Common use of Conditions Precedent to Each Funding Date Clause in Contracts

Conditions Precedent to Each Funding Date. In addition to the conditions in Section 3.1(a), Lessor shall have no obligation to purchase any Component or acquire any Item of Equipment and lease it back to Lessee on a Funding Date (including on the Closing Date if applicable) unless on such Funding Date the following conditions are fulfilled: (i) There shall exist no Lease Default or Lease Event of Default and all representations and warranties of Lessee and Guarantor contained herein and in the other Operative Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such Funding Date except to the extent made as of an earlier date. (ii) Such Item of Equipment conforms to the requirements set forth in Schedule 1 hereto. (iii) Such Component or Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (iv) The Acquisition Cost of such Component or such Item of Equipment when added to the total Acquisition Cost of all Items of Equipment theretofore financed hereunder and all Equipment to be financed on the same Funding Date, is less than or equal to the Maximum Acquisition Cost. (v) Lessor and the Administrative Agent shall have received at least three (3) Business Days prior to the date the Funding Notice for such funding is due, a Certificate of Equipment with respect to such Component or Item, duly executed by the Lessee. (vi) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (A) in connection with Lessor's rights and interests in such Item of Equipment to the extent such licenses, registrations, permits, consents or approvals are required because of the nature of the Equipment and (B) in connection with the delivery, acquisition, assembly, use and operation of such Item of Equipment shall have been obtained to the satisfaction of Lessor. (vii) Lessee shall have paid all of the reasonable costs and expenses incurred by Trust Company, Lessor, Deutsche Bank as Lender and Certificate Holder, the Administrative Agent and the Collateral Agent (including attorneys' fees), and required to be paid by Lessee under the Operative Documents (including those in relation to the negotiation, preparation and execution of the Operative Documents to be executed and delivered on or before such Funding Date) and all fees and amounts due on or before such Funding Date, including those set forth in the Administrative Agent Fee Letter, in each case invoiced at least one day prior to such Funding Date. (viii) Lessor shall have received the proceeds of the Loans contemplated by the relevant Funding Notice. (ix) Lessor shall have received from the Certificate Holders an amount equal to the aggregate Equity Components of such Components and/or Items of Equipment. (x) The Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee. (xi) Lessor, Certificate Holders, the Administrative Agent and the Collateral Agent shall have received an insurance certificate in form and substance satisfactory to the Administrative Agent confirming that such Item of Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (xii) Lessee shall have delivered to the Administrative Agent and Lessor a Lease Agreement Supplement for such Component or Item of Equipment. (xiii) Lessee shall have executed and delivered to the Administrative Agent copies of the Lessee Financing Statements for such Components or Items of Equipment with evidence reasonably acceptable to Lessor that such have been recorded in the state in which such Item of Equipment is located and, if the law of such state requires financing statements to be filed in one or more local jurisdictions within such state, in such local jurisdiction. (xiv) At any time prior to such Funding Date, Lessor shall have received opinions of special counsel to Lessee addressed to the Administrative Agent, the Collateral Agent, and the Lenders in form and substance reasonably satisfactory to Lessor and the Administrative Agent with respect to the perfection of the interests of Lessor in Equipment located in the state in which such Item is located. (xv) The Administrative Agent and Lessor shall have received at any time prior to such Funding Date lien searches reasonably acceptable to them in form and substance in the name of Lessee and Guarantor searching the Uniform Commercial Code records of, with respect to Guarantor, the state of Texas, and with respect to Lessee, each state in which an Item of Equipment, and in states that require filings in local jurisdictions in order to perfect a security interest in an Item of Equipment, each such local jurisdiction, each indicating that, after the filing of those UCC release or termination statements, if any, executed and delivered by Lessee and all other relevant Persons to the Lessor and the Administrative Agent on or before the Closing Date, the representations set forth in -19- 26 Sections 2.2(d) and 2.3(o) will be accurate and complete in all respects to the extent determinable from such searches. (xvi) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer endorsements, powers of attorney, notes, reports and other assurances or instruments other than estoppel certificates or other agreements, certificates or other documents to be delivered by any Sublessee or other Person (other than an Affiliate of Lessee) in possession of any Item of Equipment and take such further actions which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted hereunder or which Lessor reasonably deems necessary or advisable in order to obtain the full benefits of the Liens created or intended to be created under the Lease Agreement, in form and substance satisfactory to Lessor, as Lessor may reasonably request in writing at least five (5) Business Days before such Funding Date.

