Initial Credit Extension. The obligations of the L/C Issuer and each Lender to make their respective initial Credit Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions precedent: (a) subject in all respects to the final paragraph of this Section 3.2, the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified: (i) a counterpart of this Agreement signed on behalf of the Borrower; (ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority; (iii) copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment; (iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable; (v) a list of the Borrower’s Authorized Representatives; (A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent; (vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof; (viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch; (ix) the Guaranty, duly executed by the Loan Parties; (x) the Security Agreement, duly executed by each Loan Party, together with: (A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof, (B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and (C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties; (xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender to make their respective initial Credit Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject in all respects to the final paragraph clause of this Section 3.2, the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the Borrower;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & XxxxxxxxxxXxxx LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(xix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xix) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xi) evidence of the existence of insurance required to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.3(a), together with certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xii) the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.15 or discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent.
(b) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects on and as of the Closing Date (except for any such representations and warranties expressly relating to an earlier date, which representations and warranties shall be true and correct in all material respects as of such earlier date);
(c) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) the initial public offering of Vantiv’s Equity Interests shall have been consummated and the net cash proceeds thereof shall be no less than $400.0 million and the Lead Arrangers shall have received a copy of the effective Form S-1 registration statement;
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing Credit Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) the Administrative Agent shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five (5) Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(g) the Administrative Agent shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed fiscal years of the Borrower, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”), (b) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each subsequent fiscal quarter ended at least 45 days before the Closing Date and (c) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of Vantiv as of and for the four-fiscal quarter period most recently ended pursuant to clause (a) or (b) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements);
(h) the Administrative Agent shall have received all fees, other payments and expenses previously agreed in writing by the Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least two (2) Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;
(i) subject in all respects to the final paragraph of this Section 3.2, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject to Permitted Liens) on the Collateral shall have been taken; and
(j) the Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets of the Loan Parties are located. For purposes of determining compliance with the conditions specified in this Section 3.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary in this Section 3.2, to the extent that any Collateral required to be provided or perfected hereunder is not provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, then the satisfaction of such requirements (other than the granting of any lien on Collateral which may be perfected solely by the filing of a UCC financing statement or the pledge of the capital stock of the Borrower and the Guarantors) shall not be a condition precedent to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied ninety (90) days after the Closing Date or such later date as the Administrative Agent may reasonably agree.
Appears in 1 contract
Samples: Loan Agreement (Vantiv, Inc.)
Initial Credit Extension. The obligations obligation of the L/C Issuer Banks and each Lender the Issuers to make their respective the initial Credit Extensions hereunder are Extension is subject solely to the satisfaction or waiver of the following conditions precedent:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received each all of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:, each properly executed by a Responsible Officer, each dated as of the date of this Agreement and each in form and substance satisfactory to the Administrative Agent and the Banks (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):
(i1) a at least one executed counterpart of this Agreement signed on behalf of Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the BorrowerBanks and the Company;
(ii2) a Note executed by the Company in favor of each Bank requesting a Note;
(3) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board Board of directors (Directors or similar governing body) the executive committee of each Loan Party the Company approving and authorizing the execution, delivery and performance by the Company of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance date of this Agreement by its Secretary, the Secretary or an Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentof the Company;
(iv4) a certificate of the Secretary or Assistant Secretary of the Company, certifying the names, titles and true signatures of the Responsible Officers and any other officers of the Company authorized to execute and deliver the Loan Documents to which it is a party, upon which certificate the Administrative Agent, the Issuers and the Banks shall be entitled to rely until informed of any change in writing by the Company;
(5) copies of the certificates articles or certificate of good standing (if available) for each Loan Party from the office incorporation of the secretary Company as in effect on the date of state or other appropriate governmental department or agency this Agreement and the bylaws of the state Company as in effect on the date of its formationthis Agreement, incorporation certified by the Secretary or organization, Assistant Secretary of the Company as applicableof the date of this Agreement;
(v6) a list good standing certificate for the Company from the Secretary of State of the Borrower’s Authorized RepresentativesState of Delaware;
(A7) the Opinions of Counsel;
(8) a favorable certificate signed by a Responsible Officer certifying that the conditions specified in Sections 4.01(c), 4.01(d) and 4.01(f) have been satisfied;
(9) written opinion (money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the LendersAdministrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of Weila Letter of Credit, Gotshal & Xxxxxx LLPa properly completed Letter of Credit Application; and
(11) such other assurances, special counsel certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Parties and Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(Be) a favorable written opinion (addressed The Company shall have paid to the Administrative Agent for the account of the Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party Co-Lead Arrangers pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,Fee Letters.
