuance, in each case net of brokers’, advisors’ and investment banking fees and other customary out-of-pocket underwriting discounts, commissions and other customary out-of-pocket cash costs, fees and expenses (including reasonable attorneys’ and accountants’ fees), in each case incurred in connection with such transaction.

“Notes” shall mean the collective reference to Tranche A Construction Notes, Tranche B Construction Notes, Tranche A Term Notes and Tranche B Term Notes.

“Notice of Borrowing” shall have the meaning provided in Section 2.5 hereof.

“Notice of Conversion or Continuation” shall have the meaning provided in Section 2.10 hereof.

“Notice Office” shall mean the office of the Administrative Agent located at 800 Long Ridge Road, Stamford, CT 06927, or such other office, telephone or facsimile number as the Administrative Agent may hereafter designate in writing as such to each of the other parties hereto.

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“Obligations” shall mean, collectively, (i) all loans, advances, debts, liabilities, and obligations (including all interest that accrues after the commencement of any case or proceeding by or against a Borrower in bankruptcy, whether or not allowed in such case or proceeding), howsoever arising, owed by either Borrower under any Finance Document to the Administrative Agent or any other Secured Party of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including all interest, fees, charges, expenses, attorneys’ fees and consultants’ fees chargeable to such Borrower, (ii) any and all sums advanced by the Administrative Agent or any other Secured Party in order to preserve the Collateral or to preserve the Security Interests, (iii) in the event of any Enforcement Action, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Administrative Agent and/or the Secured Parties of their rights under the Security Documents, together with attorneys’ fees and court costs, and (iv) the obligations of either Borrower under any Required Hedging Agreement entered into with any Secured Swap Counterparty and any obligations of either Borrower to General Electric Capital Corporation or an Affiliate thereof in connection therewith. For the avoidance of doubt, “Obligations” shall not include any obligations in respect of the Warrant Agreement, the Warrant or the Registration Rights Agreement

“Operating Account” shall have the meaning provided in the Collateral Account Agreement.

“Operating Budget” shall have the meaning provided in Section 5.17(a) hereof.

“Operating Year” shall mean (i) with respect to Facility A, each fiscal year (or portion thereof) after the Facility A Conversion Date and (ii) with respect to Facility B, each fiscal year (or portion thereof) after the Facility B Conversion Date.

“Operation and Maintenance Expenses” shall mean, with respect to each portion of a Project that is in operation (regardless of whether the Facility A Project Completion Date or the Facility B Project Completion Date has occurred) for any period on or after the date such portion of such Project has begun operation, collectively, without duplication, all reasonable (i) expenses incurred by the applicable Borrower of administering and operating such portion of such Project and of maintaining it in accordance with Prudent Industry Practices, (ii) fuel, feedstock and other input procurement and transportation costs payable by the applicable Borrower, (iii) direct operating and maintenance costs of the applicable Facility payable by the applicable Borrower, (iv) insurance premiums payable by the applicable Borrower, (v) property, sales, value-added and excise taxes payable by the applicable Borrower (other than taxes imposed on or measured by income or receipts), (vi) costs and fees incurred by the applicable Borrower in connection with obtaining and maintaining in effect the Governmental Approvals required in connection with the applicable Project and (vii) legal, accounting and other professional fees incurred by the applicable Borrower in the ordinary course of business in connection with the applicable Project, in each case as set forth in an Operating Budget (or any amendment thereof) approved in accordance with Section 5.17; provided that (a) with effect from the Facility A Project Completion Date or the Facility B Project Completion Date, as applicable, “Operation and Maintenance Expenses” shall include all of the foregoing with respect to the entire Project and (b) “Operation and Maintenance Expenses” shall not include payments into the Tranche A Debt Service Reserve Account or Tranche B Debt Service Reserve Account, depreciation, or any items properly chargeable by GAAP to fixed capital accounts.

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“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Finance Document, or sold or assigned an interest in any Loan or Finance Document).

“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Finance Document.

“Participant” shall have the meaning assigned to such term in clause (f) of Section 11.11.

“Participant Register” has the meaning specified in clause (f) of Section 11.11.

“Patriot Act” shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, signed into law October 26, 2001.

“Permitted Investments” shall mean, for any Person: (a) direct obligations of the United States, or of any agency thereof, or obligations guaranteed as to principal and interest by the United States, or of any agency thereof, in either case maturing not more than 180 days from the date of acquisition thereof by such Person; (b) Dollar time deposits in the London interbank market with, or certificates of deposit issued by, any bank or trust company licensed under the laws of the United States or any state thereof which has outstanding senior long-term unsecured indebtedness which is rated (on the date of acquisition thereof) A+ or Al or better by Standard & Poor’s or Moody’s, respectively, maturing not more than 180 days from the date of acquisition thereof by such Person; (c) commercial paper rated A-1 or P-1 or better by Standard & Poor’s or Moody’s, respectively, maturing not more than 180 days from the date of acquisition thereof by such Person; and (d) money market funds rated at least “AA” by Standard & Poor’s or “Aa” or better by Moody’s.

“Permitted Lien” shall mean any Lien permitted to be incurred by the Borrowers pursuant to Section 6.1 hereof.

“Person” shall mean any individual, corporation, limited liability company, company, voluntary association, partnership, joint venture, trust, or other enterprise or unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).

“Plan” shall mean any pension plan as defined in Section 3(2) of ERISA other than a Multiemployer Plan.

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“Plans and Specifications” shall mean the Facility A Plans and Specifications and/or the Facility B Plans and Specifications, as the context shall require.

“Platform” shall have the meaning provided in Section 11.3(d) hereof.

“Pledge Agreement” shall mean the Pledge and Guaranty Agreement, dated as of November 7, 2012, between Holdings and the Collateral Agent for the benefit of the Secured Parties.

“Power Purchase Agreements” means collectively, (i) a power purchase agreement for the supply of power to Facility A, to be entered into after the Closing Date and before the Initial Funding Date for Tranche A Construction Loans, between an Approved Power Supplier and the Tranche A Borrower and (ii) a power purchase agreement for the supply of power to Facility B, to be entered into after the Closing Date and before the Initial Funding Date for Tranche B Construction Loans, between an Approved Power Supplier and the Tranche B Borrower.

“Prime Rate” shall mean, at any time, a rate per annum equal to the rate last quoted by The Wall Street Journal as the “U.S. prime rate” or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent).

“Project Costs” shall mean Facility A Project Costs and/or Facility B Project Costs, as the context shall require.

“Projected Debt Service Coverage Statement” shall mean each statement delivered pursuant to Section 5.1(d)(i)(B) or Section 5.1(d)(ii)(B) hereof.

“Project Document Claim” shall mean any claim of the Borrowers against any Project Participant under any Project Document.

“Project Documents” shall mean each Construction Agreement, each LNG Purchase Agreement, each Gas Supply Agreement, each Power Purchase Agreement and each Additional Project Document.

“Project Engineer” shall mean any Person from time to time appointed by the Required Lenders to act as Project Engineer for the purposes of this Agreement.

“Project Engineer Completion Certificate” shall mean a certificate, substantially in the form of Exhibit D-2 hereto (such form being subject to review by the Project Engineer subsequent to the appointment thereof) or otherwise in form and substance acceptable to the required Lenders, dated the applicable Conversion Date, duly completed and signed by the Project Engineer.

“Project Participants” shall mean the LNG Purchaser, each Contractor, each Approved Gas Supplier, each Approved Power Supplier, the Sponsor and each other party (other than the

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Borrowers) to a Project Document, and each Replacement Project Participant. For the avoidance of doubt, after the termination of a Project Document by virtue of scheduled expiration in the ordinary course in accordance with its terms, “Project Participant” shall not include the party to such Project Document (except to the extent such Person is also party to another Project Document).

“Project Revenues” shall mean, for any period, without duplication, the aggregate of all revenues received by a Borrower in respect of a Project during such period from (i) payments made by the LNG Purchaser pursuant to the applicable LNG Purchase Agreement, (ii) interest accrued on, and other income derived from, the balance outstanding during such period in the applicable Collateral Accounts (including from Permitted Investments), and (iii) the proceeds of any business interruption insurance; provided that Project Revenues shall exclude, to the extent otherwise included, (1) net amounts receivable under any Hedging Agreements, (2) proceeds payable in respect of any insurance (other than business interruption insurance) or (3) warranty or indemnity payments or damages payable to the applicable Borrower under any Project Document.

“Project Revenues Collection Account” shall have the meaning provided in the Collateral Account Agreement.

“Project Schedule” has the meaning specified in clause (iii) of Section 3.2(n) hereof.

“Projects” shall mean, collectively, the Facilities, the Sites, and all easements, leasehold interests, licenses, permits, contract rights and other real and personal property interests now owned or hereafter acquired by either Borrower or in which either Borrower has any rights.

“Property” shall mean any property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, and any right or interest therein.

“Prudent Industry Practices” means the professional practices, methods, equipment, specifications and safety and output standards and industry codes applicable to projects of the same type and capacity as the Projects, with respect to the design, installation, operation, maintenance and use of equipment and similar machinery, all of the above in compliance with applicable standards of safety, output, dependability, efficiency, environmental protection and economy, including recommended practice, of a good, safe, prudent and workman-like character.  Prudent Industry Practices are not intended to be limited to the optimum or minimum practice or method to the exclusion of all others, but rather to be a spectrum of commercially reasonable and prudent practices and methods as practiced in the industry.

“Quarterly Dates” shall mean the last Business Day of each March, June, September and December.

“Quarterly Distribution Date” shall mean each Monthly Transfer Date occurring in the months of February, May, August and November.

“Recipient” shall mean (a) the Administrative Agent, and (b) any Lender.

“Register” shall have the meaning provided in Section 2.9(c) hereof.

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“Registration Rights Agreement” shall mean that certain Registration Rights Agreement, dated as of November 7, 2012, between the Sponsor and GE Energy Financial Services, Inc.

“Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve system (or any successor).

“Regulation U” shall mean Regulation U of the Board of Governors of the Federal Reserve system (or any successor).

“Regulation X” shall mean Regulation X of the Board of Governors of the Federal Reserve system (or any successor).

“Release” shall mean any depositing, spilling, leaking, pumping, pouring, placing, emitting, discarding, abandoning, emptying, discharging, migrating, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Material).

“Replaced Lender” shall have the meaning set forth in Section 2.20 hereof.

“Replacement Lender” shall have the meaning set forth in Section 2.20 hereof.

“Replacement Project Document” shall mean any contract or agreement in form and substance reasonably satisfactory to the Required Lenders entered into by either Borrower with any Replacement Project Participant subsequent to the date of this Agreement in substitution for any Project Document that has been terminated (other than by virtue of scheduled expiration in the ordinary course in accordance with its terms).

“Replacement Project Participant” shall mean, (a) in the case of any Project Participant other than an Immaterial Project Participant, with respect to such Project Participant, any Person reasonably satisfactory to the Required Lenders and having credit, or acceptable credit support, equal to or greater than that of the replaced Project Participant on the date that the applicable Project Document was entered into who, pursuant to a Replacement Project Document, assumes the obligations of the replaced Project Participant on terms and conditions no less favorable to the Borrower than those applicable to the replaced Project Participant pursuant to the applicable Project Document; and (b) in the case of any Immaterial Project Participant, any Person selected by the applicable Borrower.

“Required Debt Service Reserve Amount” shall mean, the Tranche A Required Debt Service Reserve Amount and/or the Tranche B Required Debt Service Reserve Amount, as the context may require.

“Required Hedging Agreement” shall have the meaning provided in Section 5.12 hereof.

“Required Lenders” shall mean, without duplication, (a) the Lenders holding at least 50.1% of the aggregate outstanding principal amount of the Loans or (b) if no Loans are outstanding, the Lenders holding at least 50.1% of the Construction Loan Commitments; provided that the Construction Loan Commitments and the principal amount of the Loans of the Lenders that are Defaulting Lenders (if any) shall be excluded from the determination of Required Lenders.

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“Reserve Requirement” shall mean, at any time, the maximum rate at which reserves (including any marginal, special, supplemental, or emergency reserves) are required to be maintained under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) by member banks of the Federal Reserve System against “Eurocurrency liabilities” (as such term is used in Regulation D).  Without limiting the effect of the foregoing, the Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the Adjusted Eurodollar Rate is to be determined or (ii) any category of extensions of credit or other assets which include Eurodollar Loans.  The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Reserve Requirement.

“Restoration Requisition” shall have the meaning provided in Section 4.8(e)(i) of the Collateral Account Agreement.

“Restoration Work” shall mean the design, engineering, construction and other work with respect to the Restoration of Affected Property.

“Restore” shall mean, with respect to any Affected Property, to rebuild, repair, restore or replace such Affected Property.  The term “Restoration” shall have a correlative meaning.

“Scheduled Principal Payments” shall mean the scheduled amounts payable in respect of principal of the Loans pursuant to Section 8.1 hereof.

“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent, the Lenders, and each Secured Swap Counterparty.

“Secured Swap Counterparty” shall mean any party to a Required Hedging Agreement (other than a Finance Party) that, at the time such party enters into such Required Hedging Agreement is (i) an Acceptable Swap Counterparty and (ii) (a) a Lender or an Affiliate thereof or (b) a Person with whom either Borrower has entered into a Required Hedging Agreement provided or arranged by General Electric Capital Corporation or an Affiliate of General Electric Capital Corporation, and any assignee thereof

“Security Agreement” shall mean that certain Security Agreement, dated as of November 7, 2012, made by the Borrowers in favor of the Collateral Agent for the benefit of the Secured Parties.

“Security Documents” shall mean, collectively, the Collateral Account Agreement, the Security Agreement, the Pledge Agreement, each Mortgage, each Consent Agreement, each other agreement that creates or purports to create a Lien in favor of the Collateral Agent for the benefit of the Secured Parties to secure the Obligations, and all UCC financing statements and other filings, recordings or registrations required by any Finance Document to be filed or made in respect of any such Finance Document.

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“Security Interest” shall mean the Lien on the Collateral or any other collateral purported to be granted to the Collateral Agent under any Security Document for the benefit of one or more of the Secured Parties (or any trustee, sub-agent or other Person acting for or on behalf of the Collateral Agent).

“Sites” shall mean Site A and/or Site B, as the context shall require.

“Site A” shall mean the site upon which Facility A will be constructed, which site shall have been approved by the Required Lenders in their sole discretion, together with any fixtures and civil works constructed thereon, and any and all Site Real Estate Rights relating thereto.

“Site B” shall mean the site upon which Facility B will be constructed, which site shall have been approved by the Required Lenders in their sole discretion, together with any fixtures and civil works constructed thereon, and any and all Site Real Estate Rights relating thereto.

“Site Real Estate Rights” shall mean, in respect of a Site, all easements, real property leases, surface use agreements, and other real property rights, privileges, and interests required for the installation, ownership, operation, use or maintenance of a Facility upon such Site.

“Solvent” shall mean, when used with respect to any Person as of any date of determination, (a) the amount of the “present fair saleable value” of the assets of such Person will, as of such date, exceed the amount of all “liabilities of such Person, contingent or otherwise”, as of such date, as such quoted terms are determined in accordance with applicable federal and state Laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, and (d) such Person will be able to pay its debts as they mature.  For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim” means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.

“Specified Site RE Right Grantor” shall mean each owner, grantor or lessor of any Specified Site Real Estate Rights.

“Specified Site Real Estate Right” shall mean each Site Real Estate Right that is not by its terms assignable by the applicable Borrower to the Collateral Agent without the consent of its owner, grantor or lessor in a manner reasonably satisfactory to the Required Lenders.

“Sponsor” shall mean Clean Energy Fuels Corp., a Delaware corporation.

“Sponsor Guaranty” shall mean that certain Guaranty, dated as of November 7, 2012, made by the Sponsor in favor of the Secured Parties.

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“Standard & Poor’s” shall mean Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation, or its successor.

“Statutory Reserves” shall mean the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board of Governors of the Federal Reserve System of the United States and any other banking authority, domestic or foreign, to which the Administrative Agent or any Lender (including any branch, Affiliate, or other fronting office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation D).  Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as defined in Regulation D) and to be subject to such Reserve Requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D.  Statutory Reserves shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

“Subsidiary” shall mean, for any Person, any corporation, partnership, limited liability company or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership, limited liability company or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or Controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

“Taking” shall mean any circumstance or event, or series of circumstances or events (including an Expropriation Event), in consequence of which a Project or any portion thereof shall be condemned, nationalized, seized, compulsorily acquired or otherwise expropriated by any Governmental Authority under power of eminent domain or otherwise.

“Tax Distributions” shall mean all amounts distributed to the Sponsor pursuant to Section 4.6(b) of the Collateral Account Agreement.

“Taxes” shall mean all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term Loan Commitments” shall mean the Tranche A Term Loan Commitments and/or the Tranche B Term Loan Commitments, as the context shall require.

“Term Loan Principal Payment” shall mean a Tranche A Term Loan Principal Payment and/or a Tranche B Term Loan Principal Payment, as the context shall require.

