Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied: (a) The Administrative Agent shall have received executed counterparts of each of the following: (i) this Agreement; (ii) any Notes requested by a Lender pursuant to Section 2.13; (iii) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower 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 the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extension; (iv) a certificate, signed by a Senior Financial Officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied; (v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved]. (c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. (d) [Reserved]. (e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date. (f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect. (g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension. (h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025. (i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date. (j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower. (k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof. (l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct in all material respects as of each of such date and (b) the followingCompany has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "LOAN PARTY"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrowers, to request a Credit Extension;Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the date of the initial Credit Extension Date (Aa) no Default or Event of Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, shall be true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (Cc) no material adverse change in the conditions set forth in Sections 4.1(e)business, (f) and (g) are satisfied;financial condition or operations of the Company or any of its Subsidiaries has occurred since November 30, 2001.
(v) a good standing A certificate (in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or analogous documentation if applicable) for temporary restraining order which would prohibit the Borrower from the Secretary of State (or analogous governmental entity) making of the jurisdiction of its organization as of a recent date, to the extent generally available in initial Credit Extensions or any litigation seeking such jurisdiction; andan injunction or restraining order.
(vi) a written opinion A certificate of the Borrower’s counselvalue, 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) [Reserved].
(c) The Administrative Agent shall have received all fees solvency and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and appropriate factual information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative AgentAgent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Transaction Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of Kenyon W. Murphy, General Counsel of the Borr▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇uarantor, and Kilpatrick Stockton LLP, special counsel to t▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ch Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(viii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(xi) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been, or shall simultaneously with the initial Advance hereunder or the initial "Advance" under (and as defined in) the 364-Day Credit Agreement be, paid in full.
(xii) Evidence satisfactory to the Agents that the 364-Day Credit Agreement shall have been duly executed by all parties thereto.
(xiii) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for the Borrower 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 (DE) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extension;
(iv) a certificate, signed by a Senior Financial Officer the chief financial officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;date; and
(v) a good standing certificate (or analogous documentation if applicable) for written opinions of counsel from counsel to the Borrower from the Secretary (which may include in-house counsel with respect to matters 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 Borrower’s counselNew Mexico law), in form and substance acceptable to the Administrative Agent, addressed to the LendersAdministrative Agent and Lenders and dated as of the Closing Date. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(b) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date.
(fc) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(gd) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change Effect or that seeks to prevent, enjoin or delay any Credit Extension.
(he) The Administrative Agent shall have received audited a copy of (i) the annual consolidated financial statements (including balance sheets, income statements and cash flow statements) of the Borrower and its Subsidiaries for Fiscal Years 2020 and 2021, audited by independent public accountants of recognized national standing, (ii) the consolidated balance sheet, income statement and statement of cash flows of the Borrower and its Subsidiaries for the fiscal year Fiscal Quarter ended December March 31, 20252022 and (iii) such other financial information regarding the Borrower as the Administrative Agent may reasonably request. The Administrative Agent acknowledges that the items described in clauses (i) and (ii) above have been posted on the Borrower’s website at the website address listed Section 10.1 and are therefore deemed to have been received by the Administrative Agent.
(if) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(jg) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(lh) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct in all material respects as of each of such date and (b) the followingCompany has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar Constitutive Documents) of the Company, each other Borrower and each Guarantor (each a “Loan Party”), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrowers, to request a Credit Extension;Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the date of the initial Credit Extension Date (Aa) no Default or Event of Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, shall be true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (Cc) no material adverse change in the conditions set forth in Sections 4.1(e)business, (f) and (g) are satisfied;financial condition or operations of the Company or any of its Subsidiaries has occurred since August 31, 2006.
(v) a good standing A certificate (in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or analogous documentation if applicable) for temporary restraining order which would prohibit the Borrower from the Secretary of State (or analogous governmental entity) making of the jurisdiction of its organization as of a recent date, to the extent generally available in initial Credit Extensions or any litigation seeking such jurisdiction; andan injunction or restraining order.
(vi) a written opinion A certificate of the Borrower’s counselvalue, 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) [Reserved].
(c) The Administrative Agent shall have received all fees solvency and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and appropriate factual information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative AgentAgent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(xi) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been, or shall simultaneously with the initial Advance hereunder be, paid in full.
(xii) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct in all material respects as of each of such date and (b) the followingCompany has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a “Loan Party”), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrowers, to request a Credit Extension;Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the date of the initial Credit Extension Date (Aa) no Default or Event of Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, shall be true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (Cc) no material adverse change in the conditions set forth in Sections 4.1(e)business, (f) and (g) are satisfied;financial condition or operations of the Company or any of its Subsidiaries has occurred since November 30, 2003.
(v) a good standing A certificate (in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or analogous documentation if applicable) for temporary restraining order which would prohibit the Borrower from the Secretary of State (or analogous governmental entity) making of the jurisdiction of its organization as of a recent date, to the extent generally available in initial Credit Extensions or any litigation seeking such jurisdiction; andan injunction or restraining order.
(vi) a written opinion A certificate of the Borrower’s counselvalue, 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) [Reserved].
(c) The Administrative Agent shall have received all fees solvency and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and appropriate factual information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative AgentAgent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of S▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(xi) Evidence satisfactory to the Agents that the Existing Credit Agreements shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been, or shall simultaneously with the initial Advance hereunder be, paid in full.
(xii) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Sources: 5 Year Revolving Credit Agreement (Acuity Brands Inc)
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension unless each Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions is satisfiedprecedent:
(a) The subject in all respects to the final clause of this Section 3.2, 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 AgreementAgreement 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 Notes requested amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Lender pursuant to Section 2.13Governmental Authority, by the applicable Governmental Authority;
(iii) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors (or other similar governing body body) of the Borrower each 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 the Borrower authorized to sign the Loan Documents to which it is a party, and together with specimen signatures of the persons authorized to request a Credit Extensionexecute 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 certificatelist 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 by a Senior Financial Officer on behalf of the Borrower, stating that on dated the date of hereof;
(viii) the initial Credit Extension Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) no Default or Event the certificates representing the shares of Default has occurred and is continuingEquity 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 Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was 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 and (C) the conditions set forth in Sections 4.1(edate), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The no Default or Event Default shall have occurred and be continuing or shall result therefrom;
(d) the Share Repurchase shall have been consummated;
(e) the Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing Credit Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) the Administrative Agent shall have received all fees documentation and other amounts information about the Loan Parties as shall have been reasonably requested in writing at least two (2) Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(g) the Administrative Agent shall have received (a) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Borrower for the three (3) most recently completed fiscal years of the Borrower, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”) and (b) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower for each subsequent fiscal quarter ended at least 45 days before the Closing Date;
(h) the Administrative Agent shall have received all fees, other payments and expenses previously agreed in writing by the Borrower to be due and payable on or before prior to the Closing Date, including, to the extent invoicedinvoiced 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 the Borrower hereunder.any Loan Party under any Loan Document;
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) subject in all respects to the businessfinal paragraph of this Section 3.2, Property, liabilities all other actions not identified in clause (actual and contingent), operations or condition a) above that are necessary to establish that the Collateral Agent (financial or otherwise), results of operations, or prospects for the benefit of the Borrower and its Subsidiaries taken as Secured Parties) will have a whole, since December 31, 2025, or perfected Lien (iisubject to Permitted Liens) on the Collateral shall have been taken; and
(j) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence the results of all governmental, equity holder a recent Lien search in each of the jurisdictions of organization of each Loan Party and third-party consents and approvals necessary in connection each jurisdiction where material assets of the Loan Parties are located. For purposes of determining compliance with the contemplated financingconditions specified in this Section 3.2, all applicable waiting periods shall have expired without any action being taken by any authority each Lender that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding has signed this Agreement shall be pending ordeemed 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 knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements notice from such Lender prior to the proposed Closing Date specifying its objection thereto. Notwithstanding anything to the contrary in this Section 3.2, to the extent that any Collateral constituting real property is not provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so, then the satisfaction of such requirements shall not be a condition precedent to the availability of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before initial Loans on the Closing Date, the Borrower Date (but shall have provided be required 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 be satisfied ninety (90) days before after the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies Date or such later date as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance may reasonably satisfactory to the Administrative Agentagree).
