Conditions Precedent to Effectiveness of this Amendment and Restatement. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied 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 4.04(d). (iii) Xxxx executed copies of (A) the U.S. Security Agreement, and all exhibits and schedules thereto and (B) the Canadian Security Agreements, and all exhibits and schedules thereto. (iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each 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. (v) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Loan Party, a certificate of the Secretary or an Assistant Secretary of each Canadian Loan Party certifying a copy of) 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 (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 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 Canadian Loan Parties shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Loan Party (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Loan Party). (vi) A certificate of the Secretary or an Assistant Secretary of each 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. (vii) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxx, Xxxxxx & Harcourt LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to 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 necessary 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) All governmental, shareholder and third party consents necessary (if any) in connection with the Transactions. (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 Restatement Date). (xii) The Joint Lead Arrangers shall have received (1) forecasts prepared by management of the Parent Borrower and its Subsidiaries, taken as a whole, each in form and substance reasonably satisfactory to the Joint Lead Arrangers, of (x) balance sheets, income statements, and cash flow statements on a quarterly basis through the end of the Fiscal Year ending on January 28, 2023 and balance sheets, income statements, and cash flow statements on an annual basis through the end of the Fiscal Year ending February 1, 2025 (y) projected Borrowing Bases and Availability forecasts on a quarterly basis for the Fiscal Year ending on January 28, 2023. (xiii) At least three days prior to the Restatement 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 request and, upon the reasonable request of any Lender made at least ten (10) days prior to the Restatement Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three days prior to the Restatement Date. (b) There shall not have occurred since January 29, 2022 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change. (c) 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 is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect. (d) The Lenders shall have completed a due diligence investigation of Parent Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws, rules and regulations (including applicable foreign laws, rules and regulations). (e) Parent Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent and such other counsel agreed by the Parent Borrower). (f) All amounts owing by Parent Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement (except for the Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Restatement Date shall be, paid in full. (g) After giving effect to (i) any Revolving Credit Advance funded on the Restatement Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Restatement Date, Availability plus the amount of cash and Cash Equivalents of Parent Borrower and its Subsidiaries shall be not less than $2,000,000,000. (h) The Agent shall have received a Borrowing Base Certificate dated the Restatement Date, relating to the Fiscal Quarter ended on April 30, 2022, and executed by a Responsible Officer of the Parent Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Amendment and Restatement. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied 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 4.04(d).
(iii) Xxxx executed copies of (A) the U.S. Security Agreement, and all exhibits and schedules thereto and (B) the Canadian Security Agreements, and all exhibits and schedules thereto.
(iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each 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.
(v) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Loan Party, a certificate of the Secretary or an Assistant Secretary of each Canadian Loan Party certifying a copy of) 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 (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 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 Canadian Loan Parties shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Loan Party (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Loan Party).
(vi) A certificate of the Secretary or an Assistant Secretary of each 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.
(vii) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxx, Xxxxxx & Harcourt LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to 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 necessary 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) All governmental, shareholder and third party consents necessary (if any) in connection with the Transactions.
(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 Restatement Date).
(xii) The Joint Lead Arrangers shall have received (1) forecasts prepared by management of the Parent Borrower and its Subsidiaries, taken as a whole, each in form and substance reasonably satisfactory to the Joint Lead Arrangers, of (x) balance sheets, income statements, and cash flow statements on a quarterly basis through the end of the Fiscal Year ending on January 28, 2023 and balance sheets, income statements, and cash flow statements on an annual basis through the end of the Fiscal Year ending February 1, 2025 (y) projected Borrowing Bases and Availability forecasts on a quarterly basis for the Fiscal Year ending on January 28, 2023.
(xiii) At least three days prior to the Restatement 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 request and, upon the reasonable request of any Lender made at least ten (10) days prior to the Restatement Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three days prior to the Restatement Date.
(b) There shall not have occurred since January 29, 2022 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(c) 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 is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of Parent Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws, rules and regulations (including applicable foreign laws, rules and regulations).
(e) Parent Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent and such other counsel agreed by the Parent Borrower).
(f) All amounts owing by Parent Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement (except for the Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Restatement Date shall be, paid in full.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Restatement Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Restatement Date, Availability plus the amount of cash and Cash Equivalents of Parent Borrower and its Subsidiaries shall be not less than $2,000,000,000.
(h) The Agent shall have received a Borrowing Base Certificate dated the Restatement Date, relating to the Fiscal Quarter ended on April 30, 2022, and executed by a Responsible Officer of the Parent Borrower.
Appears in 1 contract
Samples: Fourth Amended and Restated Revolving Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Amendment and Restatement. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied or waived:
(a) The Agent shall have received the following in form and substance satisfactory to the Agent:: 135
(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 4.04(d).
