Closing Submissions. The Administrative Agent’s receipt of the following, each properly executed by an Authorized Officer of the signing Loan Party, each dated either the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its counsel: (a) executed counterparts of this Agreement, the Security Agreement, the Guaranty Agreement and the other Credit Documents; (b) Notes executed by the Borrowers in favor of each Lender; (c) one or more Guaranty Agreements executed by each of the Guarantors; (d) (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as a Authorized Officer in connection with this Agreement and the other Credit Documents to which such Loan Party is a party and (ii) a copy of the Organization Documents certified as of a recent date by the appropriate governmental official, each certified as true and complete by an Authorized Officer of the applicable Loan Party; (e) such documents and certifications (including certified copies of the Organization Documents of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification; (f) a favorable opinion of counsel to the Loan Parties addressed to the Administrative Agent and the Lenders in form and substance satisfactory to the Administrative Agent; (g) a certificate of an Authorized Officer of each Loan Party stating that all notices, consents, licenses, approvals, and agreements required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Credit Documents to which it is a party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all of such Manufacturers, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or received, and that any such consents, licenses, approvals, and agreements shall be in full force and effect upon giving effect to the Credit Documents and the transactions contemplated by this Agreement; (h) a certificate signed by an Authorized Officer of the Loan Parties or the Borrower Representative certifying (i) the absence of any continuing Defaults or Events of Default, (ii) satisfaction of all conditions precedent to Closing hereunder, (iii) solvency, and (iv) all shareholder and corporate consents and approvals (including any consents required under the Amended Charter and compliance with all requirements with respect to the Loans and other credit accommodations set forth in the Certificate of Designations), and all material governmental and third party consents and approvals required in connection with the Closing Date Transactions (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that challenges the credit facilities or any other transaction involving any of the Loan Parties; (i) a duly completed Compliance Certificate, including calculations of the financial covenants set forth therein in a manner reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Loan Parties in form and substance satisfactory to the Administrative Agent evidencing, as of the as of the last day of the most recently completed month ending at least 30 days prior to the Closing Date, (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, (ii) a Consolidated Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and (iii) a Consolidated Current Ratio not less than 1.15:1.00, in each case after giving pro forma effect to the Closing Date Transactions; (j) the Historical Financial Statements and the Projections; (k) (i) UCC search results with respect to the Loan Parties and the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid on or prior to the Closing Date) and (ii) searches of ownership of intellectual property owned by the Loan Parties in the United States Patent and Trademark Office and the United States Copyright Office and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in such intellectual property; (l) such deposit account control agreements as are required pursuant to the Security Documents; (m) all documentation and other information required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance with all applicable Laws and regulations, including, all “know your customer” rules in effect from time to time pursuant to the Bank Secrecy Act, the USA Patriot Act and other applicable Laws on or prior to the date which is five (5) Business Days prior to the Closing Date; (n) at least five days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower; (o) certificates in form and substance satisfactory to the Administrative Agent evidencing insurance (including flood insurance to the extent applicable) which insurance shall name the Administrative Agent as additional insured and include lender loss payee endorsements for property and casualty policies, as applicable; (p) UCC-1 financing statements for filing in all places required by applicable Law to perfect the Liens of the Administrative Agent for the benefit of the Credit Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement, (q) an executed Collateral Information Certificate by Borrower Representative for itself and for each Loan Party completed giving pro forma effect to the Closing Date Transactions, and (r) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Issuing Bank, or the Required Lenders reasonably may require.
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Samples: Credit Agreement (Lazydays Holdings, Inc.), Credit Agreement (Lazydays Holdings, Inc.)
Closing Submissions. The Administrative AgentLender’s receipt of the following, each properly executed by an Authorized Officer of the signing Loan Party, each dated either the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent Lender and its counsel:
: (a) executed counterparts of this Agreement, the Security Agreement, the Guaranty Agreement and the other Credit Documents;
; (b) Notes the Note executed by the Borrowers Borrower in favor of each the Lender;
; (c) one or more a Guaranty Agreements Agreement executed by each of the Guarantors;
Guarantor; (d) (i) such certificates of resolutions or other actionaction by the respective governing bodies of the Borrower, the Guarantor, and the Ultimate Parent (as required pursuant to the terms of the respective Organization Documents for the Borrower, the Guarantor, and the Ultimate Parent), incumbency certificates and/or other certificates of Authorized Officers Persons of each of the Loan Party Parties and Ultimate Parent as the Administrative Agent Lender may require evidencing the identity, authority and capacity of each Authorized Officer Person thereof authorized to act as a an Authorized Officer Person in connection with the Credit Facility, this Agreement Agreement, and the other Credit Documents to which such Loan Party is a party party, or in the case of the Ultimate Parent as to which the Loan Parties have agreed that certificates will be provided by officers of the Ultimate Parent; (e) for each of the Borrower and the Guarantor, receipt and satisfactory review of (i) all Organization Documents of each Loan Party, including certified certificates of formation and all other Organization Documents, (ii) a copy any agreements among holders of the Organization Documents certified as of a recent date by the appropriate governmental official, Equity Interests in each certified as true and complete by an Authorized Officer of the applicable Loan Party;
(e) such documents and certifications (including certified copies of the Organization Documents of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in (iii) certificates of good standing from the jurisdiction of its formation and qualified to engage any jurisdiction in business in each jurisdiction where which its ownership, lease or operation of properties or the conduct of its business requires such qualification;
it to be qualified to do business, except where the failure to be qualified could not reasonably be expected to result in a Material Adverse Event; (f) a favorable opinion of counsel to the Loan Parties Parties, addressed to the Administrative Agent Lender subject only to qualifications and the Lenders in form and substance satisfactory assumptions that are reasonably acceptable to the Administrative Agent;