“Term Loan Principal Payment Date” shall mean the Tranche A Term Loan Principal Payment Date and/or the Tranche B Term Loan Principal Payment Date, as the context shall require.

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“Term Loans” shall mean Tranche A Term Loans and/or Tranche B Term Loans, as the context shall require.

“Title Insurance” shall having the meaning given to such term in 3.2(g)(iii) hereof.

“Title Insurance Company” shall mean any Person from time to time appointed by the Required Lenders to act as a Title Insurance Company for the purposes of this Agreement.

“Total Construction Commitment” shall mean $200,000,000.

“Total Funded Construction Loans” shall mean, at any time, the aggregate principal amount of Construction Loans funded as of such time.

“Tranche” shall mean Tranche A and/or Tranche B, as the context shall require.

“Tranche A Borrower” shall have the meaning provided in the Preamble hereto.

“Tranche B Borrower” shall have the meaning provided in the Preamble hereto.

“Tranche A Consolidated Total Debt” shall mean, at any time, the sum of (i) all outstanding Indebtedness of the Tranche A Borrower at such time plus (ii) all future rental obligations of the Tranche A Borrower under leases (other than Capital Lease Obligations) minus (iii) the principal amount of Tranche B Loans then outstanding.

“Tranche A Construction Account” shall have the meaning provided in the Collateral Account Agreement.

“Tranche A Construction Loan” shall have the meaning provided in Section 2.1(a) hereof.

“Tranche A Construction Loan Availability Period” shall mean the period commencing on the Initial Funding Date for Tranche A Construction Loans, and ending on the earliest to occur of (i) the full utilization of the Tranche A Construction Loan Commitments, (ii) the Facility A Date Certain, (iii) the Facility A Conversion Date and (iv) the termination of the Tranche A Construction Loan Commitment pursuant to the provisions of this Agreement.

“Tranche A Construction Loan Commitment” shall mean, as to any Tranche A Lender, the applicable amount set forth opposite such Tranche A Lender’s name in Annex I hereto.  The aggregate Tranche A Construction Loan Commitments of all Tranche A Lenders is $100,000,000, as the same may be reduced pursuant to Section 2.13 hereof.

“Tranche A Construction Loan Maturity Date” shall mean the earliest to occur of (i) the Facility A Conversion Date, (ii) the Facility A Date Certain and (iii) the date on which any Tranche A Loans become due pursuant to Section 9.2 hereof.

“Tranche A Construction Notes” shall have the meaning provided in Section 2.9(b) hereof.

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“Tranche A Debt Service” shall mean, for any period with respect to the Tranche A Borrower, the sum, without duplication, of (i) all amounts payable by the Tranche A Borrower during such period pursuant to the terms and conditions of the Finance Documents (including all amounts that are required to be prepaid and all amounts overdue from any prior period) in respect of principal on the Tranche A Term Loans during such period, (ii) all amounts payable in respect of Tranche A Interest Expense for such period, and (iii) all scheduled Fees payable in respect of the Tranche A Loans and the Tranche A Construction Loan Commitment during such period.

“Tranche A Debt Service Coverage Ratio” shall mean, as at any date with respect to the Tranche A Borrower, for the period of four consecutive fiscal quarters of the Tranche A Borrower then most recently ended (or, if fewer, the number of full fiscal quarters that have elapsed since the applicable Conversion Date) for which financial statements have been delivered pursuant to Section 5.1(a) (or any other period referred to in this Agreement, in each case, taken as one accounting period), the ratio of (i) Cash Flow Available for Debt Service of the Tranche A Borrower for such period to (ii) Tranche A Debt Service for such period (including Scheduled Principal Payments, but excluding mandatory prepayments in respect of the Tranche A Term Loans payable during such period pursuant to the Finance Documents).  Any determination of the Tranche A Debt Service Coverage Ratio shall be made by the Tranche A Borrower using methodology and assumptions satisfactory to the Administrative Agent.

“Tranche A Debt Service Reserve Account” shall have the meaning provided in the Collateral Account Agreement.

“Tranche A Distribution Account” shall have the meaning provided in the Collateral Account Agreement.

“Tranche A Excess Cash Flow” shall have the meaning provided in the Collateral Account Agreement.

“Tranche A Final Maturity Date” shall mean the earliest to occur of (i) the eighth (8th) anniversary of the Facility A Conversion Date and (ii) the date on which any Tranche A Loans become due pursuant to Section 9.2 hereof.

“Tranche A Interest Expense” shall mean, for any period in respect of the Tranche A Borrower, the sum of the following: (i) all interest on the Tranche A Term Loans accrued or capitalized during such period (whether or not actually paid during such period) pursuant to the Finance Documents plus (ii) the net amounts payable (or minus the net amounts receivable) by the Tranche A Borrower under the Required Hedging Agreements that are Interest Rate Hedging Agreements accrued during such period (whether or not actually paid or received during such period).

“Tranche A Leverage Ratio” shall mean, as at any date for the Tranche A Borrower, the ratio of (i) Tranche A Consolidated Total Debt to (ii) EBITDA of the Tranche A Borrower for the period of four consecutive fiscal quarters of the Tranche A Borrower then most recently ended for which financial statements have been delivered pursuant to Section 5.1(a); provided, that if less than four full fiscal quarters shall have elapsed since the Facility A Conversion Date,

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this clause (ii) shall be calculated as the product of (A) EBITDA of the Tranche A Borrower for each full fiscal quarter that has elapsed since the Facility A Conversion Date and (B) a fraction, the numerator of which is four (4) and the denominator of which is the number of full fiscal quarters that have elapsed since the Facility A Conversion Date.  Any determination of the Tranche A Leverage Ratio shall be made by the Tranche A Borrower using methodology and assumptions satisfactory to the Administrative Agent.

“Tranche A Loans” means Tranche A Construction Loans and/or Tranche A Term Loans, as the context shall require.

“Tranche A Obligations” shall mean all Obligations relating to, or arising out of, the Tranche A Construction Loans or the Tranche A Term Loans.

“Tranche A Projected Debt Service Coverage Ratio” shall mean, as at any date with respect to the Tranche A Borrower, for the period of four consecutive fiscal quarters of the Borrowers commencing on the day after the most recent Quarterly Date prior to such date, the ratio of (i) projected Cash Flow Available for Debt Service of the Tranche A Borrower for such period to (ii) projected Tranche A Debt Service for such period (including Scheduled Principal Payments, but excluding mandatory prepayments in respect of the Tranche A Term Loans payable during such period pursuant to the Finance Documents).  Any determination of the Tranche A Projected Debt Service Coverage Ratio shall be made by the Tranche A Borrower using methodology and assumptions satisfactory to the Administrative Agent.

“Tranche A Required Debt Service Reserve Amount” shall mean, on any date, an amount equal to the Tranche A Debt Service payable over the six-month period following such date, calculated based on the Assumed Interest Rate (including Scheduled Principal Payments, but excluding mandatory prepayments in respect of the Tranche A Term Loans payable during such period pursuant to the Finance Documents).

“Tranche A Term Loan Commitment” shall mean, for each Tranche A Lender, the aggregate principal amount of Tranche A Construction Loans of such Tranche A Lender outstanding as of the Facility A Conversion Date (after giving effect to any Borrowing of Tranche A Construction Loans on such date in accordance with Section 2.1 hereof and any prepayment of Tranche A Construction Loans on such date in accordance with Section 8 hereof); provided that the aggregate Tranche A Term Loan Commitment of all Tranche A Lenders shall not in any event exceed $100,000,000, as the same may be reduced pursuant to Section 2.13 hereof.

“Tranche A Term Loan Principal Payment” shall have the meaning provided in Section 8.1(b) hereof.

“Tranche A Term Loan Principal Payment Date” shall have the meaning provided in Section 8.1(b) hereof.

“Tranche A Term Loans” shall have the meaning provided in Section 2.3(a) hereof.

“Tranche A Term Notes” shall have the meaning provided in Section 2.9(b) hereof.

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“Tranche B Consolidated Total Debt” shall mean, at any time, the sum of (i) all outstanding Indebtedness of the Tranche B Borrower at such time plus (ii) all future rental obligations of the Tranche B Borrower under leases (other than Capital Lease Obligations) minus (iii) the principal amount of Tranche A Loans then outstanding.

“Tranche B Construction Account” shall have the meaning provided in the Collateral Account Agreement.

“Tranche B Construction Loan” shall have the meaning provided in Section 2.2(a) hereof.

“Tranche B Construction Loan Availability Period” shall mean the period commencing on the Initial Funding Date for Tranche B Construction Loans, and ending on the earliest to occur of (i) the full utilization of the Tranche B Construction Loan Commitments, (ii) the Facility B Date Certain, (iii) the Facility B Conversion Date and (iv) the termination of the Tranche B Construction Loan Commitment pursuant to the provisions of this Agreement.

“Tranche B Construction Loan Commitment” shall mean, as to any Tranche B Lender, the applicable amount set forth opposite such Tranche B Lender’s name in Annex I hereto.  The aggregate Tranche B Construction Loan Commitments of all Tranche B Lenders is $100,000,000, as the same may be reduced pursuant to Section 2.13 hereof.

“Tranche B Construction Loan Maturity Date” shall mean the earliest to occur of (i) the Facility B Conversion Date, (ii) the Facility B Date Certain and (iii) the date on which any Tranche B Loans become due pursuant to Section 9.2 hereof.

“Tranche B Construction Notes” shall have the meaning provided in Section 2.9(b) hereof.

“Tranche B Debt Service” shall mean, for any period with respect to the Tranche B Borrower, the sum, without duplication, of (i) all amounts payable by the Tranche B Borrower during such period pursuant to the terms and conditions of the Finance Documents (including all amounts that are required to be prepaid and all amounts overdue from any prior period) in respect of principal on the Tranche B Term Loans during such period, (ii) all amounts payable in respect of Tranche B Interest Expense for such period, and (iii) all scheduled Fees payable by in respect of the Tranche B Loans and the Tranche B Construction Loan Commitment during such period.

“Tranche B Debt Service Coverage Ratio” shall mean, as at any date with respect to the Tranche B Borrower, for the period of four consecutive fiscal quarters of the Tranche B Borrower then most recently ended (or, if fewer, the number of full fiscal quarters that have elapsed since the applicable Conversion Date) for which financial statements have been delivered pursuant to Section 5.1(a) (or any other period referred to in this Agreement, in each case, taken as one accounting period), the ratio of (i) Cash Flow Available for Debt Service of the Tranche B Borrower for such period to (ii) Tranche B Debt Service for such period (including Scheduled Principal Payments, but excluding mandatory prepayments in respect of the Tranche B Term Loans payable during such period pursuant to the Finance Documents). Any determination of the Tranche B Debt Service Coverage Ratio shall be made by the Tranche B Borrower using methodology and assumptions satisfactory to the Administrative Agent.

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“Tranche B Debt Service Reserve Account” shall have the meaning provided in the Collateral Account Agreement.

“Tranche B Distribution Account” shall have the meaning provided in the Collateral Account Agreement.

“Tranche B Excess Cash Flow” shall have the meaning provided in the Collateral Account Agreement.

“Tranche B Final Maturity Date” shall mean the earliest to occur of (i) the eighth (8th) anniversary of the Facility B Conversion Date and (ii) the date on which any Tranche B Loans become due pursuant to Section 9.2 hereof.

“Tranche B Interest Expense” shall mean, for any period in respect of the Tranche B Borrower, the sum of the following: (i) all interest on the Tranche B Term Loans accrued or capitalized during such period (whether or not actually paid during such period) pursuant to the Finance Documents plus (ii) the net amounts payable (or minus the net amounts receivable) by the Tranche B Borrower under the Required Hedging Agreements that are Interest Rate Hedging Agreements accrued during such period (whether or not actually paid or received during such period).

“Tranche B Leverage Ratio” shall mean, as at any date for the Tranche B Borrower, the ratio of (i) Tranche B Consolidated Total Debt to (ii) EBITDA of the Tranche B Borrower for the period of four consecutive fiscal quarters of the Tranche B Borrower then most recently ended for which financial statements have been delivered pursuant to Section 5.1(a); provided, that if less than four full fiscal quarters shall have elapsed since the Facility B Conversion Date, this clause (ii) shall be calculated as the product of (A) EBITDA of the Tranche B Borrower for each full fiscal quarter that has elapsed since the Facility B Conversion Date and (B) a fraction, the numerator of which is four (4) and the denominator of which is the number of full fiscal quarters that have elapsed since the Facility B Conversion Date.  Any determination of the Tranche B Leverage Ratio shall be made by the Tranche B Borrower using methodology and assumptions satisfactory to the Administrative Agent.

“Tranche B Loans” means Tranche B Construction Loans and/or Tranche B Term Loans, as the context shall require.

“Tranche B Obligations” shall mean all Obligations relating to, or arising out of, the Tranche B Construction Loans or the Tranche B Term Loans.

“Tranche B Projected Debt Service Coverage Ratio” shall mean, as at any date with respect to the Tranche B Borrower, for the period of four consecutive fiscal quarters of the Borrowers commencing on the day after the most recent Quarterly Date prior to such date, the ratio of (i) projected Cash Flow Available for Debt Service of the Tranche B Borrower for such period to (ii) projected Tranche B Debt Service for such period (including Scheduled Principal Payments, but excluding mandatory prepayments in respect of the Tranche B Term Loans payable during such period pursuant to the Finance Documents).  Any determination of the Tranche B Projected Debt Service Coverage Ratio shall be made by the Tranche B Borrower using methodology and assumptions satisfactory to the Administrative Agent.

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“Tranche B Required Debt Service Reserve Amount” shall mean, on any date, an amount equal to the Tranche B Debt Service payable over the six-month period following such date, calculated based on the Assumed Interest Rate (including Scheduled Principal Payments, but excluding mandatory prepayments in respect of the Tranche B Term Loans payable during such period pursuant to the Finance Documents).

“Tranche B Term Loan Commitment” shall mean, for each Tranche B Lender, the aggregate principal amount of Tranche B Construction Loans of such Tranche B Lender outstanding as of the Facility B Conversion Date (after giving effect to any Borrowing of Tranche B Construction Loans on such date in accordance with Section 2.2 hereof and any prepayment of Tranche B Construction Loans on such date in accordance with Section 8 hereof); provided that the aggregate Tranche B Term Loan Commitment of all Tranche B Lenders shall not in any event exceed $100,000,000, as the same may be reduced pursuant to Section 2.13 hereof.

“Tranche B Term Loan Principal Payment” shall have the meaning provided in Section 8.1(c) hereof.

“Tranche B Term Loan Principal Payment Date” shall have the meaning provided in Section 8.1(c) hereof.

“Tranche B Term Loans” shall have the meaning provided in Section 2.4(a) hereof.

“Tranche B Term Notes” shall have the meaning provided in Section 2.9(b) hereof.

“Transaction Documents” shall mean, collectively, the Warrant, the Warrant Agreement, the Registration Rights Agreement, the Project Documents and the Finance Documents.

“Transfer Date Certificate” shall mean a “Transfer Date Certificate” as defined in and delivered under the Collateral Account Agreement.

“Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.

“UCC” means the Uniform Commercial Code as in effect from time to time in any relevant jurisdiction.

“United States” and “U.S.” shall each mean the United States of America.

“Unutilized Commitment Coefficient” shall mean the lesser of (i) a fraction, the numerator of which shall be the excess of the Total Construction Commitment over the amount of Total Funded Construction Loans and the denominator of which shall be the sum of the Unutilized Tranche A Construction Loan Commitments and the Unutilized Tranche B Construction Loan Commitments and (ii) one (1).

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“Unutilized Tranche A Construction Loan Commitment” shall mean, for each Lender, at any time, the greater of (i) the Tranche A Construction Loan Commitment of such Lender at such time less the aggregate principal amount at such time of all Tranche A Construction Loans made by such Lender and (ii) zero (0).

“Unutilized Tranche B Construction Loan Commitment” shall mean, for each Lender, at any time, the greater of, (i) the Tranche B Construction Loan Commitment of such Lender at such time less the aggregate principal amount at such time of all Tranche B Construction Loans made by such Lender and (ii) zero (0).

“U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” shall have the meaning assigned to such term in paragraph (f) of Section 2.14.

“Warrant” shall mean that certain Warrant, dated as of November 7, 2012, issued by the Sponsor and GE Energy Financial Services, Inc.

“Warrant Agreement” shall mean that certain Warrant Agreement, dated as of November 7, 2012, between the Sponsor and GE Energy Financial Services, Inc.

“Withholding Agent” shall mean each of the Borrowers and the Administrative Agent.

“Work” shall mean all design, fabrication, construction, erection and other services to be performed, and all items to be procured, fabricated, constructed, manufactured, completed and warranted, by a Contractor pursuant to a Construction Agreement.

