OF LEAK DETECTION TESTS FOR
EACH UNDERGROUND STORAGE TANK LOCATED AT THE PROPERTY, IF ANY, (III) DESCRIBE
RESPONSE ACTIONS APPROPRIATE TO REMEDY ANY EXISTING OR POTENTIAL HAZARDOUS
MATERIAL CONTAMINATION, AND REPORT THE ESTIMATED COST OF ANY SUCH APPROPRIATE
RESPONSE, (IV) CONFIRM THAT ANY PRIOR REMOVAL OF HAZARDOUS MATERIAL FROM THE
PROPERTY WAS COMPLETED IN ACCORDANCE WITH APPLICABLE LAWS, AND (V) CONFIRM
WHETHER OR NOT THE PROPERTY IS LOCATED IN A WETLANDS DISTRICT.
ALL COSTS AND
CHARGES BY LENDERS' ENVIRONMENTAL CONSULTANT WILL BE BORNE BY BORROWER.
(K)
UTILITIES, FLOOD ZONE AND SOILS REPORT.
LENDER SHALL HAVE RECEIVED AND APPROVED FROM BORROWER (I) LETTERS REASONABLY
SATISFACTORY TO LENDER FROM LOCAL UTILITY COMPANIES AND/OR GOVERNMENTAL
AUTHORITIES STATING THAT SUFFICIENT ELECTRIC, GAS, SEWER, WATER AND TELEPHONE
FACILITIES WILL BE AVAILABLE TO THE IMPROVEMENTS UPON COMPLETION THEREOF, AND
(II) WRITTEN EVIDENCE SATISFACTORY TO LENDER THAT THE PROPERTY IS NOT LOCATED IN
AN AREA DESIGNATED BY THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT AS A
SPECIAL FLOOD HAZARD AREA.
(L)
GOVERNMENTAL APPROVALS.
LENDER SHALL
HAVE RECEIVED AND APPROVED (I) A LETTER FROM THE APPROPRIATE GOVERNMENTAL
AUTHORITY STATING AFFIRMATIVELY THAT THE PROPERTY IS APPROPRIATELY ZONED FOR THE
OPERATION AND USE OF A BIODIESEL PLANT, AND (II) COPIES OF ALL MATERIAL
AUTHORIZATIONS, LICENSES AND PERMITS REQUIRED BY THE APPROPRIATE GOVERNMENTAL
AUTHORITY TO CONSTRUCT THE IMPROVEMENTS.
(M)
INSURANCE POLICIES.
LENDER SHALL HAVE
RECEIVED AND APPROVED CERTIFICATES WITH RESPECT TO OF ALL INSURANCE POLICIES,
ALONG WITH ANY AND ALL REQUIRED ENDORSEMENTS AND CERTIFICATES THERETO, AS
REQUIRED BY THIS AGREEMENT AND THE LOAN DOCUMENTS.
(N)
COMPLIANCE.
NEITHER BORROWER NOR LENDER
SHALL HAVE RECEIVED ANY NOTICE THAT CLAIMS OR ASSERTS THAT THERE HAS BEEN A
FAILURE TO COMPLY WITH OR A BREACH OF ANY OF THE APPROVALS OR AUTHORIZATIONS
REQUIRED HEREUNDER.
(O)
NO DEFAULT.
THERE SHALL BE NO EVENT OF
DEFAULT UNDER THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS AND NO EVENT HAS
OCCURRED AND IS CONTINUING WHICH WITH NOTICE OR THE PASSAGE OF TIME OR EITHER
WOULD CONSTITUTE A DEFAULT UNDER ANY OF THE AFORESAID INSTRUMENTS.
(P)
GROUND LEASE AND EASEMENT DOCUMENTS. LENDER
SHALL HAVE RECEIVED AND APPROVED (I) AN EXECUTED MEMORANDUM OF ASSIGNMENT AND
ASSUMPTION OF GROUND LEASE (THE "MEMORANDUM OF GROUND LEASE"), WHICH SHALL BE
RECORDED WITH THE RECORDER OF DEEDS OF VERMILION COUNTY, ILLINOIS ON OR BEFORE
THE EFFECTIVE DATE AND (II) ANY AND ALL EASEMENTS TO BE GRANTED TO BORROWER ON
ABOUT THE CLOSING DATE, WHICH SHALL BE RECORDED WITH THE RECORDER OF DEEDS OF
VERMILION COUNTY, ILLINOIS ON OR BEFORE THE EFFECTIVE DATE.
(Q)
INTELLECTUAL PROPERTY LICENSES.
LENDER
SHALL HAVE RECEIVED EVIDENCE SATISFACTORY TO LENDER, AND BORROWER HEREBY
REPRESENTS AND WARRANTS, THAT ALL INTELLECTUAL PROPERTY LICENSED TO BORROWER IN
CONNECTION WITH THE OPERATION AND USE OF THE BIODIESEL PLANT IS AND SHALL BE
ASSIGNABLE TO LENDER, INCLUDING, WITHOUT LIMITATION, ANY INTELLECTUAL PROPERTY
LICENSED BY DE SMET TO BORROWER; LENDER SHALL HAVE RECEIVED COMPLETE COPIES OF
ALL SUCH LICENSES (EXCLUDING SOFTWARE
40
LICENSES THAT ARE NOT ASSIGNABLE BY THEIR TERMS); AND LENDER SHALL HAVE RECEIVED