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. To: Bank of America, N.A. Gateway Village – 900 Building ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mail Code: NC1-026-06-04 Charlotte, NC, 28255-0001 Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇.▇▇▇.▇▇▇▇ Facsimile: 704.719.8127 Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ Ladies and Gentlemen: Reference is made to the Second Amended and Restated Credit Agreement dated as of July 9, 2021 (as amended by Amendment No. 1, dated as of June 9, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among APX Group, Inc., a Delaware corporation (the “Borrower”), APX Group Holdings, Inc., a Delaware corporation, the other Guarantors party thereto from time to time, Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer, and each of the entities from time to time party thereto as lenders (collectively, the “Lenders” and individually, a “Lender”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The undersigned Borrower hereby requests (select one): ☐ A Borrowing of new Loans ☐ A conversion of Loans made on _____________________________ ☐ A continuation of [Term SOFR Loans][Eurocurrency Rate Loans] made on _____________________________ to be made on the terms set forth below:
Appears in 1 contract
Sources: Credit Agreement (NRG Energy, Inc.)
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. To: Bank This Lender New Commitment (this “Lender New Commitment”) is in respect of America, N.A. Gateway Village – 900 Building ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mail Code: NC1-026-06-04 Charlotte, NC, 28255-0001 Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇.▇▇▇.▇▇▇▇ Facsimile: 704.719.8127 Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ Ladies and Gentlemen: Reference is made to the Second Amended and Restated Credit Agreement dated as of July 9, 2021 (as amended by Amendment No. 1, dated as of June 9, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time 4 to time, the Credit Agreement (the “Credit AgreementAmendment”), to be entered into by and among APX Group, Inc.Omaha Holdings LLC, a Delaware corporation limited liability company (“Holdings”), Gates Global LLC (the “Borrower”), APX Group Holdings, Inc., a Delaware corporation, the other Guarantors party thereto from time to timethereto, Bank of Americathe Lenders party thereto, N.A.Credit Suisse AG, Cayman Islands Branch, as Administrative Agent, Swing Line Lender and an L/C Issuer, and each of the entities from time to time party thereto as lenders administrative agent (collectivelyin such capacity, the “Lenders” and individuallyAdministrative Agent”), a 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 “LenderExisting 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 assigned given to such terms in the Credit AgreementAmendment. The [Check ONLY ONE of the two boxes below] ☐ Each undersigned Borrower Lender hereby requests 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 (select one): ☐ A Borrowing on a cashless basis) 100% of new the outstanding principal amount of the Initial B-2 Dollar Term Loans ☐ A conversion 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 made for Initial B-3 Dollar Term Loans or to exchange (on _____________________________ ☐ A continuation a cashless basis) less than 100% of [the principal amount of such Lender’s Initial B-2 Dollar Term SOFR Loans][Eurocurrency Rate Loans for Initial B-3 Dollar Term Loans] made , 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 be made each lender that is a Lender on the terms set forth below: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.
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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. To: Bank of America, N.A. Gateway Village – 900 Building ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mail Code: NC1-026-06-04 Charlotte, NC, 28255-0001 Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇.▇▇▇.▇▇▇▇ Facsimile: 704.719.8127 Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ Ladies and Gentlemen: Reference is made Pursuant to the Second Amended and Restated Credit Agreement dated as of July 917, 2021 (as amended by Amendment No. 1, dated as of June 9, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”)2015, among APX GroupSummit Materials, Inc., a Delaware corporation LLC (the “Borrower”), APX Group Holdings, Inc., a Delaware corporationthe Guarantors party thereto, the several banks and other Guarantors party thereto financial institutions or entities from time to timetime parties thereto, Bank of America, N.A., as Administrative Agent, Collateral Agent, L/C Issuer and Swing Line Lender and an L/C Issuerthe other parties thereto (as amended by Amendment No. 1 dated as of January 19, 2017, Amendment No. 2 dated as of November 21, 2017, 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 10, 2023 and each of Amendment No. 7 dated January 12, 2024 and as further amended, restated, modified and supplemented prior to the entities from time to time party thereto as lenders (collectivelydate hereof, the “Lenders” 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 “Lender”)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 herein and but not otherwise defined herein shall have the meanings assigned to such terms them in the Credit Agreement. The undersigned is familiar with the business and financial position of the Borrower hereby requests (select one): ☐ A Borrowing and its Subsidiaries. In reaching the conclusions set forth in this Certificate, the undersigned has made such other investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of new Loans ☐ A conversion of Loans made on _____________________________ ☐ A continuation of [Term SOFR Loans][Eurocurrency Rate Loans] made on _____________________________ the particular business anticipated to be made on conducted by the terms set forth below:Borrower and its Subsidiaries after consummation of the transactions contemplated by the Pegasus Acquisition Agreement and the Credit Agreement.
