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 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 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 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 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 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 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) 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 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 precedentBanks:
(a) subject in all respects to Copies of the final clause Restated Articles of this Section 3.2, the Administrative Agent shall have received Incorporation of each of the followingCompany and Enterprises, together with all amendments, certified by the Secretary or an Assistant Secretary of the applicable entity, and a certificate of good standing, certified by the appropriate governmental officer in its jurisdiction of incorporation.
(b) Copies, certified by the Secretary or an Assistant Secretary of the applicable entity, of bylaws of each of which shall be originals or facsimiles the Company and Enterprises and of Board of Directors' resolutions (or delivered and resolutions of other bodies, if any are deemed necessary 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 documentscounsel for any Bank) 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 Company and Enterprises authorizing the execution, delivery and performance of the Loan Credit Documents to which such entity is a party.
(c) An incumbency certificate from each of the Company and Enterprises, executed by the Secretary or an Assistant Secretary of the applicable entity, which shall identify by name and title and bear the original or facsimile signature of the officers of such entity authorized to sign the Credit Documents to which such entity is a party and, in the case of the Company, the officers or other employees authorized to make borrowings and request Facility LCs hereunder, upon which certificates the Banks shall be entitled to rely until informed of any change in writing by the Company or Enterprises, as applicable.
(d) A certificate, signed by a Designated Officer of the Company, stating that on the Closing Date no Default or Event of Default has occurred and is continuing.
(e) The Pledge Agreement signed by Enterprises, together with such account control agreements and other agreements and documents as the Agent or any Bank may reasonably request to create and perfect the security interest of the Agent in all Pledged Collateral.
(f) Any Note requested by a Bank pursuant to Section 2.13 payable to the order of each such requesting Bank.
(g) A favorable legal opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., Deputy General Counsel of the Company, as to the matters set forth in Exhibit B and as to such other matters as the Agent may reasonably request. Such opinion shall be addressed to the Agent and the Banks and shall be satisfactory in form and substance to the Agent.
(h) Evidence satisfactory to the Agent that prior to or concurrently with the initial Credit Extension, all non-contingent amounts owed to Bank One in connection with the Existing Letters of Credit have been or will be paid in full.
(i) Evidence, in form and substance satisfactory to the Agent, that each of the Company and Enterprises has obtained all governmental approvals, if any, necessary for it to enter into the Credit 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.
(bj) the representations and warranties of the Borrower set forth in this Agreement Such other documents as any Bank or its counsel may have reasonably requested. It 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 a further condition precedent 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 initial Credit Extension hereunder that the Company shall have paid (i) to the Agent for the account of the Banks the fees required to be paid 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 Effective Date and (cii) 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 Agent and the Transactions had occurred as of such date (in Arranger 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) fees required to be reimbursed or paid by any Loan Party under any Loan Document;
(i) subject in all respects to them pursuant to the final paragraph of this fee letter described in 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 agree13.12.
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 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 obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions hereunder are subject solely to the satisfaction or waiver Extension unless each of the following conditions precedentis satisfied:
(a) subject in all respects to the final clause of this Section 3.2, the The Administrative Agent shall have received executed counterparts of each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance Notes requested by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect a Lender pursuant to organizational documents filed with a Governmental Authority, by the applicable Governmental AuthoritySection 2.13;
(iii) copies a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors (or similar other governing body) body of each such Loan Party approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, together with specimen signatures and (in the case of the persons Borrower) authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentrequest a Credit Extension;
(iv) copies 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 formationa certificate, incorporation or organization, as applicable;
(v) signed by 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 Senior Financial Officer of the Borrower, dated stating that on the date hereof;
(viii) of the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
initial Credit Extension (A) the certificates representing the shares no Default or Event of Equity Interests required to be pledged by any Loan Party pursuant to the Security AgreementDefault has occurred and is continuing, 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 in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the Borrower set forth extent any such representation or warranty is stated to relate solely to an earlier date, in this Agreement shall be which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the Closing Date conditions set forth in Sections 4.1(e), (except f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for any such representations and warranties expressly relating to an earlier each Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, which representations to the extent generally available in such jurisdiction; and
(vi) a written opinion of the Loan Parties’ counsel, in form and warranties substance acceptable to the Administrative Agent, addressed to the Lenders. The Borrower’s counsel shall be true and correct in all material respects as of such earlier date);reasonably acceptable to the Administrative Agent.
(b) [Reserved].
