Common use of Lessor Conditions Clause in Contracts

Lessor Conditions. Lessor shall have no obligation to ------------------ acquire any Item of Equipment proposed by Lessee to be leased under the Lease Agreement on any Funding Date (with respect to any Funding Date, each such Item of Equipment to be so leased, a "Subject Item") and subject it to the Lease ------------ Agreement unless on or before such Funding Date each of the following conditions are fulfilled: (a) 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 as of such Funding Date. (b) Each Subject Item is reasonably acceptable to Lessor and Administrative Agent. (c) Each Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (d) The aggregate of the Acquisition Costs of each Subject Item is less than or equal to the Maximum Acquisition Cost for such Funding Date. (e) Lessor and Administrative Agent shall have received a Lessee Certificate, dated such Funding Date with respect to such Subject Item duly executed by a Responsible Officer of Lessee. (f) Lessor shall have received the related Participation Agreement Supplement, the related Lease Supplement, a Note Purchase Agreement or Underwriting Agreement for the Tranche A Notes to be first issued on such Funding Date in the aggregate equal to aggregate of Tranche A Components of all Subject Items to be first leased on such Funding Date, a Bill of Sale for each Subject Item, a Funding Escrow Agreement xxx each other agreement described under the heading "Additional Conditions Precedent" on the related Participation Agreement Supplement in each case duly authorized, executed and delivered by each other party thereto. (g) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (i) 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 (ii) in connection with the delivery, acquisition, use and operation of such Subject Item shall have been obtained to the satisfaction of Lessor. (h) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, resolutions of the board of directors of Lessee or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified as of such Funding Date by the secretary of Lessee, duly authorizing the execution, delivery and performance of this Agreement, the Lease Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Lessee. (i) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, resolutions of the board of directors of Guarantor or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified by the secretary of Guarantor as of such Funding Date, duly authorizing the execution, delivery and performance of the Participation Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Guarantor. (j) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, a certificate dated such Funding Date executed by a duly authorized officer of Lessee, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.1 and 2.1A are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (k) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, a certificate dated such Funding Date, executed by a duly authorized officer of Guarantor, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.2 are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (l) Lessor shall have received written opinions of Gardere Wynne Sewell LLP, counsel to Lessee and Guarantor, dated sucx Xxxxxxx Xxte and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (m) Lessor shall have received a written opinion of Mark Carlton, Esq., in-house counsel to Lessee and Guarantor, dxxxx xxxx Xxnding Date and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (n) Lessee shall have delivered a good standing certificate dated within five (5) days of such Funding Date from the State of Texas and state in which Lessee is incorporated and Guarantor shall have delivered a good standing certificate dated within five (5) days of such Funding Date from the State of Texas and state in which Guarantor is incorporated. (o) Lessor shall have received for each Subject Item on or before the Funding Date an Appraisal dated within thirty (30) days of such Funding Date confirming that the aggregate Acquisition Costs of such Subject Item and all other Subject Items is less than or equal to both the aggregate Initial Fair Market Values and the aggregate Residual Values of all Subject Items. (p) Lessee shall have paid all of the reasonable costs and expenses incurred by Lessor, Lessor General Partner, Indenture Trustee, Bankers Trust Company as Tranche B Lender, Administrative Agent and Collateral Agent (in each case including attorneys' fees), and required to be paid by Lessee under the Operative Documents, in each case invoiced at least one day prior to such Funding Date. (q) Lessor and Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee with the amounts to be funded by each Tranche B Lender with a commitment to make a Tranche B Loan on such date identified thereon. (r) Lessor shall have received the proceeds of the Tranche A Notes to be issued on such Funding Date as contemplated by the Note Purchase Agreement or Underwriting Agreement for such Tranche A Notes. (s) Lessor shall have received the proceeds of the Tranche B Loans set forth in the Funding Notice for such Funding Date. (t) Lessor shall have received from Limited Partners any amounts required of them in the Limited Partnership Agreement. (u) Lessor shall