1.2          Rules of Interpretation.  In each Finance Document (other than any Required Hedging Agreement), unless otherwise indicated:

(1)     each reference to, and the definition of, any document (including any Transaction Document) shall be deemed to refer to such document as it may be amended, amended and restated, supplemented, revised or otherwise modified from time to time in accordance with its terms and, to the extent applicable, the terms of this Agreement;

(2)     each reference to a Law or Governmental Approval shall be deemed to refer to such Law or Governmental Approval as the same may be amended, supplemented or otherwise modified from time to time;

(3)     any reference to a Person in any capacity includes a reference to its permitted successors and assigns in such capacity and, in the case of any Governmental Authority, any Person succeeding to any of its functions and capacities;

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(4)     references to days shall refer to calendar days unless Business Days are specified; references to weeks, months or years shall be to calendar weeks, months or years, respectively, unless otherwise specified;

(5)     all references to a “Section,” “Appendix,” “Annex,” “Schedule” or “Exhibit” of a Finance Document are to a Section of such Finance Document or to an Appendix, Annex, Schedule or Exhibit attached to such Finance Document;

(6)     the table of contents and Section headings and other captions therein are for the purpose of reference only and do not affect the interpretation of such Finance Document;

(7)     defined terms in the singular shall include the plural and vice versa, and the masculine, feminine or neuter gender shall include all genders;

(8)     the words “hereof’, “herein” and “hereunder”, and words of similar import, when used in any Finance Document, shall refer to such Finance Document as a whole and not to any particular provision of such Finance Document;

(9)     the words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation”;

(10)   where the terms of any Finance Document require that the approval, opinion, consent or other input of any Secured Party be obtained, such requirement shall be deemed satisfied only where the requisite approval, opinion, consent or other input is given by or on behalf of the relevant Secured Party in writing; and

(11)   where the terms of any Finance Document require or permit any action to be taken by any Agent, such action shall be taken strictly in accordance with the applicable provisions of the relevant Finance Documents.

1.3          Accounting Principles.  Except as otherwise provided in this Agreement, all computations and determinations as to financial matters, and all financial statements to be delivered under this Agreement shall be made or prepared in accordance with GAAP (including principles of consolidation where appropriate) applied on a consistent basis (except to the extent approved or required by the independent public accountants certifying such statements and disclosed therein); provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrowers that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding the foregoing, no change in the accounting principles used in the preparation of any financial statement hereafter adopted by the Borrower shall be given effect if such change would affect a calculation that measures compliance with any provision of this Agreement or any other Finance Document unless the

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Borrower, the Administrative Agent and the Required Lenders agree to modify such provisions to reflect such changes in GAAP and, unless such provisions are modified, all financial statements, officer’s certificates and similar documents provided hereunder shall be provided together with a reconciliation between the calculations and amounts set forth therein before and after giving effect to such change in GAAP.

SECTION 2.         AMOUNTS AND TERMS OF CREDIT FACILITY

2.1          Tranche A Construction Loan Facility.

(a)           Subject to and upon the terms and conditions set forth herein, each Tranche A Lender severally agrees to make, from time to time during the Tranche A Construction Loan Availability Period, Tranche A Loans (each a “Tranche A Construction Loan” and, collectively, the “Tranche A Construction Loans”) to the Tranche A Borrower, which Tranche A Loans shall: (i) at the option of the Tranche A Borrower, be Base Rate Loans or Eurodollar Loans (provided, however, that all Tranche A Construction Loans comprising the same Borrowing shall at all times be of the same Type); (ii) be made and maintained in Dollars; (iii) not exceed for any Tranche A Lender, in aggregate principal amount at any time outstanding, the Tranche A Construction Loan Commitment of such Tranche A Lender; (iv) after giving effect to the funding thereof, and after giving effect to the funding of any Tranche B Construction Loans requested pursuant to Section 2.2(a), do not cause the Total Funded Construction Loans to exceed to Total Construction Commitment; and (v) mature on the Tranche A Construction Loan Maturity Date.

(b)           The Tranche A Construction Loans are available only on the terms and conditions specified hereunder, and once repaid, in whole or in part, at maturity or by prepayment, may not be reborrowed in whole or in part.

2.2          Tranche B Construction Loan Facility.

(a)           Subject to and upon the terms and conditions set forth herein, each Tranche B Lender severally agrees to make, from time to time during the Tranche B Construction Loan Availability Period, Tranche B Loans (each a “Tranche B Construction Loan” and, collectively, the “Tranche B Construction Loans”) to the Tranche B Borrower, which Tranche B Loans shall: (i) at the option of the Tranche B Borrower, be Base Rate Loans or Eurodollar Loans (provided, however, that all Tranche B Construction Loans comprising the same Borrowing shall at all times be of the same Type); (ii) be made and maintained in Dollars; (iii) not exceed for any Tranche B Lender, in aggregate principal amount at any time outstanding, the Tranche B Construction Loan Commitment of such Tranche B Lender; (iv) after giving effect to the funding thereof, and after giving effect to the funding of any Tranche A Construction Loans requested pursuant to Section 2.1(a), do not cause the Total Funded Construction Loans to exceed the Total Construction Commitment; and (v) mature on the Tranche B Construction Loan Maturity Date.

(b)           The Tranche B Construction Loans are available only on the terms and conditions specified hereunder, and once repaid, in whole or in part, at maturity or by prepayment, may not be reborrowed in whole or in part.

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2.3          Tranche A Term Loan Facility.

(a)           Subject to and upon the terms and conditions set forth herein, each Tranche A Lender agrees that on the Facility A Conversion Date all Tranche A Construction Loans of such Tranche A Lender outstanding on such date (after giving effect to any Borrowing of Tranche A Construction Loans on such date and any prepayment of Tranche A Construction Loans on such date in accordance herewith) shall automatically convert into term loans (each a “Tranche A Term Loan” and, collectively, the “Tranche A Term Loans”) in an aggregate principal amount not exceeding such Tranche A Lender’s Tranche A Term Loan Commitment in effect as of such date.  Such Tranche A Term Loans shall: (i) at the option of the Borrower, be Base Rate Loans or Eurodollar Loans; (ii) be made and maintained in Dollars; (iii) not exceed for any Tranche A Lender, in aggregate principal amount at any time outstanding, the Tranche A Term Loan Commitment of such Tranche A Lender; and (iv) mature on the Tranche A Final Maturity Date.

(b)           Tranche A Construction Loans that are converted into Tranche A Term Loans shall not be deemed to be prepaid, repaid or discharged but shall be deemed to be continued as Tranche A Term Loans as provided hereby.

(c)           The Tranche A Term Loans are available only on the terms and conditions specified hereunder, and once repaid, in whole or in part, at maturity or by prepayment, may not be reborrowed in whole or in part.

2.4          Tranche B Term Loan Facility.

(a)           Subject to and upon the terms and conditions set forth herein, each Tranche B Lender agrees that on the Facility B Conversion Date all Tranche B Construction Loans of such Tranche B Lender outstanding on such date (after giving effect to any Borrowing of Tranche B Construction Loans on such date and any prepayment of Tranche B Construction Loans on such date in accordance herewith) shall automatically convert into term loans (each a “Tranche B Term Loan” and, collectively, the “Tranche B Term Loans”) in an aggregate principal amount not exceeding such Tranche B Lender’s Tranche B Term Loan Commitment in effect as of such date.  Such Tranche B Term Loans shall: (i) at the option of the Borrower, be Base Rate Loans or Eurodollar Loans; (ii) be made and maintained in Dollars; (iii) not exceed for any Tranche B Lender, in aggregate principal amount at any time outstanding, the Tranche B Term Loan Commitment of such Tranche B Lender; and (iv) mature on the Tranche B Final Maturity Date.

(b)           Tranche B Construction Loans that are converted into Tranche B Term Loans shall not be deemed to be prepaid, repaid or discharged but shall be deemed to be continued as Tranche B Term Loans as provided hereby.

(c)           The Tranche B Term Loans are available only on the terms and conditions specified hereunder, and once repaid, in whole or in part, at maturity or by prepayment, may not be reborrowed in whole or in part.

2.5          Notice of Borrowing.  Whenever a Borrower desires to make a Borrowing pursuant to Section 2.1 or 2.2 hereof, it shall give the Administrative Agent at its Notice Office

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(a) at least three (3) Business Days’ prior written notice in the case of Eurodollar Loans and (b) at least one (1) Business Day’s prior written notice in the case of Base Rate Loans; provided that any such notice shall be deemed to have been given on a certain day only if given before 11:00 a.m. (New York City time).  Each such notice (a “Notice of Borrowing”) shall be irrevocable and shall be given by such Borrower substantially in the form of Exhibit A hereto, appropriately completed to specify (i) the aggregate principal amount of the Construction Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day) and (iii) whether the Construction Loans being made pursuant to such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar Loans and, if Eurodollar Loans, the initial Interest Period to be applicable thereto.  The Administrative Agent shall promptly give each applicable Lender notice of the proposed Borrowing, of such Lender’s proportionate share thereof and of the other matters required by the immediately preceding sentence to be specified in the Notice of Borrowing.

2.6          Pro Rata Borrowings; Availability.  Each Borrowing of Loans shall be incurred contemporaneously and ratably among the applicable Lenders based upon the amount of their respective Construction Loan Commitments of the applicable Tranche.  It is agreed that no Lender shall be responsible for any default by any other Lender of its obligation to make a Loan hereunder and that each Lender shall be obligated to make the Loans provided to be made by it hereunder regardless of the failure of any other Lender to make a Loan hereunder.

2.7          Minimum Amount and Maximum Number of Borrowings, etc.

(a)           Except in the case of Borrowings of Construction Loans incurred solely to pay any of the Obligations, the aggregate principal amount of each Borrowing of Construction Loans or a particular Tranche shall not be less than (i) $1,000,000 or (ii) if less than $1,000,000, the remaining aggregate Construction Loan Commitments of all Lenders in respect of such Tranche.

(b)           Except in the case of Borrowings of Construction Loans incurred solely to pay any of the Obligations, each Borrower shall be limited to a maximum of one (1) Borrowing of Construction Loans per month.

(c)           At no time shall there be outstanding more than six (6) separate Interest Periods in respect of Eurodollar Loans of any Tranche.

2.8          Disbursement of Funds.  Subject to the terms and conditions hereof, no later than 11:00 a.m. (New York City time) on the date specified in each Notice of Borrowing, each Lender will make available, through such Lender’s Applicable Lending Office, its pro rata portion of the aggregate principal amount of the Loans requested to be made on such date, in Dollars and in immediately available funds at the payment office of the Administrative Agent (as notified to the Lenders from time to time by the Administrative Agent), and the Administrative Agent will deposit the aggregate of the amounts so made available by the Lenders into the Tranche A Construction Account (in the case of Tranche A Construction Loans) or the Tranche B Construction Account (in the case of Tranche B Construction Loans).  Unless the Administrative Agent shall have been notified by any Lender prior to the applicable date of the Borrowing that such Lender does not intend to make available to the Administrative Agent such Lender’s

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portion of the Borrowing on such date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such date, and the Administrative Agent may (but shall have no obligation to), in reliance upon such assumption, make available to the applicable Borrower a corresponding amount.  If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount from such Lender on demand.  If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the applicable Borrower, and such Borrower shall immediately pay such corresponding amount to the Administrative Agent.  The Administrative Agent shall also be entitled to recover on demand from such Lender or such Borrower, as the case may be, interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Administrative Agent to such Borrower until the date such corresponding amount is recovered by the Administrative Agent, at a rate per annum equal to (i) if such amount is recovered from such Lender, the cost to the Administrative Agent of acquiring overnight federal funds at the then applicable rate and (ii) if such amount is recovered from a Borrower, the then applicable rate of interest as provided herein.  Nothing in this Section 2.8 shall be deemed to relieve any Lender from its obligation to make a Loan hereunder or to prejudice any rights which a Borrower may have against any Lender as a result of any failure by such Lender to make Loans hereunder. Notwithstanding anything to the contrary herein, any amounts repaid by the Borrowers pursuant to this Section 2.8 shall be available for reborrowing as if such amounts had never been disbursed.

2.9          Evidence of Obligations and Notes.

(a)           Each Lender will maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender as a result of the Loans of such Lender, including the amounts of principal, interest and other amounts payable and paid to such Lender from time to time under this Agreement and, subject to Section 2.9(b) hereof, the Notes.  The entries made by each Lender pursuant to the foregoing sentence shall constitute prima facie evidence of the existence and amounts of the Loans and other Obligations therein recorded; provided, however, that the failure of any Lender to maintain such account or accounts, or any error therein, shall not in any manner affect the obligations of the Borrowers to repay or pay the Loans made by such Lender, accrued interest thereon and the other Obligations of the Borrowers to such Lender hereunder in accordance with the terms of this Agreement.  Each Lender will advise each Borrower of the outstanding indebtedness hereunder to such Lender upon written request therefor.  If any amounts paid by a Borrower pursuant to this Agreement and the Notes, if any, issued pursuant hereto are insufficient to repay or pay the principal amount of all outstanding Loans owed by such Borrower, all accrued and unpaid interest thereon and all other Obligations, such Borrower shall be responsible for the deficiency.

(b)           Each Borrower agrees that, upon request to the Administrative Agent by any Lender, such Borrower will execute and deliver to such Lender (i) in the case of Tranche A Construction Loans or Tranche B Construction Loans, a promissory note duly executed and delivered by each Borrower substantially in the form of Exhibit B-1 hereto with blanks appropriately completed in conformity herewith (each, a “Tranche A Construction Note” or a “Tranche B Construction Note”, as applicable), and (ii) in the case of Tranche A Term Loans

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or Tranche B Term Loans, a promissory note duly executed and delivered by each Borrower substantially in the form of Exhibit B-2 hereto with blanks appropriately completed in conformity herewith (each, a “Tranche A Term Note” or a “Tranche B Term Note”, as applicable).

(c)           Each Borrower hereby designates the Administrative Agent to serve as such Borrower’s agent, solely for the purpose of this clause, to maintain a register (the “Register”) on which the Administrative Agent will record each Lender’s Commitments, the Loans made by each Lender, the principal amount (and stated interest) with respect to each Loan, and each repayment in respect of the principal amount of the Loans, annexed to which the Administrative Agent shall retain a copy of each Assignment and Acceptance delivered to the Administrative Agent pursuant to Section 11.11 hereof.  Failure to make any recordation, or any error in such recordation, shall not affect the Obligations.  The entries in the Register shall be rebuttably presumptive evidence of the accuracy of the information so set forth, and the Borrowers, the Administrative Agent and the Lenders shall treat each Person in whose name a Loan is registered as the owner thereof for the purposes of all Finance Documents, notwithstanding notice or any provision herein to the contrary.  Any assignment or transfer of a Commitment or the Loans made pursuant hereto shall be registered in the Register only upon delivery to the Administrative Agent of an Assignment and Acceptance that has been executed by the requisite parties pursuant to Section 11.11 and compliance with the other provisions set forth in Section 11.11.  No assignment or transfer of a Lender’s Commitments or Loans shall be effective unless such assignment or transfer shall have been recorded in the Register by the Administrative Agent as provided in this Section 2.9(c) and compliance with the other provisions set forth in Section 11.11.

(d)           Each Lender will note on its internal records the amount of each Loan made by it and each payment in respect thereof and the outstanding principal amount of Loans evidenced thereby.  Failure to make such notation shall not affect the Borrowers’ obligations in respect of such Loans.

2.10        Conversions.  The Borrowers shall have the option to convert on any Business Day the principal amount of the Loans made pursuant to one or more Borrowings from one Type of Loan into a Borrowing of another Type of Loan; provided, however, that (i) Loans of a particular Tranche may not be so converted to another Type unless the aggregate principal amount of such Loans to be so converted equals $1,000,000 or an integral multiple of $500,000 in excess thereof, (ii) except as provided in Sections 2.12, 2.15 and 2.18, no conversion of all or any portion of any Eurodollar Loan into a Base Rate Loan may be effected on any day other than the last day of an Interest Period applicable to such Eurodollar Loan, (iii) no partial conversion of Eurodollar Loans shall reduce the outstanding principal amount of such Eurodollar Loans made pursuant to a single Borrowing to be less than $1,000,000, (iv) Base Rate Loans may only be converted into Eurodollar Loans if no Default or Event of Default has occurred and is continuing on the date of conversion or would result from such conversion, and (v) no conversion pursuant to this Section 2.10 shall result in a greater number of Interest Periods than is permitted under Section 2.7 hereof.  Each such conversion shall be effected by the Borrower by giving the Administrative Agent at its Notice Office prior to 11:00 a.m. (New York City time) at least three (3) Business Days’ prior notice substantially in the form attached hereto as Exhibit G (each a “Notice of Conversion or Continuation”) specifying (w) the principal amount of the

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Loans to be so converted, (x) the Borrowing or Borrowings pursuant to which such Loans were made, (y) the Type of Loan from which such amount is being converted and the Type of Loan into which such amount will be converted, and (z) if such amount is to be converted into Eurodollar Loans, the Interest Period to be initially applicable thereto or, if such amount is to be continued as a Eurodollar Loan, the portion thereof to be continued and the Interest Period applicable thereto.  The Administrative Agent shall give each Lender prompt notice of any such proposed conversion affecting any of its Loans.

2.11        Interest.

(a)           The Borrowers agree to pay interest in respect of the unpaid principal amount of each Base Rate Loan at a rate per annum which shall be equal to the sum of (x) the Base Rate in effect from time to time and (y) the Applicable Margin.

