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 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Guaranty, duly executed by the Loan Parties; (ix) 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; (x) 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
Sources: Loan Agreement (Vantiv, Inc.)
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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in all respects Article V are true and correct as of such date and (b) the Borrower has furnished to the final clause of this Section 3.2, Agents with sufficient copies for 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar constitutive documents) of the Borrower and each Guarantor (each a "Loan Party"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments theretoParty, 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 such Loan Party's by-laws (or similar governing bodyconstitutive documents) and of each Loan Party approving its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrower, to request Credit Extensions hereunder, upon which certificate the Agents, the LC Issuers and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form 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 formationExhibit B, incorporation or organization, as applicable;
(v) a list signed by an Authorized Officer of the Borrower’s Authorized Representatives;, showing the calculations necessary to determine compliance with this Agreement as of the Borrower's fiscal quarter ended September 24, 2006 and stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(A) a favorable A written opinion (addressed to of the Administrative Agent Borrower's and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special each Guarantor's counsel to the Loan Parties and (B) a favorable written opinion (addressed of the Administrative Agent's counsel with respect to the Administrative Agent enforceability of this Agreement, the Notes and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLPGuaranty, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) an executed Solvency Certificate signed on behalf If the initial Credit Extension shall be the issuance of the Borrowera Facility LC, dated the date hereof;a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the Guarantyform of Exhibit D, duly executed by the Loan Parties;
(ix) 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 addressed to the Security AgreementAdministrative Agent and signed by an Authorized Officer, 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;
(x) 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 related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(ix) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(x) Such other documents as any Lender or its counsel may have reasonably requested, including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Applebees International Inc)
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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the final clause of this Section 3.2, Agents with sufficient copies for 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "LOAN PARTY"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments thereto, certified in each instance by of 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 by-laws (or similar governing bodyConstitutive Documents) and of each Loan Party approving its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrowers, to request Revolving Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form of Exhibit B, signed by the chief financial officer or treasurer of the certificates of good standing Company, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (if availablea) for each Loan Party from the office of the secretary of state no Default or other appropriate governmental department or agency of the state of its formationUnmatured Default has occurred and is continuing, 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Guaranty, duly executed by the Loan Parties;
(ix) 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;
(x) 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) all of 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 Article V shall be true and correct in all material respects as of such earlier date);
date and (c) no Default material adverse change in the business, financial condition or Event Default shall have operations of the Company or any of its Subsidiaries has occurred and be continuing or shall result therefrom;since November 30, 2001.
(dv) A certificate in form and substance satisfactory to the initial public offering of Vantiv’s Equity Interests shall have been consummated and the net cash proceeds thereof shall be Administrative Agent stating that there exists 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, injunction or substantially concurrently with temporary restraining order which would prohibit the making of the Borrowings hereunder initial Credit Extensions or any litigation seeking such an injunction or restraining order.
(vi) A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Transaction Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of Kenyon W. Murphy, General Counsel of the Borro▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇arantor, and Kilpatrick Stockton LLP, special counsel to th▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇h Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(viii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(x) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date shall repay, be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts outstanding under owed to the Existing Credit Agreement, all commitments lenders or agents thereunder shall have been, or substantially concurrently shall simultaneously with the making of initial Advance hereunder or the Borrowings hereunder on initial "Advance" under (and as defined in) the Closing Date shall 3-Year Credit Agreement be, terminated and all guarantees thereof and security therefor discharged and released;paid in full.
(fxi) Evidence satisfactory to the Administrative Agent shall have received all documentation and other information about Agents that the Loan Parties as 3-Year Credit Agreement shall have been duly executed by all parties thereto.
(xii) Such other documents as any Lender or its counsel may have 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 withwithout limitation, 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 identified on the List of 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 Documents attached hereto as the Administrative Agent may reasonably agree.Exhibit F.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Acuity Brands 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 clause 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 the Lenders) of Weilsigned by a Responsible Officer, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to together with such other related money transfer authorizations as the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance may have reasonably satisfactory to the Administrative Agentrequested;
(vii10) an executed Solvency Certificate signed on behalf if the initial Credit Extension will be the issuance of the Borrowera Letter of Credit, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares a properly completed Letter 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 thereofCredit Application; and
(C11) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) 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 Agentrequire.
(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 Borrower set forth Company contained in this Agreement Article V 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;respects.
(d) the initial public offering of Vantiv’s Equity Interests shall have been consummated and the net cash proceeds thereof The Company shall be no less than $400.0 million in compliance with all the terms and the Lead Arrangers shall have received a copy provisions of the effective Form S-1 registration statement;
(e) the Borrower shall have repaidLoan Documents, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repayand, 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 initial Advance, no Default or Event 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);Default shall exist.
(he) The Company shall have paid to the Administrative Agent shall for the account of the Banks such upfront fees as have received all fees, other payments and expenses previously been agreed in writing to by the Borrower to be due and payable on or prior to the Closing DateCompany, 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 and the Co-Lead Arrangers pursuant to the Fee Letters.
(f) There 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 3.2occurred since December 31, each Lender 2013 no event or circumstance that has signed this Agreement shall resulted or could reasonably be deemed expected 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 result in 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 agreeMaterial Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender Banks shall not be required to make their respective the initial Credit Extensions Extension hereunder are subject solely unless the Company has furnished to the satisfaction or waiver of Agent, with sufficient copies for the following conditions precedent:Banks: Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ -32-
(a) subject in all respects to the final clause of this Section 3.2, the Administrative Agent shall have received each Copies of the following, each articles or certificate of which shall be originals or facsimiles incorporation (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 similar constitutive documents) of the Company and each Guarantor (collectively, the "Loan Parties"), together with all amendments, and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization.
(b) Copies, certified by the Secretary or Assistant Secretary of each Loan Party and any amendments theretoParty, certified in each instance by of 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 By-Laws (or similar governing bodyconstitutive documents) and of each Loan Party approving its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Bank) authorizing the execution, delivery and performance execution 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;.
(ivc) 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 formationAn incumbency certificate, 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by Secretary or Assistant Secretary of each Loan Party, together with:which shall identify by name and title and bear the signature of the officers of such Loan Party authorized to sign the Loan Documents to which it is a party and to make borrowings hereunder, upon which certificate the Banks shall be entitled to rely until informed of any change in writing by the Company.
(Ad) the certificates representing the shares of Equity Interests required to be pledged A certificate, signed 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 Authorized Officer of the pledgor thereof,Company, stating that as of the date of the initial Credit Extension no Default or Unmatured Default has occurred and is continuing.
(Be) 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 A written opinion of the Loan Parties;' counsel, addressed to the Banks in substantially the form of Exhibit B hereto.
(xf) Notes payable to the Intellectual Property Security Agreements, duly executed by order of each Loan Party party thereto;of the Banks.
(xig) 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 Evidence 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 Banks that the Existing Credit AgreementAgreement shall have been, or shall simultaneously with any initial Credit Extension hereunder be, terminated and all commitments indebtedness and obligations thereunder shall have been, or substantially concurrently shall simultaneously with the making of the Borrowings any initial Credit Extension 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 paid 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);full.
(h) the Administrative Agent shall Such other documents as any Bank or its counsel may 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 agreerequested.
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 clause 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 the Lenders) of Weilsigned by a Responsible Officer, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to together with such other related money transfer authorizations as the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance may have reasonably satisfactory to the Administrative Agentrequested;
(vii10) an executed Solvency Certificate signed on behalf if the initial Credit Extension will be the issuance of the Borrowera Letter of Credit, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares a properly completed Letter 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 thereofCredit Application; and
(C11) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) 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 Agentrequire.
(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 Borrower set forth Company contained in this Agreement Article V 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;respects.
(d) the initial public offering of Vantiv’s Equity Interests shall have been consummated and the net cash proceeds thereof The Company shall be no less than $400.0 million in compliance with all the terms and the Lead Arrangers shall have received a copy provisions of the effective Form S-1 registration statement;
(e) the Borrower shall have repaidLoan Documents, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repayand, 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 initial Advance, no Default or Event 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);Default shall exist.
(he) The Company shall have paid to the Administrative Agent shall for the account of the Banks such upfront fees as have received all fees, other payments and expenses previously been agreed in writing to by the Borrower to be due and payable on or prior to the Closing DateCompany, 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 and the Co-Lead Arrangers pursuant to the Fee Letters.
(f) There 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 3.2occurred since December 31, each Lender 2011 no event or circumstance that has signed this Agreement shall resulted or could reasonably be deemed expected 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 result in 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 agreeMaterial 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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the final clause of this Section 3.2, Agents with sufficient copies for 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar Constitutive Documents) of the Company, each other Borrower and each Guarantor (each a “Loan Party”), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments thereto, certified in each instance by of 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 by-laws (or similar governing bodyConstitutive Documents) and of each Loan Party approving its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form of Exhibit B, signed by the chief financial officer or treasurer of the certificates of good standing Company, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (if availablea) for each Loan Party from the office no Default or Unmatured Default has occurred and is continuing, (b) all of the secretary representations and warranties in Article V shall be true and correct in all material respects as of state such date and (c) no material adverse change in the business, financial condition or other appropriate governmental department or agency operations of the state Company or any of its formationSubsidiaries has occurred since August 31, incorporation or organization, as applicable;2006.
(v) a list A certificate in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or temporary restraining order which would prohibit the making of the Borrower’s Authorized Representatives;initial Credit Extensions or any litigation seeking such an injunction or restraining order.
(Avi) a favorable written opinion (addressed A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and Arranger from the Lenderschief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of Weilthe initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan Documents, Gotshal will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(Bviii) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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) signed by an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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 AgreementAuthorized Officer, 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 other related money 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 authorizations as the Administrative Agent may deem have reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;requested.
(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 Evidence satisfactory to the Administrative Agent.
(b) Agents that the representations and warranties of the Borrower set forth in this Existing Credit 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 or 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 simultaneously on the Closing Date shall repay, be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts outstanding under owed to the Existing Credit Agreement, all commitments lenders or agents thereunder shall have been, or substantially concurrently shall simultaneously with the making of the Borrowings initial Advance hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;paid in full.
(fxii) the Administrative Agent shall Such other documents as any Lender or its counsel may 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 withwithout limitation, 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 identified on the List of 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 Documents attached hereto as the Administrative Agent may reasonably agree.Exhibit F.
Appears in 1 contract
Initial Credit Extension. The obligations of Lenders and the L/C Issuer and each Lender Issuing Banks shall not be required to make their respective the initial Credit Extensions Extension hereunder are subject solely to the satisfaction or waiver of unless the following conditions precedentprecedent have been satisfied and the Borrower has furnished to the Agent with sufficient copies for the Lenders and the Issuing Banks:
(a) subject in all respects to the final clause of this Section 3.2, the Administrative Agent shall have received each 4.1.1 Copies of the following, each articles or certificate 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 incorporation 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 together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in each instance its jurisdiction of incorporation.
4.1.2 Copies, certified by its Secretary, the Secretary or Assistant Secretary or Chief Financial Officer andof the Borrower, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower is a party.
4.1.3 An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, together with specimen signatures of upon which certificate 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) Lenders shall be entitled to rely until informed of Weilany change in writing by the Borrower.
4.1.4 A certificate, Gotshal & ▇▇▇▇▇▇ LLPsigned by the Chairman, special counsel to Chief Executive Officer, President, Executive Vice President, Chief Financial Officer, any Senior Vice President, any Vice President or the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Treasurer of the Borrower, dated stating that on the date hereof;
initial Credit Extension Date (viiia) the Guarantyno Default or Unmatured Default has occurred and is continuing, duly executed by the Loan Parties;
(ix) 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;
(x) 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) all of 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 Article V shall be true and correct in all material respects as of such earlier date);
date and (c) no Default material adverse change in the business, financial condition or Event Default operations of the Borrower and its Subsidiaries, taken as a whole, has occurred since December 31, 2003 except for the Disclosed Matters.
4.1.5 A written opinion of the Borrower's counsel, in form and substance satisfactory to the Agent and addressed to the Lenders, in substantially the form of Exhibit A.
4.1.6 Any Notes requested by a Lender pursuant to Section 2.16 payable to the order of each such requesting Lender.
4.1.7 Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
4.1.8 The Agent shall have occurred determined that (i) there is an absence of any material adverse change or disruption in primary or secondary loan syndication markets, financial markets or in capital markets generally that would likely impair syndication of the Loans hereunder, and be continuing or shall result therefrom;
(dii) the initial public offering of Vantiv’s Equity Interests Borrower has fully cooperated with the Agent's syndication efforts, including, without limitation, by providing the Agent with information regarding the Borrower's operations and prospects and such other information as the Agent deems necessary to successfully syndicate the Loans hereunder.
4.1.9 Evidence satisfactory to the Agent that the Existing Credit Agreements shall have been consummated and the net cash proceeds thereof or 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 simultaneously with the making effectiveness of the Borrowings hereunder this Agreement on the Closing Date shall repaybe terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding, all if any, and other amounts outstanding under owed to the Existing Credit Agreement, all commitments lenders or agents thereunder shall have been, or substantially concurrently shall simultaneously with the making effectiveness of this Agreement, paid in full.
4.1.10 Evidence satisfactory to the Borrowings hereunder on Agent that the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) the Administrative Agent Five-Year Credit Agreement shall have received been duly executed by all parties thereto.
4.1.11 All documentation and other information about the Loan Parties as that any Lender shall reasonably have been reasonably requested in writing at least five (5) Business Days prior order to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities comply with its ongoing obligations under applicable “"know your customer” " and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;.