have received from Lessee payment of any Lease Premium due on such Funding Date or there shall be due and owing by Lessor to Lessee on such Funding Date an amount equal to or greater than such Lease Premium against which Lessor may credit in accordance with Section 7.13 of the Lease Agreement the full amount of such Lease Premium. (v) Lessor shall have received an insurance certificate in form and substance satisfactory to Lessor confirming that the Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (w) Administrative Agent shall have received the payment of all fees due on or before such Funding Date as may be set forth in the letter agreement between Administrative Agent and Lessee. (x) Lessee shall have executed and delivered to Administrative Agent Lessee Financing Statements for the Subject Items. (y) Lessor shall have received at any time prior to the Funding Date lien search results in form and substance reasonably acceptable to it searching the Uniform Commercial Code records of, with respect to Guarantor, the state of its incorporation and the State of Texas, and with respect to Lessee, the state of its incorporation, the State of Texas, each state in which a Subject Item is located, and in states that require filings in local jurisdictions in order to perfect a security interest in a Subject Item, 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 Administrative Agent on or before such Funding Date, the representations set forth in Section 2.1(l) will be accurate and complete in all respects to the extent determinable from such searches. (z) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer 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) which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted under Section 9 of 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. The leasing of each Item of Equipment by Lessee hereunder shall constitute a representation and warranty by Lessee as of the date such leasing commences that the conditions contained in Section 3.1 have been satisfied.

Lessor Conditions. Lessor shall have no obligation to ------------------ acquire any Item of Equipment proposed by Lessee to be leased under the Lease Agreement on any Funding Date (with respect to any Funding Date, each such Item of Equipment to be so leased, a "Subject Item") and subject it them to the Lease ------------ Agreement unless on or before such Funding the Closing Date each of the following conditions are fulfilled: (a) 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 as of such Funding Daterespects. (b) Each Subject Item of Equipment is reasonably acceptable to Lessor and Administrative AgentLessor. (c) Each Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (d) The aggregate of the Acquisition Costs of each Subject Item of Equipment is less than or equal to the Maximum Acquisition Cost for such Funding DateCost. (e) Lessor and Administrative Agent shall have received a Lessee Certificate, dated such Funding the Closing Date with respect to such Subject each Item and a written description of the Lease Maintenance Practices as of the Closing Date, each duly executed by a Responsible Officer of Lessee. (f) Lessor shall have received this Agreement, the related Participation Agreement Lease Agreement, the Lease Supplement, the related Lease Supplement, a Note Purchase Agreement or Underwriting Agreement for the sale of Tranche A Notes to be first issued on such Funding Date in the aggregate equal to aggregate of Tranche A Components of all Subject Items to be first leased on such Funding DateComponents, the Indenture, the Registration Rights Agreement, the Tranche B Loan Agreement, a Bill of xx Sale for each Subject ItemItem of Equipment, a Funding the Closing Escrow Agreement xxx each other agreement described under Agreement, and the heading "Additional Conditions Precedent" on the related Participation Agreement Supplement Lessor Margin Letter in each case duly authorized, executed and delivered by each other party thereto. (g) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (i) 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 (ii) in connection with the delivery, acquisition, use and operation of such Subject Item of Equipment shall have been obtained to the satisfaction of Lessor. (h) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, resolutions of the board of directors of Lessee or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified as of such Funding the Closing Date by the secretary of Lessee, duly authorizing the execution, delivery and performance of this Agreement, the Lease Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Lessee. (i) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, resolutions of the board of directors of Guarantor or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified by the secretary of Guarantor as of such Funding the Closing Date, duly authorizing the execution, delivery and performance of the Participation Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Guarantor. (j) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, a certificate dated such Funding Date executed by a duly authorized officer of Lessee, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.1 and 2.1A are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (k) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, a