Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied: (a) The Agent shall have received the following in form and substance satisfactory to the Agent: (i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower. (ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g). (iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party approving the Agreement and each of the Loan Documents to which it is or is to be a party. (iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. (v) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder. (vi) A favorable opinion of General Counsel or Associate General Counsel to the Loan Parties, substantially in the form of Exhibit D-1 and as to such other matters as any Lender through the Agent may reasonably request. (vii) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Parties, in substantially the form of Exhibit D-2 and as to such other matters as any Lender through the Agent may reasonably request. (viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request. (ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder. (x) Such other documents as the Agent may reasonably request. (b) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent). (c) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 2 contracts
Sources: Credit Agreement (Gap Inc), Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. I. This Agreement Agreement, other than the Term B Extension, shall become be effective on and as the date when each of the first date (the “Effective Date”) on which the following conditions precedent have been are satisfied:
(a) The Administrative Agent shall have received on or before the following Closing Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the AgentAdministrative Agent (unless otherwise specified) and in sufficient copies for each Lender Party:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board Board of directors (or persons performing similar functions) Directors of each domestic Loan Party approving the Agreement Transaction and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations and other necessary corporate actions or third party approvals and consents, if any, with respect to the Transaction and each Loan Documents Document to which it is or is to be a party.
(ivii) A a copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization incorporation of each domestic Loan Party listing that is a Domestic Subsidiary, dated reasonably near the certificate or articles Closing Date, certifying (A) as to a true and correct copy of incorporation the charter (or similar comparable Constitutive Document) of each such Loan Party and each amendment thereto on file in the such Secretary’s office of such Secretary of State (or such governmental authority) and certifying (AB) that such amendments are the only amendments to such PersonLoan Party’s certificate or articles of incorporation charter (or similar constitutive documentcomparable Constitutive Document) on file in its such Secretary’s office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person Loan Party is duly organized incorporated and is in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation; provided, that, in the case of (A) and (B), such certifications shall only be required to the extent only that there have been amendments to the relevant documents since the delivery of such documents pursuant to the Existing Credit Agreement.
(iii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter (or comparable Constitutive Document) of such Loan Party provided pursuant to the Existing Credit Agreement, (B) the absence of any amendments to the bylaws (or comparable Constitutive Document) provided pursuant to the terms of the Existing Credit Agreement, or, in respect of any Loan Party not a party to the Existing Credit Agreement, a true and correct copy of the bylaws (or comparable Constitutive Document) of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(i) were adopted and on the Closing Date, (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its organizationincorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, and (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date except for representations and warranties that by their terms speak as of another specific date, which shall be true as of such specific date.
(viv) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(v) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, 2003, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to the Borrower and forecasts prepared by management of the Company, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Closing Date and on an annual basis for five years thereafter.
(vi) A favorable opinion Confirmation and ratification of General Counsel or Associate General Counsel the continued validity of the Subsidiary Guarantee and the Collateral Documents, such confirmation and ratification to the Loan Parties, substantially be in the form attached hereto as Exhibit I.
(b) All Governmental Authorizations and all third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of Exhibit D-1 any conditions that are not acceptable to the Lender Parties) and as to such other matters as any shall remain in effect; and no Requirements of Law shall be applicable in the judgment of the Lender through Parties that restrains, prevents or imposes materially adverse conditions upon the Agent may reasonably requestTransaction.
(vii) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Parties, in substantially the form of Exhibit D-2 and as to such other matters as any Lender through the Agent may reasonably request.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder.
(x) Such other documents as the Agent may reasonably request.
(bc) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)Agents.
(cd) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement The Required Lenders shall have been, or concurrently with executed the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminatedConsent.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc)
Conditions Precedent to Effectiveness of this Agreement. This The effectiveness of this Agreement shall become effective on is subject to the condition precedent that the Company and the Administrator (as of the first date (the “Effective Date”Company’s assignee) on which the following conditions precedent have been satisfied:
(a) The and each Purchaser Agent shall have received received, on or before the following Closing Date, the following, each (unless otherwise indicated) dated the Closing Date, and each in form and substance satisfactory to the Company and the Administrator (as the Company’s assignee) and each Purchaser Agent:
(ia) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies A copy of the resolutions or unanimous written consents of the board of directors (or persons performing similar functions) or, managers of theor other governing body of each domestic Loan Party Originator approving the Agreement authorizing the execution, delivery and each performance by thesuch Originator of the Loan Transaction Documents to which it is or is to be a party., certified by the Secretary or Assistant Secretary of thesuch Originator;
(ivb) A copy Good standing certificates for theeach Originator issued as of a certificate of recent date acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State (or equivalent Governmental Authoritysimilar official) of the jurisdiction statejurisdiction of thesuch Originator’s organization or formation and principal place of each domestic Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.business;
