Conditions Precedent to the Initial Credit Event. The obligations of the Lenders to make Loans hereunder or the obligation of the Issuing Banks to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied or waived in accordance with Section 9.02: (a) The Administrative Agent shall have received the following, and unless otherwise indicated below, each dated the Effective Date: (i) this Agreement executed by each party hereto, dated the Execution Date to be effective on the Effective Date; (ii) the KMEP Guaranty executed by KMEP, dated the Execution Date to be effective on the Effective Date; (iii) the ETP Guaranty executed by ETP, dated the Execution Date to be effective on the Effective Date; (iv) if requested by any Lender, a Committed Note executed by the Company and payable to the order of such Lender; (v) a certificate of an officer and of the secretary or an assistant secretary of the Company, certifying, inter alia (A) true and complete copies of each of the certificate of formation and the limited liability company agreement of the Company, each as amended and in effect, and the resolutions adopted by the Board of Managers of the Company (1) authorizing the execution, delivery and performance by the Company of this Agreement and the other Loan Documents and, the Borrowings to be made and the Letters of Credit to be issued hereunder, (2) approving the forms of the Loan Documents which will be delivered at or prior to the initial Borrowing Date and (3) authorizing officers of the Company (“Authorized Officers”) to execute and deliver the Loan Documents and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of the Company executing any documents on its behalf and (C) (1) that the representations and warranties made by the Company in each Loan Document to which it is a party and which will be delivered at or prior to the initial Borrowing Date are true and correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of the Company and (3) the absence of the occurrence and continuance of any Default or Event of Default with respect to the Company; (vi) a certificate of an officer and of the secretary or an assistant secretary of the KMEP Delegate, certifying, inter alia (A) true and complete copies of each of certificate of formation and limited liability company agreement of the KMEP Delegate, the certificate of incorporation and the bylaws, of the KMEP General Partner, the certificate of limited partnership and the limited partnership agreement of KMEP, each as amended and in effect, and the resolutions adopted by the KMEP Delegate (1) authorizing the execution, delivery and performance by KMEP of the KMEP Guaranty, (2) approving the forms of the KMEP Guaranty, and (3) authorizing officers of KMEP to execute and deliver the KMEP Guaranty and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of KMEP executing any documents on its behalf and (C) (1) that the representations and warranties made by KMEP in the KMEP Guaranty are true and correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of KMEP and (3) the absence of the occurrence and continuance of any Default or Event of Default with respect to KMEP or any of its Subsidiaries; (vii) a certificate of an officer and of the secretary or an assistant secretary of ETP, certifying, inter alia (A) true and complete copies of each of the certificate of limited partnership and the limited partnership agreement of ETP, each as amended and in effect, and the resolutions adopted by the ETP General Partner (1) determining that the Company is an entity in which ETP holds a substantial interest and authorizing the execution, delivery and performance by ETP of the ETP Guaranty and (2) authorizing officers of ETP to execute and deliver the ETP Guaranty and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of ETP executing any documents on its behalf and (C) (1) that the representations and warranties made by ETP in the ETP Guaranty are true and correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of ETP and (3) the absence of the occurrence and continuance of any Default or Event of Default with respect to ETP or any of its Subsidiaries; (viii) a favorable, signed opinion addressed to the Administrative Agent and the Lenders from each of (A) ▇▇▇ ▇▇▇▇▇, General Counsel of ETP, and (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company and ETP, given upon the express instruction of the Company and ETP; (ix) a favorable, signed opinion addressed to the Administrative Agent and the Lenders from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to KMEP, the KMEP General Partner and the KMEP Delegate, given upon the express instruction of KMEP, the KMEP General Partner and the KMEP Delegate; and (x) certificates of appropriate public officials as to the existence, good standing and qualification to do business as a foreign entity of the Company, KMEP, the KMEP General Partner and ETP in the States of Texas and Delaware and certificates of appropriate public officials as to existence and good standing of the KMEP Delegate in the State of Delaware. (b) The Administrative Agent shall have received (i) audited financial statements for KMEP and its subsidiaries and ETP and its subsidiaries for the period ended December 31, 2008 and (ii) unaudited financial statements for each Guarantor and its subsidiaries for the most recently ended quarterly period if such financial statements have been filed with the SEC. (c) The Administrative Agent shall be reasonably satisfied that all required consents and approvals of any Governmental Authority and any other Person in connection with the transactions contemplated by this Section 3.01 shall have been obtained and remain in effect (except where the failure to obtain such approvals would not have a Material Adverse Effect). (d) Each Lender shall have received all documentation and other information reasonably requested by it, through the Administrative Agent, in order to enable compliance with the applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the information described in Section 9.15. (e) The Company shall have paid to RBS, RBSI and Barclays all fees and expenses (including but not limited to arrangement and upfront fees) pursuant to the Fee Letter agreed upon by such parties to be paid on or prior to the Execution Date.
