Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Bank to issue the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions: (a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Lender Group: (i) This duly executed Agreement, (ii) The Fee Letter duly executed by Borrowers, (iii) The Security Agreement duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank, (iv) A Trademark Security Agreement duly executed by Borrowers, (v) The Affinity Pledge Agreement duly executed by AGI, (vi) The duly executed Blocked Account Agreements required by Section 6.15, (vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group, (viii) The duly executed Request for Advance for the initial Advance of the Loans, (ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date, (x) Duly executed Collateral Access Agreements as required by the Administrative Agent; (xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent, (xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings hereunder, (D) certificates of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person, (xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents, (xiv) the financial statements and balance sheets described in Section 5.1(k), (xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis, (xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5, (xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty, (xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices, (xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder, (xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent, (xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date, (xxii) The duly executed Letter of Credit Reimbursement Agreement, and (xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested; (b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;
Appears in 2 contracts
Samples: Credit Agreement (Affinity Guest Services, LLC), Credit Agreement (Affinity Group Holding, Inc.)
Conditions Precedent to Initial Advance. The obligations of the Neither Agent nor Lenders to undertake the Revolving Loan Commitment and shall have any obligation to make the initial Initial Advance hereunder, and or the obligation of the Issuing Bank Term Loan or to issue the initial or participate in any Letter of Credit hereunder, are subject to the prior fulfillment of each unless Agent shall have received all of the following conditionsat its office in Denver, Colorado, duly executed and delivered and in form, substance and date satisfactory to Agent:
(a) The Administrative Agent shall have received each of the followingNotes, in form and substance satisfactory payable to the Lender Group:order of each initial Lender.
(i) This duly executed Agreement,
(ii) The Fee Letter duly executed by Borrowers,
(iii) The Security Agreement duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(ivb) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions certificate of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members an officer or manager, as appropriateapplicable, of each Borrower and of each Guarantor, which shall contain the names and signatures of the persons authorized to execute the Loan Documents on behalf of such Person), in form Borrower or Guarantor and substance satisfactory which shall certify to the Administrative Agenttruth, including a certificate correctness and completeness of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the followingfollowing exhibits attached thereto: (A1) a copy of the Certificate articles of Incorporation organization and the operating agreement or Formation the articles of incorporation and the bylaws of such Person certified to be trueBorrower or Guarantor and all amendments thereto, complete and correct (2) a copy of any resolutions of the managers, members, shareholders, board of directors or other governing body of such Borrower or Guarantor required by the Secretary governing documents of State such Borrower or Guarantor authorizing the Loan Documents to which such Borrower or Guarantor is a party and the transactions contemplated hereby.
(c) A compliance certificate from a manager of IMLLC in which such person certifies to the satisfaction of the State of such Person’s incorporation or formationconditions set out in subsections (a), (Bb), and (c) a true, complete of Section 4.2 below and correct copy such other matters as Agent may request.
(d) Any and all new Security Documents and amendments of the Byexisting Security Documents required by Agent, on behalf of Lenders.
(e) Such reports, certifications and other information as may be reasonably satisfactory to Agent concerning the condition of the Borrower Properties and the compliance or non-compliance with all Environmental Laws, partnership agreement or operating agreement of regulations and standards by the owners and operators thereof.
(f) Such reports, certifications and other information as may be required for Agent’s internal commercial finance auditors to perform a collateral audit upon the Collateral in a manner satisfactory to Agent, and such Personpro forma financial statements and other financial statements with respect to Borrowers as Agent may reasonably require.
(g) Such legal opinions concerning Borrowers’ authority to enter into the Loan Documents, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person enforceability of the Loan Documents and the Bank Products Documents and, with respect other matters as may be satisfactory to Borrowers, authorizing the borrowings hereunder, (D) certificates of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such PersonAgent, and such title opinions, supplemental title opinions, UCC searches and other title information as may be reasonably satisfactory to Agent.
(Fh) copies Any and all other Loan Documents.
(i) Payment of any and all shareholders amounts due and payable under this Agreement or share purchase agreements relating under the Fee Letter upon or prior to the Equity Interests funding of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory any of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basisLoans, and reimbursement for each fiscal year thereafter until the Maturity Date on an annual basis,
any and all reimbursable costs and expenses (xvior reasonable estimates thereof) Certificates of insurance and loss payable endorsements with respect incurred or to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required be incurred by the Administrative Agent in connection with the removal of this Agreement or any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;Document.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Bank to issue the initial Letter of Credit hereunder, are hereunder is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Lender Group:
following (i) This duly executed Agreement,
(ii) The Fee Letter duly executed by Borrowers,
(iii) The Security Agreement duly executed by with sufficient copies for each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such PersonLenders), in form and substance satisfactory to the Administrative AgentAgent and each of the Lenders:
(i) the loan certificate of the Borrower, in substantially the form attached hereto as Exhibit N, including a certificate of incumbency with respect to each Authorized Signatory of such PersonSignatory, together with appropriate attachments which shall include without limitation, the followingfollowing items: (A) a copy of the Certificate certificate of Incorporation or Formation incorporation of such Person the Borrower, certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formationWashington, (B) and a true, complete and correct copy of the Byby-Lawslaws of the Borrower, partnership agreement (B) certificates of good standing for the Borrower issued by the Secretary of State or operating agreement of such Personsimilar state official for each state in which the Borrower is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of such Person the Borrower, authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (D) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or it management of the Borrower;
(ii) duly executed Notes (to the extent requested by any Lenders);
(iii) duly executed Borrower's Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank and appropriate acknowledgements by the pledged limited liability companies and pledged partnerships;
(iv) duly executed Security Agreement, together with evidence of the filing of appropriate UCC-1 financing statement forms;
(v) the Subsidiary Guaranty;
(vi) the Subsidiary Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(vii) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary of the Borrower, together with evidence of the filing of appropriate UCC-l financing statement forms;
(viii) the Fee Letters;
(ix) copies of insurance binders or certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof;
(x) legal opinions of (i) Friexxxx Xxxlxx & Xeilxx XXX, general partnercounsel to the Borrower, members or managerand (ii) Morrxxxx & Xoerxxxx LLP, FCC counsel to the Borrower and its Subsidiaries; each as counsel to the Borrower and its Subsidiaries, addressed to each Lender and the Administrative Agent, in form and substance satisfactory to the Administrative Agent and its special counsel, and dated as of the Agreement Date;
(xi) duly executed Request for Advance for the initial Advance of the Loans, which Request for Advance shall include calculations demonstrating, as applicableof the Agreement Date after giving effect to the borrowings hereunder on the Agreement Date, the Borrower's compliance with Section 2.1 and Sections 7.8, 7.9, 7.10, and 7.11 hereof;
(xii) authorizing duly executed Use of Proceeds Letter;
(xiii) duly executed Certificate of Financial Condition for the Borrower and its Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could have a Materially Adverse Effect since December 31, 1999;
(xiv) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the closing of this Agreement or to the execution, delivery and performance by such Person of this Agreement and the other Loan Documents;
(xv) a loan certificate from each Restricted Subsidiary of the Loan Documents and Borrower, in substantially the Bank Products Documents andform attached hereto as Exhibit N, with respect to Borrowerscorporations, authorizing Exhibit O, with respect to partnerships, and Exhibit P with respect to limited liability companies, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the borrowings hereunderfollowing items: (A) a copy of the certificate or articles of incorporation of such Subsidiary or certificate of formation of such Subsidiary, as applicable, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (DB) certificates of good standing from for such Subsidiary issued by the Secretary of State or similar state official for each jurisdiction state in which such Person does Subsidiary is incorporated or required to qualify to do business, (EC) copies of employment contracts for key management level employees of such Persona true, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance complete and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitment and Lender to make the initial Advance hereunder, and the obligation of the Issuing Bank to issue the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each satisfaction by Borrower of the following conditions:
conditions precedent: (a) The Administrative Agent shall Lender must have received each of the following, following documents in form and substance satisfactory to Lender and, as appropriate, duly executed by the Lender Group:
parties thereto: (i) This duly executed Agreement,
, the Mortgage, the Indemnity, the Note and all other applicable Loan Documents; (ii) The Fee Letter duly executed by Borrowers,
Copies of such authorizing resolutions of Borrower and its constituent entities, if any, as Lender may require with respect to the Loan and the Loan Documents; (iii) The Security Agreement duly executed by each One or more certificates of such Person or Persons on behalf of Borrower Partyand its constituent entities, together with Uniform Commercial Code financing statements related theretoif any, certificates representing all as Lender may require certifying: (A) the names and true signatures of the certificated Equity Interests officers or other representatives of the pledged Subsidiaries, applicable entity authorized to sign the Loan Documents; (B) that true and all correct copies of the organizational documents of the applicable entities are attached to such certificate or certificates; and (C) such other original Collateral to be delivered matters as Lender may require; (iv) Current financial statements of Borrower and with respect to the Administrative Agent Property and such other financial data as Lender shall require; (v) An independent M.A.I. appraisal of the Property and Improvements complying in all respects with the standards for real estate appraisals established pursuant to the Security AgreementFinancial Institutions Reform, Recovery, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
Enforcement Act of 1989; (vi) The duly executed Blocked Account Agreements policies of insurance required by Section 6.15,
the Mortgage, together with evidence of the payment of the premiums therefor; (vii) The legal opinions A detailed report by a properly qualified engineer, which shall include, inter alia, a certification that such engineer has obtained and examined a list of Xxxxxxprior 9 owners, Xxxxxxxx tenants and Xxxxxxother users of all or any portion of the Property or any improvements thereon, P.A. and Xxxxxx Xxxxxxhas made an on-site physical examination of the Property, counsel to and a visual observation of the Borrower Partiessurrounding areas, addressed to and has found no evidence of past or present hazardous materials activities or the Lender Group,
