Cross-Guaranty. Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Guarantor as may be needed by such Specified Guarantor from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 11.12 for up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12 constitute, and this Section 11.12 shall be deemed to constitute, an agreement for the benefit of each Specified Guarantor for all purposes of the Commodity Exchange Act. This Lender New Commitment (this “Lender New Commitment”) is in respect of Amendment No. 4 to the Credit Agreement (the “Amendment”), to be entered into by and among Omaha Holdings LLC, a Delaware limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), the other Guarantors party thereto, the Lenders party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), Credit Suisse AG, Cayman Islands Branch as an Initial B-3 Dollar Term Lender, which will amend that certain Credit Agreement, dated as of July 3, 2014, as amended by Amendment No. 1 dated as of April 7, 2017, as amended by Amendment No. 2 dated as of November 22, 2017, as further amended by Amendment No. 3 dated as of January 24, 2018 (the “Existing Credit Agreement”) and, as amended by the Amendment, the “Amended Credit Agreement”). Capitalized terms used and not otherwise defined herein shall have the respective meanings given to such terms in the Amendment. [Check ONLY ONE of the two boxes below] ☐ Each undersigned Lender hereby commits an amount equal to 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) the Administrative Agent may, in its sole discretion, elect not to exchange any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans or to exchange (on a cashless basis) less than 100% of the principal amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, and subject to the occurrence of, the Amendment No. 4 Effective Date and (ii) by selecting the Cashless Settlement Option, the undersigned Lender hereby agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof to each lender that is a Lender on the date hereof, among the Borrower, the Initial B-3 Dollar Term Lender and the Administrative Agent and shall be a party to such “Cashless Roll Letter”, and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 of the Existing Credit Agreement with respect to such Lender’s Initial B-2 Dollar Term Loans.
Appears in 1 contract
Cross-Guaranty. (a) Each Qualified ECP Guarantor hereby jointly Borrower acknowledges and severallyagrees that they are providing a cross-guaranty of the obligations of each other Borrower under this Agreement and as such, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Guarantor as Borrower may be needed by such Specified Guarantor from time sometimes referred to time to honor as a “Cross-Guarantor” and collectively, as the “Cross-Guarantors.” Without limiting the generality of the foregoing, and unless and until all Obligations have been paid and satisfied in full, and Lender has released, transferred or disposed of all of its obligations under its Guaranty rights, title and interest in any Collateral or security, each Cross-Guarantor agrees that such Cross-Guarantor shall have (i) no right of subrogation against any other Borrower, any other Cross-Guarantor or any Guarantor, (ii) no right of subrogation against any Collateral or security provided for in the Loan Documents and (iii) no right of contribution against any other Borrower, Cross-Guarantor or Guarantor. To the extent the waiver of such Cross-Guarantor’s rights of subrogation, reimbursement and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, such Cross-Guarantor’s rights of subrogation and reimbursement against any other Borrower and such Cross-Guarantor’s rights of subrogation against any Collateral or security, shall be junior and subordinate to any rights Lender may have against any other Borrower, other Cross-Guarantor or any Guarantor and to all rights, title and interest Lender may have in such Collateral or security, and such Cross-Guarantor’s rights of contribution against the other Borrowers, Cross-Guarantors and any Guarantors shall be junior and subordinate to any rights Lender may have against the other Borrowers, Cross-Guarantors or Guarantors.
(b) Lender may use, sell or dispose of any item of Collateral or security as they exercise rights granted in the Loan Documents without regard to such Cross-Guarantor’s subrogation and contribution rights, and upon disposition or sale, of any item, any and all rights of such Cross-Guarantors relating to such item shall terminate.
(c) Each Cross-Guarantor waives all rights and defenses that such Cross-Guarantor may have because another Borrower’s, another Cross-Guarantor’s or any Guarantor’s debt is secured by Collateral. This means, among other things:
(i) Lender may collect from each Cross-Guarantor without first foreclosing on any personal property Collateral pledged by any other Borrower, Cross-Guarantor or other Guarantor.
(ii) If Lender forecloses on any Collateral pledged by any Borrower, any Cross-Guarantor or any other Guarantor: (A) the amount of the debt may be reduced only by the price for which that Collateral is sold at the foreclosure sale, even if the Collateral is worth more than the sale price, and (B) Lender may collect from each Cross-Guarantor even if Lender, by foreclosing on the Collateral, have destroyed any right such Cross-Guarantor may have to collect from the other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Cross-Guarantors may have because another Borrower’s, another Cross-Guarantor’s or another Guarantor’s debt is secured by the Collateral.
(d) Each Cross-Guarantor waives all rights and defenses arising out of an election of remedies by Lender, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for the Loans, has destroyed such Cross-Guarantor’s rights of subrogation and reimbursement against another Borrower, another Cross-Guarantor or any Guarantor by operation of applicable law or otherwise.
(e) No Cross-Guarantor’s liability hereunder shall be limited or affected in any way by any impairment or any diminution or loss of value of any security or Collateral for the Loans, Lender’s failure to perfect a security interest in such security or Collateral or any disability or other defense of any other Borrower, any other Cross-Guarantor or any other Guarantor.
(f) Each Cross-Guarantor agrees that Lender may enforce this Agreement and the other Loan Documents in respect against such Cross-Guarantor without the necessity of resorting to or exhausting any Swap Obligation security or Collateral (providedincluding, howeverwithout limitation, that each Qualified ECP pursuant to a judicial or nonjudicial foreclosure) and without the necessity of proceeding against any other Borrower, any other Cross-Guarantor shall only be liable under this Section 11.12 for up to or any of the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminatedGuarantors. Each Qualified ECP Cross-Guarantor intends that this Section 11.12 constitute, and this Section 11.12 shall be deemed hereby waives any right to constitute, an agreement for the benefit of each Specified Guarantor for all purposes of the Commodity Exchange Act. This require Lender New Commitment (this “Lender New Commitment”) is in respect of Amendment No. 4 to the Credit Agreement (the “Amendment”), to be entered into by and among Omaha Holdings LLC, a Delaware limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), the other Guarantors party thereto, the Lenders party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), Credit Suisse AG, Cayman Islands Branch as an Initial B-3 Dollar Term Lender, which will amend that certain Credit Agreement, dated as of July 3, 2014, as amended by Amendment No. 1 dated as of April 7, 2017, as amended by Amendment No. 2 dated as of November 22, 2017, as further amended by Amendment No. 3 dated as of January 24, 2018 (the “Existing Credit Agreement”) and, as amended by the Amendment, the “Amended Credit Agreement”). Capitalized terms used and not otherwise defined herein shall have the respective meanings given to such terms in the Amendment. [Check ONLY ONE of the two boxes below] ☐ Each undersigned Lender hereby commits an amount equal to 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) to proceed against any other Borrower, any other Cross-Guarantor or any Guarantor, (ii) to foreclose any lien on any real or personal property, (iii) to exercise any right or remedy under the Administrative Agent mayLoan Documents, or (iv) to pursue any other remedy or to enforce any other right.
(g) Each Cross-Guarantor agrees that nothing contained herein shall prevent Lender from suing on any Note or from exercising any rights available to them thereunder or under any of the Loan Documents and that the exercise of any of the aforesaid rights shall not constitute a legal or equitable discharge of such Cross-Guarantor. Each Cross-Guarantor understands that the exercise by the Lender of certain rights and remedies contained in the Loan Documents (such as a nonjudicial foreclosure) may affect or eliminate such Cross-Guarantor’s right of subrogation against another Borrower, another Cross-Guarantor or any Guarantor and that such Cross-Guarantor may therefore incur a partially or totally nonreimbursable liability hereunder. Nevertheless, each Cross-Guarantor authorizes and empowers Lender to exercise, in its their sole discretion, elect any rights and remedies, or any combination thereof, which may then be available to Lender, since it is the intent and purpose of each Cross-Guarantor that the obligations hereunder shall be absolute, independent and unconditional under any and all circumstances. Each Cross-Guarantor expressly waives any defense (which defense, if such Cross-Guarantor had not given this waiver, it might otherwise have) to exchange a judgment against such Cross-Guarantor by reason of a nonjudicial foreclosure sale. Notwithstanding any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans or to exchange (on a cashless basis) less than 100% foreclosure of the principal amount Lien of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, and subject to the occurrence of, the Amendment No. 4 Effective Date and (ii) by selecting the Cashless Settlement Option, the undersigned Lender hereby agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof to each lender that is a Lender on the date hereof, among the Borrower, the Initial B-3 Dollar Term Lender and the Administrative Agent and shall be a party to such “Cashless Roll Letter”, and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 of the Existing Credit Agreement Loan Document with respect to such Lender’s Initial B-2 Dollar Term Loansany or all of the real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Cross-Guarantor shall remain bound under the cross-guaranty contained in this Section 13.24.
(h) No provision of this Agreement shall be construed as limiting the generality for any of the covenants and waivers set forth in this Section 13.24.
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Cross-Guaranty. Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Guarantor as may be needed by such Specified Guarantor from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 11.12 for up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12 constitute, and this Section 11.12 shall be deemed to constitute, an agreement for the benefit of each Specified Guarantor for all purposes of the Commodity Exchange Act. This Lender New Commitment To: Bank of America, N.A. Gateway Village – 900 Building 000 X Xxxxx Xxxxxx Mail Code: NC1-026-06-04 Charlotte, NC, 28255-0001 Attention: Xxxxxxxx Xxxxx Telephone: 000.000.0000 Facsimile: 704.719.8127 Electronic Mail: xxxxxxxx.xxxxx@xxxx.xxx Ladies and Gentlemen: Reference is made to the Second Amended and Restated Credit Agreement dated as of July 9, 2021 (this “Lender New Commitment”) is in respect of as amended by Amendment No. 4 1, dated as of June 9, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to the Credit Agreement (time, the “AmendmentCredit Agreement”), to be entered into by and among Omaha Holdings LLCAPX Group, Inc., a Delaware limited liability company (“Holdings”), Gates Global LLC corporation (the “Borrower”), APX Group Holdings, Inc., a Delaware corporation, the other Guarantors party theretothereto from time to time, the Lenders party theretoBank of America, Credit Suisse AG, Cayman Islands BranchN.A., as administrative agent Administrative Agent, Swing Line Lender and an L/C Issuer, and each of the entities from time to time party thereto as lenders (in such capacitycollectively, the “Administrative Agent”)Lenders” and individually, Credit Suisse AG, Cayman Islands Branch as an Initial B-3 Dollar Term a “Lender, which will amend that certain Credit Agreement, dated as of July 3, 2014, as amended by Amendment No. 1 dated as of April 7, 2017, as amended by Amendment No. 2 dated as of November 22, 2017, as further amended by Amendment No. 3 dated as of January 24, 2018 (the “Existing Credit Agreement”) and, as amended by the Amendment, the “Amended Credit Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given assigned to such terms in the AmendmentCredit Agreement. The undersigned Borrower hereby requests (select one): ☐ A Borrowing of new Loans ☐ A conversion of Loans made on _____________________________ ☐ A continuation of [Check ONLY ONE of the two boxes belowTerm SOFR Loans][Eurocurrency Rate Loans] ☐ Each undersigned Lender hereby commits an amount equal made on _____________________________ to 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (be made on a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) the Administrative Agent may, in its sole discretion, elect not to exchange any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans or to exchange (on a cashless basis) less than 100% of the principal amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, and subject to the occurrence of, the Amendment No. 4 Effective Date and (ii) by selecting the Cashless Settlement Option, the undersigned Lender hereby agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof to each lender that is a Lender on the date hereof, among the Borrower, the Initial B-3 Dollar Term Lender and the Administrative Agent and shall be a party to such “Cashless Roll Letter”, and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 of the Existing Credit Agreement with respect to such Lender’s Initial B-2 Dollar Term Loans.set forth below:
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Cross-Guaranty. Each Qualified ECP Guarantor hereby jointly and severally(a) To the fullest extent permitted under applicable law, each Non-US Borrower absolutely, unconditionally and irrevocably guarantees (the undertaking by each Non-US Borrower under this Section 8.02 being the "Cross-Guaranty") the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of each other Non-US Borrower now or hereafter existing under the Loan Documents, whether for principal, interest, fees, commissions, expenses or otherwise (such Obligations being the "Cross-Guaranteed Obligations"), undertakes with each Lender Party that whenever any other Non-US Borrower does not pay any amount when due under or in connection with any of the Loan Documents, that such Non-US Borrower shall immediately on demand pay that amount as if it was the principal obligor, and agrees to provide pay on demand any and all expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by the Administrative Agent or any Lender Party in enforcing any rights under this Cross-Guaranty. Without limiting the generality of the foregoing, each Non-US Borrower's liability shall extend to all amounts that constitute part of the Cross-Guaranteed Obligations and would be owed by any other Non-US Borrower to the Administrative Agent or any Lender Party under the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such funds or other support to Loan Party. Each of the Non-US Borrowers, and by its acceptance of this Cross-Guaranty, the Administrative Agent and each Specified Guarantor as may be needed by of the Lender Parties, hereby confirm that it is the intention of all such Specified Guarantor from time to time to honor all of its obligations under its Persons that this Cross-Guaranty and the obligations of each of the Non-US Borrowers hereunder not constitute a fraudulent transfer or conveyance for purposes of the United States Federal Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Act or any similar federal or state law or similar law in any applicable jurisdiction outside the United States covering the protection of creditors' rights or the relief of debtors to the extent applicable to this Cross-Guaranty and the obligations of each of the Non-US Borrowers hereunder. To effectuate the foregoing intention, each of the Non-US Borrowers, the Administrative Agent and each of the Lender Parties hereby irrevocably agree that the Cross-Guaranteed Obligations and all of the other Loan Documents in respect liabilities of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable of the Non-US Borrowers under this Section 11.12 for up Cross-Guaranty shall be limited to the maximum amount as will, after giving effect to such maximum amount and all of the other contingent and fixed liabilities of such liability Non-US Borrower that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transferare relevant thereunder, and not for after giving effect to any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12 constitutecollections from, and this Section 11.12 shall be deemed any rights to constitutereceive contributions from, an agreement for the benefit of each Specified Guarantor for all purposes or any payments made by or on behalf of, any of the Commodity Exchange Act. This Lender New Commitment (this “Lender New Commitment”) is other Non-US Borrowers in respect of Amendment No. 4 to the Credit Agreement (obligations of such other Non-US Borrower under this Cross-Guaranty, result in the “Amendment”), to be entered into by Cross-Guaranteed Obligations and among Omaha Holdings LLC, a Delaware limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), all of the other Guarantors party thereto, the Lenders party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), Credit Suisse AG, Cayman Islands Branch as an Initial B-3 Dollar Term Lender, which will amend that certain Credit Agreement, dated as liabilities of July 3, 2014, as amended by Amendment No. 1 dated as of April 7, 2017, as amended by Amendment No. 2 dated as of November 22, 2017, as further amended by Amendment No. 3 dated as of January 24, 2018 (the “Existing Credit Agreement”) and, as amended by the Amendment, the “Amended Credit Agreement”). Capitalized terms used and not otherwise defined herein shall have the respective meanings given to such terms in the Amendment. [Check ONLY ONE each of the two boxes below] ☐ Each undersigned Lender hereby commits an amount equal to 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (on Non-US Borrowers under this Cross-Guaranty not constituting a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) the Administrative Agent may, in its sole discretion, elect not to exchange any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans fraudulent transfer or to exchange (on a cashless basis) less than 100% of the principal amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, and subject to the occurrence of, the Amendment No. 4 Effective Date and (ii) by selecting the Cashless Settlement Option, the undersigned Lender hereby agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof to each lender that is a Lender on the date hereof, among the Borrower, the Initial B-3 Dollar Term Lender and the Administrative Agent and shall be a party to such “Cashless Roll Letter”, and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 of the Existing Credit Agreement with respect to such Lender’s Initial B-2 Dollar Term Loansconveyance.
Appears in 1 contract
Samples: Credit Agreement (Paxar Corp)
Cross-Guaranty. Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Guarantor as may be needed by such Specified Guarantor from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 11.12 for up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12 constitute, and this Section 11.12 shall be deemed to constitute, an agreement for the benefit of each Specified Guarantor for all purposes of the Commodity Exchange Act. This Lender New Commitment (this “Lender New Commitment”) is in respect of Amendment No. 4 Pursuant to the Amended and Restated Credit Agreement (the “Amendment”)dated as of July 17, to be entered into by and 2015, among Omaha Holdings LLCSummit Materials, a Delaware limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), the other Guarantors party thereto, the Lenders party several banks and other financial institutions or entities from time to time parties thereto, Credit Suisse AGBank of America, Cayman Islands BranchN.A., as administrative agent (in such capacity, the “Administrative Agent”), Credit Suisse AGCollateral Agent, Cayman Islands Branch as an Initial B-3 Dollar Term Lender, which will amend that certain Credit Agreement, dated as of July 3, 2014, L/C Issuer and Swing Line Lender and the other parties thereto (as amended by Amendment No. 1 dated as of April 7January 19, 2017, as amended by Amendment No. 2 dated as of November 2221, 2017, as further amended by Amendment No. 3 dated as of May 22, 2018, Amendment No. 4 dated as of February 25, 2019, Amendment No. 5 dated as of December 14, 2022, Amendment No. 6 dated January 2410, 2018 (2023 and Amendment No. 7 dated January 12, 2024 and as further amended, restated, modified and supplemented prior to the “Existing Credit Agreement”) and, as amended by the Amendmentdate hereof, the “Amended Credit Agreement”), the undersigned hereby certifies, solely in such undersigned’s capacity as [chief financial officer] [specify other officer with equivalent duties] of the Borrower, and not individually, as follows: As of the date hereof, after giving effect to the consummation of the Acquisition and the other transactions contemplated under the Pegasus Acquisition Agreement and Amendment No. 7 to the Credit Agreement, including the making of the Loans under the Credit Agreement on the date hereof, and after giving effect to the application of the proceeds of such Loans:
a. The fair value of the assets of the Borrower and its Subsidiaries, on a consolidated basis, exceeds, on a consolidated basis, their debts and liabilities, subordinated, contingent or otherwise;
b. The present fair saleable value of the property of the Borrower and its Subsidiaries, on a consolidated basis, is greater than the amount that will be required to pay the probable liability, on a consolidated basis, of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured;
c. The Borrower and its Subsidiaries, on a consolidated basis, are able to pay their debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and
d. The Borrower and its Subsidiaries, on a consolidated basis, are not engaged in, and are not about to engage in, business for which they have unreasonably small capital. For purposes of this Certificate, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability. Capitalized terms used and but not otherwise defined herein shall have the respective meanings given assigned to such terms them in the AmendmentCredit Agreement. [Check ONLY ONE The undersigned is familiar with the business and financial position of the two boxes below] ☐ Each undersigned Lender hereby commits an amount equal to 100% of Borrower and its Subsidiaries. In reaching the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, conclusions set forth in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) the Administrative Agent may, in its sole discretion, elect not to exchange any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans or to exchange (on a cashless basis) less than 100% of the principal amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, and subject to the occurrence of, the Amendment No. 4 Effective Date and (ii) by selecting the Cashless Settlement OptionCertificate, the undersigned Lender hereby agrees to has made such other investigations and inquiries as the terms undersigned has deemed appropriate, having taken into account the nature of the “Cashless Roll Letter” posted on or around particular business anticipated to be conducted by the date hereof to each lender that is a Lender on Borrower and its Subsidiaries after consummation of the date hereof, among transactions contemplated by the Borrower, the Initial B-3 Dollar Term Lender Pegasus Acquisition Agreement and the Administrative Agent and shall be a party to such “Cashless Roll Letter”, and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 of the Existing Credit Agreement with respect to such Lender’s Initial B-2 Dollar Term LoansAgreement.
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Samples: Amendment No. 7 to the Amended and Restated Credit Agreement (Summit Materials, LLC)
Cross-Guaranty. Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Guarantor as may be needed by such Specified Guarantor from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 11.12 for up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12 constitute, and this Section 11.12 shall be deemed to constitute, an agreement for the benefit of each Specified Guarantor for all purposes of the Commodity Exchange Act. This Lender New Commitment THIS CO-BORROWER JOINDER AGREEMENT (this “Lender Agreement”), dated as of [ ], 20[ ], is entered into between [ ] (the “New CommitmentCo-Borrower”), and Credit Suisse AG, Cayman Islands Branch, in its capacity as Administrative Agent and Collateral Agent (the “Agent”) is in respect under that certain Credit Agreement, dated as of July 3, 2014 (as amended by Amendment No. 4 1, dated as of April 7, 2017, Amendment No. 2, dated as of November 22, 2017, Amendment No. 3, dated as of January 24, 2018, Amendment No. 4, dated as of February 24, 2021, Amendment No. 5, dated as of November 18, 2021, Amendment No. 6, dated as of [•], 2022, and as may be further amended, amended and restated, supplemented or modified from time to time, the “Credit Agreement Agreement”), among Gates Global LLC (the “AmendmentExisting Borrower”), to be entered into by and among Omaha Holdings LLC, a Delaware limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), the other Guarantors party thereto, the Lenders party theretothereto from time to time, Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), Credit Suisse AGCollateral Agent, Cayman Islands Branch as an Initial B-3 Dollar Term LenderSwing Line Lender and L/C Issuer, which will amend that certain Credit Agreement, dated as of July 3, 2014, as amended by Amendment Noeach L/C Issuer and each Lender from time to time party thereto. 1 dated as of April 7, 2017, as amended by Amendment No. 2 dated as of November 22, 2017, as further amended by Amendment No. 3 dated as of January 24, 2018 (the “Existing Credit Agreement”) and, as amended by the Amendment, the “Amended Credit Agreement”). Capitalized terms used and not Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the respective meanings given to such terms them in the AmendmentCredit Agreement. [Check ONLY ONE The New Co-Borrower and the Agent, for the benefit of the two boxes belowLenders, hereby agree as follows:
1. Under the Credit Agreement, the [Initial Dollar B-4 Term] ☐ Each undersigned Lender hereby commits an amount equal to 100% of Lenders have agreed, upon the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) the Administrative Agent may, in its sole discretion, elect not to exchange any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans or to exchange (on a cashless basis) less than 100% of the principal amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, terms and subject to the occurrence ofconditions set forth therein, to make Loans available to the Borrowers. The Existing Borrower and the New Co-Borrower desire that the New Co-Borrower become a Borrower under the Credit Agreement.
2. The New Co-Borrower represents that (x) the New Co-Borrower is, and after giving effect to this Agreement will continue to be, a Subsidiary Guarantor, (y) the New Co-Borrower is a wholly owned Restricted Subsidiary of Holdings and (z) the New Co-Borrower is being added as a Borrower in respect of the [Initial B-4 Dollar Term Loans].
3. Upon execution of this Agreement by each of the Existing Borrower, Holdings, the Amendment No. 4 Effective Date and (ii) by selecting the Cashless Settlement Option, the undersigned Lender hereby agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof to each lender that is a Lender on the date hereof, among the Borrower, the Initial B-3 Dollar Term Lender New Co-Borrower and the Administrative Agent and Agent, the New Co-Borrower shall be a party to such the Credit Agreement as a Co-Borrower and shall constitute a “Cashless Roll Letter”Borrower” as provided in the definition thereof, and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender New Co-Borrower hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 be bound by all provisions of the Existing Credit Agreement.
4. The New Co-Borrower (i) affirms and confirms its prior pledges and grants of Liens on the Collateral under the Collateral Documents to secure the Obligations and (ii) agrees that each of Collateral Document to which it is a party, and all Liens granted by it under the Collateral Documents, shall continue to be in full force and effect, after giving effect to this Agreement with respect and shall secure the Obligations after giving effect to such Lender’s Initial B-2 Dollar Term Loansthis Agreement.
5. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Delivery of an executed signature page to this Agreement by facsimile transmission or other electronic communication shall be effective as delivery of a manually signed counterpart of this Agreement.
6. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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Cross-Guaranty. Each Qualified ECP Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Guarantor as may be needed by such Specified Guarantor from time to time to honor all of its obligations under its Guaranty and the other Loan Documents in respect of any Swap Obligation (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 11.12 for up to the maximum amount of such liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 11.12 voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section 11.12 shall remain in full force and effect until the Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. Each Qualified ECP Guarantor intends that this Section 11.12 constitute, and this Section 11.12 shall be deemed to constitute, an agreement for the benefit of each Specified Guarantor for all purposes of the Commodity Exchange Act. This Lender New Commitment (this “Lender New Commitment”) To: Bank of America, N.A., as Administrative Agent Dedicated Servicing 900 Xxxx Xxxxx Xxxxxx Xxxxxxx Xxxxxxx – 900 Building Mail Code: NC1-026-06-04 Cxxxxxxxx, XX 00000 Attn: Kxxxxxx Dxxxx Phone: 900-000-0000 Email: kxxxxxx.xxxxx@xxxx.xxx Account No.: 1366072250600 Ref: Summit Materials ABA# 000000000 Ladies and Gentlemen: Reference is in respect of Amendment No. 4 made to the Credit Agreement (the “Amendment”), to be entered into by Amended and among Omaha Holdings LLC, a Delaware limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), the other Guarantors party thereto, the Lenders party thereto, Credit Suisse AG, Cayman Islands Branch, as administrative agent (in such capacity, the “Administrative Agent”), Credit Suisse AG, Cayman Islands Branch as an Initial B-3 Dollar Term Lender, which will amend that certain Restated Credit Agreement, dated as of July 317, 2014, 2015 (as amended by Amendment No. 1 dated as of April 7January 19, 2017, as amended by Amendment No. 2 dated as of November 2221, 2017, as further amended by Amendment No. 3 dated as of January 24May 22, 2018 (the “Existing Credit Agreement”) and2018, Amendment No. 4 dated as amended by the Amendmentof February 25, 2019 and Amendment No. 5 dated as of December 14, 2022 and as further amended, modified, refinanced and/or restated from time to time, the “Amended Credit Agreement”), among Summit Materials, LLC, a Delaware limited liability company (the “Borrower”), the Guarantors party thereto from time to time, Bank of America, N.A., as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender, and the lenders party thereto from time to time. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings given assigned to such terms in the AmendmentCredit Agreement. The undersigned Borrower hereby requests (select one): ¨ A Revolving Credit Borrowing ¨ A conversion of Revolving Credit Loans made on ¨ A continuation of Term SOFR Rate Loans made on to be made on the terms set forth below:
(A) Class of Borrowing1
(B) Date of Borrowing, conversion or continuation (which is a Business Day)
(C) Principal amount2
(D) Type of Loan3
(E) Interest Period and the last day thereof4
(F) Location and number of Bxxxxxxx’s account to which proceeds of Borrowings are to be disbursed: The above request complies with the notice requirements set forth in the Credit Agreement. [Check ONLY ONE of the two boxes below] ☐ Each The undersigned Lender Borrower hereby commits an amount equal represents and warrants to 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender to the Initial B-3 Dollar Term Loans, and agrees to exchange (on a cashless basis) 100% of the outstanding principal amount of the Initial B-2 Dollar Term Loans held by such Lender for Initial B-3 Dollar Term Loans, in an equal aggregate principal amount. By choosing this option each undersigned Lender hereby acknowledges and agrees that (i) the Administrative Agent mayand the Lenders that, in its sole discretion, elect not to exchange any amount of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans or to exchange (on a cashless basis) less than 100% and as of the principal amount date of such Lender’s Initial B-2 Dollar Term Loans for Initial B-3 Dollar Term Loans, in which case the difference between the current principal amount of such Lender’s Initial B-2 Dollar Term Loans and the allocated principal amount of Initial B-3 Dollar Term Loans, will be prepaid on, and subject Borrowing related to the occurrence ofthis Committed Loan Notice, the Amendment No. 4 Effective Date conditions specified in Section 4.02(i) and (ii) by selecting the Cashless Settlement Option, the undersigned Lender hereby agrees to the terms of the “Cashless Roll Letter” posted on or around the date hereof Credit Agreement have been satisfied.]5 [The undersigned Borrower hereby represents and warrants to each lender that is a Lender on the date hereof, among the Borrower, the Initial B-3 Dollar Term Lender and the Administrative Agent and shall be a party to such “Cashless Roll Letter”the Lenders that, on and be bound thereby, for all purposes hereof and thereof. Notwithstanding anything to the contrary, each undersigned Lender hereby agrees to waive its right to compensation for any amounts owing under Section 3.04 as of the Existing date of the Borrowing related to this Committed Loan Notice, the conditions specified in Section 2.14(d) of the Credit Agreement with respect to such Lender’s Initial B-2 Dollar Term Loans.have been satisfied.]6
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