(b)           The Borrowers agree to pay interest in respect of the unpaid principal amount of each Eurodollar Loan at a rate per annum which shall, during each Interest Period applicable thereto, be equal to the sum of (x) the Adjusted Eurodollar Rate in effect for such Interest Period and (y) the Applicable Margin.

(c)           From and after the occurrence of an Event of Default, all Obligations payable by the Borrowers hereunder or under any other Finance Document (other than any Obligations pursuant to a Required Hedging Agreement) shall bear interest at a rate (the “Default Rate”) equal to (x) in the case of Loans, the sum of (i) the interest rate otherwise applicable hereunder and (ii) 2.00% and (y) in the case of any other Obligations, the sum of (i) the Base Rate in effect from time to time, (ii) the Applicable Margin and (iii) 2.00%, in each case with such interest to be payable on demand.

(d)           Accrued (and theretofore unpaid) interest shall be payable (i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly Date, (ii) in respect of Eurodollar Loans, on the last day of each Interest Period applicable thereto; provided, however, that if any Interest Period for a Eurodollar Loan exceeds three months, interest on such Eurodollar Loan shall be payable every three months after the beginning of such Interest Period, and (iii) in respect of each Loan, on any repayment or prepayment (on the amount repaid or prepaid), conversion (on the amount converted), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand.  Notwithstanding the foregoing, interest payable in accordance with Section 2.11(c) shall be payable as provided therein.

(e)           On each Interest Determination Date in respect of any Eurodollar Loan, the Administrative Agent shall determine the Adjusted Eurodollar Rate for the applicable Interest Period to be applicable to such Eurodollar Loans or to any portion thereof and shall promptly notify the Borrower and the Lenders thereof.  Each such determination shall, absent manifest error, be final and conclusive and binding on all parties hereto.

2.12        Interest Periods.  At the time it gives any Notice of Borrowing or Notice of Conversion or Continuation in respect of the making or continuation of, or conversion into, any Eurodollar Loan (in the case of the initial Interest Period applicable thereto) or on the third Business Day prior to the expiration of any Interest Period applicable to any Eurodollar Loan (in

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the case of any subsequent Interest Period), the applicable Borrower shall have the right to elect, by giving the Administrative Agent written notice thereof, the interest period (each, an “Interest Period”) applicable to such Eurodollar Loans, which Interest Period shall, at the option of such Borrower, be a one, two, three or six month period; provided, however, that:

(i)            all Eurodollar Loans comprising the same Borrowing shall have the same Interest Period;

(ii)           the initial Interest Period for any Eurodollar Loan shall commence on the date of Borrowing of such Loan (including the date of conversion thereof from a Loan of a different Type) and each Interest Period occurring thereafter in respect of such Eurodollar Loan shall commence on the last day of the immediately preceding Interest Period;

(iii)          if any Interest Period begins on a day for which there is no numerically corresponding day in the month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such month;

(iv)          if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless the result of such extension would be to carry such Interest Period into another month, in which event such Interest Period shall end on the immediately preceding Business Day;

(v)           no Interest Period shall extend beyond the Tranche A Final Maturity Date or Tranche B Final Maturity Date, as applicable;

(vi)          no Interest Period with respect to a Term Loan may be elected that would extend beyond any applicable Term Loan Principal Payment Date unless the aggregate principal amount of Term Loans of the same Tranche outstanding having Interest Periods which end on or before such date shall be at least equal to or greater than the principal due in respect of such Term Loan on such date; and

(vii)         no Interest Period in respect of any Loans shall be selected at any time when a Default or Event of Default exists.

If upon the expiration of any Interest Period, the Borrowers have failed to elect, or are not permitted to elect, a new Interest Period to be applicable to such Eurodollar Loans as provided above, the Borrowers shall be deemed to have elected to convert such Eurodollar Loans into Base Rate Loans effective as of the expiration date of such current Interest Period.

2.13        Termination and Reduction of Commitments.

(a)           Unless otherwise previously terminated, the Tranche A Construction Loan Commitments shall terminate on the Tranche A Construction Loan Maturity Date; provided that if such date is also the Facility A Conversion Date, the Tranche A Term Loan Commitments shall terminate only upon and after giving effect to the conversion of the Tranche A Construction Loans into Tranche A Term Loans on such date.

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(b)           Unless otherwise previously terminated, the Tranche B Construction Loan Commitments shall terminate on the Tranche B Construction Loan Maturity Date; provided that if such date is also the Facility B Conversion Date, the Tranche B Term Loan Commitments shall terminate only upon and after giving effect to the conversion of the Tranche B Construction Loans into Tranche B Term Loans on such date.

(c)           If the Initial Funding Date for Tranche A Construction Loans does not occur prior to December 31, 2014, then the Tranche A Construction Loan Commitments shall be terminated in their entirety on such date.

(d)           If the Initial Funding Date for Tranche B Constructions Loans does not occur prior to December 31, 2014, then the Tranche B Construction Loan Commitments shall be terminated in their entirety on such date.

(e)           The Borrowers may at any time terminate, or from time to time reduce, any of the Commitments within a Tranche; provided that (i) each reduction of such Commitments shall be in an amount that is an integral multiple of $5,000,000 (or, if less, such remaining Commitments), (ii) in the case of termination or reduction of Construction Loan Commitments, the applicable Borrower shall have demonstrated to the satisfaction of the Required Lenders the ability to pay, by means satisfactory to the Required Lenders, all remaining Facility A Project Costs necessary to cause the Facility A Project Completion Date to occur no later than the Facility A Date Certain and all remaining Facility B Project Costs necessary to cause the Facility B Project Completion Date to occur no later than the Facility B Date Certain, provided that, notwithstanding the foregoing, the Borrowers may terminate the Construction Loan Commitments in their entirety at any time if done so in connection the with full repayment of the outstanding Obligations and (iii) any reduction in the Construction Loan Commitments pursuant to this Section 2.13(e) shall automatically result in a corresponding reduction of the Term Loan Commitments of the same Tranche.

(f)            The Borrowers shall notify the Administrative Agent of any election to terminate or reduce the Commitments under clause (c) above at least ten (10) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof.  Promptly following receipt of any such notice from the Borrowers, the Administrative Agent shall advise the applicable Lenders of the contents thereof.  Each notice delivered by the Borrowers to the Administrative Agent pursuant to this Section 2.13 shall be irrevocable.

2.14        Taxes.

(a)           Payments Free of Taxes.  Any and all payments by or on account of any obligation of a Finance Party under any Finance Document shall be made without deduction or withholding for any Taxes, except as required by applicable law.  If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by the applicable

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Finance Party shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b)           Payment of Other Taxes by the Borrowers.  The Borrowers shall timely pay to the relevant Governmental Authority in accordance with applicable law any Other Taxes and shall timely reimburse the Administrative Agent for any Other Taxes paid by the Administrative Agent.

(c)           Indemnification by the Finance Parties.  The Finance Parties shall jointly and severally indemnify each Recipient, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.

(d)           Indemnification by the Lenders.  Each Lender shall severally indemnify the Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that a Finance Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Finance Parties to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.11(f) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Finance Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Finance Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (d).

(e)           Evidence of Payments.  As soon as practicable after any payment of Taxes by a Finance Party to a Governmental Authority pursuant to this Section 2.14, the Finance Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f)            Status of Lenders.  (i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Finance Document shall deliver to the applicable Borrower and the Administrative Agent, at the time or times reasonably requested by such Borrower or the Administrative Agent, such properly completed and executed

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documentation reasonably requested by such Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by a Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by such Borrower or the Administrative Agent as will enable such Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section (ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing,

(A) any Lender that is a U.S. Person shall deliver to the applicable Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the applicable Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of such Borrower or the Administrative Agent), whichever of the following is applicable:

(i)  in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Finance Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Finance Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(ii)  executed originals of IRS Form W-8ECI;

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or

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(iv) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3, as applicable, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;

(C)          any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and

(D)          if a payment made to a Lender under any Finance Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the applicable Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by such Borrower or the Administrative Agent as may be necessary for such Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the applicable Borrower and the Administrative Agent in writing of its legal inability to do so.

(g)           Survival.  Each party’s obligations under this Section 2.14 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Finance Document.

(h)           Defined Term.  For purposes of this Section 2.14, the term “applicable law” includes FATCA.

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2.15        Illegality.

(a)           If any Lender determines that the introduction of any Law, or any change in any Law, or in the interpretation or administration of any Law, makes it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its Applicable Lending Office to make a Eurodollar Loan and such determination is applied to other borrowers of such Lender or its Affiliates, then, on notice thereof by such Lender to the Borrowers through the Administrative Agent, any obligation of such Lender to make such Loan shall be suspended until such Lender notifies the Administrative Agent and the Borrowers that the circumstances giving rise to such determination no longer exist.

(b)           If any Lender determines that the introduction of any Law, or any change in any Law, or in the interpretation or administration of any Law, makes it unlawful, or that any central bank or other Governmental Authority has asserted that it is unlawful, for any Lender or its Applicable Lending Office to make a Eurodollar Loan and such determination is applied to other borrowers of such Lender or its Affiliates, the Borrowers shall, upon its receipt of notice of such fact and demand from such Lender (with a copy to the Administrative Agent), prepay in full the Eurodollar Loans of such Lender then outstanding, together with interest accrued thereon and amounts required under Section 2.16 or 2.17, if any, either on the last day of the Interest Period in respect of such Eurodollar Loan, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loan.  If the Borrowers are required so to prepay any Eurodollar Loan, then concurrently with such prepayment, the Borrowers shall, notwithstanding any otherwise applicable restriction, prohibition or requirement herein, borrow (and be deemed to have so borrowed) from the affected Lender a Base Rate Loan in the amount of the principal amount of the Eurodollar Loan so prepaid.

(c)           If the obligation of any Lender to make or maintain Eurodollar Loans has been so terminated or suspended, the Borrowers may elect, by giving notice to such Lender through the Administrative Agent, that all Loans which would otherwise be made by such Lender as Eurodollar Loans shall instead be Base Rate Loans.

(d)           Before giving notice to the Administrative Agent under this Section 2.15, the affected Lender shall designate a different Applicable Lending Office with respect to its Eurodollar Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the sole judgment of such Lender, be illegal or otherwise disadvantageous to such Lender.

2.16        Increased Costs and Reduction of Return.

(a)           If, due to any Change in Law, there shall be:

(i) any increase in the cost to such Lender of agreeing to make or making, funding or maintaining any Loans,

(ii)           subject any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

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(iii)          any reduction in the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount),

then the Borrowers shall be liable for, and shall from time to time, within thirty (30) days of demand therefor by such Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender, additional amounts as are sufficient to compensate such Lender for such increased costs; provided, that the Borrowers shall not be required to compensate any Lender pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrowers in writing of the increased costs or reductions and of such Lender’s intention to claim compensation thereof; provided, further, that if the circumstance giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(b)           If any Lender shall have determined that any Change in Law regarding any Capital Adequacy Regulation has or would have the effect of reducing the rate of return on such Lender’s capital to a level below that which such lender could have achieved but for such Change in Law (taking into consideration such Lender’s or such Person’s policies with respect to capital adequacy and such Lender’s desired return on capital) and such determination is applied to other borrowers of such Lender or its Affiliates, then, within thirty (30) days of demand therefor by such Lender to the Borrowers through the Administrative Agent, the Borrowers shall pay to such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender for such reduction; provided, that the Borrowers shall not be required to compensate any Lender pursuant to this Section for any increased costs incurred or reductions suffered more than 180 days prior to the date that such Lender notifies the Borrowers in writing of the increased costs or reductions and of such Lender’s intention to claim compensation thereof; provided, further, that if the circumstance giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(c)           Before giving notice to the Administrative Agent under Section 2.16(a), the affected Lender shall designate a different Applicable Lending Office with respect to its Loans if such designation will avoid the need for giving such notice or making such demand and will not, in the sole judgment of such Lender, be illegal or otherwise disadvantageous to such Lender.

2.17        Funding Losses.  The Borrower shall reimburse each Lender and hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of:

(a)           the failure of either Borrower to make on a timely basis any scheduled payment of principal of any Loan;

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(b)           the failure of either Borrower to borrow or convert a Loan after such Borrower has given (or is deemed to have given) a Notice of Borrowing or a Notice of Conversion or Continuation;

(c)           the failure of either Borrower to make any prepayment in accordance with any notice delivered under Section 8.2;

(d)           subject to Section 8.7(d), the prepayment or repayment (including pursuant to Section 8.1, 8.2 or 8.3) or other payment (including after acceleration thereof) of a Eurodollar Loan on a day that is not the last day of the applicable Interest Period; or

(e)           the conversion of any Eurodollar Loan to a Base Rate Loan on a day that is not the last day of the applicable Interest Period;

including any such loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain its Loan or from fees payable to terminate the deposits from which such funds were obtained.

2.18        Inability to Determine Rates.  If the Administrative Agent reasonably determines that for any reason adequate and reasonable means do not exist for determining the Eurodollar Rate for any Interest Period with respect to any Eurodollar Loans, or that the Eurodollar Rate applicable for any Interest Period with respect to a Eurodollar Loan does not adequately and fairly reflect the cost to the Lenders of funding such Eurodollar Loan and such determination is applied to other borrowers of the Administrative Agent and its Affiliates, the Administrative Agent will promptly so notify the Borrowers and each Lender.  Thereafter, the obligation of the Lenders to make or continue Eurodollar Loans or to convert any Base Rate Loan into a Eurodollar Loan hereunder shall be suspended until the Administrative Agent revokes such notice in writing.  Upon the receipt of such notice, the Borrowers may revoke any Notice of Borrowing or Notice of Conversion or Continuation then submitted by them.  If the Borrowers do not revoke any such notice, the Lenders shall make, convert or continue the Loans, as proposed by the Borrowers, in the amount specified in the applicable notice submitted by the Borrowers, but such Loans shall be made, converted or continued as Base Rate Loans instead of Eurodollar Loans.

2.19        Survival.  The agreements and obligations of the Borrowers in Sections 2.14 through 2.18 shall survive the payment of the Loans, the Notes and all other Obligations (other than Obligations under any Required Hedging Agreement).

2.20        Replacement of Lenders.  If any Lender (x) is owed increased costs or other amounts under Section 2.14, 2.15 or 2.16, (y) shall have become a Defaulting Lender or (z) fails to consent to a requested amendment, waiver or modification to any Finance Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender (or each Lender directly affected thereby, as applicable) is required with respect thereto, the Borrowers shall have the right, if no Default or Event of Default then exists and (in the case of (x) above) such Lender has not changed its Applicable Lending Office with the effect of eliminating such increased cost or other amount, to replace such Lender (the “Replaced Lender”) with one or more commercial banks or other financial institutions

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(collectively, the “Replacement Lender”) reasonably acceptable to the Administrative Agent; provided that (a) at the time of any replacement pursuant to this Section 2.20, the Replacement Lender shall enter into one or more Assignment and Acceptances pursuant to Section 11.11 hereof pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of the Replaced Lender at par and, in connection therewith, shall pay to the Replaced Lender in respect thereof an amount equal to the sum of (i) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Replaced Lender and (ii) an amount equal to all accrued, but theretofore unpaid, Fees owing to the Replaced Lender and (b) all obligations of the Borrowers owing to the Replaced Lender (other than those specifically described in clause (a) above in respect of which the assignment purchase price has been, or is concurrently being, paid) shall be paid in full to such Replaced Lender concurrently with such replacement.  Upon the execution of the respective assignment documentation pursuant to clause (a) above and the payment of the amounts referred to in clauses (a) and (b) above, the Replacement Lender shall become a Lender hereunder, and the Replaced Lender shall cease to constitute a Lender hereunder, except with respect to Sections 11.1, 11.2 and 11.18 and any other indemnification or expense reimbursement provisions under this Agreement or any other Finance Document, which shall survive as to such Replaced Lender in accordance with their terms.  Nothing in this Section 2.20 shall be deemed to prejudice any other rights that the Borrower may have against any Lender that is a Defaulting Lender.

2.21        Defaulting Lenders.

(a)           Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i)            Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth herein (including in the definition of Required Lenders).

(ii)           Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by any Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 9 or otherwise) or received by any Agent from a Defaulting Lender pursuant to Section 11.14 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to any Agent hereunder; second, if requested by the Borrowers (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrowers, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrowers as a result of any judgment of a court of competent

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jurisdiction obtained by the Borrowers against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided, however, that if (i) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (ii) such Loans were made at a time when the conditions set forth in Section 3.3 and, if applicable, Section 3.2, were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender pursuant to this Section 2.21(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto

(iii)          Certain Fees.  No Defaulting Lender shall be entitled to receive any fees pursuant to Section 8.6(a) for any period during which that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(b)           Defaulting Lender Cure. If the Borrowers and the Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans to be held pro rata by the Lenders, whereupon such Lender will cease to be a Defaulting Lender; provided, however, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

2.22        Interest During Construction.

(a)           Deemed Loan Requests.  Unless a Borrower shall have otherwise notified Administrative Agent at least five Business Days prior to the relevant date on which an interest payment is due (such dates, “Interest Payment Dates”) for loans of the applicable Tranche, such Borrower shall be deemed to have requested that the amount of interest due on each Interest Payment Date occurring prior to applicable Conversion Date be paid pursuant to this Section 2.22.  Subject to the conditions set forth in Section 2.22(b), each Lender agrees to effect payment of the interest due to such Lender on each such Interest Payment Date pursuant to Section 2.22(c).  If a Borrower advises the Administrative Agent that it elects not to have any such interest paid pursuant to this Section 2.22, or if the conditions for any such payment set forth in Section 2.22(b) are not satisfied, then Administrative Agent shall so advise the Lenders (and the Borrowers in the case of a failure to satisfy such conditions) in writing, in which case no Loans of such Tranche shall be made pursuant to this Section 2.22 on the relevant Interest Payment Date and such Borrower shall pay the amount of interest due on such Interest Payment Date in cash.