Lender and its counsel; (g) satisfactory record search reports with respect to the Borrower and its assets and properties; (h) satisfactory search results and opinions for the Collateral as of Closing, and evidence that the Lender will hold perfected first priority Liens in the Collateral, except for Permitted Encumbrances; (i) a certificate of an Authorized Officer Person of each Loan Party stating certifying (i) that the representations and warranties contained in the Credit Documents are true, accurate and complete in all material respects as of the Closing Date (except to the extent that such representations and warranties refer to any earlier date, in which case they shall be true and correct in all material respects as of such earlier date), (ii) that all notices, consents, licenses, approvalspermits, registrations, and agreements approvals material to the ownership of the Collateral and required in connection with for the execution, delivery delivery, and performance by such Loan Party of the Credit Facility and the validity against such Loan Party of the Credit Documents to which it is a partyparty by such Loan Party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all or to the enforceability of such ManufacturersCredit Documents against such Loan Party, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or receivedobtained, and that any such consents, licenses, approvals, and agreements shall be in full force and effect upon giving effect to the Credit Documents and the transactions contemplated by this Agreement;
(h) a certificate signed by an Authorized Officer of the Loan Parties or the Borrower Representative certifying (iiii) the absence of any continuing Defaults or Events of Default, (ii) satisfaction of all conditions precedent to Closing hereunder, (iii) solvency, and (iv) no Material Adverse Events exist as of the Closing Date and no event exists that is reasonably likely to cause a Material Adverse Event; (j) satisfactory evidence of termination of the Ultimate Parent Credit Agreement and the Ultimate Parent Credit Facility; (k) evidence that all shareholder and corporate consents and approvals insurance required to be maintained by the terms of the Credit Documents is in effect; (including any consents required under l) copies of all Management Agreements in effect as of the Amended Charter and compliance with all requirements with respect Closing Date and/or upon giving effect to the Loans and other credit accommodations set forth in the Certificate of Designations)Closing, and all material governmental amendments and third party consents and approvals required in connection supplements thereto together with the Closing Date Transactions (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that challenges the credit facilities or any other transaction involving any an assignment of the Loan Parties;
(i) a duly completed Compliance Certificate, including calculations Management Agreements to the Lender as collateral security for the Obligations and the acknowledgment and consent of the financial covenants set forth therein manager thereunder to such assignment; (m) the delivery of all leases for all Properties leased by the Borrower together with landlord waivers for such Properties (whether from third-party or affiliated landlords) where the Borrower’s books and records are located or Collateral in a manner excess of Two Hundred Fifty Thousand Dollars ($250,000.00) is stored by the Borrower, in each case in form and substance reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Loan Parties in form and substance satisfactory to the Administrative Agent evidencing, as of the as of the last day of the most recently completed month ending at least 30 days prior to the Closing Date, Lender; (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, (ii) a Consolidated Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and (iii) a Consolidated Current Ratio not less than 1.15:1.00, in each case after giving pro forma effect to the Closing Date Transactions;
(j) the Historical Financial Statements and the Projections;
(k) (i) UCC search results with respect to the Loan Parties and the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid on or prior to the Closing Date) and (ii) searches of ownership of intellectual property owned by the Loan Parties in the United States Patent and Trademark Office and the United States Copyright Office and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in such intellectual property;
(l) such deposit account control agreements as are required pursuant to the Security Documents;
(mn) all documentation and other information required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance Lender in accordance with all applicable Laws banking laws and regulations, including, all “know your customer” rules regulations in effect from time to time pursuant to the Bank Secrecy Act, the USA Patriot Act and other applicable Laws on or prior to the date which is five (5) Business Days prior to the Closing Date;
(n) at least five days prior to as of the Closing Date, any Borrower that qualifies as a “legal entity customer” under including, without limitation, the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower;
USA PATRIOT Act; (o) certificates in form an acknowledgement and substance satisfactory agreement by and between the Borrower and the Lender as to the Administrative Agent evidencing insurance (including flood insurance to the extent applicable) which insurance shall name the Administrative Agent as additional insured agreed upon Identified Institutions; and include lender loss payee endorsements for property and casualty policies, as applicable;
(p) UCC-1 financing statements for filing in all places required by applicable Law to perfect the Liens of the Administrative Agent for the benefit of the Credit Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement,
(q) an executed Collateral Information Certificate by Borrower Representative for itself and for each Loan Party completed giving pro forma effect to the Closing Date Transactions, and
(r) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Issuing Bank, or the Required Lenders Lender reasonably may require.
Appears in 1 contract
Closing Submissions. The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals), unless otherwise specified, each properly executed by an Authorized a Responsible Officer of the applicable signing Loan PartyParty (which Responsible Officer will be the President of each Loan Party other than GPB Prime), each dated either the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its counselthe Required Lenders:
(a) executed counterparts of (i) this AgreementAgreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower Representative, (ii) counterparts and amendments to the Security Agreement, the Guaranty Agreement Pledge Agreement, and the other Credit DocumentsGuaranty Agreement, in each case under this clause (ii), sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower Representative; and (iii) Management Services Subordination Agreements executed by GPB Prime, the Administrative Agent, and the Borrowers sufficient in number for distribution to the Administrative Agent and the Borrower Representative;
(b) Notes executed a copy of the Purchase Agreement, including all amendments thereto, and all related documents, evidencing closing thereunder contemporaneously herewith, including evidence that all conditions precedent to closing thereunder (including receipt of all consents and approvals by Manufacturers and Governmental Authorities) have been satisfied (unless otherwise waived by the Borrowers Administrative Agent), together with a certificate of the President of the Borrower Representative that such copies of documents are true, accurate, and complete in favor all material respects and that the acquisition transaction contemplated by the Purchase Agreement has closed contemporaneously with the Closing hereunder in accordance with the terms of each Lenderthe Purchase Agreement;
(c) one or more Guaranty Agreements executed by each of the Guarantors;
(d) (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Authorized Responsible Officer thereof authorized to act as a Authorized Responsible Officer in connection with this Agreement and the other Credit Documents to which such Loan Party is a party and party, together with copies of all Organizational Documents of each Loan Party (ii) or a copy of certification that no changes have occurred to the Organization Organizational Documents certified delivered as of a recent date by condition precedent to the appropriate governmental official, each certified as true and complete by an Authorized Officer of the applicable Loan PartyExisting Credit Agreement);