(g) the Administrative Agent shall 4.1.12 Such other documents as any Lender or its counsel may 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 agreerequested.
Appears in 1 contract
Initial Credit Extension. 4.1.1 The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions Extension hereunder are subject solely unless the Borrower has furnished the following to the satisfaction or waiver of Agent with sufficient copies for the following conditions precedent:
(a) subject in all respects to the final 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formationformation or other applicable document of the Borrower, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any together with all amendments thereto, and certificates of good standing, each 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 Authorityappropriate governmental officer in Louisiana and certificates of good standing from each other jurisdiction where the Borrower is qualified to transact business;
(iii) copies of resolutions the articles or certificate of incorporation of the board Parent together with all amendments thereto, and a certificate of directors good standing, each certified by the appropriate governmental officer in Delaware and certificates of good standing from each other jurisdiction where the Parent is qualified to transact business;
(iv) copies of the certificate of formation, organization, incorporation or similar governing body) other applicable document of each Loan Party approving direct or indirect Subsidiary of the Borrower, together with all amendments thereto, and certificates of good standing, each certified by the appropriate governmental officer and certificates of good standing from each other jurisdiction where any such Subsidiary is qualified to transact business
(v) copies certified by the Secretary or Assistant Secretary of the Borrower of (i) its limited liability company agreement, and (ii) resolutions from its managers authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party, together with specimen signatures ;
(vi) copies certified by the Secretary or Assistant Secretary of the persons authorized to execute such documents on each Loan Party’s behalf, all certified as Parent of (i) its by-laws and (ii) resolutions of its Board of Directors authorizing the execution of the Closing Date in Loan Documents to which it is a party;
(vii) copies certified by the Authorized Officer of each instance Subsidiary of (i) its by-laws, limited liability company agreement or other similar document and (ii) resolutions of each such Subsidiary’s Managers, Members, or Board of Directors, as applicable, authorizing the execution of the Loan Documents to which it is a party;
(viii) incumbency certificates, executed by its the respective Secretary, Assistant Secretary or Chief Financial other Authorized Officer as being of the Borrower, the Parent and each Subsidiary which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers authorized to sign the Loan Documents to which the Borrower, the Parent and such Subsidiary, respectively is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in full force and effect without modification or amendmentwriting by the Borrower;
(ivix) copies a certificate, signed by the chief financial officer of the certificates Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing;
(x) written opinions of good standing counsel to the Borrower and the Guarantors addressed to the Agent and Lenders and their counsel in substantially the form of Exhibit D;
(xi) the Notes issued pursuant to Section 2.14 payable to the order of each Lender, and, if availablethe initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application;
(xii) for each Loan Party from the office Deeds of Trust, executed by the secretary of state Borrower or other appropriate governmental department or agency of the state of its formation, incorporation or organizationGuarantors, as applicable;
(v) , in a list form satisfactory to the Agent, the Lenders and their counsel with respect to the Properties therein described, which are part of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed Collateral, and such other agreements, documents and instruments as may be necessary and appropriate, in form and substance satisfactory to the Administrative Agent and the Lenders, executed and delivered by Borrower or the Guarantors, as applicable, , as mortgagor or assignor, in favor of the Agent, ratably for the benefit of the Lenders, in order to create and perfect the Lender Liens in and to all Collateral described therein;
(xiii) of Weilthe Pledge Agreements, Gotshal & ▇▇▇▇▇▇ LLPexecuted by the Parent, special counsel the Borrower and TDC Energy, in a form satisfactory to the Loan Parties Agent, the Lenders and their counsel with respect to the Properties therein described, which are a part of the Collateral;
(Bxiv) the Guaranties, executed by each Guarantor, in a favorable form satisfactory to the Agent, the Lenders, and their counsel;
(xv) written opinion (money transfer instructions, in substantially the form of Exhibit E, addressed to the Administrative Agent and signed by an Authorized Officer of the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLPBorrower, 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 together with such other related money transfer authorizations as the date hereofAgent may have reasonably requested;
(viiixvi) the Guaranty, duly executed by the Loan Parties;
(ix) 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 title opinions from counsel acceptable to the Security AgreementAgent, 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 or title reviews satisfactory 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;
(x) 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 Oil and properties Gas Properties included in the Collateral and in a form acceptable to the Agent and the Lenders, covering at least eighty percent (80%) of the Loan Parties that constitute Collateral; and
aggregate PDP Reserves of such Oil and Gas Properties and seventy percent (xii70%) 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 aggregate present worth 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)aggregate Proved Reserves;
(cxvii) no Default or Event Default shall have occurred and be continuing or shall result therefromthe Initial Reserve Report upon which the initial Borrowing Base has been determined acceptable to all the Lenders;
(dxviii) copies of any environmental reports regarding any environmental assessment of the initial public offering of Vantiv’s Equity Interests shall have been consummated Oil and Gas Properties included in the net cash proceeds thereof Collateral, which shall be no less than $400.0 million and the Lead Arrangers shall have received a copy of the effective Form S-1 registration statementacceptable to all Lenders;
(exix) 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 releasedinsurance certificate(s) described in Section 5.20;
(fxx) 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 detailed monthly projections (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 regulationsincluding balance sheets, 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 flow statements) for the Parent, the Borrower for each subsequent fiscal quarter ended at least 45 days before the Closing Date and (c) their Subsidiaries on a pro forma consolidated balance sheet and related pro forma consolidated statement of income of Vantiv basis as of and for the four-fiscal quarter period most recently ended pursuant to clause (a) or (b) aboveending December 31, prepared after giving effect 2005, which projections shall be acceptable to the Transactions as if the Transactions had occurred as of such date (Lenders in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements)their sole discretion;
(hxxi) the Administrative Agent shall have received all feesFinancial Statements described in Section 5.4;
(xxii) an Assignment of Notes, other payments Liens and expenses previously agreed Security Interests in writing by the Borrower to be due and payable on or prior form an substance satisfactory to the Closing DateAgent in its sole discretion, includingexecuted by each of the lenders currently party to the Prior Credit Agreement and
(xxiii) such other documents as any Lender or its counsel may have reasonably requested.
4.1.2 The Lenders shall not be required to make the initial Credit Extension hereunder unless the following conditions precedent are satisfied, to the extent invoiced at least two (2) Business Days prior to satisfaction of the Closing Date (or such later date as Agent and 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;Lenders:
(i) subject the Agent and the Lenders shall have satisfactorily completed their normal and customary due diligence in all respects connection with loans of the type contemplated by this Agreement;
(ii) this Agreement and any Lender Rate Management Transactions (including, without limitation, any Existing Rate Management Transactions) shall each be (or upon the execution, delivery and filing of the Loan Documents creating the Lenders’ Liens each shall be) secured by the Lender Liens;
(iii) the Agent and the Lenders shall have reviewed and become satisfied with any changes in the composition of the Borrower’s Board of Directors and executive management occurring prior 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 date of the Secured Partiesinitial Credit Extension;
(iv) will there shall not have a perfected Lien (subject to Permitted Liens) been any Material Adverse Effect on the Collateral shall have been takenParent, the Borrower or any of their Subsidiaries since September 30, 2005; and
(jv) the Administrative Agent shall have received the results payment of a recent Lien search in each of the jurisdictions of organization of each Loan Party all facility 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 administrative fees 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 paid pursuant 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 Loan Document and the Guarantors) shall not be a condition precedent to the availability Fee Letter and legal fees and disbursements 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 agreeAgent’s counsel.
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 Extension hereunder are subject solely unless the Borrower has furnished to the satisfaction or waiver of Agent with sufficient copies for the following conditions precedent:
(a) subject in all respects to the final 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 specifiedLenders:
(i) a counterpart Copies of this Agreement signed on behalf the articles or certificate of incorporation of the Borrower;, together with all amendments thereto, and a certificate of good standing of the Borrower, each certified by the appropriate governmental officer in its jurisdiction of incorporation; any other information required by Section 326 of the USA PATRIOT ACT or necessary for the Agent or any Lender to verify the identity of Borrower as required by Section 326 of the USA PATRIOT ACT; and such comparable documents as Agent may require with respect to the Guarantors.
(ii) copies Copies, certified by the Secretary or Assistant Secretary of the certificate Borrower, of formation, certificate its by-laws and of organization, operating agreement, articles its Board of incorporation Directors’ resolutions 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 or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower is a partyparty and copies, together with specimen signatures of certified by 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 comparable officer of each Guarantor of the Board of Directors’ resolutions and of resolutions or actions of any other party authorizing the execution of the Guaranty.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Responsible Officials and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower; and such comparable certificates as being in full force and effect without modification or amendment;Agent may require with respect to the Guarantors.
(iv) copies A certificate, signed by the chief financial officer of the certificates of good standing (if available) for each Loan Party from Borrower, stating that on the office of the secretary of state initial Credit Extension Date no Default or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;Unmatured Default has occurred and is continuing.
(v) a list Written opinions of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (and Guarantor’s counsel, addressed to the Administrative Agent Lenders in substantially the forms of Exhibits G-1 and the LendersG-2.
(vi) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel The Swing Line Note and any Notes requested by a Lender pursuant to Section 2.13 payable to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) order of ▇▇▇▇▇ ▇▇▇▇ 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;such requesting Lender.
(vii) an executed Solvency Certificate Written money transfer instructions, in substantially the form of Exhibit H, addressed to the Agent and signed on behalf of by a Responsible Official, together with such other related money transfer authorizations as the Borrower, dated the date hereof;Agent may have reasonably requested.
(viii) Evidence satisfactory to the Guaranty, duly executed by Agent that all Indebtedness (other than the Loan Parties;Existing LCs) under the Existing Credit Agreement shall have been simultaneously paid in full and the Existing Credit Agreement shall have been terminated.
(ix) 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;
(x) 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, Such other documents as the case Agent or its counsel 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 agreerequested.
Appears in 1 contract
Sources: Credit Agreement (Ryland Group 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 clause 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 the Lenders) of Weilsigned by a Responsible Officer, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to together with such other related money transfer authorizations as the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance may have reasonably satisfactory to the Administrative Agentrequested;
(vii10) an executed Solvency Certificate signed on behalf if the initial Credit Extension will be the issuance of the Borrowera Letter of Credit, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares a properly completed Letter 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 thereofCredit Application; and
(C11) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) 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 Agentrequire.
(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 Borrower set forth Company contained in this Agreement Article V 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;respects. 721510353 03 43
(d) the initial public offering of Vantiv’s Equity Interests shall have been consummated and the net cash proceeds thereof The Company shall be no less than $400.0 million in compliance with all the terms and the Lead Arrangers shall have received a copy provisions of the effective Form S-1 registration statement;
(e) the Borrower shall have repaidLoan Documents, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repayand, 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 initial Advance, no Default or Event 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);Default shall exist.
(he) The Company shall have paid to the Administrative Agent shall for the account of the Banks such upfront fees as have received all fees, other payments and expenses previously been agreed in writing to by the Borrower to be due and payable on or prior to the Closing DateCompany, 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 and the Co-Lead Arrangers pursuant to the Fee Letters.
(f) There 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 3.2occurred since December 31, each Lender 2015 no event or circumstance that has signed this Agreement shall resulted or could reasonably be deemed expected 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 result in 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 agreeMaterial Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The initial Credit Extension on the Closing Date (and the obligations of the L/C Issuer and each Lender Lenders in respect thereof) is subject to make their respective initial Credit Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
(a) subject The Administrative Agent and Blackstone Representative shall have received a counterpart duly executed and delivered by the Borrower, each other Loan Party, the Agents and each Lender (in all respects each case, to the final clause of this Section 3.2, extent it is a party to such agreement) (or written evidence satisfactory to the Administrative Agent shall have received each of the following, each of (which shall be originals may include telecopy or facsimiles (or delivered by other electronic transmission, including .pdftransmission of a counterpart) unless otherwise specified:
that such party has signed a counterpart) of (i) a counterpart of this Agreement signed and (ii) each Collateral Document to which it is a party;
(b) The Administrative Agent and Blackstone Representative shall have received, on behalf of itself, the BorrowerCollateral Agent and the Lenders, the favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties in form and substance reasonably satisfactory to the Blackstone Representative, dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders;
(iic) The Administrative Agent and Blackstone Representative shall have received, with respect to the Borrower and each other Loan Party, (i) copies of the Organizational Documents of such Loan Party (including each amendment thereto) certified as of a date reasonably near the Closing Date as being a true and complete copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized; (ii) a certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (the secretary or comparable organizational documents) assistant secretary of each Loan Party dated the Closing Date and any amendments theretocertifying (A) that attached thereto is a true and complete copy of the Organizational Documents of such Loan Party as in effect on the Closing Date, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with (B) that attached thereto is a Governmental Authority, by the applicable Governmental Authority;
(iii) copies true and complete copy of resolutions of duly adopted by the board of directors (or similar governing body) body of each such Loan Party (and, if applicable, any parent company of such Loan Party) approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a party, together with specimen signatures party and the consummation of the persons authorized to execute US-DOCS\155537880.27 Transactions, and that such documents on each Loan Party’s behalfresolutions have not been modified, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary rescinded or Chief Financial Officer as being amended and are in full force and effect without modification effect, and (C) as to the incumbency and specimen signature of each Person authorized to execute any Loan Document or amendment;
any other document delivered in connection herewith on behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (ii) above and (iv) copies a copy of the certificates certificate of good standing (if available) for each of such Loan Party from the office Secretary of State or other applicable Governmental Authority 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company jurisdiction in the state of Nebraska in which 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 Guaranty, duly executed by the Loan Parties;
(ix) 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 such 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,
is organized (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;
(x) 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, dated 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 date reasonably near 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 dateDate);
(c) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) The Administrative Agent and the initial public offering of Vantiv’s Equity Interests Collateral Agent shall have received, on or before the Closing Date, all documents and instruments, including Uniform Commercial Code financing statements required by Law or reasonably requested by the Blackstone Representative (to the extent required by the Security Agreement) to be filed, registered, published or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such documents and instruments shall have been consummated and so filed, registered, published or recorded or other arrangements reasonably satisfactory to the net cash proceeds thereof shall be no less than $400.0 million and the Lead Arrangers Blackstone Representative for such filing, registration, publication or recordation shall have received a copy of the effective Form S-1 registration statementbeen made;
(e) the Borrower The Administrative Agent and Blackstone Representative shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on received a completed Perfection Certificate dated 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 and signed by a Responsible Officer of the Borrowings hereunder on the Closing Date shall beLoan Parties, terminated and together with all guarantees thereof and security therefor discharged and releasedattachments contemplated thereby;
(f) the 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 three (53) Business Days prior to the Closing Date by (x) a Beneficial Ownership Certificate with respect to the Administrative Agent that the Administrative Agent shall have reasonably determined is Borrower and (y) all other documentation and other information required by bank regulatory authorities under applicable “know your know-your-customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;USA PATRIOT Act and the Beneficial Ownership Regulation, that has been reasonably requested by any Lender at least ten (10) days in advance of the Closing Date.