(Bf) each promissory note (if any) required There shall have occurred since December 31, 2011 no event or circumstance that has resulted or could reasonably be expected to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) result in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;a Material Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions hereunder are subject solely to the satisfaction or waiver Extension unless each of the following conditions precedentis satisfied:
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received executed counterparts of each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance Notes requested by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect a Lender pursuant to organizational documents filed with a Governmental Authority, by the applicable Governmental AuthoritySection 2.13;
(iii) copies a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors (or similar other governing body) body of each such Loan Party approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, together with specimen signatures and (in the case of the persons Borrower) authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentrequest a Credit Extension;
(iv) copies a certificate, signed by a Senior Financial Officer of the certificates Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if availableapplicable) for each Loan Party from the office Secretary of State (or analogous governmental entity) of the secretary jurisdiction of state or other appropriate governmental department or agency its organization as of a recent date, to the extent generally available in such jurisdiction; and
(vi) a written opinion of the state of its formationLoan Parties’ counsel, incorporation or organizationin form and substance acceptable to the Administrative Agent, as applicable;addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(vb) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a list material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower’s Authorized Representatives;Borrower and its Subsidiaries taken as a whole, since December 31, 2023, or (ii) the facts and information regarding such entities as represented by such entities to date.
(Af) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a favorable written opinion whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(addressed g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received (i) pro forma financial statements giving effect to the initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.8, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, and (iii) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2023.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and the Lenders) of Weilits counsel, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions hereunder are subject solely to the satisfaction or waiver Extension unless each of the following conditions precedentis satisfied:
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received executed counterparts of each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance Notes requested by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect a Lender pursuant to organizational documents filed with a Governmental Authority, by the applicable Governmental AuthoritySection 2.13;
(iii) copies a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors (or similar other governing body) body of each such Loan Party approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, together with specimen signatures and (in the case of the persons Borrower) authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentrequest a Credit Extension;
(iv) copies a certificate, signed by a Senior Financial Officer of the certificates Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if availableapplicable) for each Loan Party from the office Secretary of State (or analogous governmental entity) of the secretary jurisdiction of state or other appropriate governmental department or agency its organization as of a recent date, to the extent generally available in such jurisdiction; and
(vi) a written opinion of the state Loan Parties’ counsel, in form and substance acceptable to the Administrative Agent, addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(b) The Administrative Agent shall have received evidence reasonably satisfactory to it that the term loan credit facility currently in effect for the Borrower pursuant to that certain Term Loan Credit Agreement dated as of its formationMarch 3, incorporation or organization2020 among the Borrower, the Guarantor, the banks named therein, and KeyBank National Association, as applicable;administrative agent, has been terminated and cancelled, all Debt thereunder has been fully repaid (except to the extent being repaid with the initial Loans), and any Liens thereunder have been terminated and released.
(vc) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a list material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower’s Authorized Representatives;Borrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(Af) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a favorable written opinion whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(addressed g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received (i) pro forma financial statements giving effect to the initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.8, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, and (iii) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2021
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and the Lenders) of Weilits counsel, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;.