(vc) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party theeach Originator certifying the names and true signatures of the officers of such Loan Party who are authorized to sign each Loan Document the Transaction Documents to which it is a party (on which certificate the Servicer, the Company, the Administrator (as the Company’s assignee), the Purchasers and the other documents Purchaser Agents shall be entitled to be delivered hereunder.rely on until such time as the Servicer, the Company, the Administrator (as the Company’s assignee), the Purchasers and the Purchaser Agents shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(vid) The certificate of formationor articles of incorporation or other similar organizational document of theeach Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the State of Delawarejurisdiction of such Originator’s organization as of a recent date acceptable to the Administrator, together with a copy of the limited liability company agreement, operating agreement or similar organizational document and by-laws (if any) of thesuch Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of thesuch Originator;
(e) Proper financing statements (Form UCC-1), that have been duly authorized and are suitable for filing on or before the Closing date and name thesuch Originator as the debtor/seller and the Company as the buyer/assignor (and the Administrator, for the 740816958 17540157 9 benefit of the Purchasers, as secured party/assignee) of the Receivables generated or acquired by thesuch Originator as may be necessary or, in the Company’s or the Administrator’s opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest has been or may be assigned to it hereunder;
(f) A favorable opinion of General Counsel or Associate General Counsel written search report from a Person satisfactory to the Loan PartiesCompany and the Administrator listing all effective financing statements that name thesuch Originator as debtor or seller and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, substantially together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) (and/or released or terminated as the case may be prior to the date hereof), shall cover any Receivable or any Related Rights, and tax and judgment lien search reports from all applicable jurisdictions (including, without limitation, ERISA lien searches) from a Person satisfactory to the Company and the Administrator (as the Company’s assignee) showing no evidence of such liens filed against theany Originator;
(g) Favorable opinions, addressed to each Rating Agency, the Administrator, each Purchaser Agent and each Purchaser, in form of Exhibit D-1 and as substance reasonably satisfactory to the Company and the Administrator, from Sidley Austin LLP,external counsel for the OriginatorOriginators, and internal counsel for the Contributing Originator, covering such other matters as any Lender through the Agent Company and the Administrator may reasonably request., including, without limitation, certain organizational and New York enforceability matters, certain bankruptcy matters and certain UCC perfection matters;
(viih) A favorable opinion Company Note in favor of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to thesuch Originator duly executed by the Loan Parties, in substantially the form of Exhibit D-2 and as to such other matters as any Lender through the Agent may reasonably request.Company; and
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ixi) Evidence that the Borrower has terminated the commitments (i) of the lenders, execution and has paid in full all debt outstanding, under the Existing Credit Agreement and delivery by each of the Lenders that is a party to parties thereto of the Existing Credit Agreement hereby waives, by execution of this Receivables Purchase Agreement, the requirement Lock-Box Agreements, each Fee Letter, the LC Transfer Agreement and the Performance Guaranty and (ii) that each of prior notice under the Existing Credit Agreement relating conditions precedent to the termination execution, delivery and effectiveness of commitments thereunder.
(x) Such other documents as such agreements has been satisfied to the Agent may reasonably request.
(b) The Borrower shall have paid all accrued fees and expenses of the Agent Company’s and the Lenders (including the accrued fees and expenses of counsel to the Agent)Administrator’s satisfaction.
(c) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfiedsatisfied or waived:
(a) The Agent shall have received the following in form and substance satisfactory to the Agent:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Parent Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g4.04(d).
(iii) Duly executed copies of (A) the U.S. Security Agreement, dated the Closing Date, and all exhibits and schedules thereto, (B) the German Security Agreements and all exhibits and schedules thereto, (C) the Intellectual Property Security Agreements, dated the Closing Date in form and substance reasonably satisfactory to Agent (it being understood that the forms attached to the U.S. Security Agreement are reasonably satisfactory to Agent), and all exhibits and schedules thereto, and (D) the ABL Intercreditor Agreement.
(iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) or of the relevant shareholders of each domestic Loan Party approving transactions of the type contemplated by this Agreement and each of the Loan Documents to which it is or is to be a party.
(ivv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic U.S. Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) Document of each such Loan Party (other than any German Loan Party) and each amendment thereto on file in the office of such Secretary of State (or such governmental authorityGovernmental Authority) and certifying (A) certifying that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its such office, (B) certifying if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) as regards U.S. Loan Parties, certifying that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization. The German Loan Parties shall deliver a certificate of an authorised signatory (A) certifying that the Gesellschaftsvertrag (articles of incorporation) and a copy of a Handelsregisterauszug (online commercial registry excerpt) of less than fifteen (15) days from the Closing Date) and if applicable, a current Gesellschaftsliste (shareholder’s list)) is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement; (B) including the relevant resolutions approving the terms of, and the transactions contemplated by, the Loan Documents to which the German Loan Party is a party and certifying that such resolution has not been amended or superseded prior to the date hereof; (C) including a specimen of the signatures of each person authorised to execute any Loan Document and other documents and notices; (D) certifying that each copy document to which it is party is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
(vvi) A certificate of the Secretary or an Assistant Secretary (or equivalent) of each domestic Loan Party Party, other than any German Loan Party, certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(vi) A favorable opinion of General Counsel or Associate General Counsel to the Loan Parties, substantially in the form of Exhibit D-1 and as to such other matters as any Lender through the Agent may reasonably request.
(vii) A favorable opinion Favorable opinions of Skadden▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP▇▇▇▇▇▇, LLP and Loyens & Loeff, special New York counsel to the Loan Parties, in substantially the form of Exhibit D-2 and as to such other matters as any Lender through the Agent may reasonably request.