(g) The Administrative Agent and Blackstone Representative shall have received a Solvency Certificate signed by a Financial Officer;
(h) The Administrative Agent and Blackstone Representative shall have received a certificate of a Responsible Officer of the Borrower as to the matters set forth in clause (b) and (c) of Section 4.2;
(i) (x) The Arrangers and the Administrative Agent shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of or shall receive substantially concurrently with 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 initial Credit Extension on or prior to the Closing Date, including), to the extent invoiced at least two (2) Business Days prior to the Closing Date, all fees and other amounts due and payable on or prior to the Closing Date (or such later date as pursuant to the Borrower may reasonably agree)Loan Documents, including 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 the Loan Party Parties hereunder or under any other Loan Document;
Document and (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
(jy) the Administrative Agent shall have received a fully executed copy of the results Agent Fee Letter;
(j) The Administrative Agent and Blackstone Representative shall have received copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Blackstone Representative at least three (3) Business Days prior to the Closing Date with respect to the Loan Parties;
(k) The Administrative Agent and Blackstone Representative shall have received a certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Blackstone Representative that all insurance required to be maintained pursuant to Section 5.5 is in full US-DOCS\155537880.27 force and effect, together with endorsements naming the Administrative Agent or the Collateral Agent as additional insured or lender’s loss payee thereunder (as applicable);
(l) The Administrative Agent and Blackstone Representative shall have received the Agreement Among Lenders dated the Closing Date and duly executed and delivered by each Lender and the Agents;
(m) Prior to or substantially concurrently with the initial funding of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets Loans hereunder on the Closing Date, all existing third party debt for borrowed money of the Loan Parties are located. For purposes of determining compliance with Borrower and its Subsidiaries under the conditions specified in this Section 3.2Existing Credit Agreement will be repaid, each Lender that has signed this Agreement redeemed, defeased, discharged, refinanced or terminated, all commitments to extend credit thereunder shall be deemed terminated, and all related guaranties and security interests will be terminated and released 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 reasonable satisfaction of the Blackstone Representative; and
(n) The Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to executed Funding Direction Letter with 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 agreefunds flow attached.
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 Extension hereunder are subject solely unless the Credit Parties have furnished to the satisfaction or waiver of Agent with sufficient copies for the following conditions precedent:
(a) subject in all respects to the final 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 specifiedLenders:
(i) a counterpart Copies of this Agreement signed on behalf (a) the restated certificate of incorporation of the Borrower certified by the Secretary or an Assistant Secretary of the Borrower;, together with good standing certificates issued as of a recent date by the Secretaries of State of Delaware and Alabama and (b) the articles or certificate of incorporation of TMK Re, together with all amendments thereto, certified by the Registrar of Companies of Bermuda, together with a good standing certificate (or its equivalent) issued by the Registrar of Companies of Bermuda.
(ii) copies Copies, certified by the Secretary or an Assistant Secretary of each Credit Party, of its by-laws and Board of Directors' resolutions authorizing the execution 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;Documents.
(iii) copies An incumbency certificate, executed by the Secretary or an Assistant Secretary of resolutions each Credit Party, which shall identify by name and title and bear the signature of the board of directors (or similar governing body) officers of each Loan Credit Party approving and authorizing the execution, delivery and performance of authorized to sign the Loan Documents and to make borrowings hereunder, upon which it is a partycertificate the Agent, together with specimen signatures the LC Issuer and the Lenders shall be entitled to rely until informed of the persons authorized to execute any change in writing by such documents on each Loan Credit 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 A certificate, signed by the Chief Financial Officer or the Treasurer of each Credit Party, stating that on the date hereof (a) no Default or Unmatured Default has occurred and is continuing and (b) each of the certificates representations and warranties set forth in Article V of good standing (if available) for each Loan Party from the office this Agreement is true and correct as of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;such date.
(va) a list of the Borrower’s Authorized Representatives;
(A) a favorable A written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Executive Vice President and General Counsel of the Borrower, and (b) a written opinion of Appelby, ▇▇▇▇▇▇▇▇ LLP& Kempe, local special Bermuda counsel to National Processing Company in the state of Nebraska in each case Credit Parties, addressed to the Agent, the LC Issuer and the Lenders in form and substance reasonably satisfactory to the Administrative Agent;Agent and its counsel.
(vi) Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Written money transfer instructions, in substantially the form of Exhibit "D" hereto, addressed to the Agent and signed by an executed Solvency Certificate signed on behalf of Authorized Officer, together with such other related money transfer authorizations as the Borrower, dated the date hereof;Agent may have reasonably requested.
(viii) the GuarantyThe Existing Credit Agreements shall have been terminated and all amounts owing thereunder (including principal, duly executed by the Loan Parties;interest and accrued fees) shall have been paid (or shall contemporaneously be paid) in full, and all reimbursement obligations in respect of letter of credit issued thereunder shall have been terminated.
(ix) the Security AgreementA copy of TMK Re's license under The Insurance ▇▇▇ ▇▇▇▇, 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 certified by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC Authorized Officer 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;TMK Re.
(x) Receipt of any required regulatory approvals from any Governmental Authority with respect to the Intellectual Property Security Agreementstransactions contemplated by the Loan Documents, duly executed including all hearing orders issued by each Loan Party party thereto;insurance regulatory authorities.
(xi) evidence of Such other documents as any Lender, the existence of insurance required to be maintained by the Borrower and LC Issuer or 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 counsel 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 agreerequested.
Appears in 1 contract
Sources: Credit Agreement (Torchmark Corp)
Initial Credit Extension. The obligations effectiveness of this Agreement and the obligation of the L/C Issuer and each Lender Lenders to make their respective the initial Credit Extensions Extension hereunder are shall be subject solely to the satisfaction or waiver of the following conditions precedentprecedent and, if applicable, the delivery by the Borrower to the Agent sufficient copies for the Lenders of:
(a) subject in all respects to the final 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 Copies of the certificate of formationformation of the Borrower, together with all amendments, certified by the appropriate governmental officer in the State of Delaware and certified by the secretary or assistant secretary of the Borrower and (b) a certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments theretogood standing, 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;appropriate governmental officer in the State of Delaware.
(iii) copies 4.1.2 Copies, certified by the secretary or assistant secretary of the Borrower, of its limited liability company agreement and of its Board of Directors’ resolutions and of resolutions or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower is a party.
4.1.3 An incumbency certificate, certified by the secretary or assistant secretary of the Borrower, which shall (i) identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents (together with the Authorized Officers, being collectively, the “Designated Persons” and each being a “Designated Person”) to which the Borrower is a party, together with specimen signatures of upon which certificate 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 LendersLenders shall be entitled to rely until informed of any change in writing by the Borrower and (ii) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel certify as to the Loan Parties tax identification number and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 business address of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed as well as any other information reasonably requested in writing by the Loan Parties;
(ix) 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 Agent or 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;
(x) 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 Lender prior to the Closing Date pursuant as necessary for the Agent or any Lender to documentation satisfactory verify the identity of the Borrower as required by Section 326 of the Patriot Act.
4.1.4 A certificate, signed by the chief financial officer or treasurer of the Borrower, stating that (a) as of the Closing Date, there are no material actions, suits, investigations or legal, equitable, arbitration or administrative proceedings pending or, to the Administrative Agent.
best of such officer’s knowledge, threatened against the Borrower in writing which could reasonably be expected to have a Material Adverse Effect, (b) as of the Closing Date, no event or condition has occurred since December 31, 2006 that has had or could reasonably be expected to have a Material Adverse Effect, (c) all material financial statements and information delivered to the Agent and the Lenders on or before the Closing Date were prepared in good faith and, in the case of such financial statements, in accordance with GAAP and (d) immediately after giving effect to this Agreement, the other Loan Documents and all the transactions contemplated herein and therein to occur on the Closing Date, (A) no Default or Unmatured Default exists and (B) all representations and warranties of contained herein and in the Borrower set forth in this Agreement shall be other Loan Documents are true and correct in all material respects on and as of the Closing Date date made (except for any to the extent such representations and warranties expressly relating speak to an earlier date, in which representations and warranties case such representation or warranty shall be have been true and correct in all material respects on and as of such earlier date);.
(c) 4.1.5 A written opinion of the Borrower’s counsels, in form and substance satisfactory to the Agent and addressed to the Lenders, in substantially the form of Exhibit A.
4.1.6 Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
4.1.7 Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by a Designated Person, together with such other related money transfer authorizations as the Agent may have reasonably requested.
4.1.8 The Agent shall have received duly executed copies of this Agreement from each party hereto.
4.1.9 As of the Closing Date, there shall be no Default material actions, suits, investigations or Event Default legal, equitable, arbitration or administrative proceedings pending or threatened against the Borrower which are reasonably likely to be decided adversely to the Borrower and if so decided would have a Material Adverse Effect.
4.1.10 As of the Closing Date, no event or condition shall have occurred and since December 31, 2006 that has had or could be continuing or shall result therefrom;reasonably expected to have a Material Adverse Effect.
(d) the initial public offering 4.1.11 The aggregate amount 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 Commitments of the effective Form S-1 registration statement;
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder all Lenders on the Closing Date shall repay, all amounts outstanding under be not less than $250,000,000.
4.1.12 Completion prior to or concurrently herewith of the Existing Credit Agreement, all commitments thereunder shall have been, or substantially concurrently initial public offering (the “IPO”) of the limited partnership units of the MLP on terms consistent with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
form S-1 (fas amended) 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 filed by the Borrower with the SEC on November 29, 2007, with such amendments and modifications thereto which are not materially adverse to be the Agent and the Lenders.
4.1.13 Payment by the Borrower of all fees and expenses owed by it to the Lenders, the Agent and the Arrangers which are 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)without limitation, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed the fees set forth in the Fee Letters.
4.1.14 Such other documents as any Lender 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 its counsel may have a perfected Lien (subject to Permitted Liens) on the Collateral shall have been taken; and
(j) the Administrative reasonably requested. The 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 promptly notify the Borrower and the Guarantors) shall not be a condition precedent to the availability Lenders of the initial Loans on the Closing Date (but Date, and such notice shall be required to be satisfied ninety (90) days after the Closing Date or such later date as the Administrative Agent may reasonably agreeconclusive and binding on all parties hereto.
Appears in 1 contract
Initial Credit Extension. The obligations This Agreement shall become effective upon and the obligation of the L/C Issuer Lenders and each Lender the Issuers to make their respective the initial Credit Extensions Extension hereunder are is subject solely to the satisfaction or waiver Administrative Agent’s receipt of the following conditions precedent:
(a) subject in all respects fees required to be paid to the final clause Administrative Agent, the Arrangers and the Lenders on the date hereof (including the reasonable fees and expenses of this Section 3.2, counsel to the Administrative Agent shall for which reasonably detailed invoices have received each been presented on or prior to the date hereof), (b) evidence that, prior to or concurrently with the effectiveness of this Agreement, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated, and (c) all of the following, in form and substance satisfactory to each of which shall be originals or facsimiles (or delivered by other electronic transmissionAgent and each Lender, including .pdf) unless otherwise specifiedand in sufficient copies for each Lender:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificate of incorporation of the Borrower and the Guarantor, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower and the Guarantor, and a certificate of good standing, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower and the Guarantor, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower or the Guarantor as required by Section 326 of the USA PATRIOT ACT.
(ii) copies Copies, certified by the Secretary or an Assistant Secretary of each of the certificate Borrower and the Guarantor, of formation, certificate the by-laws of organization, operating agreement, articles of incorporation and bylawsthe Borrower or the Guarantor, as applicable (or comparable organizational documents) applicable, and the Board of each Loan Party Directors’ resolutions 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 or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower or the Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of each of the Borrower and the Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and the Guarantor authorized to sign the Loan Documents to which the Borrower or the Guarantor 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 upon which certificate the Administrative Agent and the Lenders) Lenders shall be entitled to rely until informed of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to any change in writing by the Loan Parties and (B) a favorable written opinion (addressed to Borrower or the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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;Guarantor.
(viiiv) A certificate, signed by an executed Solvency Certificate signed on behalf Authorized Officer of the Borrower, dated stating that (A) on the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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,
no Default or Unmatured Default has occurred and is continuing and (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;
(x) 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 contained 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 Article VI are true and correct in all material respects as of such earlier date);the date hereof.