presence of hazardous materials; (viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (orpaid title insurance policy, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person amount of the Loan Documents Allocation for each property in ALTA 10-17-92 or other form approved by Lender, issued by a title insurance company reasonably acceptable to Lender (the “Title Insurer”) which shall insure the Mortgage to be a valid lien on Borrower’s interest in the Property free and the Bank Products Documents andclear of all defects and encumbrances except those previously received and approved by Lender, with respect to Borrowers, authorizing the borrowings hereunderand shall contain (i) full coverage against mechanics’ liens (filed and inchoate), (Dii) certificates of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement survey but no survey exceptions except those theretofore approved by Lender, (iii) such affirmative insurance and endorsements as Lender may require, and (iv) if any such policy is dated earlier than the date of the disbursement of the Loan, an endorsement to such policy, in form approved by Lender, redating the policy and setting forth no additional exceptions except those approved by Lender’s Counsel (a “Date Down Endorsement”); and shall be accompanied by such reinsurance agreements between the Title Insurer and title companies approved by Lender, in ALTA 1994 facultative form, as Lender may require; (ix) An as-built survey of the Property, certified to Lender and the first priority perfected Liens Title Insurer; (x) Certified copies of all leases in respect of the Administrative Agent thereunder Property and an estoppel regarding lease matters from each tenant or from Borrower; (zxi) Opinions of Borrower’s counsel and local counsel to the effects reasonably required by Lender; Borrower hereby acknowledges that each of its counsel delivering opinion letters to Lender on or about the date hereof has been requested and directed by Borrower to do so; (xii) Copies of the certificate(s) of occupancy for the Property and of any UCC and all other authorizations (including plot plan and subdivision approvals, zoning variances, water, sewer, building and other permits) required by governmental authorities or otherwise necessary for the use, occupancy and operation of the Property for their intended purposes in accordance with all applicable laws; (xiii) UCC, judgment and litigation searches against Borrower and advice from the Title Insurer to the effect that searches of proper public records disclose no materially adverse matters, leases of personalty or financing statements filed or recorded against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement Mortgaged Property or Borrower; and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (xiv) Such other documents as defined in the Affinity Pledge Agreement) thereunder,
Lender may require; (xxb) Payment of all fees due and expenses payable pursuant to Section 2.2. (c) The representations and warranties made to Lender herein, in the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the other Loan Documents and the due diligence relating thereto to be paid on the Agreement Datein any other document, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a certificate or statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;delivered to
Appears in 1 contract
Samples: Revolving Credit Agreement
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Bank pursuant to issue the initial Letter of Credit hereunder, are this Agreement is subject to the prior fulfillment condition precedent that the Administrative Agent shall have received, on or before the date of each of such initial Advance, the following conditionseach (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Administrative Agent:
(a) The Sale Agreement, duly executed by the parties thereto;
(b) A certificate of the Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Administrative Agent and the Lenders may conclusively rely until such time as the Administrative Agent shall have received receive from such Loan Party a revised certificate meeting the requirements of this subsection (b));
(c) The Organic Documents of each Loan Party, duly certified as of a recent date by the Secretary of State of such Loan Party's state of organization or by the Secretary or an Assistant Secretary of such Loan Party, as applicable;
(d) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of organization of such Loan Party and the state where such Loan Party's principal place of business is located, on or within 30 days prior to the date of this Agreement;
(e) Executed copies in form suitable for filing of (i) proper financing statements (Form UCC-1) reasonably describing the Receivables and the Related Assets sold or contributed, and the rights to payment under Non-Assignable Contracts that are pledged, under the Sale Agreement and naming each of the followingOriginators as debtor, the Borrower, as secured party, and the Administrative Agent, as assignee of secured party, (ii) proper financing statements (Form UCC-1) reasonably describing the Collateral naming the Borrower, as debtor, and the Administrative Agent, as agent for the Secured Parties, as secured party, and (iii) such other similar instruments or documents, as may be necessary or, in the opinion of the Administrative Agent reasonably desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect (A) the sales, contributions and security interests by each of the Originators to the Borrower under the Sale Agreement, and (B) the Administrative Agent's security interest in the Collateral under this Agreement;
(f) A copy of the consent solicitation materials sent to the holders of Quest Diagnostics' bondholders seeking their consent to not subordinating the Demand Advances, and evidence that the requisite numbers of such bondholders have consented thereto;
(g) The Subordinated Notes, duly executed by the Borrower;
(h) One or more favorable opinions of counsel to Loan Parties covering the matters set forth in of Exhibit 5.1(h);
(i) One or more favorable opinions of counsel to Loan Parties, as to: (1) the existence of a "true sale" or "true contribution" of the Receivables from each of the Originators to the Borrower under the Sale Agreement; and (2) the inapplicability of the doctrine of substantive consolidation to the Borrower and each of the Originators in connection with any bankruptcy proceeding involving any of the Originators or the Borrower;
(j) A pro forma Monthly Report, prepared as of the Cut-Off Date of June 30, 2000;
(k) A report in form and substance satisfactory to the Lender Group:Administrative Agent from the Initial Due Diligence Auditor as to a pre-closing due diligence audit by the Initial Due Diligence Auditor;
(i) This duly executed Agreement,
(iil) The Fee Letter duly executed by Borrowers,
(iii) The Security Agreement duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Liquidity Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly duly executed Collateral Access Agreements as required by the Administrative Agentparties thereto;
(xim) Duly executed Credit Card Processor Agreements as required by Executed UCC-3 partial releases and/or termination statements, in form suitable for filing, with respect to any existing Liens on the Administrative Agent,Collateral;
(xiin) With respect to each Borrower Party Quest Diagnostics, copies of its most recent reports on SEC Forms 10-K and AGI10-Q;
(o) The Fee Letter, a loan certificate signed by the secretary together with payment of any and all fees due on or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory prior to the Administrative Agent, including a date of the initial Advance;
(p) A certificate of incumbency an Authorized Officer of each of the Loan Parties certifying that as of the date of the initial Advance, no Event of Default or Unmatured Event of Default exists and is continuing;
(q) Collection Account Agreements with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete Collection Account and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings hereunder, (D) certificates of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens Lockbox (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted LiensCollection Account at China Trust Bank), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, ; and
(xxiiir) All such Such other agreements, instruments, certificates, opinions and other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;.
Appears in 1 contract
Samples: Credit and Security Agreement (Quest Diagnostics Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Bank Banks to issue (or arrange for the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Lender GroupAdministrative Agent:
(i) This duly executed Agreement,;
(ii) The Fee Letter A duly executed by Borrowers,Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by each the Borrower PartyParties, together with Uniform Commercial Code financing statements related thereto;
(iv) The Reaffirmation Agreement duly executed by the Borrower Parties;
(v) To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, original stock certificates representing all evidencing the issued and outstanding shares of the certificated Equity Interests of the capital stock pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and together with stock powers or other appropriate instruments of transfer powers with respect thereto duly endorsed executed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,;
(vi) The To the extent not previously delivered to the Administrative Agent in connection with the Existing Credit Agreement, the duly executed Blocked Account Agreements required by Section 6.15,;
(vii) The Fee Letter duly executed by the Borrowers;
(viii) The duly executed Post-Closing Agreement;
(ix) A satisfactory field audit of all Accounts and Inventory, and completion of satisfactory appraisals of all Inventory and Eligible Trademarks, in form and substance reasonably satisfactory to the Administrative Agent and completed by auditors and appraisers selected by the Administrative Agent;
(x) The legal opinions opinion of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx XxxxxxKing & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group,;
(viiixi) The legal opinion of Xxxx Xxxxxxxx, P.A., local counsel to the Borrower Parties, addressed to the Lender Group;
(xii) The duly executed Request for Advance for the initial Advance of the Loans,;
(ixxiii) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, Certificate dated as of the Agreement Date,
(x) Duly executed Collateral Access Agreements Date and calculated as required by the Administrative Agentof May 26, 2012;
(xixiv) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a A loan certificate signed by the secretary or assistant secretary an Authorized Signatory of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agenteach Borrower Party, including a certificate of incumbency with respect to each Authorized Signatory of such PersonBorrower Party, together with appropriate attachments which shall include include, without limitation, the following: (A) a copy of the Certificate of Incorporation or Formation of such Person Borrower Party certified to be true, complete and correct by the Secretary of State of the State of such PersonBorrower Party’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement Laws of such PersonBorrower Party, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) Borrower Party authorizing the execution, delivery and performance by such Person Borrower Party of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings or guaranty, as applicable, hereunder, (D) certificates of good standing from each jurisdiction in which such Person Borrower Party does business, and (E) copies of employment contracts for key management level employees all agreements among the shareholders of such PersonBorrower Party to which such Borrower Party is a party and plans and agreements (other than agreements entered into pursuant to or in connection with a disclosed plan) providing for the grant, and (F) copies issuance or sale of all shareholders or share purchase agreements relating to the Equity Interests of such Person,Borrower Party;
(xiiixv) A Solvency Certificate executed by an Authorized Signatory of the Camping World Administrative Borrower regarding the solvency and financial condition of the Borrower PartiesParent and its Subsidiaries, after together with a pro forma balance sheet giving effect to the incurrence of the Initial initial Advance and, if any, and the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,hereunder;
(xivxvi) the financial statements Parent and its Subsidiaries (a) 2012 business plan including its 12 month income statement, balance sheets described in Section 5.1(k),
sheet, statement of cash flows and availability forecast and (xvb) Projected consolidated financial statementsannual projections, including the income statement, balance sheet and related statements statement of income and cash flowflows, for Camping World and its Subsidiaries for the 2010 through fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,2016;
(xvixvii) Payment of all accrued and unpaid interest, fees, costs and expenses owing to the Administrative Agent (as defined in the Existing Credit Agreement) or the Lenders (as defined in the Existing Credit Agreement) under the Existing Credit Agreement;
(xviii) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,;
(xviixix) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) ), including, without limitation, all tax Liens, against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,;
(xviiixx) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,;
(xixxxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,;
(xxxxii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xxixxiii) Each Borrower Party shall have complied with all reasonable requests from the Lender Group relating to applicable bank regulatory, “know your customer,” and anti-money laundering matters including, for the avoidance of doubt, with respect to the USA Patriot Act and OFAC, and each member of the Lender Group shall have satisfactorily completed its diligence with respect thereto;
(xxiv) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, ; and
(xxiiixxv) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, operations or financial condition, income or prospects condition of the Borrower Parties shall have occurred since December 31January 28, 20082012, which change has had or could be reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance reasonably acceptable to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no other consents or approvals are required and that no Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original Uniform Commercial Code financing statements naming the respective Borrower Parties so stating;as debtor and the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be satisfactory to the Administrative Agent.
(f) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Lender Group, reflecting that, among other things, as of the last day of the most recently ended fiscal month prior to the Agreement Date, after giving effect to the borrowings hereunder on the Agreement Date and the issuance of any Letters of Credit hereunder on the Agreement Date (as if such borrowings and issuances had occurred on the last day of such fiscal month), Availability shall not be less than $60,000,000 (with trade payables being paid currently, expenses and liabilities being paid in the ordinary course of business and without acceleration of sales and without deterioration in working capital).