Appears in 1 contract
Initial Credit Extension. The obligations obligation of the L/C Issuer Banks and each Lender the Issuers to make their respective the initial Credit Extensions hereunder are Extension is subject solely to the satisfaction or waiver of the following conditions precedent:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received each all of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:, each properly executed by a Responsible Officer, each dated as of the date of this Agreement and each in form and substance satisfactory to the Administrative Agent and the Banks (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs): 721510353 03 42
(i1) a one executed counterpart of this Agreement signed on behalf of Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the BorrowerBanks and the Company;
(ii2) a Note executed by the Company in favor of each Bank requesting a Note;
(3) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board Board of directors (Directors or similar governing body) the executive committee of each Loan Party the Company approving and authorizing the execution, delivery and performance by the Company of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance date of this Agreement by its Secretary, the Secretary or an Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentof the Company;
(iv4) a certificate of the Secretary or Assistant Secretary of the Company, certifying the names, titles and true signatures of the Responsible Officers and any other officers of the Company authorized to execute and deliver the Loan Documents to which it is a party, upon which certificate the Administrative Agent, the Issuers and the Banks shall be entitled to rely until informed of any change in writing by the Company;
(5) copies of the certificates articles or certificate of good standing (if available) for each Loan Party from the office incorporation of the secretary Company as in effect on the date of state or other appropriate governmental department or agency this Agreement and the bylaws of the state Company as in effect on the date of its formationthis Agreement, incorporation certified by the Secretary or organization, Assistant Secretary of the Company as applicableof the date of this Agreement;
(v6) a list good standing certificate for the Company from the Secretary of State of the Borrower’s Authorized RepresentativesState of Delaware;
(A7) the Opinions of Counsel;
(8) a favorable certificate signed by a Responsible Officer certifying that the conditions specified in Sections 4.01(c), 4.01(d) and 4.01(f) have been satisfied;
(9) written opinion (money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the LendersAdministrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of Weila Letter of Credit, Gotshal & Xxxxxx LLPa properly completed Letter of Credit Application; and
(11) such other assurances, special counsel certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects. 721510353 03 43
(d) The Company shall be in compliance with all the terms and provisions of the Loan Parties and Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(Be) a favorable written opinion (addressed The Company shall have paid to the Administrative Agent for the account of the Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party Co-Lead Arrangers pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,Fee Letters.
(Bf) each promissory note (if any) required There shall have occurred since December 31, 2015 no event or circumstance that has resulted or could reasonably be expected to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) result in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;a Material Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions hereunder are subject solely to the satisfaction or waiver Extension unless each of the following conditions precedentis satisfied:
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received executed counterparts of each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance Notes requested by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect a Lender pursuant to organizational documents filed with a Governmental Authority, by the applicable Governmental AuthoritySection 2.13;
(iii) copies a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors (or similar other governing body) body of each such Loan Party approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, together with specimen signatures and (in the case of the persons Borrower) authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentrequest a Credit Extension;
(iv) copies a certificate, signed by a Senior Financial Officer of the certificates Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if availableapplicable) for each Loan Party from the office Secretary of State (or analogous governmental entity) of the secretary jurisdiction of state or other appropriate governmental department or agency its organization as of a recent date, to the extent generally available in such jurisdiction; and
(vi) a written opinion of the state of its formationLoan Parties’ counsel, incorporation or organizationin form and substance acceptable to the Administrative Agent, as applicable;addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(vb) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a list material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower’s Authorized Representatives;Borrower and its Subsidiaries taken as a whole, since December 31, 2024, or (ii) the facts and information regarding such entities as represented by such entities to date.
(Af) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a favorable written opinion whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(addressed g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of any Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2024.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Loan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and the Lenders) of Weilits counsel, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;.