(viii) A favorable opinion of Shearman & Sterling Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, special New York German and Dutch counsel to the Agent, in substantially the each case in a form of Exhibit E and as reasonably acceptable to such other matters as any Lender through the Agent and addressed to the Agent, the Issuing Banks and each of the Lenders.
(viii) Except to the extent that the Agent reasonably agrees that such conditions may be satisfied within a post-closing period to be set forth on Schedule 7.01(p), (1) the Perfection Certificate and all agreements, documents, filings, recordations and lien searches reasonably requestnecessary or requested by the Agent in connection with the creation, perfection and priority of the Liens in favor of the Agent, for the benefit of the Secured Parties, securing the Obligations shall have been duly executed, and/or made; (2) all filing and recording fees and taxes shall have been duly paid; and (3) the Agent shall be satisfied with the amount, types and terms and conditions of all insurance maintained by Parent Borrower and its Subsidiaries, and the Agent shall have received evidence of such insurance, together with endorsements naming the Agent, on behalf of the Secured Parties, as an additional insured or lender’s loss payee, as the case may be, under all insurance policies.
(ix) Evidence that All governmental, shareholder and third party consents necessary (if any) in connection with the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunderTransactions.
(x) A certificate of a Responsible Officer of Parent Borrower to the effect set forth in Section 5.01(b), 5.02(a) and 5.02(b) below.
(xi) A certificate of the chief financial officer of the Parent Borrower as to the solvency of the Parent Borrower and its Subsidiaries (after giving effect to the Transactions and the incurrence of Revolving Credit Advances and Letters of Credit on the Closing Date).
(xii) The Agent shall have received forecasts prepared by management of the Parent Borrower and its Subsidiaries, taken as a whole, of (x) balance sheets, income statements and cash flow statements on an annual basis through the end of the Fiscal Year ending on September 30, 2025 and (y) projected U.S. Borrowing Bases, German Borrowing Bases and Availability forecasts on an annual basis through the end of the Fiscal Year ending on September 30, 2021, in each case in form and substance reasonably satisfactory to the Agent.
(xiii) At least three days prior to the Closing Date, any Loan Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall deliver, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Loan Party.
(xiv) Such other documents as the Agent may reasonably requestrequest and, upon the reasonable request of any Lender made at least ten (10) days prior to the Closing Date, such documentation and other information so requested in connection with applicable “know your customer”, FDPA and anti-money-laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation, in each case (A) at least five (5) Business Days prior to the Closing Date and (B) with results satisfactory to the Joint Lead Arrangers.
(b) The Borrower There shall not have paid all accrued fees occurred since September 30, 2019, any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Effect; provided that, solely with respect to clause (a) of the definition of Material Adverse Effect, any change in or effect upon the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Loan Parties, taken as a whole, substantially and expenses directly relating to the impacts of the COVID-19 pandemic, and disclosed to the Agent and the Lenders (including the accrued fees and expenses prior to September 17, 2020, shall not be considered to be a Material Adverse Effect solely for purposes of counsel to the Agentthis Section 5.01(b).
(c) All amounts owing by There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of the Loan Parties, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of Parent Borrower or any of and its Subsidiaries in scope, and with results, satisfactory to the lenders Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act and agents under the Existing Credit Agreement shall have beenany other anti-money laundering laws, or concurrently with the initial extension of credit made on the Effective Date shall berules and regulations (including applicable foreign laws, paid in full, rules and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminatedregulations).
Appears in 1 contract
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “"Effective Date”") on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent shall have received the following in form and substance satisfactory to the Agent:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g)) hereof.
(iiiii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party approving the Agreement and each of the Loan Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the Loan Documents to which it is or is to be a party.
(iviii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s 's certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viv) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(v) A guarantee, in substantially the form of Exhibit D hereto (the "Subsidiary Guaranty"), duly executed by each wholly-owned Domestic Subsidiary (other than the Excluded Subsidiaries).
(vi) A security agreement in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 7.01(i) hereof, the "Security Agreement"), duly executed by the Borrower and each wholly-owned Domestic Subsidiary (other than the Excluded Subsidiaries), together with:
(A) to the extent available on the Effective Date, certificates representing the Initial Pledged Equity (as defined in the Security Agreement, other than equity interests in Excluded Subsidiaries, but including equity interests in first-tier Special Purpose Subsidiaries) accompanied by undated stock powers (or similar instruments) executed in blank;
(B) appropriate UCC-1 financing statements under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) evidence that all other action that the Agent and, as the case may be, the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken.
(vii) The Intercreditor Agreement duly executed by the Agent on behalf of the Lenders, the Collateral Agent, as defined therein, and any Lender who is then a party to a Hedge Agreement.
(viii) A favorable opinion of General Counsel or Associate General Counsel to the Loan Parties, substantially in the form of Exhibit D-1 F-1 hereto and as to such other matters as any Lender through the Agent may reasonably request.
(viiix) A favorable opinion Favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Parties, in substantially the form forms of Exhibit D-2 Exhibits F-2 and F-3 hereto and as to such other matters as any Lender through the Agent may reasonably request.
(viiix) A favorable opinion of Shearman & Sterling LLPSterling, special New York counsel to the Agent, in substantially the form of Exhibit E G hereto and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder.