(cv) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) the initial public offering A written opinion 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 counsel 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 Guarantor, addressed to the availability Administrative Agent and the Lenders in a form reasonably satisfactory to the Administrative Agent and its counsel.
(vi) Executed counterparts of this Agreement executed by the Borrower, the Guarantor, the Administrative Agent, each Issuer and each Lender.
(vii) Any Revolving Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and the Swing Line Note.
(viii) If the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(ix) Evidence of the initial Loans on effectiveness of the Closing Date Great Plains Credit Agreement and the KCPL Credit Agreement.
(but shall be required x) Written money transfer instructions, in substantially the form of Exhibit C, addressed to be satisfied ninety (90) days after the Closing Date or Administrative Agent and signed by an Authorized Officer of the Borrower who has executed and delivered an incumbency certificate in accordance with the terms hereof, together with such later date other related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(xi) Such other documents as any Lender or its counsel may have reasonably requested.
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 Extension hereunder are subject solely unless the Borrower has furnished to the satisfaction or waiver of Agent with sufficient copies for the following conditions precedentLenders:
(a) subject in all respects to the final clause of this Section 3.2, the Administrative Agent shall have received each Copies of the following, each articles or certificate 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 incorporation of the Borrower;
(ii) copies of the , together with all amendments, and a certificate of formationgood standing, certificate of organization, operating agreement, articles each certified by the appropriate governmental officer in its jurisdiction of incorporation and bylaws, as applicable accompanied by a certification by the Secretary or Assistant Secretary of the Borrower that there have been no changes in the matters certified by such governmental officer since the date of such governmental officer's certification.
(or comparable organizational documentsb) of each Loan Party and any amendments theretoCopies, certified in each instance by its Secretary, the Secretary or Assistant Secretary or Chief Financial Officer andof the Borrower, with respect to organizational documents filed with a Governmental Authority, by the applicable Governmental Authority;
(iii) copies of its by-laws and of its Board of Directors' resolutions and of resolutions or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower is a party.
(c) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower authorized to sign the Loan Documents to which the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(d) Copies of the articles or certificate of incorporation or organization of each Guarantor, together with specimen all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation or organization and in each case accompanied by a certification by the Secretary or Assistant Secretary of such Guarantor that there have been no changes in the matters certified by such governmental officer since the date of such governmental officer's certification.
(e) Copies, certified by the Secretary or Assistant Secretary of each Guarantor, of its by-laws or its operating or other management agreement and of resolutions of its Board of Director or members and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which each Guarantor is a party.
(f) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Guarantor, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of each Guarantor authorized to execute such documents on sign the Loan Documents to which each Loan Party’s behalfGuarantor is a party, all certified as of upon which certificate 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) Lenders shall be entitled to rely until informed of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company any change in the state of Nebraska in writing by each case in form and substance reasonably satisfactory to the Administrative Agent;Guarantor.
(viig) an executed Solvency Certificate A certificate, signed on behalf by the chief financial officer of the Borrower, dated stating that on the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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;
(x) 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 initial Credit Extension 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 Unmatured Default shall have has 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);continuing.
(h) A written opinion of the Administrative Agent shall have received all feesBorrower's and the Guarantors' counsel, other payments and expenses previously agreed in writing by the Borrower to be due and payable on or prior addressed to the Closing Date, including, to Lenders in substantially 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 form 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;Exhibit A.
(i) subject in all respects Any Notes requested by a Lender pursuant to Section 2.13 payable to the final paragraph order 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; andeach such requesting Lender.
(j) Written money transfer instructions, in substantially the Administrative form of Exhibit D, addressed to the Agent shall and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have received reasonably requested.
(k) If the results initial Credit Extension will be the issuance of a recent Lien search in Facility LC, a properly completed Facility LC Application.
(l) A Guaranty executed by 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 Material Domestic Subsidiary.
(m) Such other documents as any Lender that has signed this Agreement shall be deemed to or its counsel may 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 agreerequested.
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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the final clause of this Section 3.2, Agents with sufficient copies for 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "LOAN PARTY"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments thereto, certified in each instance by of 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 by-laws (or similar governing bodyConstitutive Documents) and of each Loan Party approving its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form of Exhibit B, signed by the chief financial officer or treasurer of the certificates of good standing Company, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (if availablea) for each Loan Party from the office no Default or Unmatured Default has occurred and is continuing, (b) all of the secretary representations and warranties in Article V shall be true and correct in all material respects as of state such date and (c) no material adverse change in the business, financial condition or other appropriate governmental department operations of NSI or agency of the state any of its formationSubsidiaries has occurred since May 31, incorporation or organization, as applicable;2001.
(v) a list A certificate in form and substance satisfactory to the Administrative Agent, signed by the chief financial officer of the Borrower’s Authorized Representatives;Company in his or her representative capacity, stating that on the date of the initial funding hereunder, after taking into consideration all information available at such time, such officer does not know of any information that would prevent the Net Worth Condition from being satisfied as of the Spin-Off Date, after giving effect to the Spin-Off Transactions and after all post-closing adjustments or other transactions between the Company or any of its Subsidiaries and NSI have been made in connection therewith.
(Avi) a favorable written opinion A certificate in form and substance satisfactory to the Administrative Agent from the chief financial officer of the Company (addressed in his or her representative capacity on behalf of the Company) stating that on the date of the initial funding hereunder (i) all conditions precedent to the consummation of the Spin-Off have been satisfied in all material respects; (ii) the Spin-Off Transactions have been approved by all necessary corporate action of NSI's and the Borrower's Boards of Directors and, if required, shareholders, and the terms of the Spin-Off Transactions have not been amended, waived or modified in any material respect from those set forth in the Form 10 without the approval of the Administrative Agent (such approval not to be unreasonably withheld); (iii) the Tax Opinion has been obtained for the consummation of the Spin-Off Transactions; (iv) the Company and its Subsidiaries (both before and after giving effect to the Spin-Off) have received all necessary corporate and regulatory approvals for the consummation of the Spin-Off Transactions and the financing contemplated hereby; and (v) except as disclosed on Schedule 5.5, there has been no material adverse change from the information set forth in the Form 10, the Pro Forma Financial Statements or the Projections.
(vii) A certificate in form and substance satisfactory to the Administrative Agent stating that all required material governmental approvals related to the Spin-Off Transactions have been obtained and all related filings made and any applicable waiting periods shall have expired or been terminated.
(viii) A certificate in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or temporary restraining order which would prohibit the making of the initial Credit Extensions or the consummation of the Spin-Off Transactions and the other transactions contemplated by the Transaction Documents or any litigation seeking such an injunction or restraining order.
(ix) A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and Arranger from the Lenderschief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of Weilthe initial funding date, Gotshal & after giving effect to the Spin-Off Transactions, the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Transaction Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes, which information shall be consistent in all material respects with the Pro Forma Financial Statements and Projections.
(x) Written opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Borrowers and each Guarantor, and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(Bxi) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(xii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(xiii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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) signed by an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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 AgreementAuthorized Officer, 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;
(x) 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 related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(xiv) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(xv) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (L&c Spinco Inc)
Initial Credit Extension. The obligations of Lenders and the L/C Issuer and each Lender Issuing Banks shall not be required to make their respective the initial Credit Extensions Extension hereunder are subject solely to the satisfaction or waiver of unless the following conditions precedentprecedent have been satisfied and the Borrowers have furnished to the Agent with sufficient copies for the Lenders and the Issuing Banks:
(a) subject in all respects to the final clause of this Section 3.2, the Administrative Agent shall have received each 4.1.1 Copies of the following, each of which shall be originals articles 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 Borrower, together with all amendments thereto, certified by the appropriate governmental officer in each instance by its Secretarythe jurisdiction of incorporation of such Borrower, Assistant Secretary or Chief Financial Officer and, and a certificate of good standing with respect to organizational documents filed with a Governmental Authorityeach Borrower from the appropriate governmental officer in its jurisdiction of incorporation.
4.1.2 Copies, certified by the applicable Governmental Authority;
(iii) copies Secretary or Assistant Secretary of each Borrower, of its by-laws and of its Board of Directors’ resolutions and of resolutions or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it such Borrower is a party.
4.1.3 An incumbency certificate, executed by the Secretary or Assistant Secretary of each Borrower, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of such Borrower authorized to sign the Loan Documents to which such Borrower is a party, together with specimen signatures of upon which certificate 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) Lenders shall be entitled to rely until informed of Weilany change in writing by such Borrower.
4.1.4 A certificate, Gotshal & ▇▇▇▇▇▇ LLPsigned by the Chairman, special counsel to Chief Executive Officer, President, Executive Vice President, Chief Financial Officer, any Senior Vice President, any Vice President or the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) Treasurer of ▇▇▇▇▇ ▇▇▇▇ 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 stating that on the date hereof;
initial Credit Extension Date (viiia) the Guaranty, duly executed by the Loan Parties;
(ix) 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 (no Default 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;
(x) 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 Unmatured Default has occurred 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 is continuing 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 Partysuch Borrower, 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) all of 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 Article V shall be 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 shall have been true and correct on and as of such earlier date and (c) no Default the condition set forth in Section 4.1.9 below has been or Event Default shall is simultaneously being satisfied.
4.1.5 Written opinions of the Borrowers’ counsel, in form and substance satisfactory to the Agent and addressed to the Lenders, in substantially the form of Exhibits A.1 and A.2.
4.1.6 Delivery of copies of the required regulatory authorizations identified on Schedule 4.
4.1.7 Any Notes requested by Lenders pursuant to Section 2.16 payable to the order of each such requesting Lender.
4.1.8 Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have occurred and be continuing or shall result therefrom;reasonably requested.
(d) 4.1.9 Evidence satisfactory to the initial public offering of Vantiv’s Equity Interests Agent that the Existing Credit Agreements shall have been consummated and the net cash proceeds thereof or 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 simultaneously with the making effectiveness of the Borrowings hereunder this Agreement on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) or that the commitments thereunder shall repayhave expired in accordance with their terms, and all loans and letters of credit outstanding, if any, and other amounts outstanding under owed to the Existing Credit Agreement, all commitments lenders or agents thereunder shall have been, or substantially concurrently shall simultaneously with the making effectiveness of the Borrowings hereunder on the Closing Date shall this Agreement be, paid or terminated and all guarantees thereof and security therefor discharged and released;in full.
(f) 4.1.10 Evidence satisfactory to the Administrative Agent that the Company’s Existing Five-Year Credit Agreement shall have received all been amended and restated in substantially the form heretofore made available to the Lenders.
4.1.11 All documentation and other information about the Loan Parties as that any Lender shall reasonably have been reasonably requested in writing at least five (5) Business Days prior order to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;.
(g) the Administrative Agent shall 4.1.12 Such other documents as any Lender or its counsel may 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 agreerequested.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amerenenergy Generating Co)
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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in Article V are true and correct in all material respects as of such date and (b) the Company has furnished to the final clause of this Section 3.2, Agents with sufficient copies for 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar Constitutive Documents) of the Company, each other Borrower and each Guarantor (each a “Loan Party”), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments thereto, certified in each instance by of 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 by-laws (or similar governing bodyConstitutive Documents) and of each Loan Party approving its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form of Exhibit B, signed by the chief financial officer, treasurer or vice president of finance of the certificates of good standing Company, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the initial Credit Extension Date (if availablea) for each Loan Party from the office no Default or Unmatured Default has occurred and is continuing, (b) all of the secretary representations and warranties in Article V shall be true and correct in all material respects as of state such date and (c) no material adverse change in the business, financial condition or other appropriate governmental department or agency operations of the state Company or any of its formationSubsidiaries has occurred since August 31, incorporation or organization, as applicable;2006.
(v) a list A certificate in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or temporary restraining order which would prohibit the making of the Borrower’s Authorized Representatives;initial Credit Extensions or any litigation seeking such an injunction or restraining order.
(Avi) a favorable written opinion (addressed A certificate of value, solvency and other appropriate factual information in form and substance reasonably satisfactory to the Administrative Agent and the LendersArrangers from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of Weilthe initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan Documents, Gotshal will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Loan Parties Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(Bviii) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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) signed by an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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 AgreementAuthorized Officer, 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 other related money 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 authorizations as the Administrative Agent may deem have reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;requested.
(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 Evidence 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 Spin-Off Transaction and the Spin-Off Dividend will be consummated substantially simultaneously with the initial Credit Extension hereunder or promptly thereafter.
(xii) Such other documents as any Lender or its counsel may 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, requested 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 withwithout limitation, 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 identified on the List of 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 Documents attached hereto as the Administrative Agent may reasonably agree.Exhibit F.
