AGENT OR LENDERS IN ORDER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED
HEREUNDER.
4.2
Availability of Letters of Credit and Tri-Party Agreements.
The
agreement of the Lenders to cause Agent to issue any Letter of Credit or
Tri-Party Agreement is subject to the following conditions precedent, any of
which may be waived by the Agent, at its sole discretion:
4.2.1
THE REQUESTING BORROWER SHALL HAVE DELIVERED TO AGENT EXECUTED
(AND, IF NECESSARY, NOTARIZED) COPIES OF THE FOLLOWING (ALL OF WHICH SHALL BE IN
A FORM AND CONTAIN SUCH TERMS AS SHALL BE ACCEPTABLE TO THE LENDER, IN ITS SOLE
DISCRETION):
A LETTER OF CREDIT APPLICATION, IF REQUIRED.
COPIES OF ALL FINANCIAL SECURITY AGREEMENTS, DEVELOPMENT AGREEMENTS
OR SIMILAR DOCUMENTS, UNDER WHICH THE OBLIGATIONS OF THE REQUESTING BORROWER ARE
TO BE SECURED BY THE REQUESTED LETTER OF CREDIT OR TRI-PARTY AGREEMENT.
SUCH
DOCUMENTS MUST BE IN A FORM SATISFACTORY TO THE AGENT.
SUCH OTHER INFORMATION AND DOCUMENTS THAT AGENT MAY REASONABLY
REQUEST.
IT IS UNDERSTOOD THAT THE FAILURE OF AGENT TO DEMAND A CERTAIN TYPE OF
INFORMATION OR DOCUMENT IN REGARD TO THE ISSUANCE OF A LETTER OF CREDIT OR
TRI-PARTY AGREEMENT WILL NOT CONSTITUTE A WAIVER BY AGENT OF ITS RIGHT TO DEMAND
THAT TYPE OF INFORMATION OR DOCUMENT IN THE FUTURE.
4.2.2
THE PROJECT FOR WHICH THE LETTER OF CREDIT OR TRI-PARTY AGREEMENT
HAS BEEN REQUESTED IS IN AN APPROVED JURISDICTION.
4.2.3
ON THE DATE OF ISSUANCE OF SUCH LETTER OF CREDIT OR TRI-PARTY
AGREEMENT, ALL CONDITIONS PRECEDENT DESCRIBED IN SUBSECTION 4.3 SHALL BE
SATISFIED TO THE SAME EXTENT AS IF THE ISSUANCE OF SUCH LETTER OF CREDIT OR
TRI-PARTY AGREEMENT WERE THE MAKING OF A LOAN AND THE DATE OF ISSUANCE OF SUCH
LETTER OF CREDIT OR TRI-PARTY AGREEMENT WERE A FUNDING DATE.
4.3
Conditions Precedent to Loans.
The obligation of any Lender to
make any Loan, or of Swing Line Lender to make any Swing Line Loan, shall be
subject to the further conditions precedent that, on the Funding Date:
4.3.1
ALL OF THE CONDITIONS, AGREEMENTS AND COVENANTS SET FORTH IN THIS
AGREEMENT TO BE SATISFIED ON OR BEFORE THE FUNDING DATE BY ANY BORROWER OR ANY
GUARANTOR HAVE BEEN SATISFIED.
44
4.3.2
NO EVENT OF DEFAULT SPECIFIED HEREIN OR IN ANY OTHER LOAN DOCUMENT
SHALL HAVE OCCURRED AND BE CONTINUING.
4.3.3
THE REPRESENTATIONS AND WARRANTIES OF THE BORROWERS AND GUARANTOR
HEREIN OR IN ANY OF THE LOAN DOCUMENTS SHALL BE TRUE ON AND AS OF THE DATE OF
THE LOAN OR SWING LINE LOAN WITH THE SAME FORCE AND EFFECT AS IF MADE ON AND AS
OF SUCH DATE, EXCEPT FOR THOSE THAT RELATE TO A SPECIFIC DATE OR THOSE WHICH
CANNOT BE MADE DUE TO CHANGES IN CIRCUMSTANCES OF WHICH BORROWERS HAVE GIVEN
NOTICE TO AGENT AND WHICH WOULD NOT, BUT FOR DELIVERY OF NOTICE OR PASSAGE OF
TIME, OR BOTH, CONSTITUTE AN EVENT OF DEFAULT, AND THE BORROWERS SHALL SO
CERTIFY TO AGENT.
4.3.4
NO LITIGATION (INCLUDING, WITHOUT LIMITATION, DERIVATIVE ACTIONS),
ARBITRATION PROCEEDINGS