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(b)           Conditions.  The Borrowers shall not be entitled to make any payment of interest pursuant to this Section 2.22 unless (i) the conditions precedent set forth in Sections 3.3(b), (c), (h), and (k) are determined by the Administrative Agent to have been satisfied with respect to the Loans to be funded to effect such payment pursuant to Section 2.22(c), (ii) if and to the extent such Loans are to be Tranche A Construction Loans, the initial Tranche A Construction Loans have already been funded and made, and (iii) if and to the extent such Loans are to be Tranche B Construction Loans, the initial Tranche B Construction Loans have already been funded and made.

(c)           Deemed Funding and Payment.  Subject to Sections 2.22(a) and (b), on each Interest Payment Date occurring before the Conversion Date, each Lender shall book a Loan of the applicable Tranche to each Borrower in an amount equal to the amount of interest due from such Borrower to such Lender on such Interest Payment Date, and shall apply the proceeds of such Loan to payment of the interest owed by such Borrower to such Lender on such Interest Payment Date.  Each such Loan shall be a Eurodollar Loan with an Interest Period of one month unless converted pursuant to Section 2.10. Notwithstanding anything to the contrary contained herein, in no event shall any Loans made pursuant to this Section 2.22 shall (i) cause the amount of Tranche A Construction Loans or Tranche B Construction Loans disbursed by any Lender to exceed such Lender’s Tranche A Construction Loan Commitment or Tranche B Construction Loan Commitment, as applicable or (ii) cause the amount of Total Funded Construction Loans to exceed the Total Construction Commitment.

SECTION 3.         CONDITIONS PRECEDENT.

3.1          Conditions to Closing.  The effectiveness of this Agreement and the other Finance Documents to be executed on the date hereof shall be subject to the conditions precedent that the Administrative Agent shall have received, or shall have waived receipt of, the following, each of which shall be in form and substance reasonably satisfactory to each Lender, and that the other conditions set forth below shall have been satisfied or waived by each Lender:

(a)           Transaction Documents.  Each of the following Transaction Documents shall have been executed and delivered by each party thereto, and the Administrative Agent shall have received a copy thereof executed by all parties thereto:

(i)            This Agreement;

(ii)           The Security Agreement;

(iii)          To the extent requested by any Lender, an original Tranche A Construction Note or Tranche B Construction Note for the account of such Lender, which Notes shall be appropriately completed with the name of the payee, the maximum principal amount thereof and the date of issuance (which shall be the Closing Date) inserted therein;

(iv)          The Pledge Agreement;

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(v)           The Equity Contribution Agreement;

(vi)          The Sponsor Guaranty;

(vii)         The Warrant

(viii)        The Warrant Agreement;

(ix)          The Registration Rights Agreement; and

(x)           The Closing Date Project Documents and the Consent Agreements related thereto.

(b)           [Reserved]

(c)           Charter Documents.  The Administrative Agent shall have received the following documents, each certified as indicated below:

(i)            a copy of the Charter Documents of each Borrower, the Sponsor each Affiliate Project Participant and Holdings, as in effect on the Closing Date, certified by the Secretary of State or other appropriate officer of the jurisdiction of such Person’s formation or incorporation, and a certificate, where available, as to the good standing of and payment of franchise taxes by each Borrower, the Sponsor, each Affiliate Project Participant and Holdings, certified by the Secretary of State or other appropriate officer of the jurisdiction of such Person’s formation or incorporation and, in respect of the Borrowers only, each jurisdiction in which each Borrower is qualified as a foreign entity, dated as of a recent date;

(ii)           a certificate of an Authorized Officer of each Borrower, the Sponsor, each Affiliate Project Participant and Holdings, dated the Closing Date, certifying (A) that attached thereto is a true, correct and complete copy of the Charter Documents of such Person, as in effect at all times from the date on which the resolutions referred to in clause (B) below were adopted to and including the date of such certificate, (B) that attached thereto is a true, correct and complete copy of resolutions duly adopted by the board of directors (or other equivalent body) or evidence of all corporate, partnership or limited liability company action, as the case may be, of such Person, authorizing the execution, delivery and performance of the Transaction Documents to which such Person is or is intended to be a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the name, incumbency and specimen signature of each officer of such Person executing the Transaction Documents to which such Person is intended to be a party and each other document to be delivered by such Person from time to time in connection therewith (and the Secured Parties may conclusively rely on such certificate until the Administrative Agent receives a replacement certificate in the form described in this clause (C) from such Person); and

(iii)          a certificate of another Authorized Officer of each Borrower, the Sponsor, each Affiliate Project Participant and Holdings, as applicable, as to the name,

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incumbency and specimen signature of the Authorized Officer of such Person that signed the certificate referred to in clause (ii) above.

(d)           Filings, Registrations and Recordings. Any document (other than the Mortgages) required to be filed, registered, notarized or recorded in order to create and perfect the Security Interests as first priority Liens (subject only to (i) Permitted Liens and (ii) the priority afforded to such Permitted Liens by operation of Law) shall have been properly filed, registered, notarized or recorded in each office in each jurisdiction in which such filings, registrations, notarizations and recordations are required, and any other action required in the judgment of the Collateral Agent to perfect such Security Interests as such first priority Liens (subject only to (i) Permitted Liens and (ii) the priority afforded to such Permitted Liens by operation of Law) shall have been effected.

(e)           Pledge Agreement.  Each Lender and the Administrative Agent shall have received evidence satisfactory to such Person that the pledged securities required to be delivered to the Collateral Agent pursuant to the Pledge Agreement have been delivered, together with such other documents as are necessary to perfect the interests of the Secured Parties in and to the Collateral covered thereby as a first-priority security interest.

(f)            Officers’ Certificates.

(i)            Borrowers’ Certificates. The Administrative Agent shall have received a certificate signed by an Authorized Officer of each Borrower, dated the Closing Date, certifying that: (i) the representations and warranties of such Borrower contained in Section 4 hereof and the representations and warranties of such Borrower contained in each of the other Transaction Documents to which such Borrower is a party are true and correct in all material respects on and as of such date as if made on and as of such date (or, if expressly stated to have been made solely as of an earlier date, were true and correct in all material respects as of such earlier date), (ii) all Transaction Documents then in existence to which such Borrower is a party are in full force and effect, (iii) no Default or Event of Default has occurred and is continuing and (iv) no default or event of default has occurred and is continuing under any Closing Date Project Document.

(ii)           Sponsor’s Certificate.  The Administrative Agent shall have received a certificate signed by an Authorized Officer of the Sponsor, dated the Closing Date, certifying that (i) the representations and warranties of the Sponsor set forth in the Transaction Documents to which the Sponsor is a party are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct in all material respects as of such earlier date) and (ii) the Sponsor is in compliance with all of its agreements contained in any Transaction Document to which it is a party.

(iii)          Holdings’ Certificate.  The Administrative Agent shall have received a certificate signed by an Authorized Officer of Holdings, dated the Closing Date, certifying that (i) the representations and warranties of Holdings set forth in the Pledge Agreement are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of any earlier date, were true and correct in all material respects as of such earlier date) and (ii) Holdings is in compliance with all of its agreements contained in the Pledge Agreement.

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(iv)          Affiliate Project Participant Certificates.  The Administrative Agent shall have received a certificate signed by an Authorized Officer of each Affiliate Project Participant , dated the Closing Date, certifying that (i) the representations and warranties of such Affiliate Project Participant set forth in each applicable Affiliate Project Document are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of any earlier date, were true and correct in all material respects as of such earlier date) and (ii) each Affiliate Project Participant is in compliance with all of its agreements contained in each applicable Affiliate Project Document.

(g)           Financial Information, etc.

(i)            The Administrative Agent shall have received copies of (A) the unaudited consolidated financial statements of the Sponsor for the fiscal quarter ended June 30, 2012, and (B) the audited consolidated financial statements of the Sponsor for the fiscal year ended December 31, 2011. The Administrative Agent shall be deemed to have received any financial statement referred to in this clause (i) upon its filing with the Securities and Exchange Commission.

(ii)           The Administrative Agent shall have received such other financial, business and other information regarding the Closing Date Project Participants (other than the Affiliate Project Participants) as such Person shall have reasonably requested.

(h)           [Reserved]

(i)            Legal Opinions. The Administrative Agent, the Collateral Agent and the Lenders shall have received a written legal opinion of Morrison & Foerster LLP, counsel to each Borrower, the Sponsor, Holdings, and each Affiliate Project Participant, which legal opinion shall be dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders and in form, scope and substance satisfactory to each such Person.

(j)            [Reserved]

(k)           Corporate Structure. The corporate governance and capital structure of each Borrower and Holdings shall be satisfactory to the Administrative Agent.

(l)            Material Adverse Effect; Default. No event shall have occurred and no condition shall exist that has had or could reasonably be expected to have a Material Adverse Effect.  No Default or Event of Default shall have occurred and be continuing or would result from this Agreement or the other Transaction Agreements becoming effective in accordance with their respective terms.

(m)          Fees.  The Borrowers shall have paid, or made arrangements satisfactory to the Administrative Agent to pay, all fees, costs and charges payable by them (including fees of counsel to the Secured Parties) under the Finance Documents, not to exceed $500,000, on or prior to the Closing Date.

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(n)           Patriot Act.  The Secured Parties shall have received, sufficiently in advance of the Closing Date, all documentation and other information that may be required by the Secured Parties in order to enable compliance with Anti-Terrorism Laws.

(o)           Preliminary Base Case Projections.  Each Lender and the Administrative Agent shall have received the Base Case Projections for each Project, which shall project (a) a Tranche A Debt Service Coverage Ratio and a Tranche B Debt Service Coverage Ratio, as applicable, of not less than 1.25:1.00 as of the end of each fiscal quarter during the period covered thereby and (b) that no more than twenty percent (20%) of the original principal amount of Tranche A Term Loans or Tranche B Term Loans shall be outstanding as of the Tranche A Final Maturity Date and the Tranche B Final Maturity Date, as applicable. The Base Case Projections shall (i) be prepared using assumptions provided in good faith by the applicable Borrower, (ii) be certified as true, complete and correct by an Authorized Officer of such Borrower and (iii) be otherwise in form and substance satisfactory to each Lender.

(p)           Project Documents.  (i) The representations and warranties of the Closing Date Project Participants contained in each Closing Date Project Document shall be true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct in all material respects as of such earlier date), (ii) all Closing Date Project Documents shall be in full force and effect under the terms and conditions set forth in such Closing Date Project Documents, and (iii) no default or event of default shall have occurred and be continuing under any Closing Date Project Document.

(q)           Additional Matters. All corporate and other proceedings, and all documents, instruments and other legal matters in connection with the transactions contemplated by this Agreement and the other Transaction Documents shall be satisfactory in form and substance to each Lender and the Administrative Agent, and each Lender and the Administrative Agent shall have received such other documents, certificates, and instruments relating to this Agreement or any other Transaction Document or the transactions contemplated hereby or thereby as such Person shall have reasonably requested, in each case in form and substance satisfactory to each such Person.

For the purpose of determining compliance with the conditions specified in this Section 3.1, each Lender shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 3.1 unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

3.2          Conditions to Initial Funding.  The obligation of any Lender to make its initial Construction Loan to a Borrower in respect of a Tranche on the Initial Funding Date relating to such Tranche shall be subject to the conditions precedent that, both immediately prior to the making of such initial Construction Loan and also after giving effect thereto:

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(a)           Insurance. The Administrative Agent shall have received a binder certified by a nationally recognized insurance broker, with respect to each policy of insurance required to be in effect pursuant to Section 5.9 hereof in respect of such Borrower, and the designation of the Collateral Agent as loss payee thereunder to the extent required by Section 5.9 hereof.  In addition, such Borrower shall have delivered to the Administrative Agent written letters, dated no earlier than ten (10) days prior to the Initial Funding Date, from a firm of independent insurance brokers of nationally recognized standing satisfactory to the Administrative Agent, as to such insurance being in full force and effect, subject only to payment of the premium therefor (which payment shall be made on or before the Initial Funding Date).  In addition, the Administrative Agent shall have received a report from the Insurance Advisor stating that, in its opinion, all insurance policies required to be maintained (or caused to be maintained) by such Borrower pursuant to Section 5.9 hereof have been obtained and are in full force and effect on the Initial Funding Date, such insurance policies comply in all respects with the requirements of Section 5.9 hereof, and the insurance coverage required by Section 5.9 hereof is comparable in all respects to insurance carried by responsible owners and operators of properties similar to the applicable Project.

(b)           Updated Base Case Projections; Drawdown Schedule; Budget.  The Administrative Agent shall have received (i) an updated version of the Base Case Projections for the applicable Project, which shall project (a) a Tranche A Debt Service Coverage Ratio or Tranche B Debt Service Coverage Ratio, as applicable, of not less than 1.25:1.00 as of the end of each fiscal quarter during the period covered thereby and (b) that no more than twenty percent (20%) of the original principal amount of Tranche A Term Loans or Tranche B Term Loans shall be outstanding as of the Tranche A Final Maturity Date and the Tranche B Final Maturity Date, as applicable, (ii) the Construction Budget for the applicable Project, (iii) the Drawdown Schedule for the applicable Project, and (iv) the Borrower’s proposed Operating Budget for the first Operating Year of the applicable Project, in each case prepared using assumptions provided in good faith by such Borrower, certified as true, complete and correct by an Authorized Officer of such Borrower and the Project Engineer and otherwise in form and substance reasonably satisfactory to each Lender and the Project Engineer.

(c)           Project Engineer’s Report.  The Administrative Agent shall have received a report of the Project Engineer as to such matters with respect to the applicable Project as the Administrative Agent shall reasonably request, including the technical and economic feasibility of such Project, the ability of such Project to meet regulatory and contractual requirements, the status of all Necessary Governmental Approvals for such Project, the reasonableness of the Base Case Projections for such Project, the Construction Budget and the Drawdown Schedule for such Project, the operating performance assumptions of such Project, the engineering design of such Project, the commercial operating arrangements for such Project, and the adequacy and appropriateness of the Acceptance Tests of such Project, the applicable Construction Agreements, the applicable LNG Purchase Agreement and such other Project Documents as the Administrative Agent shall request.

(d)           Necessary Governmental Approvals. The Administrative Agent shall have received (i) copies of all Necessary Governmental Approvals (including all Necessary Governmental Approvals required to initiate construction), which shall be final and in full force and effect and for which either the applicable administrative and statutory appeal periods have

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expired or those applicable administrative and statutory appeal periods greater than ninety (90) days that have not expired and their relevant expiration dates are identified on Schedule 4.6 and, (ii) if requested, copies of all applications made for such Necessary Governmental Approvals and all material correspondence received or sent in respect of such applications; provided that with respect to Necessary Governmental Approvals (other than any Necessary Governmental Approvals required to initiate construction) that are not required by applicable Law to have been obtained on or prior to the Initial Funding Date for such Tranche in the exercise of reasonable diligence (but which are routinely obtainable and can be obtained only at a later stage of construction, only after completion of certain operations testing or only after a period of operations), the Secured Parties shall have received reasonably satisfactory assurances that such Necessary Governmental Approvals will be obtained by the time when needed in connection with the construction or operation of the applicable Project.

(e)           Environmental Matters.

(i)            The Administrative Agent shall have received from Environ Corporation, or another environmental consultant reasonably acceptable to the Administrative Agent, an environmental assessment report (with a copy to the Collateral Agent) with respect to the applicable Site (which shall include, at a minimum, a Phase I Environmental Site Assessment and Limited Compliance Review), in form, scope, and substance reasonably acceptable to the Administrative Agent; and

(ii)           The applicable Project and such Project’s design and operation shall be in compliance with all applicable Environmental Laws.

(f)            Utilities.  The Administrative Agent shall have received a certificate of an Authorized Officer of such Borrower (with a concurring certification by the Project Engineer), dated the Initial Funding Date, to the effect that all utility services necessary for the construction and operation of the applicable Project (including potable and raw water supply, storm, electric, telephone and sewage services and facilities) have been committed to such Project (with a true copy of binding agreements (if any) which evidence the same) by appropriate utilities, authorities or other Persons, or are otherwise available to such Borrower in the ordinary course of business, in each case on terms consistent with those reflected in the Construction Budget and the Base Case Projections relating to such Project.