(ed) such documents and certifications (including certified copies of the Organization Documents of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each the jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationformation and in the applicable jurisdiction or jurisdictions where it owns or operates a dealership or where it owns Real Estate Collateral, which respective jurisdictions are listed on Schedule 4.01.1(d);
(e) an opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender in an approved form;
(f) a favorable opinion of counsel to the Loan Parties addressed to the Administrative Agent and the Lenders in form and substance satisfactory to the Administrative Agent;
(g) a certificate of an Authorized Officer the President of each Loan Party stating that the Borrower Representative either (i) attaching copies of all notices, consents, licenses, approvals, licenses and agreements approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such Loan Party of the Credit Documents to which it is a party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all of such Manufacturers, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or received, and that any such consents, licenses, approvals, licenses and agreements approvals shall be in full force and effect upon giving effect effect, or (ii) stating that no such consents, licenses or approvals are so required;
(g) a certificate signed by the President of the Borrower Representative certifying (i) that the conditions specified in Sections 4.04.1 have been satisfied, (ii) no Default or Event of Default exists, (iii) that there has been no event or circumstance since December 31, 2016 that has had or would be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect, and (iv) as to the Credit Documents and absence of any action, suit, investigation or proceeding pending or, to the transactions contemplated by this Agreementknowledge of the Loan Parties, threatened in writing in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect;
(h) a certificate signed by an Authorized Officer the president, chief financial officer, treasurer or chief accounting officer of the Loan Parties or the Borrower Representative Representative, certifying that (i) the absence of any continuing Defaults or Events of DefaultLoan Parties, taken as a whole, are Solvent and (ii) satisfaction GPB Prime, on an individual basis, is Solvent, in each case of all conditions precedent to Closing hereunder, the foregoing clauses (iiii) solvency, and (iv) all shareholder and corporate consents and approvals (including any consents required under the Amended Charter and compliance with all requirements with respect to the Loans and other credit accommodations set forth in the Certificate of Designationsii), and all material governmental and third party consents and approvals required in connection with on a pro forma basis after giving effect to the Closing Date Transactions (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that challenges the credit facilities or any other transaction involving any of the Loan PartiesTransactions;
(i) a duly completed Compliance CertificateCertificate signed by the President of the Borrower Representative, including including, for the purposes of the Compliance Certificate submitted for purposes of this Section 4.04.1(i), (i) a calculation of the Total Leverage Ratio as set forth in Section 6.15.1 of this Agreement which includes a calculation of Consolidated EBITDA based upon annualized year-to-date numbers through the most recently ended fiscal month prior to the Closing Date and (ii) calculations of the financial covenants Fixed Charge Coverage Ratio and Fixed Charge Coverage Ratio (All Cash Dividends) as set forth therein in a manner reasonably satisfactory to Sections 6.15.2 and 6.15.3 (respectively) of this Agreement, based upon the Administrative Agent, signed by an Authorized Officer of actual results for the Loan Parties in form and substance satisfactory to the Administrative Agent evidencing, as of the as of year-to-date period ending on the last day of the most recently completed ended fiscal month ending at least 30 days prior to the Closing Date, (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, (ii) a Consolidated Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and (iii) a Consolidated Current Ratio not less than 1.15:1.00, in each case case, after giving pro forma effect to the Closing Date Transactions, and any related adjustments permitted under this Agreement;
(j) a certificate of the Historical Financial Statements President of the Borrower Representative certifying that all consents and/or waivers required pursuant to the Franchise Agreements and Framework Agreements in connection with giving full effect to the ProjectionsPurchase Transactions have been obtained, together with the following with respect to each such agreement: (i) an executed amended sales and service agreement or (ii) other written communication from the respective Manufacturer confirming its approval of the change in the majority shareholder that is acceptable to the Administrative Agent;
(k) financial statements as of the last day of the most recently ended fiscal month prior to the Closing Date for the Loan Parties and their Affiliates;
(il) delivery to the Administrative Agent of all original certificates evidencing Equity Interests in AMR RE Holdings and Parent Holdings Guarantor pledged by GPB Prime pursuant to the Pledge Agreement, giving effect to the Closing Date Transactions, accompanied in each case by duly executed stock or unit powers (or other appropriate transfer documents) in blank affixed thereto;
(m) UCC-1 all asset financing statement against GPB Prime as Debtor for filing in the jurisdiction of organization of GPB Prime;
(n) UCC search results from the UCC financing statement records of the respective jurisdiction of formation with respect to GPB Prime and the other Loan Parties (if available for the respective jurisdiction, such search reports limited to updates in the case of the Loan Parties and from reports delivered to the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid Administrative Agent on or prior to the Original Closing Date) and (ii) searches of ownership of intellectual property owned by the Loan Parties in the United States Patent and Trademark Office and the United States Copyright Office and such patent/trademark/copyright filings as requested by showing only Liens acceptable to the Administrative Agent in order to perfect (or receipt of signed lien releases, termination statements, payoff letters and other documents as the Administrative Agent’s security interest Agent deems appropriate, evidencing the termination of or reasonably satisfactory arrangements for the termination of, any other Liens of any secured party in such intellectual propertyany of the assets of the GPB Prime);
(lo) such deposit account control Receipt and satisfactory review of the Management Services Agreements and subordination agreements as are required pursuant (including the Management Services Subordination Agreements) to the Security Documentsbe in effect after Closing;
(mp) all documentation and other information required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance with all bank regulatory authorities under applicable Laws and regulations, including, all “know your customer” and anti-money laundering rules in effect from time to time pursuant to the Bank Secrecy Actand regulations, and Anti-Terrorism Laws, including the USA Patriot Act and other applicable Laws on or prior to the date which is five (5) Business Days prior to the Closing Date;
(n) at least five days prior to the Closing DateAct, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower;
(o) certificates in form and substance satisfactory to the reasonably requested by Administrative Agent evidencing insurance (including flood insurance to the extent applicable) which insurance shall name the Administrative Agent as additional insured and include lender loss payee endorsements for property and casualty policies, as applicable;
(p) UCC-1 financing statements for filing in all places required by applicable Law to perfect the Liens any of the Administrative Agent for the benefit of the Credit Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement,Lenders; and
(q) an a completed and executed Collateral Information Certificate by Borrower Representative GPB Prime for itself and for each Loan Party completed giving pro forma effect to the Closing Date Transactions, and
(r) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Issuing Bank, or the Required Lenders reasonably may requireitself.
