or extension of a Letter of
Credit:
(A)
NOTICE OF LAST OUT TERM BORROWING; NOTICE
OF REVOLVING CREDIT BORROWING; NOTICE OF SWINGLINE BORROWING; LETTER OF CREDIT
REQUEST.
THE FOLLOWING STATEMENTS SHALL BE TRUE IN ALL MATERIAL RESPECTS (AND
EACH OF THE GIVING OF THE APPLICABLE NOTICE OF REVOLVING CREDIT BORROWING,
NOTICE OF SWINGLINE BORROWING, LETTER OF CREDIT REQUEST, OR THE DEEMED GIVING OF
THE NOTICE OF LAST OUT TERM BORROWING PURSUANT TO SECTION 2.02(A), AND THE
ACCEPTANCE BY THE BORROWER OF THE PROCEEDS OF SUCH BORROWING OR THE ISSUANCE OF
SUCH LETTER OF CREDIT OR THE RENEWAL OR EXTENSION OF SUCH LETTER OF CREDIT SHALL
CONSTITUTE A REPRESENTATION AND WARRANTY BY THE BORROWER THAT BOTH ON THE DATE
OF SUCH NOTICE AND ON THE DATE OF SUCH BORROWING OR ISSUANCE OR RENEWAL SUCH
STATEMENTS ARE TRUE):
(i)
the representations and warranties
contained in each Loan Document are correct in all material respects on and as
of such date, before and after giving effect to such Borrowing or issuance or
renewal and to the application of the proceeds therefrom, as though made on and
as of such date, other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of such Borrowing or
issuance or renewal, in which case, as of such specific date; and
86
(ii)
no event has occurred and is continuing,
or would result from such Borrowing or issuance or renewal or from the
application of the proceeds therefrom, that constitutes a Default.
(B)
ORDERS.
THE INTERIM BORROWING ORDER AND/OR
THE FINAL BORROWING ORDER SHALL BE IN FULL FORCE AND EFFECT AND SHALL NOT HAVE
BEEN STAYED, REVERSED, AMENDED, MODIFIED OR VACATED WITHOUT THE CONSENT OF THE
INSTRUCTING GROUP.
(C)
ANTI-CASH HOARDING CONDITION.
AT THE TIME
OF EACH REVOLVING CREDIT BORROWING (BUT NOT THE TIME OF EACH ISSUANCE OR RENEWAL
OR EXTENSION), AND ALSO AFTER GIVING EFFECT THERETO, THE AGGREGATE AMOUNT OF
CASH AND CASH EQUIVALENTS (EXCLUDING CASH AND CASH EQUIVALENTS HELD IN EXCLUDED
ACCOUNTS) OWNED OR HELD BY THE BORROWER AND ITS SUBSIDIARIES (AS REFLECTED IN
THE BOOKS AND RECORDS OF THE BORROWER AND ITS SUBSIDIARIES AND DETERMINED AFTER
GIVING PRO FORMA EFFECT TO THE MAKING OF EACH SUCH REVOLVING CREDIT ADVANCE AND
THE APPLICATION OF THE PROCEEDS FROM SUCH REVOLVING CREDIT ADVANCE (TO THE
EXTENT THAT SUCH PROCEEDS ARE ACTUALLY UTILIZED BY THE BORROWER AND/OR ANY OF
ITS SUBSIDIARIES)) SHALL NOT EXCEED $10,000,000.
(D)
DELIVERY OF BORROWING BASE CERTIFICATE.
THE
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE MOST RECENT BORROWING BASE
CERTIFICATE, AS REQUIRED UNDER SECTION 5.03(M), EXCEPT THAT THE INITIAL
BORROWING BASE CERTIFICATE SHALL BE DELIVERED NO LATER THAN THE CLOSING DATE.
(E)
COMPLIANCE WITH BORROWING BASE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, IT SHALL BE A
CONDITION PRECEDENT TO EACH REVOLVING CREDIT BORROWING, OR ISSUANCE OR RENEWAL
OF A LETTER OF CREDIT, THAT AFTER GIVING EFFECT THERETO (AND THE USE OF THE
PROCEEDS THEREOF) THE AGGREGATE EXPOSURE WOULD NOT EXCEED THE BORROWING BASE