Public Documents The Common Stock of the Borrower is registered pursuant to Section 12 of the Exchange Act and the Borrower is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. The Borrower has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC, the Principal Trading Market, or any other Governmental Authority, as applicable (all of the foregoing filed within the two (2) years preceding the date hereof or amended after the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein, being hereinafter referred to as the “Public Documents”). The Borrower is current with its filing obligations with the SEC, the Principal Trading Market, or any other Governmental Authority, as applicable, and all Public Documents have been filed on a timely basis by the Borrower. The Borrower represents and warrants that true and complete copies of the Public Documents are available on the SEC website or the Principal Trading Market website, as applicable (▇▇▇.▇▇▇.▇▇▇, or ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇) at no charge to Lender, and Lender acknowledges that it may retrieve all Public Documents from such websites and Lender’s access to such Public Documents through such website shall constitute delivery of the Public Documents to Lender; provided, however, that if Lender is unable to obtain any of such Public Documents from such websites at no charge, as result of such websites not being available or any other reason beyond Lender’s control, then upon request from Lender, the Borrower shall deliver to Lender true and complete copies of such Public Documents. The Borrower shall also deliver to Lender true and complete copies of all draft filings, reports, schedules, statements and other documents required to be filed with the requirements of the Principal Trading Market that have been prepared but not filed with the Principal Trading Market as of the date hereof. None of the Public Documents, at the time they were filed with the SEC, the Principal Trading Market, or other Governmental Authority, as applicable, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such Public Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof, which amendments or updates are also part of the Public Documents). As of their respective dates, the consolidated financial statements of the Borrower and its Subsidiaries included in the Public Documents complied in all material respects with applicable accounting requirements and any published rules and regulations of the SEC and Principal Trading Market with respect thereto.
Certain Documents The Administrative Agent shall have received on or prior to the Closing Date each of the following, each dated the Closing Date (or such other date as may be indicated below) unless otherwise agreed by the Administrative Agent, in form and substance satisfactory to the Administrative Agent and each Lender:
(i) this Agreement and the Fee Letters duly executed by the Borrower and, for the account of each Lender requesting the same by notice to the Administrative Agent and the Borrower received by each at least three Business Days prior to the Closing Date (or such later date as may be agreed by the Borrower), a Note conforming to the requirements set forth in Section 2.2(c);
(ii) the Guaranty Agreement and the Security Documents, including the (A) Guaranty Agreement, duly executed by the Borrower and each Subsidiary Guarantor, (B) the Security Agreement, duly executed by the relevant grantors thereunder, and (C) any Mortgages duly executed by the relevant mortgagors thereunder; and each such Security Document, upon execution and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the Collateral and the proceeds thereof, together with (x) copies of UCC, tax, judgment lien, Intellectual Property and other appropriate search reports and of all effective prior filings listed therein, together with evidence of the termination of such prior filings and other documents with respect to the priority of the security interest of the Collateral Agent in the Collateral (including the Payoff Letter), in each case, as may be reasonably requested by the Administrative Agent or the Collateral Agent, (y) all documents representing all Securities being pledged pursuant to the Security Agreement and related undated powers or endorsements duly executed in blank and (z) in each case evidence of the perfection and first priority of the Liens created by the Security Documents to the extent required thereby;
(iii) duly executed (A) opinions of counsel to the Loan Parties, each addressed to the Arranger, the Collateral Agent, the Administrative Agent, the Issuing Banks and the Lenders and addressing such matters as the Administrative Agent or Lenders may request and (B) opinion of counsel to the Agents and the Arranger;
(iv) a timely and duly executed and completed Notice of Borrowing for the initial Borrowing;
