PROPERTY, AND THE COST OF DELINEATION, MANAGEMENT, REMEDIATION,
REMOVAL, TREATMENT AND DISPOSAL OF ANY SUCH MATERIALS OF ENVIRONMENTAL CONCERN,
AND (D) USE ITS BEST EFFORTS TO ENSURE THAT NO ENVIRONMENTAL AFFILIATE TAKES ANY
ACTION OR VIOLATES ANY ENVIRONMENTAL LAW THAT COULD REASONABLY BE EXPECTED TO
RESULT IN AN ENVIRONMENTAL CLAIM.
(II)
WITHOUT LIMITING THE PROVISIONS OF
SECTION 7.01(B)(I), THE BORROWER SHALL NOT USE OR ALLOW THE PROJECT TO GENERATE,
MANUFACTURE, REFINE, PRODUCE, TREAT, STORE, HANDLE, DISPOSE OF, TRANSFER,
PROCESS OR TRANSPORT MATERIALS OF ENVIRONMENTAL CONCERN OTHER THAN IN COMPLIANCE
IN ALL MATERIAL RESPECTS WITH ENVIRONMENTAL LAWS.
(C)
OPERATIONS AND MAINTENANCE. THE
BORROWER SHALL OWN, CONSTRUCT, OPERATE AND MAINTAIN (OR CAUSE TO BE OPERATED AND
MAINTAINED) THE PROJECT IN ALL MATERIAL RESPECTS IN ACCORDANCE WITH (I) THE
TERMS AND PROVISIONS OF THE TRANSACTION DOCUMENTS, (II) ALL APPLICABLE
GOVERNMENTAL APPROVALS AND LAWS AND (III) PRUDENT BIODIESEL OPERATING PRACTICE.
59
(D)
CONSTRUCTION AND COMPLETION OF
PROJECT; MAINTENANCE OF PROPERTIES. (I) THE BORROWER SHALL APPLY THE PROCEEDS OF
THE LOANS TO THE PURPOSES SPECIFIED IN SECTION 7.01(G) (AFFIRMATIVE COVENANTS -
USE OF PROCEEDS AND CASH FLOW) AND IN EACH FUNDING NOTICE AND SHALL DULY
CONSTRUCT AND COMPLETE, OR CAUSE THE CONSTRUCTION AND COMPLETION OF, THE PROJECT
AND SHALL CAUSE THE FINAL COMPLETION DATE TO OCCUR, SUBSTANTIALLY IN ACCORDANCE
WITH (A) THE SCOPE OF WORK AND OTHER SPECIFICATIONS SET FORTH IN THE
CONSTRUCTION CONTRACTS (INCLUDING ANY CHANGE ORDERS PERMITTED UNDER THIS
AGREEMENT), (B) THE CONSTRUCTION BUDGET, AND (C) EXERCISE OF THAT DEGREE OF
SKILL, DILIGENCE, PRUDENCE, FORESIGHT AND CARE THAT ARE EXPECTED OF A BIODIESEL
CONSTRUCTION CONTRACTOR, IN ORDER TO EFFICIENTLY ACCOMPLISH THE DESIRED RESULT
CONSISTENT WITH SAFETY STANDARDS, APPLICABLE LAWS, MANUFACTURERS' WARRANTIES,
MANUFACTURERS' RECOMMENDATIONS AND THE PROJECT DOCUMENTS.
(II)
THE BORROWER SHALL KEEP, OR CAUSE TO BE KEPT, IN
GOOD WORKING ORDER AND CONDITION, ORDINARY WEAR AND TEAR EXCEPTED, ALL OF ITS
PROPERTIES AND EQUIPMENT RELATED TO THE PROJECT THAT ARE NECESSARY OR USEFUL IN
THE PROPER CONDUCT OF ITS BUSINESS.
(III)
EXCEPT AS REQUIRED IN CONNECTION WITH THE
CONSTRUCTION OF THE PROJECT, THE BORROWER SHALL NOT PERMIT THE PROJECT OR ANY
MATERIAL PORTION THEREOF TO BE REMOVED, DEMOLISHED OR MATERIALLY ALTERED, UNLESS
SUCH MATERIAL PORTION THAT HAS BEEN REMOVED, DEMOLISHED OR MATERIALLY ALTERED
HAS BEEN REPLACED OR REPAIRED AS PERMITTED UNDER THIS AGREEMENT.
(IV)
THE BORROWER SHALL CONTINUE TO ENGAGE IN BUSINESS OF
THE SAME TYPE AS NOW CONDUCTED BY IT AND DO OR CAUSE TO BE DONE ALL THINGS
NECESSARY TO PRESERVE AND KEEP IN FULL FORCE AND EFFECT (A) ITS LIMITED
LIABILITY COMPANY EXISTENCE AND GOOD STANDING IN THE STATE OF DELAWARE AND
(B) ITS MATERIAL PATENTS, TRADEMARKS, TRADE NAMES, COPYRIGHTS, FRANCHISES AND
SIMILAR RIGHTS.
(E)
PAYMENT OF OBLIGATIONS. THE
BORROWER SHALL PAY AND DISCHARGE AS THE SAME SHALL BECOME DUE AND PAYABLE ALL OF
ITS MATERIAL OBLIGATIONS AND LIABILITIES, INCLUDING (I) ALL TAX LIABILITIES,
ASSESSMENTS AND GOVERNMENTAL CHARGES OR LEVIES UPON IT OR ITS PROPERTIES OR
ASSETS, UNLESS THE SAME ARE SUBJECT TO A CONTEST, (II) ALL OF ITS