(xxi) Such other approvals, opinions or documents as the Agent may reasonably request.
(bc) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent).
(cd) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunderthereunder and except for Trade Letters of Credit issued under the Existing Credit Agreement that will be deemed issued under the LC Facilities) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
(e) A preliminary updated valuation review of the domestic inventories of the Loan Parties that is satisfactory to the Agent and the Joint Lead Arrangers.
Appears in 1 contract
Sources: Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Account Party approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viii) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(viiv) A Security Agreement in substantially the form of Exhibit A hereto, duly executed by the Company in favor of the LC Issuer, together with:
(A) appropriate UCC-1 financing statements under the Uniform Commercial Code of all jurisdictions that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens created under the Security Agreement, covering the collateral described in the Security Agreement;
(B) evidence that all other action that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken; and
(C) evidence that the total value of all funds and the Permitted Investments held as provided in the Security Agreement is not less than the Required Collateral Amount
(v) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 B-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viivi) A favorable opinion Favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form forms of Exhibit D-2 Exhibits B-2 and B-3 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(vii) Such other approvals, opinions or documents as the LC Issuer may reasonably request.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Revolving Credit Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing effectiveness of the Revolving Credit Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(x) Such other documents as the Agent may reasonably request.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters letters of credit issued thereunder which are to be deemed issued under this Agreement or any of the Other LC Facilities or the Revolving Credit issued thereunderAgreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iiia) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party the Company approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivb) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(vc) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(vid) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 A-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viie) A favorable opinion of Skadden▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form of Exhibit D-2 A-2 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viiif) A favorable opinion of Shearman & Sterling LLPSuch other approvals, special New York counsel to opinions or documents as the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(ixg) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit 364-Day Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing Credit effectiveness of the 364-Day Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(xh) Such other documents Evidence that the security interests granted to each of Citibank, N.A., HSBC Bank, National Association and JPMorgan Chase Bank, N.A. in respect of those certain letter of credit agreements between each of such parties and the Company and dated as the Agent may reasonably requestof June 25, 2003 have been terminated and all liens thereunder have been released.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Letter of Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Letter of Credit Agreement (except for the Existing Letters letters of Credit credit issued thereunderthereunder which are to be deemed issued under this Agreement or the 364-Day Agreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Letter of Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “"Effective Date”") on which the following conditions precedent have been -------------- satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the Lenders that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent shall have received the following in form and substance satisfactory to the Agent:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iiiii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party approving the Agreement and each of the Loan Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the Loan Documents to which it is or is to be a party.
(iviii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s 's certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viv) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(v) A guarantee, in substantially the form of Exhibit D hereto (the "Subsidiary Guaranty"), duly executed by each wholly-owned ------------------- Domestic Subsidiary (other than the Excluded Subsidiaries).
(vi) A security agreement in substantially the form of Exhibit E hereto (together with each other security agreement and security agreement supplement delivered pursuant to Section 7.01(i), the "Security Agreement")), duly executed by the Borrower and each ------------------ wholly-owned Domestic Subsidiary (other than the Excluded Subsidiaries), together with:
(A) to the extent available on the Effective Date, certificates representing the Initial Pledged Equity (as defined in the Security Agreement, other than equity interests in Excluded Subsidiaries, but including equity interests in first-tier Special Purpose Subsidiaries) accompanied by undated stock powers (or similar instruments) executed in blank;
(B) appropriate UCC-1 financing statements under the Uniform Commercial Code of all jurisdictions that the Agent may deem necessary or desirable in order to perfect and protect the first priority Liens created under the Security Agreement, covering the Collateral described in the Security Agreement;
(C) evidence that all other action that the Agent and, as the case may be, the Collateral Agent may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken, including without limitation, executed Control Agreements in respect of all "Securities Account" and "Deposit Accounts" as contemplated by this Agreement and the Security Agreement.
(vii) The Intercreditor Agreement duly executed by the Agent on behalf of the Lenders, the Collateral Agent, as defined therein, and any Lender who is then a party to a Hedge Agreement.
(viii) A favorable opinion of General Counsel or Associate General Counsel to the Loan Parties, substantially in the form of Exhibit D-1 F-1 hereto and as to such other matters as any Lender through the Agent may reasonably request.
(viiix) A favorable opinion Favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Parties, in substantially the form forms of Exhibit D-2 Exhibits F-2 and F-3 hereto and as to such other matters as any Lender through the Agent may reasonably request.
(viiix) A favorable opinion of Shearman & Sterling LLPSterling, special New York counsel to the Agent, in substantially the form of Exhibit E G hereto and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder.
(xxi) Such other approvals, opinions or documents as the Agent may reasonably request.
(bc) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent).
(cd) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement Agreements shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement Agreements (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith Agreements.
(e) The Borrower shall have been terminatedissued convertible notes in a principal amount of not less than $1,000,000,000.
(f) A preliminary valuation review of the domestic trademarks and inventories of the Loan Parties that is satisfactory to the Agent and the Joint Lead Arrangers.
(g) A certificate as to the amount of cash and property, respectively, on the close of business on the Business Day immediately preceding the Effective Date in the Deposit Accounts and Securities Accounts, respectively, referred to in Section 5.01(b)(vi) above.