Appears in 1 contract
Sources: Loan Agreement (Vantiv, Inc.)
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct in all material respects as of each of such date and (b) the followingCompany has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar Constitutive Documents) of the Company, each other Borrower and each Guarantor (each a “Loan Party”), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation, as well as any other information required by Section 326 of the USA PATRIOT ACT.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors’ resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrowers, to request a Credit Extension;Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer, treasurer or vice president of finance of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the date of the initial Credit Extension Date (Aa) no Default or Event of Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, shall be true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (Cc) no material adverse change in the conditions set forth in Sections 4.1(e)business, (f) and (g) are satisfied;financial condition or operations of the Company or any of its Subsidiaries has occurred since August 31, 2006.
(v) a good standing A certificate (in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or analogous documentation if applicable) for temporary restraining order which would prohibit the Borrower from the Secretary of State (or analogous governmental entity) making of the jurisdiction of its organization as of a recent date, to the extent generally available in initial Credit Extensions or any litigation seeking such jurisdiction; andan injunction or restraining order.
(vi) a written opinion A certificate of the Borrower’s counselvalue, 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) [Reserved].
(c) The Administrative Agent shall have received all fees solvency and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and appropriate factual information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative AgentAgent and the Arrangers from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Loan Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A.
(viii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(x) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(xi) Evidence satisfactory to the Administrative Agent that the Spin-Off Transaction and the Spin-Off Dividend will be consummated substantially simultaneously with the initial Credit Extension hereunder or promptly thereafter.
(xii) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required obligation of the Banks and the Issuers to make the initial Credit Extension unless each of is subject to the following conditions is satisfied:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received executed counterparts of each all of the following:, each of which shall be originals 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) one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and the Company;
(ii2) any Notes requested a Note executed by the Company in favor of each Bank requesting a Lender pursuant to Section 2.13Note;
(iii3) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board Board of directors Directors or other governing body the executive committee of the Borrower Company approving and authorizing the execution, delivery and performance by the Company of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extensioncertified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Company;
(iv4) a certificate, signed by a Senior Financial Officer certificate of the BorrowerSecretary or Assistant Secretary of the Company, stating that 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 articles or certificate of incorporation of the Company as in effect on the date of this Agreement and the bylaws of the Company as in effect on the date of this Agreement, certified by the Secretary or Assistant Secretary of the Company as of the date of this Agreement;
(6) a good standing certificate for the Company from the Secretary of State of the State of Delaware;
(7) the Opinions of Counsel;
(8) a 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 money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application; and
(A11) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects. 721510353 03 43
(d) The Company shall be in compliance with all the terms and provisions of the Loan Documents, and, after giving effect to the initial Advance, no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved]exist.
(e) There The Company shall not have occurred a material adverse change in (i) paid to the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects Administrative Agent for the account of the Borrower Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities Co-Lead Arrangers pursuant to datethe Fee Letters.
(f) The Administrative Agent There shall have received evidence of all governmentaloccurred since December 31, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority 2015 no event or circumstance that would be reasonably likely to restrain, prevent has resulted or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit ExtensionEffect.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying (A) that there have been no changes in the charter document of the Borrowersuch 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 the Borrower such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower such Loan Party 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 the Borrower each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized to request a Credit Extension;
(iv) a certificate, signed by a Senior Financial Officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 20252024, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrowerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 20252024.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the BorrowerLoan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders Banks shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:Company has furnished to the Agent, with sufficient copies for the Banks: Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ -32-
(a) The Administrative Agent shall have received executed counterparts of each Copies of the following:
articles or certificate of incorporation (ior similar constitutive documents) this Agreement;
of the Company and each Guarantor (ii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) collectively, the "Loan Parties"), together with all amendments, and a certificate of good standing, both certified by the appropriate governmental officer in its jurisdiction of organization.
(b) Copies, certified by the Secretary or an Assistant Secretary of each Loan Party, of its By-Laws (or similar constitutive documents) and of its Board of Directors' resolutions (and resolutions of other bodies, if any are deemed necessary by counsel for any Bank) authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(c) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures signature of the incumbent officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and to make borrowings hereunder, and authorized upon which certificate the Banks shall be entitled to request a Credit Extension;rely until informed of any change in writing by the Company.
(ivd) a A certificate, signed by a Senior Financial an Authorized Officer of the BorrowerCompany, stating that on as of the date of the initial Credit Extension (A) no Default or Event of Unmatured Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects A written opinion of the Borrower and its Subsidiaries taken as a wholeLoan Parties' counsel, since December 31, 2025, or (ii) addressed to the facts and information regarding such entities as represented by such entities to dateBanks in substantially the form of Exhibit B hereto.
(f) The Administrative Agent shall have received evidence Notes payable to the order of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment each of the Administrative Agent could have such effectBanks.
(g) No action, suit, investigation or proceeding shall be pending or, Evidence satisfactory to the knowledge of Banks that the BorrowerExisting Credit Agreement shall have been, threatened or shall simultaneously with any initial Credit Extension hereunder be, terminated and all indebtedness and obligations thereunder shall have been, or shall simultaneously with any initial Credit Extension hereunder be, paid in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extensionfull.
(h) The Administrative Agent shall Such other documents as any Bank or its counsel may have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025reasonably requested.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required obligation of the Banks and the Issuers to make the initial Credit Extension unless each of is subject to the following conditions is satisfied:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received all of the following, each of which shall be originals unless otherwise specified, each properly executed counterparts 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):
(1) at least one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and the Company;
(2) Notes payable to the order of each of the following:
(i) this AgreementBanks signatories hereto, each in a principal amount equal to such Bank’s Commitment;
(ii3) any Notes requested by a Lender pursuant to Section 2.13;
(iii) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board Board of directors Directors or other governing body the executive committee of the Borrower Company approving and authorizing the execution, delivery and performance by the Company of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extensioncertified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Company;
(iv4) a certificate, signed by a Senior Financial Officer certificate of the BorrowerSecretary or Assistant Secretary of the Company, stating that 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 articles or certificate of incorporation of the Company as in effect on the date of this Agreement and the bylaws of the Company as in effect on the date of this Agreement, certified by the Secretary or Assistant Secretary of the Company as of the date of this Agreement;
(6) a good standing certificate for the Company from the Secretary of State of its state of incorporation;
(7) the Opinions of Counsel;
(8) a 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 money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application; and
(A11) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) All obligations of the Company under the Existing Credit Agreement (other than contingent obligations with respect to Existing Letters of Credit) shall have been paid in full, and the Existing Credit Agreement shall have terminated.
(c) Attorney Costs of U.S. Bank to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute U.S. Bank’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and U.S. Bank) shall have been paid.
(d) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(e) The Company shall be in compliance with all the terms and provisions of the Loan Documents, and, after giving effect to the initial Advance, no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to dateexist.
(f) The Administrative Agent Company shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely paid to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could for the account of the Banks such upfront fees as have such effectbeen agreed to by the Company, the Administrative Agent and the Co-Lead Arrangers pursuant to the Fee Letter.