Appears in 1 contract
Closing Submissions. The Administrative Agent’s receipt of the following, each of which shall be originals or electronic copies (followed promptly by originals), unless otherwise specified, each properly executed by an Authorized a Responsible Officer of the applicable signing Loan Party, each dated either the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its counselthe Lenders:
(a) executed counterparts of (i) this Agreement sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower Representative, (ii) the Security Agreement, the Security Pledge Agreement, the Escrow Agreement, the Guaranty Agreement and the other Credit Documents;[*****] Guaranty Agreement, in each case under this clause (ii), sufficient in number for distribution to the Administrative Agent, each Lender and the Borrower Representative, (iii) the Mortgages and related documents in recordable form encumbering the Real Estate Collateral in sufficient number for distribution to the Administrative Agent and to the title insurance agent (with original executed Mortgages and related documents to be delivered to the title insurance agent) issuing the title insurance policies required at Closing pursuant to this Agreement.
(b) (i) Floor Plan Notes executed by the Floor Plan Borrowers in favor of each LenderLender requesting a Floor Plan Note, (ii) Mortgage Loan Notes executed by the applicable Borrowers in favor of each Lender requesting a Mortgage Loan Note, (iii) Term Loan Notes executed by the applicable Borrowers in favor of each Lender requesting a Term Loan Note; and (iii) Delayed Draw Notes executed by the applicable Borrowers in favor of each Lender requesting a Delayed Draw Note;
(c) one or more Guaranty Agreements (i) a Floor Plan Committed Loan Notice requesting the Floor Plan Loans to be funded on the Closing Date, (ii) a Mortgage/Term Loan Notice requesting the Closing Date Mortgage Loans, (iii) a Mortgage/Term Loan Notice requesting the Closing Date Term Loans, and (iv) a Mortgage/Term Loan Notice requesting the Delayed Draw Term Loans requested to be funded on the Original Closing Date, in each case executed by each of the Guarantorsapplicable Borrowers requesting such respective Loans;
(d) (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Responsible Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Authorized Responsible Officer thereof authorized to act as a Authorized Responsible Officer in connection with this Agreement and the other Credit Documents to which such Loan Party is a party and (ii) a copy of the Organization Documents certified as of a recent date by the appropriate governmental official, each certified as true and complete by an Authorized Officer of the applicable Loan Partyparty;
(e) such documents and certifications (including certified copies of the Organization Documents of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in the respective jurisdictions specified in Schedule 4.01.1(d), which includes each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect,
(f) a favorable an opinion of each of Ropes & Gxxx LLP and Nxxxxx MxXxxxxxx & Fish, LLP, counsel to the Loan Parties Parties, addressed to the Administrative Agent and each Lender dated as of the Lenders Original Closing Date in form and substance satisfactory to the Administrative Agentapproved forms;
(g) opinions of local counsel to AMR RE Holdings in Maine, Massachusetts, New Hampshire and Vermont, addressed to the Administrative Agent and each Lender, with respect to the perfection and enforceability of the applicable Mortgages in such state and such other customary related opinions that the Administrative Agent may reasonably request;
(h) a certificate of an Authorized a Responsible Officer of each Loan Party stating that the Borrower Representative either (i) attaching copies of all notices, consents, licenses, approvals, licenses and agreements approvals required in connection with the execution, delivery and performance by such each Loan Party and the validity against such Loan Party of the Credit Documents to which it is a party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all of such Manufacturers, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or received, and that any such consents, licenses, approvals, licenses and agreements approvals shall be in full force and effect upon giving effect to the Credit Documents and the transactions contemplated by this Agreementeffect, or (ii) stating that no such consents, licenses or approvals are so required;
(hi) a certificate signed by an Authorized a Responsible Officer of the Loan Parties or the Borrower Representative certifying (i) that the absence of any continuing Defaults or Events of Defaultconditions specified in Sections 4.02.1 and 4.02.2 have been satisfied, (ii) satisfaction that there has been no event or circumstance since the date of all conditions precedent the audited financial statements for Automile Holdings and its Affiliates and Saco Auto Holdings, LLC and its Affiliates for the Fiscal Year ending December 31, 2015 that has had or could be reasonably expected to Closing hereunderhave, either individually or in the aggregate, a Material Adverse Effect and (iii) solvency, and (iv) all shareholder and corporate consents and approvals (including any consents required under the Amended Charter and compliance with all requirements with respect as to the Loans and other credit accommodations set forth in the Certificate absence of Designations), and all material governmental and third party consents and approvals required in connection with the Closing Date Transactions (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation investigation or proceeding pending or or, to the knowledge of the Borrowers, threatened in writing in any court or before any arbitrator or governmental authority Governmental Authority that challenges could reasonably be expected to have a Material Adverse Effect;
(j) a certificate signed by the credit facilities chief financial officer, treasurer or any other transaction involving any chief accounting officer of the Borrower Representative, certifying that (i) the Loan Parties, taken as a whole, are Solvent and (ii) Parent Holdings Guarantor, on an individual basis, is Solvent, in each case of the foregoing clauses (i) and (ii), on a pro forma basis after giving effect to the Original Closing Date Transactions;
(ik) a duly completed Compliance Certificate, including calculations of the financial covenants set forth therein in a manner reasonably satisfactory to the Administrative Agent, Certificate signed by an Authorized a Responsible Officer of the Loan Parties Borrower Representative, prepared in form and substance satisfactory respect of the Test Period ended on December 31, 2016; provided that for purposes of such Compliance Certificate, all financial covenants under Section 6.15 shall be calculated based on the combined financial results reflected (i) with respect to the Administrative Agent evidencingTotal Leverage Ratio under Section 6.15, as in the respective internally prepared balance sheets of Automile Holdings and its Affiliates, Saco Auto Holdings, LLC and its Affiliate and each of the Acquired Dealers, in each case, as of the last day of the most recently completed month Fiscal Quarter ending at least 30 days prior to the Closing Dateon December 31, (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, 2016 and (ii) a Consolidated with respect to the Total Leverage Ratio, Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and Fixed Charge Coverage Ratio (iiiAll Cash Dividends) a Consolidated Current Ratio not less than 1.15:1.00under Section 6.15, in the respective internally prepared statements of income or operations and cash flows of Automile Holdings and its Affiliates, Saco Auto Holdings, LLC and its Affiliate and each of the Acquired Dealers, in each case case, for the Fiscal Quarter ending on December 31, 2016 multiplied by four (4), in each case, after giving pro forma effect to the Original Closing Date Transactions;
