fulfill or perform any other action
hereunder, until the following conditions have been satisfied, in the sole
discretion of, or waived in writing by, the Managing Agents:
(A)
THIS AGREEMENT AND ALL OTHER TRANSACTION
DOCUMENTS AND EACH LIQUIDITY AGREEMENT OR COUNTERPARTS HEREOF OR THEREOF SHALL
HAVE BEEN DULY EXECUTED BY, AND DELIVERED TO, THE PARTIES HERETO AND THERETO AND
THE ADMINISTRATIVE AGENT SHALL HAVE RECEIVED SUCH OTHER DOCUMENTS, INSTRUMENTS,
AGREEMENTS AND LEGAL OPINIONS AS ANY MANAGING AGENT SHALL REASONABLY REQUEST IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ALL
THOSE LISTED IN THE SCHEDULE OF DOCUMENTS, ATTACHED HERETO AS SCHEDULE I, AS DUE
ON THE CLOSING DATE, EACH IN FORM AND SUBSTANCE SATISFACTORY TO THE
ADMINISTRATIVE AGENT.
(B)
THE BORROWER SHALL HAVE PAID ALL FEES
REQUIRED TO BE PAID BY IT ON THE CLOSING DATE, INCLUDING ALL FEES REQUIRED
HEREUNDER AND UNDER THE FEE LETTERS TO BE PAID AS OF SUCH DATE, AND SHALL HAVE
REIMBURSED EACH LENDER AND THE ADMINISTRATIVE AGENT FOR ALL FEES, COSTS AND
EXPENSES OF CLOSING THE TRANSACTIONS CONTEMPLATED HEREUNDER AND UNDER THE OTHER
TRANSACTION DOCUMENTS AND EACH LIQUIDITY AGREEMENT, INCLUDING THE LEGAL AND
OTHER DOCUMENT PREPARATION COSTS INCURRED BY ANY LENDER AND/OR THE
ADMINISTRATIVE AGENT.
(C)
EACH CP LENDER WHOSE COMMERCIAL PAPER IS
BEING RATED BY ONE OR MORE RATING AGENCY SHALL HAVE RECEIVED, TO THE EXTENT
REQUIRED UNDER THE TERMS OF SUCH CP LENDER'S PROGRAM DOCUMENTS, THE WRITTEN
CONFIRMATION OF EACH SUCH RATING AGENCY THAT THE EXECUTION AND DELIVERY OF THIS
AGREEMENT WILL NOT RESULT IN A WITHDRAWAL OR DOWNGRADING OF THE THEN-CURRENT
RATING OF SUCH COMMERCIAL PAPER BY SUCH RATING AGENCY.
(D)
THE REQUIRED EQUITY CONTRIBUTION SHALL HAVE
BEEN MADE.
The Administrative Agent shall promptly notify each Lender of the satisfaction
or waiver of the conditions set forth above.
SECTION 3.2
CONDITIONS PRECEDENT TO ALL
ADVANCES.
Each Advance (including the Initial Advance) shall be subject to the further
conditions precedent that:
(A)
ON THE RELATED FUNDING DATE, THE BORROWER
OR THE SERVICER, AS THE CASE MAY BE, SHALL HAVE CERTIFIED IN THE RELATED
BORROWER NOTICE THAT:
36
(I)
THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN SECTIONS 4.1 AND 7.7 ARE TRUE AND CORRECT ON AND AS OF SUCH DATE,
BEFORE AND AFTER GIVING EFFECT TO SUCH BORROWING AND TO THE APPLICATION OF THE
PROCEEDS THEREFROM, AS THOUGH MADE ON AND AS OF SUCH DATE; AND
(II)
NO EVENT HAS OCCURRED, OR WOULD RESULT
FROM SUCH ADVANCE OR FROM THE APPLICATION OF THE PROCEEDS THEREFROM, THAT
CONSTITUTES AN EARLY TERMINATION EVENT.
(B)
THE TERMINATION DATE SHALL NOT HAVE
OCCURRED;
(C)
BEFORE AND AFTER GIVING EFFECT TO SUCH
BORROWING AND TO THE APPLICATION OF PROCEEDS THEREFROM THE BORROWING BASE TEST
SHALL BE SATISFIED, AS CALCULATED ON SUCH DATE;
(D)
NO CLAIM HAS BEEN ASSERTED OR PROCEEDING
COMMENCED CHALLENGING ENFORCEABILITY OR VALIDITY OF ANY OF THE LOAN DOCUMENTS,
EXCLUDING ANY INSTRUMENTS, CERTIFICATES OR OTHER DOCUMENTS RELATING TO LOANS
THAT WERE THE SUBJECT OF PRIOR ADVANCES;
(E)
THERE SHALL HAVE BEEN NO MATERIAL ADVERSE