Conditions Precedent to Each Funding Date. In addition to the conditions in Section 3.1(a), Lessor shall have no obligation to purchase any Component or acquire any Item of Equipment and lease it back to Lessee on a Funding Date (including on the Closing Date if applicable) unless on such Funding Date the following conditions are fulfilled: (i) There shall exist no Lease Default or Lease Event of Default and all representations and warranties of Lessee and Guarantor contained herein and in the other Operative Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such Funding Date except to the extent made as of an earlier date. (ii) Such Item of Equipment conforms to the requirements set forth in Schedule 1 hereto. (iii) Such Component or Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (iv) The Acquisition Cost of such Component or such Item of Equipment when added to the total Acquisition Cost of all Items of Equipment theretofore financed hereunder and all Equipment to be financed on the same Funding Date, is less than or equal to the Maximum Acquisition Cost. (v) Lessor and the Administrative Agent shall have received at least three (3) Business Days prior to the date the Funding Notice for such funding is due, a Certificate of Equipment with respect to such Component or Item, duly executed by the Lessee. (vi) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (A) in connection with Lessor's rights and interests in such Item of Equipment to the extent such licenses, registrations, permits, consents or approvals are required because of the nature of the Equipment and (B) in connection with the delivery, acquisition, assembly, use and operation of such Item of Equipment shall have been obtained to the satisfaction of Lessor. (vii) Lessee shall have paid all of the reasonable costs and expenses incurred by Trust Company, Lessor, Deutsche Bank as Lender and Certificate Holder, the Administrative Agent and the Collateral Agent (including attorneys' fees), and required to be paid by Lessee under the Operative Documents (including those in relation to the negotiation, preparation and execution of the Operative Documents to be executed and delivered on or before such Funding Date) and all fees and amounts due on or before such Funding Date, including those set forth in the Administrative Agent Fee Letter), in each case invoiced at least one day prior to such Funding Date. (viii) Lessor shall have received the proceeds of the Loans contemplated by the relevant Funding Notice. (ix) Lessor shall have received from the Certificate Holders an amount equal to the aggregate Equity Components of such Components and/or Items of Equipment. (x) The Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee. (xi) Lessor, Certificate Holders, the Administrative Agent and the Collateral Agent shall have received an insurance certificate in form and substance satisfactory to the Administrative Agent confirming that such Item of Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (xii) Lessee shall have delivered to the Administrative Agent and Lessor a Lease Agreement Supplement for such Component or Item of Equipment. (xiii) Lessee shall have executed and delivered to the Administrative Agent copies of the Lessee Financing Statements for such Components or Items of Equipment with evidence reasonably acceptable to Lessor that such have been recorded in the state in which such Item of Equipment is located and, if the law of such state requires financing statements to be filed in one or more local jurisdictions within such state, in such local jurisdiction. (xiv) At The Administrative Agent and Lessor shall have received at any time prior to such Funding Date, Lessor shall have received Date opinions of special counsel to Lessee addressed to the Administrative Agent, the Collateral Agent, and the Lenders in form and substance reasonably satisfactory to Lessor and the Administrative Agent with respect to the perfection of the interests of Lessor in Equipment located in the state in which such Item is located. (xv) The Administrative Agent and Lessor shall have received at any time prior to such Funding Date lien searches reasonably acceptable to them in form and substance in the name of Lessee and Guarantor searching the Uniform Commercial Code records of, with respect to Guarantor, the state State of Texas, and with respect to Lessee, each state in which an Item of Equipment, and in states that require filings in local jurisdictions in order to perfect a security interest in an Item of Equipment, each such local jurisdiction, each indicating that, after the filing of those UCC release or termination statements, if any, executed and delivered by Lessee and all other relevant Persons to the Lessor and the Administrative Agent on or before the Closing Date, the representations set forth in -19- 26 Sections 2.2(d) and 2.3(o2.3(p) will be accurate and complete in all respects to the extent determinable from such searches. (xvi) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer endorsements, powers of attorney, notes, reports endorsements and other assurances or instruments other than estoppel certificates or other agreements, certificates or other documents to be delivered by any Sublessee or other Person (other than an Affiliate of Lessee) in possession of any Item of Equipment and take such further actions which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted hereunder or which Lessor reasonably deems necessary or advisable in order to obtain the full benefits under Section 9 of the Liens created or intended to be created under the Lease Agreement, in form and substance satisfactory to Lessor, as Lessor may reasonably request in writing at least five (5) Business Days before such Funding Date.