Appears in 1 contract
Initial Credit Extension. 4.1.1 The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions Extension hereunder are subject solely unless the Borrower has furnished the following to the satisfaction or waiver of Agent with sufficient copies for the following conditions precedent:
(a) subject in all respects to the final 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formationformation or other applicable document of the Borrower, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any together with all amendments thereto, and certificates of good standing, each certified by the appropriate governmental officer 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 Authoritysuch company's jurisdiction of formation;
(iii) copies of resolutions a copy of the board articles or certificate of directors incorporation of the Guarantor together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation;
(iv) a copy certified by the Secretary or similar governing bodyAssistant Secretary of Borrower of (i) of each Loan Party approving its limited liability company agreement, and (ii) resolutions from its managers authorizing the execution, delivery and performance execution 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 copies certified by the Secretary or Assistant Secretary of the Borrower’s Authorized RepresentativesGuarantor of (i) its by-laws and (ii) resolutions of its Board of Directors authorizing the execution of the Loan Documents to which it is a party;
(Avi) incumbency certificates, executed by the respective Secretary or Assistant Secretary of the Borrower and the Guarantor which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers authorized to sign the Loan Documents to which the Borrower and the Guarantor, respectively is a favorable written opinion (addressed to party, upon which certificate the Administrative Agent and the Lenders) Lenders shall be entitled to rely until informed of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to any change in writing by the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative AgentBorrower;
(vii) a certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing;
(viii) written opinions of counsel to the Borrower and the Guarantor addressed to the Agent and Lenders and their counsel in substantially the form of Exhibit D;
(ix) the Notes issued pursuant to Section 2.14 payable to the order of each Lender, and, if the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application;
(x) the Deed of Trust, executed by Borrower, in a form satisfactory to the Agent, the Lenders and their counsel with respect to the Properties therein described, which are part of the Collateral, and such other agreements, documents and instruments as may be necessary and appropriate, in form and substance satisfactory to the Agent and the Lenders, executed and delivered by Borrower, as mortgagor or assignor, in favor of the Agent, ratably for the benefit of the Lenders, in order to create and perfect the Lender Liens in and to all Collateral described therein;
(xi) the Pledge Agreement, executed by the Guarantor, in a form satisfactory to the Agent, the Lenders and their counsel with respect to the Properties therein described, which are a part of the Collateral;
(xii) the Guaranty, executed by Guarantor, in a form satisfactory to the Agent, the Lenders, and their counsel;
(xiii) written money transfer instructions, in substantially the form of Exhibit E, addressed to the Agent and signed by an executed Solvency Certificate signed Authorized Officer of the Borrower, on behalf of the Borrower, dated together with such other related money transfer authorizations as the date hereofAgent may have reasonably requested;
(viiixiv) the Guaranty, duly executed by the Loan Parties;
(ix) 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 title opinions from counsel acceptable to the Security AgreementAgent, 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 or title review satisfactory 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;
(x) 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 Oil and properties Gas Properties included in the Collateral and in a form acceptable to the Agent and the Lenders, covering at least ninety percent (90%) 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 aggregate value of such earlier date)Oil and Gas Properties;
(cxv) no Default or Event Default shall have occurred and be continuing or shall result therefromthe Initial Reserve Report upon which the initial Borrowing Base has been determined acceptable to all the Lenders;
(dxvi) copies of any environmental reports regarding any environmental assessment of the initial public offering of Vantiv’s Equity Interests shall have been consummated Oil and Gas Properties included in the net cash proceeds thereof Collateral, which shall be no less than $400.0 million and the Lead Arrangers shall have received a copy of the effective Form S-1 registration statementacceptable to all Lenders;
(exvii) 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 releasedinsurance certificate(s) described in Section 5.20;
(fxviii) 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 detailed monthly projections (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 regulationsincluding balance sheets, 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 flow statements) for the Guarantor, 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 their Subsidiaries as of and for the four-fiscal quarter period most recently ended pursuant to clause (a) or (b) aboveending December 31, prepared after giving effect 2003, which projections shall be acceptable to the Transactions as if the Transactions had occurred as of such date (Lenders in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements)their sole discretion;
(hxix) ISDA documents entered into between Borrower and any of the Lenders evidencing Rate Management Transactions with respect to the Oil and Gas Properties of the Borrower and Guarantor with confirmations of the transactions thereunder providing satisfactory hedging of natural gas sales in amounts and at prices satisfactory to the Lenders from the date hereof through October, 2003;
(xx) the Administrative Agent shall have received all feesFinancial Statements described in Section 5.4;
(xxi) an Assignment of Notes, other payments Liens and expenses previously agreed Security Interests in writing by the Borrower to be due and payable on or prior form an substance satisfactory to the Closing DateAgent in its sole discretion, includingexecuted by each of the lenders currently party to the Prior Credit Agreement and
(xxii) Such other documents as any Lender or its counsel may have reasonably requested.
4.1.2 The Lenders shall not be required to make the initial Credit Extension hereunder unless the following conditions precedent are satisfied, to the extent invoiced at least two (2) Business Days prior to satisfaction of the Closing Date (or such later date as Agent and 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;Lenders:
(i) subject the Agent and the Lenders shall have satisfactorily completed their normal and customary due diligence in connection with loans of the type contemplated by this Agreement;
(ii) any Existing Rate Management Transactions with the Lenders under the Prior Credit Agreement shall be assigned to Bank One by the counter-parties thereto;
(iii) this Agreement and any Rate Management Transaction (including, without limitation, the Existing Rate Management Transaction) shall each be (or upon the execution, delivery and filing of the Loan Documents creating the Lenders' Liens each shall be) secured by a pari passu first lien on substantially all respects of the Oil and Gas Properties of the Borrower and Guarantor;
(iv) the Agent and the Lenders shall have reviewed and become satisfied with any changes in the composition of the Borrower's Board of Directors and executive management occurring prior 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 date of the Secured Partiesinitial Credit Extension;
(v) will there shall not have been, in the sole judgment of the Agent, any material adverse change in the financial condition, business, or operations of the Borrower or any of the Borrower's Subsidiaries, or a perfected Lien (subject material adverse change with respect to Permitted Liens) on the Collateral shall have been takentheir Oil and Gas Properties; and
(jvi) the Administrative Agent shall have received the results payment of a recent Lien search in each of the jurisdictions of organization of each Loan Party all facility 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 administrative fees 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 paid pursuant 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 Loan Document and the Guarantors) shall not be a condition precedent to the availability Fee Letter and legal fees and disbursements 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 agreeAgent's counsel.
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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in all respects Article V are true and correct as of such date and (b) the Company has furnished to the final clause of this Section 3.2, the Administrative Agent shall have received each of with sufficient copies for the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "Loan Party"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments thereto, certified in each instance by of 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 by-laws (or similar governing bodyConstitutive Documents) and of each Loan Party approving its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrowers, to request Loans hereunder, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form of Exhibit B, signed by the chief financial officer or treasurer of the certificates of good standing (if available) for each Loan Party from Company, showing the office of calculations necessary to determine compliance with this Agreement on the secretary of state initial Credit Extension Date and stating that on the initial Credit Extension Date no Default or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;Unmatured Default has occurred and is continuing.
(v) a list A written opinion of each Borrower's and each Guarantor's counsel, in form and substance satisfactory to the Borrower’s Authorized Representatives;Administrative Agent and addressed to the Lenders in substantially the form of Exhibit A.
(Avi) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and the Lenders) of Weilsigned by an Authorized Officer, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to together with such other related money transfer authorizations as the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance may have reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;requested.
(ix) 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;
(x) 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 Evidence 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 Existing Credit Agreement shall have been taken; and
(j) the Administrative Agent or 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 simultaneously on the Closing Date after be terminated (except for those provisions that expressly survive the Borrower’s use of commercially reasonable efforts to do so, then the satisfaction of such requirements (termination thereof) and all loans outstanding and 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 amounts owed to the availability of lenders or agents thereunder shall have been or shall simultaneously with the initial Loans Advance hereunder be paid in full.
(x) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Date (but shall be required to be satisfied ninety (90) days after the Closing Date or such later date Documents attached hereto as the Administrative Agent may reasonably agree.Exhibit F.
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 Extension hereunder are subject solely unless the Borrower has furnished to the satisfaction or waiver of Agent with sufficient copies for the following conditions precedentLenders:
(ai) subject Copies of the articles or certificate of incorporation, certificate of limited partnership or declaration of trust, as applicable, of the Borrower and each Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in all respects the applicable jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of the Borrower and each Guarantor, of its by-laws or agreement of limited partnership, as applicable, and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower or such Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the Loan Documents to which the Borrower or such Guarantor is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or such Guarantor.
(iv) A certificate, signed by the chief financial officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrower's counsel, addressed to the final clause Lenders in form and substance satisfactory to the Agent and its counsel.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) Executed originals of this Section 3.2, the Administrative Agent shall have received each Agreement and of the followingSubsidiary Guaranty substantially in the form attached hereto as Exhibit D, 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 formationeffect, incorporation or organization, as applicable;
(v) a list of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed together with all schedules and exhibits required to the Administrative Agent be delivered pursuant hereto and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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;thereto.
(viii) Written money transfer instructions, in substantially the Guarantyform of Exhibit C, duly executed addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Loan Parties;Agent may have reasonably requested.
(ix) Evidence that concurrently with the Security Agreementinitial Credit Extension hereunder, 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 Prior Agreement is being terminated and 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;amounts due and payable thereunder paid.
(x) Such other documents as any Lender, 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 LC Issuer or 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 counsel 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 agreerequested.
Appears in 1 contract
Initial Credit Extension. The obligations effectiveness of this Agreement and the L/C Issuer and each Lender Lenders’ obligation to make their respective the initial Credit Extensions Extension hereunder are shall be subject solely to the satisfaction or waiver of the following conditions precedent:
: (a) subject in all respects to the final 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Guaranty, duly executed by the Loan Parties;
(ix) 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;
(x) 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 contained in this Agreement shall be Article V are 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;
(fb) the Administrative Agent Agent, the Arrangers and the Lenders shall have received all documentation fees 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 amounts 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)invoiced, reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges of the Administrative Agent and disbursements of counsel) the Arrangers required to be reimbursed or paid by any the Borrower hereunder, (c) each Departing Lender shall have received payment in full of all of the “Obligations” under the Existing Credit Agreement that are owing to it (other than obligations to pay fees and expenses with respect to which the Borrower has not received an invoice, “Financial Contract Obligations”, contingent indemnity obligations and other contingent obligations owing to it under the “Loan Party under any Loan Document;Documents” as defined in the Existing Credit Agreement), and (d) the Borrower has furnished to the Agents with sufficient copies for the Lenders:
(i) subject A certificate of the Secretary or the Assistant Secretary of the Borrower and each Guarantor certifying as to (1) (A) the articles or certificate of incorporation (or equivalent thereof), together with all amendments thereto, of such Loan Party, as certified by the appropriate governmental officer in all respects its jurisdiction of organization, and by-laws (or comparable governance documents) of such Loan Party; (2) the resolutions of the Board of Directors’ (or other similar governing body’s) and the resolutions or actions of any other body of such Loan Party authorizing the execution of the Loan Documents to which it is a party and (3) the incumbency, identifying by name and title and bearing the signatures, of the Authorized Officers and any other officers of such Loan Party authorized to sign the Loan Documents to which it is a party and, in the case of the Borrower, to request Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(ii) A certificate of good standing for each Loan Party, certified by the appropriate governmental officer in such Loan Party’s jurisdiction of organization.
(iii) An opening compliance certificate in substantially the form of Exhibit B, signed by an Authorized Officer, showing the calculations necessary to determine compliance with this Agreement on the Closing Date and stating that on the Closing Date no Default or Unmatured Default has occurred and is continuing.
(iv) A written opinion of counsel to the final paragraph Borrower and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of this Exhibit A.
(v) Any Notes requested by a Lender pursuant to Section 3.22.14 payable to the order of each such requesting Lender.
(vi) If the initial Credit Extension shall be the issuance of a Facility LC, all other actions not identified in a properly completed Facility LC Application.
(a) satisfactory audited consolidated financial statements of the Borrower for its 2018 and 2019 fiscal years, (b) satisfactory unaudited interim consolidated financial statements of the Borrower for each quarterly period ended subsequent to the date of the latest financial statements delivered pursuant to clause (a) above that of this paragraph as to which such financial statements 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 available 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 Lenders and (c) satisfactory financial statement projections through and including the Borrower’s use of commercially reasonable efforts to do so2024 fiscal year, then the satisfaction of together with 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 information as the Administrative Agent and the Lenders shall reasonably request (including, without limitation, a detailed description of the assumptions used in preparing such projections).
(viii) A Transfer Authorizer Designation Form effective as of the Closing Date.
(ix) At least five (5) days prior to the Closing Date, all documentation and other information regarding the Borrower requested by the Administrative Agent or any Lender in order for the Administrative Agent and the Lenders to comply with the requirements of any Anti-Money Laundering Laws, including the Act and any applicable “know your customer” rules and regulations.
(x) At least five (5) days prior to the Closing Date, to the Administrative Agent and directly to any Lender requesting the same, a Beneficial Ownership Certification in relation to the Borrower.
(xi) Satisfactory evidence that Borrower’s Private Shelf Agreement and any related facility documentation shall have become effective or shall become effective substantially concurrently with this Agreement, which Private Shelf Agreement shall reflect conforming changes consistent with the terms of this Agreement and otherwise be on terms and conditions acceptable to the Administrative Agent.
(xii) Such other documents as any Lender or its counsel may have reasonably agree.requested including, without limitation, each other document identified on the List of Closing Documents attached hereto as Exhibit E.
Appears in 1 contract
Sources: Credit Agreement (Blueknight Energy Partners, L.P.)
Initial Credit Extension. The obligations obligation of the L/C Issuer and each Lender to make their respective its initial Credit Extensions Extension hereunder are is subject solely to the satisfaction conditions that such Credit Extension occurs on or waiver of before May 31, 1999 and that the following conditions precedent:
(a) subject in all respects Borrower has furnished to the final clause of this Section 3.2Agent with sufficient copies for the Lenders, each dated the date hereof and in form and substance satisfactory to the Agent, 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 This Agreement signed on behalf of duly executed by the Borrower;, the Lenders and the Agent.
(ii) copies Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender in the face amount of the Commitment of such Lender.
(iii) The Guaranties, each one duly executed by the respective Guarantors, together with a solvency certificate duly executed by the Borrower and the respective Guarantors.