Appears in 1 contract
Initial Credit Extension. The obligations obligation of the L/C Issuer Banks and each Lender the Issuers to make their respective the initial Credit Extensions hereunder are Extension is subject solely to the satisfaction or waiver of the following conditions precedent:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received each all of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:, each properly executed by a Responsible Officer, each dated as of the date of this Agreement and each in form and substance satisfactory to the Administrative Agent and the Banks (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):
(i1) a at least one executed counterpart of this Agreement signed on behalf of Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the BorrowerBanks and the Company;
(ii2) a Note executed by the Company in favor of each Bank requesting a Note;
(3) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board Board of directors (Directors or similar governing body) the executive committee of each Loan Party the Company approving and authorizing the execution, delivery and performance by the Company of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance date of this Agreement by its Secretary, the Secretary or an Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentof the Company;
(iv4) a certificate of the Secretary or Assistant Secretary of the Company, certifying the names, titles and true signatures of the Responsible Officers and any other officers of the Company authorized to execute and deliver the Loan Documents to which it is a party, upon which certificate the Administrative Agent, the Issuers and the Banks shall be entitled to rely until informed of any change in writing by the Company;
(5) copies of the certificates articles or certificate of good standing (if available) for each Loan Party from the office incorporation of the secretary Company as in effect on the date of state or other appropriate governmental department or agency this Agreement and the bylaws of the state Company as in effect on the date of its formationthis Agreement, incorporation certified by the Secretary or organization, Assistant Secretary of the Company as applicableof the date of this Agreement;
(v6) a list good standing certificate for the Company from the Secretary of State of the Borrower’s Authorized RepresentativesState of Delaware;
(A7) the Opinions of Counsel;
(8) a favorable certificate signed by a Responsible Officer certifying that the conditions specified in Sections 4.01(c), 4.01(d) and 4.01(f) have been satisfied;
(9) written opinion (money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the LendersAdministrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of Weila Letter of Credit, Gotshal & Xxxxxx LLPa properly completed Letter of Credit Application; and
(11) such other assurances, special counsel certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of U.S. Bank to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute U.S. Bank’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and U.S. Bank) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Parties and Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(Be) a favorable written opinion (addressed The Company shall have paid to the Administrative Agent for the account of the Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party Co-Lead Arrangers pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,Fee Letter.
(Bf) each promissory note (if any) required There shall have occurred since December 31, 2006 no event or circumstance that has resulted or could reasonably be expected to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) result in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;a Material Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations obligation of the L/C Issuer Banks and each Lender the Issuers to make their respective the initial Credit Extensions hereunder are Extension is subject solely to the satisfaction or waiver of the following conditions precedent:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received each all of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:, each properly executed by a Responsible Officer, each dated as of the date of this Agreement and each in form and substance satisfactory to the Administrative Agent and the Banks (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):
(i1) a one executed counterpart of this Agreement signed on behalf of Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the BorrowerBanks and the Company;
(ii2) a Note executed by the Company in favor of each Bank requesting a Note;
(3) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board Board of directors (Directors or similar governing body) the executive committee of each Loan Party the Company approving and authorizing the execution, delivery and performance by the Company of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance date of this Agreement by its Secretary, the Secretary or an Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentof the Company;
(iv4) a certificate of the Secretary or Assistant Secretary of the Company, certifying the names, titles and true signatures of the Responsible Officers and any other officers of the Company authorized to execute and deliver the Loan Documents to which it is a party, upon which certificate the Administrative Agent, the Issuers and the Banks shall be entitled to rely until informed of any change in writing by the Company;
(5) copies of the certificates articles or certificate of good standing (if available) for each Loan Party from the office incorporation of the secretary Company as in effect on the date of state or other appropriate governmental department or agency this Agreement and the bylaws of the state Company as in effect on the date of its formationthis Agreement, incorporation certified by the Secretary or organization, Assistant Secretary of the Company as applicableof the date of this Agreement;
(v6) a list good standing certificate for the Company from the Secretary of State of the Borrower’s Authorized RepresentativesState of Delaware;
(A7) the Opinions of Counsel;
(8) a favorable certificate signed by a Responsible Officer certifying that the conditions specified in Sections 4.01(c), 4.01(d) and 4.01(f) have been satisfied;
(9) written opinion (money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the LendersAdministrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of Weila Letter of Credit, Gotshal & Xxxxxx LLP, special counsel a properly completed Letter of Credit Application;
(11) at least five days prior to the Loan Parties Execution Date, all documentation and other information regarding the Company requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act, to the extent requested in writing of the Company at least 10 days prior to the Execution Date and (Bii) to the extent the Company qualifies as a favorable “legal entity customer” under the Beneficial Ownership Regulation, at least five days prior to the Execution Date, any Bank that has requested, in a written opinion notice to the Borrower at least 10 days prior to the Execution Date, a Beneficial Ownership Certification in relation to the Company shall have received such Beneficial Ownership Certification (addressed provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied); and
(12) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(e) The Company shall have paid (or shall concurrently pay with the proceeds of the initial Loans) to the Administrative Agent for the account of the Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party Co-Lead Arrangers pursuant to the Security Fee Letters and (ii) all amounts outstanding under the Existing Credit Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,.