(g) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and pursuant to the obligation of the Issuing Bank to issue the initial Letter of Credit hereunder, are Existing Agreement was subject to the prior fulfillment condition precedent that the Agent shall have received, on or before the date of each of such initial Advance, the following conditionseach (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Agent:
(a) The Administrative Agent shall have received each Each of the followingFirst-Step Receivables Purchase Agreement and the Sale Agreement, in form and substance satisfactory to the Lender Group:
(i) This duly executed Agreement,
(ii) The Fee Letter duly executed by Borrowers,the parties thereto;
(iiib) The Security Agreement duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all A certificate of the certificated Equity Interests Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the pledged Subsidiaries, officers authorized on its behalf to sign this Agreement and all the other original Collateral Transaction Documents to be delivered to by it hereunder (on which certificate the Administrative Agent pursuant to and the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
Lenders may conclusively rely until such time as the Agent shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agentb));
(xic) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary The articles or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to incorporation of each Authorized Signatory of such PersonLoan Party, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person duly certified to be true, complete and correct by the Secretary of State of such Loan Party's state of incorporation, as of a recent date acceptable to the State of such Person’s incorporation or formation, (B) Agent in each case together with a true, complete and correct copy of the Byby-Laws, partnership agreement or operating agreement laws of such PersonLoan Party, (C) a true, complete and correct copy of duly certified by the resolutions Secretary or an Assistant Secretary of such Person Loan Party;
(or it general partner, members or manager, as applicabled) authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings hereunder, (D) certificates Copies of good standing from certificates (or the equivalent) for each jurisdiction in which such Person does businessLoan Party, (E) copies issued by the Secretaries of employment contracts for key management level employees State of the state of incorporation of such Person, Loan Party and the state where such Loan Party's principal place of business is located;
(Fe) Acknowledgment copies (or other evidence of all shareholders or share purchase agreements relating filing reasonably acceptable to the Equity Interests Agent) of such Person,
(xiiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
proper financing statements (xiv) the financial statements and balance sheets described in Section 5.1(kForm UCC-1),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents form as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects naming each of the Borrower Parties shall have occurred since December 31Originators as debtor and seller of its Receivables and Related Assets, 2008, which change has had or could reasonably be expected to have a Materially Adverse EffectPCC as the secured party, and the Lender Group shall have received a certificate of an Authorized Signatory Borrower as assignee, (ii) UCC-3 assignments with respect to each of the financing statements described in clause (i) above naming the Agent, for the benefit of the Secured Parties, as assignee of the Borrower, and (iii) financing statements (Form UCC-1), in such form as the Agent may reasonably request, naming the Borrower Parties so statingas the debtor and the Agent, as agent for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Agent desirable under the UCC or any comparable law of all appropriate jurisdictions to perfect the sale by each of the Originators to PCC, and by PCC to the Borrower of, and the Agent's security interest in the Collateral;
Appears in 1 contract
Samples: Credit and Security Agreement (Precision Castparts Corp)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Bank Banks to issue (or arrange with a Foreign Issuer the issuance of) the initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent and the other members of the Lender Group:
(i) This duly executed Agreement,;
(ii) The Fee Letter A duly executed by Borrowers,Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender's Revolving Commitment Ratio of the Revolving Loan Commitments;
(iii) The Security Agreement Agreement, duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,;
(iv) A Trademark The Intellectual Property Security Agreement Agreement, duly executed by Borrowers,each Borrower Party;
(v) The Affinity Pledge Agreement First Amendment, duly executed by AGI,certain Borrower Parties;
(vi) The Syndication Letter duly executed Blocked Account Agreements required by Section 6.15,the Borrowers;
(vii) Amendments to the Mortgages delivered by the applicable Borrower Parties in connection with the Existing Credit Agreement, together with the delivery of: (x) endorsements to title policies issued in connection with the Existing Credit Agreement, as requested by the Administrative Agent and (y) local counsel opinions with respect to each Mortgage amendment;
(viii) Duly executed landlord waiver agreements and bailee waiver agreements, as applicable, to the extent not previously delivered in connection with the Existing Credit Agreement, with respect to each Borrower Party's leased premises or goods in the possession of bailees, except as set forth on Schedule 4.1(a)(viii);
(ix) A duly executed Licensor Consent Agreement with respect to each License Agreement, to the extent not previously delivered in connection with the Existing Credit Agreement;
(x) Duly executed Account Control Agreements to the extent not previously delivered in connection with the Existing Credit Agreement;
(xi) Duly executed Securities Account Control Agreements;
(xii) The legal opinions opinion of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx XxxxxxKing & Spalding LLP, counsel to the Borrower Parties, addressed to the Lender Group,;
(viiixiii) The duly executed Request for Advance for the initial Advance of the Revolving Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xixiv) Duly All Lien Acknowledgment Agreements duly executed Credit Card Processor Agreements as required by the Administrative Agent,applicable Approved Freight Handler, to the extent not previously delivered in connection with the Existing Credit Agreement;
(xiixv) With respect to each Borrower Party and AGIParty, a loan certificate signed by the secretary or assistant secretary an Authorized Signatory of such Person (or, Borrower Party in substantially the case form of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative AgentExhibit L, including a certificate of incumbency with respect to each Authorized Signatory of such PersonBorrower Party, together with appropriate attachments which shall include include, without limitation, the following: (A) a copy of the Certificate certificate or articles of Incorporation incorporation, certificate of limited partnership or Formation certificate of organization of such Person Borrower Party certified to be true, complete and correct by the Secretary of State of or applicable officer for the State of such Person’s Borrower Party's incorporation or formationorganization, (B) a true, complete and correct copy of the By-Lawsbylaws, partnership agreement or limited liability company or operating agreement of such PersonBorrower Party, (C) a true, complete and correct copy of the resolutions of the such Person (or it general partner, members or manager, as applicable) Borrower Party authorizing the execution, delivery and performance by such Person Borrower Party of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings hereunder, (D) certificates of good standing from each jurisdiction in which such Person Borrower Party does businessbusiness except to the extent the failure to be so qualified would not reasonably be expected to have a Materially Adverse Effect, (E) copies of employment contracts for key senior management level employees of such PersonBorrower Party, and (F) copies of all shareholders or share purchase agreements agreements, as applicable, relating to the Equity Interests of such Person,Borrower Party;
(xiiixvi) A Solvency Certificate executed With respect to US Ben Xxxxxxx Holdco, a loan certificate signed by an Authorized Signatory of US Ben Xxxxxxx Holdco in substantially the Camping World regarding form of Exhibit L, including a certificate of incumbency with respect to each Authorized Signatory of US Ben Xxxxxxx Holdco, together with appropriate attachments which shall include, without limitation, the solvency and financial condition following: (A) a copy of the Borrower Partiescharter documents of US Ben Xxxxxxx Holdco, after certified to be true, complete and correct by the incurrence Secretary of State or applicable officer for the State of US Ben Xxxxxxx Holdco's incorporation or organization, (B) a true, complete and correct copy of the Initial Advance andbylaws, if anypartnership agreement or limited liability company or operating agreement of US Ben Xxxxxxx Holdco, (C) certificates of good standing from each jurisdiction in which US Ben Xxxxxxx Holdco does business except to the issuance extent the failure to be so qualified would not reasonably be expected to have a Materially Adverse Effect; (D) copies of employment contracts for senior management level employees of US Ben Xxxxxxx Holdco, and (E) copies of all shareholders or share purchase agreements, as applicable, relating to the Equity Interests of US Ben Xxxxxxx Holdco;
(xvii) A certificate of the initial Letter Secretary or an Assistant Secretary of Credit hereunder the Parent certifying that attached thereto is a true and after giving effect to complete copy of resolutions adopted by the AGI Credit Documents,Board of Directors of the Parent authorizing the execution, delivery and performance of the Acquisition Documents and the consummation of the transactions provided for therein;
(xivxviii) the financial statements and balance sheets described in Section 5.1(k),
(xvA) Projected consolidated financial statements, including statements for the balance sheet and related statements of income and cash flow, for Camping World Parent and its Subsidiaries for the 2010 2005 fiscal year year, on a month by month-by-month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,basis and (B) monthly financial statements for the Parent and its Subsidiaries and the Target for the fiscal month of May 2004;
(xvixix) Certificates Copies of certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,;
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviiixx) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,offices satisfactory to the Administrative Agent;
(xixxxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,;
(xxxxii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates affiliates of the Administrative Agent, Agent and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, ; and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties No event shall have occurred since December 31May 30, 20082003, which change has had or could which, in the reasonable business judgment of the Administrative Agent and the other members of the Lender Group, is reasonably be expected likely to have a Materially Adverse Effect; and no event shall have occurred since June 30, 2003, which, in the reasonable business judgment of the Administrative Agent and the other members of the Lender Group, is reasonably likely to have a materially adverse effect upon the business, assets, liabilities, prospects, condition (financial or otherwise) or the results of operation of the Target and its Subsidiaries taken as a whole.
(c) The Administrative Agent shall have received evidence reasonably satisfactory to it that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened reversal or cancellation, and that no Default exists, after giving effect to the initial Advance hereunder, and the Administrative Agent and the other members of the Lender Group shall have received a certificate of an Authorized Signatory so stating.
(d) The Administrative Agent shall have received a flow of funds report in form and substance reasonably acceptable to it dated as of the Agreement Date and executed by the Administrative Borrower Parties so stating;which report shall include a statement of all sources and uses of funds on the Agreement Date.
(e) The Administrative Agent shall have received, as applicable, and reviewed to its satisfaction the Borrowers' accounting and computer systems, pension agreements and obligations, union contracts negotiated in the preceding twelve (12) month period and customer profitability reports.
(f) The Administrative Agent shall have received and reviewed to its satisfaction, all License Agreements.
(g) The Administrative Agent shall have reviewed to its satisfaction the structure, terms and conditions of the Acquisition.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Bank to issue the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Lender Group:
(i) This Agreement duly executed Agreement,by the Borrower, the Guarantors, the Lenders, and the Administrative Agent;
(ii) The Fee Letter Any Revolving Loan Notes requested by any Lender duly executed by Borrowers,the Borrower;
(iii) The joinder to ABL/Term Intercreditor Agreement duly executed by the Administrative Agent;
(iv) The Security Agreement duly executed by each Borrower Credit Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,;
(v) The Affinity Pledge Agreement A Perfection Certificate with respect to the Credit Parties duly executed by AGI,such Credit Party;
(vi) The A Borrowing Base Certificate duly executed Blocked Account Agreements required by Section 6.15,the Borrower;
(vii) The legal opinions of Xxxxxx, Halter & Xxxxxxxx LLP, counsel to the Credit Parties, and Xxxxxx, P.A. and Xxxxxx Xxxxxxx Xxxxxx, counsel to the Borrower Credit Parties, in each case addressed to the Lender Group,, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including, without limitation, the Term Loan Facility Credit Agreement with respect to the Term Loan Facility), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(viii) The duly executed Request for Advance issuance of Letters of Credit for the initial Advance Letters of Credit to be issued on the Loans,Closing Date;
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary an Authorized Signatory of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agenteach Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include include, without limitation, the following: (A) a copy of the Certificate certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Lawsbylaws, operating agreement, partnership agreement agreement, limited liability company agreement, or operating agreement similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partnerincluding, members or managerwithout limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowersthe Borrower, authorizing the borrowings hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Person does businessis organized and, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Material Adverse Effect, foreign qualifications in those jurisdictions in which such Person,Person is required to be qualified to do business;
(xiiix) A Solvency Certificate certificate executed by an Authorized Signatory the chief financial officer of the Camping World Borrower regarding the solvency and financial condition of the Borrower Credit Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,;
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvixi) Certificates of insurance insurance, additional insured endorsements, and lender’s loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Credit Parties, in each case, meeting the requirements of Section 6.5,6.8;
(xviixii) Pay-off or release lettersUCC, termination statementsLien, canceled mortgages and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,Liens permitted under Section 7.2);
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xxxiii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xxixiv) A flow certificate signed by an Authorized Signatory of funds report which shall include a statement the Borrower certifying that each of all sources the applicable conditions set forth in Section 4.2 have been satisfied;
(xv) A payoff letter, in form and uses of funds substance reasonably satisfactory to the Administrative Agent, duly executed by each lender holding Indebtedness to be refinanced on the Agreement Date,, together with all releases, terminations, or other documents reasonably required by the Administrative Agent to evidence the payoff of such Indebtedness;
(xxiixvi) The duly executed Letter after giving effect to the Transactions, no Advances shall be outstanding;
(xvii) [reserved];
(xviii) Evidence that the Borrower has obtained (or will obtain substantially concurrently with the effectiveness of Credit Reimbursement this Agreement, ) the 2028 Notes in the aggregate principal amount of $300,000,000 on terms and reasonably acceptable to the Administrative Agent; and
(xxiiixix) All such certified final copies of the 2028 Note Indenture and the other primary documents as related thereto and evidence that all of the Administrative Agent may reasonably requestconditions precedent to the initial borrowing under the 2028 Notes (in each case, certified by an appropriate governmental official other than the effectiveness of this Agreement) shall be satisfied or an Authorized Signatory if so requested;waived substantially concurrently with the effectiveness of this Agreement.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them be satisfied that no change in the business, assetscondition (financial or otherwise), management, results of operations, financial conditionliabilities (contingent or otherwise), income or prospects properties of the Borrower Parties and its Restricted Subsidiaries (taken as a whole) shall have occurred since December 31, 20082018, which change has had or could would be reasonably be expected to have a Materially Material Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;.