Appears in 1 contract
Conditions Precedent to the Initial Credit Event. The obligations of the Lenders Banks hereunder to make Loans hereunder or continue, renew, and extend the obligation of revolving loans made and existing pursuant to the Issuing Banks Existing Credit Agreement on the Closing Date (such renewal and extension, the "Initial Credit Event") are subject to issue Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied or waived in accordance with Section 9.02precedent:
(a) The Administrative Agent shall have received the following, and unless otherwise indicated below, each dated the Effective Date:
(i) this Agreement executed by each party hereto, dated the Execution Date to be effective on the Effective Date;
(ii) the KMEP Guaranty executed by KMEP, dated the Execution Date to be effective on the Effective Date;
(iii) the ETP Guaranty executed by ETP, dated the Execution Date to be effective on the Effective Date;
(iv) if requested by any Lender, a Committed Note executed by the Company and payable to the order of such Lender;
(v) a certificate of an officer and of the secretary or an assistant secretary of the Company, certifying, inter alia (A) true and complete copies of each of the certificate of formation and the limited liability company agreement of the Company, each as amended and in effect, and the resolutions adopted by the Board of Managers of the Company (1) authorizing the execution, delivery and performance by the Company of this Agreement and the other Loan Documents and, the Borrowings to be made and the Letters of Credit to be issued hereunder, (2) approving the forms of the Loan Documents which will be delivered at or prior to the initial Borrowing Date and (3) authorizing officers of the Company (“Authorized Officers”) to execute and deliver the Loan Documents and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of the Company executing any documents on its behalf and (C) (1) that the representations and warranties made by the Company in each Loan Document to which it is a party and which will be delivered at or prior to the initial Borrowing Date are true and correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of the Company and (3) the absence of the occurrence and continuance of any Default or Event of Default with respect to the Company;
(vi) a certificate of an officer and of the secretary or an assistant secretary of the KMEP Delegate, certifying, inter alia (A) true and complete copies of each of certificate of formation and limited liability company agreement of the KMEP Delegate, the certificate of incorporation and the bylaws, of the KMEP General Partner, the certificate of limited partnership and the limited partnership agreement of KMEP, each as amended and in effect, and the resolutions adopted by the KMEP Delegate (1) authorizing the execution, delivery and performance by KMEP of the KMEP Guaranty, (2) approving the forms of the KMEP Guaranty, and (3) authorizing officers of KMEP to execute and deliver the KMEP Guaranty and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of KMEP executing any documents on its behalf and (C) (1) that the representations and warranties made by KMEP in the KMEP Guaranty are true and correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of KMEP and (3) the absence of the occurrence and continuance of any Default or Event of Default with respect to KMEP or any of its Subsidiaries;
(vii) a certificate of an officer and of the secretary or an assistant secretary of ETP, certifying, inter alia (A) true and complete copies of each of the certificate of limited partnership and the limited partnership agreement of ETP, each as amended and in effect, and the resolutions adopted by the ETP General Partner (1) determining that the Company is an entity in which ETP holds a substantial interest and authorizing the execution, delivery and performance by ETP of the ETP Guaranty and (2) authorizing officers of ETP to execute and deliver the ETP Guaranty and any related documents, including any agreement contemplated by this Agreement, (B) the incumbency and specimen signatures of the officers of ETP executing any documents on its behalf and (C) (1) that the representations and warranties made by ETP in the ETP Guaranty are true and correct in all material respects, (2) the absence of any proceedings for the dissolution or liquidation of ETP and (3) the absence of the occurrence and continuance of any Default or Event of Default with respect to ETP or any of its Subsidiaries;
(viii) a favorable, signed opinion addressed to the Administrative Agent and the Lenders from each of (A) ▇▇▇ ▇▇▇▇▇, General Counsel of ETP, and (B) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Company and ETP, given upon the express instruction of the Company and ETP;
(ix) a favorable, signed opinion addressed to the Administrative Agent and the Lenders from ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to KMEP, the KMEP General Partner and the KMEP Delegate, given upon Borrowers shall have executed this Agreement and delivered the express instruction of KMEP, the KMEP General Partner and the KMEP Delegate; and
(x) certificates of appropriate public officials as same to the existence, good standing and qualification to do business as a foreign entity of the Company, KMEP, the KMEP General Partner and ETP in the States of Texas and Delaware and certificates of appropriate public officials as to existence and good standing of the KMEP Delegate in the State of Delaware.Agent;
(b) The Administrative Agent shall have received a certificate (the "Closing Date Pricing Certificate") dated the Closing Date (i) audited stating that a copy of the financial statements for KMEP of the Operating Partnership and its subsidiaries and ETP and its subsidiaries Subsidiaries for the period ended December 31quarter ending June 30, 2008 1996 and (ii) unaudited financial statements for each Guarantor and its subsidiaries for the most recently ended quarterly period if such financial statements referred to in Section 5.05 have been filed with previously delivered to the SECAgent and setting forth the Cash Flow/Interest Coverage Pricing Ratio for purposes of Section 2.07(d).