Conditions Precedent to Each Funding Date. In addition The obligation of Lenders to make Loans hereunder in connection with any Borrowing is subject to satisfaction, or waiver by the conditions in Section 3.1(a)Administrative Agent, Lessor shall have no obligation to purchase any Component or acquire any Item of Equipment and lease it back to Lessee on a Funding Date (including on the Closing Date if applicable) unless on such Funding Date the following conditions are fulfilledconditions: (ia) There shall exist at the time of and immediately after giving effect to such Borrowing, no Lease Default or Lease Event of Default shall exist; (b) at the time of and immediately after giving effect to such Borrowing, all representations and warranties of Lessee and Guarantor contained herein and each Loan Party set forth in the other Operative Loan Documents shall be true and correct in all material respects with the same effect as though (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties had been made on shall be true and as of such Funding Date correct in all respects), except to the extent made as of that such representations and warranties specifically refer to an earlier date., in which case they shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) as of such earlier date; (iic) Such Item in the case of Equipment conforms to the requirements set forth in Schedule 1 hereto. (iii) Such Component or Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (iv) The Acquisition Cost of such Component or such Item of Equipment when added to the total Acquisition Cost of all Items of Equipment theretofore financed hereunder and all Equipment to be financed on the same initial Funding Date, is less than or equal to the Maximum Acquisition Cost.Effective Date shall have occurred; (vd) Lessor and receipt by the Administrative Agent shall have received at least three (3) Business Days prior to the date the Funding Notice for such funding is due, a Certificate of Equipment with respect to such Component or Item, duly executed by the Lessee.of: (vii) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (A) in connection with Lessor's rights and interests in such Item of Equipment to a solvency certificate from the extent such licenses, registrations, permits, consents or approvals are required because chief financial officer of the nature of the Equipment and (B) in connection with the delivery, acquisition, assembly, use and operation of such Item of Equipment shall have been obtained to the satisfaction of Lessor. (vii) Lessee shall have paid all of the reasonable costs and expenses incurred by Trust Company, Lessor, Deutsche Bank as Lender and Certificate Holder, the Administrative Agent and the Collateral Agent (including attorneys' fees), and required to be paid by Lessee under the Operative Documents (including those in relation to the negotiation, preparation and execution of the Operative Documents to be executed and delivered on or before such Funding Date) and all fees and amounts due on or before such Funding Date, including those set forth in the Administrative Agent Fee Letter, in each case invoiced at least one day prior to such Funding Date. (viii) Lessor shall have received the proceeds of the Loans contemplated by the relevant Funding Notice. (ix) Lessor shall have received from the Certificate Holders an amount equal to the aggregate Equity Components of such Components and/or Items of Equipment. (x) The Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee. (xi) Lessor, Certificate Holders, the Administrative Agent and the Collateral Agent shall have received an insurance certificate Borrower in form and substance satisfactory to the Administrative Agent confirming Agent; and (ii) a certificate from the chief financial officer of the Borrower certifying, (x) with respect to the Borrowing on the initial Funding Date, that such Item at least $150,000,000 of Equipment is insured the proceeds of Loans made on the initial Funding Date shall be applied in accordance connection with the provisions Transactions and (y) with respect to any subsequent Borrowing on a Funding Date, at least an amount equal to the lesser of Section 20 (I) $150,000,000 and (II) the Aggregate Bridge Commitment of the Lease Agreement.proceeds of Loans made on each other Funding Date shall be applied in connection with the Transactions; (xiie) Lessee the Borrower shall have delivered the required Notice of Borrowing; (f) the Borrower shall have paid all fees and expenses due to the Administrative Agent and Lessor a Lease Agreement Supplement for such Component or Item of Equipment. the Lenders required to be paid on the applicable Funding Date (xiii) Lessee shall have executed and delivered to including the Administrative Agent copies of the Lessee Financing Statements for such Components or Items of Equipment with evidence reasonably acceptable to Lessor that such have been recorded any fees specified in the state in which such Item Fee Letter and fees and expenses