(c) The Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.4(c), (ii) the consolidated financial statements of the Borrower and its Subsidiaries for the most recent fiscal quarter ending at least 45 days prior to the Agreement Date, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending December 31, 2024, prepared on an annual basis for each fiscal year (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(d) The Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrower certifying (i) that all Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, correct, and complete copies of all such Necessary Authorizations.
(e) The Administrative Agent shall have received (i) all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws no later than fifteen (15) Business Days prior to the Agreement Date and (ii) at least five days prior to the Agreement Date, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, the Borrower must deliver a Beneficial Ownership Certification in relation to the Borrower.
Appears in 1 contract
Samples: Credit Agreement (Installed Building Products, Inc.)
Conditions Precedent to Initial Advance. The obligations of Lenders’ obligation to disburse the Lenders to undertake the Revolving Loan Commitment and to make the initial Initial Advance hereunder, and the obligation of the Issuing Bank to issue the initial Letter of Credit hereunder, are shall be subject to the prior fulfillment satisfaction of each of the following conditionsconditions precedent:
(a) The Administrative Agent shall have received each all of the followingLoan Documents, the Other Related Documents and all other documents, instruments, policies, and forms of evidence or other materials required by Administrative Agent under the terms of this Agreement or any of the other Loan Documents, all in form and substance acceptable to Administrative Agent.
(b) Administrative Agent shall have received a Title Policy (or an irrevocable commitment to issue a Title Policy) with respect to each Property.
(c) Administrative Agent shall have received and approved, with respect to each Property, in form and substance satisfactory to the Lender Group:
Administrative Agent (i) This duly executed Agreement,
an environmental questionnaire, a Phase I environmental site assessment and any further environmental site assessments requested by Administrative Agent, with respect to the presence, if any, of Hazardous Materials, (ii) The Fee Letter duly executed by Borrowers,
an Appraisal, (iii) The Security Agreement duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the extent required by Administrative Agent pursuant Agent, reports with respect to the Security Agreementcondition of such Property, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
a current Sxxxx Travel Research STAR Report and (v) The Affinity Pledge Agreement duly executed by AGI,operating statements for each month of the current year (through October, 2004) and for such prior years as Administrative Agent may require.
(vid) The duly executed Blocked Account Agreements required by Section 6.15,In Administrative Agent’s reasonable opinion, there has been no material adverse change in (i) the condition of the Properties or (ii) the business carried on at the Properties since August 31, 2004.
(viie) The Borrower shall have provided, at Borrower’s expense, an opinion of legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance content satisfactory to Administrative Agent to the Administrative Agenteffect that: (i) upon due authorization, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements execution and recordation or filing as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (or, may be specified in the case of a Person that is a partnershipopinion, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of the Loan Documents and Other Related Documents shall be legal, valid and binding instruments, enforceable against the Bank Products Documents and, Loan Parties party thereto in accordance with respect to Borrowers, authorizing the borrowings hereunder, their respective terms; (D) certificates of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xivii) the financial statements Loan Parties are duly formed and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect have all requisite authority to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of enter into the Loan Documents and the due diligence relating thereto to be paid on the Agreement DateOther Related Documents; and (iii) such other matters, including fees and expenses of counsel incident to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreementtransactions contemplated hereby, and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(bf) The Lender Group Borrower shall have received evidence satisfactory paid all mortgage, intangible and other similar taxes as are required in connection with recording of the Deeds of Trust. To the extent that applicable law limits the amount secured by a Deed of Trust to them that no change the amounts with respect to which such tax is paid, such tax shall be paid with respect to not less than the fair market value of the applicable Property (as reflected in the business, assets, management, operations, financial condition, income Appraisal provided for in Section 3.1(c)) or prospects such lesser amount as Administrative Agent may approve but in no event less than 105% of the Allocated Loan Amount.
(g) Borrower Parties and Guarantor shall have occurred since December 31satisfied such other conditions as Administrative Agent shall require. Notwithstanding the foregoing, 2008, which change has had or could reasonably be expected if all conditions to have a Materially Adverse Effect, the Initial Advance (other than (i) the delivery of satisfactory estoppel certificates from the lessor under the Sugar Land Lease and from the Lender Group shall have received a certificate of an Authorized Signatory condominium associations for the condominium developments that include the Sugar Land Property and (ii) the delivery of the Borrower Parties so stating;documents with respect to the San Antonio Property identified in Exhibit K) have been satisfied, the Initial Advance shall be made, subject to the limitations on Loan Availability.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Bank pursuant to issue the initial Letter of Credit hereunder, are this Agreement is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) each Co-Agent shall have received, on or before the date of such initial Advance, the following, each (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to such Co-Agent:
(i) The Sale Agreements, duly executed by the parties thereto, together with bills of sale with respect to the Related Equipment, duly executed by the Originator in favor of LLR LLC;
(ii) A certificate of the Secretary or Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by it hereunder (on which certificate the Co-Agents and the Lenders may conclusively rely until such time as each of the Co-Agents shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (a)(ii));
(iii) The Organic Documents of each Loan Party, duly certified by the Secretary of State of such Loan Party's state of organization or by the Secretary or an Assistant Secretary of such Loan Party, as of a recent date acceptable to each of the Co-Agents;
(iv) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of organization of such Loan Party and the state where such Loan Party's principal place of business is located;
(v) Signed copies of (A) proper financing statements (Form UCC-1), in such form as the Administrative Agent may reasonably request, naming (1) the Originator as the debtor and seller of its Receivables and Related Assets, LLR LLC as the secured party and purchaser thereof and the Borrower, as assignee, together with a financing statement assignment (Form UCC-3) naming the Administrative Agent, for the benefit of the Secured Parties, as assignee, (2) LLR LLC as the debtor and seller of the Receivables and Related Assets (other than Related Equipment), the Borrower, as the secured party and purchaser thereof and the Administrative Agent, for the benefit of the Secured Parties, as assignee, and (3) LLR LLC as the debtor and pledgor of the Security Agreement Collateral, and the Administrative Agent, for the benefit of the Secured Parties, as secured party, and (B) such other instruments or documents as may be necessary or, in the opinion of the Administrative Agent, desirable, under the UCC or any comparable law of all appropriate jurisdictions to perfect the sales of the Receivables and Related Assets under the Sale Agreements and the Administrative Agent's security interests in the Collateral;
(vi) Search reports provided in writing to the Administrative Agent, on behalf of the Secured Parties, (A) listing all effective financing statements that name the Originator, the Borrower or LLR LLC as debtor and that are filed in the jurisdictions in which filings were made pursuant to subsection (v) above and in such other jurisdictions that the Administrative Agent shall have received each reasonably request, together with copies of such financing statements (none of which (other than any of the followingfinancing statements described in subsection (v) above) shall cover any Receivables or Related Assets), and (B) listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (A) above in the jurisdictions described therein and showing no such Liens;
(vii) Evidence that the Initial Seller Note referenced in the Sale Agreement (Step 2) has been duly executed and delivered by the Borrower and that the Initial Seller Note referenced in the Sale Agreement (Step 1) has been duly executed and delivered by LLR LLC;
(viii) Favorable opinions of King & Spalding, counsel to the Loan Parties, in substantially the form of Exhibit 5.1(a)(viii);
(ix) A favorable opinion of King & Spalding, counsel to the Loan Parties, as to:
(A) the existence of a "true sale" of the Receivables from the Originator to LLR LLC under the Sale Agreement (Step 1);
(B) the existence of a "true sale" of the Receivables from LLR LLC to the Borrower under the Sale Agreement (Step 2); and
(C) the inapplicability of the doctrine of substantive consolidation to (1) the Borrower with the Originator, or (2) LLR LLC with the Originator, in each case in connection with any bankruptcy proceeding involving any of the foregoing;
(x) A pro forma Settlement Report, prepared as of the Cut-Off Date of April 30, 2000;
(xi) A report in form and substance satisfactory to the Co-Agents from the Initial Due Diligence Auditor as to a pre-closing due diligence audit by the Initial Due Diligence Auditor;
(xii) Each of the Liquidity Agreements, in form and substance satisfactory to the Lender Group:
(i) This duly executed Agreement,
(ii) The Fee Letter applicable Co-Agent, duly executed by Borrowers,the parties thereto;
(iiixiii) Lock-Box Agreements with respect to each Lock-Box Account, duly executed by the parties thereto;
(xiv) The Secured Guaranty, duly executed by the parties thereto;
(xv) The Security Agreement (Lanixx Xxxse Receivables LLC), duly executed by each Borrower Party, together with Uniform Commercial Code financing statements related the parties thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security ;
(xvi) The Intercreditor Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,the parties thereto;
(vxvii) The Affinity Pledge Agreement Performance Guaranty, duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agentparties thereto;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xiixviii) With respect to each Borrower Party Lanixx, x consolidated balance sheet, income statement and AGIstatement of shareholders' equity as at December 31, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents 1999 and, with respect to Borrowersthe Borrower, authorizing a pro forma balance sheet as at the borrowings hereunder, (D) certificates date of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and this Agreement after giving prospective effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year transactions contemplated to occur on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect such date pursuant to the Borrower Parties Transaction Documents and certified copies of all insurance policies the initial Advance hereunder, each of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection foregoing together with the removal of any Liens (other than Permitted Liens) against the assets a certification of the Borrower Parties, chief financial officer or treasurer in the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,form attached hereto as Exhibit 5.1(a)(xx);
(xix) Evidence satisfactory to The Fee Letters, duly executed by the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,parties thereto;
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates A certificate of the Administrative Agentchief executive officer, and the Lenders in connection with the execution and delivery president, vice president-finance or secretary of each of the Loan Documents Parties certifying that as of the date of the initial Advance, no Liquidation Event or Unmatured Liquidation Event has occurred and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,is continuing;
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on The Hedging Agreements, duly executed by the Agreement Date,parties thereto;
(xxii) The Excess Cash Flow Participation Agreement, duly executed Letter of Credit Reimbursement Agreement, by Lanixx xxx Lanixx Xxxse Participation Corporation; and
(xxiii) All such Such other agreements, instruments, certificates, opinions and other documents as either of the Administrative Agent Co-Agents may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group shall Lanixx xxxll have received evidence satisfactory paid any and all fees required pursuant to them that no change in the business, assets, management, operations, financial condition, income Fee Letters on or prospects prior to the date of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effect, and the Lender Group shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;initial Advance.