(Bf) each promissory note (if any) required There shall have occurred since December 31, 2018 no event or circumstance that has resulted or could reasonably be expected to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) result in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;a Material Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender to make their respective initial Credit Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject in all respects to the final paragraph of this Section 3.2, the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the Borrower;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xii) evidence of the existence of insurance required to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.3(a), together with certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; provided that with respect to any insurance certificate or endorsement that may not be provided prior to the Closing Date after use of commercially reasonable efforts to do so, then delivery of such certificate or endorsement shall not constitute a condition precedent to the initial Loans on the Closing Date (but shall be required to be delivered as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such later date as the Administrative Agent may reasonably agree); and
(xiii) a true and complete copy of the Acquisition Agreement as in effect on the Closing Date;
(b) The condition in Section 3.01(a) of the Acquisition Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that the accuracy of such representation or warranty is a condition of the Borrower’s obligation to close under the Acquisition Agreement or the Borrower has (or the Borrower’s Affiliates have) the right to terminate the Borrower’s (or its Affiliate’s) obligations under the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement) shall be satisfied;
(c) the representations and warranties of the Borrower set forth in Sections 5.1(a) and (a), Section 5.2(i), Section 5.3, Section 5.7(a), Section 5.13, Section 5.20, Section 5.21(b) and Section 5.22 shall be true and correct in all material respects on and as of the Closing Date (except for any such representations and warranties expressly relating to an earlier date, which representations and warranties shall be true and correct in all material respects as of such earlier date);
(d) the NPC Acquisition shall have been or, substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, consummated, in accordance with the terms of the Acquisition Agreement (but without giving effect to any alterations, amendments, modifications, supplements, waivers or consents by the Borrower, or updated disclosure schedules delivered to the Borrower, that are, individually or in the aggregate, materially adverse to the Joint Lead Arrangers without their reasonable consent); provided that any updated disclosure schedules delivered to the Borrower shall not be deemed to be materially adverse to the Joint Lead Arrangers unless such updated disclosure schedules, together with all previous alterations, modifications, amendments, supplements, waivers and consents (whether or not consented to by the Joint Lead Arrangers), would result in a termination right under Section 6.06 of the Acquisition Agreement; provided further that (x) any reduction in the acquisition consideration by more than 10% shall be deemed to be materially adverse and (y) any reduction in the acquisition consideration of less than or equal to 10% shall reduce, on a dollar for dollar basis, the aggregate amount of the Facilities under this Agreement and Second Lien Loan Agreement (with allocations across the facilities as agreed by the Joint Lead Arrangers and the Borrower);
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing Loan Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) Target shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing NPC Credit Agreements, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(g) after giving effect to the NPC Acquisition and the financing contemplated hereby, the Borrower and its Subsidiaries shall have no material Indebtedness for borrowed money other than (a) pursuant to this Agreement and the Second Lien Loan Agreement and (b) Indebtedness listed on Schedule 6.14;
(h) since June 30, 2010, a Closing Date Material Adverse Effect shall not have occurred;
(i) the Administrative Agent shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least five Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(j) the Administrative Agent shall have received (a)(i) audited consolidated balance sheets of the Borrower for the two most recently completed fiscal years of the Borrower, (ii) audited consolidated statements of income and cash flows of the Borrower for the three most recently completed fiscal years of the Borrower, (iii) audited consolidated statements of stockholders’ equity of the Borrower for the six months ended December 31, 2009 and the one month ended June 30, 2009 and (iv) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target for the three most recently completed fiscal years of the Target, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”), (b) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower and the Target for each subsequent fiscal quarter ended at least 45 days before the Closing Date and (c) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the four-fiscal quarter period most recently ended pursuant to paragraph (a) or (b) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements);
(k) the Administrative Agent shall have received all fees, other payments and expenses previously agreed in writing by the Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least two Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;
(l) subject in all respects to the final paragraph of this Section 3.2, all other actions not identified in paragraph (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject to Permitted Liens and Liens (as defined in the Second Lien Loan Agreement) permitted under the Second Lien Loan Agreement, respectively) on the Collateral shall have been taken;
(m) the Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets of the Loan Parties are located; provided that with respect to any searches that may not be completed prior to the Closing Date after use of commercially reasonable efforts to do so, then delivery of such search results shall not constitute a condition precedent to the availability of the initial Loans on the Closing Date (but shall be required to be delivered as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such later date as the Administrative Agent may reasonably agree); and
(n) the Second Lien Loan Documents shall have been executed or, substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be consummated, in accordance with the terms and conditions thereof. For purposes of determining compliance with the conditions specified in this Section 3.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary in this Section 3.2, to the extent that any Collateral required to be provided or perfected hereunder is not provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, then the satisfaction of such requirements (other than the granting of any Lien on Collateral which may be perfected solely by the filing of a UCC financing statement or the pledge of the capital stock of the Borrower and the Guarantors) shall not be a condition precedent to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such later date as the Administrative Agent may reasonably agree).