Appears in 1 contract
Sources: 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. To: Bank of America, N.A. Gateway Village – 900 Building N.A., as Administrative Agent Dedicated Servicing 9▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mail Code: NC1-026-06-04 Charlotte, NC, 28255-0001 Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Telephone– 900 Building Mail Code: NC1-026-06-04 C▇▇▇.▇▇▇.▇▇, ▇▇ ▇▇▇▇▇ FacsimileAttn: 704.719.8127 Electronic Mail: K▇▇▇▇▇▇ D▇▇▇▇ Phone: 9▇▇-▇▇▇-▇▇▇▇ Email: k▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ Account No.: 1366072250600 Ref: Summit Materials ABA# 0▇▇▇▇▇▇▇▇ Ladies and Gentlemen: Reference is made to the Second Amended and Restated Credit Agreement Agreement, dated as of July 917, 2021 2015 (as amended by Amendment No. 1, 1 dated as of June 9January 19, 20232017, Amendment No. 2 dated as of November 21, 2017, Amendment No. 3 dated as of May 22, 2018, Amendment No. 4 dated as of February 25, 2019 and Amendment No. 5 dated as of December 14, 2022 and as further amended, restatedmodified, amended and restated, supplemented or otherwise modified refinanced and/or restated from time to time, the “Credit Agreement”), among APX GroupSummit Materials, Inc.LLC, a Delaware corporation limited liability company (the “Borrower”), APX Group Holdings, Inc., a Delaware corporation, the other Guarantors party thereto from time to time, Bank of America, N.A., as Administrative Agent, Swing Line Lender and an Collateral Agent, L/C IssuerIssuer and Swing Line Lender, and each of the entities lenders party thereto from time to time party thereto as lenders (collectively, the “Lenders” and individually, a “Lender”)time. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The undersigned Borrower hereby requests (select one): ☐ ¨ A Revolving Credit Borrowing of new Loans ☐ ¨ A conversion of Revolving Credit Loans made on _____________________________ ☐ ¨ A continuation of [Term SOFR Loans][Eurocurrency Rate Loans] 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 B▇▇▇▇▇▇▇’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. [The undersigned Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, on and as of the date of the Borrowing related to this Committed Loan Notice, the conditions specified in Section 4.02(i) and (ii) of the Credit Agreement have been satisfied.]5 [The undersigned Borrower hereby represents and warrants to the Administrative Agent and the Lenders that, on and as of the date of the Borrowing related to this Committed Loan Notice, the conditions specified in Section 2.14(d) of the Credit Agreement have been satisfied.]6
Appears in 1 contract
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. To: Bank THIS CO-BORROWER JOINDER AGREEMENT (this “Agreement”), dated as of America[ ], N.A. Gateway Village – 900 Building ▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Mail Code: NC120[ ], is entered into between [ ] (the “New Co-026-06-04 CharlotteBorrower”), NCand Credit Suisse AG, 28255-0001 Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telephone: ▇▇▇.▇▇▇.▇▇▇▇ Facsimile: 704.719.8127 Electronic Mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇.▇▇▇ Ladies Cayman Islands Branch, in its capacity as Administrative Agent and Gentlemen: Reference is made to Collateral Agent (the Second Amended and Restated “Agent”) under that certain Credit Agreement Agreement, dated as of July 93, 2021 2014 (as amended by Amendment No. 1, dated as of June 9April 7, 20232017, 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, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among APX Group, Inc., a Delaware corporation Gates Global LLC (the “Existing Borrower”), APX Group Holdings, Inc.Omaha Holdings LLC, a Delaware corporationlimited liability company (“Holdings”), the other Guarantors party thereto from time to time, Bank of AmericaCredit Suisse AG, N.A.Cayman Islands Branch, as Administrative Agent, Collateral Agent, Swing Line Lender and an L/C Issuer, each L/C Issuer and each of the entities Lender from time to time party thereto as lenders (collectively, the “Lenders” and individually, a “Lender”)thereto. Capitalized terms used herein and not Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings assigned given to such terms them in the Credit Agreement. The undersigned New Co-Borrower and the Agent, for the benefit of the Lenders, hereby agree as follows:
1. Under the Credit Agreement, the [Initial Dollar B-4 Term] Lenders have agreed, upon the terms and subject to the conditions 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 New Co-Borrower and the Administrative Agent, the New Co-Borrower shall be a party to the Credit Agreement as a Co-Borrower and shall constitute a “Borrower” as provided in the definition thereof, and the New Co-Borrower hereby requests (select one): ☐ A Borrowing of new Loans ☐ A conversion of Loans made on _____________________________ ☐ A continuation of [Term SOFR Loans][Eurocurrency Rate Loans] made on _____________________________ agrees to be made bound by all provisions of the Credit Agreement.
4. The New Co-Borrower (i) affirms and confirms its prior pledges and grants of Liens on the terms set forth below: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 and shall secure the Obligations after giving effect to this 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.
Appears in 1 contract