IF ANY, TO BE DELIVERED
BY COMPANY ON SUCH FUNDING DATE; AND
(V)
SUCH OTHER DOCUMENTS AS ADMINISTRATIVE AGENT OR LENDERS MAY
REASONABLY REQUEST.
B.
LENDERS SHALL HAVE RECEIVED ORIGINALLY EXECUTED COPIES OF ONE OR
MORE FAVORABLE WRITTEN OPINIONS OF PROSKAUER ROSE LLP, COUNSEL FOR LOAN PARTIES,
OR OTHER COUNSEL REASONABLY SATISFACTORY TO SUCH LENDERS, IN FORM AND SUBSTANCE
REASONABLY SATISFACTORY TO SUCH LENDERS, DATED AS OF SUCH FUNDING DATE AND
SETTING FORTH SUBSTANTIALLY THE MATTERS IN THE OPINIONS DESIGNATED IN EXHIBIT
VIII ANNEXED HERETO AND AS LENDERS MAY REASONABLY REQUEST (THIS AGREEMENT
CONSTITUTING A WRITTEN REQUEST BY COMPANY TO SUCH COUNSEL TO DELIVER SUCH
OPINIONS TO LENDERS).
C.
THERE SHALL HAVE OCCURRED SINCE DECEMBER 30, 2006, NO MATERIAL
ADVERSE CHANGE IN THE BUSINESS, OPERATIONS, LIABILITIES, PROPERTIES, ASSETS OR
FINANCIAL CONDITION OF HOLDINGS, COMPANY AND ITS SUBSIDIARIES, TAKEN AS A WHOLE.
4.4
CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the applicable
Issuing Lender is obligated to issue such Letter of Credit) is subject to the
following conditions precedent:
A.
ON OR BEFORE THE DATE OF ISSUANCE OF THE INITIAL LETTER OF CREDIT
PURSUANT TO THIS AGREEMENT, THE INITIAL LOANS SHALL HAVE BEEN MADE.
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B.
ON OR BEFORE THE DATE OF ISSUANCE OF SUCH LETTER OF CREDIT,
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED, IN ACCORDANCE WITH THE PROVISIONS OF
SUBSECTION 3.1B(I), AN ORIGINALLY EXECUTED L/C APPLICATION (OR A FACSIMILE OR
.PDF COPY THEREOF) IN EACH CASE SIGNED BY A DULY AUTHORIZED OFFICER OF COMPANY,
TOGETHER WITH ALL OTHER INFORMATION SPECIFIED IN SUBSECTION 3.1B(I) AND SUCH
OTHER DOCUMENTS OR INFORMATION AS THE APPLICABLE ISSUING LENDER MAY REASONABLY
REQUIRE IN CONNECTION WITH THE ISSUANCE OF SUCH LETTER OF CREDIT.
C.
ON THE DATE OF ISSUANCE OF SUCH LETTER OF CREDIT, ALL CONDITIONS
PRECEDENT DESCRIBED IN SUBSECTION 4.2B SHALL BE SATISFIED TO THE SAME EXTENT AS
IF THE ISSUANCE OF SUCH LETTER OF CREDIT WERE THE MAKING OF A LOAN AND THE DATE
OF ISSUANCE OF SUCH LETTER OF CREDIT WERE A FUNDING DATE.
D.
ADMINISTRATIVE AGENT SHALL HAVE RECEIVED THE TIMELY DELIVERY OF
THE MOST RECENT BORROWING BASE CERTIFICATE (DATED AS CONTEMPLATED IN SUBSECTION
6.1(XII)) REQUIRED TO BE DELIVERED HEREUNDER.
SECTION 5.
COMPANY'S AND HOLDINGS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the Loans,
to induce Issuing Lenders to issue Letters of Credit and to induce Revolving
Lenders to purchase participations therein, Company and Holdings represent and
warrant to Administrative Agent and each Lender:
5.1
ORGANIZATION, POWERS, QUALIFICATION, GOOD
STANDING, BUSINESS AND SUBSIDIARIES.
A.
ORGANIZATION AND POWERS.
EACH OF HOLDINGS AND COMPANY IS A
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF ITS JURISDICTION OF INCORPORATION OR ORGANIZATION AS SPECIFIED IN SCHEDULE
5.1 ANNEXED HERETO.
EACH OF HOLDINGS AND COMPANY HAS ALL REQUISITE POWER AND
AUTHORITY TO OWN AND OPERATE ITS PROPERTIES, TO CARRY ON ITS BUSINESS AS NOW
CONDUCTED AND AS PROPOSED TO BE CONDUCTED, TO ENTER INTO