(g)           The Sites. With respect to the Site relating to the applicable Project:

(i)            Such Borrower shall have (A) acquired a valid and indefeasible fee simple title to or leasehold interests (or other applicable interests) in the applicable Site, free and clear of all Liens other than Permitted Liens described in Section 3.2(g)(iii)(A)(1) and (B) caused one or more Mortgages in respect of the applicable Site to be duly recorded in accordance with applicable Law, together with such financing statements and any other instruments necessary to grant a mortgage lien on the applicable Site under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent, and such Borrower shall have provided evidence reasonably acceptable to the Administrative Agent of payment by such Borrower of all mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgages and such financing statements and other ancillary instruments.

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(ii)           Such Borrower shall have obtained, at its sole cost and expense, all such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the transactions contemplated hereby, or as shall be deemed reasonably necessary by any Lender in order for such Borrower to grant the Lien contemplated by each Mortgage relating to the applicable Site.

(iii)          Such Borrower shall have obtained, at its sole cost and expense, (A) one or more Lender’s or mortgagee’s policy of title insurance issued by the Title Insurance Company, in favor of the Collateral Agent, for the benefit of the Secured Parties, that shall (1) insure the validity and priority of the Lien created under the applicable Mortgage as a valid first mortgage Lien on the applicable Site, such policy or policies to be in an aggregate amount not less than $200,000,000 (subject to a pending disbursement provision as set forth in clause (2) below) (unless approved by the Administrative Agent, in its reasonable discretion), in form and substance, and listing only those exceptions, reasonably satisfactory to the Administrative Agent, (2) contain a pending disbursement provision reasonably satisfactory to the Administrative Agent, but without an exception for unfiled mechanics’ and materialmen’s lien claims, (3) be accompanied by such reinsurance agreements as may be reasonably requested by the Administrative Agent, (4) contain such endorsements and other additional coverages and modifications as the Administrative Agent shall reasonably require, in the exercise of its sole discretion, and (5) otherwise be in form and substance reasonably satisfactory to the Administrative Agent (collectively, the “Title Insurance”) and (B) a survey of recent date of the applicable Site certified to the Collateral Agent by the Title Insurance Company and such Borrower, which survey shall be in form and substance satisfactory to each Lender and the Title Insurance Company.

(iv)          Such Borrower shall have executed and delivered such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Insurance Company to issue the Title Insurance and endorsements contemplated above.

(v)           Such Borrower shall have delivered evidence reasonably acceptable to the Administrative Agent of payment by such Borrower of all premiums for the Title Insurance in respect of such Site, and all related search and examination charges, escrow charges and related charges of the Title Insurance Company.

(vi)          The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Site (together with a notice about special flood hazard area status and flood disaster assistance duly executed by such Borrower).

(h)           Legal Opinions. The Administrative Agent shall have received such written opinions of counsel to each Finance Party and the Affiliate Project Participants as the

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Administrative Agent may reasonably request, including a legal opinion by an attorney acceptable to the Administrative Agent and licensed in the state or states in which the applicable Site is located that all Necessary Governmental Approvals with regard to such Site have been obtained, are final and in full force and effect, and for which either the applicable administrative and statutory appeal periods have expired or those applicable administrative and statutory appeal periods greater than ninety (90)_days that have not expired and their relevant expiration dates are identified on Schedule 4.6. Such legal opinions shall be reasonably acceptable to the Administrative Agent.

(i)            Required Hedging Agreements.  Such Borrower shall have entered into the Required Hedging Agreements required as of such Initial Funding Date under Section 5.12 and shall have delivered copies of such Required Hedging Agreements to the Administrative Agent.

(j)            New Project Documents.  Such Borrower shall have entered into (i) a GE EPC Contract and such other Construction Agreements as are determined by the Project Engineer and the Administrative Agent in their reasonable discretion to be necessary or desirable to complete the design, development, construction, testing and start-up of the applicable Project, (ii) a Gas Supply Agreement and (iii) a Power Purchase Agreement, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent and, in the case of each Gas Supply Agreement and Power Purchase Agreement shall include invoicing and payment mechanics that coordinate with the applicable LNG Purchase Agreement such there is no increase in such Borrower’s working capital requirements.

(k)           Officers’ Certificates.

(i)            Borrowers’ Certificates. The Administrative Agent shall have received a certificate signed by an Authorized Officer of each Borrower, dated the Initial Funding Date, certifying that: (i) the representations and warranties of each Borrower contained in Section 4 hereof and the representations and warranties of each Borrower contained in each of the other Transaction Documents to which such Borrower is a party are true and correct in all material respects on and as of such date as if made on and as of such date (or, if expressly stated to have been made solely as of an earlier date, were true and correct in all material respects as of such earlier date), (ii) all Transaction Documents then in existence to which either Borrower is a party are in full force and effect, (iii) no Default or Event of Default has occurred and is continuing, (iv) no default or event of default has occurred and is continuing under any Affiliate Project Document and (v) to such Borrower’s knowledge, no default or event of default has occurred and is continuing under any other Project Document, (other than any Immaterial Additional Project Document).

(ii)           Sponsor’s Certificate.  The Administrative Agent shall have received a certificate signed by an Authorized Officer of the Sponsor, dated the Initial Funding Date, certifying that (i) the representations and warranties of the Sponsor set forth in the Finance Documents and the Project Documents to which the Sponsor is a party are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct in all material respects as of such earlier date) and (ii) the Sponsor is in compliance with all of its agreements contained in any Transaction Document to which it is a party.

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(iii)          Holdings’ Certificate.  The Administrative Agent shall have received a certificate signed by an Authorized Officer of Holdings, dated the Initial Funding Date, certifying that (i) the representations and warranties of Holdings set forth in the Pledge Agreement are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of any earlier date, were true and correct in all material respects as of such earlier date) and (ii) Holdings is in compliance with all of its agreements contained in the Pledge Agreement.

(iv)          Affiliate Project Participant Certificates.  The Administrative Agent shall have received a certificate signed by an Authorized Officer of each Affiliate Project Participant, dated the Initial Funding Date, certifying that (i) the representations and warranties of such Affiliate Project Participant set forth in each Affiliate Project Document are true and correct in all material respects on and as of such date as if made on and as of such date (or, if stated to have been made solely as of any earlier date, were true and correct in all material respects as of such earlier date) and (ii) each such Affiliate Project Participant is in compliance with all of its agreements contained in each Affiliate Project Document.

(l)            Equity Letters of Credit.  The Administrative Agent shall have received the original Tranche A Equity Letters of Credit or the Tranche B Equity Letters of Credit, as applicable (as such terms are defined in the Equity Contribution Agreement).

(m)          Solvency Certificates.  The Administrative Agent shall have received a solvency certificate signed by an Authorized Officer of the Sponsor and each Borrower, substantially in the form of Exhibit H.

(n)           Updated Attachments.  The Administrative Agent shall have received, at least 10 Business Days prior to the applicable Initial Funding Date, (i) an updated version of Appendix A, in form and substance reasonably acceptable to the Administrative Agent and the Insurance Advisor, (ii) an updated version of Schedule 4.6, in form and substance reasonably acceptable to the Administrative Agent and the Project Engineer and (iii) a schedule for completion of the Work relating to the applicable Facility (a “Project Schedule”), in form and substance reasonably acceptable to the Administrative Agent and the Project Engineer.

For the purpose of determining compliance with the conditions specified in this Section 3.2, each Lender shall be deemed to have accepted, and to be satisfied with, each document or other matter required under this Section 3.2 unless the Administrative Agent shall have received written notice from such Lender prior to the proposed Initial Funding Date specifying its objection thereto.

3.3          Initial and Subsequent Construction Loans.  The obligation of any Lender to make its initial Construction Loan or any subsequent Construction Loan to a Borrower on any Disbursement Date shall be subject to the conditions precedent that, both immediately prior to

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the making of such initial Construction Loan and each such subsequent Construction Loan and also after giving effect thereto:

(a)           Construction Requisitions; Notices of Borrowing.

(i)            Not less than ten (10) Business Days prior to such Disbursement Date, the Administrative Agent shall have received (A) a Construction Requisition executed and delivered by an Authorized Officer of the applicable Borrower in respect of the Disbursement of Construction Loans to be made on such Disbursement Date, and (B) a certificate of the Project Engineer in respect of such proposed Disbursement in the form attached hereto as Exhibit C-2 (such form being subject to review by the Project Engineer subsequent to the appointment thereof), in each case containing no exceptions or qualifications that are unsatisfactory to the Required Lenders.

(ii)           The Administrative Agent shall have received a Notice of Borrowing pursuant to and in compliance with Section 2.5 hereof in respect of the Disbursement of Construction Loans on such Disbursement Date.

(b)           Representations and Warranties.  The representations and warranties of each Borrower contained in Section 4 hereof and the representations and warranties of each Finance Party, each Affiliate Project Participant and, to the knowledge of the applicable Borrower, each other Project Participant (other than any Lender Affiliate Project Participant or any Immaterial Project Participant) contained in any other Finance Document or Project Document then in effect shall be true and correct in all material respects on and as of such Disbursement Date as if made on and as of such date (or, if expressly stated to have been made solely as of an earlier date, were true and correct in all material respects as of such date).

(c)           No Default.  No Default or Event of Default shall have occurred and be continuing or would result from the making of such Construction Loan and no default by any Finance Party, any Affiliate Project Participant or, to the knowledge of the applicable Borrower, any other Project Participant under any of the Transaction Documents (other than any Immaterial Additional Project Document) then in effect shall have occurred and be continuing or would result from the making of such Construction Loan.

(d)           Governmental Approvals, etc. (i) All Necessary Governmental Approvals in respect of the applicable Project that were not required to be obtained by the applicable Borrower or any Project Participant (other than any Immaterial Project Participant) on or prior to the Closing Date but which under applicable Law were required to be obtained prior to such Disbursement Date shall have been duly obtained and shall be final and in full force and effect and either the applicable administrative and statutory appeal periods shall have expired or those applicable administrative and statutory appeal periods greater than ninety (90) days that have not expired and their relevant expiration dates are identified on Schedule 4.6; (ii) in addition to and not in limitation of Section 3.3(d)(i) above and unless waived by the Administrative Agent, the Administrative Agent shall have received a legal opinion by an attorney acceptable to the Administrative Agent and licensed in the state or states in which the applicable Site is located that all permits and approvals required under Environmental Laws with regard to such Site have been obtained, are final and in full force and effect and either all applicable administrative and

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statutory appeal periods have expired or those applicable administrative and statutory appeal periods greater than ninety (90) days that have not expired and their relevant expiration dates are identified on Schedule 4.6, (iii) there shall have been no change in any applicable Law, and no issuance of any order, writ, injunction or decree of any Governmental Authority or arbitral tribunal, which, in either such case, could reasonably be expected to have a Material Adverse Effect; and (iv) there shall have been no proposed change in or modification of any applicable Law which could reasonably be expected to be enacted and which if enacted could reasonably be expected to have a Material Adverse Effect.

(e)           Material Adverse Effect.  There shall exist no circumstance, event or condition which has had or could reasonably be expected to have a Material Adverse Effect.

(f)            Litigation.  No legal or arbitral proceedings or investigations, or any proceedings by or before any Governmental Authority, shall be pending or threatened against either Borrower, or its Properties or rights or, to the knowledge of each Borrower, against any Project Participant or its respective Properties or rights, which, if adversely determined, could reasonably be expected to have a Material Adverse Effect.

(g)           Construction Budget; Drawdown Schedule.  Such Construction Loan shall be in accordance with the applicable Construction Budget and the applicable Drawdown Schedule.

(h)           Fees and Expenses.  Each Borrower shall have paid or arranged for the payment when due (including, to the extent permitted, arrangement for payment out of such Disbursement) of all fees, expenses and other charges payable by it on or prior to such Disbursement Date under this Agreement or under any other Finance Document.

(i)            Title Continuation Report; Survey.  (i)  The applicable Borrower shall have delivered to the Administrative Agent a title continuation report and a down date endorsement from the Title Insurance Company to such Disbursement Date, in form and substance satisfactory to the Administrative Agent, setting forth no additional exceptions other than Permitted Liens of the type described in Section 6.1(d) and increasing the amount of the Title Insurance to the aggregate amount of all Disbursements (which, for the avoidance of doubt, shall expressly include, but shall not be limited to, the amount of the initial Construction Loan and such current Disbursement and (ii) in the case of the first Disbursement Date with respect to Construction Loans which is at least thirty (30) days after the foundations of the applicable Site have been completed, such Borrower shall have delivered to the Administrative Agent an updated survey of such Site, certified to the Collateral Agent, for the benefit of the Secured Parties, the Title Insurance Company and such Borrower, showing the Project as built to the date of such survey, which survey shall be in form and substance satisfactory to the Administrative Agent and the Title Insurance Company, and shall disclose no easements, rights of way or encumbrances, other than Permitted Liens of the type described in Section 6.1(d).

(j)            Project Costs.  The aggregate outstanding principal amount of all Construction Loans of the applicable Tranche shall not exceed 75% of the aggregate Project Costs theretofore incurred in respect of the applicable Project.

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(k)           Equity Contribution.  The Administrative Agent shall have received satisfactory evidence that Equity Contributions have been deposited in the Tranche A Construction Account or the Tranche B Construction Account, as applicable, in an aggregate amount such that the ratio of the Construction Loans of the applicable Tranche (after giving effect to the proposed disbursement of Construction Loans to be made on the Disbursement Date) to such Equity Contributions does not exceed 75:25; provided, however, that for the purposes of this Section 3.3(k), Equity Contributions for each Tranche shall include the allocable portion of all Project Costs directly paid by the Sponsor in connection with the Projects prior to the applicable Initial Funding Date (including without limitation any payments made by the Sponsor with respect to any letter of credit or the issuance thereof in connection with the Projects) to the extent the same have been approved by the Administrative Agent in its reasonable discretion.

(l)            Other Documents.  The Administrative Agent shall have received such other statements, certificates, documents and approvals as the Administrative Agent may reasonably request.

The acceptance of the proceeds of each Construction Loan shall constitute a certification by the applicable Borrower to the Lenders confirming the satisfaction of the conditions set forth in clauses (a) through (l) of this Section 3.3 upon the making of such Construction Loan.

3.4          Conversion Dates.  The occurrence of the Facility A Conversion Date and the Facility B Conversion Date shall be subject to the conditions precedent that the Administrative Agent shall have received, or the Required Lenders shall have waived receipt of, the following, each of which shall be in form and substance reasonably satisfactory to the Required Lenders in their sole discretion, and that the other conditions set forth in this Section 3.4 shall have been satisfied or waived by the Required Lenders:

(a)           Term Notes.  If a Lender shall request, such Lender shall have received an original Tranche A Term Note or Tranche B Term Note, as applicable, in respect of the Term Loans made or maintained by it, duly completed, executed and delivered by the applicable Borrower, which shall (i) be dated the Facility A Conversion Date or the Facility B Conversion Date, as applicable, (ii) mature on the Tranche A Final Maturity Date or the Tranche B Final Maturity Date, as applicable, and (iii) bear interest as provided in Section 2.11 hereof.

(b)           Representations and Warranties.  The representations and warranties of each Borrower contained in Section 4 hereof and the representations and warranties of each Finance Party, each Affiliate Project Participant and, to the knowledge of the applicable Borrower, each other Project Participant (other than any Lender Affiliate Project Participant or any Immaterial Project Participant) contained in any other Finance Document or Project Document then in effect shall be true and correct in all material respects on and as of such Conversion Date as if made on and as of such date (or, if expressly stated to have been made solely as of an earlier date, were true and correct in all material respects as of such date).

(c)           Insurance. The Administrative Agent shall have received (i) a certified copy of the insurance policies required by Section 5.9 hereof or certificates of insurance with respect thereto, together with evidence of the payment of all premiums therefor, (ii) a certificate

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of the Insurance Advisor, certifying that insurance complying with Section 5.9 hereof, covering the risks referred to therein, has been obtained, and (iii) a letter from a nationally-recognized insurance broker stating that insurance complying with Section 5.9 hereof is in full force and effect.

(d)           No Default.  No Default or Event of Default shall have occurred and be continuing or would result from the occurrence of such Conversion Date and no default by any Finance Party, any Affiliate Project Participant or, to the knowledge of the applicable Borrower, any other Project Participant under any of the Transaction Documents then in effect shall have occurred and be continuing or would result from the occurrence of such Conversion Date.

(e)           Material Adverse Effect.  There shall exist no circumstance, event or condition which has had or could reasonably be expected to have a Material Adverse Effect.

(f)            Governmental Approvals.  All Necessary Governmental Approvals required for the construction and operation of the applicable Project shall have been duly obtained and shall be final and in full force and effect and either the applicable administrative and statutory appeal periods shall have expired or those applicable administrative and statutory appeal periods greater than ninety (90) days that have not expired and their relevant expiration dates are identified on Schedule 4.6.