(iv) The Security Agreements, each one duly executed by the respective Pledgors or the Borrower.
(v) The Stock Pledge Agreement, duly executed by Borrower together with the stock certificates and instruments described in the schedules thereto endorsed in blank (or in the case of stock certificates, accompanied by appropriate stock powers).
(vi) The Note Pledge Agreements duly executed by Borrower, together with the intercompany promissory notes and other instruments described in the schedules thereto, in each case duly endorsed to the order of the Agent.
(vii) Copies of the certificate of formationincorporation of the Borrower, together with all amendments, and certificates of existence and good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(viii) A certificate of organizationthe Secretary of the Borrower certifying (a) copies of the resolutions of the Board of Directors or the Borrower approving this Agreement, operating agreementthe Notes, articles the Collateral Documents of incorporation the Borrower and bylawsthe other Loan Documents of the Borrower and of all documents evidencing other necessary corporate action and governmental approvals, 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 andif any, with respect to organizational documents filed with a Governmental Authoritythe foregoing; and (b) that attached thereto are true and complete copies of the by-laws of the Borrower.
(ix) An incumbency certificate, executed by the applicable Governmental Authority;
(iii) copies of resolutions Secretary of the board Borrower, which shall identify by name and title and bear the signatures of directors (or similar governing body) Authorized Officers and any other officers of each Loan Party approving and authorizing the execution, delivery and performance of Borrower authorized to sign the Loan Documents to which it the Borrower is a party, upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower.
(x) Copies of the articles or certificate of incorporation of each Obligor (other than the Borrower), together with specimen signatures all amendments, and certificates of existence and good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(xi) A certificate of the persons authorized to execute such documents on Secretary of each Loan Party’s behalf, all certified as of Obligor (other than 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;
Borrower) certifying (iva) copies of the certificates resolutions of good standing the Board of Directors or such Obligor approving the Loan Documents of such Obligor and of all documents evidencing other necessary corporate action and governmental approvals, if any, with respect to the foregoing; and (if availableb) that attached thereto are true and complete copies of the by-laws of such Obligor.
(xii) An incumbency certificate for each Obligor (other than the Borrower), executed by the Secretary of such Obligor, which shall identify by name and title and bear the signatures of officers of such Obligor authorized to sign the Loan Party from Documents to which such Obligor is a party, upon which certificate the office Agent and the Lenders shall be entitled to rely until informed of the secretary of state or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;any change in writing by such Obligor.
(vxiii) a list A certificate, signed by the chief financial officer of the Borrower’s Authorized Representatives;, (a) stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing, and (b) indicating that after giving effect to this Agreement and the other Loan Documents and to the Acquisitions of the Founding Companies, the Borrower and each Obligor is solvent and is able to pay its debts and liabilities as they become due and will not be left with unreasonably small capital with which to engage in its respective business.
(Axiv) a favorable A written opinion (of Andr▇▇▇ & ▇urt▇ ▇▇▇, counsel to the Borrower and the other Obligors, addressed to the Administrative Agent and the LendersLenders in substantially the form of Exhibit K.
(xv) Written money transfer instructions, in substantially the form of Exhibit E, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(xvi) A certificate of an Authorized Officer certifying that attached thereto are true, correct and complete copies of the acquisition agreements for the Acquisitions of the Founding Companies, each of which must be on terms and conditions acceptable to the Agent and the Lenders and as described in the Private Placement Memorandum.
(xvii) Evidence of the consummation (including without limitation, that all necessary corporate, regulatory and legal appprovals have been obtained) of Weilthe Acquisition of each Founding Company.
(xviii) Evidence of the issuance of (a) approximately $5,765,000 of the Subordinated Seller Notes, Gotshal & (b) approximately $3,801,000 of the Sponsored Subordinated Notes, and (c) approximately $13,635,000 of Borrower Preferred Stock issued to certain shareholders of Chri▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP(d) not less than $30,000,000 under the Subordinated Bridge Facility, local counsel to National Processing Company in the state of Nebraska in each case prior to or substantially concurrent with the initial Credit Extension hereunder and as presented in form Case 2.4.
(xix) Evidence that upon the consummation of the Acquisitions of the Founding Companies the Available Aggregate Commitment shall be at least $20,000,000.
(xx) Fully completed questionnaire with respect to Year 2000 Issues and substance reasonably related information satisfactory to the Administrative Agent;Agent and the Required Lenders regarding the Borrower's Year 2000 Program.
(viixxi) an executed Solvency Certificate signed on behalf If the initial Credit Extension will be or will include the issuance of the Borrowera Facility LC, dated the date hereof;a properly completed Facility LC Application.
(viiixxii) the Guaranty, duly executed by the Loan Parties;
(ix) 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 An insurance binder evidencing appropriate liability and casualty insurance 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;
(x) 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 each 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 AgentFounding Companies.
(bxxiii) Evidence of payment of fees owing to 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);Lenders.
(cxxiv) no Default Such other documents as any Lender 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 its counsel 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 agreerequest.
Appears in 1 contract
Sources: Credit Agreement (Miller Mechanical Contractors Inc)
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 clause of this Section 3.2, the Administrative Agent shall have received each Agent’s receipt of the following, each of which shall be originals or facsimiles telecopies (or delivered followed promptly by other electronic transmission, including .pdforiginals) unless otherwise specified, each properly executed by a Responsible Officer of the Borrower or Guarantor, as the case may be, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
(ia) a counterpart executed counterparts of this Agreement signed on behalf of Agreement, sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower;
(iib) a Note duly executed by the Borrower in favor of each Lender requesting a Note;
(c) the Guaranty duly executed by each Guarantor;
(d) copies of the certificate of formation, certificate of organization, operating agreement, Borrower’s and each Guarantor’s articles of incorporation and bylaws, as applicable bylaws (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 AuthorityAssistant Secretary;
(iiie) copies of resolutions of the board Borrower’s and each Guarantor’s Board of directors Directors (or similar governing body) of each Loan Party approving and authorizing the execution, delivery and performance of this Agreement and the other Loan Documents to which it is a partyparty and the consummation of the transactions contemplated hereby and thereby, together with incumbency certificates and specimen signatures of the persons authorized to execute such documents on the Borrower’s and each Loan PartyGuarantor’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 amendmentAssistant Secretary;
(ivf) copies of the certificates of good standing standing, or the nearest equivalent in the relevant jurisdiction, for the Borrower and each Guarantor (if availabledated no earlier than 45 days prior to the date hereof) 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 and of each state in which it is qualified to do business as a foreign corporation or organization, as applicable;
(vg) a certificate of the Borrower signed by a Responsible Officer of the Borrower certifying (i) that the conditions specified in Sections 3.2(a), (b), (c) and (e) have been satisfied, and (ii) that there has been no event or circumstance since December 31, 2006 that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect;
(h) a list of the Borrower’s Authorized Representatives;
(Ai) a the initial fees called for by Section 2.12 hereof;
(j) the Administrative Agent shall have received for itself the fees otherwise agreed to in writing among them and the Borrower;
(k) financing statement, tax, and judgment lien search results against the Property of the Borrower and each Guarantor evidencing the absence of Liens on its Property except for Permitted Liens;
(l) the favorable written opinion (addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties Borrower and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLPeach Guarantor, 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 Guaranty, duly executed by the Loan Parties;
(ix) 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;
(x) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xim) evidence of the existence of insurance required to be maintained by the Borrower (including, without limitation, payoff letters and its Restricted Subsidiaries pursuant to Section 6.3(aUCC termination statements), 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 reasonably satisfactory to the Administrative Agent.
(b) , that 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 Existing Credit Agreements have been or concurrently with 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 takenbeing terminated; and
(jn) such other agreements, instruments, documents, certificates, and opinions as the Administrative Agent shall have received may reasonably request. Without limiting the results of a recent Lien search in each generality of the jurisdictions of organization of each Loan Party and each jurisdiction where material assets provisions of the Loan Parties are located. For last paragraph of Section 9.3, for purposes of determining compliance with the conditions specified in this Section 3.23.1, 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
Sources: Multicurrency Credit Agreement (Cleveland Cliffs Inc)
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 clause 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ 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;
(ixx) 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;
(xxi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xixii) 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 provided that 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 insurance certificate or discharged on or endorsement that may not be provided prior to the Closing Date pursuant after use of commercially reasonable efforts to documentation satisfactory 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.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 this Agreement 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);
(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 NPC Acquisition shall have been consummated 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 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 statementBorrower);
(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 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 (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;
(gj) the Administrative Agent shall have received (aa)(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 Borrower Target for the three (3) most recently completed fiscal years of the BorrowerTarget, 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 Vantiv the Borrower as of and for the four-fiscal quarter period most recently ended pursuant to clause 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);
(hk) 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;
(il) subject in all respects to the final paragraph of this Section 3.2, all other actions not identified in clause 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 LiensLiens 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; and;
(jm) 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 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 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 clause 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 the Lenders) of Weilsigned by a Responsible Officer, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to together with such other related money transfer authorizations as the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance may have reasonably satisfactory to the Administrative Agentrequested;
(vii10) an executed Solvency Certificate signed on behalf if the initial Credit Extension will be the issuance of the Borrowera Letter of Credit, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares a properly completed Letter 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 thereofCredit Application; and
(C11) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) 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 Agentrequire.
(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 Borrower set forth Company contained in this Agreement Article V 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;respects.
(e) The Company shall be in compliance with all the Borrower shall have repaid, or substantially concurrently with the making terms and provisions of the Borrowings hereunder on the Closing Date shall repayLoan Documents, all amounts outstanding under the Existing Credit Agreementand, 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 initial Advance, no Default or Event 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);Default shall exist.
(hf) The Company shall have paid to the Administrative Agent shall for the account of the Banks such upfront fees as have received all fees, other payments and expenses previously been agreed in writing to by the Borrower to be due and payable on or prior to the Closing DateCompany, 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 and the Co-Lead Arrangers pursuant to the Fee Letter.
(g) There 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 3.2occurred since December 31, each Lender 2004 no event or circumstance that has signed this Agreement shall resulted or could reasonably be deemed expected 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 result in 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 agreeMaterial Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The obligations This Agreement shall become effective upon and the obligation of the L/C Issuer Lenders and each Lender the Issuers to make their respective the initial Credit Extensions Extension hereunder are is subject solely to the satisfaction or waiver Administrative Agent’s receipt of the following conditions precedent:
(a) subject in all respects fees required to be paid to the final clause Administrative Agent, the Arrangers and the Lenders on the date hereof (including the reasonable fees and expenses of this Section 3.2, counsel to the Administrative Agent shall for which reasonably detailed invoices have received each been presented on or prior to the date hereof), (b) evidence that, prior to or concurrently with the effectiveness of this Agreement, all obligations under the Existing Credit Facility have been paid in full and all commitments to lend thereunder have been terminated, and (c) all of the following, in form and substance satisfactory to each of which shall be originals or facsimiles (or delivered by other electronic transmissionAgent and each Lender, including .pdf) unless otherwise specified:and in sufficient copies for each Lender: .CHAR1\1170499v7
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificate of incorporation of the Borrower and the GuarantorParent, together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower and the GuarantorParent, and a certificate of good standing, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower and the GuarantorParent, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower or the GuarantorParent as required by Section 326 of the USA PATRIOT ACT.
(ii) copies Copies, certified by the Secretary or an Assistant Secretary of each of the certificate Borrower and the GuarantorParent, of formation, certificate the by‑laws of organization, operating agreement, articles of incorporation and bylawsthe Borrower or the GuarantorParent, as applicable (or comparable organizational documents) applicable, and the Board of each Loan Party Directors’ resolutions 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 or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower or the GuarantorParent is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of each of the Borrower and the GuarantorParent, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and the GuarantorParent authorized to sign the Loan Documents to which the Borrower or the GuarantorParent 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 upon which certificate the Administrative Agent and the Lenders) Lenders shall be entitled to rely until informed of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to any change in writing by the Loan Parties and (B) a favorable written opinion (addressed to Borrower or the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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;GuarantorParent.
(viiiv) A certificate, signed by an executed Solvency Certificate signed on behalf Authorized Officer of the Borrower, dated stating that (A) on the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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,
no Default or Unmatured Default has occurred and is continuing and (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;
(x) 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 contained 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 Article VI are true and correct in all material respects as of such earlier date);the date hereof.
(cv) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) the initial public offering A written opinion 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 counsel 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 GuarantorParent, addressed to the availability Administrative Agent and the Lenders in a form reasonably satisfactory to the Administrative Agent and its counsel.
(vi) Executed counterparts of this Agreement executed by the Borrower, the GuarantorParent, the Administrative Agent, each Issuer and each Lender.
(vii) Any Revolving Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and the Swing Line Note.
(viii) If the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(ix) Evidence of the initial Loans on effectiveness of the Closing Date Great Plains Credit Agreement and the KCPL Credit Agreement.
(but shall be required x) Written money transfer instructions, in substantially the form of Exhibit C, addressed to be satisfied ninety (90) days after the Closing Date or Administrative Agent and signed by an Authorized Officer of the .CHAR1\1170499v7 Borrower who has executed and delivered an incumbency certificate in accordance with the terms hereof, together with such later date other related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(xi) Such other documents as any Lender or its counsel may have reasonably requested.