(iii) Xxxx Duly executed copies of (A) the U.S. Security Agreement, dated the Restatement Date, and all exhibits and schedules thereto and thereto, (B) the Canadian Security Agreements, dated the Restatement Date (provided that the deed of movable hypothec may be dated prior to the Restatement Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, dated the Restatement 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.
(iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each 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.
(v) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Loan Party, a certificate of the Secretary or an Assistant Secretary of each Canadian Loan Party certifying a copy of) 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 (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 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 Canadian Loan Parties shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Loan Party (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Loan Party).
(vi) A certificate of the Secretary or an Assistant Secretary of each 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.
(vii) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxxxxxx, LLP, Xxxxx, Xxxxxx & Harcourt LLP, Xxxxxxx XxXxxxxx and MLT Xxxxxx LLP, special counsel 136 to the Loan Parties, in each case in a form reasonably acceptable to 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 necessary 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) All governmental, shareholder and third party consents necessary (if any) in connection with the Transactions.
(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 Restatement Date).
(xii) The Joint Lead Arrangers shall have received (1) forecasts prepared by management of the Parent Borrower and its Subsidiaries, taken as a whole, each in form and substance reasonably satisfactory to the Joint Lead Arrangers, of (x) balance sheets, income statements, and cash flow statements on a monthly basis for the twelve month period following the Restatement Date and on a quarterly basis through the end of the Fiscal Year ending on January 2829, 2023 2022 and balance sheets, income statements, (y) projected Borrowing Bases and cash flow statements Availability forecasts on a monthly basis for the four fiscal quarter period following the Restatement Date and on an annual basis through the end of the Fiscal Year ending February 1, 2025 (y) projected Borrowing Bases and Availability forecasts on a quarterly basis for the Fiscal Year ending on January 2830, 20232021.
(xiii) At least three days prior to the Restatement 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 request and, upon the reasonable request of any Lender made at least ten (10) days prior to the Restatement Date, such documentation and other information so requested in 137 connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three days prior to the Restatement Date.
(b) There shall not have occurred since January 29February 1, 2022 2020 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(c) 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 is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of Parent Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws, rules and regulations (including applicable foreign laws, rules and regulations).
(e) Parent Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent and such other counsel agreed by the Parent Borrower).
(f) All amounts owing by Parent Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement (except for the Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Restatement Date shall be, paid in full.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Restatement Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Restatement Date, Availability plus the amount of cash and Cash Equivalents of Parent Borrower and its Subsidiaries shall be not less than $2,000,000,000.
(h) The Agent shall have received a Borrowing Base Certificate dated the Restatement Date, relating to the Fiscal Quarter ended on April 30, 2022, and executed by a Responsible Officer of the Parent Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Amendment and Restatement. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date on which the following conditions precedent have been satisfied 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 4.04(d).
(iii) Xxxx Duly executed copies of (A) the U.S. Security Agreement, dated the Restatement Date, and all exhibits and schedules thereto and thereto, (B) the Canadian Security Agreements, dated the Restatement Date (provided that the deed of movable hypothec may be dated prior to the Restatement Date), and all exhibits and schedules thereto, and (C) the Intellectual Property Security Agreements, dated the Restatement 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.
(iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) of each 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.
(v) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. Loan Party listing (or, as regards a Canadian Loan Party, a certificate of the Secretary or an Assistant Secretary of each Canadian Loan Party certifying a copy of) 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 (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 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 Canadian Loan Parties shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Loan Party (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Loan Party).
(vi) A certificate of the Secretary or an Assistant Secretary of each 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.
(vii) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxxxxxx, LLP, Xxxxx, Xxxxxx & Harcourt LLP, Xxxxxxx XxXxxxxx and MLT Xxxxxx LLP, special counsel to the Loan Parties, in each case in a form reasonably acceptable to 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 necessary 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) All governmental, shareholder and third party consents necessary (if any) in connection with the Transactions.
(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 Restatement Date).
(xii) The Joint Lead Arrangers shall have received (1) forecasts prepared by management of the Parent Borrower and its Subsidiaries, taken as a whole, each in form and substance reasonably satisfactory to the Joint Lead Arrangers, of (x) balance sheets, income statements, and cash flow statements on a monthly basis for the twelve month period following the Restatement Date and on a quarterly basis through the end of the Fiscal Year ending on January 2829, 2023 2022 and balance sheets, income statements, (y) projected Borrowing Bases and cash flow statements Availability forecasts on a monthly basis for the four fiscal quarter period following the Restatement Date and on an annual basis through the end of the Fiscal Year ending February 1, 2025 (y) projected Borrowing Bases and Availability forecasts on a quarterly basis for the Fiscal Year ending on January 2830, 20232021.
(xiii) At least three days prior to the Restatement 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 request and, upon the reasonable request of any Lender made at least ten (10) days prior to the Restatement Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three days prior to the Restatement Date.