(g)           Financial Covenants; Updated Base Case Projections.  After giving pro forma effect to the Borrowing of Term Loans to be made on such date, the Borrower shall be in compliance with Section 7 hereof and the Administrative Agent shall have received an updated version of the Base Case Projections for the applicable Project, which shall project (a) a Tranche A Debt Service Coverage Ratio or Tranche B Debt Service Coverage Ratio, as applicable, of not less than 1.25:1.00 as of the end of each fiscal quarter during the period covered thereby and (b) that no more than twenty percent (20%) of the original principal amount Tranche A Term Loans or Tranche B Term Loans shall be outstanding as of the Tranche A Final Maturity Date and the Tranche B Final Maturity Date, as applicable, in each case prepared using assumptions provided in good faith by such Borrower, certified as true, complete and correct by an Authorized Officer of such Borrower and the Project Engineer and otherwise in form and substance reasonably satisfactory to each Lender and the Project Engineer.

(h)           Completion Certificates.  The Administrative Agent shall have received (i) an executed Borrower Completion Certificate (the statements contained in which shall be true and correct in all material respects) and (ii) an executed Project Engineer Completion Certificate.

(i)            Project Completion Date. The Facility A Project Completion Date or the Facility B Project Completion Date, as applicable, shall have occurred.

(j)            Officer’s Certificates. The Administrative Agent shall have received a executed certificate of an Authorized Officer of the Borrowers, dated such Conversion Date, certifying that (i) the representations and warranties made by each Borrower in Section 4 hereof and the representations and warranties made by each Finance Party, each affiliate Project Participant and, to the knowledge of the applicable Borrower, each other Project Participant (other than any Lender Affiliate Project Participant or any Immaterial Project Participant) in each

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of the other Finance Documents and the Project Documents then in effect are true and correct in all material respects on and as of such Conversion Date with the same force and effect as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct in all material respects as of such date), (ii) no Default or Event of Default has occurred and is continuing on such Conversion Date, and (iii) no default by either Borrower, any Affiliate Project Participant or, to the knowledge of the applicable Borrower, any other Project Participant under any of the Transaction Documents then in effect has occurred and is continuing on such Conversion Date.

(k)           Opinions. The Administrative Agent shall have received such supplemental written opinions of counsel to each Finance Party and the Affiliate Project Participants as the Administrative Agent may reasonably request.

(l)            Title Insurance. The Collateral Agent shall have received (i) a final down date endorsement to the Title Insurance, in favor of the Collateral Agent, for the benefit of the Secured Parties, in form, scope and substance satisfactory to the Collateral Agent and each Lender, and showing no exceptions other than those set forth in the Title Insurance, and deleting any pending disbursement provisions that may have been contained in the Title Insurance issued pursuant to Section 3.2(g)(iii) and (ii) an as-built ALTA survey of the applicable Site certified to the Administrative Agent, the Title Insurance Company and the applicable Borrower, which survey shall be in form and substance satisfactory to the Administrative Agent and the Title Insurance Company.

(m)          Debt Service Reserve Account.  As of the Conversion Date the amounts on deposit in the applicable Debt Service Reserve Account shall equal or exceed the applicable Required Debt Service Reserve Amount.

(n)           Phase I. The Administrative Agent shall have received a new Phase I Environmental Site Assessment with respect to the applicable Site, in form, scope, and substance reasonably acceptable to the Administrative Agent.

(o)           Other Documents. The Administrative Agent shall have received such other statements, certificates, documents and approvals as the Administrative Agent may reasonably request.

SECTION 4.         REPRESENTATIONS, WARRANTIES AND AGREEMENTS

In order to induce each of the Lenders to enter into this Agreement and to make the Loans, the Borrowers make the following representations, warranties and agreements, all of which shall survive the execution and delivery of this Agreement and the Notes:

4.1          Organization.  Each Borrower is a limited liability company duly incorporated, validly existing and in good standing under the laws of the State of Delaware.  The correct legal name of the Tranche A Borrower is “Clean Energy Tranche A LNG Plant, LLC”.  The correct legal name of the Tranche B Borrower is “Clean Energy Tranche B LNG Plant, LLC”.  Each Borrower is duly authorized and qualified to do business and is in good standing in each jurisdiction in which it owns or leases Property or in which the conduct of its business requires it so to qualify.  Each Borrower has the requisite power and authority to own or lease and operate

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its Properties, to carry on its business (including with respect to the Projects), to borrow money, to create the Security Interests as contemplated by the Security Documents and to execute, deliver and perform each Transaction Document (including the Notes) to which it is or will be a party.

4.2          Authority and Consents.

(a)           The execution, delivery and performance by each Borrower of each Transaction Document to which it is or will be a party, and the transactions contemplated by the Transaction Documents (i) have been duly authorized by all necessary limited liability company action (including any necessary member or manager action), (ii) will not breach, contravene, violate, conflict with or constitute a default under (A) any of its Charter Documents, (B) any applicable Law, or (C) any contract, loan, agreement, indenture, mortgage, lease or other instrument to which it is a party or by which it or any of its Properties may be bound or affected, including all Governmental Approvals and the Transaction Documents (except in the case of clauses (B) and (C) such as would not reasonably be expected to have a Material Adverse Effect), and (iii) except for the Liens created by the Security Documents, will not result in or require the creation or imposition of any Lien upon or with respect to any of the Properties of either Borrower.

(b)           Each Transaction Document (i) has been duly executed and delivered by each Borrower and (ii) when executed and delivered by each of the other parties thereto will be the legal, valid and binding obligation of each Borrower, enforceable against each such Borrower in accordance with its terms, except as the enforceability thereof may be limited by (A) applicable bankruptcy, insolvency, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and (B) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c)           No authorization, consent or approval of, or notice to or filing with, any Governmental Authority or any other Person has been, is or will be required to be obtained or made (i) for the due execution, delivery, recordation, filing or performance by either Borrower of any of the Transaction Documents to which it is a party or any transaction contemplated by the Transaction Documents (other than any Necessary Governmental Approvals that will be obtained by the time needed in connection with the construction or operation of the Projects), (ii) for the grant by either Borrower, or the perfection and maintenance, of the Liens contemplated by the Security Documents then required to have been delivered (including the first priority nature thereof) (subject only to (i) Permitted Liens and (ii) the priority afforded to such Permitted Liens by operation of Law), except, in each case in this clause (ii), those which cannot be made or obtained on the date this representation is made and which are reasonably expected to be able to made or obtained at the appropriate future dates or (iii) for the exercise by the Administrative Agent or any other Secured Party of any of its rights under any Finance Document or any remedies in respect of the Collateral pursuant to the Security Documents, except, in each case in this clause (iii), those which cannot be made or obtained on the date this representation is made and which are reasonably expected to be able to made or obtained at the appropriate future dates, except, in each case in clauses (i), (ii) and (iii), for the authorizations, consents, approvals, notices and filings that have been duly obtained, taken, given or made and are in full force and effect.

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4.3          Capitalization; Indebtedness; Investments.

(a)           Schedule 4.3 (as may be updated by the Borrowers from time to time by written notice to the Administrative Agent) contains a true, correct and complete list of all of the authorized and outstanding Capital Stock of the Borrowers by class.  All of the Capital Stock of the Borrowers has been duly authorized and validly issued and is fully paid and non-assessable.  None of such Capital Stock has been issued in violation of any applicable Law.  Other than the Finance Documents, neither Borrower is a party or subject to, has outstanding or is bound by, any subscriptions, options, warrants, calls, agreements, preemptive rights, acquisition rights, redemption rights or any other rights or claims of any character that restrict the transfer of, require the issuance of, or otherwise relate to any shares of its Capital Stock.  The Capital Stock of each Borrower is owned beneficially and of record by the Persons set forth on Schedule 4.3 hereto (as may be updated by the Borrowers from time to time by written notice to the Administrative Agent).  Except for the Liens created by the Pledge Agreement, there is no Lien on any of the Capital Stock of either Borrower, and neither Borrower has been notified of the assignment of all or any part of Holdings’ Investments in such Borrower other than the assignment in favor of the Collateral Agent pursuant to the Pledge Agreement.

(b)           As of the Closing Date, (i) neither Borrower has any Indebtedness of any nature, whether due or to become due, absolute, contingent or otherwise, other than Indebtedness arising under the Finance Documents and (ii) neither Borrower holds any Investments other than Investments permitted by Section 6.4.

4.4          Financial Condition.

(a)           Neither Borrower has any outstanding obligations or liabilities, fixed or contingent, except those arising under the Transaction Documents or permitted under this Agreement.  Since December 31, 2011, no event, condition or circumstance has occurred which could reasonably be expected to have a Material Adverse Effect.

(b)           Each Borrower is Solvent.

4.5          Litigation; Labor Disputes.  There is no action, suit, other legal proceeding, arbitral proceeding, inquiry or investigation pending or, to the best of each Borrower’s knowledge, threatened, by or before any Governmental Authority or in any arbitral or other forum, nor any order, decree or judgment in effect, pending, or, to the best of each Borrower’s knowledge, threatened, against or affecting (a) either Borrower or any of its Properties or rights or (b) any Affiliate Project Participant and to each Borrower’s knowledge any other Project Participant (other than any Immaterial Project Participant) or any of its Properties or rights, that, in the case of this clause (b), relates to the Projects, to any of the Transaction Documents or to any of the transactions contemplated thereby.  There are no ongoing, or, to the knowledge of each Borrower, currently threatened, strikes, slowdowns or work stoppages by the employees of either Borrower, any Contractor, any Approved Gas Supplier, any Approved Power Supplier or the LNG Purchaser.

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4.6          Governmental Approvals.

(a)           All Governmental Approvals necessary in connection with (i) the due execution and delivery of, and performance by each Borrower, each Affiliate Project Participant and, to each Borrower’s knowledge, each other Project Participant (other than any Immaterial Project Participant) of their respective obligations, and the exercise of their respective rights under, the Transaction Documents, (ii) the legality, validity and binding effect or enforceability thereof, and (iii) on and after the applicable Initial Funding Date, the design, development, ownership, construction, installation, operation and maintenance of each Project as contemplated by the Transaction Documents (collectively, the “Necessary Governmental Approvals”), are set forth on Schedule 4.6 hereto and, except for those set forth in Part B of Schedule 4.6 hereto, each such Necessary Governmental Approval has been duly obtained or made, was validly issued, is in full force and effect, is final and not subject to modification or appeal, is held in the name of the applicable Borrower (except as specifically indicated in such Schedule) and is free from conditions or requirements the compliance with which could reasonably be expected to have a Material Adverse Effect and which the applicable Borrower does not reasonably expect to be able to satisfy.  No event has occurred that could reasonably be expected (A) to result in the revocation, termination or adverse modification of any such Necessary Governmental Approval or (B) adversely to affect any rights of the Borrower (or, as applicable, any Project Participant) under any such Necessary Governmental Approval.

(b)           As of the applicable Initial Funding Date, the Governmental Approvals set forth in Part B of Schedule 4.6 hereto are not required for the current stage of installation and construction or operation and maintenance of the Projects and are not customarily obtained until a later stage of installation and construction or after operation of the Projects has commenced.  Neither Borrower has any reason to believe that any Necessary Governmental Approvals which are not obtainable or not required to have been obtained by such Borrower as of the date of this Agreement, but which will be required in the future (including those set forth in Part B of Schedule 4.6 hereto), will not be granted in due course prior to the time when needed free from conditions or requirements which such Borrower does not reasonably expect to be able to satisfy or compliance with which could reasonably be expected to have a Material Adverse Effect.

(c)           On and after the applicable Initial Funding Date, the information set forth in each application submitted by or on behalf of each Borrower in connection with each Necessary Governmental Approval and in all correspondence sent by or on behalf of each Borrower in respect of each such application is accurate and complete in all material respects.

(d)           On and after the applicable Initial Funding Date, the applicable Facility, if installed, constructed, owned and operated in accordance with the Plans and Specifications and the Transaction Documents, will conform to and comply in all material respects with all covenants, conditions, restrictions and requirements in all Necessary Governmental Approvals, in the Transaction Documents applicable thereto, and under all zoning, environmental, land use and other Laws applicable thereto.

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4.7          Margin Stock, Etc.

(a)           Neither Borrower is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock and no part of the proceeds of any Loan will be used to purchase or carry any Margin Stock.

(b)           Neither the making of any Loan nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulation U or Regulation X.

4.8          ERISA Compliance.  Neither Borrower nor Holdings nor any Subsidiary of either Borrower maintains or contributes to or has ever maintained or contributed to (or has or has ever had an obligation to maintain or contribute to) any Plan subject to Section 412 of the Code or Multiemployer Plan. No ERISA Affiliate of either Borrower maintains or contributes to or has within the prior six years maintained or contributed to or had an obligation to maintain or contribute to any Plan subject to Section 412 of the Code or a Multiemployer Plan, in either case, that could reasonably be expected to result in a Material Adverse Effect.

4.9          Taxes.

(a)           Each Borrower has timely filed all Federal and state tax returns and all material local and foreign income tax returns, and all other material tax and informational returns which are or were required to be filed by it, if any, and has paid all material Taxes owed by it (whether or not shown on any tax return) when due, except such Taxes, if any, as are being contested in good faith and by proper proceedings and as to which adequate reserves have been provided in accordance with GAAP.  No claim for assessment or collection of taxes has been asserted against either Borrower or its Properties by any Governmental Authority except such taxes as are being contested in good faith and by proper proceedings and as to which adequate reserves have been provided in accordance with GAAP.  Each Borrower is an entity that is disregarded as separate from its owner within the meaning of Treasury regulation section 301.7701-3. Each set of Base Case Projections accurately reflect in all material respects all Taxes that, under present Law, will be due and payable by the applicable Borrower assuming that such Borrower has the income and expenses reflected in such Base Case Projections.

(b)           No liability for any Tax (other than customary filing and recording fees) will be incurred by either Borrower as a result of the execution, delivery or performance of this Agreement or any other Finance Document.

4.10        Investment Company Act; Public Utility Holding Company Act

(a)           Neither Borrower is an “investment company,” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.  Neither the making of any Disbursement, nor the application of the proceeds or repayment thereof by either Borrower, nor the consummation of the other transactions contemplated hereby will violate any provisions of the Investment Company Act or any rule, regulation or order of the U.S. Securities and Exchange Commission thereunder.

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(b)           Neither Borrower is a “holding company” as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.

4.11        Title; Security Documents.

(a)           On and after the Initial Funding Date in respect of a Tranche, the applicable Borrower owns and has good and marketable title to or leasehold interests in the applicable Facility and the applicable Site, in each case free and clear of all Liens other than Permitted Liens.

(b)           Each Borrower has good and marketable title to all of the Property purported to be owned by it, free and clear of all Liens, other than Permitted Liens, and holds such title and all of such Property in its own name and not in the name of any nominee or other Person.  Each Borrower is lawfully possessed of a valid and subsisting leasehold estate in and to all Property which it purports to lease, free and clear of all Liens, other than Permitted Liens, and holds such leaseholds in its own name and not in the name of any nominee or other Person.  Neither Borrower has created, or is contractually bound to create, any Lien on or with respect to any of its assets, Properties, rights or revenues, except for Permitted Liens, and, except for this Agreement, neither Borrower is restricted by contract, law or otherwise from creating Liens on any of its Properties.

(c)           All Property owned, leased or otherwise used by each Borrower is located on the Sites or, prior to the applicable Initial Funding Date, at the addresses listed on Schedule 4.11.

(d)           The provisions of the Security Documents then required to have been delivered are effective to create, in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on or in all of the Collateral intended to be covered thereby, and all necessary recordings and filings have been made in all necessary public offices and all other necessary and appropriate action has been taken so that the Liens created by each Security Document constitute perfected Liens on or in the Collateral intended to be covered thereby, prior and superior to all other Liens, and all necessary consents to the creation, effectiveness, priority and perfection of each such Lien have been obtained.  No mortgage or financing statement or other instrument or recordation covering all or any part of the Collateral is on file in any recording office, except such as may have been filed in favor of the Secured Parties or in respect of Permitted Liens.

4.12        Environmental Matters.

(a)           Each Borrower has complied and is now complying in all material respects with (i) all Environmental Laws applicable to the Projects and (ii) the requirements of any Governmental Approvals issued under such Environmental Laws with respect to the Projects.

(b)           Each Facility is designed and will be constructed and operated in such a manner that it will comply in all material respects with (i) all applicable Environmental Laws, and (ii) the requirements of any Governmental Approvals issued under such Environmental Laws with respect to such Facility (the representations in this clause (b) only being made on and after the Initial Funding Date relating to each Facility, as applicable).

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(c)           To the knowledge of each Borrower, there are no facts, circumstances, conditions or occurrences regarding the Projects that (i) could reasonably be anticipated to form the basis of a material Environmental Claim against either Project, either Borrower or any other Project Participant (other than an Immaterial Project Participant), or (ii) could reasonably be anticipated to cause the Sites to be subject to any material restrictions on its ownership, occupancy, use or transferability under any Environmental Law.

(d)           There are no past, pending, or, to the knowledge of each Borrower, threatened, material Environmental Claims with respect to the Projects against (i) either Borrower or either Project; or (ii) to the knowledge of each Borrower, any other Project Participant (other than any Lender Affiliate Project Participant or any Immaterial Project Participant) or any other Person occupying, using, or conducting operations on or about the Sites.