Appears in 1 contract
Sources: Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) The Agent Lender shall have received the following in form and substance satisfactory to the AgentLender:
(i) Executed counterparts counterpart of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes A Note made payable to the order of the Lenders Lender to the extent requested by any the Lender pursuant to Section 2.02(g3.03(b).
(iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party the Company approving transactions of the type contemplated by this Agreement and each of the Loan Documents to which it is or is to be a partyDocuments.
(iv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Party the Company listing the certificate or articles certificate of incorporation (or similar Constitutive Document) of each such Loan Party the Company and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(v) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party the Company certifying the names and true signatures of the officers of such Loan Party the Company authorized to sign each Loan Document to which it is a party and the other documents to be delivered hereunder.
(vi) A favorable opinion of General Counsel or Associate General Counsel to the Loan Parties▇▇▇▇▇▇, substantially in the form of Exhibit D-1 and as to such other matters as any Lender through the Agent may reasonably request.
(vii) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan PartiesCompany, that is reasonably satisfactory to the Lender.
(vii) A certificate of a Responsible Officer of the Company certifying that (A) the representations and warranties contained in Section 5.01 are correct on and as of the Effective Date, except to the extent that any such representation or warranty is stated to relate to an earlier date, in substantially the form of Exhibit D-2 which case such representation or warranty shall be true and correct on and as of such earlier date, (B) no event has occurred and is continuing which constitutes an Event of Default or Default and (C) since January 31, 2015, there has been no (1) material adverse change in, or a material adverse effect on, the business, condition (financial or otherwise), results of operations or prospects of the Company and its Subsidiaries, taken as a whole; (2) material impairment of the rights and remedies of the Lender under this Agreement, or of the ability of the Company to such other matters perform its obligations under this Agreement as any Lender through and when due; or (3) material adverse effect upon the Agent may reasonably requestlegality, validity, binding effect or enforceability against the Company of this Agreement.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder.
(x) Such other documents as the Agent Lender may reasonably request.
(b) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent).
(c) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Account Party approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viii) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(viiv) A Security Agreement in substantially the form of Exhibit A hereto, duly executed by the Company in favor of the LC Issuer, together with:
(A) appropriate UCC-1 financing statements under the Uniform Commercial Code of all jurisdictions that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens created under the Security Agreement, covering the collateral described in the Security Agreement;
(B) evidence that all other action that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken; and
(C) the execution of a Securities Account Control Agreement in the form of Exhibit B to the Security Agreement with ▇▇▇▇▇ ▇▇▇▇▇▇, a division of Citigroup Global Markets, Inc. and the Company and evidence that the total value of all funds and the Permitted Investments held in the Accounts (as defined in the Security Agreement) subject thereto is not less than the Required Collateral Amount.
(v) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 B-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viivi) A favorable opinion Favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form forms of Exhibit D-2 Exhibits B-2 and B-3 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(vii) Such other approvals, opinions or documents as the LC Issuer may reasonably request.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Revolving Credit Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing effectiveness of the Revolving Credit Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(x) Such other documents as the Agent may reasonably request.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters letters of credit issued thereunder which are to be deemed issued under this Agreement or any of the Other LC Facilities or the Revolving Credit issued thereunderAgreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become be effective on and as concurrently with the effectiveness of the first date Receivables Purchase Agreement and is subject to the condition precedent that the Company and the Administrator (as the “Effective Date”Company’s assignee) on which the following conditions precedent have been satisfied:
(a) The and each Purchaser Agent shall have received received, on or before the following Restatement Date, the following, each (unless otherwise indicated) dated the Restatement Date, and each in form and substance satisfactory to the Company and the Administrator (as the Company’s assignee) and each Purchaser Agent:
(ia) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies A copy of the resolutions or unanimous written consents of the board of directors (directors, managers or persons performing similar functions) other governing body of each domestic Loan Party Originator approving the Agreement authorizing the execution, delivery and each performance by such Originator of the Loan Transaction Documents to which it is or is to be a party., certified by the Secretary or Assistant Secretary of such Originator;
(ivb) A copy Good standing certificates for each Originator issued as of a certificate of recent date acceptable to the Company and the Administrator (as the Company’s assignee) by the Secretary of State (or equivalent Governmental Authoritysimilar official) of the jurisdiction of such Originator’s organization or formation and principal place of each domestic Loan Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.business;
(vc) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party Originator certifying the names and true signatures of the officers of such Loan Party who are authorized to sign each Loan Document the Transaction Documents to which it is a party (on which certificate the Servicer, the Company, the Administrator (as the Company’s assignee), the Purchasers and the other documents Purchaser Agents shall be entitled to be delivered hereunder.rely on until such time as the Servicer, the Company, the Administrator (as the Company’s assignee), the Purchasers and the Purchaser Agents shall receive from such Person a revised certificate meeting the requirements of this clause (c));