(j) the Historical Financial Statements Transactions and the Projections;
(k) (i) UCC search results with respect to the Loan Parties and the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid on or prior to the Closing Date) and (ii) searches of ownership of intellectual property owned by the Loan Parties in the United States Patent and Trademark Office and the United States Copyright Office and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in such intellectual propertyany related adjustments permitted under this Agreement;
(l) such deposit account control agreements a duly completed certification of a Responsible Officer of the Borrower Representative, dated as are required pursuant of the Closing Date, certifying as to (i) New Vehicles, Used Vehicles, Service Loaner Vehicles, and Auction Vehicles supporting the request for the initial borrowing under the Floor Plan Facility as of February 22, 2017, (ii) identifying the Motor Vehicle inventories of each of the Floor Plan Borrowers as of February 22, 2017 and (iii) to the Security Documentsextent not included in the certification under the foregoing clause (ii), identifying the inventories of the Acquired Dealers that were acquired in connection with the Original Closing Date Transaction;
(m) a certificate of a Responsible Officer of each applicable Floor Plan Borrower attaching a copy of each form of Franchise Agreement or Framework Agreement for each Manufacturer with which such Floor Plan Borrower has a Franchise, except and to the extent such form of Franchise Agreement or Framework Agreement contains confidentiality restrictions which specifically prohibits such disclosure;
(n) a certificate of a Responsible Officer of the Borrower Representative certifying that no consents or waivers are required pursuant to any Franchise Agreement or Framework Agreement that have not been obtained that would enable the applicable Manufacturer to terminate such Franchise Agreement or Framework Agreement, as applicable (other than pursuant to any Franchise Agreement or Framework Agreement of Saco Auto Holdings – FM, LLC in connection with its Mazda Franchise) and, to the extent obtained, attaching copies of any such duly executed consents and waivers;
(o) evidence that all documentation and other information insurance required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance with all applicable Laws and regulations, including, all “know your customer” rules in effect from time to time be maintained pursuant to the Bank Secrecy ActCredit Documents has been obtained and is in effect;
(p) unaudited (i) consolidated balance sheets for Automile Holdings and its Affiliates as of September 30, 2016, and the USA Patriot Act related consolidated statements of income or operations for the Fiscal Quarter ended on such date and other (ii) Saco Auto Holdings, LLC and its Affiliate as of September 30, 2016, and the related consolidated statements of income or operations for the Fiscal Quarter ended on such date, in each case, prepared by management of the applicable Laws on or prior to Loan Parties and its Affiliates;
(q) forecasts (including assumptions) prepared by the date which is management of the Loan Parties of consolidated balance sheets, income statements and cash flow statements for Parent Holdings Guarantor and its Subsidiaries for each of the first five (5) Business Days prior to Fiscal Years ending after the Original Closing Date;
(nr) at least five days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower;
(o) certificates in form and substance satisfactory delivery to the Administrative Agent of all certificates evidencing insurance any pledged Equity Interests (including flood insurance if any) pursuant to the extent applicablePledge Agreement, accompanied in each case by duly executed stock or unit powers (or other appropriate transfer documents) which insurance shall name the Administrative Agent as additional insured and include lender loss payee endorsements for property and casualty policies, as applicablein blank affixed thereto;
(ps) delivery to the Escrow Agent of all Certificates evidencing the Restricted Equity Interests;
(t) UCC-1 financing statements for filing in all places required by applicable Law to perfect the Liens of the Administrative Agent for the benefit of the Credit Secured Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement,;
(qu) an [reserved];
(v) customary evidence that the Existing Credit Facilities have been, or concurrently with the Closing Date are being, terminated, and that all loans and obligations thereunder have been paid in full or are being paid in full with funds advanced under the initial Borrowing, and any and all Liens thereunder shall have been terminated prior to the Closing Date or shall terminate substantially concurrently therewith;
(w) UCC search results with respect to the Loan Parties showing only Liens acceptable to the Administrative Agent (or receipt of signed lien releases, termination statements, payoff letters and other documents as the Administrative Agent deems appropriate, evidencing the termination of or reasonably satisfactory arrangements for the termination of, any other Liens of any secured party in any of the assets of the Loan Parties);
(x) a certificate signed by a Responsible Officer of the Borrower Representative certifying as to the identity of all Restricted Subsidiaries (and that such Subsidiaries meet the requirements to be Restricted Subsidiaries), Unrestricted Subsidiaries (and that such Subsidiaries meet the requirements to be Unrestricted Subsidiaries) and Excluded Subsidiaries, in each case, determined as of the Closing Date on a pro forma basis after giving effect to the Original Closing Date Transactions;
(y) with respect to the Real Property listed on Schedule 4.01.1(x), (i) the documents and instruments required pursuant to Section 5.15.3 and (ii) completion and satisfactory review of Real Estate Appraisals provided pursuant to Section 5.15.3 on all such Real Estate Collateral evidencing a minimum aggregate appraised fair market value of not less than $197,000,000 and evidencing a loan to value ratio of not less than 85% with respect to the Closing Date Mortgage Loans;
(z) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, and Anti-Terrorism Laws, including the USA Patriot Act, as reasonably requested by Administrative Agent and by any of the Lenders; and
(aa) a completed and executed Collateral Information Certificate by Borrower Representative Parent Holdings Guarantor for itself and for each Loan Party completed giving pro forma effect to the Closing Date Transactions, and
(r) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Issuing Bank, or the Required Lenders reasonably may requireParty.
