AT ALL TIMES THEREAFTER, THE
BORROWER SHALL HAVE IN PLACE INTEREST RATE PROTECTION AGREEMENTS WITH RESPECT TO
AT LEAST FIFTY PERCENT (50%) OF THE AGGREGATE PRINCIPAL AMOUNT OF ALL
CONSTRUCTION OR TERM LOANS PROJECTED TO BE OUTSTANDING FROM TIME TO TIME;
PROVIDED, THAT THE BORROWER MAY NOT ENTER INTO INTEREST RATE PROTECTION
AGREEMENTS FOR NOTIONAL AMOUNTS, IN THE AGGREGATE AT THE TIME OF THE EXECUTION
THEREOF, IN EXCESS OF THE AGGREGATE PRINCIPAL AMOUNT OF CONSTRUCTION OR TERM
LOANS OUTSTANDING ON THE DATE OF SUCH TRANSACTION.
(V)
COMMODITY HEDGING PROGRAMS. ON OR
BEFORE THE DATE THAT IS TWO (2) MONTHS PRIOR TO THE COMMERCIAL OPERATION DATE,
THE BORROWER SHALL PROPOSE A COMMODITY RISK MANAGEMENT PLAN WHICH SHALL BE
APPROVED BY THE ADMINISTRATIVE AGENT (SUCH APPROVAL NOT TO BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED). THE BORROWER MAY, FROM TIME TO TIME, AMEND
SUCH COMMODITY RISK MANAGEMENT PLAN; PROVIDED THAT ANY MATERIAL CHANGES THERETO
SHALL REQUIRE THE PRIOR WRITTEN APPROVAL OF THE ADMINISTRATIVE AGENT, WHICH
APPROVAL SHALL NOT BE UNREASONABLY WITHHELD.
(W)
FINAL COMPLETION. THE BORROWER SHALL
CAUSE FINAL COMPLETION TO OCCUR ON OR BEFORE THE DATE THAT IS NINETY (90) DAYS
AFTER THE COMMERCIAL OPERATION DATE.
SECTION 7.02
NEGATIVE COVENANTS. THE
BORROWER AGREES WITH EACH SENIOR SECURED PARTY THAT, UNTIL THE DISCHARGE DATE,
THE BORROWER WILL PERFORM THE OBLIGATIONS SET FORTH IN THIS SECTION 7.02.
(A)
RESTRICTIONS ON INDEBTEDNESS OF THE
BORROWER. THE BORROWER WILL NOT CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY
INDEBTEDNESS EXCEPT:
(I)
THE OBLIGATIONS;
(II)
INDEBTEDNESS UNDER THE PERMITTED COMMODITY HEDGING
ARRANGEMENTS;
(III)
ACCOUNTS PAYABLE TO TRADE CREDITORS INCURRED IN THE
ORDINARY COURSE OF BUSINESS AND (A) NOT MORE THAN SIXTY (60) DAYS PAST DUE OR
69
(B) SUBJECT TO A CONTEST NOT MORE THAN SIX (6) MONTHS PAST DUE AND NOT EXCEEDING
AN AGGREGATE AMOUNT OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000);
(IV)
INDEBTEDNESS UNDER THE AFFILIATE LOANS IN AN AGGREGATE
AMOUNT NOT TO EXCEED SEVENTY-FIVE MILLION DOLLARS ($75,000,000), OR SUCH OTHER
(HIGHER) AMOUNT REASONABLY ACCEPTABLE TO THE ADMINISTRATIVE AGENT;
(V)
UNTIL THE CLOSING DATE, INDEBTEDNESS ARISING FROM
THE BORROWER'S OBLIGATIONS UNDER THE LOAN AGREEMENT ENTERED INTO BY THE BORROWER
AND CENTRUE BANK, DATED AS OF JANUARY 9, 2007 (THE "CENTRUE LOAN AGREEMENT
INDEBTEDNESS");
(VI)
INDEBTEDNESS (EXCLUDING INDEBTEDNESS OTHERWISE
PERMITTED UNDER THIS SECTION 7.02(A)), NOT TO EXCEED, IN THE AGGREGATE, TWO
HUNDRED FIFTY THOUSAND DOLLARS ($250,000); AND
(VII)
OBLIGATIONS AS LESSEE UNDER OPERATING LEASES OR LEASES
FOR THE RENTAL OF ANY REAL OR PERSONAL PROPERTY WHICH ARE REQUIRED BY GAAP TO BE
CAPITALIZED WHERE ALL SUCH LEASES UNDER THIS SECTION 7.02(A)(VI) DO NOT REQUIRE
THE BORROWER TO MAKE SCHEDULED PAYMENTS TO THE LESSORS IN ANY FISCAL YEAR IN
EXCESS OF TWO HUNDRED FIFTY THOUSAND ($250,000) IN THE AGGREGATE.
(B)
LIENS. THE BORROWER SHALL NOT
CREATE, INCUR, ASSUME OR SUFFER TO EXIST ANY LIEN UPON ANY OF ITS PROPERTY,
REVENUES OR ASSETS OR ITS EQUITY INTERESTS, WHETHER NOW OWNED OR HEREAFTER
ACQUIRED, EXCEPT:
(I)
LIENS IN FAVOR, OR FOR THE BENEFIT, OF THE
COLLATERAL AGENT PURSUANT