(g) No actionThere shall have occurred since December 31, suit, investigation 2004 no event or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court circumstance that has resulted or before any arbitrator or Governmental Authority that would could reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit ExtensionEffect.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct in all material respects as of each of such date and (b) the followingCompany has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "LOAN PARTY"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrowers, to request a Credit Extension;Revolving Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the date of the initial Credit Extension Date (Aa) no Default or Event of Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, shall be true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (Cc) no material adverse change in the conditions set forth in Sections 4.1(e)business, (f) and (g) are satisfied;financial condition or operations of the Company or any of its Subsidiaries has occurred since November 30, 2001.
(v) a good standing A certificate (in form and substance satisfactory to the Administrative Agent stating that there exists no injunction or analogous documentation if applicable) for temporary restraining order which would prohibit the Borrower from the Secretary of State (or analogous governmental entity) making of the jurisdiction of its organization as of a recent date, to the extent generally available in initial Credit Extensions or any litigation seeking such jurisdiction; andan injunction or restraining order.
(vi) a written opinion A certificate of the Borrower’s counselvalue, 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) [Reserved].
(c) The Administrative Agent shall have received all fees solvency and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and appropriate factual information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative AgentAgent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Transaction Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes.
(vii) Written opinions of Kenyon W. Murphy, General Counsel of the Borro▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇arantor, and Kilpatrick Stockton LLP, special counsel to th▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇h Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(viii) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(ix) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(x) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been, or shall simultaneously with the initial Advance hereunder or the initial "Advance" under (and as defined in) the 3-Year Credit Agreement be, paid in full.
(xi) Evidence satisfactory to the Agents that the 3-Year Credit Agreement shall have been duly executed by all parties thereto.
(xii) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Acuity Brands Inc)
Initial Credit Extension. The Lenders shall not be required obligation of the Banks and the Issuers to make the initial Credit Extension unless each of is subject to the following conditions is satisfied:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received executed counterparts of each all of the following:, each of which shall be originals 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) one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and the Company;
(ii2) any Notes requested a Note executed by the Company in favor of each Bank requesting a Lender pursuant to Section 2.13Note;
(iii3) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board Board of directors Directors or other governing body the executive committee of the Borrower Company approving and authorizing the execution, delivery and performance by the Company of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extensioncertified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Company;
(iv4) a certificate, signed by a Senior Financial Officer certificate of the BorrowerSecretary or Assistant Secretary of the Company, stating that 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 articles or certificate of incorporation of the Company as in effect on the date of this Agreement and the bylaws of the Company as in effect on the date of this Agreement, certified by the Secretary or Assistant Secretary of the Company as of the date of this Agreement;
(6) a good standing certificate for the Company from the Secretary of State of the State of Delaware;
(7) the Opinions of Counsel;
(8) a 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 money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application; and
(A11) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Documents, and, after giving effect to the initial Advance, no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved]exist.
(e) There The Company shall not have occurred a material adverse change in (i) paid to the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects Administrative Agent for the account of the Borrower Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities Co-Lead Arrangers pursuant to datethe Fee Letters.
(f) The Administrative Agent There shall have received evidence of all governmentaloccurred since December 31, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority 2013 no event or circumstance that would be reasonably likely to restrain, prevent has resulted or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit ExtensionEffect.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension unless each Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions is satisfiedprecedent:
(a) The subject in all respects to the final paragraph of this Section 3.2, 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 AgreementAgreement 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 Notes requested amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Lender pursuant to Section 2.13Governmental Authority, by the applicable Governmental Authority;
(iii) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors (or other similar governing body body) of the Borrower each 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 the Borrower authorized to sign the Loan Documents to which it is a party, and together with specimen signatures of the persons authorized to request a Credit Extensionexecute 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 certificatelist 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, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, 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 by a Senior Financial Officer on behalf of the Borrower, stating that on dated the date of hereof;
(viii) the initial Intercreditor Agreement, executed and delivered by the Borrower and Credit Extension Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) no Default or Event the certificates representing the shares of Default has occurred and is continuingEquity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
(xii) evidence of the existence of insurance required to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 6.3(a), together with certificates of insurance and endorsements naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss payee, as the case may be, under all such insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral; provided that with respect to any insurance certificate or endorsement that may not be provided prior to the Closing Date after use of commercially reasonable efforts to do so, then delivery of such certificate or endorsement shall not constitute a condition precedent to the initial Loans on the Closing Date (but shall be required to be delivered as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.25 or such later date as the Administrative Agent may reasonably agree); and
(xiii) a true and complete copy of the Acquisition Agreement as in effect on the Closing Date;
(b) The condition in Section 3.01(a) of the Acquisition Agreement (but only with respect to representations and warranties that are material to the interests of the Lenders, and only to the extent that the accuracy of such representation or warranty is a condition of the Borrower’s obligation to close under the Acquisition Agreement or the Borrower has (or the Borrower’s Affiliates have) the right to terminate the Borrower’s (or its Affiliate’s) obligations under the Acquisition Agreement as a result of a breach of such representations and warranties in the Acquisition Agreement) shall be satisfied;
(c) the representations and warranties of the Borrower set forth in Article V are (1Sections 5.1(a) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2a), Section 5.2(i), Section 5.3, Section 5.7(a), Section 5.13, Section 5.20, Section 5.21(b) 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 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 date);
(d) the NPC Acquisition shall have been or, substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, consummated, in accordance with the terms of the Acquisition Agreement (but without giving effect to any alterations, amendments, modifications, supplements, waivers or consents by the Borrower, or updated disclosure schedules delivered to the Borrower, that are, individually or in the aggregate, materially adverse to the Joint Lead Arrangers without their reasonable consent); provided that any updated disclosure schedules delivered to the Borrower shall not be deemed to be materially adverse to the Joint Lead Arrangers unless such updated disclosure schedules, together with all previous alterations, modifications, amendments, supplements, waivers and consents (whether or not consented to by the Joint Lead Arrangers), would result in a termination right under Section 6.06 of the Acquisition Agreement; provided further that (x) any reduction in the acquisition consideration by more than 10% shall be deemed to be materially adverse and (Cy) any reduction in the acquisition consideration of less than or equal to 10% shall reduce, on a dollar for dollar basis, the aggregate amount of the Facilities under this Agreement and Second Lien Loan Agreement (with allocations across the facilities as agreed by the Joint Lead Arrangers and the Borrower);
(e) the conditions set forth in Sections 4.1(e)Borrower shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing Loan Agreement, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(f) Target shall have repaid, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall repay, all amounts outstanding under the Existing NPC Credit Agreements, all commitments thereunder shall have been, or substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be, terminated and all guarantees thereof and security therefor discharged and released;
(g) are satisfiedafter 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;
(vh) since June 30, 2010, a good standing certificate (or analogous documentation if applicable) for the Borrower 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; andClosing Date Material Adverse Effect shall not have occurred;
(vii) a written opinion of the Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees documentation and other amounts information about the Loan Parties as shall have been reasonably requested in writing at least five Business Days prior to the Closing Date by the Administrative Agent that the Administrative Agent shall have reasonably determined is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act;
(j) the Administrative Agent shall have received (a)(i) audited consolidated balance sheets of the Borrower for the two most recently completed fiscal years of the Borrower, (ii) audited consolidated statements of income and cash flows of the Borrower for the three most recently completed fiscal years of the Borrower, (iii) audited consolidated statements of stockholders’ equity of the Borrower for the six months ended December 31, 2009 and the one month ended June 30, 2009 and (iv) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Target for the three most recently completed fiscal years of the Target, in each case, ended at least 90 days before the Closing Date (together, the “Audited Financial Statements”), (b) unaudited consolidated balance sheets and related statements of income and cash flows of the Borrower and the Target for each subsequent fiscal quarter ended at least 45 days before the Closing Date and (c) a pro forma consolidated balance sheet and related pro forma consolidated statement of income of the Borrower as of and for the four-fiscal quarter period most recently ended pursuant to paragraph (a) or (b) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such other financial statements);
(k) the Administrative Agent shall have received all fees, other payments and expenses previously agreed in writing by the Borrower to be due and payable on or before prior to the Closing Date, including, to the extent invoicedinvoiced at least two Business Days prior to the Closing Date (or such later date as the Borrower may reasonably agree), reimbursement or payment of all out-of-pocket expenses (including reasonable fees, charges and disbursements of counsel) required to be reimbursed or paid by the Borrower hereunder.any Loan Party under any Loan Document;
(dl) [Reserved].subject in all respects to the final paragraph of this Section 3.2, all other actions not identified in paragraph (a) above that are necessary to establish that the Collateral Agent (for the benefit of the Secured Parties) will have a perfected Lien (subject to Permitted Liens and Liens (as defined in the Second Lien Loan Agreement) permitted under the Second Lien Loan Agreement, respectively) on the Collateral shall have been taken;
(e) There shall not have occurred a material adverse change in (im) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence the results of all governmentala 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, equity holder and third-party consents and approvals necessary in connection with then delivery of such search results shall not constitute a condition precedent to the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions availability of the initial Loans on the Borrower Closing Date (but shall be required to be delivered as promptly as practicable after the Closing Date and its Subsidiaries, taken in any event within the period specified therefor in Schedule 6.25 or such later date as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.may reasonably agree); and
(gn) No actionthe Second Lien Loan Documents shall have been executed or, suit, investigation or proceeding substantially concurrently with the making of the Borrowings hereunder on the Closing Date shall be pending orconsummated, 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 knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements 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 its Subsidiaries for the fiscal year ended December 31, 2025.