certificate dated such Funding Date, executed by a duly authorized officer of Guarantor, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.2 are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (l) Lessor shall have received written opinions of Gardere Wynne Sewell LLPWynnx Xxxxxx XXX, counsel to Lessee and Guarantor, dated sucx Xxxxxxx Xxte and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (m) Lessor shall have received a written opinion of Mark Carlton, Esq., in-house counsel to Lessee and Guarantor, dxxxx xxxx Xxnding Closing Date and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (nk) Lessor shall have received a written opinion of Mark Xxxxxxx, Xxq., in-house counsel to Lessee and Guarantor, dated the Closing Date and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (l) Lessee shall have delivered a good standing certificate dated within five (5) days of such Funding the Closing Date from the State of Texas and state in which Lessee is incorporated and Guarantor shall have delivered a good standing certificate dated within five (5) days of such Funding the Closing Date from the State of Texas and state in which Guarantor is incorporated. (om) Lessor shall have received for each Subject Item on or before the Funding Date of Equipment an Appraisal dated within thirty (30) days of such Funding the Closing Date confirming that the aggregate Acquisition Costs of such Subject Item of Equipment and all other Subject Items of Equipment is less than or equal to both the aggregate Initial Fair Market Values and the aggregate Residual Values of all Subject ItemsItems of Equipment. (pn) Lessee shall have paid all of the reasonable costs and expenses incurred by Lessor, Lessor General Partner, Indenture Trustee, Bankers Trust Company as Tranche B Lender, Administrative Agent and Collateral Agent (in each case including attorneys' fees), and required to be paid by Lessee under the Operative Documents, in each case invoiced at least one day prior to such Funding the Closing Date. (qo) Lessor and Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Closing Date a Funding Notice executed and delivered by Lessee with the amounts to be funded by each Tranche B Lender with a commitment to make a Tranche B Loan on such date identified thereonthereon executed and delivered by Lessee. (rp) Lessor shall have received the proceeds of the Tranche A Notes to be issued on such Funding Date as contemplated by the Note Purchase Agreement or Underwriting Agreement for such Tranche A NotesAgreement. (sq) Lessor shall have received the proceeds of the Tranche B Loans set forth in the Funding Notice for such Funding DateNotice. (tr) Lessor shall have received from Limited Partners any amounts required of them in the Limited Partnership Agreement. (u) Lessor shall have received from Lessee payment of any Lease Premium due on such Funding Date or there shall be due and owing by Lessor to Lessee on such Funding Date an amount equal to or greater than such Lease Premium against which Lessor may credit in accordance with Section 7.13 of the Lease Agreement the full amount of such Lease Premium. (vs) Lessor shall have received an insurance certificate in form and substance satisfactory to Lessor confirming that the Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (wt) Administrative Agent shall have received the payment of all fees due on or before such Funding the Closing Date as may be set forth in the letter agreement between Administrative Agent and Lessee. (xu) Lessee shall have executed and delivered to Administrative Agent Lessee Financing Statements for each Item of Equipment for recordation in Texas and in each state in which any Item of Equipment is located and, if the Subject Itemslaw of such state requires financing statements to be filed in one or more local jurisdictions within such state, in such local jurisdiction. (yv) Lessor shall have received at any time prior to the Funding Closing Date lien search results in form and substance reasonably acceptable to it searching the Uniform Commercial Code records of, with respect to Guarantor, the state of its incorporation and the State of Texas, and with respect to Lessee, the state of its incorporation, the State of Texas, each state in which a Subject an Item of Equipment is located, and in states that require filings in local jurisdictions in order to perfect a security interest in a Subject Iteman 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 Administrative Agent on or before such Funding the Closing Date, the representations set forth in Section 2.1(l) will be accurate and complete in all respects to the extent determinable from such searches. (zw) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer 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) which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted under Section 9 of 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 the Closing Date. (x) The Revolver shall have become effective and the Asset Backed Securities shall have been issued. The leasing of each Item of Equipment by Lessee hereunder shall constitute a representation and warranty by Lessee as of the date such leasing commences that the conditions contained in Section 3.1 have been satisfied.