of Equipment is located and, if the law of such state requires financing statements to be filed in one or more local jurisdictions within such state, in such local jurisdiction. (xiv) At any time prior to such Funding Date, Lessor shall have received opinions of special counsel to Lessee addressed to for the Administrative Agent, ). Each Borrowing shall be deemed to constitute a representation and warranty by the Collateral Agent, and Borrower on the Lenders in form and substance reasonably satisfactory to Lessor and the Administrative Agent with respect date thereof as to the perfection of the interests of Lessor matters specified in Equipment located in the state in which such Item is located. paragraphs (xv) The Administrative Agent and Lessor shall have received at any time prior to such Funding Date lien searches reasonably acceptable to them in form and substance in the name of Lessee and Guarantor searching the Uniform Commercial Code records of, with respect to Guarantor, the state of Texas, and with respect to Lessee, each state in which an Item of Equipment, and in states that require filings in local jurisdictions in order to perfect a security interest in an Item of Equipment, each such local jurisdiction, each indicating that, after the filing of those UCC release or termination statements, if any, executed and delivered by Lessee and all other relevant Persons to the Lessor and the Administrative Agent on or before the Closing Date, the representations set forth in -19- 26 Sections 2.2(da) and 2.3(o(b) will be accurate and complete in all respects to the extent determinable from such searchesof this Section 3.2. (xvi) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer endorsements, powers of attorney, notes, reports and other assurances or instruments other than estoppel certificates or other agreements, certificates or other documents to be delivered by any Sublessee or other Person (other than an Affiliate of Lessee) in possession of any Item of Equipment and take such further actions which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted hereunder or which Lessor reasonably deems necessary or advisable in order to obtain the full benefits of the Liens created or intended to be created under the Lease Agreement, in form and substance satisfactory to Lessor, as Lessor may reasonably request in writing at least five (5) Business Days before such Funding Date.

Conditions Precedent to Each Funding Date. In addition The obligation of each Bank to honor a request for an Advance on any Funding Date during the Availability Period shall be subject to the conditions satisfaction or waiver in accordance with Section 3.1(a), Lessor shall have no obligation to purchase any Component or acquire any Item 11.01 of Equipment and lease it back to Lessee on a Funding Date (including on the Closing Date if applicable) unless on such Funding Date the following conditions are fulfilledprecedent: (ia) There The Effective Date shall exist no Lease Default or Lease Event of Default and all have occurred. (b) The representations and warranties contained in Section 7.01 (other than subsections (e)(i), (f) and (i) thereof) are correct in all material respects (or, if any such representation or warranty is qualified by materiality or material adverse effect, it is true and correct in all respects) on and as of Lessee the date of such Advance as though made on and Guarantor contained herein as of such date (except to the extent that such representations and warranties specifically refer to an earlier date, in the other Operative Documents which case, they shall be true and correct in all material respects with the same effect as though (or, if any such representations representation or warranty is qualified by materiality or material adverse effect, it is true and warranties had been made on and correct in all respects) as of such Funding Date except to the extent made as of an earlier date). (iic) Such Item No event has occurred and is continuing, or would result from such Advance (or from the application of Equipment conforms to the requirements set forth in Schedule 1 heretoproceeds therefrom), which constitutes an Event of Default or an Unmatured Event of Default. (iii) Such Component or Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (iv) The Acquisition Cost of such Component or such Item of Equipment when added to the total Acquisition Cost of all Items of Equipment theretofore financed hereunder and all Equipment to be financed on the same Funding Date, is less than or equal to the Maximum Acquisition Cost. (v) Lessor and the Administrative Agent shall have received at least three (3) Business Days prior to the date the Funding Notice for such funding is due, a Certificate of Equipment with respect to such Component or Item, duly executed by the Lessee. (vi) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (A) in connection with Lessor's rights and interests in such Item of Equipment to the extent such licenses, registrations, permits, consents