(vid) The certificate or articles of incorporation or other similar organizational document of each Originator (including all amendments and modifications thereto) duly certified by the Secretary of State of the jurisdiction of such Originator’s organization as of a recent date acceptable to the Administrator, together with a copy of the limited liability company agreement, operating agreement or similar organizational document and by-laws (if any) of such Originator (including all amendments and modifications thereto), as applicable, each duly certified by the Secretary or an Assistant Secretary of such Originator;
(e) Proper financing statements (Form UCC-1), that have been duly authorized and are suitable for filing on or before the Restatement Date and name such Originator as the debtor/seller and the Company as the buyer/assignor (and the Administrator, for the benefit of the Purchasers, as secured party/assignee) of the Receivables generated or acquired by such Originator as may be necessary or, in the Company’s or the Administrator’s opinion, desirable under the UCC of all appropriate jurisdictions to perfect the Company’s ownership interest in all Receivables and such other rights, accounts, instruments and moneys (including, without limitation, Related Security) in which an ownership or security interest has been or may be assigned to it hereunder;
(f) A favorable opinion of General Counsel or Associate General Counsel written search report from a Person satisfactory to the Loan PartiesCompany and the Administrator listing all effective financing statements that name such Originator as debtor or seller and that are filed in all jurisdictions in which filings may be made against such Person pursuant to the applicable UCC, substantially together with copies of such financing statements (none of which, except for those described in the foregoing clause (e) and/or released or terminated as the case may be prior to the date hereof), shall cover any Receivable or any Related Rights, and tax and judgment lien search reports from all applicable jurisdictions (including, without limitation, ERISA lien searches) from a Person satisfactory to the Company and the Administrator (as the Company’s assignee) showing no evidence of such liens filed against any Originator;
(g) Favorable opinions, addressed to the Administrator, each Purchaser Agent and each Purchaser, in form of Exhibit D-1 and as substance reasonably satisfactory to the Company and the Administrator, from external counsel for the Originators, covering such other matters as any Lender through the Agent Company and the Administrator may reasonably request., including, without limitation, certain organizational and New York enforceability matters, certain bankruptcy matters and certain UCC perfection matters;
(viih) A favorable opinion Intercompany Loan in favor of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to such Originator duly executed by the Loan Parties, in substantially the form of Exhibit D-2 and as to such other matters as any Lender through the Agent may reasonably request.Company; and
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ixi) Evidence that the Borrower has terminated the commitments (i) of the lenders, execution and has paid in full all debt outstanding, under the Existing Credit Agreement and delivery by each of the Lenders that is a party to parties thereto of the Existing Credit Agreement hereby waives, by execution of this Receivables Purchase Agreement, the requirement Lock-Box Agreements (if any), each Fee Letter, and the Performance Guaranty and (ii) that each of prior notice under the Existing Credit Agreement relating conditions precedent to the termination execution, delivery and effectiveness of commitments thereunder.
(x) Such other documents as such agreements has been satisfied to the Agent may reasonably request.
(b) The Borrower shall have paid all accrued fees and expenses of the Agent Company’s and the Lenders (including the accrued fees and expenses of counsel to the Agent)Administrator’s satisfaction.
(c) All amounts owing by the Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iiia) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party the Company approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivb) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(vc) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(vid) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 A-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viie) A favorable opinion of Skadden▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form of Exhibit D-2 A-2 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viiif) A favorable opinion of Shearman & Sterling LLPSuch other approvals, special New York counsel to opinions or documents as the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(ixg) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit 364-Day Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing Credit effectiveness of the 364-Day Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(xh) Such other documents Evidence that the security interests granted to each of Citibank, N.A., HSBC Bank, National Association and JPMorgan Chase Bank, N.A. in respect of those certain letter of credit agreements between each of such parties and the Company and dated as the Agent may reasonably requestof June 25, 2003 have been terminated and all liens thereunder have been released.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Letter of Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Letter of Credit Agreement (except for the Existing Letters letters of Credit credit issued thereunderthereunder which are to be deemed issued under this Agreement or the 364- Day Agreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Letter of Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Account Party approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viii) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(viiv) A Security Agreement in substantially the form of Exhibit A hereto, duly executed by the Company in favor of the LC Issuer, together with:
(A) appropriate UCC-1 financing statements under the Uniform Commercial Code of all jurisdictions that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens created under the Security Agreement, covering the collateral described in the Security Agreement;
(B) evidence that all other action that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken; and
(C) the execution of a Securities Account Control Agreement in the form of Exhibit B to the Security Agreement with ▇.▇. ▇▇▇▇▇▇ Securities Inc. (or such other securities intermediary as may be notified by the LC Issuer to the Company and is acceptable to the Company) and the Company and evidence that the total value of all funds and the Permitted Investments held in the Accounts (as defined in the Security Agreement) subject thereto is not less than the Required Collateral Amount.