(iGuarantors) Upon shall not be a condition precedent to the reasonable request availability of any Lender made at least 10 days before the initial Loans on the Closing Date, the Borrower Date (but shall have provided be required 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 be satisfied as promptly as practicable after the Closing Date.
(j) At least five days before Date and in any event within the Closing Date, if the Borrower qualifies period specified therefor in Schedule 6.25 or such later date as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance may reasonably satisfactory to the Administrative Agentagree).
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required obligation of the Banks and the Issuers to make the initial Credit Extension unless each of is subject to the following conditions is satisfied:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received executed counterparts of each all of the following:, each of which shall be originals 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) at least one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and the Company;
(ii2) any Notes requested a Note executed by the Company in favor of each Bank requesting a Lender pursuant to Section 2.13Note;
(iii3) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board Board of directors Directors or other governing body the executive committee of the Borrower Company approving and authorizing the execution, delivery and performance by the Company of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extensioncertified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Company;
(iv4) a certificate, signed by a Senior Financial Officer certificate of the BorrowerSecretary or Assistant Secretary of the Company, stating that 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 articles or certificate of incorporation of the Company as in effect on the date of this Agreement and the bylaws of the Company as in effect on the date of this Agreement, certified by the Secretary or Assistant Secretary of the Company as of the date of this Agreement;
(6) a good standing certificate for the Company from the Secretary of State of the State of Delaware;
(7) the Opinions of Counsel;
(8) a 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 money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application; and
(A11) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Documents, and, after giving effect to the initial Advance, no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved]exist.
(e) There The Company shall not have occurred a material adverse change in (i) paid to the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects Administrative Agent for the account of the Borrower Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities Co-Lead Arrangers pursuant to datethe Fee Letters.
(f) The Administrative Agent There shall have received evidence of all governmentaloccurred since December 31, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority 2011 no event or circumstance that would be reasonably likely to restrain, prevent has resulted or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit ExtensionEffect.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) any Notes requested by a Lender pursuant to Section 2.13the Notes;
(iii) the Guaranty;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying (A) that there have been no changes in the charter document of the Borrowersuch 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 the Borrower such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for such 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 (DE) the names and true signatures of the incumbent officers of the Borrower each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized to request a Credit Extension;
(ivv) a certificate, signed by a Senior Financial Officer the chief financial officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s Loan Parties’ counsel, in form and substance reasonably acceptable to the Administrative Agent, addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(b) [Reserved]All instruments pursuant to which Borrower is liable for borrowed money that are in effect as of the Closing Date, other than instruments for Permitted Indebtedness, have been terminated and cancelled, all Indebtedness thereunder has been fully repaid (except to the extent being repaid with the initial Loans), and any Liens thereunder have been terminated and released (provided, for purposes hereof, it is acknowledged and agreed that concurrently with the Closing Date, the Original Credit Facility is terminated in accordance with the terms and conditions of Section 10.28 hereof).
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved]The Administrative Agent shall have received evidence in form, scope and substance reasonably satisfactory to the Administrative Agent of current insurance coverage that complies with Section 6.6.
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 20252024, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrowerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change Effect or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received (i) pro forma financial statements giving effect to the initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.14, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2025, and (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year years ended December 31, 2022, December 31, 2023 and December 31, 2024. Administrative Agent confirms the requirements of this Section 4.1(h) are satisfied.
(i) The Administrative Agent shall have received the results of a recent lien search in each of the jurisdictions where the initial Loan Parties are organized and such searches shall reveal no Liens on any of the Property of the initial Loan Parties except for Permitted Liens or Liens discharged on or before the Closing Date pursuant to a payoff letter or other documentation satisfactory to the Administrative Agent.
(j) To the extent the Target Acquisition will occur substantially concurrently with the Closing Date, Administrative Agent shall have received the statutory financial statements of the Target Company for the financial quarter ending September 30, 2025.
(ik) Evidence of the active insurance licenses held by PIA, PCIS, PUEO, PSIC, FIA, PESIC and Palomar Specialty Reinsurance Company Bermuda LTD.
(l) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying (A) that there have been no changes in the charter document of the Borrowersuch 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 the Borrower such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower such Loan Party 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 the Borrower each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized to request a Credit Extension;
(iv) a certificate, signed by a Senior Financial Officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved]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 to the extent being repaid with the initial Loans), and any Liens thereunder have been terminated and released.