(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 The Administrative Agent 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 before 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 and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) subject in all respects to the final paragraph business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of this Section 3.2operations, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit or prospects of the Secured PartiesBorrower and its Subsidiaries taken as a whole, since December 31, 2024, or (ii) will have a perfected Lien (subject the facts and information regarding such entities as represented by such entities to Permitted Liens) on the Collateral shall have been taken; anddate.
(jf) the The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the results of contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a recent Lien search whole, and no Law applies that in each the reasonable judgment 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 3.2Administrative Agent could have such effect.
(g) No action, each Lender that has signed this Agreement suit, investigation or proceeding shall be deemed pending or, to have consented tothe knowledge of any Loan Party, approved threatened in any court or accepted before any arbitrator or Governmental Authority that would reasonably be expected to be satisfied withresult in a Material Adverse Change or that seeks to prevent, each document enjoin or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the delay any Credit Extension.
(h) 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 audited consolidated financial statements of the Borrower and its Subsidiaries for the Guarantorsfiscal year ended December 31, 2024.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall not be have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a condition precedent “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the availability of Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the initial Loans on requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Closing Date (but shall be required to be satisfied ninety (90) days after Loan Parties, the Closing Date Loan Documents or such later date the transactions contemplated hereby as are reasonably requested by the Administrative Agent may and its counsel, in form and substance reasonably agreesatisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions hereunder are subject solely to the satisfaction or waiver Extension unless each of the following conditions precedentis satisfied:
(a) subject in all respects to the final clause of this Section 3.2, the The Administrative Agent shall have received executed counterparts of each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance Notes requested by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect a Lender pursuant to organizational documents filed with a Governmental Authority, by the applicable Governmental AuthoritySection 2.13;
(iii) copies a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors (or similar other governing body) body of each such Loan Party approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, together with specimen signatures and (in the case of the persons Borrower) authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentrequest a Credit Extension;
(iv) copies 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 formationa certificate, incorporation or organization, as applicable;
(v) signed by 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 Senior Financial Officer of the Borrower, dated stating that on the date hereof;
(viii) of the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
initial Credit Extension (A) the certificates representing the shares no Default or Event of Equity Interests required to be pledged by any Loan Party pursuant to the Security AgreementDefault has occurred and is continuing, 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 in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the Borrower set forth extent any such representation or warranty is stated to relate solely to an earlier date, in this Agreement shall be which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the Closing Date conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for each Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, to the extent generally available in such jurisdiction; and
(vi) a written opinion of the Loan Parties’ counsel, in form and substance acceptable to the Administrative Agent, addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(b) The Administrative Agent shall have received evidence reasonably satisfactory to it that the term loan credit facility currently in effect for the Borrower pursuant to that certain Term Loan Credit Agreement dated as of March 3, 2020 among the Borrower, the Guarantor, the banks named therein, and KeyBank National Association, as administrative agent, has been terminated and cancelled, all Debt thereunder has been fully repaid (except for to the extent being repaid with the initial Loans), and any such representations Liens thereunder have been terminated 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);released.
(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 The Administrative Agent 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 before 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 and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) subject in all respects to the final paragraph business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of this Section 3.2operations, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit or prospects of the Secured PartiesBorrower and its Subsidiaries taken as a whole, since December 31, 2021, or (ii) will have a perfected Lien (subject the facts and information regarding such entities as represented by such entities to Permitted Liens) on the Collateral shall have been taken; anddate.
(jf) the The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the results of contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a recent Lien search whole, and no Law applies that in each the reasonable judgment 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 3.2Administrative Agent could have such effect.
(g) No action, each Lender that has signed this Agreement suit, investigation or proceeding shall be deemed pending or, to have consented tothe knowledge of any Loan Party, approved threatened in any court or accepted before any arbitrator or Governmental Authority that would reasonably be expected to be satisfied withresult in a Material Adverse Change or that seeks to prevent, each document enjoin or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the delay any Credit Extension.
(h) The Administrative Agent shall have received notice from such Lender prior (i) pro forma financial statements giving effect to the proposed Closing Date specifying its objection thereto. Notwithstanding anything initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the contrary Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.8, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in this Section 3.2such pro forma financial statements, 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 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 iii) audited consolidated financial statements of the Borrower and its Subsidiaries for the Guarantorsfiscal year ended December 31, 2021
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall not be have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a condition precedent “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the availability of Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the initial Loans on requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Closing Date (but shall be required to be satisfied ninety (90) days after Loan Parties, the Closing Date Loan Documents or such later date the transactions contemplated hereby as are reasonably requested by the Administrative Agent may and its counsel, in form and substance reasonably agreesatisfactory to the Administrative Agent.