Lessor Conditions. Lessor shall have no obligation to ------------------ acquire any Item of Equipment proposed by Lessee to be leased under the Lease Agreement on any Funding Date (with respect to any Funding Date, each such Item of Equipment to be so leased, a "Subject Item") and subject it to the Lease ------------ Agreement unless on or before such Funding Date each of the following conditions are fulfilled: (a) 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 as of such Funding Date. (b) Each Subject Item is reasonably acceptable to Lessor and Administrative Agent. (c) Each Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (d) The aggregate of the Acquisition Costs of each Subject Item is less than or equal to the Maximum Acquisition Cost for such Funding Date. (e) Lessor and Administrative Agent shall have received a Lessee Certificate, dated such Funding Date with respect to such Subject Item duly executed by a Responsible Officer of Lessee. (f) Lessor shall have received the related Participation Agreement Supplement, the related Lease Supplement, a Note Purchase Agreement or Underwriting Agreement for the Tranche A Notes to be first issued on such Funding Date in the aggregate equal to aggregate of Tranche A Components of all Subject Items to be first leased on such Funding Date, a Bill of Sale for each Subject Item, a Funding Escrow Agreement xxx each other and eaxx xther agreement described under the heading "Additional Conditions Precedent" on the related Participation Agreement Supplement in each case duly authorized, executed and delivered by each other party thereto. (g) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (i) 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 (ii) in connection with the delivery, acquisition, use and operation of such Subject Item shall have been obtained to the satisfaction of Lessor. (h) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, resolutions of the board of directors of Lessee or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified as of such Funding Date by the secretary of Lessee, duly authorizing the execution, delivery and performance of this Agreement, the Lease Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Lessee. (i) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, resolutions of the board of directors of Guarantor or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified by the secretary of Guarantor as of such Funding Date, duly authorizing the execution, delivery and performance of the Participation Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Guarantor. (j) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, a certificate dated such Funding Date executed by a duly authorized officer of Lessee, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.1 and 2.1A are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (k) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, a certificate dated such Funding Date, executed by a duly authorized officer of Guarantor, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.2 are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (l) Lessor shall have received written opinions of Gardere Wynne Sewell LLP, counsel to Lessee and Guarantor, dated sucx Xxxxxxx Xxte and addressed such Funding Xxxx xxx xxdressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (m) Lessor shall have received a written opinion of Mark Carlton, Esq., in-house counsel to Lessee and Guarantor, dxxxx xxxx Xxnding dated sxxx Xxxxxxx Date and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (n) Lessee shall have delivered a good standing certificate dated within five (5) days of such Funding Date from the State of Texas and state in which Lessee is incorporated and Guarantor shall have delivered a good standing certificate dated within five (5) days of such Funding Date from the State of Texas and state in which Guarantor is incorporated. (o) Lessor shall have received for each Subject Item on or before the Funding Date an Appraisal dated within thirty (30) days of such Funding Date confirming that the aggregate Acquisition Costs of such Subject Item and all other Subject Items is less than or equal to both the aggregate Initial Fair Market Values and the aggregate Residual Values of all Subject Items. (p) Lessee shall have paid all of the reasonable costs and expenses incurred by Lessor, Lessor General Partner, Indenture Trustee, Bankers Trust Company as Tranche B Lender, Administrative Agent and Collateral Agent (in each case including attorneys' fees), and required to be paid by Lessee under the Operative Documents, in each case invoiced at least one day prior to such Funding Date. (q) Lessor and Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee with the amounts to be funded by each Tranche B Lender with a commitment to make a Tranche B Loan on such date identified thereon. (r) Lessor shall have received the proceeds of the Tranche A Notes to be issued on such Funding Date as contemplated by the Note Purchase Agreement or Underwriting Agreement for such Tranche A Notes. (s) Lessor shall have received the proceeds of the Tranche B Loans set forth in the Funding Notice for such Funding Date. (t) Lessor shall have received from Limited Partners any amounts required of them in the Limited Partnership Agreement. (u) Lessor shall have received from Lessee payment