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 20252021, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrowerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received (i) pro forma financial statements giving effect to the initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.8, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, and (iii) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.2021
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the BorrowerLoan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each on the Closing Date (and the obligations of the Lenders in respect thereof) is subject to satisfaction of the following conditions is satisfiedprecedent:
(a) The Administrative Agent and Blackstone Representative shall have received a counterpart duly executed counterparts and delivered by the Borrower, each other Loan Party, the Agents and each Lender (in each case, to the extent it is a party to such agreement) (or written evidence satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission of each a counterpart) that such party has signed a counterpart) of the following:
(i) this AgreementAgreement and (ii) each Collateral Document to which it is a party;
(iib) any Notes requested by a Lender pursuant The Administrative Agent and Blackstone Representative shall have received, on behalf of itself, the Collateral Agent and the Lenders, the favorable written opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., counsel for the Loan Parties in form and substance reasonably satisfactory to Section 2.13the Blackstone Representative, dated the Closing Date and addressed to the Administrative Agent, the Collateral Agent and the Lenders;
(iiic) The Administrative Agent and Blackstone Representative shall have received, with respect to the Borrower and each other Loan Party, (i) copies of the Organizational Documents of such Loan Party (including each amendment thereto) certified as of a date reasonably near the Closing Date as being a true and complete copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized; (ii) a certificate of the Secretary secretary or an Assistant Secretary assistant secretary of each Loan Party dated the Borrower Closing Date and certifying (A) that there have been no changes in the charter document attached thereto is a true and complete copy of the Borrower, as attached thereto and as certified as Organizational Documents 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 the Borrower Loan Party as in effect on the date of such certificationClosing Date, (CB) as to that attached thereto is a true and complete copy of resolutions of duly adopted by the board of directors or other similar governing body of the Borrower such Loan Party (and, if applicable, any parent company of such Loan Party) approving and authorizing the execution, delivery and performance of each Loan Document to which it is a party, this Agreement and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the other Loan Documents to which it is a partyparty and the consummation of the US-DOCS\155537880.27 Transactions, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, and (C) as to the incumbency and specimen signature of each Person authorized to request execute any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party; (iii) a Credit Extension;
certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate pursuant to clause (ii) above and (iv) a certificate, signed by a Senior Financial Officer copy of the Borrower, stating that on the date certificate of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as good standing of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower Loan Party from the Secretary of State (or analogous governmental entity) other applicable Governmental Authority of the jurisdiction of its organization in which each such Loan Party is organized (dated as of a recent datedate reasonably near the Closing Date);
(d) The Administrative Agent and the Collateral Agent shall have received, on or before the Closing Date, all documents and instruments, including Uniform Commercial Code financing statements required by Law or reasonably requested by the Blackstone Representative (to the extent generally available in required by the Security Agreement) to be filed, registered, published or recorded to create or perfect the Liens intended to be created under the Loan Documents and all such jurisdiction; anddocuments and instruments shall have been so filed, registered, published or recorded or other arrangements reasonably satisfactory to the Blackstone Representative for such filing, registration, publication or recordation shall have been made;
(vie) The Administrative Agent and Blackstone Representative shall have received a written opinion completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of the Borrower’s counselLoan Parties, 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.together with all attachments contemplated thereby;
(b) [Reserved].
(cf) The Administrative Agent shall have received at least three (3) Business Days prior to the Closing Date (x) a Beneficial Ownership Certificate with respect to the Borrower and (y) all other documentation and other information required by bank regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation, that has been reasonably requested by any Lender at least ten (10) days in advance of the Closing Date.
(g) The Administrative Agent and Blackstone Representative shall have received a Solvency Certificate signed by a Financial Officer;
(h) The Administrative Agent and Blackstone Representative shall have received a certificate of a Responsible Officer of the Borrower as to the matters set forth in clause (b) and (c) of Section 4.2;
(i) (x) The Arrangers and the Administrative Agent shall have received (or shall receive substantially concurrently with the initial Credit Extension on the Closing Date), to the extent invoiced at least two (2) Business Days prior to the Closing Date, all fees and other amounts due and payable on or before prior to the Closing Date, including, Date pursuant to the extent invoicedLoan Documents, including reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.Loan Parties hereunder or under any other Loan Document and (y) the Administrative Agent shall have received a fully executed copy of the Agent Fee Letter;
(dj) [Reserved].The Administrative Agent and Blackstone Representative shall have received copies of a recent Lien and judgment search in each jurisdiction reasonably requested by the Blackstone Representative at least three (3) Business Days prior to the Closing Date with respect to the Loan Parties;
(ek) There The Administrative Agent and Blackstone Representative shall not have occurred received a material adverse change certificate from the Borrower’s insurance broker or other evidence reasonably satisfactory to the Blackstone Representative that all insurance required to be maintained pursuant to Section 5.5 is in full US-DOCS\155537880.27 force and effect, together with endorsements naming the Administrative Agent or the Collateral Agent as additional insured or lender’s loss payee thereunder (ias applicable);
(l) The Administrative Agent and Blackstone Representative shall have received the businessAgreement Among Lenders dated the Closing Date and duly executed and delivered by each Lender and the Agents;
(m) Prior to or substantially concurrently with the initial funding of the Loans hereunder on the Closing Date, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects all existing third party debt for borrowed money of the Borrower and its Subsidiaries taken as a wholeunder the Existing Credit Agreement will be repaid, since December 31redeemed, 2025defeased, discharged, refinanced or (ii) terminated, all commitments to extend credit thereunder shall be terminated, and all related guaranties and security interests will be terminated and released to the facts and information regarding such entities as represented by such entities to date.reasonable satisfaction of the Blackstone Representative; and
(fn) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection the executed Funding Direction Letter with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effectfunds flow attached.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required obligation of the Banks and the Issuers to make the initial Credit Extension unless each of is subject to the following conditions is satisfied:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received executed counterparts of each all of the following:, each of which shall be originals 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) at least one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and the Company;
(ii2) any Notes requested a Note executed by the Company in favor of each Bank requesting a Lender pursuant to Section 2.13Note;
(iii3) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board Board of directors Directors or other governing body the executive committee of the Borrower Company approving and authorizing the execution, delivery and performance by the Company of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extensioncertified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Company;
(iv4) a certificate, signed by a Senior Financial Officer certificate of the BorrowerSecretary or Assistant Secretary of the Company, stating that 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 articles or certificate of incorporation of the Company as in effect on the date of this Agreement and the bylaws of the Company as in effect on the date of this Agreement, certified by the Secretary or Assistant Secretary of the Company as of the date of this Agreement;
(6) a good standing certificate for the Company from the Secretary of State of the State of Delaware;
(7) the Opinions of Counsel;
(8) a 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 money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by a Responsible Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested;
(10) if the initial Credit Extension will be the issuance of a Letter of Credit, a properly completed Letter of Credit Application; and
(A11) such other assurances, certificates, documents, consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of U.S. Bank to the extent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute U.S. Bank’s reasonable estimate of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and U.S. Bank) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Documents, and, after giving effect to the initial Advance, no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved]exist.
(e) There The Company shall not have occurred a material adverse change in (i) paid to the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects Administrative Agent for the account of the Borrower Banks such upfront fees as have been agreed to by the Company, the Administrative Agent and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities Co-Lead Arrangers pursuant to datethe Fee Letter.
(f) The Administrative Agent There shall have received evidence of all governmentaloccurred since December 31, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority 2006 no event or circumstance that would be reasonably likely to restrain, prevent has resulted or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit ExtensionEffect.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension unless each Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions is satisfiedprecedent:
(a) The subject in all respects to the final paragraph of this Section 3.2, 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 AgreementAgreement 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 Notes requested amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Lender pursuant to Section 2.13Governmental Authority, by the applicable Governmental Authority;
(iii) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors (or other similar governing body body) of the Borrower each 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 the Borrower authorized to sign the Loan Documents to which it is a party, and together with specimen signatures of the persons authorized to request a Credit Extensionexecute 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) a certificate, signed by a Senior Financial Officer copies of the Borrower, stating that on certificates of good standing (if available) for each Loan Party from the date office of the initial Credit Extension (A) no Default secretary of state or Event other appropriate governmental department or agency of Default has occurred and is continuingthe state of its formation, (B) the representations and warranties in Article V are (1) with respect to any representations incorporation or warranties that contain a materiality qualifierorganization, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfiedapplicable;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 list of the Borrower’s counsel, in form and substance acceptable to the Administrative Agent, Authorized Representatives;
(A) a favorable written opinion (addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(b) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counselthe 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, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, local counsel to National Processing Company in the state of Nebraska in each case in form and substance reasonably satisfactory to the Administrative Agent.;
(vii) an executed Solvency Certificate signed on behalf of the Borrower, dated the date hereof;
(viii) the Intercreditor Agreement, executed and delivered by the Borrower and Credit Suisse, AG, Cayman Islands Branch;
(ix) the Guaranty, duly executed by the Loan Parties;
(x) the Security Agreement, duly executed by each Loan Party, together with:
(A) the certificates representing the shares of Equity Interests required to be pledged by any Loan Party pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof,
(B) each promissory note (if any) required to be pledged to the Collateral Agent by any Loan Party pursuant to the Security Agreement, endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; and
(C) proper financing statements in form appropriate for filing under the UCC of all jurisdictions that the Administrative Agent may deem reasonably necessary in order to perfect the Liens created under the Security Agreement, covering the Collateral of the Loan Parties;
(xi) the Intellectual Property Security Agreements, duly executed by each Loan Party party thereto;
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct as of each of such date and (b) the followingBorrower has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar constitutive documents) of the Borrower and each Guarantor (each a "Loan Party"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of organization.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party, of such Loan Party's by-laws (or similar constitutive documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrower, to request a Credit Extension;Extensions hereunder, upon which certificate the Agents, the LC Issuers and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer, chief accounting officer or treasurer of the Borrower, showing the calculations necessary to determine compliance with this Agreement as of the Borrower's fiscal quarter ended September 26, 2004 and stating that on the date of the initial Credit Extension (A) Date no Default or Event of Unmatured Default has occurred and is continuing, .