Appears in 1 contract
Samples: Credit and Security Agreement (Lanier Worldwide Inc)
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitment and Lender to make the initial Advance hereunder, and the obligation of the Issuing Bank to issue the initial Letter of Credit hereunder, are is subject to the prior fulfillment of each satisfaction of the following conditionsconditions precedent:
(a) The Administrative Agent Lender shall have received each of the followingfollowing documents, duly executed where applicable, each dated on or prior to the Closing Date, in each case, in form and substance reasonably satisfactory to the Lender GroupLender:
(i) This duly executed Agreement,counterparts of the Margin Loan Documentation and all documents contemplated thereby, including any UCC-1 financing statement(s);
(ii) The Fee Letter duly executed by Borrowers,
(iii) The Security Agreement duly executed by a certificate of each Borrower Loan Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly Closing Date and executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary an authorized signatory of such Person (or, in the case of a Person that is a partnership, the Loan Party’s general partner of such Person or, in the case of a Person that is a limited liability company, the members or managermanaging member, as appropriateapplicable, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of certify the resolutions of such Person (or it its general partner, members or manager, as applicable) other body authorizing the execution, delivery and performance by such Person of the Margin Loan Documents and the Bank Products Documents and, with respect Documentation to Borrowers, authorizing the borrowings hereunderwhich it is a party, (DB) certificates identify by name and title and bear the signatures of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees the Responsible Officers and any other officers of such PersonLoan Party authorized to sign the Margin Loan Documentation to which it is a party, and (FC) copies attach the Organization Documents of all shareholders such Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party, and, if available, a long form good standing certificate for such Loan Party from its jurisdiction of organization;
(iii) [Reserved];
(iv) a favorable opinion of (i) special New York counsel to each Loan Party and (ii) Anguilla counsel to each Loan Party, in the case of each clause (i) and (ii), addressed to Lender and in form and substance reasonably satisfactory to it;
(v) the results of a recent lien search in the jurisdiction where Borrower is located within the meaning of the UCC, and such search shall reveal no liens on any of the assets of Borrower except for liens permitted by Section 6.02 or share purchase agreements relating discharged on or prior to the Equity Interests of such Person,Closing Date pursuant to a pay-off letter or other documentation satisfactory to Lender.
(xiiivi) A Solvency Certificate FRB Form U-1, the portion of which is to be completed by the Borrower shall be completed to satisfaction of Lender and duly executed by an Authorized Signatory Borrower;
(A) audited annual consolidated financial statements of the Camping World regarding Borrower from December 31, 2013 and (B) unaudited interim consolidated financial statements of the solvency Borrower for the fiscal quarter ended June 30, 2014, and such financial statements shall not, in the reasonable judgment of Lender, reflect any material adverse change in the consolidated financial condition of the Borrower Parties, after as reflected in the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the audited financial statements and balance sheets described referred to in Section 5.1(kclause (A) above (the “Borrower Financial Statements”),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, ; and
(xxiiiviii) All such other certificates or documents as the Administrative Agent Lender reasonably may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;require.
(b) [Reserved].
(c) The Lender Group shall have received evidence satisfactory to them that no change in the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change Collateral Account has had or could reasonably be expected to have a Materially Adverse Effectbeen established by Borrower, and the Lender Group Initial Underlying Equity shall have received a certificate of an Authorized Signatory of been credited to the Borrower Parties so stating;Collateral Account free from all Transfer Restrictions (other than Existing Transfer Restrictions, Permitted Agreements and Trading Policies) by book-entry transfer through DTC, as depositary.
(d) All documented fees required to be paid under the Margin Loan Documentation on or before the Closing Date, including counsel fees invoiced prior to the Closing Date, shall have been paid.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Bank to issue the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditionsconditions on or before April 13, 2017:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Lender Group:
(i) This Agreement duly executed Agreement,by the Borrower, the Guarantors, the Lenders, and the Administrative Agent;
(ii) The Fee Letter Any Revolving Loan Notes requested by any Lender duly executed by Borrowers,the Borrower;
(iii) The ABL/Term Intercreditor Agreement duly executed by the Borrower, the Administrative Agent, and the Term Loan Facility Administrative Agent;
(iv) The Security Agreement duly executed by each Borrower Credit Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,;
(v) The Affinity Pledge Agreement An Information and Collateral Disclosure Certificate with respect to the Credit Parties duly executed by AGI,such Credit Party;
(vi) The A Borrowing Base Certificate duly executed Blocked Account Agreements required by Section 6.15,the Borrower;
(vii) The legal opinions of Xxxxxx, Halter & Xxxxxxxx LLP, counsel to the Credit Parties, and Xxxxxx, P.A. and Xxxxxx Xxxxxxx Xxxxxx, counsel to the Borrower Credit Parties, in each case addressed to the Lender Group,, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including, without limitation, the Term Loan Facility Credit Agreement with respect to the Term Loan Facility), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(viii) The duly executed Request for Advance for the initial Advance of the Loans,, if any, with disbursement instructions attached thereto;
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary an Authorized Signatory of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agenteach Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include include, without limitation, the following: (A) a copy of the Certificate certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Lawsbylaws, operating agreement, partnership agreement agreement, limited liability company agreement, or operating agreement similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partnerincluding, members or managerwithout limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowersthe Borrower, authorizing the borrowings hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Person does businessis organized and, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Material Adverse Effect, foreign qualifications in those jurisdictions in which such Person,Person is required to be qualified to do business;
(xiiix) A Solvency Certificate certificate executed by an Authorized Signatory the chief financial officer of the Camping World Borrower regarding the solvency and financial condition of the Borrower Credit Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,;
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvixi) Certificates of insurance insurance, additional insured endorsements, and lender’s loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Credit Parties, in each case, meeting the requirements of Section 6.5,6.8;
(xviixii) Pay-off or release lettersUCC, termination statementsLien, canceled mortgages and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,Liens permitted under Section 7.2);
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xxxiii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xxixiv) A flow certificate signed by an Authorized Signatory of funds report which shall include a statement the Borrower certifying that each of all sources the applicable conditions set forth in Section 4.2 have been satisfied;
(xv) A payoff letter, in form and uses of funds substance reasonably satisfactory to the Administrative Agent, duly executed by each lender holding Indebtedness to be refinanced on the Agreement Date,, together with all releases, terminations, or other documents reasonably required by the Administrative Agent to evidence the payoff of such Indebtedness;
(xxiixvi) The duly executed Letter Evidence that the Borrower has obtained the Term Loan Facility in an aggregate principal amount of Credit Reimbursement Agreement, at least $250,000,000 on terms and conditions reasonably acceptable to the Left Lead Arranger; and
(xxiiixvii) All such (A) certified final copies of the Term Loan Facility Credit Agreement and the other documents as primary Term Loan Facility Documentation and (B) evidence that all of the Administrative Agent may reasonably requestconditions precedent to the initial borrowing under the Term Loan Facility Documentation (in each case, certified by an appropriate governmental official other than the effectiveness of this Agreement) shall be satisfied or an Authorized Signatory if so requested;waived substantially concurrently with the effectiveness of this Agreement.
(b) The Lender Group Administrative Agent shall have received evidence satisfactory to them be satisfied that no change in the business, assetscondition (financial or otherwise), management, results of operations, financial conditionliabilities (contingent or otherwise), income or prospects properties of the Borrower Parties and its Restricted Subsidiaries (taken as a whole) shall have occurred since December 31, 20082016, which change has had or could would be reasonably be expected to have a Materially Material Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Borrower Parties so stating;.
(c) The Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.4(c), (ii) the consolidated financial statements of the Borrower and its Subsidiaries for the most recent fiscal quarter ending at least 45 days prior to the Agreement Date, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending December 31, 2021, prepared on an annual basis for each fiscal year (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(d) The Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrower certifying (i) that all Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, correct, and complete copies of all such Necessary Authorizations.
(e) The Administrative Agent shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws no later than five (5) Business Days prior to the Agreement Date.
Appears in 1 contract
Samples: Credit Agreement (Installed Building Products, Inc.)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Bank to issue the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditionsconditions on or before December 31, 2013:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Lender Group:
(i) This Agreement duly executed Agreement,by the Borrowers, the Guarantors, the Lenders, and the Administrative Agent;
(ii) The Fee Letter Any Revolving Loan Notes requested by any Lender duly executed by the Borrowers,;
(iii) The Security Agreement duly executed by each Borrower Credit Party, together with Uniform Commercial Code financing statements related thereto;
(iv) All other Security Documents duly executed by each Credit Party party thereto;
(v) A Controlled Account Agreement with respect to each deposit account set forth on Schedule 6.15 (other than an Excluded Account) maintained by any Credit Party at a depository institution, certificates representing all of duly executed by such Credit Party, the certificated Equity Interests of the pledged SubsidiariesAdministrative Agent, and all other original Collateral to be delivered such depository institution, and evidence reasonably satisfactory to the Administrative Agent pursuant to that the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed Credit Parties have established the cash management system required by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,Section 6.15;
(vi) The An Information and Collateral Disclosure Certificate with respect to the Credit Parties duly executed Blocked Account Agreements required by Section 6.15,such Credit Party;
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx XxxxxxXxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Borrower Credit Parties, and local counsel for each jurisdiction in which a Credit Party is organized (to the extent the foregoing opinions do not opine as to the law of such jurisdictions), in each case addressed to the Lender Group,, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including without limitation the Senior Subordinated Note Indenture), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(viii) The duly executed Request for Advance for the initial Advance of the Loans,, with disbursement instructions attached thereto;
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary an Authorized Signatory of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agenteach Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include include, without limitation, the following: (A) a copy of the Certificate certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Lawsbylaws, operating agreement, partnership agreement agreement, limited liability company agreement, or operating agreement similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partnerincluding, members or managerwithout limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Person does businessis organized and, (E) copies of employment contracts for key management level employees of such Person, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Person,Person is required to be qualified to do business;
(xiiix) A Solvency Certificate solvency certificate executed by an Authorized Signatory the chief financial officer of the Camping World Parent regarding the solvency and financial condition of the Borrower Credit Parties, after together with a pro forma balance sheet giving effect to the incurrence of the Initial initial Advance and, if any, and the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,hereunder;
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvixi) Certificates of insurance insurance, additional insured endorsements, and lender’s loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Credit Parties, in each case, meeting the requirements of Section 6.5,;
(xviixii) Pay-off or release UCC, PPSA, Lien, and Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent that there are not Liens upon the Collateral (other than Permitted Liens);
(xiii) Payoff letters, termination statements, canceled mortgages and the like (including, without limitation, cancellation of all existing letters of credit) required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, and the repayment of Funded Debt, or debt to be repaid on the release of a Borrower Party from a Guaranty,Agreement Date;
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xixxiv) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory including, without limitation, through (1) the filing of UCC financing statements, and (2) delivery of all possessory Collateral to the Administrative Agent that (x) any Liens granted pursuant Lender required to be delivered in accordance with the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,Security Documents;
(xxxv) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xxixvi) Each Third Party Agreement required by Section 6.10;
(xvii) A flow certificate signed by an Authorized Signatory of funds report which shall include a statement the Borrowers certifying that each of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, applicable conditions set forth in Section 4.2 have been satisfied; and
(xxiiixviii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group Administrative Agent shall have received evidence completed their financial, collateral, regulatory, and legal due diligence of Credit Parties, and all credit investigations and background checks, and the results, form, and substance of each of the foregoing items shall be satisfactory to them Administrative Agent.
(c) The Administrative Agent shall be satisfied that no change in the business, assetscondition (financial or otherwise), management, results of operations, financial conditionliabilities (contingent or otherwise), income or prospects properties of the Borrower Parties Parent and its Restricted Subsidiaries (taken as a whole) shall have occurred since December 31June 29, 20082013, which change has had or could would be reasonably be expected to have a Materially Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Borrower Parties Borrowers so stating;.
(d) The Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.1(k), (ii) the unaudited balance sheet and statement of income of the Parent and its Restricted Subsidiaries for the fiscal year ended September 29, 2013 and the fiscal month ended on or about October 31, 2013, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 2018, prepared on a month by month basis for the fiscal year ending September 27, 2014, and prepared on an annual basis for each fiscal year thereafter (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(e) The Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrowers certifying (i) that all Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, correct, and complete copies of all such Necessary Authorizations.
(f) The Administrative Agent shall have completed to its satisfaction all field exams and appraisals required by the Administrative Agent, all of which must be in form and substance reasonably satisfactory to the Administrative Agent.