Appears in 1 contract
Initial Credit Extension. The obligations of Lenders and the L/C Issuer and each Lender Issuers shall not be required to make their respective the initial Credit Extensions Extension hereunder are subject solely to until the satisfaction or waiver of Borrower has furnished the following conditions precedent:
Administrative Agent with (a) subject in all respects fees required to be paid to the final clause Lenders on the date hereof, (b) evidence that, prior to or concurrently with the initial Credit Extension hereunder, all obligations under the Existing Credit Facilities have been paid in full (other than four letters of this Section 3.2credit which amount, in the Administrative Agent shall aggregate, to $56,673,697 which will be governed by different documentation with the respective issuers going forward) and all commitments to lend thereunder have received each been terminated and (c) all of the following, in form and substance satisfactory to each of which shall be originals or facsimiles (or delivered by other electronic transmissionAgent and each Lender, including .pdf) unless otherwise specifiedand in sufficient copies for each Lender:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;certificate of incorporation of the Borrower and the Guarantor, and together with all amendments, certified by the Secretary or an Assistant Secretary of the Borrower and the Guarantor, and a certificate of good standing, certified by the appropriate governmental officer in the jurisdiction of incorporation of the Borrower and the Guarantor, as well as any other information that any Lender may request that is required by Section 326 of the USA PATRIOT ACT or necessary for the Administrative Agent or any Lender to verify the identity of the Borrower or the Guarantor as required by Section 326 of the USA PATRIOT ACT.
(ii) copies Copies, certified by the Secretary or an Assistant Secretary of each of the certificate Borrower and the Guarantor attaching the by-laws of formation, certificate of organization, operating agreement, articles of incorporation and bylawsthe Borrower or Guarantor, as applicable (or comparable organizational documents) and the Board of each Loan Party Directors’ resolutions 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 or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower or Guarantor is a party.
(iii) An incumbency certificate, executed by the Secretary or an Assistant Secretary of each of the Borrower and the Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower and the Guarantor authorized to sign the Loan Documents to which the Borrower or the Guarantor is a party, together with specimen signatures upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or the Guarantor.
(iv) A certificate, signed by the Treasurer or the Chief Financial Officer of the persons authorized to execute such documents Borrower, stating that on each Loan Partythe initial Borrowing Date no Default or Unmatured Default has occurred and is continuing and setting forth the Guarantor’s behalf, all certified ▇▇▇▇▇’▇ Rating and the S&P Rating 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;Date.
(v) a list of the Borrower’s Authorized Representatives;
(A) a favorable A written opinion (of counsel to the Borrower and the Guarantor, addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel Lenders in a form reasonably satisfactory to the Loan Parties Administrative Agent and its counsel.
(Bvi) Executed counterparts of this Agreement executed by the Borrower, the Guarantor, the Administrative Agent and each Lender.
(vii) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.13 payable to the order of each such requesting Lender and the Swing Line Note.
(viii) If the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application.
(ix) Written money transfer instructions, in substantially the form of Exhibit C, addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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) signed by an executed Solvency Certificate signed on behalf Authorized Officer of the Borrower, dated Borrower who has executed and delivered an incumbency certificate in accordance with the date terms hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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;
(x) 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 related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(x) Such other documents as any Lender or its counsel may have reasonably requested.
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 clause 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 the Lenders) of Weilsigned by a Responsible Officer, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to together with such other related money transfer authorizations as the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case in form and substance may have reasonably satisfactory to the Administrative Agentrequested;
(vii10) an executed Solvency Certificate signed on behalf if the initial Credit Extension will be the issuance of the Borrowera Letter of Credit, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares a properly completed Letter 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 thereofCredit Application; and
(C11) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(x) 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 Agentrequire.
(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 Borrower set forth Company contained in this Agreement Article V 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;respects.
(d) the initial public offering of Vantiv’s Equity Interests shall have been consummated and the net cash proceeds thereof The Company shall be no less than $400.0 million in compliance with all the terms and the Lead Arrangers shall have received a copy provisions of the effective Form S-1 registration statement;
(e) the Borrower shall have repaidLoan Documents, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repayand, 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 initial Advance, no Default or Event 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);Default shall exist.
(he) The Company shall have paid to the Administrative Agent shall for the account of the Banks such upfront fees as have received all fees, other payments and expenses previously been agreed in writing to by the Borrower to be due and payable on or prior to the Closing DateCompany, 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 and the Co-Lead Arrangers pursuant to the Fee Letter.
(f) There 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 3.2occurred since December 31, each Lender 2006 no event or circumstance that has signed this Agreement shall resulted or could reasonably be deemed expected 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 result in 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 agreeMaterial 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 clause 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of Cunningham, Blackburn, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇ 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;
(ixx) 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;
(xxi) 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
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 Extension hereunder are subject solely to the satisfaction or waiver of the following conditions precedent:
unless (a) subject the representations and warranties contained in all respects Article V are true and correct as of such date and (b) the Borrower has furnished to the final clause of this Section 3.2, Agents with sufficient copies for 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 specifiedLenders:
(i) a counterpart of this Agreement signed on behalf Copies of the Borrower;articles or certificates of incorporation (or similar constitutive documents) of the Borrower and each Guarantor (each a "Loan Party"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization.
(ii) copies of Copies, certified by the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Secretary or comparable organizational documents) Assistant Secretary of each Loan Party and any amendments theretoParty, 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 such Loan Party's by-laws (or similar governing bodyconstitutive documents) and of each Loan Party approving its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it is a party.
(iii) An incumbency certificate, together with specimen executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Loan Party authorized to execute such documents on each sign the Loan Documents to which it is a party and, in the case of the Borrower, to request Credit Extensions hereunder, upon which certificate the Agents, the LC Issuers and the Lenders shall be entitled to rely until informed of any change in writing by the applicable 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 An opening compliance certificate in substantially the form of Exhibit B, signed by the certificates of good standing (if available) for each Loan Party from the office of the secretary of state chief financial officer, chief accounting officer or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;
(v) a list treasurer of the Borrower’s Authorized Representatives;, showing the calculations necessary to determine compliance with this Agreement as of the Borrower's fiscal quarter ended September 26, 2004 and stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing.
(A) a favorable A written opinion (addressed to of the Administrative Agent Borrower's and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special each Guarantor's counsel to the Loan Parties and (B) a favorable written opinion (addressed of the Administrative Agent's counsel with respect to the Administrative Agent enforceability of this Agreement, the Notes and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLPGuaranty, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent;Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) an executed Solvency Certificate signed on behalf If the initial Credit Extension shall be the issuance of the Borrowera Facility LC, dated the date hereof;a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the Guarantyform of Exhibit D, duly executed by the Loan Parties;
(ix) 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 addressed to the Security AgreementAdministrative Agent and signed by an Authorized Officer, 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;
(x) 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 related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(ix) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(x) Such other documents as any Lender or its counsel may have reasonably requested, including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Sources: Revolving Credit Agreement (Applebees International 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 clause 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 the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) signed by a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Guaranty, duly executed by the Loan Parties;
(ix) 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 AgreementResponsible Officer, 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 other related money 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 authorizations as the Administrative Agent may deem have reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Partiesrequested;
(x10) if the Intellectual Property Security Agreementsinitial Credit Extension will be the issuance of a Letter of Credit, duly executed by each Loan Party party theretoa properly completed Letter of Credit Application;
(xi11) 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 at least five days 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 dateExecution 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 regarding the Loan Parties as shall have been reasonably Company 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 connection with applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act;, to the extent requested in writing of the Company at least 10 days prior to the Execution Date and (ii) to the extent the Company qualifies as a “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 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 (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
(g12) such other assurances, certificates, documents, consents or opinions as 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”), reasonably may require.
(b) unaudited consolidated balance sheets and related statements of income and cash flows Attorney Costs of the Borrower for each subsequent fiscal quarter ended at least 45 days before Co-Lead Arrangers to the Closing Date 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) a pro forma consolidated balance sheet The representations and related pro forma consolidated statement warranties of income 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 Vantiv as of and for the four-fiscal quarter period most recently ended pursuant to clause (a) or (b) aboveLoan Documents, prepared and, after giving effect to the Transactions as if the Transactions had occurred as initial Advance, no Default or Event 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);Default shall exist.
(he) The Company shall have paid (or shall concurrently pay with the proceeds of the initial Loans) to the Administrative Agent shall for the account of the Banks such upfront fees as have received all fees, other payments and expenses previously been agreed in writing to by the Borrower to be due and payable on or prior to the Closing DateCompany, 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 and the Co-Lead Arrangers pursuant to the Fee Letters and (ii) all amounts outstanding under the Existing Credit Agreement.
(f) There 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 3.2occurred since December 31, each Lender 2018 no event or circumstance that has signed this Agreement shall resulted or could reasonably be deemed expected 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 result in 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 agreeMaterial 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 Extension hereunder are subject solely unless the Borrower has furnished to the satisfaction or waiver of Administrative Agent with sufficient copies for the following conditions precedentLenders:
(a) subject in all respects to the final 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 Copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable analogous organizational documentsdocument(s)) of each Loan Party of the Borrower and any amendments theretoeach Guarantor, together with all amendments, and a certificate of good standing, each 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 Authorityappropriate governmental officer in its jurisdiction of incorporation;
(iiib) copies Copies, certified by the Secretary or Assistant Secretary of each of the Borrower and each Guarantor, of its respective bylaws and of its Board of Directors’ resolutions and of resolutions or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance execution of the Loan Documents to which it the Borrower or such Guarantor (as applicable) is a party (or analogous documents);
(c) An incumbency certificate, executed by the Secretary or Assistant Secretary of each of the Borrower and each Guarantor, which shall identify by name and title and bear the signatures of the Authorized Officers and any other officers of the Borrower or such Guarantor authorized to sign the Loan Documents to which the Borrower is a party, together with specimen signatures upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by 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 amendmentBorrower;
(ivd) 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 A written opinion of the Borrower’s Authorized Representativesand Guarantors’ counsel, addressed to the Lenders, in substantially the form of Exhibit A;
(Ae) A certificate, signed by the Chief Financial Officer of the Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing;
(f) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.16 payable to the order of each such requesting Lender;
(g) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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) signed by an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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 AgreementAuthorized Officer, 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 other related money 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 authorizations as the Administrative Agent may deem have reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Partiesrequested;
(xh) If the Intellectual Property Security Agreementsinitial Credit Extension will be the issuance of a Facility LC, duly executed by each Loan Party party theretoa properly completed Facility LC Application;
(xii) evidence The insurance certificate described in Section 5.19;
(j) The Administrative Agent shall have determined that (a) since December 2, 2006, there has been no material adverse change or disruption in primary or secondary loan syndication markets, financial markets or in capital markets generally that would be likely to impair materially syndication of the existence of insurance required to be maintained by the Borrower Loans hereunder 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 Borrower has fully cooperated with the Administrative Agent’s syndication efforts including, without limitation, by providing the Administrative Agent with information regarding the Borrower’s operations and warranties of prospects and such other information as the Borrower set forth in this Agreement shall be true and correct in all material respects on and as of Administrative Agent reasonably deems necessary to successfully syndicate 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)Loans hereunder;
(ck) no Default or Event Default shall have occurred and be continuing or shall result therefrom;
Evidence that (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;
(ei) the Borrower shall have repaid, or substantially concurrently with the making paid in full all principal of the Borrowings hereunder and interest accrued on the Closing Date shall repay, all amounts outstanding loans 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 Agreement 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, expenses and other payments and expenses previously agreed in writing amounts owing by the Borrower to be due thereunder and payable on or prior to (ii) the Closing Date, including, to Commitments (as defined in the extent invoiced at least two (2Existing Credit Agreement) 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 takenterminated; and
(jl) the Administrative Agent shall Such other documents as any Lender or its counsel may 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 agreerequested.
Appears in 1 contract
Sources: Credit Agreement (Clarcor Inc)
Initial Credit Extension. The obligations Lenders shall not be required to make the initial Credit Extension hereunder unless (x) the Borrowers have furnished to the Administrative Agent with sufficient copies for the Lenders of the L/C Issuer and each Lender to make their respective initial Credit Extensions hereunder are subject solely documents listed in subsections (i) through (vii) below; (y) the Borrowers have furnished to the satisfaction or waiver of Administrative Agent the following conditions precedent:
documents listed in subsections (aviii) subject in all respects to the final clause of this Section 3.2, through (xii) below; and (z) the Administrative Agent shall have received each from the Borrowers a facility fee in the amount of the following$125,000, each of which facility fee shall be originals or facsimiles (or delivered allocated by other electronic transmissionthe Administrative Agent to the Lenders as follows: $40,000 to Bank One, including .pdf) unless otherwise specified:$35,000 to National City Bank, $25,000 to LaSalle Bank, National Association, and $25,000 to SunTrust Bank, Central Florida, N. A.
(i) a counterpart of this Agreement signed on behalf Copies, as applicable, of the Borrower;articles or certificate of incorporation or organization of each Borrower and Guarantor, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation
(ii) copies Copies, as applicable, certified by the Secretary or Assistant Secretary of each Borrower and Guarantor, of its by-laws and of the certificate Board of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (Directors' resolutions 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 or actions of the board of directors (or similar governing body) of each Loan Party approving and any other body authorizing the execution, delivery and performance of the Loan Documents to which it any Borrower and Guarantor is a partyparty and required Rate Management Transactions or of its operating or other management agreement and of resolutions of its members and of any other body authorizing the execution, together with specimen delivery and performance of the Loan Documents to which such Borrower and Guarantor is a party and required Rate Management Transactions.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Borrower and Guarantor, which shall identify by name and title and bear the signatures of the persons Authorized Officers and any other officers of such Borrower and Guarantor authorized to execute sign the Loan Documents to which such Borrower or Guarantor is a party and documents on each Loan Party’s behalfin connection with required Rate Management Transactions, all certified as upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of the Closing Date any change in each instance writing by its Secretary, Assistant Secretary such Borrower or Chief Financial Officer as being in full force and effect without modification or amendment;Guarantor.