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Initial Credit Extension. The obligations of the L/C Issuer and each Lender Lenders shall not be required to make their respective the initial Credit Extensions hereunder are subject solely to the satisfaction or waiver Extension unless each of the following conditions precedentis satisfied:
(a) subject in all respects to the final clause of this Section 3.2, the The Administrative Agent shall have received executed counterparts of each of the following, each of which shall be originals or facsimiles (or delivered by other electronic transmission, including .pdf) unless otherwise specified:
(i) a counterpart of this Agreement signed on behalf of the BorrowerAgreement;
(ii) copies of the certificate of formation, certificate of organization, operating agreement, articles of incorporation and bylaws, as applicable (or comparable organizational documents) of each Loan Party and any amendments thereto, certified in each instance Notes requested by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect a Lender pursuant to organizational documents filed with a Governmental Authority, by the applicable Governmental AuthoritySection 2.13;
(iii) copies a certificate of the Secretary or an Assistant Secretary of each Loan Party certifying (A) that there have been no changes in the charter document of such Loan Party, as attached thereto and as certified as of a recent date by the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization, since the date of the certification thereof by such governmental entity, (B) as to the bylaws, operating agreement or other organizational document, as attached thereto, of such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors (or similar other governing body) body of each such Loan Party approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of each Loan Party authorized to sign the Loan Documents to which it is a party, together with specimen signatures and (in the case of the persons Borrower) authorized to execute such documents on each Loan Party’s behalf, all certified as of the Closing Date in each instance by its Secretary, Assistant Secretary or Chief Financial Officer as being in full force and effect without modification or amendmentrequest a Credit Extension;
(iv) copies 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 formationa certificate, incorporation or organization, as applicable;
(v) signed by 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 Senior Financial Officer of the Borrower, dated stating that on the date hereof;
(viii) of the Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
initial Credit Extension (A) the certificates representing the shares no Default or Event of Equity Interests required to be pledged by any Loan Party pursuant to the Security AgreementDefault has occurred and is continuing, 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 in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the Borrower set forth extent any such representation or warranty is stated to relate solely to an earlier date, in this Agreement shall be which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the Closing Date conditions set forth in Sections 4.1(e), (except f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for any such representations and warranties expressly relating to an earlier each Loan Party from the Secretary of State (or analogous governmental entity) of the jurisdiction of its organization as of a recent date, which representations to the extent generally available in such jurisdiction; and
(vi) a written opinion of the Loan Parties’ counsel, in form and warranties substance acceptable to the Administrative Agent, addressed to the Lenders. The Borrower’s counsel shall be true and correct in all material respects as of such earlier date);reasonably acceptable to the Administrative Agent.
(b) [Reserved].
(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 The Administrative Agent 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 before 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 and disbursements of counsel) required to be reimbursed or paid by any Loan Party under any Loan Document;the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) subject in all respects to the final paragraph business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of this Section 3.2operations, all other actions not identified in clause (a) above that are necessary to establish that the Collateral Agent (for the benefit or prospects of the Secured PartiesBorrower and its Subsidiaries taken as a whole, since December 31, 2023, or (ii) will have a perfected Lien (subject the facts and information regarding such entities as represented by such entities to Permitted Liens) on the Collateral shall have been taken; anddate.
(jf) the The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the results of contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a recent Lien search whole, and no Law applies that in each the reasonable judgment 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 3.2Administrative Agent could have such effect.
(g) No action, each Lender that has signed this Agreement suit, investigation or proceeding shall be deemed pending or, to have consented tothe knowledge of any Loan Party, approved threatened in any court or accepted before any arbitrator or Governmental Authority that would reasonably be expected to be satisfied withresult in a Material Adverse Change or that seeks to prevent, each document enjoin or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the delay any Credit Extension.
(h) The Administrative Agent shall have received notice from such Lender prior (i) pro forma financial statements giving effect to the proposed Closing Date specifying its objection thereto. Notwithstanding anything initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the contrary Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.8, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in this Section 3.2such pro forma financial statements, 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 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 iii) audited consolidated financial statements of the Borrower and its Subsidiaries for the Guarantorsfiscal year ended December 31, 2023.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall not be have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a condition precedent “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the availability of Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the initial Loans on requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Closing Date (but shall be required to be satisfied ninety (90) days after Loan Parties, the Closing Date Loan Documents or such later date the transactions contemplated hereby as are reasonably requested by the Administrative Agent may and its counsel, in form and substance reasonably agreesatisfactory to the Administrative Agent.
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