(g) The Administrative Agent shall have received a Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent which calculates the Borrowing Base as of August 31, 2013.
(h) The Administrative Agent shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and anti-money laundering laws no later than five (5) Business Days prior to the Agreement Date.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Bank pursuant to issue the initial Letter of Credit hereunder, are this Agreement is subject to the prior fulfillment of each of the following conditionsconditions precedent:
(a) The Administrative Agent the Administrator, on behalf of the Secured Parties, shall have received received, on or before the date of such initial Advance, the following each of the following, (unless otherwise indicated) dated such date and in form and substance reasonably satisfactory to the Lender GroupAdministrator:
(i) This The Sale Agreement (Step 3), duly executed Agreement,by the parties thereto;
(ii) The Fee Letter duly executed A certificate of the Assistant Secretary of each Loan Party certifying the names and true signatures of the officers authorized on its behalf to sign this Agreement and the other Transaction Documents to be delivered by Borrowers,it hereunder (on which certificate the Administrator and the Lender may conclusively rely until such time as the Administrator, on behalf of the Secured Parties, shall receive from such Loan Party a revised certificate meeting the requirements of this subsection (a)(ii));
(iii) The Security Agreement duly executed by Articles or Certificate of Formation of each Borrower Loan Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of such Loan Party’s state of formation, as of a recent date acceptable to Administrator, on behalf of the Secured Parties, in each case together with a copy of the by-laws or operating agreement, as applicable, of such Loan Party, duly certified by the Assistant Secretary of such Loan Party;
(iv) Copies of good standing certificates for each Loan Party, issued by the Secretaries of State of the state of formation of such PersonLoan Party and the state where such Loan Party’s incorporation or formationprincipal place of business is located;
(v) Signed copies of (i) proper financing statements (Form UCC-1), in such form as the Administrator may reasonably request, naming the (A) applicable Originator as the debtor and seller of its Receivables and Related Assets, the Xxxxxx Receivables as the secured party and purchaser thereof and the Administrator, for the benefit of the Secured Parties, as assignee, (B) a true, complete Xxxxxx Receivables as the debtor and correct copy seller of the By-LawsReceivables and Related Assets, partnership agreement or operating agreement LTR LLC as the secured party and purchaser thereof and the Administrator, for the benefit of such Person, the Secured Parties as Assignee and (C) a true, complete LTR LLC as the debtor and correct copy seller of the resolutions of such Person (or it general partnerReceivables and Related Assets, members or manager, the Borrower as applicable) authorizing the execution, delivery secured party and performance by such Person purchaser thereof and the Administrator for the benefit of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings hereunder, (D) certificates of good standing from each jurisdiction in which such Person does business, (E) copies of employment contracts for key management level employees of such PersonSecured Parties as Assignee, and (Fii) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
financing statements (xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(kForm UCC-1),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents form as the Administrative Agent Administrator may reasonably request, certified by an naming the Borrower as the debtor and the Administrator, for the Secured Parties, as the secured party, or other, similar instruments or documents, as may be necessary or, in the opinion of the Administrator desirable under the UCC or any comparable law of all appropriate governmental official or an Authorized Signatory if so requestedjurisdictions to perfect the sales of the Receivables and Related Assets under the Sale Agreements and the Administrator’s security interest in the Collateral;
(bvi) The Lender Group shall have received evidence satisfactory Search reports provided in writing to them the Administrator, on behalf of the Secured Parties, (i) listing all effective financing statements that no change name any Originator, the Borrower, or Xxxxxx Collections as debtor and that are filed in the businessjurisdictions in which filings were made pursuant to subsection (v) above and in such other jurisdictions that the Administrator shall reasonably request, assets, management, operations, financial condition, income or prospects together with copies of such financing statements (none of which (other than any of the Borrower Parties financing statements described in subsection (v) above) shall have occurred since December 31, 2008, which change has had cover any Receivables or could reasonably be expected to have a Materially Adverse EffectRelated Assets, and (ii) listing all tax liens and judgment liens (if any) filed against any debtor referred to in clause (i) above in the Lender Group shall have received jurisdictions described therein and showing no such Liens;
(vii) Evidence that the Initial Seller Note has been duly executed and delivered by the Borrower;
(viii) Favorable opinions of King & Spalding and Morris, James, Hitchens & Xxxxxxxx LLP, counsel to the Loan Parties, in substantially the form of Exhibit 5.1(a)(viii);
(ix) A favorable opinion of King & Spalding, counsel to the Loan Parties, as to:
(x) the existence of a certificate of an Authorized Signatory “true sale” of the Borrower Parties so statingReceivables from the Originators to the Xxxxxx Receivables under the Sale Agreement (Step 1);
Appears in 1 contract
Samples: Credit and Security Agreement (Lanier Worldwide Inc)
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation of the Issuing Bank to issue (or arrange for the issuance of) any initial Letter of Credit hereunder, are subject to the prior or concurrent fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Lender GroupAdministrative Agent:
(i) This duly executed Agreement,;
(ii) The Fee Letter A duly executed by Borrowers,Revolving Loan Note to the order of each Lender requesting a promissory note in the amount of such Lender’s Revolving Commitment Ratio of the Revolving Loan Commitment;
(iii) The Security Agreement duly executed by each the Borrower PartyParties, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Collateral Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,;
(iv) The Holdings Pledge Agreement duly executed by Holdings, together with certificates representing all of the certificated Equity Interests of Zayo and transfer powers with respect thereto duly endorsed in blank;
(v) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,each Borrower Party;
(vi) The duly executed Blocked Account Agreements required by Section 6.15,6.13;
(vii) The duly executed Intercreditor Agreement;
(viii) The Fee Letter duly executed by the Borrowers;
(ix) The legal opinions opinion of Xxxxxx, Xxxxxx Xxxx & Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx XxxxxxLLP, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,;
(x) Duly executed Collateral Access Agreements as required by The legal opinion of Xxxxxxx XxXxxxxxx LLP, regulatory counsel to the Administrative AgentBorrower Parties, addressed to the Lender Group;
(xi) Duly executed Credit Card Processor Agreements as required by The legal opinion of Xxxxx Beer, in-house counsel to the Administrative Agent,Borrower Parties, addressed to the Lender Group;
(xii) The legal opinion of Xxxxxxx Xxxxx Xxxxx Xxxxxxxx LLP, Tennessee regulatory counsel to Zayo Bandwidth Tennessee, LLC, addressed to the Lender Group;
(xiii) The applicable Borrower Party shall use commercially reasonable efforts to obtain, with respect to the following locations, duly executed Collateral Access Agreements: (A) 00 Xxxxxx Xxxxxx, New York, New York, (B) 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, (X) 000 Xxxxxx Xxxxxx, Newark, New Jersey, (D) Building Two at 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxx, (E) 000 00xx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx, (F) 0000 Xxxxxxx Xxxxxx Drive, Memphis, Tennessee, and (G) all locations of any Borrower Party in Pennsylvania that are leased by any Borrower Party from PPL Electric Utilities Corporation;
(xiv) With respect to each Borrower Party and AGIHoldings, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate of Incorporation or Formation of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings hereunder, (D) certificates of good standing from such Person’s jurisdiction of formation and each other jurisdiction in which such Person does business, (E) copies of all employment contracts for key management level employees of such Personemployees, if any, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),;
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,;
(xviixvi) Pay-off or and/or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) ), including, without limitation, all tax liens, against the assets of the Borrower Parties, the repayment of Funded Debt, Debt or the release of a Borrower Party from a Guaranty,;
(xviiixvii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,;
(xixxviii) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,;
(xxxix) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of this Agreement that are invoiced on or prior to the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datedate hereof, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xx) A Solvency Certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of the Borrower Parties, after giving effect to the transactions contemplated herein including the initial Advance and, if any, the issuance of the initial Letter of Credit hereunder;
(xxi) A duly executed Request for Advance for the initial Advance of the Loans;
(xxii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date,;
(xxiixxiii) The duly executed Letter of Credit Reimbursement Agreement, Evidence that all applicable stamp tax or other tax related to the Loan Documents have been paid; and
(xxiiixxiv) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower stating that since September 30, 2009, no Materially Adverse Effect shall have occurred and be continuing.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), each in form and substance to the members of the Lender Group.
(d) The Lender Group shall have received evidence satisfactory to them that all Necessary Authorizations (including all PUC’s) are in full force and effect and are not subject to any pending or threatened reversal or cancellation, that no change in other consents or approvals are required and that no Default exists, after giving effect to the business, assets, management, operations, financial condition, income or prospects of the Borrower Parties shall have occurred since December 31, 2008, which change has had or could reasonably be expected to have a Materially Adverse Effectinitial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have completed such other business and legal due diligence with respect to the Borrowers and the results thereof shall be acceptable to the Administrative Agent, in its sole discretion.
(f) The Senior Note Indebtedness shall have been issued, the proceeds of the Senior Note Indebtedness shall have been received by the Borrowers and Agent shall have received a fully executed copy of the Indenture and each other Senior Note Document executed in connection therewith, accompanied by a certificate from an Authorized Signatory of the Administrative Borrower certifying that (i) each Senior Note Document is true and correct, (ii) each Senior Note Document is in full force and effect and (iii) all of the conditions to the closing of the transaction contemplated by the Senior Note Documents have been satisfied or waived.
(g) The Lender Group shall have received a certificate from an Authorized Signatory of the Administrative Borrower, in form and substance satisfactory to the Administrative Agent, demonstrating that the Borrowers and their Subsidiaries have Annualized EBITDA, as of December 31, 2009, of at least $70,000,000.
(h) The Lender Group shall have received evidence that the Required PUC Consent Applications set forth in Schedule 4.1(h) have been filed by the applicable Borrower Parties so stating;with the respective PUC.