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Closing Submissions. The Administrative Agent’s receipt of the following, each properly executed by an Authorized Officer of the signing Loan Party, each dated either the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its counsel:
(a) executed counterparts of this Agreement, the Security Agreement, the Guaranty Agreement and the other Credit Documents;
(b) Notes executed by the Borrowers in favor of each Lender;
(c) one or more Guaranty Agreements executed by each of the Guarantors;
(d) (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as a Authorized Officer in connection with this Agreement and the other Credit Documents to which such Loan Party is a party and (ii) a copy of the Organization Documents certified as of a recent date by the appropriate governmental official, each certified as true and complete by an Authorized Officer of the applicable Loan Partyparty;
(e) such documents and certifications (including certified copies of the Organization Documents of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(f) a favorable opinion of counsel to the Loan Parties Parties, including, but not limited to, matters as to New York, Delaware, and Florida law, addressed to the Administrative Agent and the Lenders in form and substance satisfactory customary for similar credit transactions, subject only to the Administrative Agentcustomary qualifications and conditions;
(g) a certificate of an Authorized Officer of each Loan Party stating that all notices, consents, licenses, approvals, and agreements required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Credit Documents to which it is a party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all of such Manufacturers, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or received, and that any such consents, licenses, approvals, and agreements shall be in full force and effect upon giving effect to the Credit Documents and the transactions contemplated by this Agreement;
(h) a certificate signed by an Authorized Officer of the Loan Parties or the Borrower Representative certifying (i) the absence of any continuing Defaults or Events of Default, (ii) satisfaction of all conditions precedent to Closing hereunder, (iii) solvency, and (iv) all shareholder and corporate consents and approvals (including any consents required under the Amended Charter and compliance with all requirements with respect to the Loans and other credit accommodations set forth in the Certificate of Designations), and all material governmental and third party consents and approvals required in connection with the Closing Date Transactions (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that challenges the credit facilities or any other transaction involving any of the Loan Parties, (v) such other matters as are reasonably required by the Administrative Agent or the Lenders;
(i) a duly completed Compliance Certificate, including calculations of the financial covenants set forth therein in a manner reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Loan Parties in form and substance satisfactory to the Administrative Agent evidencing, as of the as of the last day of the most recently completed month ending at least 30 days prior to the Closing Date, (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, and (ii) a Consolidated Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and (iii) a Consolidated Current Ratio not less than 1.15:1.001.25:1.00, in each case after giving pro forma effect to the Closing Date Transactions;
(j) the Historical Financial Statements and the Projections;
(k) (i) UCC search results with all sale-leaseback documents, operating leases, real estate mortgages, all title, survey, appraisals and other customary real estate documentation in respect of the Mortgage Obligations Collateral and delivery to the Loan Parties and the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid on or prior to the Closing Date) and (ii) searches Administrative Agent of ownership of intellectual property owned by the Loan Parties in the United States Patent and Trademark Office and the United States Copyright Office and such patent/trademark/copyright filings Real Estate Support Documents as requested are reasonably required by the Administrative Agent in order Agent; provided, however, nothing herein shall require delivery to perfect the Administrative Agent’s security interest Agent of any Real Estate Support Document for premises occupied temporarily by a Borrower in such intellectual propertyconnection with participation at a trade show or similar temporary sales location;
(l) such deposit account control agreements as are required pursuant to the Security Documents;
(m) all documentation and other information required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance with all applicable Laws and regulations, including, all “know your customer” rules in effect from time to time pursuant to the Bank Secrecy Act, the USA Patriot Act and other applicable Laws on or prior to the date which is five (5) Business Days prior to the Closing Date;
(n) at least five days prior to the Closing Date, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower;
(o) certificates in form and substance satisfactory to the Administrative Agent evidencing insurance (including flood insurance to the extent applicable) which insurance shall name the Administrative Agent as additional insured and include lender loss payee endorsements for property and casualty policies, as applicable;
(p) UCC-1 financing statements for filing in all places required by applicable Law to perfect the Liens of the Administrative Agent for the benefit of the Credit Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement,
(q) an executed Collateral Information Certificate by Borrower Representative for itself and for each Loan Party completed giving pro forma effect to the Closing Date Transactions[reserved], and
(rq) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Issuing Bank, or the Required Lenders reasonably may require.
Appears in 1 contract
Closing Submissions. The Administrative Agent’s receipt of the following, each properly executed by an Authorized Officer of the signing Loan Party, each dated either the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its counsel:
(a) executed counterparts of this Agreement, the Security Agreement, the Guaranty Agreement and the other Credit Documents;
(b) Notes executed by the Borrowers in favor of each Lender;
(c) one or more Guaranty Agreements executed by each of the Guarantors;
(d) (i) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as a Authorized Officer in connection with this Agreement and the other Credit Documents to which such Loan Party is a party and (ii) a copy of the Organization Documents certified as of a recent date by the appropriate governmental official, each certified as true and complete by an Authorized Officer of the applicable Loan Partyparty;
(e) such documents and certifications (including certified copies of the Organization Documents of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification;
(f) a favorable opinion of counsel to the Loan Parties Parties, including matters as to New York, Delaware, and Florida law, addressed to the Administrative Agent and the Lenders in form and substance satisfactory customary for similar credit transactions, subject only to the Administrative Agentcustomary qualifications and conditions;
(g) a certificate of an Authorized Officer of each Loan Party stating that all notices, consents, licenses, approvals, and agreements required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Credit Documents to which it is a party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all of such Manufacturers, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or received, and that any such consents, licenses, approvals, and agreements shall be in full force and effect upon giving effect to the Credit Documents and the transactions contemplated by this Agreement;