Appears in 1 contract
Initial Credit Extension. The obligations obligation of the L/C Issuer Banks and each Lender the Issuers to make their respective the initial Credit Extensions hereunder are Extension is subject solely to the satisfaction or waiver of the following conditions precedent:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received each all of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:, each properly executed by a Responsible Officer, each dated as of the date of this Agreement and each in form and substance satisfactory to the Administrative Agent and the Banks (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):
(i1) a one executed counterpart of this Agreement signed on behalf of Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the BorrowerBanks and the Company;
(ii2) a Note executed by the Company in favor of each Bank requesting a Note;
(3) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board Board of directors (Directors or similar governing body) the executive committee of each Loan Party the Company approving and authorizing the execution, delivery and performance by the Company of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance date of this Agreement by its Secretary, the Secretary or an Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentof the Company;
(iv4) a certificate of the Secretary or Assistant Secretary of the Company, certifying the names, titles and true signatures of the Responsible Officers and any other officers of the Company authorized to execute and deliver the Loan Documents to which it is a party, upon which certificate the Administrative Agent, the Issuers and the Banks shall be entitled to rely until informed of any change in writing by the Company;
(5) copies of the certificates articles or certificate of good standing (if available) for each Loan Party from the office incorporation of the secretary Company as in effect on the date of state or other appropriate governmental department or agency this Agreement and the bylaws of the state Company as in effect on the date of its formationthis Agreement, incorporation certified by the Secretary or organization, Assistant Secretary of the Company as applicableof the date of this Agreement;
(v6) a list good standing certificate for the Company from the Secretary of State of the Borrower’s Authorized RepresentativesState of Delaware;
(A7) the Opinions of Counsel;
(8) a favorable certificate signed by a Responsible Officer certifying that the conditions specified in Sections 4.01(c), 4.01(d) and 4.01(f) have been satisfied; 709152408 03173762
(9) written opinion (money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the LendersAdministrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of Weila Letter of Credit, Gotshal & Xxxxxx LLPa properly completed Letter of Credit Application; and
(11) such other assurances, special counsel certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Parties and Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(Be) a favorable written opinion (addressed The Company shall have paid to the Administrative Agent for the account of the Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party Co-Lead Arrangers pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,Fee Letters.
(Bf) each promissory note (if any) required There shall have occurred since December 31, 2013 no event or circumstance that has resulted or could reasonably be expected to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) result in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;a Material Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender to make their respective initial Credit Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject in all respects to the final paragraph clause of this Section 3.2, the Administrative Agent shall have received each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the Borrower;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;
(iv) copies of the certificates of good standing (if available) for each Loan Party from the office of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(vi) (A) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & Xxxxxx LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & XxxxxxxxxxXxxx LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(xix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xix) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xi) evidence of the existence of insurance required to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.3(a), together with certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or lenders’ loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; and
(xii) the results of a recent Lien search with respect to each Loan Party, and such search shall reveal no Liens on any of the assets of the Loan Parties except for Liens permitted by Section 6.15 or discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agent.