(i) The Lender Group shall have received evidence satisfactory to them that each Borrower Party is in compliance with the USA Patriot Act.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations obligation of the Lenders to undertake the Revolving Loan Commitment and to make the initial Advance hereunder, and the obligation or of the Issuing Bank to issue the initial a Letter of Credit hereunder, are is subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance satisfactory to the Lender Group:
following (i) This duly executed Agreement,
(ii) The Fee Letter duly executed by Borrowers,
(iii) The Security Agreement duly executed by with sufficient copies for each Borrower Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx Xxxxxx, counsel to the Borrower Parties, addressed to the Lender Group,
(viii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agent;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such PersonLenders), in form and substance satisfactory to the Administrative Agent:
(i) the loan certificate of the Borrower, in substantially the form attached hereto as Exhibit L, including a certificate of incumbency with respect to each Authorized Signatory of such PersonSignatory, together with appropriate attachments which shall include without limitation, the followingfollowing items: (A) a copy of the Certificate certificate of Incorporation or Formation incorporation of such Person the Borrower, certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formationWashington, (B) and a true, complete and correct copy of the Byby-Lawslaws of the Borrower, partnership agreement (B) certificates of good standing for the Borrower issued by the Secretary of State or operating agreement of such Personsimilar state official for each state in which the Borrower is required to qualify or has qualified to do business, (C) a true, complete and correct copy of the appropriate authorizing resolutions of the Borrower, authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents to which it is a party, and (D) a true, complete and correct copy of any agreement in effect with respect to the voting rights, ownership interests, or management of the Borrower;
(ii) duly executed Notes (to the extent requested by any Lenders) and duly executed counterparts of this Agreement;
(iii) duly executed Borrower's Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank and appropriate acknowledgements by the pledged limited liability companies and pledged partnerships;
(iv) duly executed Security Agreement, together with proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement, covering the Collateral described in the Security Agreement;
(v) the Subsidiary Guaranty;
(vi) the Subsidiary Pledge Agreement, together with appropriate stock certificates and undated stock powers executed in blank;
(vii) duly executed Subsidiary Security Agreement, executed and delivered by each Restricted Subsidiary of the Borrower, together with proper financing statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Subsidiary Security Agreement, covering the Collateral described in the Subsidiary Security Agreement;
(viii) completed requests for information, dated on or before the Agreement Date listing all effective financing statements filed in the jurisdictions referred to in clauses (iv) and (vii) above that name the Borrower or any Restricted Subsidiary as debtor, together with copies of such Person other financing statements;
(ix) evidence that all other recordings and filings of or it with respect to each Security Document shall have been completed and that all other actions that the Administrative Agent may reasonably deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Documents shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent (including, without limitation, receipt of duly executed payoff letters, UCC-3 termination statements and landlords' and bailees' waiver and consent agreements) ;
(x) the Fee Letters;
(xi) copies of reasonably satisfactory insurance brokers' letters, binders or certificates covering the assets of the Borrower and its Restricted Subsidiaries, and otherwise meeting and covering the requirements of Section 5.5 hereof;
(xii) legal opinions of (A) Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP, general partnercounsel to the Borrower, members or manager(B) Xxxxxxx Xxxxx & Xxxxx LLP, Washington counsel to the Borrower and (C) Xxxxxxxx & Xxxxxxxx LLP, FCC counsel to the Borrower and its Subsidiaries; each as counsel to the Borrower and its Subsidiaries, addressed to each Lender and the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent and its special counsel, and dated as of the Agreement Date;
(xiii) duly executed Request for Advance and (if applicable) Notice of Issuance, which Request for Advance shall include calculations demonstrating, as applicableof the Agreement Date after giving effect to the borrowings hereunder on the Agreement Date, the Borrower's compliance with Section 2.1 and Section 7.8 hereof;
(xiv) authorizing duly executed Certificate of Financial Condition for the Borrower and its Subsidiaries on a consolidated basis, given by the chief financial officer of the Borrower which shall include a certification that no event has occurred which could reasonably be expected to have a Materially Adverse Effect since December 31, 2003;
(xv) any required FCC consents, Necessary Authorizations (except as may be referred to in any Schedules hereto), or other required consents to the closing of this Agreement or to the execution, delivery and performance by such Person of this Agreement and the other Loan Documents;
(xvi) a loan certificate from each Restricted Subsidiary of the Loan Documents and Borrower, in substantially the Bank Products Documents andform attached hereto as Exhibit M, with respect to Borrowerscorporations, authorizing Exhibit N, with respect to partnerships, and Exhibit O with respect to limited liability companies, including a certificate of incumbency with respect to each officer or partner authorized to execute Loan Documents on behalf of such Subsidiary, together with appropriate attachments which shall include, without limitation, the borrowings hereunderfollowing items: (A) a copy of the certificate or articles of incorporation of such Subsidiary or certificate of formation of such Subsidiary, as applicable, certified to be true, complete and correct by the Secretary of State from the jurisdiction of incorporation of such Subsidiary, (DB) certificates of good standing from for such Subsidiary issued by the Secretary of State or similar state official for each jurisdiction state in which such Person does Subsidiary is incorporated or required to qualify to do business, (EC) copies a true, complete and correct copy of employment contracts for key management level employees the By-Laws or partnership agreement, as applicable, of such PersonSubsidiary, and (FD) copies a true, complete and correct copy of all shareholders or share purchase agreements relating to the Equity Interests resolutions of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of Subsidiary authorizing it to execute, deliver and perform the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance Loan Documents to which it is a party; and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xvi) Certificates of insurance and loss payable endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,
(xvii) Pay-off or release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xx) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Date, including fees and expenses of counsel to the Administrative Agent,
(xxi) A flow of funds report which shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents as either the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group Administrative Agent shall have received evidence reasonably satisfactory to them it that no change in all Necessary Authorizations, including all necessary consents to the businessexecution, assets, management, operations, financial condition, income or prospects delivery and performance by the Borrower of this Agreement and the other Loan Documents to which it is a party and by the Restricted Subsidiaries of the Borrower Parties shall Loan Documents to which they are parties, have occurred since December 31been obtained or made, 2008, which change has had are in full force and effect and are not subject to any pending or could reasonably be expected to have a Materially Adverse Effectthreatened reversal or cancellation, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory so stating.
(c) The Administrative Agent and the Lenders shall have received (i) copies of the unaudited financial statements of the Borrower Parties so stating;and its Subsidiaries through the month most recently ended prior to the Agreement Date for which such statements are available (which shall reflect trailing 12-month EBITDA in amounts satisfactory to the Administrative Agent and the Syndication Agent), and (ii) an opening pro forma balance sheet of the Borrower and its Subsidiaries, as of the last day of the month most recently ended at least 30 days prior to the Agreement Date, giving effect to the initial funding of the Loans hereunder and the consummation of the other elements of the transactions contemplated hereby, together with seven-year projected financial statements of the Borrower and its Subsidiaries (consisting of balance sheets and statements of income and cash flows, prepared by the Borrower), on a quarterly basis through the first four complete fiscal quarters after the Agreement Date and thereafter on an annual basis, all of which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Syndication Agent.
(d) The Lenders, the Administrative Agent, and Shearman & Sterling LLP, special counsel to the Administrative Agent, shall receive payment of all fees and expenses due and payable on the Agreement Date in respect of the transactions contemplated hereby.
(e) The Administrative Agent and the Lenders shall have received evidence reasonably satisfactory to them that, after funding the initial Advance of the Loans, the Borrower shall have no outstanding Indebtedness for Money Borrowed other than Permitted Debt.
(f) The Administrative Agent and the Syndication Agent shall have received reasonably satisfactory evidence that the Loans have been rated "B-" or higher by S&P and "B2" or higher by Xxxxx'x, in each case with stable or positive outlook.
(g) The Administrative Agent shall have received reasonably satisfactory evidence of the payment in full of the Existing Loan Agreement and the termination and release of all Liens and guaranties in connection therewith.
Appears in 1 contract
Conditions Precedent to Initial Advance. The obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance Advances hereunder, and the obligation of the Issuing Bank to issue the any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Lender Group:
(i) This Agreement duly executed Agreement,by the Borrowers, the Guarantors, the Lenders, and the Administrative Agent;
(ii) The Fee Letter Any Revolving Loan Notes requested by any Lender duly executed by the Borrowers,;
(iii) The Security Reaffirmation Agreement duly executed by each Borrower Credit Party, together with Uniform Commercial Code financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,;
(iv) A Trademark Security Agreement An Information and Collateral Disclosure Certificate with respect to the Credit Parties duly executed by Borrowers,such Credit Party;
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,
(vii) The legal opinions of Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx XxxxxxXxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Borrower Credit Parties, and local counsel for each jurisdiction in which a Credit Party is organized (to the extent the foregoing opinions do not opine as to the law of such jurisdictions), in each case addressed to the Lender Group,, which opinions shall cover the transactions contemplated hereby and in the other Loan Documents and include, among other things, opinions as to corporate or limited liability company power and authority; due authorization; good standing or existence; no conflicts with organizational documents, laws, material agreements (including without limitation the Indenture with respect to the 2015 Notes and the 2017 Notes), and order and decrees; no liens triggered by execution and delivery of the Loan Documents; necessary consents; execution and delivery; enforceability; margin regulations; investment company act; and attachment and perfection of security interests;
(viiivi) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificate, in form and substance satisfactory to the Administrative Agent, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements as required by the Administrative Agentwith disbursement instructions attached thereto;
(xivii) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xii) With respect to each Borrower Party and AGI, a A loan certificate signed by the secretary or assistant secretary an Authorized Signatory of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agenteach Credit Party, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include include, without limitation, the following: (A) a copy of the Certificate certificate of Incorporation incorporation or Formation formation, articles of organization, or similar organizational document of such Person certified to be true, complete and correct by the Secretary of State of the State of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Lawsbylaws, operating agreement, partnership agreement agreement, limited liability company agreement, or operating agreement similar organizational document of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it general partnerincluding, members or managerwithout limitation, board resolutions and shareholder resolutions, as applicable) of such Person authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to the Borrowers, authorizing the borrowings hereunder, and (D) certificates of good standing standing, existence, or similar appellation from each jurisdiction in which such Person does is organized and, to the extent failure to be so qualified in any other jurisdiction could reasonably be expected to have a Materially Adverse Effect, foreign qualifications in those jurisdictions in which such Person is required to be qualified to do business; provided, that if a document referenced in clause (EA) copies of employment contracts for key management level employees or (B) was delivered in connection with the Existing Credit Agreement, then delivery of such Persondocument shall not be required so long as the applicable Credit Party delivers an officer’s certificate certifying that no changes have been made to such document, and (F) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,document remains in full force and effect;
(xiiiviii) A Solvency Certificate solvency certificate executed by an Authorized Signatory the chief financial officer of the Camping World Parent regarding the solvency and financial condition of the Borrower Credit Parties, after together with a pro forma balance sheet giving effect to the incurrence of the Initial initial Advance and, if any, and the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,hereunder;
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated financial statements, including the balance sheet and related statements of income and cash flow, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date on an annual basis,
(xviix) Certificates of insurance and loss payable endorsements insurance, with respect to the Borrower Credit Parties and certified copies of all insurance policies of the Borrower Parties(other than IMS Southern, LLC), in each case, meeting the requirements of Section 6.5,;
(xviix) Pay-off or release lettersUCC, termination statementsPPSA, canceled mortgages Lien, and the like required by the Intellectual Property searches, and all other searches and other evidence satisfactory to Administrative Agent in connection with that there are not Liens upon the removal of any Liens Collateral (other than Permitted Liens) against the assets of the Borrower Parties, the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,);
(xviii) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,
(xix) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,
(xxxi) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xxixii) A flow certificate signed by an Authorized Signatory of funds report which shall include a statement the Borrowers certifying that each of all sources and uses of funds on the Agreement Date,applicable conditions set forth in Section 4.2 have been satisfied;
(xxiixiii) The duly executed Letter All Real Estate Documents with respect to the parcels of Credit Reimbursement Agreement, Real Property listed on Schedule 1.1(b) to the extent that such Real Property is Eligible Real Estate; and
(xxiiixiv) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Administrative Agent and the Lenders agree that the Revolving Loan Commitment of each of the Lenders immediately prior to the effectiveness of this Agreement shall be reallocated among the Lenders such that, immediately after the effectiveness of this Agreement in accordance with its terms, the Revolving Loan Commitment of each Lender Group shall have received evidence satisfactory be as set forth on Schedule 1.1(a). In order to them effect such reallocations, assignments shall be deemed to be made among the Lenders in such amounts as may be necessary, and with the same force and effect as if such assignments were evidenced by the applicable Assignment and Acceptance (but without the payment of any related assignment fee), and no other documents or instruments shall be required to be executed in connection with such assignments (all of which such requirements are hereby waived). Further, to effect the foregoing, each Lender agrees to make cash settlements in respect of any outstanding Revolving Loans, either directly or through the Administrative Agent, as the Administrative Agent may direct or approve, such that after giving effect to this Agreement, each Lender holds Revolving Loans equal to its Pro Rata Share (based on the Revolving Loan Commitment of each Lender as set forth on Schedule 1.1(a)). To the extent the reallocation permitted pursuant to this Section 4.1(b) results in the prepayment of any Eurodollar Advance in whole or in part, the Lenders hereby agree to waive any reimbursement obligations of the Borrowers arising under Section 2.9 in connection therewith.