(A) A written opinion of the Borrower's and each Guarantor's counsel and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s counselAdministrative Agent's counsel with respect to the enforceability of this Agreement, the Notes and the Guaranty, in each case in form and substance acceptable satisfactory to the Administrative AgentAgents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative AgentAgent may have reasonably requested.
(bix) [Reserved]Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(cx) The Administrative Agent shall Such other documents as any Lender or its counsel may have received all fees and other amounts due and payable on or before the Closing Datereasonably requested, including, to the extent invoicedwithout limitation, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions each document identified on the Borrower and its Subsidiaries, taken List of Closing Documents attached hereto as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.Exhibit F.
Appears in 1 contract
Sources: Revolving Credit Agreement (Applebees International Inc)
Initial Credit Extension. The Lenders shall not be required obligation of the Banks and the Issuers to make the initial Credit Extension unless each of is subject to the following conditions is satisfied:precedent (unless all of the Banks, in their sole and absolute discretion, shall agree otherwise):
(a) The Administrative Agent shall have received executed counterparts of each all of the following:, each of which shall be originals 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) one executed counterpart of this Agreement, together with arrangements satisfactory to Administrative Agent for additional executed counterparts, sufficient in number for distribution to the Banks and the Company;
(ii2) any Notes requested a Note executed by the Company in favor of each Bank requesting a Lender pursuant to Section 2.13Note;
(iii3) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board Board of directors Directors or other governing body the executive committee of the Borrower Company approving and authorizing the execution, delivery and performance by the Company of each Loan Document to which it is a party, and (D) the names and true signatures of the incumbent officers of the Borrower authorized to sign the Loan Documents to which it is a party, and authorized to request a Credit Extensioncertified as of the date of this Agreement by the Secretary or an Assistant Secretary of the Company;
(iv4) a certificate, signed by a Senior Financial Officer certificate of the BorrowerSecretary or Assistant Secretary of the Company, stating that 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 articles or certificate of incorporation of the Company as in effect on the date of this Agreement and the initial Credit Extension (A) no Default bylaws of the Company as in effect on the date of this Agreement, certified by the Secretary or Event Assistant Secretary of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects Company as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as date of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfiedthis Agreement;
(v6) a good standing certificate (or analogous documentation if applicable) for the Borrower Company from the Secretary of State (or analogous governmental entity) of the jurisdiction State of its organization as of a recent date, to the extent generally available in such jurisdiction; andDelaware;
(vi7) the Opinions of Counsel;
(8) a 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 of the Borrower’s counselmoney transfer instructions, in substantially the form and substance acceptable to the Administrative Agentof Exhibit D, addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable to the Administrative Agent.
(b) [Reserved].
(c) The Administrative Agent shall have received all fees and signed by a Responsible Officer, together with such other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken related money transfer authorizations as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could may have such effect.reasonably requested;
(g10) No actionif the initial Credit Extension will be the issuance of a Letter of Credit, suit, investigation or proceeding shall be pending or, a properly completed Letter of Credit Application;
(11) at least five days prior to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Execution Date, the Borrower shall have provided to such Lender the all documentation and other information so regarding the Company requested in connection with applicable “know your customer” and anti-money-money laundering Lawsrules and regulations, including the PATRIOT USA Patriot Act, to the extent requested in each case writing of the Company at least five 10 days before prior to the Closing Date.
Execution Date and (jii) At least five days before to the Closing Date, if extent the Borrower 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 shall have delivered at least 10 days prior to the Execution Date, a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent 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
(12) such other agreementsassurances, certificates, documents, instruments and certificates relating consents or opinions as the Administrative Agent reasonably may require.
(b) Attorney Costs of the Co-Lead Arrangers to the Borrowerextent invoiced prior to or on the Execution Date, plus such additional amounts of Attorney Costs as shall constitute the reasonable estimate of Attorney Costs incurred or to be incurred by the Co-Lead Arrangers through the closing proceedings (provided that such estimate shall not thereafter preclude final settling of accounts between the Company and the Co-Lead Arrangers) shall have been paid.
(c) The representations and warranties of the Company contained in Article V shall be true and correct in all material respects.
(d) The Company shall be in compliance with all the terms and provisions of the Loan Documents Documents, and, after giving effect to the initial Advance, no Default or Event of Default shall exist.
(e) The Company shall have paid (or shall concurrently pay with the transactions contemplated hereby proceeds of the initial Loans) to the Administrative Agent for the account of the Banks such upfront fees as are reasonably requested have been agreed to by the Company, the Administrative Agent and its counsel, in form and substance reasonably satisfactory the Co-Lead Arrangers pursuant to the Administrative AgentFee Letters and (ii) all amounts outstanding under the Existing Credit Agreement.
(f) There shall have occurred since December 31, 2018 no event or circumstance that has resulted or could reasonably be expected to result in a Material Adverse Effect.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying (A) that there have been no changes in the charter document of the Borrowersuch 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 the Borrower such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower such Loan Party 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 the Borrower each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized to request a Credit Extension;
(iv) a certificate, signed by a Senior Financial Officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 20252023, or (ii) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrowerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received (i) pro forma financial statements giving effect to the initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.8, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, and (iii) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 20252023.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the BorrowerLoan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts of each of the following:
(i) this Agreement;
(ii) any Notes requested by a Lender pursuant to Section 2.13;
(iii) the Guaranty;
(iv) a certificate of the Secretary or an Assistant Secretary of the Borrower each Loan Party certifying (A) that there have been no changes in the charter document of the Borrowersuch 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 the Borrower such Loan Party as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower such Loan Party authorizing the execution, delivery and performance of each Loan Document to which it is a party, (D) as to a good standing certificate (or analogous documentation if applicable) for such 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 (DE) the names and true signatures of the incumbent officers of the Borrower each Loan Party authorized to sign the Loan Documents to which it is a party, and (in the case of the Borrower) authorized to request a Credit Extension;
(ivv) a certificate, signed by a Senior Financial Officer the chief financial officer of the Borrower, stating that on the date of the initial Credit Extension (A) no Default or Event of Default has occurred and is continuing, continuing and (B) the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 opinions of the Borrower’s 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) [Reserved]The Administrative Agent shall have received evidence satisfactory to it that any credit facility currently in effect for the Borrower has been terminated and cancelled, all Indebtedness thereunder has been fully repaid (except to the extent being repaid with the initial Loans), and any Liens thereunder have been terminated and released.