(v) a copy of each Constituent Document of each Loan Party that is on file with any Governmental Authority in any jurisdiction and certified as of a recent date by such Governmental Authority, together with, if applicable, certificates attesting to the good standing of such Loan Party in its jurisdiction of organization and each other jurisdiction where such Loan Party is qualified to do business as a foreign entity or where such qualification is necessary (and, if appropriate in any such jurisdiction, related tax certificates; provided that such related tax certificates may be provided within thirty (30) days following the Closing Date);
(vi) a certificate of the secretary or other officer of each Loan Party in charge of maintaining books and records of such Loan Party certifying as to (A) the names and signatures of each officer of such Loan Party authorized to execute and deliver any Loan Document, (B) the Constituent Documents of such Loan Party attached to such certificate are complete and correct copies of such Constituent Documents as in effect on the date of such certification and (C) the resolutions of such Loan Party’s board of directors or other appropriate governing body approving and authorizing the execution, delivery and performance of each Loan Document to which such Loan Party is a party;
(vii) a certificate of the President, Chief Executive Officer or Chief Financial Officer of the Borrower certifying that as of the Closing Date and both before and after giving effect to the funding of the Loans: (A) the representations and warranties of the Loan Parties set forth in any Loan Document shall be true and correct on and as of such date, (B) each Loan Party is Solvent after giving effect to the funding of the Loans pursuant to Section 2.1, the application of the proceeds thereof in accordance with Section 6.17 and the payment of all estimated legal, accounting and other fees and expenses related hereto and (C) no Default has occurred and is continuing;
(viii) a certificate of the President, Chief Executive Officer or Chief Financial Officer of the Borrower certifying in reasonable detail as to the calculation of the Revolving Borrowing Base and the Term Borrowing Base as of the Closing Date and certifying that the Loans requested pursuant to the Initial Borrower are in accordance with the maximum drawing requirements in respect of the Revolving Borrowing Base and the Term Borrowing Base hereunder;
(ix) a certificate from the President, Chief Executive Officer or Chief Financial Officer of the Borrower certifying as the amount of Consolidated Net Outstanding Content Advances as of the Closing Date in reasonable detail and computed in accordance with a customary methodology that is acceptable to the Administrative Agent and consistent with past practices;
(x) reserved;
(xi) insurance certificates in form and substance satisfactory to the Collateral Agent demonstrating that the insurance policies required by Section 6.13 are in full force and effect and have all terms required by Section 6.13;
(xii) a certificate of a Responsible Officer of the Borrower certifying true, complete and correct executed copies of all material contracts attached to such certificate and in effect as of the Closing Date (including (A) all Material DL OLC Agreements, (B) all Intercompany Agreements, and (C) all material employment agreements, and that each such material contract is in full force and effect and the Loan Parties are is in compliance with all such relevant material contracts to which they are party as of the Closing Date;
(xiii) a certificate from the Chief Financial Officer of the Borrower, supported by third party review of the financial statements of GVE reasonably satisfactory to the Administrative Agent, demonstrating as of the Closing Date for the most recent trailing twelve-month period for which quarterly financial statements are available (i) Consolidated Adjusted EBITDA, pro forma for the Acquisition, that is not less than $12.5 million, (ii) a ratio of (A) Consolidated Total Debt to (B) Consolidated Adjusted EBITDA of no more than 3.65:1.00 and (iii) projections showing a Consolidated Fixed Charge Coverage Ratio for the next full fiscal quarter of no less than 1.15:1.00. Such certificate shall be addressed to the Administrative Agent and accompanied by the Initial Financial Statements, which audited Initial Financial Statements for the fiscal year ending March 31, 2013 shall have been reviewed and certified by the Group Members’ Accountants;
(xiv) a payoff letter executed by the Borrower, the Administrative Agent, GVE and PNC Bank (the “Payoff Letter”) and evidence that the Existing Liens have been released;
(xv) the Initial Library Value Report; and
(xvi) consents, waivers, acknowledgements and other agreements from any Loan Party or third parties which the Administrative Agent or the Collateral Agent may deem necessary or advisable in order to permit, protect or perfect the Collateral Agent’s security interests in and Liens upon the Collateral and to effectuate the provisions of this Agreement and the other Loan Documents, including, mortgagee or landlord waivers, estoppel certificates, bailee letters, consignment notices and other similar agreements.