(v) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 B-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viivi) A favorable opinion Favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form forms of Exhibit D-2 Exhibits B-2 and B-3 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(vii) Such other approvals, opinions or documents as the LC Issuer may reasonably request.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Revolving Credit Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing effectiveness of the Revolving Credit Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(x) Such other documents as the Agent may reasonably request.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters letters of credit issued thereunder which are to be deemed issued under any of the Other LC Facilities or the Revolving Credit issued thereunderAgreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iiia) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party the Company approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivb) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(vc) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(vid) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 A-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viie) A favorable opinion of Skadden▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form of Exhibit D-2 A-2 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viiif) A favorable opinion of Shearman & Sterling LLPSuch other approvals, special New York counsel to opinions or documents as the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(ixg) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit 364-Day Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing Credit effectiveness of the 364-Day Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(xh) Such other documents Evidence that the security interests granted to each of Bank of America, N.A., HSBC Bank, National Association and JPMorgan Chase Bank in respect of those certain letter of credit agreements between each of such parties and the Company and dated as the Agent may reasonably requestof June 25, 2003 have been terminated and all liens thereunder have been released.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Letter of Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Letter of Credit Agreement (except for the Existing Letters letters of Credit credit issued thereunderthereunder which are to be deemed issued under this Agreement or the 364- Day Agreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Letter of Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Account Party approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viii) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(viiv) A Security Agreement in substantially the form of Exhibit A hereto, duly executed by the Company in favor of the LC Issuer, together with:
(A) appropriate UCC-1 financing statements under the Uniform Commercial Code of all jurisdictions that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens created under the Security Agreement, covering the collateral described in the Security Agreement;
(B) evidence that all other action that the LC Issuer may deem necessary or desirable in order to perfect and protect the first priority liens and security interests created under the Security Agreement has been taken; and
(C) evidence that the total value of all funds and the Permitted Investments held in the Accounts (as defined in the Security Agreement) subject thereto is not less than the Required Collateral Amount.
(v) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 B-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viivi) A favorable opinion Favorable opinions of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form forms of Exhibit D-2 Exhibits B-2 and B-3 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(vii) Such other approvals, opinions or documents as the LC Issuer may reasonably request.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Revolving Credit Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing effectiveness of the Revolving Credit Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(x) Such other documents as the Agent may reasonably request.
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters letters of credit issued thereunder which are to be deemed issued under this Agreement or any of the Other LC Facilities or the Revolving Credit issued thereunderAgreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Letter of Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become be effective on and as the date when each of the first date (the “Effective Date”) on which the following conditions precedent have been are satisfied:
(a) The Administrative Agent shall have received on or before the following Closing Date the following, each dated such day (unless otherwise specified), in form and substance satisfactory to the AgentAdministrative Agent (unless otherwise specified) and in sufficient copies for each Lender Party:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board Board of directors (or persons performing similar functions) Directors of each domestic Loan Party approving the Agreement Transaction and each Loan Document to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations and other necessary corporate actions or third party approvals and consents, if any, with respect to the Transaction and each Loan Documents Document to which it is or is to be a party.
(ivii) A a copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization incorporation of each domestic Loan Party listing that is a Domestic Subsidiary, dated reasonably near the certificate or articles Closing Date, certifying (A) as to a true and correct copy of incorporation the charter (or similar comparable Constitutive Document) of each such Loan Party and each amendment thereto on file in the such Secretary’s office of such Secretary of State (or such governmental authority) and certifying (AB) that such amendments are the only amendments to such PersonLoan Party’s certificate or articles of incorporation charter (or similar constitutive documentcomparable Constitutive Document) on file in its such Secretary’s office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person Loan Party is duly organized incorporated and is in good standing or presently subsisting under the laws of the State of the jurisdiction of its incorporation; provided, that, in the case of (A) and (B), such certifications shall only be required to the extent only that there have been amendments to the relevant documents since the delivery of such documents pursuant to the Existing Credit Agreement.
(iii) A certificate of each Loan Party, signed on behalf of such Loan Party by its President or a Vice President and its Secretary or any Assistant Secretary, dated the Closing Date (the statements made in which certificate shall be true on and as of the Closing Date), certifying as to (A) the absence of any amendments to the charter (or comparable Constitutive Document) of such Loan Party provided pursuant to the Existing Credit Agreement, (B) the absence of any amendments to the bylaws (or comparable Constitutive Document) provided pursuant to the terms of the Existing Credit Agreement, or, in respect of any Loan Party not a party to the Existing Credit Agreement, a true and correct copy of the bylaws (or comparable Constitutive Document) of such Loan Party as in effect on the date on which the resolutions referred to in Section 3.01(a)(i) were adopted and on the Closing Date, (C) the due incorporation and good standing or valid existence of such Loan Party as a corporation organized under the laws of the jurisdiction of its organizationincorporation, and the absence of any proceeding for the dissolution or liquidation of such Loan Party, and (D) the truth of the representations and warranties contained in the Loan Documents as though made on and as of the Closing Date except for representations and warranties that by their terms speak as of another specific date, which shall be true as of such specific date.
(viv) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Party certifying the names and true signatures of the officers of such Loan Party authorized to sign each Loan Document to which it is or is to be a party and the other documents to be delivered hereunderhereunder and thereunder.
(v) Such financial, business and other information regarding each Loan Party and its Subsidiaries as the Lender Parties shall have reasonably requested, including, without limitation, information as to possible contingent liabilities, tax matters, environmental matters, obligations under Plans, Multiemployer Plans and Welfare Plans, collective bargaining agreements and other arrangements with employees, audited annual financial statements dated December 31, 2002, interim financial statements dated the end of the most recent fiscal quarter for which financial statements are available, pro forma financial statements as to the Borrower and forecasts prepared by management of the Company, of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Closing Date and on an annual basis for five years thereafter.