(c) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved]The Administrative Agent shall have received evidence in form, scope and substance reasonably satisfactory to the Administrative Agent of current insurance coverage that complies with Section 6.5.
(e) There shall not have occurred a material adverse change in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), ) or results of operations, or prospects operations of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to date2023.
(f) The Administrative Agent shall have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrowerany Loan Party, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change Effect or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received (i) pro forma financial statements giving effect to the initial Credit Extensions, which demonstrate, in the Administrative Agent’s reasonable judgment, together with all other information then available to the Administrative Agent, that the Borrower can repay its debts and satisfy its other obligations as and when they become due, and can comply with Section 7.18, (ii) such information as the Administrative Agent reasonably requests to confirm the tax, legal, and business assumptions made in such pro forma financial statements, (iii) unaudited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal quarter ended September 30, 2024, and (iv) audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year years ended December 31, 20252022 and December 31, 2023.
(i) The Administrative Agent shall have received a Borrowing Base Certificate current as of September 30, 2024.
(j) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-money laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(jk) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered to each Lender requesting the same a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the BorrowerLoan Parties, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of the following conditions is satisfied:
(a) The Administrative Agent shall have received executed counterparts the representations and warranties contained in Article V are true and correct in all material respects as of each of such date and (b) the followingCompany has furnished to the Agents with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificates of incorporation (or similar Constitutive Documents) of the Company and each Guarantor (each a "LOAN PARTY"), together with all amendments thereto, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) any Notes requested Copies, certified by a Lender pursuant to Section 2.13;
(iii) a certificate of the Secretary or an Assistant Secretary of each Loan Party of its by-laws (or similar Constitutive Documents) and of its Board of Directors' resolutions and of resolutions or actions of any other body authorizing the Borrower certifying (A) that there have been no changes in the charter document execution of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document Documents to which it is a party.
(iii) An incumbency certificate, executed by the Secretary or Assistant Secretary of each Loan Party, which shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it is a partyparty and, and authorized in the case of the Borrowers, to request a Credit Extension;Loans hereunder, upon which certificate the Agents and the Lenders shall be entitled to rely until informed of any change in writing by the applicable Loan Party.
(iv) a certificateAn opening compliance certificate in substantially the form of Exhibit B, signed by a Senior Financial Officer the chief financial officer or treasurer of the BorrowerCompany, showing the calculations necessary to determine compliance with this Agreement on the initial Credit Extension Date and stating that on the date of the initial Credit Extension Date (Aa) no Default or Event of Unmatured Default has occurred and is continuing, (Bb) all of the representations and warranties in Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, shall be true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (Cc) no material adverse change in the conditions set forth in Sections 4.1(e)business, (f) and (g) are satisfied;financial condition or operations of NSI or any of its Subsidiaries has occurred since May 31, 2001.
(v) a good standing A certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s counsel, in form and substance acceptable satisfactory to the Administrative Agent, addressed signed by the chief financial officer of the Company in his or her representative capacity, stating that on the date of the initial funding hereunder, after taking into consideration all information available at such time, such officer does not know of any information that would prevent the Net Worth Condition from being satisfied as of the Spin-Off Date, after giving effect to the Lenders. The Borrower’s counsel shall be reasonably acceptable Spin-Off Transactions and after all post-closing adjustments or other transactions between the Company or any of its Subsidiaries and NSI have been made in connection therewith.
(vi) A certificate in form and substance satisfactory to the Administrative Agent.
Agent from the chief financial officer of the Company (bin his or her representative capacity on behalf of the Company) [Reserved].
(c) The Administrative Agent shall have received all fees and other amounts due and payable stating that on or before the Closing Date, including, to date of the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
(d) [Reserved].
(e) There shall not have occurred a material adverse change in initial funding hereunder (i) all conditions precedent to the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects consummation of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or Spin-Off have been satisfied in all material respects; (ii) the facts Spin-Off Transactions have been approved by all necessary corporate action of NSI's and the Borrower's Boards of Directors and, if required, shareholders, and the terms of the Spin-Off Transactions have not been amended, waived or modified in any material respect from those set forth in the Form 10 without the approval of the Administrative Agent (such approval not to be unreasonably withheld); (iii) the Tax Opinion has been obtained for the consummation of the Spin-Off Transactions; (iv) the Company and its Subsidiaries (both before and after giving effect to the Spin-Off) have received all necessary corporate and regulatory approvals for the consummation of the Spin-Off Transactions and the financing contemplated hereby; and (v) except as disclosed on Schedule 5.5, there has been no material adverse change from the information regarding such entities as represented by such entities to dateset forth in the Form 10, the Pro Forma Financial Statements or the Projections.
(fvii) The A certificate in form and substance satisfactory to the Administrative Agent shall stating that all required material governmental approvals related to the Spin-Off Transactions have received evidence of been obtained and all governmental, equity holder related filings made and third-party consents and approvals necessary in connection with the contemplated financing, all any applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely or been terminated.
(viii) A certificate in form and substance satisfactory to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have stating that there exists no injunction or temporary restraining order which would prohibit the making of the initial Credit Extensions or the consummation of the Spin-Off Transactions and the other transactions contemplated by the Transaction Documents or any litigation seeking such effectan injunction or restraining order.
(gix) No actionA certificate of value, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation solvency and other appropriate factual information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative AgentAgent and Arranger from the chief financial officer of the Company (on behalf of the Company and the Borrowers) in his or her representative capacity supporting the conclusions that as of the initial funding date, after giving effect to the Spin-Off Transactions, the Company and its Subsidiaries on a consolidated basis are Solvent and will be Solvent subsequent to incurring the Indebtedness contemplated under the Transaction Documents, will be able to pay its debts and liabilities as they become due and will not be left with unreasonably small working capital for general corporate purposes, which information shall be consistent in all material respects with the Pro Forma Financial Statements and Projections.
(x) Written opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Borrowers and each Guarantor, and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, special counsel to the Borrowers and each Guarantor, in form and substance satisfactory to the Agents and addressed to the Lenders in substantially the form of Exhibit A-1 and Exhibit A-2 respectively.
(xi) Any Notes requested by a Lender pursuant to Section 2.14 payable to the order of each such requesting Lender.
(xii) If the initial Credit Extension shall be the issuance of a Facility LC, a properly completed Facility LC Application.
(xiii) Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Administrative Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Administrative Agent may have reasonably requested.
(xiv) Evidence satisfactory to the Agents that the Existing Credit Agreement shall have been or shall simultaneously on the Closing Date be terminated (except for those provisions that expressly survive the termination thereof) and all loans outstanding and other amounts owed to the lenders or agents thereunder shall have been or shall simultaneously with the initial Advance hereunder be paid in full.
(xv) Such other documents as any Lender or its counsel may have reasonably requested including, without limitation, each document identified on the List of Closing Documents attached hereto as Exhibit F.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (L&c Spinco Inc)
Initial Credit Extension. The Lenders shall not be required obligations of the L/C Issuer and each Lender to make the their respective initial Credit Extension unless each Extensions hereunder are subject solely to the satisfaction or waiver of the following conditions is satisfiedprecedent:
(a) The subject in all respects to the final clause of this Section 3.2, 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 AgreementAgreement 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 Notes requested amendments thereto, certified in each instance by its Secretary, Assistant Secretary or Chief Financial Officer and, with respect to organizational documents filed with a Lender pursuant to Section 2.13Governmental Authority, by the applicable Governmental Authority;
(iii) a certificate copies of the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors (or other similar governing body body) of the Borrower each 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 the Borrower authorized to sign the Loan Documents to which it is a party, and together with specimen signatures of the persons authorized to request a Credit Extensionexecute 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 certificatelist 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 by a Senior Financial Officer on behalf of the Borrower, stating that on dated the date of hereof;
(viii) the initial Credit Extension Guaranty, duly executed by the Loan Parties;
(ix) the Security Agreement, duly executed by each Loan Party, together with:
(A) no Default or Event the certificates representing the shares of Default has occurred and is continuingEquity 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 Article V are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2) with respect to any representations or warranties that do not contain a materiality qualifier, true and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was 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 and (C) the conditions set forth in Sections 4.1(edate), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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 Borrower’s 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) [Reserved].