(c) The Administrative Agent shall be reasonably satisfied that all required consents and approvals have received the Certificate of any Governmental Authority the Secretary or Assistant Secretary of the General Partner (i) certifying the corporate resolutions authorizing the transactions contemplated by this Agreement, together with an incumbency certificate in respect of the officers executing this Agreement and any other Person Credit Documents to be executed on the Closing Date; and (ii) confirming that each of the documents described below has not been amended, modified, revoked, terminated, rescinded or otherwise changed since the "Closing Date" (as defined in the Existing Credit Agreement):
(A) the Certificate of Incorporation of the General Partner;
(B) the MLP Partnership Agreement;
(C) the Services Partnership Agreement; and
(D) the Operating Partnership Agreement;
(d) The Banks shall have received the opinion of Andr▇▇▇ & ▇urt▇, ▇.L.P., special counsel for the General Partner and the Borrowers, dated the Closing Date, in a form reasonably acceptable to the Banks;
(e) The Agent shall have been paid its fees as set forth in that certain commitment letter dated June 12, 1996.
(f) The Borrowers shall have certified that the value of the Qualifying Securities in which the Collateral Agent will have a first perfected security interest contemporaneously with the occurrence of the Initial Credit Event shall be no less than the Required Collateral Amount;
(g) The Trust Agreement shall be in full force and effect and shall constitute the valid and binding obligation of the Operating Partnership and the Trustee and no default on the part of the Operating Partnership shall exist thereunder;
(h) Each Mortgage shall be in full force and effect and shall: (i) constitute the valid and binding obligation of the Operating Partnership and (ii) (A) constitute a valid first mortgage lien of record on the real property and all other interests described therein which may be subjected to a mortgage lien, subject only to Permitted Encumbrances; and (B) constitute a valid assignment of, and create a valid, presently effective security interest of record in, the pipelines, equipment and all other interests (other than real property interests) described therein, subject to no prior security interest in any such property other than as specifically permitted therein, and no default on the part of the Operating Partnership shall exist thereunder;
(i) Each of the Partnership Agreements shall be in full force and effect, shall constitute the legal, valid and binding obligations of the respective parties thereto, and no default or accrued right of termination on the part of any of the parties thereto shall exist thereunder as of the Closing Date;
(j) Maye▇, ▇▇ow▇ & ▇lat▇ ▇▇▇ll have delivered its opinion to the Agent, the Banks and the Collateral Agent in form and substance reasonably satisfactory to the Agent; and
(k) All proceedings in connection with the transactions contemplated by this Section 3.01 Agreement and all documents and instruments incident to such transactions shall have been obtained be reasonably satisfactory to the Agent and remain in effect (except where its counsel, and the failure to obtain such approvals would not have a Material Adverse Effect).
(d) Each Lender Banks, the Agent, and the Collateral Agent shall have received all documentation and such counterpart originals or certified or other information copies of such documents as they may reasonably requested by it, through the Administrative Agent, in order to enable compliance with the applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the information described in Section 9.15request.
(e) The Company shall have paid to RBS, RBSI and Barclays all fees and expenses (including but not limited to arrangement and upfront fees) pursuant to the Fee Letter agreed upon by such parties to be paid on or prior to the Execution Date.
Appears in 1 contract
Sources: Revolving Credit Agreement (Lakehead Pipe Line Partners L P)