(b) There shall not have occurred since January 29February 1, 2022 2020 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(c) 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 is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of Parent Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws, rules and regulations (including applicable foreign laws, rules and regulations).
(e) Parent Borrower shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including the documented accrued fees and expenses of counsel to the Agent and such other counsel agreed by the Parent Borrower).
(f) All amounts owing by Parent Borrower or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement (except for the Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Restatement Date shall be, paid in full.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Restatement Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Restatement Date, Availability plus the amount of cash and Cash Equivalents of Parent Borrower and its Subsidiaries shall be not less than $2,000,000,000.
(h) The Agent shall have received a Borrowing Base Certificate dated the Restatement Date, relating to the Fiscal Quarter Month ended on April 304, 20222020, and executed by a Responsible Officer of the Parent Borrower.
(i) Lenders party hereto shall together constitute all of the Lenders under the Existing Credit Agreement.
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Amendment and Restatement. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied or waivedsatisfied:
(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 BorrowerCompany.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 4.04(d).
(iii) Xxxx executed copies of (A) the U.S. Security Agreement, and all exhibits and schedules thereto and (B) the Canadian Security Agreements, and all exhibits and schedules thereto.
(iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) 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.
(viv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. domestic Loan Party listing (or, as regards a Canadian Loan Party, a certificate of the Secretary or an Assistant Secretary of each Canadian Loan Party certifying a copy of) 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 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 such its 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 Canadian Loan Parties shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Loan Party (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Loan Party).
(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.
(viivi) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxx, Xxxxxx & Harcourt LLP, special New York counsel to the Loan Parties, in each case in a substantially the form reasonably acceptable of Exhibit D and as to such other matters as any Lender through the Agent and addressed to the Agent, the Issuing Banks and each of the Lendersmay reasonably request.
(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 necessary 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) All governmental, shareholder and third party consents necessary (if any) in connection with the Transactions.
(xvii) A certificate of a Responsible Officer of Parent Borrower the Company certifying that (A) the representations and warranties contained in Section 6.01 are correct on and as of the Effective Date, except to the effect set forth extent that any such representation or warranty is stated to relate to an earlier date, in Section 5.01(b)which case such representation or warranty shall be true and correct on and as of such earlier date, 5.02(a(B) no event has occurred and 5.02(bis continuing which constitutes an Event of Default or Default and (C) 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 Restatement Date).
(xii) The Joint Lead Arrangers shall have received since February 3, 2018, there has been no (1) forecasts prepared by management material adverse change in, or a material adverse effect on, the business, condition (financial or otherwise), results of operations or prospects of the Parent Borrower Company and its Subsidiaries, taken as a whole, each in form and substance reasonably satisfactory to the Joint Lead Arrangers, of ; (x2) balance sheets, income statements, and cash flow statements on a quarterly basis through the end material impairment of the Fiscal Year ending on January 28, 2023 rights and balance sheets, income statements, and cash flow statements on an annual basis through the end remedies of the Fiscal Year ending February 1Agent or any Lender under this Agreement, 2025 or of the ability of the Company to perform its obligations under this Agreement as and when due; or (y3) projected Borrowing Bases and Availability forecasts on a quarterly basis for material adverse effect upon the Fiscal Year ending on January 28legality, 2023validity, binding effect or enforceability against the Company of this Agreement.
(xiiiviii) At least three five days prior to the Restatement Effective 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.
(xivix) Such other documents as the Agent may reasonably request and, upon the reasonable request of any Lender made at least ten (10) days prior to the Restatement Effective Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada)Act, in each case at least three five days prior to the Restatement Effective Date.
(b) There shall not have occurred since January 29, 2022 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(c) 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 is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of Parent Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws, rules and regulations (including applicable foreign laws, rules and regulations).
(e) Parent Borrower Company shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including documented the documented accrued fees and expenses of counsel to the Agent and such other counsel agreed by the Parent BorrowerAgent).
(fc) All amounts owing by Parent Borrower the Company or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement (except for the Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Restatement Effective Date shall be, paid in full.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Restatement Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Restatement Date, Availability plus the amount of cash and Cash Equivalents of Parent Borrower and its Subsidiaries shall be not less than $2,000,000,000.
(h) The Agent shall have received a Borrowing Base Certificate dated the Restatement Date, relating to the Fiscal Quarter ended on April 30, 2022, and executed by a Responsible Officer of the Parent Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
Conditions Precedent to Effectiveness of this Amendment and Restatement. This amendment and restatement of the Existing Credit Agreement shall become effective on and as of the first date (the “Effective Date”) on which the following conditions precedent have been satisfied or waivedsatisfied:
(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 BorrowerCompany.
(ii) The notes to the order of the Lenders to the extent requested by any Lender pursuant to Section 4.04(d).
(iii) Xxxx executed copies of (A) the U.S. Security Agreement, and all exhibits and schedules thereto and (B) the Canadian Security Agreements, and all exhibits and schedules thereto.
(iv) Certified copies of the resolutions of the board of directors (or persons performing similar functions) 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.
(viv) A copy of a certificate of the Secretary of State (or equivalent Governmental Authority) of the jurisdiction of organization of each U.S. domestic Loan Party listing (or, as regards a Canadian Loan Party, a certificate of the Secretary or an Assistant Secretary of each Canadian Loan Party certifying a copy of) 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 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 such its 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 Canadian Loan Parties shall deliver a certificate as to the good standing (or local equivalent) of each Canadian Loan Party (to the extent available in the relevant jurisdiction) as of a recent date, from the applicable Governmental Authority in the jurisdiction of organization, incorporation or formation of such Canadian Loan Party).
(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.
(viivi) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP and Xxxxx, Xxxxxx & Harcourt LLP, special New York counsel to the Loan Parties, in each case in a substantially the form reasonably acceptable of Exhibit D and as to such other matters as any Lender through the Agent and addressed to the Agent, the Issuing Banks and each of the Lendersmay reasonably request.
(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 necessary 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) All governmental, shareholder and third party consents necessary (if any) in connection with the Transactions.
(xvii) A certificate of a Responsible Officer of Parent Borrower the Company certifying that (A) the representations and warranties contained in Section 6.01 are correct on and as of the Effective Date, except to the effect set forth extent that any such representation or warranty is stated to relate to an earlier date, in Section 5.01(b)which case such representation or warranty shall be true and correct on and as of such earlier date, 5.02(a(B) no event has occurred and 5.02(bis continuing which constitutes an Event of Default or Default and (C) 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 Restatement Date).
(xii) The Joint Lead Arrangers shall have received since January 31, 2015, there has been no (1) forecasts prepared by management material adverse change in, or a material adverse effect on, the business, condition (financial or otherwise), results of operations or prospects of the Parent Borrower Company and its Subsidiaries, taken as a whole, each in form and substance reasonably satisfactory to the Joint Lead Arrangers, of ; (x2) balance sheets, income statements, and cash flow statements on a quarterly basis through the end material impairment of the Fiscal Year ending on January 28, 2023 rights and balance sheets, income statements, and cash flow statements on an annual basis through the end remedies of the Fiscal Year ending February 1Administrative Agent or any Lender under this Agreement, 2025 or of the ability of the Company to perform its obligations under this Agreement as and when due; or (y3) projected Borrowing Bases and Availability forecasts on a quarterly basis for material adverse effect upon the Fiscal Year ending on January 28legality, 2023validity, binding effect or enforceability against the Company of this Agreement.
(xiii) At least three days prior to the Restatement 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.
(xivviii) Such other documents as the Agent may reasonably request and, upon the reasonable request of any Lender made at least ten (10) days prior to the Restatement Date, such documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the PATRIOT Act and the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), in each case at least three days prior to the Restatement Daterequest.
(b) There shall not have occurred since January 29, 2022 any event or condition that has had or could be reasonably expected, either individually or in the aggregate, to have a Material Adverse Change.
(c) 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 is reasonably likely to be adversely determined, and if, adversely determined could reasonably be expected to have a Material Adverse Effect.
(d) The Lenders shall have completed a due diligence investigation of Parent Borrower and its Subsidiaries in scope, and with results, satisfactory to the Lenders, including with respect to U.S. Department of Treasury Office of Foreign Assets Control, Foreign Corrupt Practices Act, the Corruption of Foreign Public Officials Act (Canada), anti-money laundering laws, rules and regulations (including applicable foreign laws, rules and regulations).
(e) Parent Borrower Company shall have paid all documented accrued fees and expenses of the Agent and the Lenders (including documented the documented accrued fees and expenses of counsel to the Agent and such other counsel agreed by the Parent BorrowerAgent).
(fc) All amounts owing by Parent Borrower the Company or any of its Subsidiaries to the lenders and agents under the Existing Credit Agreement (except for the Letters of Credit issued thereunder) shall have been, or concurrently with the initial extension of credit made on the Restatement Effective Date shall be, paid in full.
(g) After giving effect to (i) any Revolving Credit Advance funded on the Restatement Date and (ii) all Letters of Credit to be issued at, or immediately subsequent to, the Restatement Date, Availability plus the amount of cash and Cash Equivalents of Parent Borrower and its Subsidiaries shall be not less than $2,000,000,000.
(h) The Agent shall have received a Borrowing Base Certificate dated the Restatement Date, relating to the Fiscal Quarter ended on April 30, 2022, and executed by a Responsible Officer of the Parent Borrower.
Appears in 1 contract
Samples: Revolving Credit Agreement (Gap Inc)