(e)           To the knowledge of each Borrower, Hazardous Materials have not at any time been generated, used, treated, recycled, stored on, or transported to or from, or Released, deposited or disposed of on all or any portion of the Sites other than in material compliance with all applicable Environmental Laws.

(f)            There are not now and, to the knowledge of each Borrower (after due inquiry), never have been any underground storage tanks located on the Sites, there is no asbestos contained in, forming part of, or contaminating any part of the Projects, and no polychlorinated biphenyls (PCBs) or radioactive materials are used, stored, located at or contaminate any part of the Projects (the representations in this clause (f) only being made on and after the Initial Funding Date relating to each Facility, as applicable).

(g)           To the knowledge of each Borrower, there is no soil or groundwater contamination in, on, or under the Sites that requires remediation pursuant to Environmental Laws, and any soil or groundwater remediation that has previously occurred at the Sites has been determined by the applicable Governmental Authorities to be completed.

(h)           Copies of all final reports, audits, studies, and material, non-privileged correspondence with Governmental Authorities regarding compliance with Environmental Laws or the presence of Hazardous Materials at the Project and/or the Sites that either Borrower is aware or has in its possession have been delivered to the Administrative Agent.

4.13        Subsidiaries.  Neither Borrower has any Subsidiaries or beneficially owns any Capital Stock or other ownership interest of any other Person.

4.14        Intellectual Property.  Each Borrower owns or has the right to use all material patents, trademarks, permits, service marks, trade names, copyrights, franchises, formulas, intellectual property licenses and other intellectual property rights with respect thereto, and has obtained assignment of all licenses and other rights of whatsoever nature materially necessary for the design, development, construction, operation, maintenance or ownership of the Projects and the operation of its business as currently contemplated without any material conflict with the rights of others.  No material product, process, method, substance, part or other material sold or employed or presently contemplated to be sold by or employed by either Borrower in connection with its business infringes or will infringe any patent, trademark, permit, service mark, trade name, copyright, franchise, formula, license or other intellectual property right.

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4.15        Insurance.  On and after the applicable Initial Funding Date, all Insurance required by Section 5.9 has been obtained and is in full force and effect.

4.16        Project Documents.

(a)           On and after the Initial Funding Date with respect to a Tranche, the Project Documents constitute all contracts, agreements, side letters, leases, powers of attorney or other instruments or documents that are necessary (other than utility services necessary for the construction and the operation of the Project for its intended purposes that are available at the Project or can reasonably be expected to be so available as and when required upon commercially reasonable terms, provided, that in any event the Borrower shall have entered into a Gas Supply Agreement and a Power Purchase Agreement) for (A) the construction, completion, operation, maintenance and ownership of the applicable Project and (B) the conduct of the business of the applicable Borrower as contemplated by the Transaction Documents.  Each Project Document has been duly authorized, executed and delivered by each Borrower, each Affiliate Project Participant and, to the knowledge of the Borrower, each other Project Participant (other than any Lender Affiliate Project Participant and any Immaterial Project Participant) party thereto, is in full force and effect and is binding upon and enforceable against each Borrower, each Affiliate Project Participant and, to the knowledge of each Borrower, each other Project Participant (other than any Lender Affiliate Project Participant and any Immaterial Project Participant) party thereto in accordance with its terms.  Each Borrower, each Affiliate Project Participant and, to the knowledge of each Borrower, each other Project Participant (other than any Immaterial Project Participant) is in compliance with the terms and conditions of the Project Documents to which it is a party, and no event has occurred that could reasonably be expected to (1) result in an event of default under, or a material breach of, any Project Document (other than any Immaterial Additional Project Document), (2) result in the revocation, termination or adverse modification of any Project Document (other than any Immaterial Additional Project Document), or (3) adversely affect the rights of either Borrower under any Project Document (other than any Immaterial Additional Project Document).

(b)           All representations and warranties of the Borrowers, the Affiliate Project Participants and, to the knowledge of each Borrower, the other parties thereto (other than any Lender Affiliate Project Participant and any Immaterial Project Participant) contained in the Project Documents (other than any Immaterial Additional Project Document) are true and correct in all material respects (except to the extent that any such representation or warranty is expressed to be made only as of an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date).

(c)           All conditions precedent to the obligations of the respective parties under the Project Documents (other than any Immaterial Additional Project Document) have been satisfied or waived, except for such conditions precedent which by their terms cannot be (and are not required to be) met until a later stage in the construction or operation of the applicable Project, and neither Borrower has any reason to believe that any such conditions precedent cannot be satisfied prior to the time when such conditions are required to be met pursuant to the applicable Project Documents (other than any Immaterial Additional Project Document).

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(d)           Neither Borrower is a party to any agreement or contract other than the Transaction Documents.  As of the Closing Date, each of the Project Documents then in effect consists only of the original document (including exhibits and schedules) and the amendments thereto expressly described in the relevant definitions appearing in Section 1.1 hereto, and there are no other agreements, side letters, amendments or waivers or supplements, written or oral, with respect thereto.  The Administrative Agent has received a true, correct and complete copy of each Project Document (other than any Immaterial Additional Project Document), including all exhibits, schedules and disclosure letters referred to therein or delivered pursuant thereto, if any.  None of the Project Documents has been amended or modified except as permitted under this Agreement.

4.17        No Default.  No Default or Event of Default has occurred and is continuing.

4.18        Compliance with Laws.  Neither Borrower is in violation of any Law, Governmental Approval, order, writ, injunction or decree or its Charter Documents.

4.19        Disclosure.

(a)           All documents, reports or other information pertaining to the Borrowers, the Projects, the Project Documents (other than any Immaterial Additional Project Document), or the Project Participants (other than any Lender Affiliate Project Participant and any Immaterial Project Participant) that have been furnished to the Administrative Agent or any Lender by or on behalf of the Borrowers, Holdings, the Affiliate Project Participants or the Sponsor (including (i) any application to any Lender for the extensions of credit provided for in the Finance Documents, (ii) the Finance Documents, including the exhibits and schedules attached thereto, and (iii) all other information relating to the Borrowers, the Projects, the Project Documents, or the Project Participants provided by the Borrowers, Holdings, the Affiliate Project Participants or the Sponsor to the Administrative Agent or any Lender, but excluding the Base Case Projections, the Construction Budgets and any other forecasts and projections), in light of the circumstances under which they were or are made and taken as a whole, are true and correct in all material respects and do not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained herein or therein not materially misleading.  There is no fact, event or circumstance known to the Borrowers that has not been disclosed to the Administrative Agent in writing, the existence of which could reasonably be expected to have a Material Adverse Effect.

(b)           Each Construction Budget accurately specifies all costs and expenses incurred and the applicable Borrower’s best estimate of all costs and expenses anticipated by such Borrower to be incurred on or prior to the applicable Conversion Date to construct and finance the construction of the applicable Facility and to implement the applicable Project in the manner contemplated by the Transaction Documents.  Each Construction Budget and each set of Base Case Projections (i) are, as of the Initial Funding Date, based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein, (ii) are, as of the Initial Funding Date, consistent with the provisions of the Transaction Documents in all material

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respects, (iii) have been prepared in good faith and with due care, and (iv) fairly represent each Borrower’s reasonable expectations as to the matters covered thereby as of the Initial Funding Date.  All projections and budgets to be furnished to the Lenders by or on behalf of the Borrower after the Initial Funding Date (A) will be based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein, (B) will be consistent with the provisions of the Transaction Documents in all material respects, (C) will be prepared in good faith and with due care and (D) will fairly represent each Borrower’s reasonable expectations as to the matters covered thereby as of their respective dates.

4.20        Utilities, Etc.  All utility services, means of transportation, facilities and other materials necessary for the importation, construction, installation, operation and maintenance of each Facility (including gas, electrical, potable and raw water supply, storm, telephone and sewage services and facilities, as necessary) are or will be available to the Projects (in the case of utility services, at the boundaries of each Site) when necessary for the construction, operation, testing and start-up of each Facility and, to the extent necessary or desirable, arrangements have been made on commercially reasonable terms for such services, means of transportation, facilities and other materials, in each case on terms consistent with those reflected in the applicable Construction Budget and the applicable Base Case Projections.

4.21        Transactions with Affiliates.  As of the Closing Date, other than pursuant to the LNG Purchase Agreements and as otherwise set forth on Schedule 4.21 hereto, neither Borrower has engaged or has agreed to engage in any transactions (including any transactions relating to the buying or selling of any Properties or any products of the Projects or involving the receipt of money as payment for goods or services) with any Affiliate of the Borrower.

4.22        Project Completion Date; Project Costs.

(a)           The Tranche A Borrower estimates, in good faith, that the Facility A Project Completion Date will occur no later than the scheduled date for completion in accordance with the Facility A Project Schedule and that the aggregate proceeds of the Tranche A Construction Loans and the Equity Contributions to be received by the Tranche A Borrower will be sufficient to achieve the Facility A Project Completion Date.

(b)           The Tranche B Borrower estimates, in good faith, that the Facility B Project Completion Date will occur no later than the scheduled date for completion in accordance with the Facility B Project Schedule and that the aggregate proceeds of the Tranche B Construction Loans and the Equity Contributions to be received by the Tranche B Borrower will be sufficient to achieve the Facility B Project Completion Date.

(c)           As of the Initial Funding Date, no Change Order has been proposed and no Change Order is being contemplated for proposal in the future by the Borrowers, or, to the best knowledge of the Borrowers, by any Contractor or any other party pursuant to any Construction Agreement.

4.23        Single-Purpose Entity.  Neither Borrower has engaged in any business (including any speculative trading) other than the Projects.  The Tranche A Borrower has offices at 3020 Old Ranch Parkway, Seal Beach, CA 90740 and does not have a place of business at any other location other than Site A (following the acquisition thereof). The Tranche B Borrower has offices at 3020 Old Ranch Parkway, Seal Beach, CA 90740 and does not have a place of business at any other location other than Site B (following the acquisition thereof).

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4.24        Anti-Terrorism Laws.  Neither Borrower nor any of its Affiliates is in violation of any Laws relating to “know your customer,” terrorism or money laundering, including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, the Patriot Act, the Terrorism Sanctions Regulations (Title 31 Part 595 of the U.S. Code of Federal Regulations), the Terrorism List Governments Sanctions Regulations (Title 31 Part 596 of the U.S. Code of Federal Regulations), the Foreign Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations) and the laws administered by the United States Treasury Department’s Office of Foreign Asset Control (each as from time to time in effect) (the “Anti-Terrorism Laws”).

SECTION 5.         AFFIRMATIVE COVENANTS

Each Borrower covenants and agrees with each of the Lenders that, so long as any Commitment or any Loan or any other Obligation is outstanding and until payment in full of all Obligations and any other amounts payable by each Borrower under the Finance Documents:

5.1          Financial Statements and Other Information.  Each Borrower shall deliver or cause to be delivered to the Administrative Agent and each Lender:

(a)           Quarterly Financial Statements. As soon as available and in any event within sixty (60) days after the end of each fiscal quarter of each of Holdings (beginning, in the case of Holdings, with the fiscal quarter in which the first Initial Funding Date occurs)  and the Sponsor, as applicable, a copy of the complete unaudited, consolidated (and in the case of Holdings, consolidating) statements of income, retained earnings and cash flow of such Person and the related unaudited, consolidated (and in the case of Holdings, consolidating) balance sheet of such Person as at the end of such fiscal quarter, setting forth in each case in comparative form the corresponding figures for the corresponding fiscal quarter in the preceding fiscal year, if any, accompanied by a certificate of the chief financial officer of such Person, which certificate shall state that said financial statements fairly present the financial condition and results of operations of such Person in accordance with GAAP, consistently applied, as at the end of, and for, such fiscal quarters (subject to normal year-end audit adjustments and the absence of footnotes).

(b)           Annual Financial Statements. As soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year of each of Holdings (beginning, in the case of Holdings, with the fiscal year in which the first Initial Funding Date occurs) and the Sponsor, as applicable, a copy of the complete audited, consolidated (and in the case of Holdings, consolidating)  statements of income, retained earnings and cash flow of such Person and the related audited, consolidated (and in the case of Holdings, consolidating) balance sheets of such Person as at the end of such year and any related audit letter, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, and accompanied by an opinion thereon of KPMG LLP or such other firm of independent certified public accountants of recognized international standing as may be acceptable to the Required Lenders, which opinion shall state that said financial statements fairly present the financial condition and results of operations of such Person as at the end of, and for, such fiscal year in accordance with GAAP and shall not include any going concern or like qualification or exception.

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(c)           Officer’s Certificate. At the time the Sponsor furnishes each set of its financial statements pursuant to Section 5.1(a) or (b) above, a certificate of the chief financial officer (or other senior financial officer) of each Borrower to the effect that no Default or Event of Default has occurred and is continuing (or, if any Default or Event of Default has occurred and is continuing, describing the same in reasonable detail and describing what action such Borrower has taken and proposes to take with respect thereto).

(d)           Financial Ratios.

(i)            Following the Facility A Conversion Date, at the time it furnishes each set of financial statements pursuant to Section 5.1(a) above, the Tranche A Borrower shall provide a calculation of:

(A)          the Tranche A Debt Service Coverage Ratio as of the Quarterly Date most recently falling prior to such date, certified by the chief financial officer of the Tranche A Borrower, together with supporting data in reasonable detail;

(B)          the Tranche A Projected Debt Service Coverage Ratio as of the Quarterly Date most recently falling prior to such date, certified by the chief financial officer of the Tranche A Borrower, together with supporting data in reasonable detail;

(C)          the Tranche A Leverage Ratio as of the Quarterly Date most recently falling prior to such date, certified by the chief financial officer of the Tranche A Borrower, together with supporting data in reasonable detail.

(ii)           Following the Facility B Conversion Date, at the time it furnishes each set of financial statements pursuant to Section 5.1(a) above, the Tranche B Borrower shall provide a calculation of:

(A)          the Tranche B Debt Service Coverage Ratio as of the Quarterly Date most recently falling prior to such date, certified by the chief financial officer of the Tranche B Borrower, together with supporting data in reasonable detail;

(B)          the Tranche B Projected Debt Service Coverage Ratio as of the Quarterly Date most recently falling prior to such date, certified by the chief financial officer of the Tranche B Borrower, together with supporting data in reasonable detail;

(C)          the Tranche B Leverage Ratio as of the Quarterly Date most recently falling prior to such date, certified by the chief financial officer of the Tranche B Borrower, together with supporting data in reasonable detail.

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(e)           Defaults.  Promptly after any officer or director of either Borrower knows or has a reasonable basis to believe that any Default or Event of Default or any default by any Project Participant (other than an Immaterial Project Participant) or either Borrower under any Transaction Document has occurred, a written notice of such event describing the same in detail satisfactory to the Administrative Agent and, together with such notice, a description of what action the Borrowers or such Project Participant have taken and propose to take with respect thereto.

(f)            Progress Reports.  (x) As soon as available and in any event within ten (10) Business Days after the end of each month prior to the applicable Conversion Date, a construction progress report from the Project Engineer with respect to each Project for such month, which report shall correspond to the items and classifications and periods set forth in the applicable Construction Budget and the Facility A Project Schedule or the Facility B Project Schedule, as applicable, and (y) as soon as available and in any event within thirty (30) days after the end of each fiscal year of the Borrowers following the Facility A Project Completion Date or the Facility B Project Completion Date, as applicable, an operating report from the Project Engineer with respect to the applicable Project for such fiscal year, which report shall certify that such Project has been operated and maintained substantially in accordance with Prudent Industry Practices, the Necessary Governmental Approvals and the Transaction Documents (including Section 5.18 hereof).

(g)           Operating Reports.  As soon as available and in any event within forty-five (45) days after the end of each fiscal quarter of each Borrower following the Facility A Project Completion Date or the Facility B Project Completion Date, as applicable, an operating report with respect to each Project for such fiscal quarter and for the portion of the Operating Year then ended, which report shall (i) include the applicable Borrower’s production and sales volumes as well as other operating metrics as the Administrative Agent may reasonably request, (ii) correspond to the items and classifications and periods set forth in the applicable Operating Budget and shall show all Project Revenues, all expenditures for Operation and Maintenance Expenses and a reasonably detailed accounting of the use of any amounts transferred to the applicable Borrower from the applicable Operating Account and (iii) be certified as complete and correct in all material respects by an Authorized Officer of the applicable Borrower, which certificate shall also state that the Operation and Maintenance Expenses reflected therein complied with the requirements contained in Section 5.17(c) hereof, or, if any such certifications cannot be given, shall state in detail any necessary qualifications to such certifications.

(h)           Notices.  Promptly after delivery or receipt thereof, a copy of each material notice, demand, report or other communication given or received by either Borrower (i) pursuant to or relating to any of the Transaction Documents (other than any Immaterial Additional Project Document) (including all requests for material amendments or waivers) or pursuant to or relating to any Necessary Governmental Approval, or (ii) to or from any Governmental Authority relating in any way to the Projects.