of any Lease Premium due on such Funding Date or there shall be due and owing by Lessor to Lessee on such Funding Date an amount equal to or greater than such Lease Premium against which Lessor may credit in accordance with Section 7.13 of the Lease Agreement the full amount of such Lease Premium. (v) Lessor shall have received an insurance certificate in form and substance satisfactory to Lessor confirming that the Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (w) Administrative Agent shall have received the payment of all fees due on or before such Funding Date as may be set forth in the letter agreement between Administrative Agent and Lessee. (x) Lessee shall have executed and delivered to Administrative Agent Lessee Financing Statements for the Subject Items. (y) Lessor shall have received at any time prior to the Funding Date lien search results in form and substance reasonably acceptable to it searching the Uniform Commercial Code records of, with respect to Guarantor, the state of its incorporation and the State of Texas, and with respect to Lessee, the state of its incorporation, the State of Texas, each state in which a Subject Item is located, and in states that require filings in local jurisdictions in order to perfect a security interest in a Subject Item, 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 Administrative Agent on or before such Funding Date, the representations set forth in Section 2.1(l) will be accurate and complete in all respects to the extent determinable from such searches. (z) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer 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) which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted under Section 9 of 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. The leasing of each Item of Equipment by Lessee hereunder shall constitute a representation and warranty by Lessee as of the date such leasing commences that the conditions contained in Section 3.1 have been satisfied.under

Lessor Conditions. Lessor shall have no obligation to ------------------ acquire any Item of Equipment proposed by Lessee to be leased under the Lease Agreement on any Funding Date (with respect to any Funding Date, each such Item of Equipment to be so leased, a "Subject Item") and subject it them to the Lease ------------ Agreement unless on or before such Funding the Closing Date each of the following conditions are fulfilled: (a) 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 as of such Funding Daterespects. (b) Each Subject Item of Equipment is reasonably acceptable to Lessor and Administrative AgentLessor. (c) Each Item of Equipment is free of all Liens other than Permitted Liens and Lessor Liens. (d) The aggregate of the Acquisition Costs of each Subject Item of Equipment is less than or equal to the Maximum Acquisition Cost for such Funding DateCost. (e) Lessor and Administrative Agent shall have received a Lessee Certificate, dated such Funding the Closing Date with respect to such Subject each Item and a written description of the Lease Maintenance Practices as of the Closing Date, each duly executed by a Responsible Officer of Lessee. (f) Lessor shall have received this Agreement, the related Participation Agreement Lease Agreement, the Lease Supplement, the related Lease Supplement, a Note Purchase Agreement or Underwriting Agreement for the sale of Tranche A Notes to be first issued on such Funding Date in the aggregate equal to aggregate of Tranche A Components of all Subject Items to be first leased on such Funding DateComponents, the Indenture, the Registration Rights Agreement, the Tranche B Loan Agreement, a Bill of xx Sale for each Subject ItemItem of Equipment, a Funding the Closing Escrow Agreement xxx each other agreement described under Agreement, and the heading "Additional Conditions Precedent" on the related Participation Agreement Supplement Lessor Margin Letter in each case duly authorized, executed and delivered by each other party thereto. (g) All licenses, registrations, permits, consents and approvals required by Applicable Laws or by any Governmental Entity (i) 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 (ii) in connection with the delivery, acquisition, use and operation of such Subject Item of Equipment shall have been obtained to the satisfaction of Lessor. (h) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, resolutions of the board of directors of Lessee or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified as of such Funding Date by the secretary of Lessee, duly authorizing the execution, delivery and performance of this Agreement, the Lease Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Lessee. (i) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, resolutions of the board of directors of Guarantor or other written evidence of appropriate corporate action, and the certificate of incorporation and by-laws, each certified by the secretary of Guarantor as of such Funding Date, duly authorizing the execution, delivery and performance of the Participation Agreement and each other document to be delivered in connection therewith to which it is a party, together with an incumbency certificate as to the person or persons authorized to execute and deliver such documents on behalf of Guarantor. (j) Lessor shall have received from Lessee, in