including the Construction/Term Loan Maturity Date.
All indemnities given by
Borrower to Bank under any of the Loan Documents shall survive the repayment of
the Loans and the termination of this Agreement.
SECTION 4.
REPRESENTATIONS AND WARRANTIES OF
BORROWER. To induce Lender to enter into this Agreement, and to make the Initial
Construction/Term Loan Disbursement and Advances under the Construction/Term
Loan and Revolving Credit Loan to Borrower, Borrower represents and warrants
and, so long as any amount of the Loan remains unpaid or this Agreement remains
in effect, shall be deemed to continuously represent and warrant as follows:
4.1
ORGANIZATIONAL STATUS; AUTHORIZATIONS.
BORROWER IS
LIMITED LIABILITY COMPANY DULY FORMED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF THE STATE OF DELAWARE, WITH FULL POWER AND AUTHORITY TO
CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY.
BORROWER HAS FULL POWER AND
AUTHORITY TO EXECUTE, DELIVER AND PERFORM ALL LOAN DOCUMENTS, AND SUCH
EXECUTION, DELIVERY AND PERFORMANCE (A) HAS BEEN DULY AUTHORIZED BY ALL
REQUISITE ACTION ON THE PART OF BORROWER, (B) DOES NOT CONTRAVENE (I) THE
BORROWER'S ARTICLES OF INCORPORATION OR BY-LAWS, OR (II) ANY LAW OR CONTRACTUAL
RESTRICTION BINDING ON OR AFFECTING THE BORROWER OR ITS PROPERTIES AND (C) DOES
NOT RESULT IN OR REQUIRE THE CREATION OF ANY LIEN, SECURITY INTEREST OR OTHER
CHARGE OR ENCUMBRANCE UPON OR WITH RESPECT TO ANY OF THE COLLATERAL OTHER THAN
ANY SUCH LIEN IN FAVOR OF LENDER.
BORROWER IS DULY AUTHORIZED TO OWN AND
DEVELOP THE PROPERTY AND THE IMPROVEMENTS, TO OPERATE THE BIODIESEL PLANT TO
ENTER INTO THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS AND TO PLEDGE AND
ASSIGN AND GRANT LIENS AND SECURITY INTERESTS AS CONTEMPLATED BY THE LOAN
DOCUMENTS.
TO THE EXTENT REQUIRED FOR THE CURRENT STAGE OF CONSTRUCTION OF THE
IMPROVEMENTS, BORROWER HAS OBTAINED ALL LICENSES AND PERMITS AND HAS FILED ALL
REGISTRATIONS NECESSARY TO THE OPERATION OF ITS BUSINESS (EXCEPT WHERE THE
FAILURE TO SO QUALIFY OR TO OBTAIN SUCH LICENSES OR PERMITS WOULD NOT MATERIALLY
AND ADVERSELY AFFECT THE ACTUAL OR PROSPECTIVE BUSINESS, FINANCIAL CONDITION OR
OPERATIONS OF THE BORROWER).
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THE PROVISIONS CONTAINED HEREIN AND THEREIN ARE AND WILL BE THE VALID AND
LEGALLY ENFORCEABLE
31
OBLIGATIONS OF BORROWER IN ACCORDANCE WITH THEIR TERMS.
BORROWER HAS DONE
EVERYTHING NECESSARY TO COMPLY WITH ALL APPLICABLE LAWS IN ALL MATERIAL
RESPECTS.
BORROWER'S FEDERAL TAX IDENTIFICATION NUMBER IS 20-2760722.
4.2
PLANS AND SPECIFICATIONS; OWNERSHIP OF PLANS AND
SPECIFICATIONS.
THE PLANS AND SPECIFICATIONS ARE SATISFACTORY TO BORROWER AND
HAVE BEEN OR WILL BE APPROVED BY ANY GOVERNMENTAL AUTHORITY WHOSE APPROVAL IS
REQUIRED.
THE PLANS AND SPECIFICATIONS COMPLY IN ALL MATERIAL RESPECTS WITH THE
REQUIREMENTS OF ALL APPLICABLE LAWS.
ALL CONSTRUCTION SHALL BE PERFORMED IN
SUBSTANTIAL ACCORDANCE WITH THE PLANS AND SPECIFICATIONS, ALL APPLICABLE LAWS,
APPROPRIATE SET BACK REQUIREMENTS, RESTRICTIVE COVENANTS AND THE REQUIREMENTS OF
ANY GOVERNMENTAL AUTHORITY.
FOLLOWING AN EVENT OF A DEFAULT HEREUNDER AND UPON
LENDER'S EXERCISE OF ITS RIGHTS UNDER SECTION 9 OF THIS AGREEMENT, THE PLANS AND
SPECIFICATIONS (OR