Conditions Precedent to Initial Borrowings. The obligation of the Lenders to make the initial Disbursements is subject to the satisfaction of each of the following conditions precedent in addition to the applicable conditions precedent set forth in Section 6.1 above: (i) Receipt by the Agent on behalf of each Lender of a counterpart original of this Agreement executed by the other Lenders and the Borrower. (ii) Receipt by the Agent on behalf of each Lender of a Revolving Credit Note, substantially in the form of Exhibit "A" attached hereto, made payable to such Lender in the amount of such Lender's Revolving Credit Commitment and otherwise properly completed and executed by the Borrower. (iii) Receipt by the Agent of all schedules to this Agreement, in form and substance satisfactory to the Lenders. (iv) Receipt by the Agent of a Guaranty Agreement duly executed by each of the Guarantors. (v) Receipt by the Agent of the following formation, governance or other documents for each Loan Party and the General Partner: (a) a copy of its partnership agreement, operating agreement, articles and/or certificate of incorporation, and other formation or governmental documents, certified as true and correct by secretary, of the respective Loan Party or the General Partner, as the case may be: (b) good standing or subsistence certificates relating to each Loan Party and the General Partner executed by the Secretary of State of each state in which such Loan Party or the General Partner, as the case may be, conducts its business; (c) resolutions or other evidence of approval of the partners, board of directors or other governing body authorizing the execution of the Loan Documents and the performance by the Loan Parties pursuant thereto, certified by the secretary or other officer of the respective Loan Party (or, if applicable, of the respective Loan Party's general partner or managing member) as being true, correct, complete and in effect and in form and substance satisfactory to the Agent: (d) a copy of the by-laws (or equivalent documents), if any, and all amendments thereto, certified by the secretary or other officer of each Loan Party and the General Partner as being true, correct, complete and in effect; and (e) an incumbency certificate for each Loan Party and the General Partner, showing the names of the Authorized Officers of each Loan Party and the General Partner, their titles and containing their true signatures. (vi) Receipt by the Agent of a certificate of an Authorized Officer of the Borrower certifying that the insurance required to be maintained by the Borrower and its Subsidiaries by Section 4.7 hereof is in force and is adequate in nature and amount. (vii) Receipt by the Agent of written instructions addressed to the Agent and executed by an Authorized Officer of the Borrower relating to the initial Disbursements. (viii) Receipt by the Agent on behalf of each Lender of a signed favorable opinion of Xxxxxx & Xxxxxx L.L.P, special counsel to the Borrower, dated as of the Closing Date and in form and substance satisfactory to Agent and its counsel as to the matters set forth on Exhibit "E" attached hereto. (ix) Receipt by the Agent, for the benefit of each Lender and the Agent, of a certificate of the Borrower, dated the Closing Date and signed by an Authorized Officer of the Borrower, regarding the satisfaction of the conditions set forth in Subsections 6.1a, 6.1b and 6.1c. (x) Receipt by the Agent on its own behalf and on behalf of the Lenders of all Fees due and payable on or prior to the Closing Date and all reimbursable expenses incurred on or prior to the Closing Date for which invoices (in reasonable detail) have been furnished to the Borrower. (xi) The Lenders shall have received satisfactory evidence that (a) the Transaction has been completed, including without limitation the offering of the common units of the Parent pursuant to the Transaction and (b) the Parent shall have received (1) cash from the proceeds of such offering in an amount at least equal to $50,100,000 (after deducting underwriting discounts but before paying estimated offering expenses) and (2) cash from Arch Coal in an amount at least equal to $800,000. [THESE ARE THE NUMBERS IN THE LATEST S-1 I HAVE BUT MAY NOT BE CURRENT.] (xii) Receipt by the Agent of true and correct copies of the Leases listed on Schedule 3.23 and satisfactory review thereof by the Agent and its counsel. (xiii) The Agent and the Lenders (a) shall have completed and be satisfied with all requested due diligence with respect to the Borrower and the other Loan Parties, including without limitation, (1) a review of Lease files, title files, record searches and Encumbrances affecting Leases, (2) an independent reserve report, (3) an analysis of environmental liabilities with respect to properties owned or to be acquired at Closing, and (4) the financial statements and pro forma financial statements delivered pursuant to Section 3.7; (b) shall be satisfied as to the amount and nature of all environmental, tax, ERISA, employee retirement benefit and other contingent liabilities to which the Borrower and the other Loan Parties may be subject; and (c) shall be satisfied that, as of the Closing, neither the Borrower nor any other Loan Party has any outstanding Indebtedness except for the Bank Indebtedness or as otherwise expressly permitted under Section 5.5. (xiv) The Agent and the Lenders shall have received a true, correct and complete copy of the Omnibus Agreement and all other documents transferring the Leases and any other material agreements from the Contributors to the Loan Parties, all of which shall be satisfactory to the Agent and the Lenders.
Appears in 1 contract
Conditions Precedent to Initial Borrowings. The obligation Lender shall not be obliged to permit the initial utilization of the Lenders to make Credit Facility unless, on the initial Disbursements Closing Date, all representations and warranties contained in Section 2 are true and correct, no Event of Default has occurred and is subject to the satisfaction of continuing and upon each of the following conditions precedent in addition to the applicable conditions precedent set forth in Section 6.1 above:
(i) Receipt being satisfied or waived by the Agent on behalf of each Lender of a counterpart original of this Agreement executed by the other Lenders and the Borrower.
(ii) Receipt by the Agent on behalf of each Lender of a Revolving Credit Note, substantially in the form of Exhibit "A" attached hereto, made payable to such Lender in the amount of such Lender's Revolving Credit Commitment and otherwise properly completed and executed by the Borrower.
(iii) Receipt by the Agent of all schedules to this Agreement, in form and substance satisfactory to the Lenders.
(iv) Receipt by the Agent of a Guaranty Agreement duly executed by each of the Guarantors.
(v) Receipt by the Agent of the following formation, governance or other documents for each Loan Party and the General Partner:
(a) a copy delivery by the Borrower to the Lender of the following:
(1) duly executed copies of the Agreement and of the Lender’s Security, together with all documents which the Borrower has covenanted to deliver under the Agreement at that time and any other documents or instruments as in the opinion of counsel to the Lender are reasonably necessary to render effective the Agreement and the Lender’s Security;
(2) certificates of status for the Borrower and Costco US;
(3) certified copies of resolutions of the boards of directors of the Borrower and Costco US authorizing the Borrower and Costco US to execute, deliver and perform their obligations under the Agreement and the Lenders’ Security and the instruments, agreements, certificates, papers and other documents contemplated herein and therein;
(4) incumbency certificates for the Borrower and Costco US setting forth the names of its partnership agreement, operating agreement, articles and/or certificate of incorporation, directors and other formation or governmental documents, certified as true officers and correct by secretary, specimen signatures of the respective Loan Party or individuals who sign the General Partner, as Agreement and the case may be:Lenders’ Security;
(5) a favourable opinion of counsel for the Borrower (in form and content satisfactory to the Lender);
(6) a favourable opinion of counsel for Costco US (in form and content satisfactory to the Lender);
(b) good standing or subsistence certificates relating to each Loan Party and the General Partner executed Lender shall have received a certificate in substantially the form of Schedule C signed by the Secretary Chief Financial Officer as at the end of State the most recently completed fiscal period of each state in which such Loan Party or the General Partner, as the case may be, conducts its businessBorrower;
(c) resolutions or other evidence of approval of the partners, board of directors or other governing body authorizing Lender shall have received a certificate from the execution of the Loan Documents and the performance by the Loan Parties pursuant thereto, certified by the secretary or other chief financial officer of Costco US substantially in the respective Loan Party (or, if applicable, of the respective Loan Party's general partner or managing member) as being true, correct, complete and in effect and in form and substance satisfactory attached to the Agent:Lender’s Security;
(d) a copy the Borrower shall have made arrangements satisfactory to the Lender to repay all amounts of principal, interest and fees due or accruing due on or to the by-laws (or equivalent documents), if any, and all amendments thereto, certified by Closing Date under the secretary or other officer of each Loan Party and the General Partner as being true, correct, complete and in effect; andPrior Credit Agreement;
(e) an incumbency certificate the Borrower shall have made arrangements satisfactory to the Lender for each Loan Party and the General Partner, showing the names release of the Authorized Officers of each Loan Party and the General Partner, their titles and containing their true signatures.all Liens except for Permitted Encumbrances;
(vif) Receipt by the Agent of Lender shall be satisfied that there has been no material adverse change in the Canadian or U.S. financial markets which could be expected to have a certificate of an Authorized Officer material adverse effect on the ability of the Borrower certifying that or Costco US to perform their obligations under the insurance required to be maintained by Agreement or the Lender’s Security;
(g) the Borrower and its Subsidiaries by Section 4.7 hereof is in force and is adequate in nature and amount.
(vii) Receipt by the Agent of written instructions addressed shall have paid to the Agent and executed by an Authorized Officer of Lender the Borrower relating to the initial DisbursementsCommitment Fee.
(viii) Receipt by the Agent on behalf of each Lender of a signed favorable opinion of Xxxxxx & Xxxxxx L.L.P, special counsel to the Borrower, dated as of the Closing Date and in form and substance satisfactory to Agent and its counsel as to the matters set forth on Exhibit "E" attached hereto.
(ix) Receipt by the Agent, for the benefit of each Lender and the Agent, of a certificate of the Borrower, dated the Closing Date and signed by an Authorized Officer of the Borrower, regarding the satisfaction of the conditions set forth in Subsections 6.1a, 6.1b and 6.1c.
(x) Receipt by the Agent on its own behalf and on behalf of the Lenders of all Fees due and payable on or prior to the Closing Date and all reimbursable expenses incurred on or prior to the Closing Date for which invoices (in reasonable detail) have been furnished to the Borrower.
(xi) The Lenders shall have received satisfactory evidence that (a) the Transaction has been completed, including without limitation the offering of the common units of the Parent pursuant to the Transaction and (b) the Parent shall have received (1) cash from the proceeds of such offering in an amount at least equal to $50,100,000 (after deducting underwriting discounts but before paying estimated offering expenses) and (2) cash from Arch Coal in an amount at least equal to $800,000. [THESE ARE THE NUMBERS IN THE LATEST S-1 I HAVE BUT MAY NOT BE CURRENT.]
(xii) Receipt by the Agent of true and correct copies of the Leases listed on Schedule 3.23 and satisfactory review thereof by the Agent and its counsel.
(xiii) The Agent and the Lenders (a) shall have completed and be satisfied with all requested due diligence with respect to the Borrower and the other Loan Parties, including without limitation, (1) a review of Lease files, title files, record searches and Encumbrances affecting Leases, (2) an independent reserve report, (3) an analysis of environmental liabilities with respect to properties owned or to be acquired at Closing, and (4) the financial statements and pro forma financial statements delivered pursuant to Section 3.7; (b) shall be satisfied as to the amount and nature of all environmental, tax, ERISA, employee retirement benefit and other contingent liabilities to which the Borrower and the other Loan Parties may be subject; and (c) shall be satisfied that, as of the Closing, neither the Borrower nor any other Loan Party has any outstanding Indebtedness except for the Bank Indebtedness or as otherwise expressly permitted under Section 5.5.
(xiv) The Agent and the Lenders shall have received a true, correct and complete copy of the Omnibus Agreement and all other documents transferring the Leases and any other material agreements from the Contributors to the Loan Parties, all of which shall be satisfactory to the Agent and the Lenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Costco Wholesale Corp /New)
Conditions Precedent to Initial Borrowings. The obligation Royal shall not be obliged to make an initial advance of the Lenders Credit Facility or to make accept an initial Draft presented by the initial Disbursements Borrower pursuant to Section 4 of the Agreement, whichever shall first occur unless, on the Closing Date, all representations and warranties contained in Section 2 are true and correct, no Event of Default has occurred and is subject to the satisfaction of continuing and upon each of the following conditions precedent in addition to the applicable conditions precedent set forth in Section 6.1 above:
(i) Receipt by the Agent on behalf of each Lender of a counterpart original of this Agreement executed by the other Lenders and the Borrower.
(ii) Receipt by the Agent on behalf of each Lender of a Revolving Credit Note, substantially in the form of Exhibit "A" attached hereto, made payable to such Lender in the amount of such Lender's Revolving Credit Commitment and otherwise properly completed and executed by the Borrower.
(iii) Receipt by the Agent of all schedules to this Agreement, in form and substance satisfactory to the Lenders.
(iv) Receipt by the Agent of a Guaranty Agreement duly executed by each of the Guarantors.
(v) Receipt by the Agent of the following formation, governance or other documents for each Loan Party and the General Partnerbeing satisfied:
(a) a copy of its partnership agreement, operating agreement, articles and/or certificate of incorporation, and other formation or governmental documents, certified as true and correct delivery by secretary, the Borrower to Royal of the respective Loan Party or the General Partner, as the case may befollowing:
(b1) good standing duly executed copies of the Agreement together with all documents which the Borrower has covenanted to deliver under the Agreement and any other documents or subsistence certificates relating instruments as in the opinion of counsel for Royal are reasonably necessary or appropriate to each Loan Party and render effective the General Partner executed by the Secretary of State of each state in which such Loan Party or the General Partner, as the case may be, conducts its businessAgreement;
(c2) resolutions or other evidence a certificate of approval good standing for the Borrower from the Office of the partners, British Columbia Registrar of Companies;
(3) a certified copy of a resolution or resolutions of the board of directors of the Borrower or other governing body a duly constituted and authorized committee of the board of directors of the Borrower authorizing the execution of Borrower to execute, deliver and perform its obligations under the Loan Documents Agreement and Royal's Security and the performance instruments, agreements, certificates, papers and other documents contemplated herein and therein and the manner in which and by whom the Loan Parties pursuant thereto, certified by the secretary or other officer of the respective Loan Party (or, if applicable, of the respective Loan Party's general partner or managing member) as being true, correct, complete foregoing documents are to be executed and in effect and in form and substance satisfactory to the Agent:delivered;
(d) a copy of the by-laws (or equivalent documents), if any, and all amendments thereto, certified by the secretary or other officer of each Loan Party and the General Partner as being true, correct, complete and in effect; and
(e4) an incumbency certificate for each Loan Party and of the General Partner, showing Borrower setting forth the names of its directors and officers and specimen signatures of the Authorized Officers of each Loan Party individuals who sign the Agreement and Royal's Security and the General Partnerinstruments, their titles agreements, certificates, papers and containing their true signatures.other documents provided for or contemplated therein;
(vi5) Receipt by the Agent satisfactory evidence concerning those policies of a certificate of an Authorized Officer insurance of the Borrower certifying that the insurance required to be maintained by insuring Inventory of the Borrower and its Material Canadian Subsidiaries by Section 4.7 hereof is in force and is adequate in nature and amount.
(vii) Receipt by the Agent of written instructions addressed to the Agent and executed by an Authorized Officer of the Borrower relating to the initial Disbursements.
(viii) Receipt by the Agent on behalf of each Lender of a signed favorable opinion of Xxxxxx & Xxxxxx L.L.P, special counsel to the Borrower, dated as of the Closing Date and in form and substance satisfactory to Agent and its counsel as to the matters set forth on Exhibit "E" attached hereto.
(ix) Receipt by the Agent, for the benefit of each Lender and the Agent, of a certificate of the Borrower, dated the Closing Date and signed by an Authorized Officer of the Borrower, regarding the satisfaction of the conditions set forth in Subsections 6.1a, 6.1b and 6.1c.
(x) Receipt by the Agent on its own behalf and on behalf of the Lenders of all Fees due and payable on or prior to the Closing Date and all reimbursable expenses incurred on or prior to the Closing Date for which invoices (in reasonable detail) have been furnished to the Borrower.
(xi) The Lenders shall have received satisfactory evidence that (a) the Transaction has been completed, including without limitation the offering of the common units of the Parent pursuant to the Transaction and (b) the Parent shall have received (1) cash from the proceeds of such offering in an amount at least equal to $50,100,000 (after deducting underwriting discounts but before paying estimated offering expenses) and (2) cash from Arch Coal in an amount at least equal to $800,000. [THESE ARE THE NUMBERS IN THE LATEST S-1 I HAVE BUT MAY NOT BE CURRENT.]
(xii) Receipt by the Agent of true and correct copies of the Leases listed on Schedule 3.23 and satisfactory review thereof by the Agent and its counsel.
(xiii) The Agent and the Lenders (a) shall have completed and be satisfied with all requested due diligence with respect to the Borrower and the other Loan Parties, including without limitation, (1) a review of Lease files, title files, record searches and Encumbrances affecting Leases, (2) an independent reserve report, (3) an analysis of environmental liabilities with respect to properties owned or to be acquired at Closing, and (4) the financial statements and pro forma financial statements delivered pursuant to Section 3.7; (b) Royal shall be satisfied as to the amount amounts, terms and nature coverage provided thereby;
(6) a certificate signed by the Chief Financial Officer or other responsible person certifying:
(A) that the Guarantor is not in default under the Guarantor Credit Agreement;
(B) there is no material litigation pending or threatened against the Borrower other than as disclosed in the September 30, 2001 quarterly report;
(C) there has been no material adverse change in the financial conditions and operations of all environmentalGuarantor or any of its Subsidiaries since the date of the Guarantor's most recent financial statements referred to in §2.15 of the Agreement;
(7) a favourable opinion of counsel for the Borrower (in form and content satisfactory to the solicitors for Royal) to the effect that:
(A) the Borrower and each of the Borrower Subsidiaries validly exists as a company under the British Columbia Company Act and is, taxaccording to the records of the office of the Registrar of Companies for the Province of British Columbia, ERISAin good standing with respect to the filing of its annual reports;
(B) the Borrower and each of the Borrower Subsidiaries have the corporate power and capacity to borrow money and grant security therefore in the manner contemplated by the Agreement and Royal's Security and to enter into, employee retirement benefit observe and other contingent liabilities perform the terms and obligations on its part to be observed and performed under the Agreement and Royal's Security;
(C) the Borrower has duly authorized, executed and delivered the Agreement and that Royal's Security to which it is a party and each of the Borrower Subsidiaries have duly authorized, executed and delivered that Royal's Security to which it is a party, the Agreement and such Royal's Security constitute valid, binding and enforceable obligations of the Borrower and the other Loan Parties Borrower Subsidiaries (as applicable) in accordance with its terms, save as enforcement may be subjectlimited by:
(i) applicable bankruptcy, insolvency, moratorium or reorganization or other laws affecting creditors' rights generally;
(ii) the unavailability of equitable remedies such as the remedy of specific performance and injunction in any particular instance;
(iii) the inability of the Courts of Canada to give judgement for payment in foreign currencies; and
(iv) such other qualifications and limitations as counsel for Royal may accept acting reasonably;
(D) so far as they are aware in their capacity as counsel for the Borrower in respect of this transaction, there are no actions, proceedings or investigations pending or threatened against the Borrower which question the validity of the Agreement or Royal's Security or the validity of any act to be taken pursuant thereto, and, in addition, dealing with such other matters incidental to the transactions contemplated by the Agreement as Royal may reasonably and properly require;
(8) an opinion of Messrs. Bull, Housser & Xxxxxx, counsel for Royal (in form and content satisfactory to Royal but subject to the usual assumptions and qualifications) to the effect that the Agreement and Royal's Security have been executed by all parties thereto and delivered to Royal and that such items of Royal's Security which require registration or filing have been registered or filed in all places and offices in British Columbia and elsewhere (as may be determined by counsel for Royal) where such registration or filing is necessary;
(b) delivery by the Guarantor to Royal of the following:
(1) the duly executed Guarantee and Subordination Agreement;
(2) a certificate of good standing for the Guarantor;
(3) a certified copy of a resolution or resolutions of the Guarantor's board of directors or a duly constituted and authorized committee of the Guarantor's board of directors authorizing the Guarantor to execute, deliver and perform its obligations under the Agreement and the instruments, agreements, certificates, papers and other documents contemplated herein, including the Guarantee and the Subordination Agreement and the manner in which and by whom the foregoing documents are to be executed and delivered;
(4) an incumbency certificate of the Guarantor setting forth the names of its directors and officers and specimen signatures of the individuals who sign the Agreement, the Guarantee, the Subordination Agreement and the other instruments, agreements, certificates, papers and other documents provided for or contemplated therein;
(5) a favourable opinion of counsel for the Guarantor (in form and content satisfactory to the solicitors for Royal) substantially to the effect that:
(A) the Guarantor is a corporation duly organized and existing under the laws of the State of Delaware, U.S.A., and is in good standing in that jurisdiction;
(B) the Guarantor has all requisite corporate power and capacity to guarantee the obligations of the Borrower, to enter into, observe and perform its obligations under the Agreement, the Guarantee and the Subordination Agreement;
(C) the Guarantor has taken all necessary corporate action to authorize the execution, delivery and performance of its obligations under the Agreement, the Guarantee and the Subordination Agreement;
(D) each of the Agreement, the Guarantee and the Subordination Agreement has been duly authorized, executed and delivered by the Guarantor and constitutes legal, valid and binding obligations of the Guarantor, enforceable against the Guarantor in accordance with its respective terms, save as enforceability may be limited by:
(i) applicable bankruptcy, insolvency, fraudulent transfer, moratorium or reorganization or other similar laws affecting creditors' rights generally, and
(ii) general principles of equity and the unavailability of the remedies of specific performance and injunction in any particular instance;
(E) so far as they are aware in their capacity as counsel to the Guarantor, there is no action, suit, proceeding or investigation pending or threatened against the Guarantor which questions the validity of the Agreement, the Guarantee or the Subordination Agreement or the validity of any act to be taken pursuant thereto;
(F) so far as they are aware in their capacity as counsel to the Guarantor, neither the execution and delivery of the Agreement, the Guarantee or the Subordination Agreement by the Guarantor nor the fulfilment or compliance with the terms thereof:
(i) contravenes or results in a breach of any of the terms, conditions or provisions of the Charter of the Guarantor, or
(ii) contravenes or results in any breach of or constitutes a default under any material agreement to which the Guarantor is a party or by which it is bound;
(c) the Borrower shall have paid all fees and expenses then due to Royal including the arrangement fee due under §3.30 and any reasonable legal fees invoiced prior to the Closing Date;
(d) Royal shall be satisfied that, as with the arrangement to effect the repayment in full of all indebtedness of the Closing, neither Borrower under the Borrower nor any other Loan Party has any outstanding Indebtedness except for the Bank Indebtedness or as otherwise expressly permitted under Section 5.5.
(xiv) The Agent 1997 LP Canada Credit Agreement and the Lenders shall have received a true, correct and complete copy termination of that agreement prior to or concurrently with the closing of the Omnibus Agreement and all other documents transferring transactions contemplated under the Leases and any other material agreements from the Contributors to the Loan Parties, all of which shall be satisfactory to the Agent and the LendersAgreement.
Appears in 1 contract
Conditions Precedent to Initial Borrowings. The obligation of the ------------------------------------------ Lenders to make the initial Disbursements is subject to the satisfaction of each of the following conditions precedent in addition to the applicable conditions precedent set forth in Section 6.1 above:
(i) Receipt by the Agent on behalf of each Lender of a counterpart original of this Agreement executed by the other Lenders and the Borrower.
(ii) Receipt by the Agent on behalf of each Lender of a Revolving Credit Note, substantially in the form of Exhibit "A" attached hereto, made ----------- payable to such Lender in the amount of such Lender's Revolving Credit Commitment and otherwise properly completed and executed by the Borrower.
(iii) Receipt by the Agent on behalf of each Lender of a Term Note, substantially in the form of Exhibit "B" attached hereto, made payable to ----------- such Lender in the amount of such Lender's Term Commitment and otherwise properly completed and executed by the Borrower.
(iv) Receipt by the Agent of all schedules to this Agreement, in form and substance satisfactory to the Lenders.
(ivv) Receipt by the Agent of a Guaranty Agreement duly executed by each Subsidiary of the GuarantorsBorrower.
(vvi) Receipt by the Agent of the Pledge Agreement duly executed by the Borrower, together with (a) evidence that the Qualifying Securities have been credited to the securities account described in the Pledge Agreement, (b) a control agreement with respect to such securities account, duly executed by the Borrower and the custodian of such securities account, together with any applicable UCC-1 financing statements, and (c) evidence that all action that the Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority Encumbrances created under the Pledge Agreement have been taken.
(vii) Receipt by the Agent of the following formation, governance or other documents for each Loan Party and the General Partner:
(a) a copy of its partnership agreement, operating agreement, articles and/or certificate of incorporation, and other formation or governmental documents, certified as true and correct by secretary, secretary of the respective Loan Party or the General Partner, as the case may be:;
(b) good standing or subsistence certificates relating to each Loan Party and the General Partner executed by the Secretary of State of each state in which such Loan Party or the General Partner, as the case may be, conducts its business;
(c) resolutions or other evidence of approval of the partners, board of directors or other governing body authorizing the execution of the Loan Documents and the performance by the Loan Parties pursuant thereto, certified by the secretary or other officer of the respective Loan Party (or, if applicable, of the respective Loan Party's general partner or managing member) as being true, correct, complete and in effect and in form and substance satisfactory to the Agent:Bank;
(d) a copy of the by-laws (or equivalent documents), if any, and all amendments thereto, certified by the secretary or other officer of each Loan Party and the General Partner as being true, correct, complete and in effect; and
(e) an incumbency certificate for each Loan Party and the General Partner, showing the names of the Authorized Officers of each Loan Party and the General Partner, their titles and containing their true signatures.
(viviii) Receipt by the Agent of a the certificate of an Authorized Officer of the Borrower certifying that the insurance required pursuant to be maintained by the Borrower and its Subsidiaries by Section 4.7 hereof is in force and is adequate in nature and amountof the Agreement.
(viiix) Receipt by the Agent of written instructions addressed to the Agent and executed by an Authorized Officer of the Borrower relating to the initial Disbursements.
(viiix) Receipt by the Agent on behalf of each Lender of a signed favorable opinion of Xxxxxx & Xxxxxx L.L.PL.L.P., special counsel to the Borrower, dated as of the Closing Date and in form and substance satisfactory to Agent and its counsel as to the matters set forth on Exhibit "E" attached hereto.. -----------
(ixxi) Receipt by the Agent, for the benefit of each Lender and the Agent, of a certificate of the Borrower, dated the Closing Date and signed by an Authorized Officer of the Borrower, regarding the satisfaction of the conditions set forth in Subsections 6.1a, 6.1b and 6.1c.
(xxii) Receipt by the Agent on its own behalf and on behalf of the Lenders of all Fees due and payable on or prior to the Closing Date and all reimbursable expenses incurred on or prior to the Closing Date for which invoices (in reasonable detail) have been furnished to the Borrower.
(xixiii) The Lenders shall have received satisfactory evidence that (a) the Transaction has been completed, including without limitation the offering of the common units of the Parent Borrower pursuant to the Transaction Transaction, and (b) the Parent Borrower shall have received (1) cash from the proceeds of such offering in an amount at least equal to $50,100,000 (after deducting underwriting discounts but before paying estimated offering expenses) and (2) cash from Arch Coal in an amount at least equal to $800,000. [THESE ARE THE NUMBERS IN THE LATEST S-1 I HAVE BUT MAY NOT BE CURRENT100,000,000, net of transaction costs associated with the Transaction.]
(xiixiv) Receipt by the Agent of true and correct copies of the Leases listed on Schedule 3.23 and satisfactory review thereof by the Agent and ------------- its counsel.
(xiii) The Agent and the Lenders (a) shall have completed and be satisfied with all requested due diligence with respect to the Borrower and the other Loan Parties, including without limitation, (1) a review of Lease files, title files, record searches and Encumbrances affecting Leases, (2) an independent reserve report, (3) an analysis of environmental liabilities with respect to properties owned or to be acquired at Closing, and (4) the financial statements and pro forma financial statements delivered pursuant to Section 3.7; (b) shall be satisfied as to the amount and nature of all environmental, tax, ERISA, employee retirement benefit and other contingent liabilities to which the Borrower and the other Loan Parties may be subject; and (c) shall be satisfied that, as of the Closing, neither the Borrower nor any other Loan Party has any outstanding Indebtedness except for the Bank Indebtedness or as otherwise expressly permitted under Section 5.5.
(xiv) The Agent and the Lenders shall have received a true, correct and complete copy of the Omnibus Agreement and all other documents transferring the Leases and any other material agreements from the Contributors to the Loan Parties, all of which shall be satisfactory to the Agent and the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Penn Virginia Resource Partners L P)
Conditions Precedent to Initial Borrowings. The obligation Royal shall not be obliged to make an initial advance of the Lenders Credit Facility or to make accept an initial Draft presented by the initial Disbursements Borrower pursuant to Part IV, whichever shall first occur unless, on the Closing Date, all representations and warranties contained in Part II are true and correct, no Event of Default has occurred and is subject to the satisfaction of continuing and on each of the following conditions precedent in addition to the applicable conditions precedent set forth in Section 6.1 abovebeing satisfied:
(ia) Receipt the execution by the Agent on behalf Borrower and delivery to Royal or confirmation of each Lender the prior execution and delivery and continued efficacy of a counterpart original of this Agreement executed by the other Lenders Collateral Trust Security and the Borrower.
(ii) Receipt by the Agent on behalf of each Lender of a Revolving Credit Note, substantially in the form of Exhibit "A" attached hereto, made payable to such Lender in the amount of such Lender's Revolving Credit Commitment and otherwise properly completed and executed by the Borrower.
(iii) Receipt by the Agent completion of all schedules such registrations, recordings and filings of or with respect to this Agreement, in form and substance satisfactory to the Lenders.
(iv) Receipt by the Agent of a Guaranty Agreement duly executed by each of the Guarantors.
(v) Receipt by the Agent of the following formation, governance or other documents for each Loan Party and the General Partner:
(a) a copy of its partnership agreement, operating agreement, articles and/or certificate of incorporation, and other formation or governmental documents, certified as true and correct by secretary, of the respective Loan Party or the General Partner, as the case may be:
(b) good standing or subsistence certificates relating to each Loan Party and the General Partner executed by the Secretary of State of each state in which such Loan Party or the General Partner, as the case may be, conducts its business;
(c) resolutions or other evidence of approval of the partners, board of directors or other governing body authorizing the execution of the Loan Documents and the performance delivery of all such documents as in the opinion of counsel to Royal are necessary or appropriate to render effective the security intended to be created thereby and to preserve and protect the rights of Royal thereunder;
b) delivery by the Loan Parties pursuant thereto, certified by the secretary or other officer Borrower to Royal of the respective Loan Party (or, if applicable, following:
i) duly executed copies of the respective Loan Party's general partner Agreement together with all documents which the Borrower has covenanted to deliver under the Agreement and any other documents or managing member) instruments as being true, correct, complete and in effect and in form and substance satisfactory the opinion of counsel to Royal are reasonably necessary or appropriate to render effective the Agent:Agreement;
(dii) a certificate of good standing of the Borrower;
iii) a certified copy of a resolution or resolutions of the by-laws (or equivalent documents)board of directors of the Borrower authorizing the Borrower to execute, if any, deliver and all amendments thereto, certified by perform its obligations under the secretary or other officer of each Loan Party Agreement and the General Partner as being trueinstruments, correctagreements, complete certificates, papers and other documents contemplated therein and the manner in effect; andwhich and by whom the foregoing documents are to be executed and delivered;
(eiv) an incumbency certificate for each Loan Party and of the General Partner, showing Borrower setting forth the names of its directors and officers and specimen signatures of the Authorized Officers of each Loan Party individuals who sign the Agreement and the General Partnerinstruments, their titles agreements, certificates, papers and containing their true signatures.other documents provided for or contemplated therein;
(viv) Receipt by the Agent of a certificate of an Authorized Officer of the Borrower certifying that the insurance required to be maintained by the Borrower and its Subsidiaries by Section 4.7 hereof is in force and is adequate in nature and amount.
