to the conditions set forth in Section 6.05 (Conditions to All Fundings
and Issuances), the obligation of each Working Capital Lender to make available
each Funding of its Working Capital Loans shall be subject to the fulfillment of
the following conditions precedent:
(a)
Timing. The initial Funding of the Construction Loans shall have
occurred or shall occur simultaneously with such Funding of Working Capital
Loans.
(b)
Funding Notice. The Administrative Agent shall have received (i) a
Working Capital Loan Funding Notice, as required by and in accordance with
Section 2.05 (Notice of Fundings), together with certified evidence of the
Working Capital Expenses then due and payable with respect to which such Funding
has been requested, and (ii) the most recent Borrowing Base Certificate required
to be delivered pursuant to Section 7.03(n) (Reporting Requirements - Borrowing
Base Certificate), executed by an Authorized Officer of the Borrower, together
with supporting schedules, which certificate shall be in form and substance
satisfactory to the Administrative Agent.
Section 6.05
Conditions to All Fundings and Issuances. The
obligation of each Lender to make available each Funding of its Loans and the
issuance of any Letter of Credit shall be subject to the fulfillment of the
following conditions precedent:
(a)
Borrower's Certifications. The Administrative Agent shall have
received a duly executed certificate of an Authorized Officer of the Borrower
certifying that:
(I)
THE BORROWER IS IN COMPLIANCE WITH ALL CONDITIONS SET
FORTH IN THIS SECTION 6.05 ON AND AS OF THE PROPOSED FUNDING DATE AND/OR
PROPOSED LETTER OF CREDIT ISSUANCE DATE, BEFORE AND AFTER GIVING EFFECT TO SUCH
(X) FUNDING AND TO THE APPLICATION OF THE PROCEEDS THEREFROM AND/OR (Y) LETTER
OF CREDIT ISSUANCE;
(II)
ALL REPRESENTATIONS AND WARRANTIES MADE BY EACH OF THE
BORROWER AND THE PLEDGORS IN THIS AGREEMENT AND EACH OF THE FINANCING DOCUMENTS
TO WHICH IT IS A PARTY ARE TRUE AND CORRECT ON AND AS OF
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such Funding Date and/or Proposed Letter of Credit Issuance Date (except with
respect to representations and warranties that expressly refer to an earlier
date), before and after giving effect to such (x) Funding and to the application
of the proceeds therefrom and/or (y) Letter of Credit issuance;
(III)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS
CONTINUING, OR WOULD RESULT FROM SUCH FUNDING AND/OR LETTER OF CREDIT ISSUANCE;
(IV)
SINCE OCTOBER 31, 2006, THERE HAS BEEN NO EVENT OR
OCCURRENCE THAT HAS HAD, OR WOULD REASONABLY BE EXPECTED TO HAVE, A MATERIAL
ADVERSE EFFECT; AND
(V)
THE BORROWER HAS NO REASON TO BELIEVE THAT THE CONVERSION
DATE WILL NOT OCCUR ON OR PRIOR TO THE CONVERSION DATE CERTAIN.
(b)
Government Approvals. The Administrative Agent shall have received
evidence reasonably satisfactory to it that:
(I)
ALL GOVERNMENTAL APPROVALS REQUIRED BY THE PROPOSED
FUNDING DATE AND/OR PROPOSED LETTER OF CREDIT ISSUANCE DATE FOR OPERATION OR
DEVELOPMENT OF THE PROJECT HAVE BEEN DULY OBTAINED, VALIDLY ISSUED, AND ARE IN
FULL FORCE AND EFFECT, FINAL AND NON-APPEALABLE;
(II)
ALL CONDITIONS IN ANY GOVERNMENTAL APPROVAL APPLICABLE
TO