or approvals are required because of the nature of the Equipment and (B) in connection with the delivery, acquisition, assembly, use and operation of such Item of Equipment shall have been obtained to the satisfaction of Lessor. (vii) Lessee shall have paid all of the reasonable costs and expenses incurred by Trust Company, Lessor, Deutsche Bank as Lender and Certificate Holder, the Administrative Agent and the Collateral Agent (including attorneys' fees), and required to be paid by Lessee under the Operative Documents (including those in relation to the negotiation, preparation and execution of the Operative Documents to be executed and delivered on or before such Funding Date) and all fees and amounts due on or before such Funding Date, including those set forth in the Administrative Agent Fee Letter, in each case invoiced at least one day prior to such Funding Date. (viii) Lessor shall have received the proceeds of the Loans contemplated by the relevant Funding Notice. (ix) Lessor shall have received from the Certificate Holders an amount equal to the aggregate Equity Components of such Components and/or Items of Equipment. (xd) The Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and of Borrowing, properly delivered by Lesseethe Borrower pursuant to Section 2.02. (xie) LessorNo more than two prior Funding Dates shall have occurred. Without limiting the generality of the provisions of Section 10.02, Certificate Holdersfor purposes of determining compliance with the conditions specified in this Section 6.02, each Bank that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Bank unless the Administrative Agent shall have received notice from such Bank prior to the applicable Funding Date specifying its objection thereto. Without limiting the Banks’ rights and remedies under Article IX hereunder, the making of the Advances shall conclusively be deemed to constitute an acknowledgement by the Administrative Agent and each Bank that each of the Collateral Agent conditions precedent set forth in this Section 6.02 shall have received an insurance certificate in form and substance satisfactory to the Administrative Agent confirming that such Item of Equipment is insured been satisfied in accordance with the provisions of Section 20 of the Lease Agreement. (xii) Lessee its respective terms or shall have delivered to the Administrative Agent and Lessor a Lease Agreement Supplement for been irrevocably waived by such Component or Item of EquipmentPerson. (xiii) Lessee shall have executed and delivered to the Administrative Agent copies of the Lessee Financing Statements for such Components or Items of Equipment with evidence reasonably acceptable to Lessor that such have been recorded in the state in which such Item of Equipment is located and, if the law of such state requires financing statements to be filed in one or more local jurisdictions within such state, in such local jurisdiction. (xiv) At any time prior to such Funding Date, Lessor shall have received opinions of special counsel to Lessee addressed to the Administrative Agent, the Collateral Agent, and the Lenders in form and substance reasonably satisfactory to Lessor and the Administrative Agent with respect to the perfection of the interests of Lessor in Equipment located in the state in which such Item is located. (xv) The Administrative Agent and Lessor shall have received at any time prior to such Funding Date lien searches reasonably acceptable to them in form and substance in the name of Lessee and Guarantor searching the Uniform Commercial Code records of, with respect to Guarantor, the state of Texas, and with respect to Lessee, each state in which an Item of Equipment, and in states that require filings in local jurisdictions in order to perfect a security interest in an Item of Equipment, each such local jurisdiction, each indicating that, after the filing of those UCC release or termination statements, if any, executed and delivered by Lessee and all other relevant Persons to the Lessor and the Administrative Agent on or before the Closing Date, the representations set forth in -19- 26 Sections 2.2(d) and 2.3(o) will be accurate and complete in all respects to the extent determinable from such searches. (xvi) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer endorsements, powers of attorney, notes, reports and other assurances or instruments other than estoppel certificates or other agreements, certificates or other documents to be delivered by any Sublessee or other Person (other than an Affiliate of Lessee) in possession of any Item of Equipment and take such further actions which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted hereunder or which Lessor reasonably deems necessary or advisable in order to obtain the full benefits of the Liens created or intended to be created under the Lease Agreement, in form and substance satisfactory to Lessor, as Lessor may reasonably request in writing at least five (5) Business Days before such Funding Date.