(b) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects on and as of the Closing Date (except for any such representations and warranties expressly relating to an earlier date, which representations and warranties shall be true and correct in all material respects as of such earlier date);
(c) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) the Share Repurchase shall have been consummated;
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing Credit Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) the Administrative Agent shall have received all documentation and other information about the Loan Parties as shall have been reasonably requested in writing at least two (2) Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(g) the Administrative Agent shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed fiscal years of the Borrower, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”) and (b) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each subsequent fiscal quarter ended at least 45 days before the Closing Date;
(h) the Administrative Agent shall have received all fees, other payments and expenses previously agreed in writing by the Borrower to be due and payable on or prior to the Closing Date, including, to the extent invoiced at least two (2) Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;
(i) subject in all respects to the final paragraph of this Section 3.2, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject to Permitted Liens) on the Collateral shall have been taken; and
(j) the Administrative Agent shall have received the results of a recent Lien search in each of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets of the Loan Parties are located. For purposes of determining compliance with the conditions specified in this Section 3.2, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary in this Section 3.2, to the extent that any Collateral constituting real property is not provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, then the satisfaction of such requirements shall not be a condition precedent to the availability of the initial Loans on the Closing Date (but shall be required to be satisfied ninety (90) days after the Closing Date or such later date as the Administrative Agent may reasonably agree).
Appears in 1 contract
Samples: Loan Agreement (Vantiv, Inc.)
Initial Credit Extension. The obligations obligation of the L/C Issuer Banks and each Lender the Issuers to make their respective the initial Credit Extensions hereunder are Extension is subject solely to the satisfaction or waiver of the following conditions precedent:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) subject in all respects to the final paragraph of this Section 3.2, the The Administrative Agent shall have received each all of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:, each properly executed by a Responsible Officer, each dated as of the date of this Agreement and each in form and substance satisfactory to the Administrative Agent and the Banks (unless otherwise specified or, in the case of the date of any of the following, unless the Administrative Agent otherwise agrees or directs):
(i1) a at least one executed counterpart of this Agreement signed on behalf of Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the BorrowerBanks and the Company;
(ii2) Notes payable to the order of each of the Banks signatories hereto, each in a principal amount equal to such Bank’s Commitment;
(3) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of resolutions of the board Board of directors (Directors or similar governing body) the executive committee of each Loan Party the Company approving and authorizing the execution, delivery and performance by the Company of the Loan Documents to which it is a party, together with specimen signatures of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance date of this Agreement by its Secretary, the Secretary or an Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentof the Company;
(iv4) a certificate of the Secretary or Assistant Secretary of the Company, certifying the names, titles and true signatures of the Responsible Officers and any other officers of the Company authorized to execute and deliver the Loan Documents to which it is a party, upon which certificate the Administrative Agent, the Issuers and the Banks shall be entitled to rely until informed of any change in writing by the Company;
(5) copies of the certificates articles or certificate of good standing (if available) for each Loan Party from the office incorporation of the secretary Company as in effect on the date of state or other appropriate governmental department or agency this Agreement and the bylaws of the state Company as in effect on the date of its formationthis Agreement, incorporation certified by the Secretary or organization, Assistant Secretary of the Company as applicableof the date of this Agreement;
(v6) a list good standing certificate for the Company from the Secretary of the Borrower’s Authorized RepresentativesState of its state of incorporation;
(A7) the Opinions of Counsel;
(8) a favorable certificate signed by a Responsible Officer certifying that the conditions specified in Sections 4.01(d), 4.01(e) and 4.01(g) have been satisfied;
(9) written opinion (money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the LendersAdministrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of Weila Letter of Credit, Gotshal & Xxxxxx LLPa properly completed Letter of Credit Application; and
(11) such other assurances, special counsel certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) All obligations of the Company under the Existing Credit Agreement (other than contingent obligations with respect to Existing Letters of Credit) shall have been paid in full, and the Existing Credit Agreement shall have terminated.
(c) Attorney Costs of U.S. Bank to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute U.S. Bank’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and U.S. Bank) shall have been paid.
(d) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(e) The Company shall be in compliance with all the terms and provisions of the Loan Parties and Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(Bf) a favorable written opinion (addressed The Company shall have paid to the Administrative Agent for the account of the Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and the Lenders) of Cunningham, Blackburn, Xxxxxxx, Xxxxx & Xxxxxxxxxx, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party Co-Lead Arrangers pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,Fee Letter.
(Bg) each promissory note (if any) required There shall have occurred since December 31, 2004 no event or circumstance that has resulted or could reasonably be expected to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) result in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;a Material Adverse Effect.
Appears in 1 contract