(h) a certificate signed by an Authorized Officer of the Loan Parties or the Borrower Representative certifying (i) the absence of any continuing Defaults or Events of Default, (ii) satisfaction of all conditions precedent to Closing hereunder, (iii) solvency, and (iv) all shareholder and corporate consents and approvals (including any consents required under the Amended Charter and compliance with all requirements with respect to the Loans and other credit accommodations set forth in the Certificate of Designations), and all material governmental and third party consents and approvals required in connection with the Closing Date Transactions merger and capitalization transactions described in clauses (i) and (j) below (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that challenges the credit facilities or any other transaction involving any of the Loan Parties, (v) such other matters as are reasonably required by the Administrative Agent or the Lenders;
(i) A certificate signed by an Authorized Officer of the Loan Parties reasonably satisfactory to the Administrative Agent attaching the Merger Agreement, and flow of funds in connection therewith, and certifying that that the merger transactions between (i) Pubco Guarantor and Andina Acquisition Corp. II, a publicly-traded Cayman Islands exempted company, with Pubco Guarantor as the survivor thereof, and (ii) Andina II Merger Sub Inc., a Delaware corporation, and wholly – owned subsidiary of Pubco Guarantor with Parent Guarantor, with Parent Guarantor as the survivor thereof have closed prior to or contemporaneously herewith pursuant to, and in accordance with the terms of, the Merger Agreement, including (u) receipt of cash proceeds contributed by the ANDA Trust as described in the Merger Agreement in a minimum amount of $4,640,000, (v) receipt of Parent Guarantor’s “rollover equity” in the amount of $15,000,000, (w) receipt of payment for a new common stock issuance in Pubco Guarantor in a minimum amount of $28,500,000, (x) confirmation of submission to NASDAQ of Pubco Guarantor’s application to list its common stock on NASDAQ, (y) satisfaction of the cash tangible net assets requirement under the Merger Agreement, and (z) completion of the sale of Capital Stock in Parent Guarantor by Wayzata Opportunities Fund, II, L.P.;
(j) A certificate signed by an Authorized Officer of the Loan Parties reasonably satisfactory to the Administrative Agent attaching the Securities Purchase Agreement, the Amended Charter of Pubco Guarantor, and the Certificate of Designations), and certifying that the Series A Preferred Stock in a minimum amount of $60,000,000 has been issued and payment for same received in accordance with the Securities Purchase Agreement, together with a copy of the flow of funds in connection with same;
(k) A certificate signed by an Authorized Officer of the Loan Parties reasonably satisfactory to the Administrative Agent, that the cash equity capitalization of Pubco Guarantor shall not be less than at least 45% of the total pro forma consolidated debt and equity capitalization of Pubco Guarantor and its Subsidiaries on the Closing Date, together with calculations satisfactory to the Administrative Agent demonstrating same;
(l) a duly completed Compliance Certificate, including calculations of the financial covenants set forth therein in a manner reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Loan Parties in form and substance satisfactory to the Administrative Agent evidencing, as of the as of the last day of the most recently completed month ending at least 30 days prior to the Closing Date, (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, (ii) a Consolidated Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and (iii) a Consolidated Current Ratio not less than 1.15:1.00, in each case after 2.00:1.00 giving pro forma effect to all transactions contemplated by this Agreement, including the Closing Date Transactionstransactions described in clauses “(i),” “(j),” and (k) above, and the credit accommodations provided in this Agreement, and (ii) Consolidated EBITDAR of the Loan Parties of not less than Thirty Million Dollars ($30,000,000.00);
(jm) each of the Historical Financial Statements and following which shall be reasonably satisfactory to the Projections;
(k) Administrative Agent, (i) UCC search results with respect to audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Parent Guarantor and its Subsidiaries for the Loan Parties twelve-month period ended December 31, 2016 and the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid on or for each subsequent Fiscal Year ended at least 45 days prior to the Closing Date, (ii) the unaudited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of Parent Guarantor and its Subsidiaries for each fiscal month ended after December 31, 2016 and at least 30 days prior to the Closing Date, (iii) pro forma consolidated balance sheets of Pubco Guarantor and its Subsidiaries (including, for the avoidance of doubt, the Borrowers) as of and for the twelve-month period ending on the last day of the most recently completed month ending at least 30 days prior to the Closing Date, prepared giving effect to the credit facilities and other transactions described herein as if the Closing Date had occurred and otherwise prepared on a basis consistent with financial statements provided to the Administrative Agent prior to the delivery of the commitment letter, and (iv) projections including balance sheets, income statements and cash flow statements of Borrowers and their Subsidiaries;
(n) a payoff and termination letter (i) from Bank of America N.A., in form and substance satisfactory to the Administrative Agent, including satisfactory arrangements for Cash Collateralization of the Existing Letters of Credit, and (ii) searches of ownership of intellectual property owned by any other creditors intended to be paid at Closing and all guaranties and Liens released (including liens perfected pursuant to control agreements) to achieve the Loan Parties required Lien priority position in the United States Patent Collateral and Trademark Office Indebtedness limitations required pursuant to this Agreement and the United States Copyright Office Security Documents;
(o) all sale-leaseback documents, and operating leases, and real estate mortgages, and delivery to the Administrative Agent of such patent/trademark/copyright filings Real Estate Support Documents as requested are reasonably required by the Administrative Agent in order Agent; provided, however, nothing herein shall require delivery to perfect the Administrative Agent’s security interest Agent of any Real Estate Support Document for premises occupied temporarily by a Borrower in such intellectual propertyconnection with participation at a trade show or similar temporary sales location;
(lp) such deposit account control agreements as are required pursuant to the Security Documents;
(mq) all documentation and other information required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance with all bank regulatory authorities under applicable Laws and regulations, including, all “know your customer” and anti-money laundering rules in effect from time to time pursuant to and regulations, including the USA Patriot Act and the Bank Secrecy Act, the USA Patriot Act and other applicable Laws on or prior to Laws, as reasonably requested by Administrative Agent and by any of the date which is five (5) Business Days prior to Lenders, including copies of all Organization Documents of the Closing DateLoan Parties and IRS W-9 Forms completed and executed by the Loan Parties;
(nr) at least five days prior evidence that all insurance and endorsements thereto required to be maintained by the Closing Date, any Borrower that qualifies as a “legal entity customer” under terms of the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification Credit Documents is in relation to such Borrowereffect;
(o) certificates in form and substance satisfactory to the Administrative Agent evidencing insurance (including flood insurance to the extent applicable) which insurance shall name the Administrative Agent as additional insured and include lender loss payee endorsements for property and casualty policies, as applicable;
(p) UCC-1 financing statements for filing in all places required by applicable Law to perfect the Liens of the Administrative Agent for the benefit of the Credit Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement,
(qs) an executed Collateral Information Certificate by Borrower Representative for itself inspection, inventory, and for each Loan Party audit of all Eligible Floor Plan Vehicles and Units shall have been completed giving pro forma effect prior to the Closing Date TransactionsClosing, and
(rt) such other assurances, certificates, documents, consents or opinions as the Administrative Agent, the Issuing Bank, or the Required Lenders reasonably may require.
