pursuant to the INTERIM ORDER PURSUANT TO SECTIONS
1059A) AND 366(B) OF THE BANKRUPTCY CODE (I) PROHIBITING UTILITY PROVIDERS FROM
ALTERING, REFUSING OR DISCONTINUING UTILITY SERVICES, (II) DEEMING UTILITY
PROVIDERS ADEQUATELY ASSURED OF FUTURE PERFORMANCE, AND (III) ESTABLISHING
PROCEDURES FOR DETERMINING ADEQUATE ASSURANCE OF PAYMENT and the final order
with respect to such interim order.
3.2
THE REFERENCE IN SECTION 8.7 OF THE SECURITY
AGREEMENT TO SECTION 9.02 OF THE CREDIT AGREEMENT IS HEREBY CORRECTED TO BE A
REFERENCE TO SECTION 9.10 OF THE CREDIT AGREEMENT.
Section 4.
Effectiveness.
The
effectiveness of this First Amendment, the amendment and restatement of the
Credit Agreement and the amendment of the Security Agreement are subject to the
following conditions precedent:
4.1
SUPPORTING DOCUMENTS.
THE ADMINISTRATIVE
AGENT SHALL HAVE RECEIVED FOR EACH OF THE LOAN PARTIES:
4.1.1
BRING-DOWN CERTIFICATES DELIVERED BY EACH LOAN
PARTY (A) CERTIFYING THAT THERE WERE NO CHANGES, OR PROVIDING THE TEXT OF
CHANGES, TO THE ORGANIZATIONAL DOCUMENTS OF SUCH LOAN PARTY AS DELIVERED
PURSUANT TO SECTION 4.1(A)(I) OF THE CREDIT AGREEMENT AND (B) TO THE EFFECT THAT
EACH LOAN PARTY IS IN GOOD STANDING IN ITS JURISDICTION OF INCORPORATION,
ORGANIZATION OR FORMATION;
4.1.2
SIGNATURE AND INCUMBENCY CERTIFICATES OF THE
OFFICERS OF SUCH LOAN PARTY EXECUTING THE LOAN DOCUMENTS TO WHICH IT IS A PARTY,
DATED AS OF THE FIRST AMENDMENT EFFECTIVENESS DATE;
4.1.3
DULY ADOPTED RESOLUTIONS OF THE BOARD OF DIRECTORS
OR SIMILAR GOVERNING BODY OF EACH LOAN PARTY APPROVING AND AUTHORIZING THE
EXECUTION, DELIVERY AND PERFORMANCE OF THIS FIRST AMENDMENT, CERTIFIED AS OF THE
FIRST AMENDMENT EFFECTIVENESS DATE BY ITS SECRETARY OR ASSISTANT SECRETARY AS
BEING IN FULL FORCE AND EFFECT WITHOUT MODIFICATION OR AMENDMENT; AND
4.1.4
SUCH OTHER DOCUMENTS AS THE ADMINISTRATIVE AGENT
MAY REASONABLY REQUEST.
4.2
LOAN DOCUMENTS.
EACH LOAN PARTY, THE
SUPER-MAJORITY LENDERS AND THE ADMINISTRATIVE AGENT SHALL HAVE SIGNED A
COUNTERPART OF THIS FIRST AMENDMENT (WHETHER THE SAME OR DIFFERENT COUNTERPARTS)
AND SHALL HAVE DELIVERED THE SAME TO THE ADMINISTRATIVE AGENT.
4.3
OPINION OF COUNSEL.
THE ADMINISTRATIVE
AGENT AND THE LENDERS SHALL HAVE RECEIVED THE FAVORABLE WRITTEN OPINION OF
COUNSEL TO THE LOAN PARTIES, ACCEPTABLE TO THE ADMINISTRATIVE AGENT,
SUBSTANTIALLY IN THE FORM OF EXHIBIT C.
4.4
PAYMENT OF FEES AND EXPENSES.
THE LOAN
PARTIES SHALL HAVE PAID TO THE ADMINISTRATIVE AGENT ANY UNPAID BALANCE OF THE
FEES AND EXPENSES DUE AND PAYABLE BY THE LOAN PARTIES PURSUANT TO THE LOAN
DOCUMENTS.
4.5
CLOSING DOCUMENTS.
THE ADMINISTRATIVE AGENT
SHALL HAVE RECEIVED ALL DOCUMENTS REQUIRED BY THIS FIRST AMENDMENT SATISFACTORY
IN FORM AND SUBSTANCE TO THE ADMINISTRATIVE AGENT IN ITS EXCLUSIVE DISCRETION.
Section 5.
Representations and
Warranties.
Each Loan Party represents and warrants to the Lenders that:
5.1
AFTER GIVING EFFECT TO THE FIRST AMENDMENT,
THE AMENDMENT AND RESTATEMENT OF THE CREDIT AGREEMENT AND THE AMENDMENT OF THE
SECURITY AGREEMENT, THE
REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTY
CONTAINED IN SECTION 3 OF THE CREDIT AGREEMENT ARE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS ON AND AS OF THE DATE HEREOF AS IF SUCH REPRESENTATIONS