Conditions Precedent to Each Funding Date. In addition The obligation of Lenders to the conditions in Section 3.1(amake Advances hereunder on each Funding Date is subject to satisfaction, or waiver by each Lender hereunder (whether or not such Lender has a Commitment with respect to such date), Lessor shall have no obligation to purchase any Component or acquire any Item of Equipment and lease it back to Lessee on a Funding Date (including on the Closing Date if applicable) unless on such Funding Date the following conditions are fulfilledprecedent: (a) Administrative Agent and each Lender shall have received each of the following documents, duly executed, in each case, in form and substance reasonably satisfactory to Administrative Agent and each of Lenders: (i) There duly executed counterparts of the Settlement Agreement, dated on or prior to the relevant Funding Date; (ii) a solvency certificate of Borrower from an Authorized Representative thereof, dated as of the relevant Funding Date; (iii) the results of a recent Lien and judgment search in the jurisdiction of Borrower’s organization, and each such search shall exist reveal no Lease Default Liens on any of the assets of, or Lease Event judgments against, Borrower except for Permitted Liens; (iv) proper financing statements (Form UCC-1 or the equivalent) for filing under the UCC or other appropriate filing offices of Default each jurisdiction as may be necessary to perfect the security interests purported to be created by the Security Agreement; (v) FRB Form U-1, or such other FRB forms as applicable (as determined by the Administrative Agent), completed to satisfaction of Lenders and duly executed by Borrower; and (vi) any information or documentation reasonably requested by any Lender pursuant to Section 9.15. (b) On or prior to the relevant Funding Date, the Collateral Accounts for the Lenders making such Advances shall have been established by Borrower; Borrower shall have executed and delivered all account opening documentation required by Custodian; Custodian and Lender shall have completed any required “know your client” procedures; and, with respect to the First Funding Date, the First Tranche Shares shall have been credited to the Collateral Accounts, and with respect to the Second Funding Date, the Second Tranche Shares shall have been credited to the Collateral Accounts, concurrently with the payments set forth in the Settlement Agreement, in each case, on a Pro Rata Basis free from all Transfer Restrictions (other than Existing Transfer Restrictions) by book-entry transfer through DTC, as depositary; and the Collateral Requirement shall have been satisfied in all material respects; provided that, the First Tranche Shares and the Second Tranche Shares shall be deposited and held in accordance with the Share Segregation Condition. (c) All reasonable and documented out-of-pocket fees or expenses required to be paid under the Margin Loan Documentation on or before the relevant Funding Date, including the Upfront Fee and Undrawn Fee, or any analogous fee, as the case may be, and counsel fees invoiced at least one Business Day prior to such date, shall have been paid on or before such date, or, in the case of the Undrawn Fee or any analogous fee, Borrower shall have elected to net such amount against the relevant Advances hereunder. (d) Each of the representations and warranties of Lessee and Guarantor contained herein and in the other Operative Documents Margin Loan Documentation shall be true and correct in all material respects with (unless any such representation or warranty is qualified as to materiality, in which case it shall be true and correct in all respects) on and as of the same effect as though relevant Funding Date, except to the extent that such representations and warranties had been made on expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such Funding Date except date (unless any such representation or warranty is qualified as to the extent made materiality, in which case it shall be true and correct in all respects as of an earlier such date). (iie) Such Item No event or condition shall have resulted in, or could be reasonably expected to cause, either individually or in the aggregate, a Material Adverse Effect since the date hereof (provided that a decline in Share Collateral Value shall not, by itself, be deemed to constitute a Material Adverse Effect for this purpose). (f) Borrower shall have delivered to Administrative Agent a certificate from a Responsible Officer of Equipment conforms Borrower in form reasonably satisfactory to Administrative Agent, dated as of the requirements relevant Funding Date, which shall contain representations that the conditions set forth in Schedule 1 heretoSubsections (b), (d), (e), (g) and (h) of this Section 4.02 have been satisfied. (iiig) Such Component or Item Immediately after giving effect to each of Equipment is free the relevant Advances, (i) the LTV Ratio on the date of such Advances (but calculated for such purpose based on the relevant Reference Prices as of the second Scheduled Trading Day immediately preceding the relevant Funding Date) shall not exceed the LTV Margin Call Level, provided that if such LTV Ratio exceeds 50%, the LTPP Ratio on the date of such Advances shall not exceed 50%, and (ii) all Liens other than Permitted Liens types and Lessor Liensamounts of Collateral