(iv) copies A certificate, signed by the chief financial officer of each Borrower, stating that on the certificates of good standing (if available) for each Loan Party from the office of the secretary of state initial Credit Extension Date no Default or other appropriate governmental department or agency of the state of its formation, incorporation or organization, as applicable;Unmatured Default has occurred and is continuing.
(v) a list A written opinion of the Borrower’s Authorized Representatives;Borrowers' counsel, addressed to the Lenders in substantially the form of Exhibit A.
(Avi) Any Notes requested by a favorable written opinion Lender pursuant to Section 2.13 payable to the order of each such requesting Lender.
(vii) Such other documents as any Lender or its counsel may have reasonably requested.
(viii) The Security Agreement, the UCC Financing Statements and other Collateral Documents.
(ix) The insurance certificate described in Section 5.21.
(x) If the initial Credit Extension will be the issuance of a Facility LC, a properly completed Facility LC Application.
(xi) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and the Lenders) of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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) signed by an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) 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 AgreementAuthorized Officer, 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;
(x) 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 related money transfer authorizations as the Administrative Agent may have reasonably agreerequested.
(xii) Such other documents as the Administrative Agent or its counsel may have reasonably requested.
Appears in 1 contract
Sources: Credit Agreement (MPW Industrial Services Group Inc)
Initial Credit Extension. The obligations In the case 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 precedentExtension:
(a) subject in all respects to the final clause of this Section 3.2, 5.2.1 receipt by 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 copies of the BorrowerCertificate of Incorporation, and all amendments thereto, of the Borrower and each Guarantor, accompanied by a certificate that such copies are correct and complete, issued by the Secretary of State of the state of incorporation or formation of the Borrower and each Guarantor dated a current date;
(ii) copies of the certificate of formationBylaws, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any all amendments thereto, certified in of the Borrower and each instance Guarantor, accompanied by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Governmental Authority, by certificate that such copies are correct and complete of an authorized representative of the applicable Governmental AuthorityBorrower and each Guarantor dated the Effective Date;
(iii) copies of resolutions certificates of the board of directors (or similar governing body) appropriate Governmental Authority of each Loan Party approving jurisdiction in which the Borrower and authorizing each Guarantor has an executive office or principal place of business, the executionBorrower or such Guarantor was formed or in which any Collateral is located (if the Borrower or any Guarantor is required to qualify to do business in such state), delivery each dated a current date, to the effect that the Borrower and performance each Guarantor is in good standing with respect to the payment of franchise and/or other Taxes and, if required by law, is duly qualified to transact business in such jurisdiction;
(iv) certificates of incumbencies and signatures of all officers of the Borrower and each Guarantor who will be authorized to execute or attest any of the Loan Documents to which it is a party, together with specimen signatures on behalf of the persons Borrower or a Guarantor, executed by an authorized to execute such documents on each Loan Party’s behalf, all certified as representative of the Closing Date Borrower or such Guarantor, dated the Effective Date;
(v) copies of resolutions approving the Loan Documents and authorizing the transactions contemplated therein, duly adopted by the Board of Directors of the Borrower and each Guarantor, accompanied by a certificate of an authorized representative of the Borrower and each Guarantor that such copies are true and correct copies of resolutions duly adopted at the meeting of, or by the unanimous written consent of, the Board of Directors (or authorized body serving a similar function) of the Borrower and each Guarantor, and that such resolutions constitute all the resolutions adopted with respect to such transactions, have not been amended, modified or revoked in each instance by its Secretaryany respect, Assistant Secretary or Chief Financial Officer as being and are in full force and effect without modification or amendmentas of the Effective Date;
(iv) copies 5.2.2 receipt by the Administrative Agent of the certificates documents, instruments and any deliveries described in Section 4.1, each duly executed and delivered by the appropriate Person;
5.2.3 receipt by the Administrative Agent of good standing (if available) for each Loan Party such title reports as the Administrative Agent may reasonably request, in form and substance and from attorneys or other Persons reasonably acceptable to the office Administrative Agent, covering and confirming indefeasible title in the Borrower to no less than 90% of the secretary PV10 Value of state or the Proved Reserve portion of the Oil and Gas Properties of the Borrower included in the Initial Reserve Report and such other appropriate governmental department or agency documentation and information reasonably required by the Administrative Agent to satisfy the Administrative Agent of the status of the title of such portion of the Collateral;
5.2.4 receipt by the Administrative Agent of the results of searches of the UCC records of the state in which the Borrower and each Guarantor was organized and of its formation, incorporation or organization, as applicable;
(v) a list each state in which any Collateral is situated reflecting no Liens on the Collateral except Liens in favor of the Borrower’s Authorized Representatives;
(A) a favorable written opinion (addressed to the Administrative Agent and Permitted Liens;
5.2.5 receipt by the LendersAdministrative Agent of (i) satisfactory proof of Weilthe Borrower's termination of the Existing Credit Facility and any obligations of the Borrower or the lenders thereunder in connection therewith on the Effective Date and (ii) reasonably satisfactory evidence that prior Liens, Gotshal & ▇▇▇▇▇▇ LLPif any, special on any of the Oil and Gas Properties other than Permitted Liens are being released concurrently with the Closing;
5.2.6 receipt by the Administrative Agent of the opinions of counsel to the Loan Parties Borrower and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLP, local counsel to National Processing Company in the state of Nebraska in each case Guarantor in form and substance reasonably satisfactory to the Administrative Agent;
(vii) an executed Solvency Certificate signed on behalf Agent and its counsel, including the opinions of local counsel in each jurisdiction in which the Borrower, dated the date hereof;
(viii) the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required Mortgages are 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;
(x) 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 recorded. The Borrower and each Guarantor hereby requests such counsel to deliver 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 opinions 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 5.2.7 receipt by the Administrative Agent that the of certificates of insurance acceptable to 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 from the Borrower's insurance broker, 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 confirming insurance 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 each Subsidiary as of the initial Loans on Effective Date meeting 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.standards of Section
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 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 & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ 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 Guaranty, duly executed by the Loan Parties;
(ix) 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;
(x) 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 initial public offering of Vantiv’s Equity Interests Share Repurchase 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 statementconsummated;
(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 two (52) 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 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)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 required to be provided or perfected hereunder 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 (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
Sources: Loan Agreement (Vantiv, Inc.)
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 The Lenders shall not be required to make the initial Credit Extension hereunder unless the Borrower has furnished to the final clause of this Section 3.2, Agent with sufficient copies for 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 specifiedLenders:
(i) a counterpart This Agreement, executed by an Authorized Representative of this Agreement signed on behalf of the Borrower;each party hereto.
(ii) copies Any Notes requested by a Lender pursuant to Section 2.13 payable to the order of each such requesting Lender executed by an Authorized Representative 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;maker thereof.
(iii) copies of resolutions of the board of directors (or similar governing body) of each Loan Party approving The Pledge and authorizing the execution, delivery and performance of the Loan Documents to which it is a partySecurity Agreements, together with specimen signatures UCC financing statements and stock certificates representing all of the persons authorized to execute such documents on issued and outstanding capital stock of each Loan Party’s behalf, all certified as of the Closing Date Guarantors (with stock powers duly endorsed in blank), in each instance case, executed by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendment;an Authorized Representative of each party thereto.
(iv) copies The Mortgages with respect to the real property identified on Schedule 4.1 (iv), in each case executed by an Authorized Representative of each party thereto, together with such surveys and title insurance policies as 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;Agent may require.
(v) a list The Guaranty executed by an Authorized Representative of each of the Borrower’s Authorized Representatives;Guarantors.
(Avi) a favorable written opinion (addressed to the Administrative Agent The Intercompany Subordination Agreement and the LendersSubordination Agreement, each executed by an Authorized Representative or authorized representative of each party thereto.
(vii) A true and complete copy of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Loan Parties and (B) a favorable written opinion (addressed to the Administrative Agent Seller Agreements and the Lenders) of ▇▇▇▇▇ ▇▇▇▇ LLPMega Marts Notes, local counsel to National Processing Company in the state of Nebraska in each case which Seller Agreements and Mega Marts Notes shall be in form and substance reasonably satisfactory to the Administrative Agent;
(vii) Agent and the Required Lenders, together with a certificate executed by an executed Solvency Certificate signed on behalf Authorized Person of the Borrower, dated certifying that the date hereof;transactions contemplated by the Seller Agreements have been consummated substantially in accordance with their terms.
(viii) Copies of the Guarantyarticles or certificate of incorporation of the Borrower and each of the Guarantors, duly executed together with all amendments, and a certificate of good standing or current status, each certified by the Loan Parties;appropriate governmental officer in their respective jurisdiction of incorporation.
(ix) Copies, certified by the Security AgreementSecretary or Assistant Secretary of the Borrower and each of the Guarantors, duly of their respective by-laws and of their respective Board of Directors' resolutions and of resolutions or actions of any other body authorizing the execution of the Loan Documents to which the Borrower and each of the other Loan Parties is a party.
(x) Incumbency certificates, executed by the Secretary or Assistant Secretary of the Borrower and each of the Guarantors, which shall identify by name and title and bear the signatures of the Authorized Representatives and any other officers of the Borrower and the Guarantors authorized to sign the Loan PartyDocuments to which each of the Borrower and the Guarantors is a party, together with:upon which certificate the Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower or a Guarantor.
(Axi) A certificate, signed by 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 chief financial officer of the pledgor thereof,Borrower, stating that on the initial Credit Extension Date no Default or Unmatured Default has occurred and is continuing and that there has been no material adverse change in the business, condition (financial or otherwise), operations, performance, Properties or prospects of the Loan Parties since January 1, 2000.
(Bxii) 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 A written opinion of the Loan Parties;' counsel, addressed to the Lenders in substantially the form of Exhibit 4.1(xii).
(xxiii) Written money transfer instructions, in substantially the Intellectual Property Security Agreementsform of Exhibit 4.1(xiii), duly executed addressed to the Agent and signed by each Loan Party party thereto;an Authorized Representative, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(xixiv) evidence Evidence that there is no suit, action, injunction or restraining order which, in the reasonable judgment of the existence Agent: (a) seeks to prohibit the making of insurance required the Loans, and (b) that if adversely determined against any Loan Party, would have a Material Adverse Effect.
(xv) Information satisfactory to the Agent and the Required Lenders regarding the Agent's due diligence investigation of the Loan Parties, including without limitation, information pertaining to the Loan Parties' Contingent Obligations, contractual obligations, compliance with Environmental Laws (including compliance with the terms set forth in the Agent's Environmental Policy) and other legal (including all applicable requirements of Regulations U, T and X of the Board of Governors of the Federal Reserve System) and regulatory matters, joint venture liability, products liability exposure, and intellectual property and license agreements.
(xvi) Audited financial statements for the 1997 and 1998 fiscal year ends of each of Mega Marts, Inc. and Ultra Mart, Inc., and unaudited financial statements for the 1999 fiscal year end of Ultra Mart, Inc.
(xvii) Pro forma opening financial statements and updated projections giving effect to the Borrower's acquisitions of Mega Marts, Inc. and Ultra Mart, Inc., together with such other information as the Agent may reasonably request to confirm the tax, legal and business assumptions made in such pro forma opening financial statements and updated projections (a) which must not be maintained materially less favorable, in the Agent's reasonable judgment, than the projections previously delivered 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 Agent and properties (b) which must demonstrate, in the Agent's reasonable judgment, that the Borrower can repay its Obligations as and when due and can comply with the financial covenants set forth in Section 6.2.14 of this Agreement.
(xviii) Evidence satisfactory to the Agent that all of the Loan Parties Parties' obligations under all existing bank credit facilities and all senior note agreements have been indefeasibly paid in full and that constitute Collateral; andall committed and uncommitted credit facilities have been terminated.
(xiixix) If the results initial Credit Extension will be the issuance of a recent Lien search with respect to each Loan PartyFacility LC, and such search shall reveal no Liens on any a properly completed Facility LC Application.
(xx) Evidence of the assets insurance coverage described in Section 6.1.3.
(xxi) The General Intangibles Mortgage executed by an Authorized Representative of the Loan Parties except for Liens permitted by Section 6.15 Borrower.
(xxii) Such other documents as any Lender or discharged on or prior to the Closing Date pursuant to documentation satisfactory to the Administrative Agentits counsel may have reasonably requested.
(b) In addition to the representations deliveries required under Section 4.1(a), the Lenders shall not be required to make the initial Credit Extension hereunder unless:
(i) the Borrower has delivered or caused to be delivered executed lessor's agreements in form and warranties substance satisfactory to the Agent for each of the locations identified on Schedule 4.1(b)(i) hereto (Warehouses), and (ii) the Borrower set forth demonstrates to the Agent's reasonable satisfaction that it has used reasonable commercial efforts to obtain executed lessor's agreements in this Agreement shall be true form and correct in all material respects on and as substance satisfactory to the Agent for each of the Closing Date locations identified on Schedule 4.1(b)(ii) hereto (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 dateLeased Store Locations);.
(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 Notwithstanding any term contained herein 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 regulationscontrary, including without limitation the Patriot Act;
within sixty (g60) the Administrative Agent shall have received (a) audited consolidated balance sheets and related statements days 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, the Borrower shall furnish to the extent invoiced at least two Agent (2) Business Days prior to with sufficient copies for the Closing Date (or such later date as the Borrower may reasonably agreeLenders), 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 (audited financial statements for the benefit 1999 fiscal year 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 3.2Mega Marts, 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.Inc.
Appears in 1 contract
Sources: Credit Agreement (Roundys Inc)