ARTICLE III
[RESERVED]
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Credit Party represents and warrants to the Lenders that: (it being
understood and agreed that with respect to the Effective Date such
representations and warranties are deemed to be made concurrently with and after
giving effect to the consummation of the Transactions):
SECTION 4.01.
ORGANIZATION; POWERS. EACH CREDIT
PARTY IS DULY ORGANIZED, VALIDLY EXISTING AND 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, 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 SUCH QUALIFICATION IS REQUIRED.
SECTION 4.02.
AUTHORIZATION; ENFORCEABILITY. THE
TRANSACTIONS ARE WITHIN EACH CREDIT PARTY'S CORPORATE, LIMITED LIABILITY COMPANY
OR PARTNERSHIP POWERS AND HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE,
LIMITED LIABILITY COMPANY OR PARTNERSHIP AND, IF REQUIRED, STOCKHOLDER ACTION.
THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY EACH CREDIT PARTY AND
CONSTITUTES A LEGAL, VALID AND BINDING OBLIGATION OF EACH CREDIT PARTY,
ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE BANKRUPTCY,
INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS
GENERALLY AND SUBJECT TO GENERAL PRINCIPLES OF EQUITY, REGARDLESS OF WHETHER
CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW.
SECTION 4.03.
GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE TRANSACTIONS (A) DO NOT REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR
FILING WITH, OR ANY OTHER ACTION BY, ANY GOVERNMENTAL AUTHORITY, EXCEPT SUCH AS
HAVE BEEN OBTAINED OR MADE AND ARE IN FULL FORCE AND EFFECT AND, AFTER THE
EFFECTIVE DATE, IN THE CASE OF EXCO, THE FILING OF THIS AGREEMENT AND RELATED
LOAN DOCUMENTS BY EXCO WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
THE REQUIREMENTS OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, (B) WILL
NOT VIOLATE ANY APPLICABLE LAW OR REGULATION OR THE CHARTER, BY-LAWS OR OTHER
ORGANIZATIONAL DOCUMENTS OF THE BORROWER OR ANY RESTRICTED SUBSIDIARY OR ANY
ORDER OF ANY GOVERNMENTAL AUTHORITY, (C) WILL NOT VIOLATE OR RESULT IN A DEFAULT
UNDER ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT EVIDENCING MATERIAL
INDEBTEDNESS, OR GIVE RISE TO A RIGHT THEREUNDER TO REQUIRE ANY PAYMENT TO BE
MADE BY THE BORROWER OR ANY RESTRICTED SUBSIDIARY, AND (D) WILL NOT RESULT IN
THE CREATION OR IMPOSITION OF ANY LIEN ON ANY ASSET OF THE BORROWER OR ANY
RESTRICTED SUBSIDIARY NOT OTHERWISE PERMITTED UNDER SECTION 7.02.
SECTION 4.04.
FINANCIAL CONDITION; NO MATERIAL
ADVERSE CHANGE.
(A)
THE BORROWER HAS HERETOFORE FURNISHED TO
THE LENDERS THE UNAUDITED CONSOLIDATED BALANCE SHEET AND RELATED STATEMENTS OF
INCOME AND CASH FLOWS OF THE BORROWER AND ITS CONSOLIDATED SUBSIDIARIES FOR
(I) THE TWELVE (12) MONTH PERIOD ENDING
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DECEMBER 31, 2007 AND (II) THE NINE (9) MONTH PERIOD ENDING SEPTEMBER 30, 2008.
SUCH FINANCIAL STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE
FINANCIAL POSITION AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE