ETR » Topics » SECTION 3.01. Conditions Precedent to Initial Extensions of Credit.

This excerpt taken from the ETR 8-K filed Dec 13, 2005.

SECTION 3.01.  Conditions Precedent to Initial Extensions of Credit.

The obligation of each Lender to make its initial Advance and of each LC Issuing Bank to issue the initial Letter of Credit is subject to the conditions precedent that on or before the date of such Advance:

  1. The Administrative Agent shall have received the following, each dated the same date (except for the financial statements referred to in paragraph (iv) below), in form and substance satisfactory to the Administrative Agent and (except for the notes described in paragraph (i)) with one copy for each Lender and each LC Issuing Bank:


  1. A promissory note payable to the order of each Lender that requests one pursuant to Section 2.17;

  2. Certified copies of the resolutions of the Board of Directors of the Borrower approving this Agreement, and of all documents evidencing other necessary corporate action with respect to this Agreement;

  3. A certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) the names and true signatures of the officers of the Borrower authorized to sign this Agreement and the other documents to be delivered hereunder; (B) that attached thereto are true and correct copies of the Certificate of Incorporation and the By Laws of the Borrower, in each case in effect on such date; and (C) that attached thereto are true and correct copies of all governmental and regulatory authorizations and approvals required for the due execution, delivery and performance of this Agreement, including, without limitation, a copy of the order dated June 30, 2004 (File No. 70-10202) of the SEC under the Public Utility Holding Company Act of 1935 authorizing the Borrower to obtain Extensions of Credit and to execute, deliver and perform this Agreement (the "SEC Order");

  4. Copies of the consolidated balance sheets of the Borrower and its subsidiaries as of December 31, 2004, and the related consolidated statements of income, retained earnings and cash flows of the Borrower and its subsidiaries for the fiscal year then ended, and copies of the consolidated financial statements of the Borrower and its subsidiaries as of March 31, 2005, June 30, 2005 and September 30, 2005, in each case certified by a duly authorized officer of the Borrower as having been prepared in accordance with generally accepted accounting principles consistently applied;

  5. A favorable opinion of counsel for the Borrower, acceptable to the Administrative Agent, substantially in the form of Exhibit C hereto and as to such other matters as any Lender through the Administrative Agent may reasonably request; and

  6. A favorable opinion of King & Spalding LLP, special New York counsel for the Administrative Agent, substantially in the form of Exhibit D hereto.

  1. The Administrative Agent shall have received the fees payable pursuant to the Fee Letter.


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