shall be held on a Pro Rata Basis. (ivh) The Acquisition Cost of such Component or such Item of Equipment when added to the total Acquisition Cost of all Items of Equipment theretofore financed hereunder and all Equipment to be financed on the same Funding Date, is less than or equal to the Maximum Acquisition Cost. (v) Lessor and the Administrative Agent No Mandatory Prepayment Event shall have received at least three (3) Business Days prior to the date the Funding Notice for such funding is dueoccurred that has not been cured or waived, a Certificate and no Default, Event of Equipment with respect to such Component Default or Item, duly executed by the Lessee. (vi) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (A) in connection with Lessor's rights and interests in such Item of Equipment to the extent such licenses, registrations, permits, consents or approvals are required because of the nature of the Equipment and (B) in connection with the delivery, acquisition, assembly, use and operation of such Item of Equipment Facility Adjustment Event shall have been obtained to the satisfaction of Lessor. (vii) Lessee shall have paid all of the reasonable costs occurred and expenses incurred by Trust Company, Lessor, Deutsche Bank as Lender and Certificate Holder, the Administrative Agent and the Collateral Agent (including attorneys' fees), and required to be paid by Lessee under the Operative Documents (including those in relation to the negotiation, preparation and execution of the Operative Documents to be executed and delivered on or before such Funding Date) and all fees and amounts due on or before such Funding Date, including those set forth in the Administrative Agent Fee Lettercontinuing, in each case invoiced at least one day prior to such Funding Date. (viii) Lessor shall have received the proceeds of the Loans contemplated by on the relevant Funding Notice. (ix) Lessor Date, and none of the foregoing shall have received result from such Advances or the Certificate Holders application of the proceeds therefrom and any related Collateral deliveries and any related Collateral releases. Each borrowing of an amount equal Advance shall be deemed to constitute a representation and warranty by Borrower on the date thereof as to the aggregate Equity Components of such Components and/or Items of Equipmentmatters specified in Subsections (a) through (i) above. (x) The Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee. (xi) Lessor, Certificate Holders, the Administrative Agent and the Collateral Agent shall have received an insurance certificate in form and substance satisfactory to the Administrative Agent confirming that such Item of Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (xii) Lessee shall have delivered to the Administrative Agent and Lessor a Lease Agreement Supplement for such Component or Item of Equipment. (xiii) Lessee shall have executed and delivered to the Administrative Agent copies of the Lessee Financing Statements for such Components or Items of Equipment with evidence reasonably acceptable to Lessor that such have been recorded in the state in which such Item of Equipment is located and, if the law of such state requires financing statements to be filed in one or more local jurisdictions within such state, in such local jurisdiction. (xiv) At any time prior to such Funding Date, Lessor shall have received opinions of special counsel to Lessee addressed to the Administrative Agent, the Collateral Agent, and the Lenders in form and substance reasonably satisfactory to Lessor and the Administrative Agent with respect to the perfection of the interests of Lessor in Equipment located in the state in which such Item is located. (xv) The Administrative Agent and Lessor shall have received at any time prior to such Funding Date lien searches reasonably acceptable to them in form and substance in the name of Lessee and Guarantor searching the Uniform Commercial Code records of, with respect to Guarantor, the state of Texas, and with respect to Lessee, each state in which an Item of Equipment, and in states that require filings in local jurisdictions in order to perfect a security interest in an Item of Equipment, each such local jurisdiction, each indicating that, after the filing of those UCC release or termination statements, if any, executed and delivered by Lessee and all other relevant Persons to the Lessor and the Administrative Agent on or before the Closing Date, the representations set forth in -19- 26 Sections 2.2(d) and 2.3(o) will be accurate and complete in all respects to the extent determinable from such searches. (xvi) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer endorsements, powers of attorney, notes, reports and other assurances or instruments other than estoppel certificates or other agreements, certificates or other documents to be delivered by any Sublessee or other Person (other than an Affiliate of Lessee) in possession of any Item of Equipment and take such further actions which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted hereunder or which Lessor reasonably deems necessary or advisable in order to obtain the full benefits of the Liens created or intended to be created under the Lease Agreement, in form and substance satisfactory to Lessor, as Lessor may reasonably request in writing at least five (5) Business Days before such Funding Date.