Appears in 1 contract
Closing Submissions. The Administrative Agent’s receipt of the following, each properly executed by an Authorized Officer of the signing Loan Partywhich shall be originals, each dated either the Closing Date telecopy or other electronic format (ori.e., in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance reasonably satisfactory to the Administrative Agent and its counsel:“pdf”): 106
(a) executed counterparts of this Agreement, the Security Agreement, the Guaranty Agreement and each of the other Credit DocumentsDocuments to be executed and delivered on the Closing Date, each dated as of the Closing Date and executed by each Loan Party party thereto;
(b) Notes dated the Closing Date and executed by the Borrowers Borrower in favor of each LenderLender requesting Notes (to the extent such Notes are requested at least two (2) Business Days prior to the Closing Date (or such shorter period of time as the Borrower shall agree));
(c) one or more the Guaranty Agreements and Security Agreement dated as of the Closing Date executed by each of the GuarantorsGuarantors as of the Closing Date;
(d) a customary secretary’s certificate (ior certificate of such other Authorized Officer) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Authorized Officers of each Loan Party Party, dated as of the Administrative Agent may require Closing Date, attaching (a) customary corporate (or other organizational) resolutions from the Borrower and the Guarantors, (b) incumbency certificates evidencing the identity, authority and capacity of each Authorized Officer thereof authorized to act as a an Authorized Officer in connection with this Agreement and the other Credit Documents to which such Loan Party is a party party, (c) true, correct and (ii) a copy complete copies of the Organization Documents of each such Loan Party and a good standing (or equivalent) certificate of each such Loan Party in its jurisdiction of organization (which in the case of such certificate of incorporation, formation or organization, as applicable, and such good standing (or equivalent) certificate of such Loan Party shall be certified as of a recent date by the appropriate governmental official, each certified applicable Governmental Authority in the applicable jurisdiction); provided that no such secretary’s (or such other Authorized Officer’s) certificate shall include any representation or statement as true and complete to the absence (or existence) of any Default or Event of Default;
(e) the applicable Loan Requests signed by an Authorized Officer of the applicable Borrower; provided that no Loan Party;
Request shall include any representation or statement as to the absence (eor existence) such documents and certifications (including certified copies of the Organization Documents any Default or Event of the Loan Parties) as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each Loan Party is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualificationDefault;
(f) a favorable customary opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, as counsel under New York law and Delaware law to the Loan Parties Parties, addressed to the Administrative Agent and the Lenders in form and substance satisfactory to the Administrative AgentLenders;
(g) a certificate of an Authorized Officer of each Loan Party stating that all notices, consents, licenses, approvals, and agreements required in connection with the execution, delivery and performance by such Loan Party and the validity against such Loan Party of the Credit Documents to which it is a party, including notices to, and consents, and approvals required from Manufacturers, OEM and other vendors and suppliers of Floor Plan Vehicles and Units and a statement identifying all of such Manufacturers, OEM, vendors and suppliers of Floor Plan Vehicles, and shall have been duly given or received, and that any such consents, licenses, approvals, and agreements shall be in full force and effect upon giving effect to the Credit Documents and the transactions contemplated by this Agreement;
(h) a certificate signed by an Authorized Officer of the Loan Parties or the Borrower Representative certifying (i) the absence of any continuing Defaults or Events of Defaultand Holdings certifying, (ii) and where applicable demonstrating, satisfaction of all the conditions precedent to Closing hereunder, (iii) solvency, and (iv) all shareholder and corporate consents and approvals (including any consents required under the Amended Charter and compliance with all requirements with respect to the Loans and other credit accommodations set forth in the Certificate of Designations), and all material governmental and third party consents and approvals required in connection with the Closing Date Transactions (all of which shall be final with no waiting period to expire or ongoing governmental inquiry or investigation) shall have been received and there does not exist any action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental authority that challenges the credit facilities or any other transaction involving any of the Loan PartiesSection 4.01.5;
(ih) a duly completed Compliance Certificate, including calculations of the financial covenants set forth therein in a manner reasonably satisfactory to the Administrative Agent, signed by an Authorized Officer of the Loan Parties extent requested in form and substance satisfactory to the Administrative Agent evidencing, as of the as of the last day of the most recently completed month ending writing at least 30 days prior to the Closing Date, (i) a Total Net Leverage Ratio not be greater than 3.00:1.00, (ii) a Consolidated Fixed Charge Coverage Ratio not to be less than 1.25:1.00 and (iii) a Consolidated Current Ratio not less than 1.15:1.00, in each case after giving pro forma effect to the Closing Date Transactions;
(j) the Historical Financial Statements and the Projections;
(k) (i) UCC search results with respect to the Loan Parties and the Subsidiaries showing no Liens except Permitted Encumbrances (or Liens with respect to Indebtedness to be repaid on or prior to the Closing Date) and (ii) searches of ownership of intellectual property owned by the Loan Parties in the United States Patent and Trademark Office and the United States Copyright Office and such patent/trademark/copyright filings as requested by the Administrative Agent in order to perfect the Administrative Agent’s security interest in such intellectual property;
(l) such deposit account control agreements as are required pursuant to the Security Documents;
(m) all documentation and other information required by any Lenders or the Issuing Bank to evidence or facilitate both the Borrowers’ and each Lender’s compliance with all applicable Laws and regulations, including, all “know your customer” rules in effect from time to time pursuant to the Bank Secrecy Act, the USA Patriot Act and other applicable Laws on or prior to the date which is five (5) ten Business Days prior to the Closing Date;
(n) Date by the Administrative Agent, receipt by the Administrative Agent at least five days Business Days prior to the Closing Date, any Borrower Date of such documentation and other information relating to the Loan Parties that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver a Beneficial Ownership Certification in relation to such Borrower;
(o) certificates in form and substance satisfactory to the Administrative Agent evidencing insurance (including flood insurance to the extent applicable) which insurance shall name the Administrative Agent as additional insured and include lender loss payee endorsements for property and casualty policies, as applicable;
(p) UCC-1 financing statements for filing in all places reasonably determines is required by regulatory authorities under applicable Law to perfect “know your customer” and anti-money laundering rules and regulations, including the Liens of the Administrative Agent for the benefit of the Credit Parties under the Security Documents as a perfected Lien as to items of Collateral in which a security interest may be perfected by the filing of a UCC-1 financing statement,
(q) an executed Collateral Information Certificate by Borrower Representative for itself and for each Loan Party completed giving pro forma effect to the Closing Date Transactions, USA PATRIOT Act; and
(ri) such other assurances, certificates, documents, consents title insurance commitments or opinions as pro forma Title Insurance Policies for the Administrative Agent, the Issuing Bank, or the Required Lenders reasonably may require.Real Property Parcels listed on Schedule 1.04 attached hereto;
Appears in 1 contract