(vi) A favorable opinion Confirmation and ratification of General Counsel or Associate General Counsel the continued validity of the Subsidiary Guarantee and the Collateral Documents, such confirmation and ratification to the Loan Parties, substantially be in the form attached hereto as Exhibit J.
(b) All Governmental Authorizations and all third party consents and approvals necessary in connection with the Transaction shall have been obtained (without the imposition of Exhibit D-1 any conditions that are not acceptable to the Lender Parties) and as to such other matters as any shall remain in effect; and no Requirements of Law shall be applicable in the judgment of the Lender through Parties that restrains, prevents or imposes materially adverse conditions upon the Agent may reasonably requestTransaction.
(vii) A favorable opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special New York counsel to the Loan Parties, in substantially the form of Exhibit D-2 and as to such other matters as any Lender through the Agent may reasonably request.
(viii) A favorable opinion of Shearman & Sterling LLP, special New York counsel to the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent may reasonably request.
(ix) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit Agreement and each of the Lenders that is a party to the Existing Credit Agreement hereby waives, by execution of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder.
(x) Such other documents as the Agent may reasonably request.
(bc) The Borrower shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)Agents.
(cd) All amounts owing by Each of the Borrower or any of its Subsidiaries Term B Lenders and, to the lenders and agents extent that the Term B Lenders do not comprise the Required Lenders under the Existing Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Credit Agreement (except for the Existing Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Credit Agreement, such Term A Lenders and Revolving Credit Lenders as are required to comprise, together with the Term B Lenders, the Required Lenders, shall have executed the Consent to the amendments to the Existing Credit Agreement, and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc)
Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied:
(a) All governmental and third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been obtained (without the imposition of any conditions that are not acceptable to the LC Issuer) and shall remain in effect, and no law or regulation shall be applicable in the reasonable judgment of the LC Issuer that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby.
(b) The Agent LC Issuer shall have received the following in form and substance satisfactory to the AgentLC Issuer:
(i) Executed counterparts of this Agreement, sufficient in number for distribution by the Agent to each of the Lenders and the Borrower.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 2.02(g).
(iii) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each domestic Loan Party the Company approving the Agreement and each of the Loan LC Facility Documents to which it is or is to be a party, and of all documents evidencing other necessary Governmental Authorizations, or other necessary consents, approvals, authorizations, notices, filings or actions, with respect to this Agreement and any of the LC Facility Documents to which it is or is to be a party.
(ivii) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each domestic Loan Account Party listing the certificate or articles of incorporation (or similar Constitutive Document) of each such Loan Account Party and each amendment thereto on file in the office of such Secretary of State (or such governmental authority) and certifying (A) that such amendments are the only amendments to such Person’s certificate or articles of incorporation (or similar constitutive document) on file in its office, (B) if customarily available in such jurisdiction, that such Person has paid all franchise taxes (or the equivalent thereof) to the date of such certificate and (C) that such Person is duly organized and is in good standing under the laws of the jurisdiction of its organization.
(viii) A certificate of the Secretary or an Assistant Secretary of each domestic Loan Account Party certifying the names and true signatures of the officers of such Loan Account Party authorized to sign each Loan LC Facility Document to which it is a party and the other documents to be delivered hereunder.
(viiv) A favorable opinion of General Counsel or Associate General Counsel to the Loan Account Parties, substantially in the form of Exhibit D-1 A-1 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viiv) A favorable opinion of Skadden▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special New York counsel to the Loan Account Parties, in substantially the form of Exhibit D-2 A-2 hereto and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(viiivi) A favorable opinion of Shearman & Sterling LLPSuch other approvals, special New York counsel to opinions or documents as the Agent, in substantially the form of Exhibit E and as to such other matters as any Lender through the Agent LC Issuer may reasonably request.
(ixvii) Evidence that the Borrower has terminated the commitments of the lenders, and has paid in full all debt outstanding, under the Existing Credit 3-Year Agreement and each of the Lenders that is a party Other LC Facilities has been entered into and all conditions precedent to the Existing Credit effectiveness of the 3-Year Agreement hereby waives, by execution and each of the Other LC Facilities (except the entry into and effectiveness of this Agreement, the requirement of prior notice under the Existing Credit Agreement relating to the termination of commitments thereunder) have been satisfied or waived.
(xviii) Such other documents Evidence that the security interests granted to each of Bank of America, N.A., HSBC Bank, National Association and JPMorgan Chase Bank in respect of those certain letter of credit agreements between each of such parties and the Company and dated as the Agent may reasonably request.of June 25, 2003 have been terminated and all liens thereunder have been released..
(bc) The Borrower Company shall have paid all accrued fees and expenses of the Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent)LC Issuer in connection with this Agreement.
(cd) All amounts owing by the Borrower Company or any of its Subsidiaries to the lenders and agents under the Existing Letter of Credit Agreement shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, paid in full, and all commitments of the lenders under the Existing Letter of Credit Agreement (except for the Existing Letters letters of Credit credit issued thereunderthereunder which are to be deemed issued under this Agreement or the 3-Year Agreement) shall have been, or concurrently with the initial extension of credit made on the Effective Date shall be, terminated in accordance with the terms of the Existing Letter of Credit Agreement, Agreement and all guarantees given, and all security interests granted, in connection therewith shall have been terminated.
Appears in 1 contract