(c) The Administrative Agent shall be satisfied that no change in the business, assetscondition (financial or otherwise), management, results of operations, financial conditionliabilities (contingent or otherwise), income or prospects properties of the Borrower Parties Parent and its Restricted Subsidiaries (taken as a whole) shall have occurred since December 31September 29, 20082018, which change has had or could would be reasonably be expected to have a Materially Adverse Effect, and the Lender Group Administrative Agent shall have received a certificate of an Authorized Signatory of the Borrower Parties Borrowers so stating;.
(d) The Administrative Agent shall have received and be satisfied with (i) the financial statements (including balance sheets and related statements of income and retained earnings and related statements of cash flows) described in Section 5.1(k), (ii) the unaudited balance sheet of the Parent and its Restricted Subsidiaries for the fiscal quarter ended on June 29, 2019, and (iii) an annual budget for the Credit Parties and their Subsidiaries, including forecasts of the income statement, the balance sheet and a cash flow statement for each fiscal year through the fiscal year ending September 2024, prepared on a month by month basis from the Agreement Date through September 26, 2020, and prepared on an annual basis for each fiscal year thereafter (it being recognized by the Administrative Agent and the Lenders that the projections and forecasts provided by the Credit Parties should not be viewed as facts and that actual results during the period or periods covered by such projections and forecasts may differ from the projected or forecasted results).
(e) The Administrative Agent shall have received a certificate signed by an Authorized Signatory of the Borrowers certifying (i) that all Necessary Authorizations are in full force and effect, are not subject to any pending or threatened reversal or cancellation, and all applicable waiting periods have expired, and that there is no ongoing investigation or inquiry by any Governmental Authority regarding the Loans or any other transaction contemplated by the Loan Documents or the conduct of the businesses and the ownership (or lease) of the Properties of the Credit Parties and (ii) that attached thereto are true, correct, and complete copies of all such Necessary Authorizations.
(f) At least five (5) days prior to the date of this Agreement, the Administrative Agent shall have received all documentation and information required by any Governmental Authority under any applicable “know your customer” and Anti-Money Laundering Laws including the Patriot Act and, if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Borrower.
Appears in 1 contract
Conditions Precedent to Initial Advance. The effectiveness of this Agreement, the obligations of the Lenders to undertake the Revolving Loan Commitment Commitments and to make the initial Advance hereunder, and the obligation of the Issuing Bank to issue (or arrange for the issuance of) any initial Letter of Credit hereunder, are subject to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Lender Group:Group (and the delivery to the Administrative Agent of the duly executed and effective signature pages for a Lender shall be deemed conclusive evidence of such Lender’s satisfaction of the following conditions):
(i) This duly executed Agreement,Agreement and all other Loan Documents to be dated as of the Agreement Date;
(ii) The Fee Letter A duly executed by Borrowers,Revolving Loan Note to the order of each Lender requesting a Revolving Loan Note, in the amount of such Lender’s Commitment;
(iii) The Security Agreement duly executed by each the Borrower PartyParties, together with Uniform Commercial Code UCC financing statements related thereto, certificates representing all of the certificated Equity Interests of the pledged Subsidiaries, and all other original Collateral (if any) to be delivered to the Administrative Agent pursuant to the Security Agreement, and transfer powers with respect thereto duly endorsed in blank,;
(iv) A Trademark Security Agreement duly executed by Borrowers,
(v) The Affinity Pledge Agreement duly executed by AGI,
(vi) The duly executed Blocked Account Agreements required by Section 6.15,6.11;
(viiv) The legal opinions opinion of (i) Xxxxxx, Xxxxxxxx and Xxxxxx, P.A. and Xxxxxx XxxxxxXxxxx & Xxxxxxx LLP, counsel to the Borrower Parties, addressed to the Lender Group,
and (viiiii) The duly executed Request for Advance for the initial Advance of the Loans,
(ix) A duly executed Borrowing Base Certificatesuch other local counsel, in form and substance satisfactory to the Administrative Agentas applicable, dated the Agreement Date,
(x) Duly executed Collateral Access Agreements opinions as required may be requested by the Administrative Agent; provided, however, that such opinions may be allocated between outside counsel and in-house counsel in a manner acceptable to each of the Administrative Agent and the Borrower;
(xi) Duly executed Credit Card Processor Agreements as required by the Administrative Agent,
(xiivi) With respect to each Borrower Party and AGIParty, a loan certificate signed by the secretary or assistant secretary of such Person (or, in the case of a Person that is a partnership, the general partner of such Person or, in the case of a Person that is a limited liability company, the members or manager, as appropriate, of such Person), in form and substance satisfactory to the Administrative Agent, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with appropriate attachments which shall include the following: (A) a copy of the Certificate certificate of Incorporation incorporation or Formation formation of such Person certified to be true, complete and correct by the Secretary of State State, or the equivalent, of the State jurisdiction of such Person’s incorporation or formation, (B) a true, complete and correct copy of the By-Laws, partnership agreement or operating agreement of such Person, (C) a true, complete and correct copy of the resolutions of such Person (or it its general partner, members or manager, as applicable) authorizing the execution, delivery and performance by such Person of the Loan Documents and the Bank Products Documents and, with respect to Borrowers, authorizing the borrowings hereunder, and (D) certificates of good standing from such Person’s jurisdiction of formation, dated within 15 days of the Agreement Date, and each other jurisdiction in which such Person does business, dated within 30 days of the Agreement Date;
(Evii) copies Parent and its Subsidiaries (a) projected financial statements for the remainder of employment contracts for key management level employees fiscal year 2011, including its income statement, balance sheet, statement of such Personcash flows and Availability forecast, on a quarter by quarter basis, and (Fb) copies of all shareholders or share purchase agreements relating to the Equity Interests of such Person,
(xiii) A Solvency Certificate executed by an Authorized Signatory of the Camping World regarding the solvency and financial condition of the Borrower Parties, after the incurrence of the Initial Advance and, if any, the issuance of the initial Letter of Credit hereunder and after giving effect to the AGI Credit Documents,
(xiv) the financial statements and balance sheets described in Section 5.1(k),
(xv) Projected consolidated projected financial statements, including the income statement, balance sheet and related statements statement of income and cash flowflows, for Camping World and its Subsidiaries for the 2010 fiscal year on a month by month basis, and for each fiscal year thereafter until the Maturity Date 2012 on an annual basis,;
(xviviii) Certificates of insurance and additional insured and loss payable payee (as applicable) endorsements with respect to the Borrower Parties and certified copies of all insurance policies of the Borrower Parties, in each case, meeting the requirements of Section 6.5,;
(xviiix) Pay-off or and release letters, termination statements, canceled mortgages and the like required by the Administrative Agent in connection with the removal of any Liens (other than Permitted Liens) against the assets and Funded Debt not permitted as of the Borrower PartiesAgreement Date by this Agreement and, without limitation, termination of the repayment of Funded Debt, or the release of a Borrower Party from a Guaranty,Existing Facility;
(xviiix) Lien search results with respect to the Borrower Parties from all appropriate jurisdictions and filing offices,;
(xixxi) Evidence satisfactory to the Administrative Agent that the Liens granted pursuant to the Security Documents will be first priority perfected Liens on the Collateral (subject only to Permitted Liens), including evidence satisfactory to the Administrative Agent that (x) any Liens granted pursuant to the New York Life Facility shall have been released and terminated, (y) any UCC financing statements filed against any Borrower Party pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent thereunder and (z) any UCC financing statements filed against AGI pursuant to the AGI Credit Documents shall have been subsequently amended to include in the collateral description of each such financing statement a reference to the Intercreditor Agreement and the first priority perfected Liens of the Administrative Agent on the Pledged Interests (as defined in the Affinity Pledge Agreement) thereunder,;
(xxxii) Payment of all fees and expenses payable to the Administrative Agent, the Affiliates of the Administrative Agent, the Co-Collateral Agents and the Lenders in connection with the execution and delivery of the Loan Documents and the due diligence relating thereto to be paid on the Agreement Datethis Agreement, including including, without limitation, fees and expenses of counsel to the Administrative Agent,;
(xxixiii) A solvency certificate executed by an Authorized Signatory of the Administrative Borrower regarding the solvency and financial condition of the Borrower Parties, after giving effect to the transactions contemplated herein including the initial Advance and, if any, the issuance of the initial Letter of Credit hereunder;
(xiv) A customary closing certificate executed by an Authorized Signatory of the Borrower Parties;
(xv) A Borrowing Base Certificate dated as of the Agreement Date, reflecting the status as of May 1, 2011, which shall demonstrate, after giving effect to the transactions occurring on the Agreement Date and the making of the initial Advances and issuance of the initial Letters of Credit hereunder, Availability is equal to or greater than $50,000,000; and
(xvi) A duly executed Request for Advance for the initial Advance of the Loans; and
(xvii) A flow of funds report duly executed by the Administrative Borrower which report shall include a statement of all sources and uses of funds on the Agreement Date,
(xxii) The duly executed Letter of Credit Reimbursement Agreement, and
(xxiii) All such other documents as the Administrative Agent may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested;.
(b) The Lender Group shall have received evidence satisfactory to them that since December 26, 2010, no change in the businessMaterially Adverse Effect shall have occurred, assets, management, operations, financial condition, income or prospects including a certificate of an Authorized Signatory of the Administrative Borrower Parties stating that since December 26, 2010, no Materially Adverse Effect shall have occurred since December 31occurred.
(c) The Lender Group shall have received the financial statements described in Section 5.1(k), 2008each in form and substance satisfactory to the members of the Lender Group.
(d) The Lender Group shall have received evidence reasonably satisfactory to them that all Necessary Authorizations are in full force and effect and are not subject to any pending or threatened investigation, which change has had reversal or could reasonably be expected cancellation, that no other consents or approvals are required, that all applicable waiting period with respect to Necessary Authorizations shall have a Materially Adverse Effectexpired, and that no Default or Event of Default exists, after giving effect to the initial Advance hereunder, and the Lender Group shall have received a certificate of an Authorized Signatory of the Administrative Borrower so stating.
(e) The Administrative Agent shall have received confirmation that the original UCC financing statements naming each Borrower Party as a debtor and naming the Administrative Agent as secured party have been duly filed in all appropriate jurisdictions, in such form as shall be reasonably satisfactory to the Administrative Agent.
(f) The Lender Group shall have received evidence satisfactory to them that each Borrower Party is in compliance with the USA Patriot Act and the Lender Group shall have completed its diligence, with results satisfactory thereto, with respect to applicable bank regulatory, “know your customer,” and anti-money laundering matters including, for the avoidance of doubt, with respect to the USA Patriot Act and OFAC.
(g) The Borrower Parties so stating;shall have exercised commercially reasonable efforts to deliver to the Administrative Agent a Collateral Access Agreement with respect to the Borrower Parties’ chief executive office.
(h) The Borrowers shall have established a master collection deposit account with SunTrust Bank (which account shall be not used by the Borrowers, except to receive funds from the Blocked Accounts after the occurrence of a Dominion Event and under direction of the Administrative Agent).
Appears in 1 contract
Samples: Credit Agreement (New York Times Co)