(vii) Receipt by the Agent of written instructions addressed to the Agent and executed by an Authorized Officer of the Borrower relating to the initial Disbursements.
(viii) Receipt by the Agent on behalf of each Lender of a signed favorable opinion of Xxxxxx & Xxxxxx L.L.P, special counsel to the Borrower, dated as of the Closing Date and in form and substance satisfactory to Agent and its counsel as to the matters set forth on Exhibit "E" attached hereto.
(ix) Receipt by the Agent, for the benefit of each Lender and the Agent, of a certificate responsible officer of the Borrower, dated to the effect that, on the Closing Date Date, no Event of Default has occurred which is continuing;
vi) a favourable opinion of counsel for the Borrower (in form and signed by an Authorized Officer content satisfactory to the solicitors for Royal) to the effect that:
A. the Borrower validly exists as a company under the British Columbia Companies Act and is, according to the records of the BorrowerRegistrar of Companies for the Province of British Columbia, regarding the satisfaction of the conditions set forth in Subsections 6.1a, 6.1b and 6.1c.
(x) Receipt by the Agent on its own behalf and on behalf of the Lenders of all Fees due and payable on or prior to the Closing Date and all reimbursable expenses incurred on or prior to the Closing Date for which invoices (in reasonable detail) have been furnished to the Borrower.
(xi) The Lenders shall have received satisfactory evidence that (a) the Transaction has been completed, including without limitation the offering of the common units of the Parent pursuant to the Transaction and (b) the Parent shall have received (1) cash from the proceeds of such offering in an amount at least equal to $50,100,000 (after deducting underwriting discounts but before paying estimated offering expenses) and (2) cash from Arch Coal in an amount at least equal to $800,000. [THESE ARE THE NUMBERS IN THE LATEST S-1 I HAVE BUT MAY NOT BE CURRENT.]
(xii) Receipt by the Agent of true and correct copies of the Leases listed on Schedule 3.23 and satisfactory review thereof by the Agent and its counsel.
(xiii) The Agent and the Lenders (a) shall have completed and be satisfied with all requested due diligence good standing with respect to the filing of its annual returns;
B. the Borrower has the corporate power and capacity to borrow money in the manner contemplated by the Agreement and to enter into, observe and perform the terms and obligations on its part to be observed and performed under the Agreement;
C. the Borrower has duly authorized, executed and delivered the Agreement, the Agreement constitutes a valid and binding obligation of the Borrower and is enforceable against the other Loan PartiesBorrower in accordance with its terms, including without limitation, save as enforcement may be limited by:
(1) a review applicable bankruptcy, insolvency, moratorium, reorganization and similar laws at the time in effect affecting the rights of Lease files, title files, record searches and Encumbrances affecting Leases, creditors generally;
(2) an independent reserve reportequitable principles which may limit the availability of certain remedies, including the remedy of specific performance; (3) an analysis of environmental liabilities with respect to properties owned or to be acquired at Closing, and (4) the financial statements and pro forma financial statements delivered pursuant to Section 3.7; (b) shall be satisfied as to the amount and nature of all environmental, tax, ERISA, employee retirement benefit and other contingent liabilities to which the Borrower and the other Loan Parties may be subject; and (c) shall be satisfied that, as inability of the Closing, neither the Borrower nor any other Loan Party has any outstanding Indebtedness except courts of Canada to give judgement for the Bank Indebtedness payment in foreign currencies or as otherwise expressly permitted under Section 5.5.
(xiv) The Agent and the Lenders shall have received a true, correct and complete copy for payment of the Omnibus Agreement and all other documents transferring the Leases and any other material agreements from the Contributors additional amounts referred to the Loan Parties, all of which shall be satisfactory to the Agent and the Lenders.in Section 9.7;
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