form and substance satisfactory to Lessor, a certificate dated such Funding Date executed by a duly authorized officer of Lessee, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.1 and 2.1A are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (k) Lessor shall have received from Guarantor, in form and substance satisfactory to Lessor, a certificate dated such Funding Date, executed by a duly authorized officer of Guarantor, the truth and accuracy of which shall be a condition to Lessor to acquire such Item of Equipment, confirming that each of the representations and warranties set forth in Section 2.2 are true and correct as if made on and as of such date except to the extent such representations and warranties expressly provide that they relate solely to an earlier date. (l) Lessor shall have received written opinions of Gardere Wynne Sewell LLP, counsel to Lessee and Guarantor, dated sucx Xxxxxxx Xxte and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (m) Lessor shall have received a written opinion of Mark Carlton, Esq., in-house counsel to Lessee and Guarantor, dxxxx xxxx Xxnding Date and addressed to Lessor, Indenture Trustee, the Initial Purchasers, each Tranche B Lender, Administrative Agent and Collateral Agent in form and substance reasonably satisfactory to Lessor. (n) Lessee shall have delivered a good standing certificate dated within five (5) days of such Funding Date from the State of Texas and state in which Lessee is incorporated and Guarantor shall have delivered a good standing certificate dated within five (5) days of such Funding Date from the State of Texas and state in which Guarantor is incorporated. (o) Lessor shall have received for each Subject Item on or before the Funding Date an Appraisal dated within thirty (30) days of such Funding Date confirming that the aggregate Acquisition Costs of such Subject Item and all other Subject Items is less than or equal to both the aggregate Initial Fair Market Values and the aggregate Residual Values of all Subject Items. (p) Lessee shall have paid all of the reasonable costs and expenses incurred by Lessor, Lessor General Partner, Indenture Trustee, Bankers Trust Company as Tranche B Lender, Administrative Agent and Collateral Agent (in each case including attorneys' fees), and required to be paid by Lessee under the Operative Documents, in each case invoiced at least one day prior to such Funding Date. (q) Lessor and Administrative Agent shall have received at least three (3) LIBOR Banking Days before the Funding Date a Funding Notice executed and delivered by Lessee with the amounts to be funded by each Tranche B Lender with a commitment to make a Tranche B Loan on such date identified thereon. (r) Lessor shall have received the proceeds of the Tranche A Notes to be issued on such Funding Date as contemplated by the Note Purchase Agreement or Underwriting Agreement for such Tranche A Notes. (s) Lessor shall have received the proceeds of the Tranche B Loans set forth in the Funding Notice for such Funding Date. (t) Lessor shall have received from Limited Partners any amounts required of them in the Limited Partnership Agreement. (u) Lessor shall have received from Lessee payment of any Lease Premium due on such Funding Date or there shall be due and owing by Lessor to Lessee on such Funding Date an amount equal to or greater than such Lease Premium against which Lessor may credit in accordance with Section 7.13 of the Lease Agreement the full amount of such Lease Premium. (v) Lessor shall have received an insurance certificate in form and substance satisfactory to Lessor confirming that the Equipment is insured in accordance with the provisions of Section 20 of the Lease Agreement. (w) Administrative Agent shall have received the payment of all fees due on or before such Funding Date as may be set forth in the letter agreement between Administrative Agent and Lessee. (x) Lessee shall have executed and delivered to Administrative Agent Lessee Financing Statements for the Subject Items. (y) Lessor shall have received at any time prior to the Funding Date lien search results in form and substance reasonably acceptable to it searching the Uniform Commercial Code records of, with respect to Guarantor, the state of its incorporation and the State of Texas, and with respect to Lessee, the state of its incorporation, the State of Texas, each state in which a Subject Item is located, and in states that require filings in local jurisdictions in order to perfect a security interest in a Subject Item, 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 Administrative Agent on or before such Funding Date, the representations set forth in Section 2.1(l) will be accurate and complete in all respects to the extent determinable from such searches. (z) Lessor shall have received such other confirmatory assignments, conveyances, financing and continuation statements, transfer 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) which Lessor may reasonably request to perfect, preserve or protect Lessor's security interest granted under Section 9 of 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. The leasing of each Item of Equipment by Lessee hereunder shall constitute a representation and warranty by Lessee as of the date such leasing commences that the conditions contained in Section 3.1 have been satisfied.