Amendment and Restatement; Agency Transfer; New Lenders. (a) The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 4.2, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All Loans made and Obligations incurred under the Existing Credit Agreement which are outstanding on the Closing Date shall continue as Loans and Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) all obligations constituting “Obligations” with any Lender or any affiliate of any Lender which are outstanding on the Closing Date shall continue as Obligations under this Agreement and the other Loan Documents, (c) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit exposure under the Existing Credit Agreement as are necessary in order that each such Lender’s credit exposure and outstanding Loans hereunder reflects such Lender’s ratable share of the outstanding aggregate credit exposure on the Closing Date and (d) the Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans (including the “Eurodollar Loans” under the Existing Credit Agreement) and such reallocation described above, in each case on the terms and in the manner set forth in Section 3.3 hereof. (b) Each of the parties hereto agrees that, notwithstanding the requirements of Article X of this Agreement, effective as of the Closing Date, but subject to the satisfaction of the conditions precedent set forth in Section 4.2, (a) KeyBank National Association has resigned as Administrative Agent under this Agreement and the other Loan Documents, and (b) U.S. Bank is hereby appointed (and U.S. Bank accepts such appointment) as Administrative Agent under this Agreement and the other Loan Documents. KeyBank National Association is discharged from its duties and obligations under this Agreement and under the other Loan Documents as Administrative Agent; provided that, notwithstanding the effectiveness of such resignation, the provisions of Article X of this Agreement and similar provisions in the other Loan Documents shall continue in effect for KeyBank National Association in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent under the Existing Credit Agreement. U.S. Bank, acting as Administrative Agent, shall bear no responsibility for any actions taken or omitted to be taken by KeyBank National Association while it served as Administrative Agent under or in connection with the Existing Credit Agreement, and KeyBank National Association shall bear no responsibility for any actions taken or omitted to be taken by U.S. Bank acting as Administrative Agent on and after the Closing Date. The parties hereto agree that all Liens in favor of the Administrative Agent run in favor of U.S. Bank acting in such capacity upon the effectiveness hereof. (c) By its execution hereof, each of the following is becoming a party to this Agreement as a Lender: Bank of America, N.A. and Fifth Third Bank (each a “New Lender”). Each New Lender agrees that it constitutes a Lender under this Agreement and the other Loan Documents and shall be bound by the provisions of this Agreement and the other Loan Documents. Each New Lender’s Revolving Credit Commitment appears in Schedule 1 hereto. Each New Lender acknowledges and agrees that it has received a copy of this Agreement, together with copies of financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender, which analysis and decision has been made independently of and without reliance upon the Administrative Agent or any other Lender. Each New Lender confirms it will, independently and without reliance on the Administrative Agent, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the Loan Documents, and it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
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Samples: Credit and Security Agreement (Sleep Number Corp), Credit and Security Agreement (Sleep Number Corp), Credit and Security Agreement (Sleep Number Corp)
Amendment and Restatement; Agency Transfer; New Lenders. (a) The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 4.2, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All Loans made and Obligations incurred under the Existing Credit Agreement which are outstanding on the Closing Date shall continue as Loans and Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) all obligations constituting “Obligations” with any Lender or any affiliate of any Lender which are outstanding on the Closing Date shall continue as Obligations under this Agreement and the other Loan Documents, (c) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit exposure under the Existing Credit Agreement as are necessary in order that each such Lender’s credit exposure and outstanding Loans hereunder reflects such Lender’s ratable share of the outstanding aggregate credit exposure on the Closing Date and (d) the Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans (including the “Eurodollar Loans” under the Existing Credit Agreement) and such reallocation described above, in each case on the terms and in the manner set forth in Section 3.3 hereof.
(b) Each of the parties hereto agrees that, notwithstanding the requirements of Article X of this Agreement, effective as of the Closing Date, but subject to the satisfaction of the conditions precedent set forth in Section 4.2, (a) KeyBank National Association has resigned as Administrative Agent under this Agreement and the other Loan Documents, and (b) U.S. Bank is hereby appointed (and U.S. Bank accepts such appointment) as Administrative Agent under this Agreement and the other Loan Documents. KeyBank National Association is discharged from its duties and obligations under this Agreement and under the other Loan Documents as Administrative Agent; provided that, notwithstanding the effectiveness of such resignation, the provisions of Article X of this Agreement and similar provisions in the other Loan Documents shall continue in effect for KeyBank National Association in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent under the Existing Credit Agreement. U.S. Bank, acting as Administrative Agent, shall bear no responsibility for any actions taken or omitted to be taken by KeyBank National Association while it served as Administrative Agent under or in connection with the Existing Credit Agreement, and KeyBank National Association shall bear no responsibility for any actions taken or omitted to be taken by U.S. Bank acting as Administrative Agent on and after the Closing Date. The parties hereto agree that all Liens in favor of the Administrative Agent run in favor of U.S. Bank acting in such capacity upon the effectiveness hereof.
(c) By its execution hereof, each of the following is becoming a party to this Agreement as a Lender: Bank of America, N.A. and Fifth Third Bank (each a “New Lender”). Each New Lender agrees that it constitutes a Lender under this Agreement and the other Loan Documents and shall be bound by the provisions of this Agreement and the other Loan Documents. Each New Lender’s Revolving Credit Commitment appears in Schedule 1 hereto. Each New Lender acknowledges and agrees that it has received a copy of this Agreement, together with copies of financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender, which analysis and decision has been made independently of and without reliance upon the Administrative Agent or any other Lender. Each New Lender confirms it will, independently and without reliance on the Administrative Agent, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the Loan Documents, and it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.. U.S. BANK NATIONAL ASSOCIATION, as Sole Book Runner2 _____________________ 2 Arranger and agency titles effective as of the First Amendment Effective Date. PAGE ARTICLE I DEFINITIONS 1 Section 1.1. Definitions 1 Section 1.2. Accounting Terms 30 Section 1.3. Terms Generally 31 Section 1.4. Foreign Exchange 31 ARTICLE II AMOUNT AND TERMS OF CREDIT 31 Section 2.1. Amount and Nature of Credit 31 Section 2.2. Revolving Credit Commitment 32 Section 2.3. Interest 37 Section 2.4. Noteless Agreement; Evidence of Indebtedness 38 Section 2.5. Notice of Loans and Credit Events; Funding of Loans 39 Section 2.6. Payment on Loans and Other Obligations 42 Section 2.7. Prepayment 43 Section 2.8. Commitment and Other Fees 44 Section 2.9. Modifications to Commitment 44 Section 2.10. Computation of Interest and Fees 45 Section 2.11. Mandatory Payments 46 Section 2.12. Swap Obligations Make‑Well Provision 47 Section 2.13. Market Disruption 47 Section 2.14. Judgment Currency 47 Section 2.15. Foreign Subsidiary Borrowers 48 ARTICLE III ADDITIONAL PROVISIONS RELATING TO EUROCURRENCY LOANS; INCREASED CAPITAL; TAXES 49 Section 3.1. Requirements of Law 49 Section 3.2. Taxes 50 Section 3.3. Funding Losses 52 Section 3.4. Change of Lending Office 53 Section 3.5. Eurocurrency Rate Lending Unlawful; Inability to Determine Rate 53 Section 3.6. Replacement of Lenders 54 Section 3.7. Discretion of Lenders as to Manner of Funding 55 ARTICLE IV CONDITIONS PRECEDENT 55
Section 4.1. Conditions to Each Credit Event 55 Section 4.2. Conditions to the First Credit Event 56 Section 4.3. Post‑Closing Conditions 58 TABLE OF CONTENTS (Continued) ARTICLE V COVENANTS 58 Section 5.1. Insurance 59 Section 5.2. Money Obligations 59 Section 5.3. Financial Statements and Information 60 Section 5.4. Financial Records 61 Section 5.5. Franchises; Change in Business 61 Section 5.6. ERISA Pension and Benefit Plan Compliance 61 Section 5.7. Financial Covenants 62 Section 5.8. Borrowing 62 Section 5.9. Liens 63 Section 5.10. Regulations T, U and X 64 Section 5.11. Investments, Loans and Guaranties 64 Section 5.12. Merger and Sale of Assets 65 Section 5.13. Acquisitions 66 Section 5.14. Notice 67 Section 5.15. Restricted Payments 67 Section 5.16. Environmental Compliance 67 Section 5.17. Affiliate Transactions 68 Section 5.18. Use of Proceeds 68 Section 5.19. Corporate Names and Locations of Collateral 68 Section 5.20. Subsidiary Guaranties, Security Documents and Pledge of Stock or Other Ownership Interest 69 Section 5.21. Collateral 70 Section 5.22. Property Acquired Subsequent to the Closing Date and Right to Take Additional Collateral 73 Section 5.23. Restrictive Agreements 73 Section 5.24. Other Covenants and Provisions 74 Section 5.25. Guaranty Under Material Indebtedness Agreement 74 Section 5.26. Amendment of Organizational Documents 74 Section 5.27. Fiscal Year of Borrower 74 Section 5.28. Further Assurances 74 Section 5.29. Contributions to the Sleep Number Executive Investment Plan Trust 74 Section 5.30. Compliance with Laws 75 ARTICLE VI REPRESENTATIONS AND WARRANTIES 75
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification 75
Section 6.2. Corporate Authority 75 Section 6.3. Compliance with Laws and Contracts 75 TABLE OF CONTENTS (Continued) Section 6.4. Litigation and Administrative Proceedings 76 Section 6.5. Title to Assets 76 Section 6.6. Liens and Security Interests 76 Section 6.7. Tax Returns 77 Section 6.8. Environmental Laws 77 Section 6.9. Locations 77 Section 6.10. Continued Business 78 Section 6.11. Employee Benefits Plans 78 Section 6.12. Consents or Approvals 79 Section 6.13. Solvency 79 Section 6.14. Financial Statements 79 Section 6.15. Regulations 79 Section 6.16. Material Agreements 79 Section 6.17. Intellectual Property 80 Section 6.18. Insurance 80 Section 6.19. Deposit Accounts and Securities Accounts 80 Section 6.20. Accurate and Complete Statements 80 Section 6.21. Investment Company; Other Restrictions 80 Section 6.22. Defaults 80 Section 6.23. Anti-Corruption Laws; Sanctions 80 Section 6.24. Anti-Money Laundering Compliance 81 Section 6.25. EEA Financial Institution 81 ARTICLE VII SECURITY 81 Section 7.1. Security Interest in Collateral 81 Section 7.2. Collections and Receipt of Proceeds by Borrower 81 Section 7.3. Collections and Receipt of Proceeds by Administrative Agent 82
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Amendment and Restatement; Agency Transfer; New Lenders. (a) The parties to this Agreement agree that, upon (i) the execution and delivery by each of the parties hereto of this Agreement and (ii) satisfaction of the conditions set forth in Section 4.2, the terms and provisions of the Existing Credit Agreement shall be and hereby are amended, superseded and restated in their entirety by the terms and provisions of this Agreement. This Agreement is not intended to and shall not constitute a novation. All Loans made and Obligations incurred under the Existing Credit Agreement which are outstanding on the Closing Date shall continue as Loans and Obligations under (and shall be governed by the terms of) this Agreement and the other Loan Documents. Without limiting the foregoing, upon the effectiveness hereof: (a) all references in the “Loan Documents” (as defined in the Existing Credit Agreement) to the “Administrative Agent”, the “Credit Agreement” and the “Loan Documents” shall be deemed to refer to the Administrative Agent, this Agreement and the Loan Documents, (b) all obligations constituting “Obligations” with any Lender or any affiliate of any Lender which are outstanding on the Closing Date shall continue as Obligations under this Agreement and the other Loan Documents, (c) the Administrative Agent shall make such reallocations, sales, assignments or other relevant actions in respect of each Lender’s credit exposure under the Existing Credit Agreement as are necessary in order that each such Lender’s credit exposure and outstanding Loans hereunder reflects such Lender’s ratable share of the outstanding aggregate credit exposure on the Closing Date and (d) the Borrower hereby agrees to compensate each Lender for any and all losses, costs and expenses incurred by such Lender in connection with the sale and assignment of any Eurocurrency Loans (including the “Eurodollar Loans” under the Existing Credit Agreement) and such reallocation described above, in each case on the terms and in the manner set forth in Section 3.3 hereof.
(b) Each of the parties hereto agrees that, notwithstanding the requirements of Article X of this Agreement, effective as of the Closing Date, but subject to the satisfaction of the conditions precedent set forth in Section 4.2, (a) KeyBank National Association has resigned as Administrative Agent under this Agreement and the other Loan Documents, and (b) U.S. Bank is hereby appointed (and U.S. Bank accepts such appointment) as Administrative Agent under this Agreement and the other Loan Documents. KeyBank National Association is discharged from its duties and obligations under this Agreement and under the other Loan Documents as Administrative Agent; provided that, notwithstanding the effectiveness of such resignation, the provisions of Article X of this Agreement and similar provisions in the other Loan Documents shall continue in effect for KeyBank National Association in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent under the Existing Credit Agreement. U.S. Bank, acting as Administrative Agent, shall bear no responsibility for any actions taken or omitted to be taken by KeyBank National Association while it served as Administrative Agent under or in connection with the Existing Credit Agreement, and KeyBank National Association shall bear no responsibility for any actions taken or omitted to be taken by U.S. Bank acting as Administrative Agent on and after the Closing Date. The parties hereto agree that all Liens in favor of the Administrative Agent run in favor of U.S. Bank acting in such capacity upon the effectiveness hereof.
(c) By its execution hereof, each of the following is becoming a party to this Agreement as a Lender: Bank of America, N.A. and Fifth Third Bank (each a “New Lender”). Each New Lender agrees that it constitutes a Lender under this Agreement and the other Loan Documents and shall be bound by the provisions of this Agreement and the other Loan Documents. Each New Lender’s Revolving Credit Commitment appears in Schedule 1 hereto. Each New Lender acknowledges and agrees that it has received a copy of this Agreement, together with copies of financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement and to become a Lender, which analysis and decision has been made independently of and without reliance upon the Administrative Agent or any other Lender. Each New Lender confirms it will, independently and without reliance on the Administrative Agent, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the Loan Documents, and it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.Loan
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