(c) The 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 fees documentation and other amounts 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 before prior to the Closing Date, including, to the extent invoicedinvoiced 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 the Borrower hereunder.any Loan Party under any Loan Document;
(d) [Reserved].
(e) There shall not have occurred a material adverse change in (i) subject in all respects to the businessfinal paragraph of this Section 3.2, Property, liabilities all other actions not identified in clause (actual and contingent), operations or condition a) above that are necessary to establish that the Collateral Agent (financial or otherwise), results of operations, or prospects for the benefit of the Borrower and its Subsidiaries taken as Secured Parties) will have a whole, since December 31, 2025, or perfected Lien (iisubject to Permitted Liens) on the Collateral shall have been taken; and
(j) the facts and information regarding such entities as represented by such entities to date.
(f) The Administrative Agent shall have received evidence the results of all governmental, equity holder a recent Lien search in each of the jurisdictions of organization of each Loan Party and third-party consents and approvals necessary in connection each jurisdiction where material assets of the Loan Parties are located. For purposes of determining compliance with the contemplated financingconditions specified in this Section 3.2, all applicable waiting periods shall have expired without any action being taken by any authority each Lender that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effect.
(g) No action, suit, investigation or proceeding has signed this Agreement shall be pending ordeemed 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 knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extension.
(h) The Administrative Agent shall have received audited consolidated financial statements 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 its Subsidiaries for the fiscal year ended December 31, 2025.
(iGuarantors) Upon shall not be a condition precedent to the reasonable request availability of any Lender made at least 10 days before the initial Loans on the Closing Date, the Borrower Date (but shall have provided be required 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 be satisfied ninety (90) days before after the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies Date or such later date as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance may reasonably satisfactory to the Administrative Agentagree.
Appears in 1 contract
Sources: Loan Agreement (Vantiv, Inc.)
Initial Credit Extension. The Lenders shall not be required to make the initial Credit Extension hereunder unless each of and until the following conditions is precedent shall have been satisfied:
(a) The Administrative Agent shall have received executed counterparts of each the Borrower has paid all fees hereunder to the extent then due and payable and all costs and expenses of the followingAgent (including reasonable counsel fees and disbursements) incurred through the date hereof.
(b) The Borrower has furnished to the Agent with sufficient copies for the Lenders:
(i) this Agreement;Copies of the articles or certificate of incorporation of each Loan Party, together with all amendments, and a certificate of good standing, each certified by the appropriate governmental officer in its jurisdiction of incorporation.
(ii) Copies, certified by the Secretary or Assistant Secretary of each Loan Party, of its by-laws and of its Board of Directors' resolutions and of Governmental Approvals or resolutions or actions of any Notes requested by other body, if any, authorizing the execution of the Loan Documents to which such Loan Party is a Lender pursuant to Section 2.13;party.
(iii) a certificate of An incumbency certificate, executed by the Secretary or an Assistant Secretary of the Borrower certifying (A) that there have been no changes in the charter document of the Borrower, 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 the Borrower as in effect on the date of such certification, (C) as to resolutions of the board of directors or other governing body of the Borrower authorizing the execution, delivery and performance of each Loan Document to Party, which it is a party, shall identify by name and (D) title and bear the names and true signatures of the incumbent Authorized Officers and any other officers of the Borrower such Loan Party authorized to sign the Loan Documents to which it such Loan Party is a party, upon which certificate the Agent and authorized the Lenders shall be entitled to request a Credit Extension;rely until informed of any change in writing by such Loan Party.
(iv) a A certificate, signed by a Senior Financial Officer the chief financial officer or the Treasurer of the Borrower, stating that on the date of the initial Credit Extension (A) the representations and warranties contained in Article V of this Agreement are true and correct and (B) no Default or Event of Unmatured Default has occurred and is continuing.
(v) A certificate, signed by the chief financial officer or the Treasurer of the Guarantor, stating that on the date of the initial Credit Extension (BA) the representations and warranties contained in Article V Section 6 of the Guaranty are (1) with respect to any representations or warranties that contain a materiality qualifier, true and correct in all respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all respects on and as of such earlier date and (2B) with respect to any representations no Default or warranties that do not contain a materiality qualifier, true Unmatured Default has occurred and correct in all material respects as of such date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty was true and correct in all material respects on and as of such earlier date and (C) the conditions set forth in Sections 4.1(e), (f) and (g) are satisfied;
(v) a good standing certificate (or analogous documentation if applicable) for the Borrower 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; andcontinuing.
(vi) a A written opinion of the Borrower’s counsel, in form and substance acceptable counsel to the Administrative AgentLoan Parties, addressed to the Lenders. The Borrower’s counsel shall be reasonably acceptable Lenders in substantially the form of Exhibit A.
(vii) Any Notes requested by a Lender pursuant to Section 2.13 payable to the Administrative Agentorder of each such requesting Lender.
(bviii) [Reserved]Written money transfer instructions, in substantially the form of Exhibit D, addressed to the Agent and signed by an Authorized Officer, together with such other related money transfer authorizations as the Agent may have reasonably requested.
(cix) The Administrative Agent shall have received all fees and other amounts due and payable on or before the Closing Date, including, Information satisfactory to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by Agent and the Borrower hereunderRequired Lenders regarding the Loan Parties' Year 2000 Program.
(dx) [Reserved]The Guaranty, duly executed by the Guarantor.
(exi) There Evidence satisfactory to the Agent that the Existing Facility, and all amounts accrued and outstanding thereunder (whether for principal, interest, fees or other amounts) shall not have occurred a material adverse change been paid in (i) the business, Property, liabilities (actual and contingent), operations or condition (financial or otherwise), results of operations, or prospects of the Borrower and its Subsidiaries taken as a whole, since December 31, 2025, or (ii) the facts and information regarding such entities as represented by such entities to datefull.
(fxii) The Administrative Agent shall Such other documents as any Lender or its counsel may have received evidence of all governmental, equity holder and third-party consents and approvals necessary in connection with the contemplated financing, all applicable waiting periods shall have expired without any action being taken by any authority that would be reasonably likely to restrain, prevent or impose any material adverse conditions on the Borrower and its Subsidiaries, taken as a whole, and no Law applies that in the reasonable judgment of the Administrative Agent could have such effectrequested.
(gxiii) No actionIf the initial Credit Extension will be the issuance of a Facility LC, suit, investigation or proceeding shall be pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that would reasonably be expected to result in a Material Adverse Change or that seeks to prevent, enjoin or delay any Credit Extensionproperly completed Facility LC Application.
(h) The Administrative Agent shall have received audited consolidated financial statements of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2025.
(i) Upon the reasonable request of any Lender made at least 10 days before the Closing Date, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering Laws, including the PATRIOT Act, in each case at least five days before the Closing Date.
(j) At least five days before the Closing Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower shall have delivered a Beneficial Ownership Certification in relation to the Borrower.
(k) The Administrative Agent shall have received a Borrowing Notice in accordance with the requirements hereof.
(l) The Administrative Agent shall have received such other agreements, documents, instruments and certificates relating to the Borrower, the Loan Documents or the transactions contemplated hereby as are reasonably requested by the Administrative Agent and its counsel, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract