DRAWINGS SHALL ON OR PRIOR TO THE
EFFECTIVENESS OF SUCH REVOLVING COMMITMENT INCREASE
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BE PREPAID FROM THE PROCEEDS OF ADDITIONAL REVOLVING LOANS MADE AND B/AS
ACCEPTED AND PURCHASED HEREUNDER (REFLECTING SUCH REVOLVING COMMITMENT
INCREASE), WHICH PREPAYMENT SHALL (X) BE ACCOMPANIED BY ACCRUED INTEREST ON THE
REVOLVING LOANS BEING PREPAID AND ANY COSTS INCURRED BY ANY LENDER IN ACCORDANCE
WITH SECTION 2.16 AND (Y) IN THE CASE OF OUTSTANDING B/A DRAWINGS, BE DONE IN
ACCORDANCE WITH SECTION 2.11(E).
THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY AGREE THAT THE MINIMUM BORROWING, PRO RATA BORROWING AND PRO RATA PAYMENT
REQUIREMENTS CONTAINED ELSEWHERE IN THIS AGREEMENT SHALL NOT APPLY TO THE
TRANSACTIONS EFFECTED PURSUANT TO THE IMMEDIATELY PRECEDING SENTENCE.
SECTION 2.22.
DELIVERY OF A BORROWING BASE CERTIFICATE.
NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT TO THE CONTRARY, SUBSEQUENT TO EACH DATE ON WHICH
(X) THE AVERAGE AVAILABILITY OR (Y) AVAILABILITY FOR THE PRECEDING PERIOD OF
FOUR CONSECUTIVE BUSINESS DAYS, IN EITHER CASE IS LESS THAN $30,000,000 (EACH
SUCH DATE, A "DELIVERY TRIGGER DATE"), NEITHER BORROWER SHALL BE PERMITTED TO
MAKE A BORROWING, REQUEST THE ISSUANCE OF A LETTER OF CREDIT OR REQUEST AN
ACCEPTANCE AND PURCHASE OF A B/A PURSUANT TO THIS AGREEMENT UNLESS SUCH BORROWER
SHALL HAVE DELIVERED TO THE ADMINISTRATIVE AGENT A BORROWING BASE CERTIFICATE
PURSUANT TO SECTION 5.01(F) AS OF A DATE NO EARLIER THAN SEVEN DAYS PRIOR TO THE
DATE OF SUCH BORROWING; PROVIDED, HOWEVER, THAT AFTER THE DATE THAT IS (I) IN
THE CASE OF THE FIRST DELIVERY TRIGGER DATE, 45 CONSECUTIVE DAYS AFTER SUCH
DELIVERY TRIGGER DATE, OR (II) IN THE CASE OF ANY SUBSEQUENT DELIVERY TRIGGER
DATE, 180 CONSECUTIVE DAYS AFTER ANY SUCH DELIVERY TRIGGER DATE, NEITHER
BORROWER SHALL BE REQUIRED TO DELIVER A BORROWING BASE CERTIFICATE PURSUANT TO
THIS SECTION 2.22 IF THE REFERENCE AVAILABILITY FOLLOWING SUCH 45 OR 180
CONSECUTIVE DAYS, AS THE CASE MAY BE, SHALL HAVE EXCEEDED $35,000,000 FOR A
PERIOD OF FIVE CONSECUTIVE BUSINESS DAYS PRIOR TO THE DATE OF SUCH BORROWING.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each Loan Party represents and warrants to the Lenders that:
SECTION 3.01.
ORGANIZATION; POWERS.
EACH OF THE LOAN PARTIES AND EACH OF ITS
SUBSIDIARIES IS DULY ORGANIZED, VALIDLY EXISTING AND, TO THE EXTENT SUCH CONCEPT
IS APPLICABLE IN THE CORRESPONDING JURISDICTION, IN GOOD STANDING UNDER THE LAWS
OF THE JURISDICTION OF ITS ORGANIZATION, HAS ALL REQUISITE POWER AND AUTHORITY
TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND AS PROPOSED TO BE CONDUCTED, TO
EXECUTE, DELIVER AND PERFORM ITS OBLIGATIONS UNDER EACH LOAN DOCUMENT TO WHICH
IT IS A PARTY AND TO EFFECT THE TRANSACTIONS AND, EXCEPT WHERE THE FAILURE TO DO
SO, INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO RESULT
IN A MATERIAL ADVERSE EFFECT, IS QUALIFIED TO DO BUSINESS IN, AND IS IN GOOD
STANDING IN, EVERY JURISDICTION WHERE THE CONDUCT OF ITS BUSINESS REQUIRES SUCH
QUALIFICATION.
SECTION 3.02.
AUTHORIZATION; ENFORCEABILITY.
THE TRANSACTIONS ARE WITHIN EACH
LOAN PARTY'S CORPORATE (OR, TO THE EXTENT APPLICABLE, OTHER ORGANIZATION) POWERS
AND